2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arose from the High Court, Kumasis refusal to strike out the 3rd Defendant/Appellant as a misjoined party in a multi-defendant suit over a construction project at Prempeh College. The plaintiffs claimed over GH00,096.27, interest, damages, and costs for alleged breach and destruction of works. The trial judge declined to remove the Appellant, reasoning that the statement of claim disclosed a reasonable cause of action and that a statement of defence was needed before deciding joinder. The Court of Appeal, per Asiedu JA, reviewed the pleadings and found no alleged wrongful act or contractual privity involving the Appellant; mere public opposition to the project did not create tort or contract liability, and demolition was attributed to the 16th Defendant. Under Order 4 rule 5(2)(a) of CI 47, misjoinder can be corrected at any stage without a defence. Finding a misapprehension of the law, the court unanimously allowed the appeal, set aside the ruling, struck out the Appellant, awarded costs, and directed the suit to continue against others.
ASIEDU, JA.
My lords, this is an interlocutory appeal against a ruling delivered by the High Court, Kumasi, on the 18th day of December 2019. The Plaintiffs/Respondents, hereinafter referred to as the Respondents, had, on the 19th December 2018, issued a writ of summons against the Defendants including the Appellant herein, who was sued as the 3rd Defendant. In the said writ, the Respondents claim, jointly and severally, against the Defendants for the recovery of:
a. “An amount of GH₵900,096.27 being the cost of work executed pursuant to an agreement entered into between the Defendants and the Plaintiffs to construct a two-storey building which will serve as fence wall around Prempeh College, Kumasi but which agreement Defendants have subsequently abrogated and destroyed the work executed by the Plaintiffs.
b. Interest on the said GH₵900,096.27 from November, 2018 till date of final payment
c. Damages for breach of contract.
d. Cost
e. Any order(s) the Honourable Court may deem fit.”
The 3rd Defendant/Appellant failed to enter an appearance. Subsequently, the Appellant filed a motion on notice for leave to file an appearance and also for an order “to strike out the name of the 3rd Defendant as a party to the suit by reason of misjoinder”. The Appellant was granted leave to file appearance on the 14th October 2019 and the appearance was actually filed on the 21st October 2019. The motion for misjoinder was heard on the 25th October 2019 and on the 18th December 2019, the learned High Court Judge dismissed the application which therefore triggered the filing of the instant appeal on the 31st December 2019 in which the Appellant seeks “an order setting aside the ruling of the High Court, Kumasi” on the grounds that:
The learned trial Judge in refusing the application to strike out the name of the 3rd Defendant/Appellant from the suit for misjoinder, exercised his discretion improperly as the Appellant is not a true and necessary party to the suit.
The Appellant indicated on the notice of appeal that “further grounds of appeal will be filed upon receipt of a copy of the ruling” but there is no indication from the record of appeal to show that the Appellant filed any additional grounds of appeal. The only ground of appeal therefore is the ground stated on the notice of appeal which has been quoted above.
It has been submitted at page 9 of the written submission filed on behalf of the appellant that:
“The learned trial Judge did not only exercise his