OBAA AHEMA ENTERPRISE LIMITED & ANOR. vs GT BANK LIMITED

MOTION ON NOTICE FOR MISJOINDER

The instant application is a motion on notice for misjoinder filed on behalf of Defendant Applicant (hereinafter referred to as Applicant).

The grounds for the instant application being that 1st Plaintiff Respondent (hereinafter referred to as 1st Respondent) is not a customer of Applicant.

That furthermore the Plaintiffs’ Witness admitted under cross examination on 25th January 2022 that Respondent is not a Customer of Applicant as per the Record of Proceedings attached to the affidavit in support and marked as Exhibit 1.

That the said witness further admitted that it is rather 2nd Respondent who is a customer of Applicant and that the subject matter of the instant suit was based on 2nd Respondent’s instructions to Applicant.

That for this reason, the inclusion of 1st Respondent in this suit is improper and an unnecessary party to the suit.

The basis for opposing the instant application is that at all material times 2nd Respondent transacted the business and paid monies to Applicant for the benefit of the 1st Respondent.

That the law allows a third party to benefit from an agreement that it is not party to. That this being so 1st Respondent can institute an action to protect its interest in a transaction which is for its benefit, it is a necessary party to the suit because its presence therein shall result in an effective determination of all issues in controversy.

The Court has given careful consideration to the submissions made by both Counsel in moving and in opposing the instant application.

Order 4 Rule 5(2) (a) of C.I. 47 provides as follows:

“(2) At any stage of proceedings the court may on such terms as it thinks just either of its own motion or on an application.

(a) Order any person who has been improperly or unnecessarily made a party or who for any reason is no longer a party or a necessary party to cease to be a party.”

It is pursuant to this provision that the instant application has been filed.

The Court is however not minded to grant the instant application. This is because the Court is of the opinion after carefully reading the pleadings and the issues set down to be determined by the trial Court shows that 1st Respondent is a necessary party to the suit.

It is after the trial that the Court can conclusively determine whether the monies purported to have been transferred by Applicant on the instructions of 2nd Respondent was for the benefit of 1st Respondent and whether or not 1st Respondent c