Joinder Flashcards
What must be considered when issuing a writ?
i. Party must be vested with an accrued cause of action
ii. All conditions have been satisfied if needed prior to issuing writ
iii. Whether cause of action is statute barred
iv. Whether matter is res judicata
Other things to be considered
Plaintiffs must show in the SoC that there is a cause of action for each and every Plaintiff and liability on the part of person made a def. to the action
- In adding a plaintiff to the action, if the Plaintiff is likely to put a conflicting claim differing from the remaining P’s he/she should not be added.
- If Def has good grounds for counterclaim he/she should not be added as he may embarrass the P’s or delay proceedings.
- If P to be joined is a person of straw.
JOINDER OF CAUSES OF ACTION(without leave)
O4 r2
Subject to the power of the court to order separate trials under Or4, a plaintiff may without leave join in one action several causes of action against the same defendant if def is liable in respect of all the causes of action
- if the plaintiff claims and defendant is alleged to liable in respect of all the causes of action or
- The party is suing or sued both in his capacity as executor or administrator of an estate or successor under customary law and in his personal capacity if the personal claims have reference to the same estate.
JOINDER OF CAUSES OF ACTION(leave required)
O4 r2
In all other cases, leave is required – application shall be made ex parte before the writ is issued - supported by an affidavit stating the grounds for the application.
Ancillary reliefs such as damages for trespass, perpetual injunction an order for accounts need not be joined as a cause of action, but rather may be added to substantive claim, such as recovery of possession and declaration of title without leave of the court.
The court will generally grant leave to join several causes of action unless the proposed joinder is glaringly improper, obviously embarrassing or likely to cause delay or inconvenience.
Even where court grants leave, the defendant has the right to object if he can show that the causes of action cannot be conveniently tried together or that the joinder may cause embarrassment or delay under r. 5
What is the rationale for allowing parties to join several causes of action in one suit?
To enable the court to determine all disputes arising between the parties in one and are action as much as practicable to avoid multiplicity of suits and reduce the cost of litigation.
*Should be noted that claims such as damages for trespass, perpetual injunction and order for accounts are not difference causes of action but ancillary reliefs and may be added to substantive claims such as recovery of possession and declaration of title to land without leave of the court.
Is Joinder of causes of action the same consolidation of suits?
No: SG SSB v Hajaara Farms Ltd., Supreme Court held that liability in tort and contract may be pursued concurrently in one and same suit.
If the plaintiff does not obtain leave what can the defendant do?
If the plaintiff has not obtained leave where required and has accordingly improperly joined several causes of action the defendant may enter conditional appearance and apply to set aside under order 9 r.8 See Lloyd v. Great Western Dairies co. etc [1907] 2 KB 727 Re Derbon (1888) 38 LT 459
JOINDER OF PARTIES
O4 r3
There could be several Plaintiffs or defendants joined in a suit during the pendency of an action.
O4 r 5 (3) Note that a person can only be joined as a Plaintiff with written consent.
At the time of filing, the plaintiff is allowed to join parties as of right, without leave of the court where:
- if separate actions were brought some common question of law or fact would arise in the action
- rights to reliefs claimed in respect of those actions, whether jointly or severally or in the alternative would arises out of the same transaction or series of transactions.
Both conditions must be satisfied- Aegis Shipping v. Volta Lines [1973] 1 GLR 438
Joinder of joint plaintiffs
O4 r 3(2)
O4 r 3(2)
Where two or more persons are entitled to any relief jointly (for eg where a contract is made with several persons jointly) all such persons must join the action as plaintiff; except where provided for in a statute or the court gives leave to the contrary.
If any of them would not join as plaintiff (reluctant party) he must be made a defendant unless leave to the contrary has been sought and obtained from the court.
This rule does not apply to probate actions.
Joinder of Joint Defendants
O 4 r3(3)
Generally, where the liability of two or more persons is joint and not several, the plaintiff may choose either of them he wishes to sue and he need not join & cannot be compelled to join the other. But if the joint liability arises under a contract the defendant may apply to the court to stay proceedings until the other persons are added as defendants.
Where 2 or more are sued as defendants, the plaintiff does not have to claim the same reliefs against all the defendants joined in the action.
Where two or more persons have coterminous interest in a property it is not necessary to join all such interest holders; as judgement entered against one will bind all others whose interest is coterminous. A judgement entered against a guarantor, will affect his grantee.
Akwei v Cofie
Nkum v Andoh & Another [1959] GLR 358
In this case the plaintiff was estopped from bringing an action or claiming reliefs because of the acquiescence by conduct and past judgment rendered against members of his family in a land dispute
TEST APPLIED FOR JOINDER APPLICATIONS
Gurtner v Circuit and Another – Denning stated:
‘When two parties are in dispute in an action at law, and the determination of the dispute will directly affect a third person in his legal rights or in his pocket, inn that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit. By that test, the court achieves the object of the rule. It enables all matters in dispute to be effectively and completely determined and adjudicated upon between all those directly concerned in the outcome’
Test endorsed by the Supreme Court in Sai v Tsuru – courts generally have the jurisdiction to join a person whose presence is necessary for the determination of the issues in dispute.
Appenteng v. BWA
Sam v Attorney General
What is the most important question a court has to ask in an application for joinder?
Would the joinder of the party enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause? If it would, the application should be granted, if it would not, the application should be refused.
To arrive at the correct answer in a case like this where the application is by the defendant and not by a plaintiff, the court must be guided by certain considerations and principles.
In other words, would an order for which the plaintiff is asking in the action directly affect the party sought to be joined, not in his commercial interest, but in enjoyment of his legal right? See Amon v. Raphael Tuck & Sons.
If an order in favour of the plaintiff on his claims will not directly affect the party whom a defendant seeks to have joined, the application will be refused. In such a case if a defendant requires indemnity against another party, his proper procedure is to have a third-party notice served.
MODE OF APPLICATION FOR JOINDER
Or4r5(4)
Motion on Notice supported by an affidavit showing the person to be joined’s interest in the matter in dispute, before or at trial.
Pursuant orders after grant of order for joinder
O4 r 5(5) & (6)
Where an order is made by the court, for joinder or non – joinder of parties, the writ shall within 14 days (or such period specified in the order) be amended and indorsed with reference to the order with the date on which the order for the amendment is made.
Where a person is ordered by the court to be made a defendant the person on whose application the order is made shall procure the order and same noted int he cause good by the Registrar and thereafter, the amended writ shall be served on the person ordered to be made a defendant and the defendant so served shall thereafter file an appearance.
