ADAARE VRS ATTORNEY-GENERAL 2 OTHERS (H1/127/21) [2021] GHACA 50 (28 October 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: - SENYO DZAMEFE, J. A, (PRESIDING) P. BRIGHT MENSAH, J. A NORVISI ARYENE, (MRS.) J. A Civil Appeal Suit No: H1/127/21 28th October, 2021 ALBERT ADAARE - PLAINTIFF/APPELLANT VRS. 1. ATTORNEY-GENERAL - 1ST DEFENDANT/RESPONDENT OFFICE OF THE ATTORNEY GENERAL MINISTRIES, ACCRA. 2. GENERAL LEGAL COUNCIL – 2ND DEFENDANT GENERAL LEGAL COUNCIL OFFICES GHANA SCHOOL OF LAW MAKOLA, ACCRA 3. FAIR WAGES AND SALARIES COMMISSION – 3RD DEFENDANT HEAD OFFICE BUILDING MINISTRIES, ACCRA ======================================================= JUDGMENT ======================================================= DZAMEFE, JA The plaintiff in an indorsement claimed jointly and severally against the defendants for;- a. An order directed at the defendants to pay to the plaintiff every month, the same salary as is paid to a circuit court judge of the Judicial Service. b. An order directed at the defendants to pay all arrears of the plaintiff’s salary from the 1st day of January 2009 to date. c. An order that the defendants pay interest calculated at the commercial bank lending rate on each pesewa of the arrears of salary due to the plaintiff, calculated from the date when the amount became due at the end of each month, up to and inclusive of the date of final payment. d. An order that the defendants pay to the plaintiff, costs, inclusive of the costs of legal fees for the prosecution of this matter incurred by the plaintiff. The plaintiff, a Lecturer at the Ghana School of Law was appointed as such by a letter dated 20th September, 1999. The 1st defendant is the Attorney-General and the Minister of Justice with the constitutional responsibility of defending all civil suits against the State. The 2nd defendant is the statutory body mandated to supervise legal education in the country and has oversight responsibility for the Ghana School of Law. The 3rd defendant is a statutory body established to, amongst other things, ensure fair, transparent and systematic implementation of the Government public service pay policy. According to the plaintiff, on his appointment as a Lecturer in the Ghana School of Law in 1999, he was placed on the rank of Assistant Lecturer which post carried with it the terms and conditions of service of a Community Tribunal chairman in the Judicial Service and the salary attached to the rank was that for the Professional Community Tribunal Chairman. The plaintiff was subsequently promoted to the rank of a full Lecturer by a letter dated 1st May 2015. The plaintiff averred that the salary and other terms and conditions of service of the Director, Registrar and Senior Lecturers, Lecturers and Assistant Lecturers of the Ghana School of law are the same a that for Justices of the Court of Appeal, Justices of the High Court, Circuit Court Judges and District Magistrates (Professional Lawyers) of the Judicial Services respectively. According to the plaintiff since 1st January, 2009 new salary levels have been implemented for Circuit Court Judges, Professional Magistrates and also Career Magistrates and stated the new salary levels as follows;- Grade 2009 Salary 2010 Salary Level Salary Salary Level Gh¢ Gh¢ Level Gh¢ Level Gh¢ Circuit Court 6,277 6,997 Professional 5,816 6,536 Magistrate 7,789 7,328 8,660 8,199 Career 4,894 5,614 6,406 7,277 Magistrate It is the plaintiff’s contention that these new salary scales were to the knowledge of the defendants, however, they have since the date of 1st January 2009 refused to pay him the correct salary he is entitled to, but rather paid him very low and meagre amounts, as salary to the extent that he has been underpaid by as much as over Gh¢5,000 every month since 1st January 2009 up to date. Plaintiff averred further that from 1st January 1999 to December 2012, the highest monthly salary ever paid him by the defendants was Gh¢1,700 and even as at now, he is paid a monthly salary of Gh¢3,300 only. In November 2016, the plaintiff by a letter to the Head of the Ghana School of Law and Director of Legal Education requested that the anomaly in his salary be corrected and also demanding the payment of all outstanding arrears of his salary from 1st January, 209 to date (2016). The plaintiff averred the defendants continued to under pay him and so on or about 20th April 2017, he served a notice of a civil action against the State on the 1st defendant pursuant to the provisions of the State Proceedings Act, 1998 (Act 555) and the notice was copied to the other defendants. The plaintiff said despite these notices and second letter dated 18th July 2017 to 1st and 2nd defendants, they still failed, neglected and or refused to meet his demands. The plaintiff avers that even though the defendants have is various letters acknowledged the fact that the plaintiffs is at present entitled to be paid the same salary as that paid to a Circuit Court Judge of the Judicial Service and also the fact that the plaintiffs is entitled to be paid the arrears claimed, the defendants are determined never to pay the plaintiff the correct salary he is entitled to. Plaintiff said the defendants know that they are well and truly indebted to him for the arrears of salary being claimed and the conduct of the defendants is not only unfair to the him but is actually unreasonable and ought to be deprecated by the court. That it will only take the coercive power and force of the orders of the court to compel the defendants to pay the plaintiff the correct salary he is entitled to and also to compel them to pay all arrears of salary to him. Wherefore he issued this claim. The 3rd defendants, fair wages and Salaries Commission entered appearance and filed a defence on 12th December 2017. The 3rd defendant admitted paragraph 1 -6 of the plaintiff’s statement of claim. In response to the plaintiff’s paragraph 8, the 3rd defendant though admitting the statement in the paragraph averred that the salary levels mentioned therein were approved by the Presidency based on well defined legal framework provided in the 1992 Constitution of Ghana. In further response to the claim, on the 3rd defendant said those approved salary levels were not effective 1st January 2009 as stated by the Plaintiff. Also, that the said approved salary levels were for a clearly defined category of employees in the judiciary, known as Judicial Officers and the said salary levels were not intended for general application to other public service employees including the plaintiff. The 3rd defendant further aver in answer to paragraph 8 of the statement of claim that the said approved salary levels were consolidated salaries which have several allowances embedded in them thereby making the approved levels appeared very attractive. That, the plaintiff’s current basic salary excludes other allowances being paid to him per documents made available to the 3rd defendant by plaintiffs’ employer even though there is no indication as to whether the said allowances were approved by the Ministry of Finance. The 3rd defendant said further that some of the allowances being paid to the plaintiff, per document made available to them by plaintiff’s employer, include Book and Research allowance, 50% Duty Allowance, 20% Entertainment Allowance, 20% Rent Allowance, 10% Leave allowance, 5% Clothing allowance, Fuel allowance of 60 gallons a month and cash equivalent for night watchman and domestic servant. According to the 3rd defendant, per the documents provided to them by plaintiffs’ employer, the plaintiff’s salary was linked to the Government’s new pay policy known as the Single Spine Pay Policy (SSPP) introduced in 2009 and implemented effective January 2010 with the rollout of the Single Spine Salary Structure (SSPP). The 3rd defendant says since the introduction and implementation of the SSPP, the plaintiff has benefited from the implementation of the salary component of the policy up to date and even so when he was promoted to the rank of a Lecturer per his promotion letter dated 1st May, 2015. The 3rd defendant submits that the plaintiff is not entitled to the reliefs claimed at all as same have no legal basis. The 1st defendant entered appearance and filed their defence stating they are not a necessary party to the suit as it is not enjoined by the constitution to defend the 2nd and 3rd defendants who by their establishment statutes have corporate status and can sue and be sued. The 1st defendant aver that the plaintiff is an employee of the 2nd defendant and his rights and conditions of employment ought to be met by the 2nd defendant and not the 1st defendant. That the plaintiff has no cause of action against the 1st defendant and prayed the court to strike out the 1st defendant from the suit in accordance with Order 4, Rule 5(1) of the High Court Civil Procedure Rules C. I.47 as the 1st defendant is not a necessary party. Further, that the plaintiff is not entitled to any of the reliefs endorsed on his writ of summons and statement of claim or at all against the 1st defendant. On 16th December, 2019, the 1st defendant by a motion on notice, filed an application at the High Court for misjoinder of the 1st defendant contrary to Order 4 Rule 5(2) (a) of C. I.47. The motion prayed the High Court for an order to strike out the 1st defendant as a party to the suit. In their affidavit in support of the application, the 1st defendant averred that the 2nd defendant, the employer of the plaintiff is a body corporate with perpetual succession and can sue and be sued in its corporate name by virtue of the provisions of the First Schedule of the Legal Profession Act, 1960 (ACT 32). That the reliefs being claimed by the plaintiff can be satisfied by the 2nd defendant who pays the plaintiffs emoluments. The 1st defendant aver further that just as 2nd defendant, 3rd defendant is also a body corporate with perpetual succession which can sue and be sued in its corporate name by virtue of the provision of the Fair Wages and Salaries Commission Act, 2007 (ACT 737). That the 1st defendant is therefore not a necessary party to the suit and has no case to answer. In the circumstances the court should order that 1st defendants’ name be struck out from the suit pursuant to Order 4, R 5(1) of C. I.47. The plaintiff in his opposition to the application averred that the application is most misconceived and actually embarrassing, coming as it were, from the office of the Attorney General. Plaintiff said he is a Public Servant under the provisions of the 1992 Constitution and therefore being paid by the State. That being so, the primary defendant in this action is the State and consequently, pursuant to the provisions of the 1992 Constitution, the Attorney General ought to be sued in this action. Plaintiff avers further that in fact the Attorney General has already conceeded that he ought to be paid by the State and wrote to the Controller and Accountant General by a letter dated 1st August, 2017 demanding that he be paid his entitlements so as to avoid a huge judgment debt against the state. There was therefore no misjoinder of the Attorney General to this suit and the averment that plaintiff had no cause of action against the Attorney General is not only misconceived, but to say the least unfortunate. He prayed the court to dismiss the application and award heavy cost against the Attorney General. RULING The trial High Court in taking a decision asked itself “is the 1st defendant/applicant a necessary party whose presence is required for the determination of this suit”. The trial High Court said from the affidavit evidence before it, the 2nd defendant is the employer of the plaintiff. The 3rd defendant is the body that deals with all issues relative to wages of public servants. That the 1st defendant is only the chief legal advisor to the government. That it has not been demonstrated that the 1st defendant is privy to all matters concerning the appointment of the plaintiff, not to talk about fixing of the remuneration and all the other matters incidental to the plaintiff’s appointment. Besides both 2nd defendant and 3rd defendant are full corporate entities with perpetual succession with powers to sue and be sued. The court said the crux of the plaintiff’s response is that because the action is basically against the State and that should he succeed, it is the State that will eventually satisfy the judgment debt, the 1st defendant is a necessary party. The trial court delivered itself thus “In light of the principles underpinning Order 4 R(5) and the authorities cited supra, it is my considered opinion that the 1st defendant/applicant is not a proper party whose presence in the suit is necessary for the determination of the issues in the matter. Accordingly, the 1st defendant is struck out from the suit”. The respondent, dissatisfied with and aggrieved by the decision of the High Court filed this appeal. GROUNDS OF APPEAL a. That the learned trial judge erred where he held that the Attorney General is not a necessary party to the present action which has been brought against the State by the plaintiff/appellant. b. The learned trial judge erred in making an order striking off the Attorney General as a party to the suit. c. The learned trial judge erred when he held that because the 2nd defendant employed the plaintiff/appellant, the 1st defendant is not a necessary party to the action. d. The learned trial judge erred in ordering the plaintiff/appellant to amend the writ of summons to exclude the 1st defendant/respondent as a party to the suit. e. The ruling is against the weight of evidence on record. The relief being sought on appeal is for this court to set aside the ruling and orders made by the learned trial judge as being erroneous and bad in law and directing that the case proceeds in the High Court before different trial judge. SUBMISSIONS Though the appellant listed four grounds of appeal, he dwelt on the last ground of appeal which is the omnibus ground that the ruling is against the weight of the evidence on record. This ground of appeal is appropriate after a full trial and a final decision given by the trial court. It is not usually appropriate for a ruling which is interlocutory. This omnibus ground is usually common in cases in which evidence was led and the trial court was enjoined to evaluate the evidence on record and make its findings of facts in appropriate cases. In cases in which no evidence was led but the order which has been appealed against is interlocutory such ground of appeal is not canvased at all. See – ZIKPUITOR AKPATSU FENU ETC VRS ATTORNEY GEN ETC [2018] DLSC 2489 at page 3 per Anin Yeboah, JSC (As he then was). The appellant submits that the trial High Court judge was wrong in holding that the Attorney-General was not a necessary party to the suit. It is his submission that the salaries of all staff of the Ghana Law School including his are paid by the Controller and Accountant-General’s. That the court should take judicial notice of the fact that the Controller and Accountant-General Department has no legal persona. It is a State department under the Ministry of Finance, which is represented by the Attorney General in all legal proceedings against it or its officers. The plaintiff could not have sued the Controller and Accountant-General, either as an individual or a department of the State. The appellant contends that the question the trial Judge ought to have considered is whether the plaintiff has a cause of action against the State, independent of and distinct from the cause of action the plaintiff has against the second defendant. The Appellant contends further that in view of his reliefs claimed whether any order that he be paid whatever salary can only be enforced against the Controller and Accountant General and by implication the Minister of Finance and therefore the Attorney-General should be a party to the suit. The appellant questioned how he can proceed to enforce any orders against the Controller–Accountant General should his reliefs be granted when the Attorney-General is not a party to the suit? He submits that in light of the facts of the case, the Attorney- General is a necessary party to the suit. The Appellant submits further that from November 2009 to date it was the Controller and Accountant-General who has been responsible for the payment of his salaries and since the Controller is represented in legal proceedings by the Attorney-General, the later is a necessary party to the suit. It is the appellant’s contention that, the holding by the trial judge to the contrary, is erroneous and urged this court to have same set aside saying that the Attorney-General is a necessary party to the suit. He contends further that the Attorney-General was included as a party to the suit not because of the cause of action which the plaintiff has against the 2nd defendant. The suit against the Attorney-General is because of the cause of action which the plaintiff has against the Controller and Accountant-General. It is the plaintiff’s case that the trial Judge failed to appreciate the fact that the plaintiff has a cause of action against the Controller and Accountant-General, who ought to be represented in the action by the Attorney General. Counsel for the respondent, a Chief State Attorney from the Attorney Generals Department in their answer submits that the learned trial judge rightly pointed out that the plaintiff has not been able to demonstrate that the 1st defendant/respondent (Attorney-General) is privy to all matters concerning his appointment, not to talk about the fixing of his remuneration and all the other matters incidental to the plaintiffs’ appointment and also the fact that the 2nd defendant and 3rd defendants are full corporate entities with perpetual succession to sue and be sued. Counsel submit further that the learned trial Judge held that the fact that the action is basically against the State in that should the plaintiff succeed, it is the State that will eventually satisfy the judgment debt does not make the 1st defendant/respondent a necessary party to the suit. It is their submission that employment issues such as the conditions of employment and emoluments are obligations to be met by the employer. That it is be employer that decides the conditions of service of the appellant and only communicates the figures to the Controller and Accountant-General. The Controller and Accountant General does not play any integral part in the determination of salaries and emoluments of public officers. The Controller and Accountant General only pays the salaries of public officers after the various institutions that employ the public officer have processed the salaries of the employees and carry it to the Controller and Accountant-General Department. Counsel for the respondent submits further that “since the plaintiff/appellants’ writ revolves on issues arising out of his employment, although the plaintiff’s salary is paid by the State it is the 2nd defendant his employer that has to be sued and not the 1st defendant who is a nominal defendant. Once 2nd defendant is already a party to the suit, the 1st defendant is not a necessary party to the suit”. (Emphasis name). Order 4 Rule 5 (1) of C. I.47 on misjoinder and non-joinder of parties states: 1. No proceedings shall be defeated by reasons of misjoinder or non-joinder of any party and the court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of persons who are parties to the proceedings. 2. At any stage of proceedings the court may on such terms as it thinks just either of its own motion or on 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. b. Order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon to be added as a party. The law is that a plaintiff has very extensive powers of joining on one writ or summons several different parties causes of action. And in a proper case the plaintiff should certainly avail himself of those powers. For if he brings two actions where one would have sufficed he will probably have to pay the costs of one action. The courts shall so exercise its jurisdiction in every cause or matter before it as to secure that, as far as possible, all matters in dispute between the parties are completely a finally determined and all multiplicity of legal proceedings with respect to any of these matters is avoided. The avoidance of unnecessary proceedings is thus a major factor in the application of the rules of court concerned with joinder of causes of action. The Court has power to misjoin as a party to the proceedings any person already a party where there does not exist any question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. The main object of these powers is to allow persons to be added or struck out as parties to proceedings so as to prevent multiplicity of proceedings and to enable all necessary and proper parties to be brought to Court who would be directly affected by the result of the proceedings. In the instant appeal, looking at the appellants’ claim, one will notice that it is all about the payment of his salary as an employee of the 2nd defendant. The plaintiff averred in his affidavit that since November, 2009, the State has been responsible for the payment of his salaries and allowances and this is effected by the Controller & Accountant-General who works under the Ministry of Finance. This fact has not been challenged nor controverted by the respondents either in their affidavit in opposition nor in their submission. The plaintiff also stated as a fact that he is a public officer paid by the State which fact has also not been challenged nor controverted. The appellant in his submission referred to a letter written by the Attorney General, Honourable Gloria Afua Akuffo (Miss) dated 1st August, 2017. This was a letter by the Honourable Attorney General in response to a letter by the plaintiff to the Attorney General serving notice of his intention to sue the State, through the Attorney General, the 2nd defendant and 3rd defendant pursuant to Section 10, of the State Proceedings Act, 1998 (Act 555). The existence of this letter from the Hon. Attorney General was also not challenged nor controverted. The question this court asks is whether the plaintiff/appellant has any cause of action against the State. Cause of action is defined as the fact or combination of facts which gives rise to a right of action – Osborn. The Black’s Law Dictionary defines cause of action as “a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Cause of action may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be; a. A primary right of the plaintiff actually violated by the defendant or b. The threatened violation of such right, which violation the plaintiff is entitled to restrain or prevent as in case of actions or suits for injunction or c. It may be that there are doubts as to some duty or right; or the right beclouded by some apparent adverse right or claim which the plaintiff is entitled to have cleared up, that he may safely perform his duty or enjoy his property. - Black’s Law Dictionary, 8th Edition, pg. 235 The plaintiff/appellant’s claims are jointly and severally against the defendant’s for the payment of same salary to him as paid the Circuit Court Judge of the Judicial Service. An order directed at the defendant’s to pay all his arrears of salary from the 1st day of January, 2009 to date and interest thereon. The plaintiff, pursuant to Section 10 of the State Proceedings Act, 1998, served notice on the Attorney General. It is very pertinent to know that the Attorney General who is the Chief legal advisor to the State, did admit that the plaintiff/appellant had a cause of action against the State. Her letter dated 1st August 2017 stated that “upon the request of her office, the Director of the Ghana School of Law per his letter dated 22nd June, 2012 confirmed that the terms and conditions of service of the Lecturers, including the appellant are the same as that of Justices of the Circuit Court. That the school had brought this anomaly to the attention of the Attorney General for the requisite changes to be made by placing the Lecturers on the salary scale of Circuit Court Judges instead of that of Magistrates.” This letter was tendered into evidence by the appellant but not challenged nor controverted by the respondents. The Hon. Attorney General concluded that “please be advised that it is imperative that the request of Mr. Adaare and by necessary extension that of the Lecturers of the Law School be honoured without any further delay to avoid the wranglings of the court room with its inevitable attendant judgment debt.” The Hon. Attorney General, who by fact, Counsel for the respondent represents has admitted by her letter that the appellant has a cause of action against the State. She advised against a probable action against the State and subsequent “inevitable” attendant judgment debt. Secondly, the Hon. Attorney General knows very well the legal status of the 2nd defendant and 3rd defendant yet she decided to write to the Controller & Accountant General, who works under the Ministry of Finance to take the necessary action. She never responded to the plaintiff that 2nd defendant and 3rd defendant are legal personalities and therefore 1st defendant cannot be made a party to the suit. It is surprising that though counsel for the respondent in her own submission did admit that the Attorney General (1st defendant/respondent) is a nominal defendant, then goes on to say; “once the 2nd defendant is already a party to the suit, the 1st defendant is not a necessary party to the suit.” With all due respect to the learned Chief State Attorney, however inactive a party may be in a suit, once the outcome or decision of the suit will affect him he is made a party, hence the description, “nominal”. It is established that the appellant is a public officer paid by the State just as all other staff of the Ghana School of Law since 2009. The State pays its workers through the Controller & Accountant General under the Ministry of Finance. These two institutions are State Institutions represented in legal proceedings by the Attorney General. Any orders that the court may make in this case against the Minister of Finance or Controller & Accountant General will have to be defended by the Attorney General. Therefore, the Attorney General must be a party to the suit. It is true 2nd defendant, the employer of the plaintiff/respondent is a legal personality with perpetual succession who can sue and be sued in its corporate name by virtue of the provisions of the First Schedule of the Legal Profession Act 1960 (Act 32). Unfortunately, despite their corporate personality, 2nd defendant does not pay its’ employees but by the State through the Controller and Accountant General. Paragraph 7 of the applicant’s affidavit in support of his application states “That the reliefs being claimed by the plaintiff/respondent can be satisfied by the 2nd defendant who pays the plaintiff/respondent’s emoluments”. This averment is factually incorrect. The relief being sought by the plaintiff/respondent relates to salaries and emoluments, that are paid by the State, whose solicitor is the 1st defendant. The plaintiff/respondent is a public office holder under Article 295 (1) of the 1992 Constitution and therefore paid by the State. “ A Public Office” includes an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of monies provided by Parliament and an office in a public corporation established entirely out of public funds or monies provided by Parliament”. The purpose of a joinder is to enable all matters in controversy to be completely and effectually determined once and for all but this would depend upon the issue before the court i.e. the nature of the claim. See; - IN RE APPLICATION FOR JOINDER; DIVESTITURE IMPLEMENTATION COMMITTEE AND ANOTHER, APPLICANTS, SAM (NO1 VRS ATTORNEY- GENERAL [2000] SCGLR 102. This is the state of the law. In the instant appeal, the issue or the nature of the claim before the court is about the emoluments of a public office holder who is paid by the State. For that reason, I think, the Attorney-General who is the principal legal adviser to the government of Ghana and is mandated by the 1992 Constitution to defend all suits against the State must be made a party to the suit. I think the trial High Court erred when it decided that the plaintiff/respondent has no cause of action against the Attorney General. Loosely yes, not directly against the Attorney General in person but against a State department represented by the Attorney General as their Solicitor. I said earlier the nature of the plaintiff/respondent’s writ is about his emoluments as a Public Office Holder and not just as a Lecturer at the Ghana Law School. Public Office includes an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of monies provided by parliament and an office in public corporation established entirely out of public funds or monies provided by Parliament – Article 295 (1) of the 1992 Constitution. The plaintiff/respondent also made a very strong point by submitting that even if he were entitled to sue the 2nd defendant alone, from the position of its enabling Act, that is the Legal Profession Act, 1960 (Act 322) the Attorney General is by Section 52 of the Act, the Minister to whom the General Legal Council is responsible. Again by paragraph 2(b) of the First Schedule to Act 32, the Attorney General is a member of the General Legal Council. It is common knowledge that the Attorney General is the Minister of Justice and that the Minister of Justice is the Minister to whom responsibilities under Act 32 are assigned to by the President. The Attorney General is the Minister with oversight responsibility for the General Legal Council. It is his submission therefore that the 1st defendant is a necessary party to the suit That being the true position of the Act, I think the plaintiff/respondent was right in joining the 1st defendant as a party to the suit, even if not for anything out of abundance of caution since the outcome of the case will affect the State, who pays the Plaintiffs. If there is any defence or reason why the appellant cannot be granted his reliefs or there is a special reason why he is not being paid what he is asking for or not entitled to what he is asking, that will have to come from the Attorney General and not direct from the two State Departments, the Ministry of Finance and Controller & Accountant General’s Department, Plaintiff submitted. By The State Proceedings Act, 1998 (Act 555) it is possible to sue the State both in contract and tort. The defendant will be the appropriate government department; the writ or summons is served upon the Solicitor to the department. In this instant appeal, it is the Controller and Accountant General Department and Ministry of Finance whose Solicitor is the Attorney General. I think the trial Judge erred in his ruling when he ruled that the 1st defendant is not a necessary party to the action. The trial court delivered itself thus, “It is my considered opinion that the 1st defendant/applicant is not a proper party whose presence in the suit is necessary for the determination of the issue in the matter. Accordingly, the 1st defendant is struck out from the suit.” With all due respect to the learned trial Judge, even if the 1st defendant may not be active in the trial, assuming the plaintiff’s reliefs are granted, will be effected by the Controller & Accountant General who is responsible for emoluments of public servants in general. It is pertinent to note that all payments made by the Controller and Accountant General are authorized by the Minister of Finance. The Minister mandates the Controller for all payments made to public office holders. At the end of the trial, assuming the plaintiff wins the case, the claim in his writ will have to be authorized by the Minister of Finance before Controller can effect the changes. It is not just as simple for the 2nd defendant preparing fresh inputs for the Controller to effect the necessary changes. I think the trial Judge erred in his decision to strike out the 1st defendant as a party. Moreover, the rules of the High Court do not nullify proceedings merely because the wrong persons were added to the suit, so long as the question to be resolved in the cause or dispute was effectively adjudicated upon between the affected parties to the dispute. The High Court Civil Procedure Rules, 2004 (C. I.47) provides under rule 5(1) of order 4 that: “Misjoinder and non-joinder of parties 5(1) No proceedings shall be defeated by reason of misjoinder or non-joinder of any party; and the Court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings”. In effect, if the plaintiff wins his claims at the end of the trial, will have to mount another suit with the Attorney General to enforce the decision of the trial court. This will encourage multiplicity of suits which Order 5 of C. I. 47 seeks to avoid. The plaintiff/appellant succeeds in his appeal and the ruling of the High Court striking out the 1st defendant as a party is hereby set aside. I order the 1st defendant to be rejoined to the suit as a party and the trial to proceed. sgd SENYO DZAMEFE (JUSTICE OF APPEAL) CONCURRING JUDGMENT NOVISI ARYENE (JA) Article 88 (5) of the 1992 Constitution stipulates that the Attorney General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the state shall be instituted against the Attorney General as defendant. The Section 9 (1) (b) of the State Proceedings Act 1961 (Act 555) states “In accordance Article 88 of the Constitution, civil proceedings against the Republic shall be instituted against the Attorney General as defendant.” Section 10 enjoins a person who intends to institute a civil action against the Republic to serve written notice of intention on the Attorney General at least 30 days before the commencement of the action. It has been held that the notice is to enable the Attorney General who in such cases is a nominal defendant to contact the institution of state for information to prosecute the defence. This is an appeal against the ruling of the High Court delivered on 23rd June 2020. The parties shall retain the title used in the court below. Plaintiff is a lecturer at the Ghana School of Law. Alleging that his employers have failed to pay him his due salary, plaintiff served notice on the Attorney General and commenced the instant action against defendants jointly and severally, seeking the following reliefs: a. An order directed at the defendants to pay the plaintiff every month, the same salary as is paid to a circuit court judge of the Judicial Service. b. An order directed at the defendants to pay all arrears of the plaintiff’s salary from the 1st day of January 2009 to date. c. An order that the defendants pay interest calculated at the commercial bank lending rate on each pesewa of the arrears of salary due the plaintiff, calculated from the date when the amount became due at the end of each month, up to and inclusive of the final payment. d. An order that the defendants pay to the plaintiff, costs, inclusive of the costs of legal fees for the prosecution of this matter incurred by the plaintiff. 1st defendant entered appearance and applied to be disjoined from the suit. In the application which was brought under order 4 rule 5(2) of CI 47, applicant contended that on the averments and the reliefs sought by the plaintiff, applicant was not a proper party to the suit. It was contended that by virtue of the first schedule of the Legal Profession Act 1960 (Act 32), plaintiff’s employer, 2nd defendant, is a body corporate with perpetual succession and can sue and be sued in its corporate capacity. Same goes for 3rd defendant under the Fair Wages and Salaries Commission Act of 2007, (Act 737). In his written address to the court below, (as can be found at pages 49 to 52 of the ROA), it was submitted on behalf of 1st defendant that from the pleadings, 2nd and 3rd defendants are the main defendants in the suit and that 1st defendant is not a proper party to the suit. And that plaintiff’s statement of claim and the depositions in his affidavit in support of his application for judgment in default of defence against the Attorney General, show that issues arising out of his employment and emoluments can be addressed by 2nd and 3rd defendants. Issues for the determination of the court can be completely and effectively determined by the said defendants and that as legal entities, the reliefs sought are within the control of 2nd and 3rd defendants. Opposing the application at the court below, plaintiff contended that as a public servant, he is paid by the State therefore the primary defendant in the action was the State. And that pursuant to Article 88 of the 1992 Constitution, the Attorney General is a proper person to sue. It was further submitted that under Act 32, the Attorney General as the Minister for Justice, is a member of the General Legal Council and has oversight responsibility over the General Legal Council. And that whether in his capacity as Attorney General or Minister for Justice, the 1st defendant was a proper person to be sued. On hearing the parties, and referring to Order 4 Rule 5, and some decided cases, the trial court ruled in favour of the 1st defendant at page 62 of the ROA thus “In the light of the principles underpinning Order 4 rule 5 and the authorities cited supra, it is my considered opinion that the 1st defendant/applicant is not a proper party whose presence in the suit is necessary for the determination of the issues in the matter. Accordingly, the 1st defendant is struck out from the suit.” Plaintiff is before us seeking an order to overturn the ruling and a further prayer to refer the case to another court for trial. The following grounds of appeal were filed. a. The learned trial judge erred when he held that the attorney General is not a necessary party to the present action which has been brought against the State by the plaintiff/appellant. b. The learned trial judge erred in making an order striking off the Attorney General as a party to the suit. c. The learned trial judge erred when he held that because the 2nd defendant employed the plaintiff/appellant, the 1st defendant is not a necessary party to the action. d. The learned trial judge erred in ordering that the plaintiff appellant should amend the writ of summons to exclude the 1st defendant/respondent as a party to the suit. e. The ruling is against the weight of evidence on the record. The above grounds were argued together and we intend doing same. We shall first address the omnibus ground that the ruling was against the weight of evidence. I have read the opinion of my respected brothers on the Panel and I agree with their views which are grounded on the Supreme court decision in Zikpuitor Akpatsu Fenu & Ors v Attorney General [2018 DLSC 2489 where it was held that the omnibus ground that the ruling is against the weight of evidence, does not apply in interlocutory appeals arising out of interlocutory decisions. That ground of the appeal is accordingly struck out. An application for joinder requires the exercise of judicial discretion and the court is required to exercise same judicially. Order 4 rule 5 (2) (b) provides “At any stage of the proceedings the court may on such terms as it thinks just either of its own motion or on 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.” In addressing the appeal, we are guided by the principle that an appellate court will not interfere with the exercise of discretion by the trial court unless it is satisfied that the trial judge applied wrong principles or can be said to have reached a wrong conclusion which would work a manifest injustice between the parties. See Yeboah & Anor v Baffour [1971] 2 GLR 199, Bisi & Ors v Tabiri alias Asare [1987-88] 1 GLR 360. See also Kyenkyenhene v Adu [2003-2004] 1 SCGLR 142, and Owusu v Owusu-Ansah [2007- 2008] SCGLR 870. The onus is on plaintiff, who in the instant case is seeking the interference by this court, to demonstrate that the trial court wrongly exercised its discretion. Arguing the appeal, plaintiff submitted that the trial court ought to have considered whether the plaintiff had a cause of action against the State, which was independent of and distinct from the cause of action against the 2nd defendant. He argued that it is on record that from November 2009 to date, his salary is paid by the Controller and Accountant General. And that the Attorney General was sued because of the cause of action against the Controller and Accountant General, and not because of his employers, 2nd defendant which has a corporate status. Counsel for the State anchored his submissions in response to the appeal on the corporate personality of 2nd defendant and 3rd defendants, arguing that they have perpetual succession and capacity to sue and be sued and right to acquire and hold properties. And that the thrust of plaintiff’s case as can be gleaned from the statement of claim, as well as the affidavit in support of the motion for judgment in default of defence, relate to issues arising from his employment and emoluments. And that asserting now that he has a cause of action against the Controller and Accountant General, amounts to a departure from his pleadings. It was forcefully submitted on behalf of 1st defendant that the State is not a necessary party to the suit because reliefs endorsed on the writ can be enforced against his employers. and that 1st defendant is only a nominal defendant whose presence is not necessary for the effectual and complete determination of matters in dispute. It is trite that an order of a civil court has no effect against a non-party. No effective orders can be made in the absence of a necessary party, whose presence ensures a judgment which addresses all issues in controversy to avoid multiplicity of suits. It is the duty of the court ensure that as much as possible all parties who are likely to be affected by its orders or decisions are brought before it for the effective determination of all questions in dispute, and also that the audi alteram partem rule is complied with. Misjoinder arises where a person who ought not to have been a party to an action is joined either as a plaintiff or defendant, and the presence of such a person is not necessary for the court’s adjudication. In ascertaining whether the party had been improperly or unnecessarily made a party, the court would consider the statement of claim and the reliefs sought. Bearing in mind Order 4 Rule 5 (1) which provides that no proceedings shall be defeated by reason of misjoinder or non-joinder of any party, in exercising its discretion, the court must be careful not to negligently disjoin a party. Discussing the test for joinder, in Re Application for joinder; Divestiture Implementation Committee and Another, Applicants; Sam (N0.1) v Attorney General reported in [2000] SCGLR 102 the Supreme Court held that the court may add all persons whose presence before the court is necessary in order to enable it effectually and completely adjudicate upon and settle all the questions involved in the cause or matter before it. The court ruled that it is dependent on the nature of the claim before the court. This calls for a careful reading of the pleadings and the reliefs sought. In Gurtner v Gurtner [1968] 1 All 328 CA, Lord Denning MR stated the guiding principle at page 332, thus “It seems to me that, when two parties are in dispute in an action at law and the determination of that issue will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing the court achieves the object of the rule. It enables all matters in dispute to be effectually and completely determined and adjudicated between all those directly concerned in the outcome.” On his part, Lord Diplock stated at page 336 of the Gurtner case (supra) as follows “Clearly the rules of natural justice require that a person who is to be bound by a judgment in an action brought against another party and directly liable to the plaintiff on the judgment should be entitled to be heard in the proceedings in which the judgment is sought to be obtained. A matter in dispute is not in my view, effectually and completely ‘adjudicated upon’ unless the rules of natural justice are observed, and all those who will be liable to satisfy the judgment are given an opportunity to be heard.” The principle that can be distilled from the plethora of cases on the subject of joinder of parties, is that a necessary party to the suit is a person who has interest in the subject matter of the suit or likely to be aggrieved by the outcome of the litigation, to the extent that he would be directly, legally or financially affected by the outcome of the litigation; whether the presence of the person is necessary for the court to effectively and completely determine the issues before the court; whether the parties have the same interests or joint interests in the subject matter of the suit; whether the cause or matter is likely to be defeated by the non- joinder. It was argued that plaintiff if successful may proceed against his employers for execution of the orders of the court. Counsel also referred this court to the Supreme Court decision in Amegatcher v Attorney General & Ors, [2012] 1 SCGLR 679 at 684, cited by the trial court in support of its decision. Counsel further submitted that the Controller and Accountant General plays no role in the determination of salaries and emoluments of staff of 2nd Defendant. And that as a legal person, it is 2nd defendant as the employer who determines the conditions of service, processes emoluments and salaries and communicates same to the Controller and Accountant General for payment. As earlier discussed, the litmus test is whether plaintiff has a cause of action against the state; whether the cause or matter is likely to be defeated by the non- joinder; whether the outcome of the case would affect the rights of the State and whether the presence of the State is necessary for the resolution of all matters in dispute to avoid multiplicity of suits. To address these pertinent issues, we refer to the reliefs sought. Plaintiff’s relief (a) is for an order directed at the defendants to pay to the plaintiff every month, the same salary as is paid to a circuit court judge of the judicial service. Relief (b) is an order directed at the defendants to pay all arrears of the plaintiff’s salary from the 1st day of January 2009 to date. It is on record that mindful of the reliefs he is seeking, plaintiff served notice on the 1st defendant in compliance with Act 555 before commencing the instant action. The records also show that the Attorney General responded by writing to the Controller and Accountant General advising that plaintiff’s request be honoured without any further delay. Copies of the AG’s letter were served on the Chief Accountant of the 2nd defendant. I have read the erudite judgment of my respected brother Bright Mensah JA on the issue and I appreciate his submissions on the legal status of 2nd and 3rd defendants as corporate bodies with capacity to sue and be sued, acquire and hold properties etc. I however disagree with his position that in executing the judgment, plaintiff can proceed against any of defendant’s properties, should the latter fail or refuse to satisfy the judgment debt so awarded. In my humble view, not being a one-off order for payment of judgment debt, plaintiff cannot be seen to be attaching the properties of 2nd defendant each time the latter failed to pay his salary. I agree with the position of my respected brother Senyo Dzamefe JA on the issue. I concur with his opinion that since the thrust of plaintiff’s claim is payment of salaries and arrears, the outcome of the suit would involve an order directed at the Controller and Accountant General to pay. The relief involves a continuous payment of salaries for as long as plaintiff shall remain in the employment of 2nd defendant. In my respectful opinion, the absence of the State would make execution of the orders of the court, cumbersome and harsh on the plaintiff, and may lead to further action to enforce the judgment. To the extent that the reliefs sought by the plaintiff involves payment of monthly salaries, we rule that the orders of the court cannot be carried out without the involvement of the office of the Controller and Accountant General. This to my mind makes the Attorney General a necessary party to the suit. In conclusion, whether or not the Attorney General can be joined as defendant to a suit instituted against a state institution with corporate personality, depends on the nature of the relief sought. Where as in the instant suit, the outcome of the action involves an order for payment of monthly salaries and arrears by the Controller and Accountant General, we rule that the corporate personality of 2nd and 3rd defendants notwithstanding, the Attorney General a necessary party to the suit. The appeal succeeds and the order of the trial court disjoining 1st defendant is hereby set aside and the defendant rejoined to the suit. The Registrar of the High Court shall place this suit before another judge for determination on its merit. sgd NOVISI ARYENE (JUSTICE OF APPEAL) DISSENTING OPINION BRIGHT MENSAH JA: I have had the benefit of reading beforehand, the judgment of my respected brother, Dzamefe JA, which judgment my sister Novisi JA supports. Although I respect their analysis of the case, I nevertheless disagree with them on the law and their conclusion that the Attorney General is a necessary party in this case and that the lower court was wrong in non-suiting the Attorney General as the 1st defendant and for which reason, the instant appeal be allowed. Having regard to my disagreement and dissent, I have decided to offer my opinion on the matter. The plaintiff/appellant in the instant appeal caused a writ of summons to be issued in the registry of the lower court, the High Court, Accra [General Jurisdiction] on 15/11/2017 against the defendants/respondents herein jointly and severally, for the following judicial reliefs: 1. An order directed at the defendants to pay to the plaintiff every month, the same salary as is paid to a Circuit Court Judge of the Judicial Service. 2. An order directed at the defendants to pay all arrears of the plaintiff’s salary from the 1st day of January 2009 to date. 3. An order that the defendants pay interest calculated at the commercial bank lending rate on each pesewa of the arrears of salary due the plaintiff, calculated from the date when the amount became due at the end of each month, up to and inclusive of the date of final payment. 4. An order that the defendants pay the plaintiff, costs inclusive of the costs of legal fees for the prosecution of this matter incurred by the plaintiff. The defendants/respondents upon being served with the writ, entered their respective appearance. It is on record however, that on 16/12/2019, the 1st defendant/respondent filed an application for misjoinder under Order 4 r 5(2)(a) of the High Court (Civil Procedure) Rules, 2004 (CI 47) on the basic ground that it was not a necessary party. See: pp 36-41 of the record of appeal [roa]. The plaintiff/appellant filed an affidavit in opposition to the application, contending that the application was most misconceived and embarrassing, to say the least. Additionally, the plaintiff claimed that as a public servant he is paid by the State. Therefore, the Attorney General ought to be sued in the case, it was further averred in the said affidavit. The affidavit in opposition appears on pp 44-45 [roa]. Having heard both lawyers on the application either in support of, or as against the application, the learned trial judge upheld the arguments of learned Counsel for the 1st defendant/applicant and came to the conclusion that the 1st defendant was not a proper party whose presence was necessary for the determination of the issues in the matter. Accordingly, the lower court struck out from the suit, the name of the 1st defendant. The ruling of the lower court appears on pp 58-63 [roa]. It is against the decision of the lower court that the plaintiff/appellant being aggrieved, has filed the instant appeal on the grounds that: 1. The learned trial judge erred when he held that the Attorney General is not a necessary party to the present action which has been brought against the State by the plaintiff/appellant. 2. The learned trial judge erred in making an order striking off the Attorney General as a party to the suit. 3. The learned trial judge erred when he held that because the 2nd defendant employed the plaintiff/appellant, the 1st defendant is not a necessary party to the action, 4. The learned trial judge erred in ordering that the plaintiff/appellant should amend the writ of summons to exclude the 1st defendant/ respondent as a party to the suit. 5. The ruling is against the weight of the evidence on the record. In this appeal, I shall refer to the plaintiff/appellant simply as the appellant and the 1st defendant/respondent, the respondent. Submissions of plaintiff/appellant: The appellant in his address [paras 12-14] has invited this court to take judicial notice of the fact that the Accountant-General’s Department has no legal persona. His view is that the Department is under Ministry of Finance represented by the Attorney-General in all legal proceedings against it or its officers. Therefore, it is the submissions of the appellant that he could not have sued the Controller & Accountant General. He submits further that as a public officer paid by the Controller & Accountant General, the 2nd respondent was no longer responsible for the payment of his salary. It is his case that due to the reliefs he seeks in the trial High Court any judgment he recovers has to be enforced against the Controller & Accountant General. To him, that enforcement cannot be possible when the Attorney General is not a party to the case. The appellant insists that he has a cause of action against the State [per the Controller & Accountant General or the Ministry of Finance] as distinct from the cause of action against the 2nd respondent and the 3rd respondents. In the result, he has urged on this court to allow the appeal. Submission of the 1st defendant/respondent: Repelling the appellant’s contention that the Attorney-General is a necessary party, the 1st respondent has argued that the 2nd respondent, the employer of the appellant is a body corporate with perpetual succession that can sue and be sued in its corporate name by reason of S. 1 of the First Schedule of the Legal Professional Act, 1960 (Act 32). It is the case of the 1st respondent that from the pleadings the appellant’s claim bordered on issues arising out of his employment and rights of employment and emoluments that are to be met by the 2nd respondent since those reliefs are within their control. It was also submitted that the 3rd respondent is a statutory body established to ensure fair, transparent and systematic implementation of public sector pay and that since the 2nd and 3rd respondents are already parties in the suit and the reliefs the appellant seeks are within their control, the 1st respondent is not a necessary party. In the result, Counsel opined that the claim of the appellant can be determined completely and effectually without the 1st respondent’s involvement. Learned Counsel next argued that the Controller & Accountant-General does not play any integral part in the determination of salaries and emoluments of public officers except the payment of their salaries after the various institutions that employ the public officers have processed the salaries and forwarded same to the Controller & Accountant-General for payment to be effected. In support of the contention above that the 2nd and 3rd respondents are body corporate and therefore, can sue and be sued, and the 1st respondent not being a necessary party to the suit, Counsel referred us to the dictum of Atuguba JSC in Amegatcher v Attorney- General & ors (2012) 1 SCGLR 697 @ 684 and Djin v Musah Baako (2007-08) 1 SCGLR 691. Learned Counsel also submitted that the appellant by his pleadings did not raise any issue that he had a cause of action against the Controller & Accountant- General. Therefore, the practice whereby he has raised it in his address now was a departure from his pleadings as provided for in Order 11 r 10 of CI 47. In support, Counsel relied on Hammond v Odoi (1982-83) 2 GLR 1215. The appeal is not maintainable and ought to be dismissed, Counsel insisted. The appeal: The law is certain that an appeal is by way of re-hearing the case. The Court of Appeal Rules, C. I 19 per rule 8(1) provides that any appeal to the court shall be by way of re- hearing. The rule has received ample judicial interpretation in many cases to mean that the appellate court is enjoined by law to review the whole evidence on record and come to its own conclusion as to whether the findings of the lower court both on the law and facts, were properly made and supportable. In R v High Court (General Jurisdiction 6); Exparte Attorney-General (Exton Cubic – Interested Party) (2020) DLSC 8755 the Supreme Court speaking through Anin-Yeboah JSC (as he then was) restated the principle as follows: “Appeal is an application to a higher (appellate) court to correct an error which may be legal or factual. In Ghana, all civil appeals are by way of rehearing and the appellate court may subject the whole record to review and may even make new findings of facts in deciding the appeal.’’ This court in Kofi v Kumansah (1984-86) 1 GLR 116 @ 121 having considered and adopted the principle as espoused by Webber CJ in Codjoe v Kwatchey (1935) 2 W. A. C. A 371, stated the law as follows: “The Appeal Court is not debarred however from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the Appeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over- ruling it if on full consideration it comes to the conclusion that the judgment is wrong…………………………………..” The settled rule, therefore, is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case and the evidence led on record just like a trial court. Where the court below comes to the right conclusion based on the evidence and the law, its judgment is not disturbed. The opposite is equally true and the judgment is upset on appeal where it is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A. The rule is also that where the appellate court was obliged to set aside a judgment of a lower court, it must clearly show it in its judgment where the lower court went wrong. The rationale is to correct the lower court and that also serves as a guide to all lower courts to follow the decision of the higher court on questions of law. Reiterating the principle, Ollenu JSC delivered himself, an opinion in Prakwa v Ketewa (1964) GLR 423 as follows: ‘’……………….[a]n appeal is by way of rehearing and so an appellate court is entitled to make up its own mind on the facts and to draw inferences from them to the extent that the trial court could …………………………………… Therefore, if in the exercise of its powers, an appeal court feels itself obliged to reverse findings of fact made by the trial court, it is incumbent upon it to show clearly in its judgment where it thinks the trial court went wrong.” Now, to the merits of the instant appeal. First, I want to deal with ground (5) of appeal ie the ruling is against the weight of evidence before proceeding to deal with the other grounds. To begin with, it cannot be put to any serious doubt that the decision of the lower court to misjoin the 1st respondent was interlocutory. Being an interlocutory order, the position of the law is that the omnibus ground of appeal that the ruling is against the weight of evidence does not apply in the instant appeal. See: Zikpuitor Akpatsu Fenu & ors v Attorney General (2018) DLSC 2489 p.3 per Anim Yeboah JSC (as he then was). In Asamoah v Marfo (2011) 2 SCGLR 832, the facts revealed that the trial High Court entered a default judgment because the defendant had at the time not filed a statement of defence. In appealing against that default judgment, the appellant had specified as one of his grounds of appeal as that the judgment was against the weight of evidence. The Supreme Court deprecating the procedure so adopted by Counsel for the appellant, observed that that ground of appeal was completely misplaced and misconceived. The court therefore went ahead to dismiss the ground as unmeritorious. Thus, where in the instant appeal it is obvious that the lower court dealt with an interlocutory application, the omnibus ground that the ruling was against the weight of evidence never applied. In consequence, we strike down as improper, the 5th ground of appeal. At this stage, I intend to combine all the other grounds of appeal and address them together since they speak to the same issue. However, before proceeding further, I need to address a very important issue on rule of procedure that learned Counsel for the 1st respondent raised. It is that although the appellant never pleaded that he has a cause of action against the Controller & Accountant-General, he has nevertheless invited this court, according to him, to take judicial notice of the fact that the Controller & Accountant-General has no legal persona but is under the Ministry of Finance, defended by the Attorney-General in all civil proceedings. I cannot agree more with the submissions of learned Counsel for the 1st respondent, having regard to the fact that the appellant never pleaded a joinder of issue between himself and the Controller & Accountant-General. It was therefore improper for the appellant to address this court on matters which he has not pleaded. See: Hammond v Amuah (1991) 1 GLR 89. In consequence, I turn down any invitation pressed on the court to take judicial notice of any such fact. It bears stressing that this court not being the trial court but appellate, our jurisdiction is completely delineated by C. I 19. It cannot be overemphasized that this court cannot go beyond the four (4) corners of the records of appeal put before us and to take judicial notice of any fact. That shall amount to extra-judicial exercise of power not sanctioned by law. Fundamental question: The short question that falls for our consideration in this appeal is whether: The Attorney-General is a necessary party in this case. It has to be reiterated that the 1st respondent per a motion premised on Order 4 r 5(2)(a) of CI 47 invoking the jurisdiction of the lower court has strongly urged on that court to misjoin the Attorney General because it was not a necessary party in the case. Now, it is provided in Order 4 r 5(2)(a) & (b) of CI 47: “(2) At any stage of proceedings the court may on such terms as it thinks just either of its own motion or on 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; b) order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon to be added as a party.” It is instructive that there was such a similar provision in the old rules, the High Court (Civil Procedure) Rules, 1954 LN40A. It was provided in Order 16 r 11 in part as follows: “……….the court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the names f any parties improperly joined, whether as plaintiff or as defendant be struck out and that the names of any parties, whether plaintiff or defendant who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.” The overriding theme running through both rules of procedure referred to supra [old and current], is that the presence of the person sought to be joined is to ensure that all matters in dispute are effectively and completely determined and adjudicated upon by the court. Judges have differed over the grounds for joining a party whose presence is necessary for the effective and effectual determination of a matter. By a stream of decided cases, two (2) concepts, the narrow and the wider schools of thought lend themselves to close critical analysis. Cases that support the narrow school of thought include: i) Appenteng v Bank of West Africa Ltd (1961) GLR 81; ii) Bonsu v Bonsu (1971) 2 GLR 242; and iii) Zakari v Pan American Airways (1982-83) GLR 978. Falling under the wider school of thought are cases like: i) Ussher v Darko (1977) 1 GLR 476 C/A; and ii) Coleman v Shang (1959) GLR 389. In Ussher v Darko (supra) this court per Apaloo JA (as he then was) routing for the wider school of thought stated that there were no such fixed or rigid rules for a joinder of a party except that the exercise of the judicial discretion ought to be in conformity with justice. The court held in Holding 1: “The jurisdiction of a court to join a party to an action to avoid multiplicity of suits under Order 16 r 11 might be exercised at any stage of the proceedings, so long as anything remained to be done on the action …………………………………………… Whether the application should be acceded to or denied, was a matter for the exercise of the trial judge’s discretion and save that such discretion must be exercised judicially and in a manner conformable with justice, no fixed rules existed as to when and how it should be exercised.” [emphasis highlighted] In support of the narrow rule, Ollenu J (as he then was) in considering what constitutes the test for joinder, postulated in Appeteng v Bank of West Africa (supra) @ p. 82 as follows: “…………[I]n an application for joinder, the most important question which the court has to answer is: 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.” Ollenu J (as he then was) then proceeded to give general guidelines that the court must first of all, look at the plaintiff’s writ, his pleadings and the reliefs sought: if the plaintiff makes no claim either directly or inferentially against the party sought to be joined, or if the claim could succeed without the party sought to be joined being made a party, the application must be refused. It is important to recognize that Taylor J (as he then was), another jurist of great repute adopting the Ollenu test referred to supra, and applying it in Bonsu v Bonsu (supra) added a rider that where an allegation that the respondent would be embarrassed was not specifically proved the application ought to be refused. Among other reasons, Taylor J refused the joinder in Bonsu v Bonsu (supra) because an allegation of embarrassment was not specifically proved. Now, Wiredu J (as he then was) also in Zakari v Pan American Airways (supra) after stating the general rule, added yet another test. In Holding 2 he delivered himself thus: “Another test would be whether the order if granted would raise any triable issue between the plaintiff and the party sought to be joined. If not, the only proper order to make was to refuse the joinder where the application was by the defendant under Order 16 r 11.” The learned judge in applying the test to the case supra, held that since the plaintiff was making no claim against the party to be joined any order made in favour of the plaintiff on his writ would not affect the legal rights of the party. In a classic article, Test for Joinder under Order 16 r 11 of LN 140A published in the August 1972 Vol. No. 2 of the Review of Ghana Law by E. D Kom (of blessed memory) touching on the topic, the learned author postulated that the best approach to an application for joinder is to rather adopt the wider test laid down by Denning MR in Gurtner v Circuit (1968) 2 QB 587 C/A. The test as appearing at p. 589 of the Law Report read as follows: “When two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or his pocket, in that he will be bound to foot the bill, then the court in its direction may allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute to ‘be effectually and completely determined and adjudicated upon’ between all those directly concerned in the outcome.” E. D Kom then expressed the opinion that if that English authority herein referred to, had been cited to Taylor J when dealing with the application in Bonsu v Bonsu (supra) the learned justice would not probably have adopted “the Devlin test” laid down by Devlin J in Amon v Raphael Tuck & Sons Ltd (1956) 1 All ER 273 @ 290 which test has been disapproved as being too narrow a construction of the rule. By parity of reasoning, therefore, whereas the wider school of thought advocates that the court has the unfettered discretion in the matter and that the judge’s discretion ought to be exercised in a manner which conforms with justice and that the judge was not to pay obeisance to any fixed rule of thumb, the narrow school of thought, on the other hand, postulates that there should be a demonstration that the order for joinder if granted should raise issues to be tried between the applicant and the person sought to be joined. Having stated the general position of the law, I need to emphasize that Common Law is not cast in stone. One of its strengths is that it moves with the changing times. The law has now developed. We therefore advocate that the courts must now lean in favour of the approach where the test is: whether the interest of the party sought to be joined may be affected by the outcome of the case. In other words, whether at the end of the trial/case the party so joined may be called upon to satisfy the judgment, either in cash or in kind. As a general rule, a person may either qualify or not, to be a party in a legal proceedings. As a matter of emphasis, the overriding factor is whether that party joined either at the initiation of the suit or joined subsequently, has any personal interest in the outcome of the case or legal liability to comply with. If yes, the application for joinder must be upheld. I am of the considered opinion that by a true and proper interpretation of Order 4 r 5(2) of CI 47, an application to join a party should be granted where the presence of the party sought to be joined would ensure that all matters incidental to the proceedings were effectively and completely determined and that at the end of the trial the court shall have jurisdiction to call upon that party to satisfy the judgment so entered or part thereof. The policy rationale is to avoid multiplicity of suits. The opposite is equally true in that, where the presence of a party would not assist the court to completely and effectually adjudicate the issues in controversy; and where the party cannot be compelled to satisfy any judgment that may be recovered by the respondent, the application to misjoin the party shall be granted. In other words, where the court can conveniently proceed with the trial without the participation of that party, the party ought to be non-suited or misjoined as the case may be. I now return to the certified question the instant case raises as to whether the presence of the Attorney General is indispensable in the trial of the case before the lower court. Corollary, to the question is whether the outcome of the case would affect the financial pocket of the 1st respondent. Certainly, the answer to the questions turns on the pleadings filed in the case and the construction put on the Legal Professional Act, 1960 (Act 32), the statute that established the General Legal Council, the 2nd respondent herein. Per paragraphs 5 – 9 of the statement of claim, the appellant has pleaded that he was appointed an assistant lecturer in the Ghana School of Law in 1999 with his terms and conditions of service equivalent to that of a Community Tribunal Chairman [now a District Magistrate]. He was subsequently promoted to a full lecturer, an equivalent grade of a Circuit Court Judge. According to the appellant, since 1st January 2009 Circuit Judges and Professional Magistrates as well as Career Magistrates have enjoyed new salary levels. These new salary scales were to the knowledge of the respondents, yet the respondents have refused to pay the appellant the correct salary and for which reason he was being underpaid. According to him, all notices of protest to the respondents have been ignored. The appellant additionally pleaded in paragraph 16 of the statement of claim that the respondents being aware that they were truly indebted to him for the arrears of salary being claimed but have refused to act on it, their unreasonable conduct ought to be deprecated by the court. See: pp 3-5 [roa]. As a matter of emphasis, the Act of Parliament that established the 2nd respondent, the General Legal Council unambiguously made it a body corporate with a perpetual succession, capable of suing and being sued. S. 1 of the First Schedule of the Legal Professional Act, 1960 (Act 32), which so far as it is relevant, is reproduced here below and it runs as follows: “The General Legal Council is a body corporate having perpetual succession and a common seal and may sue and be sued in its corporate name.” Text writers and academics as well jurists agree that a body corporate is an artificial being created by law; it is a legal entity entirely separate and distinct from the individuals/officers who compose it and run it. That body corporate is imbued with the capacity of continuous existence and succession, notwithstanding changes in its membership. This means that the officers that compose it or run it may retire or resign from the establishment but the establishment shall continue to exist so long as the law setting it up continues in force. Additionally, the body corporate has the power to enter into contracts; to hold and convey property and having acquired legal personality, is capable of suing and being sued. It is equally capable of exercising such other powers and privileges as may be conferred on it by the law of its creation, just as a natural person. The following definition of body corporate was given by Chief Justice Marshall, the 4th Chief Justice of the U. S Supreme Court in 1801 in the celebrated Dartmouth College case Dartmouth College v Woodward, N. H, 4 Wheat 518 @ 636: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable the corporation to manage its own affairs, and to hold property, without perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities, that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being.” We note and acknowledge that Chief Justice Marshall referred to, and used the word “corporation” in that context. However, the words, “body corporate” and “corporation” are one and the same thing and are used interchangeably. Guided by the principle stated supra and having regard to the pleadings the appellant filed in the case, I venture to say that upon a very careful consideration of the pleadings, there was obviously no joinder of issues between the appellant and the 1st respondent. First, it is uncontested that the 2nd respondent is the appellant’s employer. Per the reliefs the appellants are seeking as endorsed on his writ, he is simply asking for a change in salary or better still, fighting for better conditions of service as a lecturer at the Ghana School of Law. These are purely administrative matters. Without prejudice to the generality and the merits of the case pending before the court below, if at the end of the trial the court makes an order upholding the claim, it is the 2nd respondent, the employer who shall carry out the order. The buck does not stop at the door step of the Attorney General. Indeed, in actual practice, the finance department of the Ghana School of Law will have to prepare what we call “inputs” effecting the necessary changes in the salary level of the appellant and submit same to the Controller & Accountant for the appellant to be paid the correct salary, together with all arrears of salary, if any. The Attorney General has next to nothing to do with this. Next, the law establishing the General Legal Council renders it a body corporate by the name under which it is set up, with perpetual succession and a common seal, and with the power to hold property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purposes of its constitution. The General Legal Council being responsible for legal education in Ghana in pursuit of its legal mandate, set up Ghana School of Law where the appellant is engaged as a lecturer. The General Legal Council by extension, the Ghana School of Law has the power to acquire, and has undoubtedly acquired some properties both movable and immovable that the appellant can proceed against in the event that he won his case at the lower court if the 2nd respondent has then refused or failed to satisfy the judgment debt so awarded. But it has been argued that the appellant being a public officer, he is paid by the State through the Controller & Accountant-General and the Ministry of Finance has to give approval or sanction the payment of the salary. These institutions, it is argued further, are under the Attorney-General’s Department. Therefore, it makes the Attorney-General Department a necessary party. At the risk of sounding repetitive, the appellant in his statement of claim never pleaded all these matters. Until he amended his pleadings, he cannot at this stage make such assertions. That shall be deemed to be in violation of Order 11 r 10 of CI 47 unless the appellant’s statement of claim was amended in terms of Order 16 r 5(1)(b) of CI 47 to include that assertion. Beyond that, admittedly, per Article 88 of the1992 Constitution the Attorney General carries the mandate to defend the State in civil suits and also initiates criminal proceedings against offenders, or at his instance. For his duty in civil actions, the law provides in Clause 5 of Article 88: “The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.” Without attempting to interpret Article 88 of the 1992 Constitution so long as that power remains the exclusive prerogative of the Supreme Court, I am of the considered opinion, nevertheless, that it is not in all cases that the Attorney General ought to be made a defendant, even if a nominal defendant. Making a claim against the Attorney General or joining him in a suit as a defendant is dependent largely on the nature of the plaintiff’s claim. Thus, I think that in cases where the law establishing an agency or a constitutional created institution of State clothes it with a perpetual succession, and being a legal entity that can sue and be sued, it is that agency or institution only that has to be legitimately made a defendant to the case and not the Attorney General. So, the lines are clearly delineated. It was in the light of that principle that the Supreme Court in Amegathcer v The Attorney- General (No. 1) & ors (2012) 1 SCGLR 679 @ 684 speaking through Atuguba JSC observed: “……………. Consequently, we consider that the time has come for a realistic revisit to Article 88(5) of the 1992 Constitution. Accordingly, we would come down on Article 88(5) as follows: All the constitutionally established independent bodies like the Commission on Human Rights and Administrative Justice, the Electoral Commission, etc can sue and be sued on their own relating to their functions per counsel of their choice…………………………………….” Indeed, Date-Bah JSC @ p. 687 of the Law Report contributing to the judgment, having acknowledged the general position of the law that the Attorney–General is the defendant in a suit against the State, however gave indications that there were exceptions to the rule. He delivered himself the opinion as follows: “The plain meaning of article 88(5) is given effect through the interpretation that the presumptive rule is that the Attorney-General is to be the defendant in all civil proceedings against the State. However, there are exceptions to this presumptive rule, necessitated by the core values of the Constitution and the overriding con- stitutional need to avoid conflict of interest. The exceptions are meant to buttress the autonomy of the independent organs of the State.” [emphasis underscored] His Lordship continued: “There has in fact been the practice of allowing the legal per- sons referred to popularly as the constitutional bodies to be sued in their own name. Thus, there are judicial precedents showing that the Commission on Human Rights & Adminis- trative Justice, the Electoral Commission, the National Media Commission may be sued in their own name and not through the Attorney General …………….” [emphasis ours] I do, therefore, roundly agree with the learned trial judge that the 1st respondent is not a proper party whose presence is necessary for the trial and determination of the issues in the matter principally because appellant’s claim revolves around his contract of service with the 2nd defendant. The trial in the lower court can conveniently and legitimately proceed without the presence of the Attorney General. Being a body corporate, the General Legal Council has the power to enter into contracts as it did with the appellant; has the power to manage its own affairs and equally, is capable of exercising such other powers and privileges conferred on it by the law. In the final analysis, I find no merit in the instant appeal. Consequently, the appeal fails and it is so dismissed in its entirety but I make no order as to costs. sgd P. BRIGHT MENSAH (JUSTICE OF APPEAL) COUNSEL AUREOL ASARE-BOATENG (ASA) APPELLANTS PLAINTIFF/APPELLANT IN PERSON 53