Vaki v Eliakim [2015] PGNC 253; N6129 (7 December 2015)

N6129

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS JR NO. 485 OF 2014

BETWEEN

GEOFFREY VAKI
POLICE COMMISSIONER OF PAPUA NEW GUINEA
First Plaintiff

AND

HON. PETER O'NEILL
PRIME MINISTER OF PAPUA NEW GUINEA
Second Plaintiff

AND

GARI BAKI
POLICE COMMISSIONER OF PAPUA NEW GUINEA
Third Plaintiff

AND

NERRIE ELIAKIM
CHIEF MAGISTRATE
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Makail, J
2015: 02nd & 07th December

PRACTICE & PROCDURE – Judicial review proceedings – Application for joinder of party – Source of power – Power to join party in judicial review proceedings – Relevant principles – Persons directly affected – Sufficient interest – Persons directly affected must be served Notice of Motion – Mandatory – Court has overriding discretion and control on joinder of party – National Court Rules – Order 5, Rule 8 – Order 16, Rules 5(2)&(6) & 13(13)(b)&(c).

Cases cited:

Alex Timothy v. Hon. Francis Marus & Ors (2014) SC1403
Dynasty Estates Limited v. Nambawan Super Limited & Ors (2015) SC1427
Hon. James Marape v. Prime Minister Peter O'Neill, Hon, Ano Pala, The State & Ors: SCA No. 87 of 2014 (Unnumbered & Unreported Judgment of 29th September 2015)
Supreme Court References Nos. 02, 03 & 05 of 2014: Powers and Functions of Commissioner of Police (2014) SC1388
Simon Kauba v. National Executive Council & The State (2014) N6025
Timbani Longai v. Steven Maken & Ors (2008) N4021

Counsel:

No appearance, for the First Plaintiff
Mr. M. M. Varitimos QC with Mr. D. Kipa, for the Second Plaintiff
Mr. I. Molloy with Mr. N. Tame, for the Third Plaintiff
No appearance, for the First Defendant
Mr. R. A. Saulep, for the Second Defendant
Mr. G. M. Egan with Mr. M. Nale, for the Applicants Messrs. M. Damaru and T. Gitua

RULING ON JOINDER OF PARTY

07th December, 2015

1. MAKAIL J: In this case the undisputed fact is Mr. Timothy Gitua was the police officer who applied and was granted a warrant of arrest by the First Defendant, the Chief Magistrate for the arrest of the Second Plaintiff, the Prime Minister. This was on 12th June 2014. Subsequent to this, the First Plaintiff, Mr. Geoffrey Vaki as the Commissioner of Police at the relevant time and the Prime Minister commenced this proceeding to set aside the warrant of arrest.

2. On 18th July 2014 the National Court granted leave to review the decision of the First Defendant. Subsequently, a referral was made to the Supreme Court for an opinion on amongst other things, the standing of the Commissioner of Police to challenge a warrant of arrest issued by a Court. This proceeding was stayed pending the decision of the Supreme Court. On 02nd October 2014 the Supreme Court gave its opinion holding, amongst other things, that the Commissioner of Police does have standing to challenge a warrant of arrest issued by the District Court: see Supreme Court References Nos. 02, 03 & 05 of 2014: Powers and Functions of Commissioner of Police (2014) SC1388.

3. This proceeding has commenced but not completed under the First Plaintiff, Mr. Vaki who has been replaced by the Third Plaintiff, Mr. Gari Baki earlier this year. The Court in granting leave to apply for judicial review obviously found that Mr. Vaki had standing to bring this proceeding. Mr. Vaki does not intend to take further active role in the proceeding and on application by Mr. Baki on 02nd December 2015 he was granted leave and added as Third Plaintiff to this proceeding.

4. By a further amended notice of motion filed on 23rd October 2015 the Applicants, Messrs. Mathew Damaru and Timothy Gitua applied to join the proceeding as Third Defendants. The Prime Minister, Mr. Baki and Second Defendant opposed their joinder. They contended that the application is misconceived and incompetent because the Applicants had failed to engage the jurisdiction of the Court. They said that the application is brought under Order 5, rule 8(1) of the National Court Rules which is not applicable in judicial review proceedings.

6. They contended that judicial review proceedings are governed by Order 16 of the National Court Rules and the application must be brought under the Order 16 rules. The correct rule to engage the jurisdiction of the Court is Order 16, rule 13(13)(c). They relied on Timbani Longai v. Steven Maken & Ors (2008) N4021 and Alex Timothy v. Hon. Francis Marus & Ors (2014) SC1403 for the proposition that Order 16 provides an exclusive procedure for judicial review proceedings.

7. In the case, the Supreme Court upheld an appeal against a decision of the National Court dismissing a judicial review proceeding for want of prosecution under Order 4 of the National Court Rules. The Supreme Court said that Order 16 provides a complete and exclusive procedure for interlocutory applications involving judicial review proceedings. The National Court erred in accepting the notice of motion for dismissal of proceeding under Order 4 which had no application to judicial review proceedings, resulting in a fundamental error going to jurisdiction.

8. The Applicants contended the issue of their joinder is a dead issue because it had been decided by the Supreme Court in Hon. James Marape v. Prime Minister Peter O'Neill, Hon, Ano Pala, The State & Ors: SCA No. 87 of 2014 (Unnumbered & Unreported Judgment of 29th September 2015). There, Makail and Sawong JJ (Hartshorn J dissenting) held that they had sufficient interest and were allowed to remain as parties to the Supreme Court appeal against Kariko J's decision to discharge an interim injunction against the arrest of Hon. James Marape. For this reason leave should be granted to join them to this proceeding.

9. I have considered the cases of Timbani Longai and Alex Timothy and I am of the view that they are of general application. However, if the submission of the opponents to the Applicants' joinder is accepted, I am unable to find an equivalent of Order 5, rule 8 in Order 16 rules. So what is the source of power of the Court to join a party in judicial review proceedings? The opponents to the joinder referred to Order 16, rule 13(13) (c). It states that at the Directions Hearing, the Judge may consider and determine, and issue directions for the prompt hearing of the application, amongst other things, joinder of persons served with the Notice of Motion as parties to the proceedings. This is the closest one can say is the source of power of the Court to grant joinder.

10. However, this rule should not be read in isolation. It should be read with rule 13(13)(b). Before the question of joinder is considered, the Judge must consider the identification of persons served or who ought to have been served with the Notice of Motion. These are matters which a Judge conducting Directions Hearing must consider and determine before setting down the matter for trial.

11. Rule 13(13)(b)&(c) can be traced back to Order 16, rule 5 which provides:

5. Mode of applying for judicial review. (UK. 53/5)

(1) Subject to Sub-rule (2), when leave has been granted to make an application for judicial review, the application shall be made by Notice of Motion to the Court.

(2) The Notice of Motion must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made in them, the Notice of Motion must also be served on the clerk or Registrar of the court and, where any objection to the conduct of the Judge is to be made, on the Judge.

(3) Unless the court granting leave has otherwise directed, there must be at least 14 days between the service of the Notice of Motion and the day named in it for the hearing.

(4) Within 21 days after grant of leave the Notice of Motion shall be allocated a date of hearing by the Registrar after consultation with the parties.

(5) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the Notice of Motion must be filed before the Notice of Motion is entered for hearing and, if any person who ought to be served under this Rule has not been served, the affidavit must state that fact and the reason for it, and the affidavit shall be before the Court on the hearing of the Notice of Motion.

(6) If on the hearing of the Notice of Motion the Court is of opinion that any person who ought, whether under this Rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the Notice of Motion may be served on that person." (Emphasis added).

12. The emphasis is on the Notice of Motion and secondly, its service on all persons directly affected by the proceeding. As is the case in all judicial review proceedings, they are commenced with an application for leave and according to Order 16, rule 3, a hearing of an application for leave is strictly ex parte except where the State is a Defendant and is given an opportunity to be heard – a right granted to it by virtue of Section 8 of the Claims By and Against the State Act, 1996. By its very nature, a leave application is supposed to be a brief and quick hearing and if leave is granted, parties will be fully heard at the substantive hearing.

13. The practical effect of rule 3 is that, the Court does not have the benefit of all information including other Defendants' response until the substantive hearing. So it is of fundamental importance that the Notice of Motion must be served on all persons directly affected by the proceeding. The Notice of Motion referred to in rule 5 is not the type that parties file when seeking interlocutory orders, but one that seeks substantive orders following grant of leave. A Plaintiff relies on this document to seek final relief at the substantive hearing.

14. Order 16, rule 5(2) & (6) was considered by the Supreme Court in Dynasty Estates Limited v. Nambawan Super Limited & Ors (2015) SC1427. The Supreme Court held that this rule is couched in a way that after grant of leave, it makes it mandatory for a party applying for judicial review to serve the Notice of Motion on all persons directly affected. The Supreme Court's reason for forming this view is ".......................... to accord all persons directly affected by the exercise of power by a quasi judicial authority or administrative body an opportunity to be heard."

15. What is critical and pertinent to this case is that, the Supreme Court further observed that; "Where a person directly affected is served the Notice of Motion, two things may occur; first, that person may choose against being heard or secondly, may choose to be heard. In the latter case, that person may neither (sic) apply to join in the proceedings or appear and be heard without being formally joined." See also Simon Kauba v. National Executive Council & The State (2014) N6025.

16. If I accept the proposition that Order 5, rule 8 joinder application is inapplicable to judicial review proceedings and that the source of power of the Court is derived from Order 16 rules, which rules are exclusively for judicial review proceedings, then I must strictly apply the requirements of Order 16 rules. To this end, I consider that the pre-condition that must be met by a Plaintiff before hearing of a joinder application is that, the Plaintiff must serve the Notice of Motion on all persons directly affected by the proceeding.

17. Where the Plaintiff fails, according to rule 5(6), at the hearing the Court may direct the Notice of Motion to be served on that person. So ultimately, the Court has the overriding discretion and control over who should be a party and involved in the judicial review proceedings.

18. As to when a party may apply to join, as observed by the Supreme Court in Dynasty Estate case (supra), it is a discretionary matter for the Court to determine and where a Notice of Motion is served on a party, it may formally apply by notice of motion to join the proceeding. This is when the question of joinder is raised and determined. It may be determined at the Directions Hearing as contended by the Prime Minister, Mr. Baki and the State or even at the substantive hearing as is stated in rule 5(6).

19. In my view whatever the case may be, it is the Court who controls the joinder of party from the time leave is granted to the date of substantive hearing. This is to ensure that all persons directly affected by the proceeding are given opportunity to be heard. The Supreme Court in Dynasty Estate case (supra) cited with approval the decision in Yanta Development Association v. Piu Land Group Inc. (2005) SC798 that:

"16. The right to be given notice of hearing under Order 16, rule 5(2) of the National Court Rules to anyone with direct interest in the subject proceedings or as someone directly affected by the proceedings or the subject matter in the proceedings was described as mandatory in Yanta Development Association v. Piu Land Group Inc. (2005) SC798."

20. Failure will result in a miscarriage of justice. In this case neither is there evidence nor submission by the Prime Minister, Mr Baki and the State that they have served the Notice of Motion on the Applicants. If they are insisting on the Applicants to invoke the correct rule on joinder, then they must also play by the same rules. There are no double standards here. To this end, I am not able to find any evidence that they have complied with the mandatory requirement on service of the Notice of Motion on the Applicants. This may explain why the Applicants have filed this application. Now that there is a formal application to join before the Court, it can either be heard at Directions Hearing per Order 16 rule 13(13)(c) or at the substantive hearing per Order 16, rule 5(6).

21. However, it has been heard and given that there is no evidence of service of the Notice of Motion on the Applicants, I do not believe that they should be shut out from making their application on the basis that they rely on an incorrect rule to invoke the jurisdiction of the Court and the application should be dismissed for that reason. For to do so would be denying them the right to be heard, a right the Supreme Court in Dynasty Estate Limited said is mandatory and should be accorded to them in the event that they are joined. The objection is refused.

22. The Prime Minister's reason and that of the parties supporting him is that, the Applicants are not persons directly affected or have sufficient interest in the matter. The Prime Minister and Mr. Baki argued that the Applicants are not persons directly affected by the decision of the Chief Magistrate. The persons directly affected are the Chief Magistrate as she was the decision maker whose decision is the subject of the judicial review proceeding and secondly, Mr. Baki as the current Commissioner of Police.

23. With regard to Mr Baki's standing, the Prime Minister submitted that the judicial review proceeding is to challenge the validity of the Chief Magistrate's decision to issue the warrant of arrest. It has no application to the Applicants and if the Court were to allow them to join, the Court would effectively be allowing any policeman to challenge the validity of the warrant of arrest. This would be contrary to the Supreme Court decision in Supreme Court References Nos. 02, 03 & 05 of 2014: Powers and Functions of Commissioner of Police (supra) which held that the Commissioner of Police has standing to challenge the warrant of arrest.

24. The Prime Minister further submitted that the Supreme Court decision in Hon. James Marape's case is not binding on this Court because it is distinguishable on its facts. That was a case where the application to join was made under Order 5, rule 8 in a proceeding commenced by Originating Summons, whereas in this case, the application arises from a judicial review proceeding.

25. Mr. Baki submitted that he has the backing of the Supreme Court based on the decision in Supreme Court References Nos. 02, 03 & 05 of 2014: Powers and Functions of Commissioner of Police (supra) to challenge the subject decision because the Supreme Court held that he has standing to challenge a warrant of arrest by seeking judicial review. Each member of the Police Force is obliged to obey lawful orders including and especially any orders given by the Commissioner, such as ordering a member not to apply for a warrant. On this authority it is him to the exclusion of other members of the Police Force who has standing to take that challenge to the Court in this proceeding.

26. Finally, it was contended by Mr Baki that at the very least, an amicus curie may be appointed by the Court in place of the Applicants to assist the Court with submissions at the substantive hearing.

27. At the beginning of this ruling, it was pointed out that Mr. Gitua was the police officer who applied and was granted the warrant of arrest for the Prime Minister. It was a statement made to emphasize the point that because of what Mr. Gitua did, there is now a conflict and in turn this judicial review proceeding challenging the issuance of the warrant of arrest for the Prime Minister. He cannot be isolated or left out of this conflict. In my view he is a person directly affected by the Chief Magistrate's decision which is the subject of this proceeding. Significantly, the Supreme Court in Hon. James Marape's case held that he and Mr. Damaru had sufficient interest in the matter before that Court. He was the person who obtained the warrant of arrest for Prime Minister.

28. The substantive proceeding in the National Court was to review the various bills of costs rendered to the State by Paul Paraka Lawyers for payment. The appeal to the Supreme Court was against Kariko J's discharge of an interim injunction restraining the arrest of the Prime Minister and Hon. James Marape. While the question of joinder was moved pursuant to Order 5, rule 8 in a proceeding commenced by originating summons and decided in the context of a dispute over bills of costs, I am of the view that the subject referred to in the warrant of arrest is the same person. This is another point that supports the Applicants' submission that regardless of the mode of proceeding, the issue of the Applicants' joinder has been determined and is res judicata.

29. It should also be pointed out that the filing of the judicial review proceeding by Mr. Vaki, his successor Mr. Baki and the Prime Minister to challenge the issuance of the warrant of arrest is an attempt to stop the execution of the warrant. There is no dispute that Applicants are the police officers responsible for investigating the allegation of fraudulent payments of legal costs against the Prime Minister and in the process obtained a warrant of arrest for his arrest. As the Supreme Court posed at [76] "If they were responsible for the investigation and the warrant of arrest of the Prime Minister, who else would be in a better position to respond to the appeal against the discharge of the interim injunction against the appellant and also the first respondent?" Surely, it must be these Applicants.

30. Mr. Baki's submission that the Supreme Court in the Supreme Court References Nos. 02, 03 & 05 of 2014: Powers and Functions of Commissioner of Police case (supra) held that he has standing to challenge the warrant of arrest to be exclusion of others including the Applicants is irrelevant and misconceived because the standing of the Applicants was not an issue in that case. If the contention is about each member of the Police Force obliged to obey lawful orders including and especially any such orders given by the Commissioner, such as ordering a member not to apply for a warrant, this contention is also misconceived because the standing of the Applicants was not an issue in that case. This issue was decided in the Hon. James Marape's case.

31. As to his submission that the Court should appoint an amicus curie, it is also irrelevant and misconceived because the majority of their Honours in Hon. James Marape's case did not consider it as relevant to the issue of joinder and did not even comment on it. In any case, the issue of Applicants' joinder has been decided by the Supreme Court and Mr. Baki is re-litigating an issue that is res judicata.

32. For these reasons, I come to the conclusion by agreeing with the Applicants that the issue of joinder is a dead issue. It is res judicata. It follows the Supreme Court decision is binding on this Court and for this further reason, the application must be granted and the Applicants shall be joined as Third Defendants to this proceeding. Costs of the application shall be in the cause.

Ruling and Orders accordingly.

________________________________________________________________
Twivey Lawyers : Lawyers for the Second Plaintiff
N. Tame Lawyers : Lawyers for the Third Plaintiff
Saulep Lawyers : Lawyers for the Second Defendant
Jema Lawyers : Lawyers for the Applicants