Marape v O'Neill [2015] PGSC 65; SC1458 (29 September 2015)

SC1458

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 87 of 2014

BETWEEN:

HON. JAMES MARAPE in his capacity as Minister for Finance
Appellant

AND:

HON. PETER O'NEILL in his capacity as Prime Minister
First Respondent

AND:

HON. ANO PALA, Attorney General & Minister for Justice
Second Respondent

AND:

PAUL PARAKA trading as Paul Paraka Lawyers
Third Respondent

AND:

ROYAL CONSTABULARY OF PNG
Fourth Respondent

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fifth Respondent

AND:

MATTHEW DAMARU, as the Director of National Fraud & Anti-Corruption Directorate
Sixth Respondent

AND:

TIMOTHY GITUA, as the Deputy Director National Fraud & Anti-Corruption Directorate
Seventh Respondent

Waigani: Hartshorn, Makail and Sawong JJ
2015: September 2nd, 29th

SUPREME COURT – PRACTICE & PROCEDURE –– Application to discharge orders made by a Supreme Court Judge for the joinder of parties - Joinder granted by single Judge – Discretionary – Relevant principles – Sufficient interest – Joinder necessary – Supreme Court Rules – Order 11, rules 11, 25 & 26.

SUPREME COURT – PRACTICE & PROCEDURE – Application for joinder – Competency of application – Proper form for application – Form 4 – Application shall state grounds – Failure to state grounds – Supreme Court Rules – Order 13, rule 10 – Form 4.

Cases Cited:
Papua New Guinea cases

Rimbink Pato v. Anthony Mundjin [1996] PNGLR 6
PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126
Kawaso Limited v. Oil Search Limited (2010) SC1082
John Midan & Anor v. Oscar Lisio (2010) SC1086
Kara v. Public Curator of Papua New Guinea (2010) N4048
Timbers PNG Ltd v. Papua New Guinea Forest Authority (2012) N4638 Coecon Ltd v. Westpac Bank (PNG) Ltd (2012 ) N5097
Bobby Enda v. Kanawi Pouru (2013) N5314
Barava Limited v. Mamalau (2013) SC1301
National Executive Council v. Vele Pat Ila'ava (2014) SC1332
Supreme Court Reference Nos 2, 3 and 5 of 2014: Re: Powers of Commissioner of Police – Warrant of Arrest (2014) SC1388
Joel Luma v. John Kali and 2 Ors (2014) unreported Supreme Court, SCM 14/14 delivered 25th April 2014
Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408
Eremas Wartoto v. The State (2015) SC1411

Overseas Cases
Dollfus Mieg et Compagnie S. A. v. Bank of England [1951] 1 Ch 33
Counsel:

Mr. R. Leo, for the Appellant
Mr. M.M. Varitimos QC, Ms. T. Twivey and Mr. D. Kipa, for the First Respondent
Mr. R. Saulep, for the Second and Fifth Respondents
Mr. R. Kasito, for the Third Respondent
Mr. I.R. Molloy and Mr. N. Tame, for the Fourth Respondent
Mr. G.M. Egan, Mr. M. Nale and Mr. T.G. Lambert, for the Sixth and Seventh Respondents

29th September, 2015

1. HARTSHORN J (Dissenting): This is a decision on an application to discharge orders made by a single Judge of this Court. Those orders were that Messrs Matthew Damaru and Timothy Gitua be joined as the sixth and seventh respondents to this proceeding.

2. I have had the opportunity of reading the draft decision of my brothers Makail J. and Sawong J. I find myself in the minority as I respectfully do not agree with their Honours' determination that the sixth and seventh respondents should remain joined to the appeal.

3. The application is made by the appellant. It is supported by all of the respondents apart from the sixth and seventh respondents who not surprisingly, oppose the application.

Background

4. This is an appeal from a decision of the National Court that refused an application for interlocutory orders by consent. The orders that were sought were amongst others that members of the Royal Papua New Guinea Constabulary (Police) be restrained from arresting the appellant and first respondent herein, and that senior members of the Police be restrained from taking any action against other members of the Police involved in the investigation into the payment by the fifth respondent herein of legal bills of the third respondent herein.

5. A notice of appeal dated 3rd July 2014 was filed on 7th July 2014 in which the appellant claims that the primary Judge erred in law and/or mixed fact and law on thirteen grounds. It is unnecessary to restate the grounds of the Appeal for present purposes.

This application

6. The application is made pursuant to Order 11 Rule 25 Supreme Court Rules. The heading to that Rule is "..... Appeal & application to court from orders or directions of judge.", although there is no reference to "appeal" in the wording of Rules 25 and 26. These Rules are as follows:

"25. A party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act, may, upon notice to the other parties concerned in the proceedings, filed and served within 21 days of the making of such direction or order, apply to the Court which may make such order as appears just.

26. Proceedings under Rule 25 shall be instituted as if it was an appeal under Order 10 and the application of the rules under that Order with all necessary modifications shall apply."

7. Order 10 is as follows:

"ORDER 10—APPEAL FROM ORDERS MADE UNDER ORDERS 16 AND 17 OF THE NATIONAL COURT RULES

Division 1.—Institution of appeal

1. (a) An appeal under this Order shall be instituted by a notice of motion.

(b) Where the appeal lies only with leave the provisions of Order 7 Division 2 shall apply.

2. The notice of motion and all subsequent proceedings shall be entitled "In the Supreme Court of Justice" and shall be entitled between the party as appellant and the party as respondent.

3. The notice of motion shall—

(a) show where appropriate the particulars set out in a notice of appeal under Order 7 Rule 9; and

(b) have annexed—

(i) copies of all documents which were before the Judge of the National Court appealed from; and

(ii) a copy of the order made, certified by the Judge's Associate or the Registrar; and

(c) be in accordance with form 15; and

(d) be signed by the appellant or his lawyer; and

(e) be filed in the registry.

Division 2.—certain rules to apply

4. The following rules shall apply to matters under this part with regard to—

(a) filing and service: Order 7 Division 4; and

(b) affidavits: Order 7 Rules 56, 57, 58, 59.

(c) where an application for leave to appeal has been filed: Order 7 Rule 6 (time to file a Notice of Appeal) and Order 7 Rule 11 (notice of appeal deemed given on filing of an Application for Leave to Appeal) with the necessary modifications.

5. Where leave to appeal is required pursuant to s14 of the Supreme Court Act, application shall be made in Form 7."

8. During the course of submissions the court queried whether the notice of motion by which the application was made was competent and complied with Rule 26 and Order 10 Supreme Court Rules.

9. Counsel for the appellant submitted that the notice of motion substantially complied with Order 10 and that copies of all necessary documents, although not annexed to the notice of motion, are annexed to the affidavit in support.

10. Counsel for the first respondent submitted that the sixth and seventh respondents have not filed an objection to competency of the notice of motion. Further, as this application is not an appeal from a different court and is an application within an existing appeal, and so all of the appeal documents are before this Court, it is not necessary that all of the documents which were before the single judge of this Court, be annexed to the notice of motion. To require otherwise would result in unnecessary duplication and is not what Rule 26 envisages.

11. Counsel for the sixth and seventh respondents submitted that the wording of Rule 26 is clear. Proceedings under Rule 25 shall be instituted as if it was an appeal. Reliance was placed on amongst others, the decision of Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (2015) SC1408.

12. Notwithstanding that this application is made pursuant to Order 11 Rule 25 Supreme Court Rules, the jurisdiction to discharge or vary a direction or order of a Judge of the Supreme Court is conferred by s. 5 (3) Supreme Court Act.

13. In this regard I have had recourse to the decisions of National Executive Council v. Vele Pat Ila'ava (2014) SC1332, and Joel Luma v. John Kali and 2 Ors (2014) unreported Supreme Court, SCM 14/14 delivered 25th April 2014 (Injia CJ, Sakora and Manuhu JJ.), as to an application under Order 11 Rule 25 Supreme Court Rules. In Joel Luma v. John Kali (supra), the Court said at para 10:

"10. The nature of an application under s 5(2) (sic) is explained in several decisions of this Court. It is an application to "vary or discharge" an order of a single Judge; it is not a fresh appeal or a review from that decision. The application is interlocutory in nature and made in the context of the existing appeal: National Executive Council & others v Dr Vele Pat Ila'Ava & another (2014) SC1332 per Gabi, Sawong & Murray JJ., ToRobert v ToRobert (2011) SC1130, Powi v The State (2006) SC844. As with all proceedings before the Supreme Court, the matter proceeds by way of a rehearing de novo: see s 6 of the Act.

11. At the hearing, the parties relied on various affidavits and their counsel made extensive submissions on the correctness or otherwise of the decision made by the single Judge. However it would defeat the purpose of a rehearing de novo for this Court to review the decision as if it were an appeal or a review. This Court in the true spirit of a rehearing de novo is disposed to considering afresh all materials and submissions put before as and to reach our own decision on the application."

14. In Joel Luma v. John Kali (supra), the Court acknowledged that although because of the wording of Order 11 Rule 26 Supreme Court Rules the application before it was documented as though it was an appeal under Order 10 Supreme Court Rules, this did not alter the real nature and effect of the application. That is, it is interlocutory in nature and made in the context of the existing appeal.

15. As to the submission of the sixth and seventh respondents that the wording of Rule 26 is clear and that proceedings under Rule 25 shall be instituted as if it was an appeal, I note the comment of Gabi J in NEC v. Ila'ava (supra) at para 23:

"To read rule 26 to mean that a fresh appeal ought to be filed would be inconsistent with s. 5 of the Supreme Court Act. The power given under the Supreme Court Rules must be exercised subject to the provisions of the Supreme Court Act."

16. The case of Rural Technology Infrastructure Ltd v. Paradise Foods Ltd (supra), upon which reliance is placed, is concerned with an appeal against a judicial review decision that was commenced by notice of motion pursuant to Order 10 Supreme Court Rules. It is not concerned with an application to discharge or vary an order made by a Supreme Court Judge within an existing proceeding and so to that extent, it is not on point.

17. I agree with the submission that it is not necessary on an application that concerns an order of a single Supreme Court Judge within an existing appeal, that all of the documents which were before the Judge, should be annexed to the motion, as all of those documents are already before this Court. To require otherwise would result in unnecessary duplication. The words, "with all necessary modifications shall apply", should be construed accordingly.

Whether the sixth and seventh respondents should have been joined to the appeal

18. The appellant contends that the sixth and seventh respondents should not have been joined to the appeal as:

a) they do not have a sufficient interest in the appeal. That they sought and were granted an arrest warrant of the first respondent provides them with an indirect interest as police officers, but not a personal interest;

b) the Police represented by the Police Commissioner are a party to this appeal. The applications of the sixth and seventh respondents to join was a challenge against the powers and authority of the Police Commissioner under the Constitution and is contrary to the Supreme Court decision of In Re Powers, Functions, Duties and Responsibilities of the Police Commissioner in relation to Warrants of Arrest (2014) SC1388;

c) no relief is sought against the sixth and seventh respondents in the appeal;

d) the appellant opposes their joinder;

e) the sixth and seventh respondents will not be affected if the relief sought in the appeal is granted;

f) their joinder is not necessary to satisfy any orders that may be made in the appeal;

g) a concern that there is no sufficient contradictor to an appeal is not a ground upon which the sixth and seventh defendants should have been joined.

19. The sixth and seventh respondents contend that they should remain as parties to the appeal as:

a) they are seeking to finalise their criminal investigations into the appellant and enforce and put into effect the District Court Order for the arrest of the first respondent;

b) they have dual capacities as policemen required to enforce warrants and orders of the District Court and as citizens in enforcing the Rule of Law pursuant to s. 155 (6) Constitution;

c) they do not require the consent of the Police Commissioner to join this appeal;

d) it is essential, in the interests of justice, that there be contradictors to this appeal.

Law

20. Order 11 Rule 11 Supreme Court Rules relevantly provides that a court or Judge may order that any person be added as a party to proceedings but does not provide for how the discretion to add a party is to be exercised.

21. Order 2 Rule 1 (h) Supreme Court Rules relevantly provides that the National Court Rules shall apply with necessary modifications as if they were Supreme Court Rules with regard to any matter where there is a relevant provision in the National Court Rules, no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed.

22. As there is no provision in the Supreme Court Rules as to how the discretion to add a party is to be exercised and as far as I am aware no relevant order has been made as to the procedure to be followed, Order 5 Rule 8 (1) National Court Rules is relevant. It is:

"(1) Where a person who is not a party-

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on, the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party ........"

23. In the Supreme Court case of PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126, Kandakasi J. and Sawong J. said:

".... we are of the view that the most important test (sic) for joinder of parties are:

(a) whether the applicant has sufficient interest in the proceedings; and

(b) whether the applicant's joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

8. In considering whether a proposed party has met the above tests, it is necessary and important to have regard to the cause of action pleaded. For it is the pleadings that disclose the matters in dispute and who are the correct plaintiffs and defendants. ..."

24. I was a member of the Court in PNG Deep Sea Fishing (supra) and agreed with their Honours' reasoning and conclusions concerning the appeal against the refusal to add parties.

25. In Kara v. Public Curator of Papua New Guinea (2010) N4048, after referring to the tests that are listed a) and b) in PNG Deep Sea Fishing (supra), I stated that:

"25. In considering whether a proposed party has a sufficient interest in the proceeding or whether his joinder is necessary to ensure that all matters in dispute in the proceeding can be effectually and completely adjudicated upon, certain factors warrant consideration.

26. These include whether:

a) any relief is sought against the proposed party,

b) the plaintiff opposes the application for joinder,

c) the proposed party will be affected if the relief sought in the statement of claim is granted,

d) the joinder of the proposed party is necessary to satisfy any orders made in the proceeding."

26. As to the second factor above, where the plaintiff, in this case the appellant, opposes the joinder, as I referred to in Coecon Ltd v. Westpac Bank (PNG) Ltd (2012 ) N5097, this factor was recognised in Dollfus Mieg et Compagnie S. A. v. Bank of England [1951] 1 Ch 33 in which Wynn-Parry J. said:

"The general rule is, I think accurately stated.... in these words: "Generally in common law and chancery matters a plaintiff who conceives that he has a cause of action against the defendant is entitled to pursue his remedy against the defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue." "

27. In Coecon v. Westpac (supra), although it was apparent that the plaintiff had a cause of action against the person sought to be joined as a defendant, the plaintiff had decided, for whatever reason, not to pursue him and only to pursue the defendant. The plaintiff opposed the application for joinder. I refused the application. Similarly in Timbers PNG Ltd v. Papua New Guinea Forest Authority (2012) N4638, I refused an application for joinder that was opposed by the plaintiff.

28. In Coecon v. Westpac (supra), no relief was sought against the person sought to be joined and he would not have been affected if the relief sought by the plaintiff was granted. In Timbers PNG Ltd (supra), the plaintiff had been granted leave to judicially review a decision of the Minister for Forests. No relief was sought against the company seeking to be joined. The company could have been indirectly affected if the judicial review of the Minister's decision was successful but not as a direct result of the relief sought by, or the actions of, the plaintiff.

29. In Bobby Enda v. Kanawi Pouru (2013) N5314, although the plaintiffs opposed the joinder application and no relief was sought against the applicant seeking to be joined, it was apparent that if the relief sought was granted it would have directly affected the applicant's rights to exercise its timber permit rights. Consequently, I was satisfied that the applicant had a sufficient interest and granted the joinder.

Consideration

30. It is necessary in my view to first consider what relief is being sought in the National Court proceeding from which this appeal emanates. The National Court proceeding was commenced by originating summons and so there is no pleading. The relief sought in the first five paragraphs of the originating summons concerns bills of costs of the defendant, the third respondent to this appeal, to the second plaintiff, the fifth respondent to this appeal. It is not contended, if I understand correctly, that the sixth and seventh respondents have a sufficient interest in this relief sought.

31. The relief sought in paragraph 6 of the originating summons seeks an interim injunction against amongst others, any member of the Police and the officers of the Task Force Sweep Team restraining them from conducting a record of interview of the first plaintiff, the appellant in this appeal, or such further or other investigative actions against the first plaintiff in respect of any previous payment of legal bills of the defendant, the third respondent in this appeal, under the watch of the first plaintiff as Finance Minister until the proceeding is determined.

32. It is in respect of this relief sought that the question of whether the sixth and seventh respondents should remain joined to this appeal should be considered.

33. The sixth and seventh respondents contend that they have sufficient interest as policemen in seeking to finalise their criminal investigations into the appellant and to enforce and put into effect the District Court Order for the arrest of the first respondent. Further, they contend that they are citizens and policemen enforcing the Rule of Law pursuant to s. 155 (6) Constitution. That section is:

"(6) Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System."

34. As to their duty under s. 155 (6), it is the same duty as other persons (not citizens as it is submitted by the sixth and seventh respondents). That they are policemen, is not recognised in s. 155 (6) as giving them a greater duty under that subsection than another person. Is it contended therefore that any person is entitled to be joined to this appeal by virtue of s. 155 (6)? Such a scenario would be unworkable and in my view would not have been intended by the authors of the Constitution. In my view s. 155 (6) Constitution is not able to be relied upon successfully by the sixth and seventh respondents as to why they should remain joined to this appeal

35. As to the sixth and seventh respondents having sufficient interest because as policemen they are seeking to finalise their criminal investigations into the appellant and to enforce and put into effect the District Court Order for the arrest of the first respondent; the relief sought in paragraph 6 of the originating summons is against amongst others, any member of the Police. The sixth and seventh respondents are not named. I note also that the subject arrest warrant is directed to all members of the police force as well as the seventh respondent. If the sixth and seventh respondents are entitled to be joined to the proceeding because of the relief sought against the Police, it is able to be contended that any member of the Police is entitled to be joined. Given this it cannot be said, in my view that the sixth and seventh respondents have more of, or a greater interest than other members of the Police in this proceeding; and members of the Police are already represented by the Royal Constabulary of PNG, represented by the Police Commissioner.

36. As to the contention that the sixth and seventh respondents do not require the consent of the Police Commissioner to join this appeal, putting aside whether that is correct, this contention does not address the question of whether the sixth and seventh respondents have sufficient interest to remain joined as parties to the appeal.

37. As to the contention that it is essential in the interests of justice that there be contradictors to this appeal, if that is the case, this court could consider the appointment of an amicus curae. That question though is not the subject of this application and is not before this court. To my mind, that a contradictor is required, is not a ground to allow the joinder of a person who otherwise would not be entitled to be so joined.

38. As mentioned, another factor to be considered in determining whether the sixth and seventh respondents should remain joined is that the appellant opposes their joinder. In the normal course, a plaintiff is entitled to pursue his remedy against the defendants of his choosing: Dollfus Mieg v. Bank of England (supra), Coecon Ltd v. Westpac Bank (supra), Timbers PNG v. PNG Forest Authority (supra) and Enda v. Pouru (supra). A factor that may require the joinder of a party in opposition to a plaintiff's wishes is if the party seeking to be joined will be directly affected if the relief sought in the proceeding is granted: Enda v. Pouru (supra). In this instance the sixth and seventh respondents will not be directly affected if the relief sought in the originating summons or the appeal is granted.

39. Further, no relief in the originating summons or appeal is sought against the sixth and seventh respondents and their joinder is not necessary to satisfy any orders that may be made in the originating summons or appeal.

40. Consequently I am not satisfied that the sixth and seventh respondents have sufficient interest in the originating summons or the appeal to be joined and it is not necessary that they remain joined to ensure that all matters in dispute in the originating summons and appeal be effectually and completely determined and adjudicated upon.

41. Given this finding it is not necessary to consider the other submissions of counsel.

42. For the above reasons I would discharge the orders of Higgins J. of 25th March 2015 pursuant to s. 5 (3) Supreme Court Act and remove Messrs Matthew Damaru and Timothy Gitua as sixth and seventh respondents to this appeal. I would also order that costs be in the cause.

43. MAKAIL & SAWONG JJ: We have read the draft judgment of Hartshorn J. This is our decision.

Competency of Proceeding

44. As to the competency of this proceeding, we agree with the reasons given by his Honour in forming the view that the proceeding is competent. We agree that in relation to a hearing under Order 11, rules 25 and 26 of the Supreme Court Rules it is not necessary to annexe to the notice of motion all the documents that were relied on at the hearing before the single judge as if it were an appeal from the National Court to the Supreme Court under Order 10 of the Supreme Court Rules.

45. As to the ground challenging the competency of the application for joinder based on failure to state the grounds, we point out that the cases of Kawaso Limited v. Oil Search Limited (2010) SC1082 and Barava Limited v. Mamalau (2013) SC1301 relied upon by the appellant and the first respondent can be distinguished from this case.

46. In those cases it was held that the proper or prescribed form to bring an interlocutory application under Order 13, rule 10 of the Supreme Court Rules was Form 4 (General Form of Application). They were cases where the appellants sought an order for stay by filing a notice of motion. The Court held that the notice of motion was incompetent because it was not the prescribed form. The Court dismissed the notice of motion on that ground. We add that the reference to the failure to state the grounds in the notice of motion was orbita, therefore, not binding on this Court.

47. In this case the sixth and seventh respondents' application for joinder was by Form 4 and to that extent, the application was competent. The issue that was before the single judge and before us is whether the failure to state the grounds in the application rendered the application incompetent. The appellant and the first respondent contended that it is a further requirement in Form 4 that the grounds of the application be stated. In this instance, the grounds were not stated.

48. They contended that the failure rendered the application incompetent and his Honour erred when he allowed the sixth and seventh respondents to move for joinder based on an application which was otherwise incompetent and should have been dismissed on this ground alone. However, the cases of Kawaso Limited and Barava Limited do not assist them because as we have pointed out, those cases concerned the question of proper form of application for moving an interlocutory application. The prescribed form is Form 4. Here we are concerned with pleading the grounds in the application which is a further requirement in Form 4.

49. We are satisfied that in so far as the question of proper form is concerned, the application or amended application was in the prescribed form, that is, Form 4 and was competent. The application was, therefore, properly before his Honour and his Honour was properly seized of the application for joinder.

50. The real issue, however, was whether the appellant was prejudiced in his defence by the lack of grounds in the application. The grounds set the basis of the application and put the opposing party on notice of the basis of the application. The purpose of stating the grounds is to give the other side reasonable notice of the kind of case it is expected to meet at the hearing. On the last point, we refer to John Midan & Anor v. Oscar Lisio (2010) SC1086 which was decided in the context of a preliminary objection to the competency of an application for want of prosecution in Form 11 of the Supreme Court Rules.

51. In this case we are not persuaded by the contention that the lack of grounds seriously disadvantaged the appellant in responding to the application for joinder. We believe the appellant was given adequate notice of the issue for determination in that application and was prepared and did adequately respond to the application notwithstanding the lack of grounds. Though the lack of grounds was contrary to the requirements of the Rules, we are not satisfied that the appellant was denied a fair hearing.

52. This was a case where the appellant appealed against a discharge of an interim injunction granted to restrain his arrest by Kariko J in the National Court. His imminent arrest was a result of an investigation by police into allegation of fraudulent payment of legal costs to Paul Paraka Lawyers using millions of kina of public funds and alleged authorisation of payment by the appellant as the Minister responsible for Finance and the first respondent as Prime Minister.

53. A warrant of arrest was issued to have the first respondent arrested for allegedly committing an offence of official corruption under Section 87 of the Criminal Code. There is no evidence of a warrant of arrest for the appellant. However, parties referred us to the warrant of arrest for the Prime Minister and made submissions emphasising that it is directed to all officers and members of the Police Force. The sixth and seventh respondents are members of the Police Force and any interests they may have are adequately represented by the Police Force who is the fourth respondent in the appeal against Kariko J's decision.

54. The facts surrounding the police investigation and the appellant's imminent arrest are contained in the various affidavits filed and exchanged amongst the parties prior to the hearing of the application. Based on these affidavits, it is clear to us that, the issue of contention between the parties was crystal clear. At the centre of the application is the joinder of the sixth and seventh respondents. The main consideration was whether they had sufficient interest.

55. As was contended before the single judge and also before us, the sixth and seventh respondents have no interest in the subject matter before the National Court, that matter being the taxation of Paul Paraka Lawyers' bills of costs and that as police officers, their interest is no greater than other members of the Police Force such that they should be treated differently from the other members. As members of the Police Force, their interests are and were represented by the fourth respondent.

56. We note parties had extensively covered the issue of joinder in their respective written and oral submissions before his Honour. This confirms our view that the appellant was well informed of the basis of the application and was able to adequately respond to it. Given this we are of the view that the objection was one of technicality rather than substance which could have been cured by a fresh application inclusive of the grounds. If a fresh application were to be filed, it would have delayed the hearing and determination of the issue of joinder.

57. This was the point his Honour was making when he asked counsel for the second and fifth respondents whether it was a situation where a fair hearing was not possible unless the grounds were stated in the application and a fresh application inclusive of the grounds was unavoidable. In response counsel conceded that a fresh application was not necessary. Given the concession, it would seem that the second and fifth respondents were prepared to respond to the application notwithstanding the lack of grounds: see lines 10 to 20 at page 36 of the transcript which may be found at page 77 of Volume 1 of the Consolidated Application Book.

58. Given all of the above, we are not satisfied that the course taken by the single judge was improper or inappropriate in the circumstances nor do we find that such a course denied the appellant a fair hearing. The ground on competency is dismissed.

Joinder of Parties

59. With regard to the substantive issue, we agree with Hartshorn, J's observation that Order 11, rule 11 of the Supreme Court Rules confers jurisdiction on a Court or Judge to order joinder of party to a proceeding but does not provide for how the discretion to join a party is to be exercised.

60. However, by virtue of Order 2, rule 1(h) of the Supreme Court Rules in conjunction with Order 5, rule 8(1) of the National Court Rules, the principles relevant to the exercise of discretion on joinder applied in the National Court may be adopted and applied in the Supreme Court. We apply them to this case.

61. According to Order 5, rule 8(1) of the National Court Rules the discretion is exercised in the following way:

"ORDER 5—PARTIES AND CAUSES OF ACTION.

8. Addition of parties. (8/8)

1. Where a person who is not a party —
   
   1. ought to have been joined as a party; or
      
   2. is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on, the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings."
      

62. We also agree with his Honour's summation of the principles relevant to the exercise of discretion on joinder of party based on decided cases referred to in his judgment. The principles are:

1. Whether the applicant has sufficient interest in the proceedings; and

2. Whether the applicant's joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

63. However, we beg to differ on the application of these principles to the facts of this case. The submissions for and against the joinder must be appreciated in the context in which the joinder was granted. The undisputed evidence is that on 15th January 2014 the then Commissioner of Police, Toami Kulunga, wrote a letter to the appellant asking him to present himself for a police interview regarding allegation of fraudulent payment of money to Paul Paraka Lawyers in respect of legal bills rendered by that firm to the State.

64. In respect of the alleged involvement of the first respondent in the same fraudulent payment of money to Paul Paraka Lawyers, the Chief Magistrate made an order on 12th June 2014 for the issuance of a warrant of arrest for the arrest of the first respondent.

65. The appellant instituted civil proceeding in OS No 115 of 2014:

(a) where the substantive cause of action was for taxation of the Paul Paraka Lawyers bills of costs totalling K51,348,652.00; and

(b) where an interlocutory injunction was sought restraining the forth respondent from carrying out further criminal investigations concerning the appellant's involvement in the fraudulent payments made to Paul Paraka Lawyers.

66. On 17th and 18th June 2014 the appellant appeared by counsel before Kariko J and sought to restrain the police from further investigating him pending the finalisation of the action. On 17th June 2014 in-house counsel for the Police Mr Miviri was asked to attend and make submission on behalf of the Police. He did attend and made submissions opposing the grant of any interlocutory relief as sought.

67. However, on 18th June 2014 Mr Mawa replaced Mr Miviri as the lawyers for the Police and indicated to Kariko J that he had instructions to consent to the interim injunction being sought by the appellant and the first respondent. The first respondent was granted leave to join in the proceeding as second plaintiff. Through counsel, the first respondent consented to the course of action as was proposed by the appellant, as well as seeking a stay of his own arrest.

68. An interim injunction restraining the arrest of the appellant and the first respondent pending further hearing, was made by Kariko J on 18th June 2014. The interim injunction was subsequently discharged by his Honour on 01st July 2015. The discharge of the interim injunction is the subject of the substantive appeal. Pursuant to an amended application, the sixth and seventh respondents sought leave to join in the appeal. Pursuant to an order of the single judge of 25th March 2015 they were joined. The present appeal is from that order.

69. Against this background and from what we have heard and read we consider that there are three significant matters relevant to the question of joinder. First is the type of offence to which the appellant's imminent arrest emanates, secondly, the warrant of arrest and thirdly, the type of relief sought by the appellant and the first respondent in the National Court proceeding.

Offence of Official Corruption – Section 87 of the Criminal Code

70. As we have alluded to at [52] and [53] above, a warrant of arrest is out for the arrest of the Prime Minister. He is suspected of committing an offence of official corruption under Section 87 of the Criminal Code. Section 87 states:

"87. Official corruption.

(1) A person who —

(a) being —

(i) employed in the Public Service, or the holder of any public office; and

(ii) charged with the performance of any duty by virtue of that employment or office, (not being a duty touching the administration of justice),

corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of any thing done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or

(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.

(2) A person shall not be arrested without warrant for an offence against Subsection (1)." (Emphasis added).

71. It should be emphasised that under Sub-section (2) of Section 87, a person suspected of committing an offence of official corruption shall not be arrested without warrant. It is imperative from this provision that a person seeking to arrest a suspect must first have a warrant of arrest.

72. In this case a warrant of arrest for the Prime Minister suspected of committing an offence of official corruption for allegedly authorising payment of Paul Paraka Lawyers' bills of costs is beyond argument. It is mandatory. In complying with this mandatory requirement, the undisputed evidence is that an information was laid before the District Court at Waigani by Chief Inspector Timothy Gitua of the National Fraud Squad for a warrant of arrest to be issued for the Prime Minister's arrest. Mr Gitua is the seventh respondent in this proceeding.

73. Based on the information, a warrant of arrest was issued by that Court. Its issuance was a result of investigation by police into alleged unlawful payment of Paul Paraka Lawyers bills of costs. It is also undisputed that the seventh respondent was one of the police officers responsible for the investigation.

74. Given this we are quite perplexed by the appellant and the other respondents' argument that the seventh respondent has no interest in the subject matter before the Court. Surely, given the position he holds and the task he has performed, he must have an interest in the subject matter and the outcome of the proceeding. We cannot stress enough the point that he was the officer who obtained the warrant of arrest for the Prime Minister, and for this reason, the single judge's finding that he has sufficient interest and added him to the proceeding was correct. His joinder would allow him to response to the appeal against Kariko J's decision to discharge the interim injunction to stay the warrant of arrest.

75. As to the appellant, as we have pointed out at [53] above, there is no evidence of a warrant of arrest for him. However, there is undisputed evidence that he was also investigated for the same allegation. The police officers responsible for the investigation were the sixth and seventh respondents. In the course of the investigation, the appellant obtained the interim injunction from the National Court against his arrest. As a result, they were restrained from further investigating and arresting the appellant and the first respondent. That interim injunction was later discharged by Kariko J and is the subject of the substantive appeal.

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?

Warrant of Arrest

77. The second consideration is the warrant of arrest. The appellant's case was built around the warrant of arrest for the Prime Minister. Counsel for the appellant whose submission was adopted by respective counsel for the first, second, third and fifth respondents emphasised that in addition to the seventh respondent, the warrant of arrest was also directed to "All officers and members of the Police Force." Given this it was argued that it was open to the Police Commissioner or any officer or member of the Police Force to execute it and for this reason, it was not necessary to join the sixth and seventh respondents.

78. This submission seems to find its origins in the recent Supreme Court Reference Nos 2, 3 and 5 of 2014: Re: Powers of Commissioner of Police – Warrant of Arrest (2014) SC1388 which they contend recognised the extensive powers and authority of the Commissioner of Police. They contend that there cannot be a separate representation by these two police officers in defiance of and contrary to the powers of the Commissioner. This would be contrary to the constitutional powers of command and control of the Police Force vested in the Commissioner by virtue of Sections 197 and 198 of the Constitution. The police officers' application to join is a direct challenge and an upfront to the powers of command and control of the Commissioner. Their interests are sufficiently represented by the Police Force who is the fourth respondent in this proceeding.

79. In addition, the fourth respondent contended that to give recognition to the interests of the sixth and seventh respondents and allowing them to join the proceeding will result in fragmenting the command and control structure of the Police Force and undermining the authority of the Commissioner.

80. With respect, this proposition is misconceived. The Commissioner's power of command and control should not be confused with the question of sufficient interest. The issue under consideration here is not one of Commissioner's power of command and control of the Police Force but sufficient interests of the sixth and seventh respondents. The question of the Commissioner's power of command and control and any potential threat as to undermining his authority are irrelevant.

81. The applicants were only required to show to the Court that they have an interest in the subject matter before the Court and their joinder would enable the Court to resolve the issues in contention between the parties. And so far, the appellant and the fourth respondent have not given us a compelling reason to disagree with the view held by the single judge that these two gentlemen have an interest in the subject matter before the Court. We dismiss this argument.

82. It was also contended that joining them would set a dangerous precedent because it would open up "flood gates" for any dissatisfied member of the Police Force with the Commissioner's direction to apply for joinder and separate representation in proceedings before the Court. This submission is without merit because the grant of joinder by the single judge does not necessarily mean that all joinder applications by dissatisfied members of the Police Force will be allowed. The question of joinder is discretionary and each case must be decided on its own merits. We dismiss this argument.

83. On the other hand, it has not been denied that the sixth and seventh respondents are the Director and Deputy Director of the National Fraud Squad Directorate respectively and the investigation of the alleged fraudulent payment of Paul Paraka Lawyers bills of costs fell within their area of responsibility, expertise and line of duty. It was not the Commissioner who conducted the investigation nor was it contended that in their absence, a member or members of the Police Force had been identified by the Commissioner and has and could conduct the investigation.

84. The focus should be on the issuance of the warrant of arrest for the Prime Minister. The Prime Minister is a suspect in the alleged fraudulent payment of Paul Paraka Lawyers bills of costs. Looking at a copy of the warrant of arrest, it is directed to:

1. Chief Inspector Timothy Gitua Director, National Fraud Squad;

2. Officer in Charge; and

3. All officers and members of the Police Force.

85. In the recent Supreme Court Reference Nos 2, 3 and 5 of 2014: Re: Powers of Commissioner of Police – Warrant of Arrest (2014) SC1388, the Supreme Court, amongst other things, held that it depends on the terms of a warrant of arrest. If it is expressed to be a Court order, it must be obeyed.

86. There is no dispute that the warrant of arrest is expressed as a Court order and on the authority of the Supreme Court References (supra), this puts it beyond argument that the seventh respondent is obliged to obey it and must execute it. The issue of the warrant of arrest is necessary because as we have pointed out, the offence to which the appellant is alleged to have committed is official corruption under Section 87 of the Criminal Code. This offence is one of those offences where a suspect can only be arrested by a warrant of arrest.

87. The warrant of arrest is directed to all officers and members of the Police Force including the seventh respondent. The undisputed evidence is that the sixth and seventh respondents are Head and Deputy Head of National Fraud Squad Directorate respectively. It is a case of both officers working in unison in the execution and discharge of their duties as police officers such that the sixth respondent's participation as a party to the proceeding does not conflict or hinder the execution of the warrant of arrest granted on the information of the seventh respondent. It can also be said that the task they have performed is one not made by choice but by the positions they hold in the Police Force.

88. All these factors placed the sixth and seventh respondents in a position where they are directly responsible for the investigation of the appellant and the Prime Minister. They have been restrained from further investigating and arresting the appellant and the first respondent. That order has been discharged and is now the subject of the appeal. This is where their interest lies. It is, therefore, inconceivable that the appellant and others respondents are and were prepared to deny their interest in this case.

Relief Sought

89. The final consideration is the type of relief sought in the proceeding. The appellant with the support of the other respondents submitted in the proceeding at the National Court, he did not seek any relief against the sixth and seventh respondents. The primary relief sought was for taxation of costs delivered by Paul Paraka Lawyers to the State. The taxation of costs is a separate issue which the sixth and seventh respondent have no interests. Given this the sixth and seventh respondents' joinder was unnecessary.

90. The sixth and seventh respondents submitted that the substantive matter in the proceeding OS 115 of 2014 in the National Court, was on its face, for the taxation of bill of costs. The real reason for the institution of the proceeding was, however, to obtain an injunction to restrain the appellant's arrest.

91. We accept the sixth and seventh respondents' submission. The true purpose for the appellant to institute the proceeding in the National Court was to restrain the police from arresting him. This is evident from the prayer for relief where at paragraph 6 of the originating summons, the appellant sought an interim injunction against his arrest. Secondly, the appellant sought and obtained an interim injunction against his arrest. It was later discharged by Kariko J and is now the subject of the substantive appeal.

92. One of the reasons the single judge ordered the joinder was that there be a contradicter. The appellant and other respondents have used this ground to mount an argument that his Honour erred by granting joinder on this ground because it was not a consideration. We accept this submission. It is not whether there should be a different view expressed about the issues in contention between the parties but whether the interested party has an interest in the matter before the Court. However, we are not satisfied that this is a sufficient reason to overturn his Honour's decision.

93. What is significant though is this, as the substantive appeal is against the discharge of the interim injunction restraining further investigation and arrest of the appellant and the first respondent, one of the matters in dispute between the parties is the propriety of the proceeding in the National Court where a civil action is began to stop criminal investigations of persons suspected or charged with criminal offences. This issue arises in light of the past decided cases which held that Courts should not readily interfere with police carrying out a criminal investigation: Rimbink Pato v. Anthony Mundjin [1996] PNGLR 6 and very recently, Eremas Wartoto v. The State (2015) SC1411. In our view this is a threshold issue and goes to the exercise of jurisdiction by the National Court to deal with the matter.

94. The police officers' joinder, in our view is necessary to ensure that this threshold issue and all other matters in dispute between the parties in the substantive appeal can be effectively and completely adjudicated upon.

Conclusion

95. When all the circumstances of the case is considered, we are not satisfied that the sixth and seventh respondents can be categorised as meddlesome busy-bodies or strangers to the dispute before the Court. We find no error in the single judge's decision to join them in this appeal. We dismiss the appeal against their joinder with costs.

Order

96. The orders are:

1. The Notice of Motion of the appellant filed 10th April 2015 seeking orders for the removal of the sixth and seventh respondents as parties to this Appeal, is dismissed.

2. The appellant and the first, second, third, fourth and fifth respondents shall pay the sixth and seventh respondents' costs of and incidental to the said Notice of Motion, to be taxed, if not agreed.

_____________________________________________________________
Leo Lawyers: Lawyers for the Appellant
Twivey Lawyers: Lawyers for the First Respondent
Saulep Lawyers: Lawyers for the Second and Fifth Respondents
Paraka Lawyers: Lawyers for the Third Respondent
Tame Lawyers: Lawyers for the Fourth Respondent
Jema Lawyers: Lawyers for the Sixth and Seventh Respondents