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Miriori v Daveona [2018] PGSC 19; SC1674 (16 March 2018)

SC1674

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCA NO: 27 OF 2018


BETWEEN
PHILIP MIRIORI as Chairman of the Special Mining
Lease Osikaiyang Landowners Association Inc.
First Applicant


AND
SPECIAL MINING LEASE OSIKAIYANG
LANDOWNERS ASSOCIATION INC.
Second Applicant


LAWRENCE DAVEONA as the Former Chairman of the
Special Mining Lease Osikaiyang Landowners Association Inc.
First Respondent


AND
DENNIS NASIA as the Former Public Officer of the
Special Mining Lease Osikaiyang Landowners Association Inc.
Second Respondent


Waigani: Dingake J
2018 : 16th March


SUPREME COURT – Requirements for Joinder – Applicant must prove sufficient interest in the proceedings and that joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.


Cases cited:
Papua New Guinea Cases


PNG Deep Sea Fishing Ltd v Critten (2010) SC 1126;
Kara v Public Curator of Papua New Guinea (2010) N4048;


Overseas Cases


Dollfus Mieget Compagnice S.A. v Bank of England 1951 1 Ch. 33.


Counsel:


Phillip Miriori in person
No appearance, for Respondents.
Mr. Buri Ovia, for Joinder/Applicant


16th March, 2018


  1. DINGAKE J: This is an application for joinder by the applicants’ who seek to be joined as respondents to this appeal, arising out of the National Court Proceedings in OS No. 452 of 2017 (CC2) – Philip Miriori as Chairman of Special Mining Lease Osikaiyang Landowners Inc. & Another v Lawrence Daveona as former Chairman and Dennis Nasia as the former Public Officer of the Special Mining Lease Osikaiyang Landowners Inc. & Another.
  2. Their application, filed on the 10th April, 2018, is brought in terms of Order 11 Rule 11 of the Supreme Court Rules 2012.
  3. The applicants are:
  4. The application is supported by the supporting affidavits of all the applicants mentioned above.
  5. In order to appreciate the issues canvassed in this application, it is important to outline brief background facts.
  6. On or about the 8th of May, 2017, the appellants, Philip Miriori (first plaintiff) as Chairman of the second plaintiff and Special Mining Lease Osikaiyang Landowners Inc. (second plaintiff) brought proceedings OS No. 452 of 2017 (CC2) against, Lawrence Daveona, former Chairman of the second plaintiff (first defendant) and Dennis Nasia as former Public Officer (second defendant).
  7. In the above matter the appellants sought final orders restraining the first and second defendants, not to hold an Annual General Meeting or to purport to hold an Annual General Meeting of the second plaintiff on the 10th of May, 2017, and that the first plaintiff is at liberty to proceed with the Annual General Meeting of the second plaintiff on the 15th of May, 2017, in accordance with his notice dated the 20th April, 2017 for the AGM of the second plaintiff to be held on the 15th of May, 2017.
  8. The National Court, per Kandakasi J, ordered the matter to go for mediation.
  9. Several mediation sessions were held, but no successful conclusion was reached because of a number of reasons, including the fact that first appellant withdrew from the mediation, complaining that the mediation was not being conducted fairly.
  10. It would seem that on the 12th December, 2017, the parties to the National Court Proceedings signed a Deed of Settlement with respect to the proceedings, thereby resolving the issue of who was legally appointed the leader of the second applicant and drafted Consent Orders for endorsement by the National Court.
  11. The Court, per Kandakasi J, declined to endorse the Consent Orders on the basis that the mediation was not over.
  12. It must be borne in mind that at all material times hereto, Kandakasi J, was the Mediator and the primary Judge in the National Court seized of the matter.
  13. On the 13th of November, 2017, the appellants filed a notice of discontinuance, discontinuing the National Court Proceedings.
  14. On the 19th of December, 2017, the National Court made directions for the parties to return to mediation on the 29th of January, 2018.
  15. The parties were not agreed on whether mediation could continue having regard to the Deed of Settlement and the notice of discontinuance.
  16. In consequence of the disagreement, the National Court, on the 5th of February, 2018, framed four (4) questions which were to be brought before another Judge.
  17. The questions framed by the Court related to the effect of the appellants’ withdrawal, discontinuance and alleged resolution of the dispute on the court ordered mediation.
  18. The Court also directed that all joinder applications filed by interested parties should also be determined.
  19. The questions referred to above, including the joinder application, were to be heard by Shepherd J, before the matters return to the primary judge herein (Kandakasi J). This matter was handed over to me on account of the unavailability of Shepherd J.
  20. This ruling relates to the joinder application only.
  21. The full order issued on the 5th of February, 2018, which the appellants have sought and obtained leave to appeal to the Supreme Court is in the following terms:
  22. In their notice of appeal the appellants seek the following relief:
  23. The issue that falls for determination is a narrow one. It is whether the applicants have met the requisite test to be joined on appeal.
  24. The test whether a party should be joined on appeal are:
  25. In deciding whether the above test has been met it is imperative for the court to have regard to the cause of action pleaded (PNG Deep Sea Fishing Ltd v Critten (2010) SC 1126).
  26. Furthermore, in considering whether the above test has been met, certain factors warrant consideration. These include whether:
  27. The evidence of the four (4) applicants in support of the joinder application is similar, if not identical, and may be summarized briefly.
  28. All the applicants claim to have interest in the land within the Special Mining Lease and that they are members of the Special Mining Lease Osikaiyang Landowners Association Inc.
  29. The applicants also aver that they don’t recognise the agreement between the parties in OS No. 452 in relation to the position of Chairman of the Special Mining Lease and that they object to a decision by the current parties taken without consultation. They also pronounce themselves to be in favour of the continued mediation.
  30. Applying the principles set out in the PNG Deep Sea Fishing Ltd and Kara cases cited earlier, I am of the considered view that although the applicants may have some interest as members of the second plaintiff, they have not demonstrated sufficient interest in the appeal more particularly if regard is had to the fact that they were not parties to the National Court proceedings that led to the appeal now mounted by the appellants.
  31. Furthermore, the applicants have not alleged and proved by evidence that their joinder is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.
  32. More significantly, the appellants seek no relief, against the four (4) applicants. Consequently, the applicants will not be affected if the relief sought in the statement of claim is granted.
  33. The applicants do not allege and prove that the joinder is necessary to satisfy any orders that may be made on appeal.
  34. I have also taken into consideration that the plaintiffs oppose this application for joinder; and that the applicants’ joinder is not necessary to satisfy orders made in the proceedings.
  35. In addition to the above considerations, I agree with the views of Wynn Parvy J, in the case of Dollfus Mieget Compagnice S.A. v Bank of England 1951 1 Ch. 33, to the effect that, generally, a plaintiff who conceives that he has a cause of action against the defendant is entitled to pursue his remedy against the defendant alone and cannot be compelled to proceed against other persons who he has no desire to pursue.
  36. In the result:

The Applicant in person
No Appearance for the Respondents


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