Miriori v Daveona [2019] PGSC 69; SC1847 (12 September 2019)

SC1847

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 Appellant

AND
SPECIAL MINING LEASE OSIKAIYANG LANDOWNERS ASSOCIATION INC.
Second Appellant

AND
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: Yagi, Makail & Koeget JJ

2019: 29^th August &12^th September

SUPREME COURT – PRACTICE & PROCEDURE – Application for joinder – Joinder of parties – Addition of respondents to the appeal – Jurisdiction to grant joinder – Supreme Court Rules – Order 11, rules 11 & 25

SUPREME COURT – WORDS & PHRASES – “Court” – “Or” – “Judge” – “Courts” means full Court of the Supreme Court of Justice – “Or” is a word that joins words, phrases or sentences – “Judge” means a judge of the Supreme Court of Justice – Supreme Court Act – Section 1 – Supreme Court Rules – Order 1, rule 7 &Order 11, rule 11

Facts

Each of the four applicants applied to be added as a respondent to this appeal to a single judge of the Supreme Court pursuant to Order 11, rule 11 of the Supreme Court Rules (“SCR”).Each of their applications was denied. After an unsuccessful appeal application to the Supreme Court pursuant to Order 11, rule 25 of the SCR, each filed a further application to join to this Court pursuant to Order 11, rule 11 of the SCR.

Held:

1. The word “or”” in Order 11, rule 11 of the SCR is one of the English words that falls within the definition of a conjunction. A conjunction is a word that joins words, phrases or sentences. see Oxford Advanced Learner’s Dictionary 8^th edition at page 317. It is a word that is “used to introduce another possibility”. see Oxford Advanced Learner’s Dictionary 8^th edition at page 1071. It also means in the alternative.
   
2. The word “court” in Order 11, rule 11 of the SCR is not defined in the Supreme Court Act (“SC Act”) but the SCR. Under Order 1, rule 7 “Court means the full Court of the Supreme Court of Justice”.
   
3. The word “Judge” in Order 11, rule 11 of the SCR is consistently defined in Section 1 of the SC Act and Order 1, rule 7 of the SCR as a judge of the Supreme Court of Justice.
   
4. The combine effect of the words “court”, “or” and “Judge” in the context of Order 11, rule 11 is that, where a party seeks to be added as a party to an appeal, that party must make an election between making the application for joinder to the Court or a Judge. Where it is made to the Court, it is made to the “full Court of the Supreme Court of Justice” and where it is made to a Judge, it is made to a “judge of the Supreme Court of Justice”. In the former case, a full Court may comprise of three or more odd number of judges and in the latter, a single judge.
   
5. The consequence of this is that, where the party elects to have the application heard by a single judge and the application is denied, that is the end of the matter. That party is disentitled from making a further application to the full Court. A further application to the full Court after being denied by a single judge will constitute an abuse of process and the applicant will be guilty of abuse of process.
   
6. In the present case, each of the four applicants elected to apply to a single judge of the Supreme Court and having done that, had elected against bringing their applications to the full Court of the Supreme Court. Each of their applications was denied by the single judge. The consequence is that, it is the end of the matter and they are disentitled from making a further application to this Court using the same Rule (Rule 11). To bring a further application to this Court is an abuse of process.
   
7. Each of the applications for joinder was dismissed as being an abuse of process with costs, to be taxed, if not agreed.
   

Cases Cited:

Philip Miriori & Anor v. Lawrence Daveona & Anor: SCA No 27 of 2018 (Unnumbered & Unreported Judgment of 27^th February 2019 per Hartshorn, Nablu & Liosi JJ)

Counsel:

Mr. J. Mesa, for Appellants
Mr. B. Ovia, for Respondents
Mr. G. Geroro with Mr. W. Yep, for Applicants

RULING ON APPLICATION FOR JOINDER

12^th September, 2019

1. BY THE COURT: The dispute between the appellants and the respondents which led to the commencement of legal proceedings in the National Court was in relation to the legitimate Chairman of the second appellant Association. The first appellant Philip Miriori and the first respondent Lawrence Daveona each claimed to be the Chairman of the Association.

Mediation

2. The dispute was referred to mediation but along the way and after several mediation hearings held at Dapera village in Panguna on the island of Bougainville, the appellants withdrew from it, discontinued the National Court proceedings and signed an agreement with the respondents by way of a deed of settlement. They agreed that Philip Miriori be the Chairman of the Association and Lawrence Daveona be an advisor. Despite this, the proceedings returned to the National Court where the judge framed four questions for determination, one of which was whether or not mediation can proceed without the appellants who had withdrawn from it.

3. The applicants Joseph Nuasi Damana, Anthony Tapakau Tori, Steven Tampura Imora and Lucy Mangoma Bakamari are members of the Association and disapproved of the agreement and applied to join as defendants. Meanwhile, the appellants filed this appeal against the decision of the judge to progress the matter in the National Court contrary to their decision to discontinue it. As a result, the applicants’ joinder application was adjourned pending the outcome of this appeal.

First Application for Joinder

4. Following the filing of this appeal, on 10^th April 2018, each of the applicants filed an application to join in the appeal. Each application was made pursuant to Order 11, rule 11 of the Supreme Court Rules (“SCR”). On 18^th May 2018 Dingake J sitting as a single judge of the Supreme Court, refused the applications with costs.

5. Having failed with their applications, they made an appeal application to the full Court comprising of Hartshorn, Nablu &Liosi JJ pursuant to Order 11, rule 25 of the SCR against the refusal of their joinder applications by the single judge. This application was also denied by the Supreme Court on 27^th February 2019 on the ground that they were not a “party” within the meaning of a party in Order 11, rule 25 of the SCR and, therefore, lacked standing.

Second Application for Joinder

6. They now return to this Court with a further application for joinder. Each applicant’s application was filed on 10^th June 2019 and cites Order 11, rule 11 of the SCR as the jurisdictional basis of the Court to grant their applications for joinder.

7. Although not cited in each application, in the alternative, they rely on Order 11, rule 2(a) and (b) of the same Rules as conferring jurisdiction on this Court to allow each one of them to respond to the appeal. We will not consider the alternative application because it was not cited in the application notice. We will only consider the application based on Order 11, rule 11 of the SCR.

Jurisdiction to Grant Joinder

8. Before the Court can give consideration to the question of joinder, it must be satisfied that the applicants have correctly invoked the jurisdiction of the Court and that the process they have adopted does not constitute an abuse of process.

9. The Court’s jurisdiction on joinder of party is clearly spelt out in Order 11, rule 11 of the SCR. It states:

“11. The court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions.”

(Emphasis added).

10. The first key word in the above Rule to note is “or”. The word “or” is one of the English words that falls within the definition of a conjunction. A conjunction is a word that joins words, phrases or sentences. see Oxford Advanced Learner’s Dictionary 8^th edition at page 317. It is a word that is “used to introduce another possibility”. See Oxford Advanced Learner’s Dictionary 8^th edition at page 1071. It also means in the alternative.

11. The second key word to note is “court”. It is not defined in the Supreme Court Act (“SC Act”)but the SCR. Under Order, rule 7 “Court means the full Court of the Supreme Court of Justice”.

12. The last key word to make mention of is “Judge”. It is consistently defined in Section 1 of the SC Act and Order 1, rule 7 of the SCR as a judge of the Supreme Court of Justice.

13. The combine effect of the words “court”, “or” and “Judge” in the context of Order 11, rule 11 is that, where a party seeks to be added as a party to an appeal, that party must make an election between making the application for joinder to the Court or a Judge. Where it is made to the Court, it is made to the “full Court of the Supreme Court of Justice” and where it is made to a Judge, it is made to a “judge of the Supreme Court of Justice”. In the former case, a full Court may comprise of three or more odd number of judges and in the latter, a single judge.

14. Giving a narrow interpretation to Order 11, rule 11 such that an application for joinder is limited to one hearing is also consistent with its practical application. Unless expressly excluded by statute, eg. SC Act or the SCR, for ready access to a hearing, pursuant to Order 13, (Listing Rules), rules 1& 2(1) & (2) of the SCR, all interlocutory applications including joinder applications are heard by a single judge of the Supreme Court commonly referred to as the “Duty Judge” on a motions day. Such access is not ordinarily available if the application were heard by a full Court of the Supreme Court for obvious reasons. It would be quite difficult to constitute a full Court on short notice due to judges’ prior court listing commitments. Where an applicant for joinder is desirous of making a joinder application to the full Court, an election must be made between a full Court and the single judge. After all, a full Court or a single judge will end up exercising the same power conferred on each under Order 11, rule 11.

15. The consequence of this is that, where the party elects to have the application heard by a single judge and the application is denied, that is the end of the matter. That party is disentitled from making a further application to the full Court. In our view, a further application to the full Court after being denied by a single judge will constitute an abuse of process and the applicant will be guilty of abuse of process.

Present Application for Joinder

16. In the present case, each of the four applicants elected to apply to a single judge of the Supreme Court and having done that, had elected against bringing their applications to the full Court of the Supreme Court. Each of their applications was denied by the single judge. The consequence is that, it is the end of the matter and they are disentitled from making a further application to this Court using the same Rule (Rule 11). In our view, to bring a further application to this Court is an abuse of process.

17. Even an appeal application under Order 11, rule 25 is not available to an unsuccessful joinder applicant as ruled recently by the Supreme Court: Philip Miriori & Anor v. Lawrence Daveona & Anor: SCA No 27 of 2018 (Unnumbered & Unreported Judgment of 27^th February 2019 per Hartshorn, Nablu & Liosi JJ).In our view, Rule 25 and the Court’s ruling reinforces the view that it is not envisaged by Order 11, rule 11 that an appeal should be delayed because there are multiple applications for joinder by the same party to a judge or Court. It follows that the applicants’ quest to join must reach some finality so that the appeal can progress to a final hearing without delay.

Conclusion and Orders

18. In the result, the applications for joinder by Joseph Nuasi Damana, Anthony Tapakau Tori, Steven Tampura Imora and Lucy Mangoma Bakamari are dismissed as being an abuse of process. The applicants shall pay the costs of the applications, such costs, if not agreed, will be taxed.

Ruling and orders accordingly.
_______________________________________________________________
Corrs Chambers Westgarth Lawyers: Lawyers for Appellants
Buri Ovia & Associates: Lawyers for Respondents
Geroro Lawyers: Lawyers for Applicants