Kanaifiolo v Umai [1996] SBHC 51; HC-CC 158 of 1995 (27 September 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 158 of 1995

ter">DOUGLAS KANAIFIOLO AND PARTICK GWAIMAUA

-v-

GEORGE UMAI AND 3 OTHERS

Be Muria, ria, CJ

Hearing: 13 September 1996 at Auki - Judgment: 27 September 1996

Counsel: L. Kwaiga for Plaintiffs; P. y for Defendants

MURIA CJ:A CJ:

By their Notice of Motion filed on 24 January 1996 the defendants seek a number of orders, namely:

1. The plaintiffs' Motion of 7/6/95 be dismissed.
2. The plaintiffs as defendants to the counterclaim and their servants agents or contractors be restrained from felling extracting or milling or permitting the felling extracting or milling of any timber from FERA'ASUANOE customary land or parcel number 151-006-2 until trial or further order.
3. The plaintiffs provide an account of all moneys received or receivable from permitting the said operations by volume, species and value.
4. MAHLON BATALOFO and CHILION SUITI be added as plaintiffs as defendants to the counterclaim.
5. STEPHEN TONAFALEA and THOMAS LAE be discharged as defendants to the action.

The order sought in paragraph (1) is now unnecessary to consider as the plaintiffs Motion of 7 June 1995 had been withdrawn. The orders sought in paragraphs (2), (3) and (4) have been agreed to by both parties. As to paragraph (2), Counsel for the plaintiffs suggested that it should apply to both the plaintiffs and defendants. I take it that the parties have also agreed to that as no argument to the contrary had been raised by Counsel for the defendants. It is therefore necessary that I formally make the order sought and agreed to in paragraphs (2) which applies to both the plaintiffs and defendants. I also make the orders sought in paragraphs (3) and (4). The order sought in paragraph (5) is in issue and to that I shall now turn.

Mr. Lavery's argument is basically that the third and fourth defendants are not trustees to the Fera'asuanoe land-owning group who have perpetual title to Parcel No. 151-006-2. They are only signatories to the ANZ Bank Account No. 103 8035083201 which is an Account held in the name of Fera'abunaoe Fund. When they dealt with the said Account, they were only acting on instructions from the trustees.

Mr. Kwaiga on the other hand argued that while the third and fourth defendants were not trustees, they were responsible for the disposition of the fund ($85,000.00) in the said ANZ Bank Account. They are therefore in the same position as the first and second defendants in so far as the disposition of the $85,000.00 is concerned.

This is a very short point on whether the 3rd and 4th defendants should not be joined as defendants. A part from the argument that since they were not trustees the third and fourth defendants should not be made parties in this action, Mr. Lavery did not point to any authority to support his argument. The onus is on the defendant to show that they ought not to be made parties and therefore be discharged.

The rule governing joinder of defendants is provided for under Ord. 17 r 4 of the High Court (Civil Procedure) Rules which states:

"All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgement may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment."

By that rule, it is clearly open to the plaintiff to sue jointly all persons against whom a right to any relief or, I may add, a cause of action is alleged to exist. It does not say that the same relief or same cause of action need exist against each defendant before they can be joined. As long as the facts and the circumstances giving rise to the cause of action are common between the plaintiff and all the defendants, a joinder of all such defendants will be permitted. See Smurthwaite -v- Hannay [1894] UKLawRpAC 54; [1894] AC 494 where it was held that under the rule, similar to the above rule, defendants may be joined under the same conditions as the plaintiffs may be joined, that is to say, the action must arise out of the same transactions and there is a common question of law or fact between the plaintiff and the defendants. See also Richardson -v- Trautwein (1942) CLR 585 where Starke J. pointed out that a joinder is justified only where there is a common question of law or fact, and Birtles -v- Commonwealth [1960] VicRp 39; [1960] VR 247 where it was recognised that a joinder of defendant is limited by the requirements of a common question of law or fact.

In the present case the centre of dispute is that $85,000.00 which was paid by the Solomon Islands Government to the trustees of Fera'asuanaoe Land now registered as Parcel No. 151-006-2 and leased to the Commissioner of Lands for the use of National Agriculture Training Institute (NATI). The money was collected by the first and second defendants and deposited it in the ANZ Bank Account No. 103 8035083201 under the name Fera'abunaoe Fund instead of depositing it in the NBSI Account No. 0308210636012 under the name Fera'asuanaoe Family Fund which was opened by the plaintiffs, first and second defendants for the purpose of depositing monies derived from activities carried on in Parcel No. 151-006-2. The third and fourth defendants are the signatories to the said ANZ Bank Account. The four defendants had already withdrawn the $85,000.00 and the plaintiffs had no idea what the defendants have done with the money.

I have considered Mr Lavery's argument in this matter and on the facts as outlined, I can think of no good reason why the third and fourth defendants should not be added as defendants and have them answered for their part in this transaction or series of transactions. They are not trustees but in common with the first and second defendants, they must answer for their parts in the disposition of the $85,000.00. This issue of liability is what is common between the parties to be determined in this case, not whether the third and fourth defendants are trustees.

The application to discharge the third and fourth defendants is refused.

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ter">GJB Muria
CHIEF JUSTICE