st
Counsel: C Ashley for the plaintiff - A Nori for the 1st
Defendant; B Titior the 2nd Defendant
JUDGMENT
LUNGOLE-AOLE-AWICH, J: On 14.5.1997 after hearing application of Gold Ridge
Mining Limited for order that it be joined as defendant
in
this case between Gordon Billy Gatu, plaintiff, and
Solomon Islands Electricity Authority and Minister for
Energy,
Mines and Mineral, first and second defendants
respectively, the court allowed the application, and
reasons were
filed. These are the reasons.
The plaintiff, in very wordy originating summons,
asked the court to declare that revocati his
appointment as Chairman
on the board of the fthe first
defendant and appointment of a new chairman were unlawful
and void. That is the
key relief in as far as the
personal interest of the plaintiff is concerned. Together
with that key cause the plaintiff
sought several other
declarations; they were that appointment of certain new
members were unlawful, that the composition
of the new
board is unlawful because there were more than 2 public
officers, and that the resolution of the board
granting
licence to Gold Ridge Mining Limited, (the applicant),
was unlawful. Unfortunately the declarations sought
were
enumerated together with material facts and the laws to
be considered and so in the end the whole claim reads
like questions in a brief for expert opinion. I was
however able to identify reliefs that concern the
plaintiff.
The applicant, Gold Ridge Mining Limited has applied
to be joined as defendant. Its application is governed by
Order
17 of the Rules of Civil Procedure in the High
Court, and in particular at rule 11 which states:
"11. No cause or matter shall be defeated by
reason of the misjoinder or non-joinder of parties,
and
the Court may in every cause or matter deal with
the matter in controversy so far as regards the
rights
and interests of the parties actually before
it. The Court may, at any stage of the proceedings,
either
upon or without the application of either
party, and on such terms as may appear to the Court
to be just,
order that the names of any parties
improperly joined, whether as plaintiffs or as
defendants, be struck
out and that the names of any
parties, whether plaintiffs or defendants, who ought
to have been joined,
or whose presence before the
Court may be necessary in order to enable the Court
effectually and completely
to adjudicate upon and
settle all the questions involved in the cause or
matter, be added. No person shall
be added as a
plaintiff suing without a next friend, or as the next
friend of a plaintiff under any disability,
without
his own consent in writing thereto. Every party whose
name is so added as defendant shall be served
with a
writ of summons or notice in manner hereinafter
mentioned, or in such manner as may be prescribed
by
any special order, and the proceedings as against
such party shall be deemed to have begun only on the
service of such writ or notice."
The main consideration here is whether joining the
applicant is of any advantage in enabling the court to
effectually
and completely adjudicate upon the questions
raised by the plaintiff, and whether prejudice is not
likely to arise
to the parties, in this case, to the
plaintiff. Learned counsel Mr. Ashley for the plaintiff
submitted that the
applicant and many have interest in
the subject of the suit, but it is entirely upto the
plaintiff to decide who
he will sue. I do not think
counsel is accurate. While it is largely within the
choice of the plaintiff as to who
he sues, once he has
commenced his case, he is not entirely free to choose.
Order 17 rule 11 quoted above states
that parties may be
joined and it may be on application or simply by court's
own discretion. The rule, in my view,
is a rule of
convenience; it serves to avoid multiplicity in suits on
the same facts and questions of law, but
between
different persons. Learned counsel Mr. Radclyffe provided
useful materials on the law and cited useful
persuasive
cases. I agree with him that the plaintiff, by its
correspondence, released to the press and more
importantly by paragraphs 6 and 8 in the originating
summons, has acknowledged issues that affect the rights
of the applicant. In this case it cannot be pretended
that parts of the facts do not concern the applicant and,
that parts of the questions of law if answered, do not
affect the right of the applicant. The plaintiff
formulated
its paragraphs 6 and 8 in the originating
summons in such a way that it becomes necessary to join
the applicant
in order for the court to effectually and
completely adjudicate upon questions raised therein. That
is because
the plaintiff seeks in those paragraphs that
the court declares the resolution of the first defendant,
granting
licence to the applicant void. The application
succeeds and it is ordered that the applicant, Gold Ridge
Mining
Limited be joined as a defendant in this suit, No.
CC59/97. The plaintiff is to serve all pleadings so far
on the
applicant, if it has not done so, within 7 days
from the date of despatch of this judgment to it. Further
proceedings
to proceed with the applicant named as
defendant. and in normal course.
Mr. Radclyffe raised the question as to whether the
terms of the originating summons are in compliance with
the
rules of pleading. He went as far as asking for
dismissal of the summons. It was not the time to hear
such application.
That does not affect the question of
costs because his application dated 29.4.1997 filed the
same day, was limited
to joinder which the applicant has
succeed in. Costs of this application is awarded to the
applicant against the
plaintiff only, in any event.
Dated this 21st day of July 1997
At igh Court, Honiara
Sam
Lungole-Awich,
Judge
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