Solomon Islands National Provident Fund Board v Solomon Islands Electricity Authority [2001] SBHC 12; HC-CC 055 of 2000 (12 March 2001)

HIGH COURT OF SO ISLANDS

Civil Case No. 55 of 2000

SOLOMON ISLANDS

NATIONAL PROVIDENT FUND BOARD

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SOLOMON ISLANDS

ELECTRICITY AUTHORITY

High Court of Solomon Island

Before: F. O. Kabui, J

Civil Case No. 55 of 2000

Hearing: 9^th March 2001

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Ruling: 12^th March 2001

J. Apaniai for the Plai

A. Nori for the Defendant

RULING

(KABUI J): span>By summons filed on 18^th January 2001, the Defendant sought the following orders-

1. &nbbsp; pan/span>The AThe Attorney General be joined as a party to this action on behalf of the Minister of Finance; andn>

2. &n Costs to beto be in the cause.

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/p>

The Facts

By a Writ of Summons, specially indorsed, filed on 28^th February 2000, the Plaintiff claimed against the Defendant the total sum of $16,323,058.51 plus interest as being monies owing to it from the Defendant. The Plaintiff also sought consequential orders therein. The number of loans obtained by the Defendant are eight in number. Loans Nos. 3,4,5 and 8 were guaranteed by previous Ministers of Finance of this country. On the strength of these guarantees, these loans were disbursed to the Defendant for its use.

The Defendant’s Summons

b> Counor the Plaintiff, Mr. Apaniai, attacked the Defendant’s Summons as being unproceduraldural in that such an application by the Defendant’s should have been made under Order 18 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules) and not under Order 17 of the same Rules. That is to say, the Defendant should have applied third party procedure under Order 18 of the High Court Rules if it had a claim against the Minister of Finance. Counsel argued that by coming to Court under the guise of Order 17 of the High Court Rules was nothing more than an abuse of the Court process just as much as the Defendant’s application was frivolous and vexatious. Counsel argued that this being the case, the Defendant’s application should be struck out. Counsel for the Defendant, Mr. Nori, on the other hand, argued that Order 17 of the High Court Rules was not restrictive in its intent than Order 18 of the same Rules would seem to be. That is to say, any Defendant can apply under Order 17 above to the Court for any person who is not already a party to a cause of action to be added as a Co-Defendant. Counsel cited no case authority for this argument nor under which rule in Order 17 above his argument was being based.

There is however a decided case on this point. The case is v Raphael Tuck & Sons Ltd [1956] 1 AER 273. This case was about Mr. Amon being the Plaintiff suing the Defendants, claiming as injunction and damages for breach of contract. Mr. Amon claimed that he was the inventor of a new design of adhesive dispenser in the shape of a pen known as “Fastik pen”. He disclosed the “know how” to the Defendants during the course of negotiation for an agreement whereby the Defendants would market the pen. The negotiation failed to reach conclusion. Mr. Amon alleged that the Defendants had breached an implied contract of confidentiality of information by manufacturing an adhesive dispenser called “Stixit” displaying three features of the “Fastik pen”. The Defendants before filing defence applied for leave to join Mr. Dachinger who claimed that he was the inventor of the Stikit pen. The Plaintiff opposed it. In fact, Mr. Dachinger had expressed willingness to be joined as a co-defendant. Delvin,J. in his judgment allowed the appeal and ordered that Mr. Dachinger be added on the ground that Mr. Dachinger had a legal right which could be adversely affected. That case is an authority for the proposition that a defendant may apply to the Court for leave to add a co-defendant in a cause of action even without the consent of the Plaintiff. The Defendant had applied under the Rules of the Supreme Court of England which is the equivalent of our Order 17, rule 11 of the High Court Rules. Speaking of a defendant, Devlin J. at page 290 said

“ Likewise, a defendant who seeks to join another defendant does not inet inevitably have to show that the new defendant will be directly affected by an order in the action as it is constituted. He may succeed if he can show that he cannot effectually set up a defence which he desires to set up unless the new defendant is joined with it, or unless the order made binds the new defendant. It is not that the construction of the rule is, and must be, the same in all circumstances; but the test that is appropriate to determine whether a party is necessary or not may vary according to the circumstances.”

So there is no hard and fast rule about the circumstances whic attract an order being madg made in favour of a defendant applying for leave to add another defendant, as co-defendant. It is a matter of discretion for the Court. There must of course be a legal connection between the defendant’s case and the proposed or intending co-defendant to the extent that they would be bound together in their defence. Devlin, J. again at page 287 said

“ The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.”

This case

Paragraph 4 of the Plaintiffs Amended Statement of Claim clearltes the fact that Loans Noss Nos. 3,4,5, and 8 were guaranteed by the previous Ministers of Finance acting under the provisions of the Public Finance and Audit Act (Cap. 120). There were 4 contracts by guarantee in place in favour of the Plaintiff. These facts do establish that there is a legal connection between the Defendant and the Minister of Finance on behalf of the Government. That connection is the common liability of both for the repayment of Loans Nos. 3,4,5 and 8. I think, the Attorney-General should be joined as the 2^nd Defendant in the proceedings against the Defendant. The Attorney-General is a relevant party to those proceedings. The Defendant’s application therefore succeeds. I accordingly grant the application. Costs be in the cause.

(Kabui J)

Judge