HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE (Constitutional) NO. 195 OF 2000

BARTHOLOMEW ULUFA’ALU

-V-

THE ATTORNEY-GENERAL AND THE HON. MANASSEH SOGAVARE MP
AND THE HON. CHARLES DAUSEBA MP AND ANDREW NORI

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

CIVIL CASE (Constitutional) NO. 195 OF 2000

HEARING: 20TH JULY 2001
JUDGMENT (Interlocutory): 23RD JULY 2001

Patrick Lavery (Public Solicitor) for the Plaintiff
Attorney General
No appearance by the Second Respondent
No appearance by the Third Respondent
Andrew Nori in person

PALMER J.: There are two applications for consideration before this Court. One is an application for directions by the Applicant filed 17th July 2001, the other is an application of the Fourth Respondent by Amended Summons filed also on 17th July 2001 for inter alia, directions and joinder of other parties.

The Background

By Order dated 13th June 2001, this Court granted leave to the Applicant to issue a Notice of Motion under section 18(1) of the Constitution seeking redress inter alia, for the events, which occurred on 5th June 2001, which subsequently led to his resignation and the election of a new Prime Minister, the Second Respondent, on 30th June 2000. Following the granting of leave, the Applicant served the following documents on the Respondents:

(1)	First Respondent -

(a) Notice of Motion filed 15th June 2001.
(b) Notice of Application filed 5th June 2001.
(c) Order of the High Court filed 13th June 2001.
(d) Statement accompanying Application for Leave.
(e) Affidavits of Bartholomew Ulufa’alu filed 5th June, 12th June, and 18th June 2001.
(f) Affidavit of Daniel Enely Kwanairara filed 5th June 2001.
(g) Affidavit of Hugo Ragoso filed 5th June 2001.
(h) Affidavit of Walton Naeson filed same date. 
(i) Affidavit of Nelson Boso filed same date.
(j) Affidavit of Francis Billy Hilly filed same date. 
(k) Affidavit of Jimmy Mae filed same date.
(l) Affidavit of Paul Afafa filed 13th June 2001.
(m) Affidavit of Sir Baddeley Devesi filed 18th June 2001.

These documents were served on the First Respondent at 11.00 am on 19th June 2001 (see paragraph 1 of Affidavit of Roy Patrick Lavery filed 22nd June 2001).

(2)	Second Respondent - Documents (a) to (d) only were served at 2.00 pm on Wednesday 20th June 2001 (see paragraph 5 of same affidavit of Patrick Lavery).

(3)	Third Respondent - Same documents as (2) above were served by ordinary post on 25th June 2001 pursuant to an order of this Court dated 22nd June 2001 (see affidavit of Roy Patrick Lavery filed 20th July 2001)

(4)	Fourth Respondent - Same documents as (2) above were served at 3.00 pm on 19th June 2001 (see paragraph 3 of same affidavit of Patrick Lavery).

The Applicant did not serve the Second to Fourth Respondents with the affidavits listed in paragraphs (e) to (m) above (hereinafter referred to as “the Affidavits”). The Applicant relied on Rule 4(1) of Order 61A of the High Court (Civil Procedure) Rules 1964 (“the Rules”) and insisted on payment of reasonable charges (calculated at the rate of .50c per page) before serving copies of the affidavits on the Respondents (see paragraph 3 of letter dated 4th July 2001 marked as “Exhibit No: AN1” in the affidavit of Andrew Nori filed 10th July 2001). I quote:

“If however you require copies from us I have to rely on Order 61A which is explicit. Copies will be supplied on payment of a reasonable fee which I think I mentioned to you when I served you and is contained in my letter of 19/6/01. I have set the rate at .50c per page which I believe is reasonable. Of course if you have facilities available I can come to see you with the originals for you to copy.”

The fourth Respondent (who is a lawyer by profession) appearing in person, argues to the contrary that Rule 4(1) of Order 61A should be read in conjunction with Rule 13(1) of Order 9. He submits that because Rule 4(1) did not spell out how service was to be effected and how charges were to be drawn up it is necessary to have recourse to Rule 13(1). Rule 13(1) deals with service of a writ of summons.

“Service of a writ of summons, and of any petition, notice, order or other document of which service is required shall be made by a bailiff.”

He argues that where the Rule is silent as to service, Rule 13(1) should be applied. When that is done he argues the charges referred to in Rule 4(1) of Order 61A must necessarily mean the service charges of the Bailiff. He claims accordingly that because he has not been served and proper charges rendered, he asks this Court to order service to be effected in that manner.

Rule 4(1) of Order 61A 

Rule 4(1) of Order 61A states:

“Copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies of any affidavits accompanying the application for leave shall be supplied on demand and on payment of the proper charges, and no grounds shall, subject as hereafter in this Rule provided, be relied upon or any redress sought at the hearing of the motion except the grounds and redress set out in the said statement.”

The Fourth Respondent asks this Court to order the Applicant to serve him with copies of the Affidavits within seven days failing which the Notice of Motion be struck out. Rule 4(1) however makes a distinction between documents to be served and documents to be supplied. The former is mandatory whilst the latter is conditional. Documents to be served by the Applicant on the Respondents are copies of the statement accompanying the application for leave and the notice of motion. This the Applicant has done. Documents to be supplied however are dependent on two conditions being fulfilled; (1) on demand and (2) on payment of proper charges. These are the copies of affidavits accompanying the application for leave. The two conditions are to be fulfilled by the respondent not the applicant.

The Fourth Respondent has fulfilled the first part but not the second, though I accept it can be argued the proper charges have not been rendered.

The above construction is consistent with what Rule 4(3) of Order 61A says:

“Every party to the proceedings shall supply to any other party, on demand and on payment of proper charges, copies of the affidavits which he proposes to use at the hearing.”

The same standard or measure is applied to all parties and so there is nothing unfair or unjust about the requirement set out in Rule 4(1). When the respondents file their affidavits, the same measure or standard is applied to the Applicant; on demand and on payment of proper charges. It is possible however that parties may out of convenience consent with one another to have all their affidavits supplied and the question of proper charges sorted out at the end. The requirement in Rule 4(1) and (3) are rules of convenience and based on the view that all parties would be able to pay for any affidavits they may wish to use in the hearing, bearing in mind that it is possible not all the affidavits filed may be required by the respondents and vice versa.

As to the question of calculation of proper charges, that simply means in my respectful view the actual costs incurred in the production of those affidavits and associated costs.

JOINDER

The second crucial issue for determination in this case is the question of joinder of a third party comprising of the names of the persons listed in paragraph 2 of the affidavit of Andrew Nori filed 18th July 2001. These consist of members and commanders of the Malaita Eagle Force (“MEF”) amounting to 23 names, and members and commanders of the Paramilitary Force (16 names), consisting of members of the Police Field Force, Police Rapid Response Unit and regular members of the Police Force. Mr Nori relies on Rule 11 of Order 17 which provides:

“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. . . . .” 

Mr Nori submits that the orders sought from this Court in the Notice of Motion filed 5th June 2001 (“the Notice of Motion”) directly implicate the actions of the coup leaders, supporters and members of the MEF and the Paramilitary Force (hereinafter referred to as the “Joint Operation”). These are more specifically set out in paragraphs (a) (2) (i - x) of the Notice of Motion as well as the Statement accompanying the Application for Leave filed 5th June 2001(“the Statement”). At paragraph 2 - 5 of the Statement the following allegations are made:

“2. At about 3.30 a.m. on Monday 5th June 2000 the then Leader of the Opposition the Honourable Manasseh Sogavare led elements of the Malaita Eagle Force and the Paramilitary Police Field Force in a raid on the Royal Solomon Islands Police Armoury at Rove Police Headquarters and seized the property of Her Majesty’s Government of Solomon Islands and began a coup to overturn the said Government by force of arms.

3. Associated with the said Sogavare in the raid on the Rove Armoury and leadership of the coup were the Honourable Charles Dausabea MP, and Andrew Nori.

4. Between about 5 a.m. and 6 a.m. on the morning of Monday 5th June 2000 armed members of the Malaita Eagle Force, the Paramilitary Police Field Force, the Police Rapid Response Unit and regular members of the Police Force acting under the direction of the said Sogavare occupied the grounds of the Prime Minister’s residence and from that time deprived the Prime Minister of freedom of movement and unlawfully imprisoned him.

5. From 5th June onwards the said coup leaders and other supporters of the coup acting at the instigation and with the authority of the coup leaders demanded the resignation of the Prime Minister and Cabinet and made a range of threats to the Prime Minister and Cabinet members if they did not comply including threats of property damage, personal injury and death.”

Issues raised in the Cause

Apart from the allegations raised against the Second, Third and Fourth Respondents in their personal capacities, it is clear beyond doubt the Joint Operation is implicated as well. According to the allegations raised in the Statement, the so-called coup which occurred on 5th June 2000 was not carried out by the Second, Third and Fourth Respondents alone. It couldn’t have been done alone. It was carried out with the assistance of the Joint Operation. They were the men on the ground that carried out the coup on said day. In his affidavit filed 10th July 2001 Mr Nori deposes to a number of crucial matters. At paragraphs 10 - 11, he denies any political or personal affiliations or associations with the Second and Third Respondents. At paragraphs 12 - 20 he explained what his involvement and role was with the Joint Operation. This entailed in essence the role of legal counsel, spokesman and mediator. A number of exhibits have been attached to his affidavit in support of his contentions. If what he says is accepted by the Court, then the Joint Operation must be given opportunity to answer for itself as to its actions of the 5th June and subsequent events. I have considered the question whether Mr Nori has been sued in his representative capacity as legal counsel, spokesman and mediator, but it is clear that is not the case here. He has also been personally implicated as one of the leaders of the coup. The same goes for the Second and Third Respondents.

Should the Joint Operation be joined?

The crucial requirement in Rule 11 of Order 17 is:

“. . . that the names of any parties, . . . 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 . . . .”

Mr Nori referred to the case of Amon v. Raphael Tuck and Sons Ltd [1956] 1 All ER at 273 per Delvin J on the interpretation of the same rule in the Rules of the Supreme Court of England Order 16 rule 11:

“A defendant who seeks to join another defendant does not inevitably have to show that the new defendant will directly be affected by an order in the action as it is constituted. He may succeed if he can show that he cannot effectively 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 circumstances.”

Mr Nori also referred to Kabui J’s comments in Solomon Islands National Provident Fund Board v. Solomon Islands Electricity Authority Civil Case Number 55/2000 at page 3:

“It is a matter of discretion of 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.”

The link between Mr Nori and the Joint Operation or the Second and Third Respondents is not a casual one. The nexus is direct and real. The Joint Operation is as much responsible for the events of 5th June 2001 and subsequent events, as alleged in the Statement. To omit them in my respectful view would not do justice to this case. The allegations raised are serious and they too must be given opportunity to be heard. The orders sought too in the Notice of Motion have direct link with the activities of the Joint operation. They are the ones alleged to have breached the provisions of Sections 3, 4 and 5 of the Constitution. In my respectful view they ought to have been joined from the outset. Whether they wish to appear or not and whether they wish to be heard is a matter for them to decide. I am satisfied they ought to have been joined and I so order. As to whether they should be named individually, it is sufficient in my respectful view that they be sued in their representative capacity as Members of the Joint Operation. Those 39 persons named in paragraph 2 of the affidavit of Andrew Nori filed 18th July 2001 accordingly should be joined as the Fifth Respondent and described as “the Members of the Joint Malaita Eagles Force/ Paramilitary Force”.

Directions

It is important that further directions be made for the efficient progress of this case. That must include the service of the Affidavits on the Respondents on demand and payment of proper charges. I direct that any service to be effected within 7 days and an account of proper charges to be paid to be rendered at the same time service is effected. Any affidavits in response to be filed 30 days thereafter with liberty to apply for further directions.

The hearing date fixed for the 1st August 2001 accordingly must be vacated. The request for Further and Better Particulars at this point of time too must also be refused. It is possible this may not be necessary when the Affidavits are served. The Registrar is to fix a hearing date within 30 days thereafter on application by the Applicant. Notices requiring any deponents to be cross-examined should be given not less than 14 days before the hearing date.

I should add that at the hearing of these applications both the Second and Third Respondents were not present although they had been served. It is important they seek the services of a legal counsel immediately to ensure that their rights are being adequately represented before this Court. The directions issued by this Court apply equally to them as well. For instance if they wish to be supplied with the Affidavits then a demand must be made and payment of proper charges effected or an undertaking issued to pay the proper charges when rendered.

ORDERS OF THE COURT:

1.	Vacate hearing date of 26th July 2001 fixed for the Amended Summons filed 17th July 2001 and bring forward to 20th July 2001.

2.	Vacate hearing date of 1st August 2001 fixed for the Notice of Motion.

3.	Join as the Fifth Respondent ‘the Members of the Joint Malaita Eagles Force/ Paramilitary Force’ (“the Joint Operation”) as the entity representing all the 39 persons named in paragraph 2 of the affidavit of Andrew Nori filed 18th July 2001.

4.	Direct that in the meantime service of documents on the Fifth Respondent to be effected on Messrs Andrew Nori, Barrister and Solicitor until a separate legal counsel is instructed to represent the Joint Operation.

5.	Applicant to serve the Notice of Motion filed 15th June 2001 and Statement accompanying Application for Leave on the Fifth Respondent within 7 days as well as any affidavits filed in support of the Application for Leave on demand and on payment of proper charges. 

6.	Applicant to serve the Affidavits on the Fourth Respondent within 7 days and an account of proper charges for payment to be rendered at the same time.

7.	Any demands for the supply of the Affidavits by the Second, Third and Fifth Respondents must be made within 7 days herewith and proper charges to be paid when accounts rendered or by agreement between the parties. 

8.	All affidavits in reply to be filed within 30 days thereafter and to be served on any other party on demand and on payment of proper charges.

9.	The Registrar to fix a hearing date within 30 days thereafter.

10.	Liberty to apply on two days notice.

11.	Costs in the cause.

THE COURT.