Tapelu v Iolamo [2018] WSDC 8 (12 April 2018)

IN THE DISTRICT COURT OF SAMOA
Tapelu v Iolamo [2018] WSDC 8

Case name:	Tapelu v Iolamo
Citation:	[2018] WSDC 8
Decision date:	12 April 2018
Parties:	ALIIMUAMUA FAASEGA TAPELU of Lalomanu (First Plaintiff) & PENIAMINA TAPELU of Lalomanu (Intending Second Plaintiff) vs. LONOSE IOLAMO (First Defendant) & IOLAMA TALISOA SIU of Lalomanu (Intending Second Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa R Viane Papalii
On appeal from:
Order:	The application for joinder succeeds and I therefore order that the intending first Plaintiff and intending second defendant be joined as parties. This matter is adjourned to 17/04/18 at 2pm for the Defendant to file and serve on all parties all its documents including the counterclaim. Costs on this application is reserved.
Representation:	Plaintiff for Herself Ms N Schuster for Defendant
Catchwords:
Words and phrases:	Motion for Joinder – Strike out Motion
Legislation cited:	District Court Act 2016 Magistrate Rules 1971 Supreme Court Civil Procedure Rules 1980 rule 32 and 191
Cases cited:	Mataafa v MOR [2017] WSDC 21 Norman v Mathews (1916) 85 LJKB 857 Payne v British Time Recorder Co (1921) 2 K.B 1
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

ALIIMUAMUA FAASEGA TAPELU of Lalomanu
First Plaintiff

AND:

PENIAMINA TAPELU of Lalomanu
Intending Second Plaintiff

AND:

LONOSE IOLAMO
First Defendant

AND:

IOLAMA TALISOA SIU of Lalomanu
Intending Second Defendant

Representation:
Plaintiff for Herself
Ms N Schuster for Defendant

Hearing of Submissions: 6 April 2018
Ruling: 12 April 2018

RULING ON APPLICATION FOR JOINDER

INTRODUCTION

1. The Defendant filed a motion dated 27/11/17 for joinder of the intending second Plaintiff and second Defendant together with an affidavit in support by Iolama Talisoa Siu (“Iolama’s Affidavit”), the intending second Defendant upon the grounds as set out in the motion and Iolama’s affidavit. In response, the Plaintiff filed a strike out application dated 18/01/18. The matter was then set down for hearing on 6/04/18.

MOTION FOR JOINDER

2. The Defendant’s main ground for joining the intending parties is due to an allegation of assault and battery by the intending second Defendant. The circumstances of the alleged battery and assault are addressed in Iolama’s affidavit. The defence contends that it is crucial that the proposed parties be joined so the court can effectually and completely adjudicate the matter

Law on Joining Parties
3. The Defendant relies on Rule 32 and 191 Supreme Court Civil Procedure Rules 1980. It is noteworthy however that although there are no new Rules under the current District Court Act 2016, the Magistrate Rules 1971 still applies to this Court.

4. Rule 32 Supreme Court Rules replicates rule 12 Magistrate Rules which deals with orders joining parties and provides that:
   • “The Court may at any stage of the proceedings either upon or without the application of either party, and on such terms as appear to the Court to be just, order that the name of any party, whether a Plaintiff or Defendant, improperly joined be struck out, and that the name of any person who ought to have been joined, or whose presence before the Court may be necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the action, be added, whether as Plaintiff or Defendant.

Strike Out Motion

5. At paragraphs 1 and 2 of the Strike out motion, the Plaintiff objects to joining the intending parties upon the grounds as set out in a) to h). In sum she argues that her husband the second intending Plaintiff is away for educational purposes and she is bringing this claim on joint behalf.
6. For the second intending Defendant, she contends that it was only the current Defendant who was charged with the criminal offence arising from this incident forming the basis of her civil claim and in her view there is no reason to include him. She further argues that although the second intending Defendant deposes in his affidavit that he was the victim of assault and battery, he did not lay any criminal charges to prove it.

Law on Strike out Motion

7. The law on a strike out motion is well established in our jurisdiction.^[1] I had dealt with it in detail in Mataafa v MOR^[2] so I do not wish to traverse to it again suffice to say that there is inherent power in every Court to stay and dismiss actions or applications which are frivolous and vexatious and abusive of the Court’s process.^[3]
8. In any event, it is my view that the strike out motion by the Plaintiff is misconceived Read in its full context, the response is really an objection to the motion for joinder. I appreciate however that the Plaintiff is neither a lawyer nor is she equipped with the art of legal drafting.

ANALYSIS

9. Rule 12 set out above is clear. This Court has a discretionary power at any time of proceedings either upon or without an application of a party, to firstly strike out a person who has been misjoined as a party and secondly, joining a party.
10. Here, the current Plaintiff seeks to strike out the proposed parties; but they have not yet been joined as parties. So rule 12 is not of assistance to her as it applies to a person who has been improperly joined. She also argues that as there was no criminal charge brought against the intending second Defendant, then there is no need to allow him to be joined as a party. Again this is misconceived. Whether a criminal charge is brought, it does not preclude the intending second Defendant from bringing a civil claim against the Plaintiff and her husband. Both parties would still be required to call evidence to prove their claims on the balance of probability.
11. Rule 12 empowers this Court to join a person as a party as may be necessary to enable the Court to effectively and completely adjudicate upon and settle all questions involved in an action. In Payne vish Time Recorderorder Co^[4] Scrutton L.J. had this to say of the U.K. equivalent rule:

“It is impossible to lay down any rule as to how the discretion of the Court ought to be exercised. Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time the Court will allow the joinder... subject to its discretion as to how the action should be tried."

12. Iolama’s affidavit hints at filing a counterclaim against the Plaintiff and intending second Plaintiff for the tort of assault and battery. This was confirmed by Ms Schuster. This raises the question of whether separate actions should be filed?
13. It is my view that a person with a bona fide interest in a claim or proceeding has a right to be heard on it in one set of proceeding. Also where claims by or against different parties involve common questions of law or facts bearing sufficient importance in proportion to the rest of the action, then it makes sense that all matters be disposed of at the same time as opposed to separate proceedings relating to the same transaction. This would also avoid re-litigation of the same legal issues and facts and save time and resources.
14. Despite the objection by the Plaintiff, I have decided that it is conducive to justice in fact it would be the fairest step to take, that the intending parties be joined in this action. This will allow the parties to canvass their claims in one go thereby allowing the Court to come to a final outcome on the evidence and merits of each party's claim. I am also of the view there is no embarrassment or prejudice to the current Plaintiff if this is done given her intimation that she is bringing this action on her joint behalf with her husband.
15. I have one final comment to make. Towards the end of her submissions, the Plaintiff uttered words to the effect that she “does not want to waste her time of this rubbish”. I must remind you Aliimuamua that when you appear in this Court, you must give it the mutual courtesy and respect it deserves. Comments of that nature will not be condoned as it may well lead to my booking you in for contempt in the face of the Court.
16. You brought this action. It is anticipated there will be time delays. It is not about you only but the other side as well. It goes to the right to natural justice and fair hearing. Until all documents are filed and preliminary proceedings complete, only then will we proceed to the substantive hearing. There is no quick fix. So patience is a good virtue to have in civil matters of this nature. Please keep that in mind.

CONCLUSION

17. For the above reasons, the application for joinder succeeds and I therefore order that the intending first Plaintiff and second Defendant be joined as parties.
18. This matter is adjourned to 17/04/18 at 2pm for the Defendant to file and serve on all parties all its documents including the counterclaim.
19. Costs on this application is reserved.

JUDGE ALALATOA R VIANE PAPALII

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^[1] See Mataafa v MOR [2017] WSDC 21
^[2] Ibid
^[3] Norman v Mathews (1916) 85 LJKB 857 at 859
^[4] Payne v British Time Recorder Co⁵. (1921) 2 K.B 1 at 16.