HIGH COURT OF SO
ISLANDS
Civil Case No. 55 of 2000
SOLOMON ISLANDS
NATIONAL PROVIDENT FUND BOARD
ass=lass="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
v
SOLOMON ISLANDS
ELECTRICITY AUTHORITY
High
Court of Solomon Island
Before:
F. O. Kabui, J
Civil
Case No. 55 of 2000
Hearing:
9th March 2001
>
Ruling:
12th March 2001
J.
Apaniai for the Plai
A. Nori
for the Defendant
RULING
(KABUI
J): span>By summons filed on 18th 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.
<
/p>
The Facts
By a Writ of Summons, specially
indorsed, filed on 28th 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 2nd 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
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