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Lolo Development Corporation Ltd v Agara [2019] PGNC 24; N7695 (19 February 2019)

N7695
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 778 of 2015

LOLO DEVELOPMENT CORPORATION LIMITED
First Plaintiff

And
DAVID NASAR as Chairman of the First Plaintiff
Second Plaintiff

V
JOE AGARA
First Defendant

AND
JOE NAIPU
Second Defendant

Kimbe: Miviri AJ
2018: 09^th &15^th November

PRACTISE & PROCEEDURE – Joinder Application – Whether sufficient interest to join –consolidation of proceeding – necessary for an effective determination of issues raised – material filed support joinder – balance discharged on probabilities – application granted – costs in the cause.

Cases Cited:
Papua New Guinea Cases

Application by John Mua Nilkare, Review Pursuant to S155(4) of the Constitution [1998] PNGLR 472
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
AGC (Pacific) Ltd v Kipalan [2000] PGNC 4; N1944

Overseas Cases

Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA

Counsel:

F. Kua, for Plaintiff Applicant

P. Mokae, for Defendants

RULING

19^th February, 2019

1. MIVIRI, J: This is the Ruling of the Court on an Application by Amended Notice of Motion filed 25^th May, 2018 by Mark Sakail to be joined as third defendant and Moses Aitong to be joined as fourth defendant in this proceeding. Reliance is placed upon Order 5 Rule 2 of the National Court Rules, “The Rules” and Section 155 (4) of the Constitution for leave to be granted them to be joined. The latter is jurisdictional basis for unfettered discretion to fashion orders that will ‘do justice’ which is just and fair. And Justice is not narrow but as set called out by the material filed in support not without nor narrowly called: Application by John Mua Nilkare, Review Pursuant to S155(4) of the Constitution [1998] PNGLR 472 (15 April 1997)
   

Order 5 Rule 2

2. Order 5 Rule 2 of the Rules is in the following terms: “Joinder of parties generally. (8/2)

Two or more persons may be joined as plaintiffs or defendants in any proceedings—

(a) where—

(i) if separate proceedings were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and

(ii) all rights to relief claimed in the proceedings (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b) where the Court gives leave to do so.

Law

3. The most important test for Joinder of Parties are: (a) whether the Applicant has sufficient interest in the proceedings; and (b) whether the applicant’s joinder as a party is necessary to ensure that all matters in the proceedings can be effectively and completely adjudicated upon: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010).
   
4. The underlying rational is, "It is a fact of life that often a case will involve more than one plaintiff or defendant, and more than one cause of action. Thus, the foregoing rules ...have been developed as to the appropriateness of joining various parties and causes of action so as to ensure that all proper and necessary parties are able to be joined...It is useful to note for our present purposes (and assistance) the impact of the Australia High Court decision in Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA, which is that: a party will be estopped from bringing any further action that arises out of the same subject matter as an earlier action. This decision emphasizes the importance of the doctrine of res judicata, as operating to prevent prejudice and unfairness to a party, more particularly a defendant, being burdened and saddled with multiplicity of allegations and claims to answer. The doctrine also operates to confirm the twin doctrines of finality and certainty in judicial decision-making process.

In all cases of joinder, whether simply of causes of action or also parties, the Court retains the discretion to join or sever (if already joined) if the interests of justice demand so. .

There is generally much merit in joining all possible defendants to avoid bringing separate proceedings against each and failing against each. On a tactical level, if all possible defendants are joined, often each will tend to run a case designed to show that another defendant is liable. The rules also provide for alternative plaintiffs if there is some issue as to proper plaintiff. For example, in some commercial litigation it may not be certain which legal entity actually entered into a transaction, AGC (Pacific) Ltd v Kipalan [2000] PGNC 4; N1944 (24 February 2000).”

Evidence

5. Having set out the law what is the evidence relied on by the Applicants. They rely on the Affidavit of Mark Sakail sworn the 25^th May, 2018 filed the 25^th May, 2018. He swears that he has been involved in the First Plaintiff because he is a Director. And that on the 3^rd July, 2015 Second Plaintiff was appointed Director also of the first plaintiff and chairman and former directors David Sui as director and Managing Director. The present Originating Summons has been filed because the Defendants have been disturbing the operations of the First Plaintiff so former chairman David Nasar instituted this proceeding against the Defendants. And pursuant the Kimbe National Court granted the orders restraining the Defendants both from disturbing the Company operations altering its records including ordering the registrar of Companies to maintain restriction on the company file of First Plaintiff and to uplift to allow any lawful changes to be made. It was never served the registrar.
   
6. A circular resolution was passed by the shareholders of the Company on the 30^th June, 2016 pursuant to which they changed the management of the Company First Plaintiff to allow for an Annual General Meeting to be convened. Inclusive too was the removal of Director David Sui, Edward Aisipel and Alphonse Airogo. In their place were inserted new chairman Mark Sakail, Willie Aitule Deputy chairman, Moses Aitong as secretary and Tony McKinnon as General Manager. And pursuant the records of the registrar of Companies Investment Promotion Authority were changed 04^th July, 2016. New Management caused notice to be published in the media on 7^th July, 2016 for an annual general meeting to be convened as there had been none since 2011.
   
7. But before this could happen, David Sui served the order he had earlier obtained but not served on IPA reverting what was done by the circular resolution. Both applicants pray leave to be joined to come before the court in the proceeding current instituted and titled above to voice this as they are parties to the matter and have sufficient interest in the matter to be heard.
   

Second Plaintiff’s Objection

8. Through Counsel Second Plaintiff has opposed the joinder arguing and relying on his own affidavit sworn and filed the 10^th May, 2018 that Applicants do not have sufficient interest to warrant leave to be granted to join. What they contend is personal and they do not have the standing to pursue. It is an administrative matter with the company that can be addressed at board level. He relies on the recent company extract to this effect.

Issue

9. I ask myself have the Applicants shown on the balance of probabilities that they have sufficient interest in the proceeding?
   

Facts here

10. In contrast I am satisfied on the material filed read with the law that sufficient interest has been made out to join by the applicants Mark Sakail and Willie Aitule; they are not strangers to the dispute. They are not if it can be used “Busy bodies intent on their own enlightenment or amusement,” but persons who have sufficient interests in the proceedings and the matter as a whole. I find no reason apparent or identifiable by due prudence to deny the application made by the applicants. Further I adjudge that it would be in the interest of all including the parties already on record and in the proceedings named as parties for the applicants Mark Sakail and Willie Aitule to joined as they contend it will bring finality to the matter. In so doing it would avoid duplication of proceedings on the same matter which can be effectively disposed justice fair and square all who must be heard is heard and accorded due in law and fact. There are common issues questions of law and fact by all together to be settled once and for all to allow the first plaintiff to continue to serve the shareholders. In my view there are two processes of law that has come out from both sides of the dispute illuminated by the facts that necessarily involves the applicants and the defendant’s plaintiffs before the court. It would be necessary to have all joined to iron out and to move on with the first plaintiff a common denominator beneficial to all the parties including the applicants and generally the people in that area of the Province.
    
11. Accordingly the Application is granted the amended motion dated the 25^th May, 2018 in the terms as sought that the Applicant Mark Sakail is joined as Third Defendant and Moses Aitong is Fourth Defendant in these current proceedings before court.
    
12. Costs in the cause.
    
13. Time for entry of the orders to be abridged to the time of settlement by the registrar which shall take place forthwith.
    

Orders Accordingly.

__________________________________________________________________

Felix Kua Lawyers : Lawyer for the Plaintiff/Applicant

Justin Talopa Lawyers : Lawyer for the First Defendant