SC1539
  PAPUA NEW GUINEA 
[IN THE SUPREME COURT OF JUSTICE] 

  SCA No. 7 OF 2016

BETWEEN:

HONOURABLE PETER O’NEILL, 
PRIME MINISTER OF PAPUA NEW GUINEA
Appellant

AND:
NERRIE ELIAKIM 
CHIEF MAGISTRATE
First Respondent

AND:
THE INDEPENDENT STATE OF 
PAPUA NEW GUINEA
Second Respondent

AND:
MATTHEW DAMARU & TIMOTHY GITUA 
as the Director & Deputy Director of National 
Fraud & Anti-Corruption Directorate
Third Respondents

AND:
GEOFFREY VAKI, 
COMMISSIONER OF POLICE in his capacity 
		as the Police Commissioner of PNG
Fourth Respondent

AND:
GARI BAKI,
in his capacity as the Police Commissioner of PNG
Fifth Respondent

Waigani: Kandakasi, Hartshorn & Kassman JJ
2016: 2nd ,29thSeptember

APPEAL against joinder of parties to an application for judicial review 

Cases cited: 

Alex Timothy v. Francis Marus (2014) SC1403 
Curtain Bros (PNG) Ltd v. UPNG (2005) SC788 
Herman Gawi v. PNG Ready Concrete (1983) unnumbered, unreported 
Isaac Lupari v. Sir Michael Somare (2010) SC1071
James Marape v. Peter O’Neill (2015) SC1458
Mek Kuk v. Peter O’Neill (2014) SC1331 
Peter O’Neill v. Nerrie Eliakim (2016) SC1522
PNG Power Ltd v. Ralph Gura (2014) SC1402 
Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45 
Powers and Functions of the Commissioner of Police (2014) SC1388 
Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016
State v. Sam Akoita & Ors (2009) SC977
Timbani Longai v. Steven Maken (2008) N4021
Titi Christian v. Rabbie Namaliu (1996) OS no. 2 of 1995, delivered on 18th July 1996
Watt (formerly Carter) v. Ahsan [2007] UKHL 51  

Counsel:

Mr. M.M. Varitimos QC, Mr. D. Kipa and Mr. J. Sioni, for the Appellant
Mr. R. Saulep, for the First and Second Respondents
Mr. I.R. Molloy and Mr. C. Wara, for the Fifth Respondent 
Messrs M. Damaru and T. Gitua ,Appeared in person as the Third Respondents

29th September, 2016:

1.   BY THE COURT: This is a decision on a contested appeal from a National Court decision that joined the third respondents, Messrs Mathew Damaru and Timothy Gitua in the National Court proceeding. That National Court proceeding is an application for judicial review (judicial review proceeding). It seeks to judicially review the decision of the first respondent, the Chief Magistrate Ms. Nerrie Eliakim, to grant a warrant of arrest against the appellant, Hon. Peter O’Neill, the Prime Minister.

2.   The appeal is supported by the first, second and fifth respondents and opposed by the third respondents. The fourth respondent did not enter an appearance in the appeal.

Background

3.   On 18th July 2014, the National Court granted leave to the appellant to judicially review the decision of the first respondent as a District Court Magistrate dated 12th June 2014 to grant a warrant of arrest against him.

4.  On 2nd December 2015, the National Court ordered that the fifth respondent be joined as the third plaintiff in the judicial review proceeding consequent upon his appointment as Commissioner of Police in place of the fourth respondent who had ceased to hold office and to take an active interest in the proceeding.

5.  On 7th December 2015, upon application by the third respondents pursuant to Order 5 Rule 8(1) National Court Rules the National Court ordered that the third respondents be joined as third defendants in the judicial review proceeding (joinder decision). The third respondents’ application for joinder had been opposed by the appellant and the second and fifth respondents on jurisdictional and other grounds. 

6.   On 23rd February 2016, leave to appeal the joinder decision was granted.

This appeal

7.   In essence the grounds of appeal are that the National Court erred in:

a)	accepting the notice of motion for joinder as the applicants had failed to properly engage or invoke the jurisdiction of the Court;

b)	ordering the joinder of the third defendants in circumstances where the Royal Papua New Guinea Constabulary was already represented in the proceedings by the Police Commissioner;

c)	allowing the joinder of the third defendants on the basis of res judicata.

8. The third respondents contend that the appeal should be dismissed as:

a)	an application for joinder in a judicial review proceeding commenced by Order 16 National Court Rules is able to be made by reliance upon Order 5 Rule 8 National Court Rules;

b)	the issues concerning the joinder of the third respondents as between the same parties were determined by the Supreme Court in James Marape v. Peter O’Neill (2015) SC1458 and so the appellant is estopped from contending that the third respondents should not be joined in the judicial review proceeding by virtue of the doctrine of issue estoppel;

c)	the primary judge did not fall into error in exercising his discretion to grant the joinder application.

Review of exercise of discretion by primary judge

9.	This Court’s role in an appeal from the exercise of judicial discretion is considered in Curtain Bros (PNG) Ltd v. UPNG (2005) SC788. We reproduce the following passage from that decision: 

“The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong.  A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion.  Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is “unreasonable or plainly unjust” and such that an error can be inferred.  These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees’ Union v The Commonwealth (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 –113:

“The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees’ Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgements is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.  A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.  Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance…”

10.   This passage has been agreed with and adopted by this court in State v. Sam Akoita & Ors (2009) SC977, Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016, Isaac Lupari v. Sir Michael Somare (2010) SC1071 and PNG Power Ltd v. Ralph Gura (2014) SC1402.	

Whether the jurisdiction of National Court engaged

11.   The appellant supported by the first, second and fifth respondents contends that as the National Court proceeding is a judicial review proceeding, it is governed by the Rules in Order 16 National Court Rules and any interlocutory application in such proceedings must be brought within the Rules in Order 16. As the third respondents applied for their joinder pursuant to Order 5 Rule 8(1) National Court Rules, they had not engaged the jurisdiction of the National Court. The primary judge fell into error in hearing and granting the application in such circumstances it is contended. Reliance is placed upon the cases of Timbani Longai v. Steven Maken (2008) N4021 and Alex Timothy v. Francis Marus (2014) SC1403. 

12.   The third respondents contend that an application for joinder in a judicial review proceeding is able to be made pursuant to Order 5 Rule 8 National Court Rules as Order 16 Rule 8 and 13(13)(1) provide that, “any interlocutory application” may be made in proceedings on an application for judicial review. Reliance is placed upon the Supreme Court case of Mek Kuk v. Peter O’Neill (2014) SC1331. Further, the third respondents contend that there are no relevant provisions in Order 16 to which they could have had recourse to join the judicial review proceeding.

Consideration

13.   That there is an exclusive procedure for judicial review proceedings was stated by Injia CJ, relying upon Supreme Court authority, in Longai v. Maken (supra). At [6] and [7] His Honour said:

“……I start with the basic premise established by case law that the National Court Rules on judicial review proceedings provides the exclusive procedure for judicial review proceedings: Attorney- General Michael Gene v Hamidian Rad [1999] PNGLR 278.  The relevant rules of court on judicial review proceedings are those found in Order 16 as amended by the Judicial Review (Amendment) Rules 2005.

7.       It is also established that the proper jurisdictional basis for any interlocutory application such as an application to set aside an interlocutory order in a judicial review proceedings must be found in O 16 of the National Court Rules and not elsewhere in the National Court Rules: Sir Julius Chan v Ombudsman Commission (1998) SC 556.  The rules of the National Court Rules relating to Notice of Motion in ordinary civil proceedings applies to judicial review proceedings under O16 by virtue of rule 13 (1) of the Judicial Review (Amendment) Rules 2005.  The Motion Rules in the National Court Rules was amended by the Motion (Amendment) Rules 2005. Rule 8 of the Motion (Amendment) Rules 2005 requires a Notice of Motion to state the Court’s jurisdiction to grant the orders being sought by stating the correct provision in the rules of Court or statute conferring such jurisdiction on the Court. Failure to comply with this rule renders the Motion or the order sought in the Motion incompetent and they may be struck out or dismissed for this reason alone.”

14.   Then in Timothy v. Marus (supra), the Supreme Court said at [18] – [20]:

“18.  These peculiarities and processes, common only to Judicial Review proceedings, were discussed at length in Peter Makeng v. Timbers (PNG) Limited and others (2008) N3117.

19.	……an interlocutory application to dismiss the Order 16 Originating Summons is filed and made before leave for review is granted, then such an application is permissible but  must be brought within the provisions allowing such applications, found only in Order 16 and not elsewhere in the National Court Rules. Likewise an application to dismiss a substantive application for judicial review must be brought within the provisions allowing such applications, found in Order 16 and not elsewhere in the National Court Rules. 

20.	This Court and the National Court have over the years, as is reflected in the decisions referred to above, emphasised the special and peculiar role played by the Judicial Review procedure.  This process is exclusive which is why Order 16 guides the way Judicial Review proceedings are conducted.”

15.   In Kuk v. O’Neill (supra), the Supreme Court stated amongst others that:

“In our view, Order 16 Rule 8 does not exclude reliance upon Order 12 Rule 40 applications because “any interlocutory applications” clearly fall within the ambit of the term “any proceedings’ (O. 12 R. 40(1)). It means that an applicant in Judicial Review proceedings can ask for a dismissal of proceedings under Order 12 Rule 40.”

16.    From a perusal of the decision in Kuk v. O’Neill (supra), it is not apparent that Order 16 Rule 8(2) National Court Rules was brought to the Court’s attention. Order 16 Rules 8 (1) and (2) are as follows:

“8. Application for discovery, interrogatories, cross-examination etc.
      (UK. 53/8)

       (1)	Unless the Court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to any Judge of the Court notwithstanding that the application for judicial review has been made and is to be heard by another Judge.

       (2)	In this sub-rule “interlocutory application” includes an application for an order under Order 9 Divisions 1 and 2, or Order 11 Division 3, or for an order dismissing the proceedings by consent of the parties.”

17.   Order 16 Rule 8(2) defines “interlocutory application” and in our view restricts it to what is described in the heading to Rule 8. Given this we respectfully disagree with the Supreme Court in Kuk v. O’Neill (supra) if the effect of its decision was that any interlocutory application pursuant to any Rule in the National Court Rules in addition to those referred to in Order 16 Rule 8(2) can be made in a judicial review proceeding.

18.    Given this we prefer the reasoning and conclusion in Timothy v. Marus (supra) and are of the view that Order 16 National Court Rules provides a complete and exclusive procedure for interlocutory applications involving judicial review proceedings. Consequently in the National Court in a judicial review proceeding, if a notice of motion that contains an application for interlocutory relief that is not brought pursuant to a Rule in Order 16 is accepted, a fundamental error is committed. This is because such a notice of motion has not engaged the jurisdiction of the Court to permit it to adjudicate upon an interlocutory application in a judicial review proceeding.

19.   As to the third respondents not being able to have recourse to a provision in Order 16, as referred to by the appellant, there are procedures under Order 16 which were available to the third respondents, for an interested party who has not been served with a notice of motion to be heard regarding a judicial review proceeding. Order 16 Rule 9(1) National Court Rules provides one such mechanism. It provides:

“On the hearing of any Notice of Motion under Rule 5, any person who desires to be heard in opposition to the Notice of Motion, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with the Notice of Motion.”

20.   Further, the third respondents could also have sought to be heard through orders made at a directions hearing or pre-hearing conference, where Judge’s are given broad powers under Order 16 Rule 13(6) and (8) National Court Rules. By proceeding in those ways, the third respondents could have properly engaged the jurisdiction of the Court to join them to the proceedings and so enable them to be heard.

21. In regard to the primary judge apparently permitting the third respondents’ application for joinder, notwithstanding that the application had not been made pursuant to a Rule in Order 16, for the reason that the third respondents had not been served with the notice of motion for judicial review, we agree with the submission of the fifth defendant that there is no connection between the absence of service and the third respondents’ failure to properly engage the Court’s jurisdiction.

22.   The third respondents were aware of the proceeding and that it was a judicial review proceeding. They made a deliberate choice as to jurisdiction evidenced by them amending their motion twice. Whether they had been served with the notice of motion for judicial review is irrelevant to their failure to properly invoke the Court’s jurisdiction. Even if it was relevant, an absence of service, does not solve a jurisdictional error. It does not give the Court a jurisdiction that it does not otherwise have.

23.   We are satisfied therefore that the third respondents did not properly invoke the jurisdiction of the National Court to make the order that they sought for their joinder. The further amended notice of motion by relying on Order 5 Rule 8(1) was incompetent and should have been dismissed as Order 5 Rule 8 does not provide a jurisdictional basis to make an order in judicial review proceedings for joinder. By proceeding to hear and then grant the application for joinder, in our view the primary judge was wrong and fell into error.

Whether joinder should have been permitted on the basis of res judicata

24.   Notwithstanding my finding above, we will consider this question although it is not necessary to do so.

25.   The appellant supported by the first, second and fifth respondents contends that the primary judge erred in applying the doctrine of res judicata to this case. Res judicata operates to prevent proceedings to enforce a cause of action, when that cause of action has already been disposed of by a decision on the merits by a court of competent jurisdiction. In this instance, the decisions in question, it is contended, concern the joinder of parties and are procedural in nature. The decision in James Marape v. Peter O’Neill (2015) SC1458 which the primary judge found had created a res judicata in respect of the matter before him, was a decision concerning the addition of parties and did not dispose of a cause of action. Likewise, the application by the third respondents to be joined, is not determinative of a cause of action. Consequently, the doctrine of res judicata does not apply, it is contended.

26. The third respondents submitted that the primary judge in holding that the question of the third respondents’ joinder was governed by the principal of res judicata and that such question for the purposes of the third respondent’s joinder application in the judicial review proceeding was a dead issue, clearly recognised that the relevant interest of the third respondents in the judicial review proceeding was the same as their interest in Marape v. O’Neill (supra) - that interest being that they were each directly involved in the issuing of the subject warrant of arrest against the Prime Minister, the validity of which was a central issue in each case.

Consideration

27.   To determine whether the primary judge fell into error in finding that the issue of the third respondents’ joinder was subject to a res judicata by virtue of the majority decision in Marape v. O’Neill (supra), it is necessary to consider when the doctrine of res judicata applies.

28. In Herman Gawi v. PNG Ready Concrete (1983) unnumbered, unreported, Bredmeyer J. reproduced the following passage from The Doctrine of Res Judicata by Spencer-Bower and Turner 1969 2nd ed p1, as in his view it stated the law clearly and succinctly:

“In English jurisprudence a res judicata, that is to say a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto, disposes once and for all of the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies. The effect of such a decision is twofold. In the first place, the judicial decision estops or precludes any party to the litigation from disputing against any other party thereto in any other litigation, the correctness of the earlier decision in law and fact.  The same issue cannot be raised again between them, and this principle extends to all matters of law and fact which the judgment decree or order necessarily established as the legal foundation or justification of the conclusion reached by the Court. In the second place, by virtue of the decision the right or cause of action set up in the suit is extinguished, merging in the judgment which is pronounced.  Transit in rem judicatam.  The result is that no further claim may be made upon the same cause of action in any subsequent proceedings between the same parties or their privies.”

29.   That res judicata is concerned with causes of action that are the same, as distinct from issues that are the same is demonstrated by the following:

a)	in the Australian High Court decision of Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45 at [17]:

“17. The distinction between res judicata (in England called “cause of action estoppel”) and issue estoppel was expressed by Dixon J. In Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, at p 532 in these terms: “in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.” (at p597)”

and then at [20]:

“The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which is merged into judgment on a prior proceeding.”

b)	in the Supreme Court case of Titi Christian v. Rabbie Namaliu (1996) OS no. 2 of 1995, delivered on 18th July 1996, Amet CJ (as he then was) reproduced the following passage from Halsbury’s Laws of England (4th ed Reissue) at [977]:

“An estoppel which has come to be known as “issue estoppel”may arise where a plea of res judicata could not be established because the causes of action are not the same.”

30.   The decision in Marape v. O’Neill (supra), did not dispose of a cause of action. It concerned a procedural matter, the joinder of parties. Similarly in this instance, the application before the primary judge was procedural in nature as it concerned the joinder of persons who wished to be heard in the proceeding. 

31.   We are satisfied that a res judicata did not arise before the primary judge in respect of the application before him by virtue of the decision in Marape v. O’Neill (supra). In finding otherwise, we are of the respectful view that the primary judge was wrong and he fell into error.

Issue estoppel

32.  The third respondents contended that the appellant is estopped from contending that the third respondents should not be joined to the judicial review proceeding as an issue estoppel arises by virtue of the decision in Marape v. O’Neill (supra). Reliance is placed upon the decision of this Court in Peter O’Neill v. Nerrie Eliakim (2016) SC1522.

33.   From a perusal of the decision the subject of this appeal, the primary judge does not refer to “issue estoppel”, and does not set out or consider principles relating to issue estoppel and apply them to the facts.

34.   Even if the primary judge had made his decision on the basis of issue estoppel, which from a perusal of his decision, it is clear that he did not, we are of the view that he would have fallen into error. Issue estoppel arises:

“…. when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation raises the same point between the same parties: see Thoday v. Thosay [1964] P 181, 189”: Watt (formerly Carter) v. Ahsan [2007] UKHL 51 at [31] per Lord Hoffman, cited with approval in O’Neill v. Eliakim (supra).

35.   The issue in the judicial review proceeding the subject of this appeal is not the same as that which arose in Marape v. O’Neill (supra) and so does not give rise to an issue estoppel. In Marape v. O’Neill (supra) a majority decision was made to join the third respondents to an appeal that concerned amongst others applications for restraining orders against members of the Police involved in investigating the payment of legal bills. The judicial review proceeding the subject of this appeal, concerns a review of the decision of the Chief Magistrate to issue an arrest warrant.

36.   As the issue decided in Marape v. O’Neill (supra) is not the same as the issue that was before the primary judge, the doctrine of issue estoppel could not have applied even if the primary judge had considered whether it did apply, which he did not.

Permitting the joinder of Police Officers when the Police Commissioner is already a party

37.   Again, notwithstanding our finding that the third respondents did not properly invoke the jurisdiction of the National Court to make the order that they sought for their joinder, and that by proceeding to hear and then grant the application for joinder, the primary judge was wrong and fell into error, we will consider this question although it is not necessary to do so.

38.   The appellant supported by the first, second and fifth respondents contends that the primary judge erred in ordering the joinder of the third defendants as:

a)	no relief is sought in the judicial review proceeding against the third 	respondents;

b)	the Police Commissioner is a party to the judicial review proceeding. 	He has extensive power and control over the Police Force. This 	includes the power to exclusively challenge a warrant of arrest that 	was issued by a District Court on the application of a police officer;

c)	the third respondents as members of the Police Force are obliged to 	obey the lawful orders of the Police Commissioner. The Police 	Commissioner made it clear at the hearing of the application for 	joinder that he opposed the joinder of the third respondents;

d)	such an order of joinder in circumstances in which the express 	intention of the third respondents is to oppose the Police 	Commissioner undermines the constitutional and overall authority of 	the Police Commissioner.

39.   The third respondents contend that the primary judge did not fall into error in ordering their joinder as in the exercise of his discretion he did not act on a wrong principle or allow extraneous or irrelevant matters to guide or affect him, mistake facts, or not take into account some matter for consideration. Further, the third respondents have interests that will be affected by the judicial review proceeding and they are in the best position to assist the Court.

Consideration

40.   As to whether the primary judge fell into error, we have already found that he did so in his consideration of whether the respondents had properly engaged the jurisdiction of the Court and in his consideration of whether a res judicata had been established.

41.   In regard to the third respondents being in the best position to assist the Court, if necessary they can be called as witnesses and give evidence. This contention does not require that they be parties.

42.   As to the third respondents having interests in the judicial review proceeding that will be affected, they contend that as they are the initiators of a criminal proceeding they have a continuous interest in the criminal proceeding that an intervening civil proceeding does not sever. Further, they have an interest in the maintenance of the rule of law pursuant to s. 57 (2) (c) Constitution.

43.   In regard to the third respondents having a continuous interest in a criminal proceeding, it is important to remember that the judicial proceeding the subject of this appeal concerns the decision of the Chief Magistrate. It does not concern the decision of either or both of the third respondents to initiate a criminal proceeding or their decision to apply for an arrest warrant.

44.    As to the nature of the interest that is required to be a party in a judicial review proceeding, a different test is contemplated to the tests provided for under Order 5 Rule 8(1) National Court Rules. Order 16 Rule 13(5) National Court Rules refers to service on “persons directly affected by the decision the subject of the review”. In an application to the District Court for an arrest warrant a Police Officer applies in that capacity as a member of the Police Force. His interest in the application is as a member of the Police Force. If a person against whom an arrest warrant is issued by the District court seeks to review the decision of the District Court, the persons who are directly interested in the review are the person against whom the arrest warrant was issued and the Magistrate who issued it. The person or persons to whom the warrant is directed do not have any interest in the warrant apart from being responsible for its execution pursuant to the direction. If the persons to whom the warrant is directed are members of the Police Force, then it is the Police Commissioner who is responsible for facilitating compliance with a direction as head of, and the person in control of the Police Force. This is recognised in Powers and Functions of the Commissioner of Police (2014) SC1388. In that decision it is stated amongst others that:

at [21]:	“The ultimate power of command and the primary responsibility for operational control of the Police Force fall within the domain of the Commissioner of Police”;

at [22]:	“The Commissioner is entitled to exercise that power and responsibility exclusively. He is not subject to control by any person or authority including the Minister or the National Executive Council.”;
 
at [23]:	“The Commissioner is at the peak of the hierarchy. Each member is obliged to obey lawful orders including and especially any such orders given by the Commissioner. This obligation is imposed by Section 208(1) (protection of members of disciplined forces) of the Constitution,…”;

at [25]:	“The process of criminal investigation and prosecution necessarily involves the exercise of powers of arrest and search and seizure, including applying to a Court for, and obtaining from a Court, warrants of arrest under the Arrest Act. Whenever a member of the Police Force exercises any of these powers he or she is, always, ultimately answerable to the Commissioner of Police.”

45.    Given the above, it would undermine the authority, command and responsibility of the Police Commissioner under the Constitution and as referred to in Powers and Functions (supra), if any police officer was entitled to be a party in a judicial review proceeding because of a direction to execute a warrant of arrest, especially if the Police Commissioner was a party and the Police Officer took a contrary view to that of the Police Commissioner.

46.    Further, s. 11(c) Arrest Act provides that a warrant may be directed to all members of the Police Force. If a person could be said to have a direct interest and could be a party to a judicial review proceeding because the warrant the subject of the review was directed to them, then if a warrant was directed to all members of the Police Force, any member of the Police Force would be entitled to be a party to the proceeding and to take a position, including to challenge the warrant. This is quite unworkable and cannot have been the intention. 

47.   The proper person to be a party to a judicial review proceeding on behalf of the Police Force and to challenge the warrant if thought necessary, is the Police Commissioner.

48.   In addition, in our view, public policy considerations dictate that it is the Police Commissioner as head of a disciplined force and he alone, who is the proper person to be a party to represent the Police Force in a judicial review proceeding to review a warrant of arrest. In circumstances where the Police Commissioner is “at the peak of the hierarchy” of the Police Force, is entitled to exercise the power of command and responsibility exclusively and each member of the Police Force is obliged to obey lawful orders especially any orders given by the Police Commissioner, to permit a Police Officer to become a party to a proceeding and as in this case, to seek to displace the Police Commissioner and deny him his opportunity to be heard by attempting to have the proceeding dismissed, and to argue against and contrary to the position of the Police Commissioner, is to seriously undermine the position, authority, command, control and responsibility of the Police Commissioner. It is also contrary to the fundamental principles that dictate the operation of a disciplined force.

49.    This, to an extent, was acknowledged by the third respondent Mr. Damaru when he conceded that the third respondents’ interest and that of the Police Commissioner should be the same and that the interests that he as a Police Officer has should be the same as the Police Commissioner. Mr. Damaru stated however that the reason that his interest was different to that of the Police Commissioner was because he wanted the arrest warrant executed but the Police Commissioner did not.

50.   In our view, in a disciplined force in which a member is obliged to obey lawful orders, especially any orders given by the Police Commissioner, the responsibility for enforcing a direction from a District Court to a member of the Police Force, whether named or not, to execute an arrest warrant, is with the Police Commissioner. That a particular Police Officer wants to execute a warrant against the wishes or order of the Police Commissioner does not and should not entitle that Police Officer to attempt to enforce the execution of the arrest warrant by way of a court proceeding. Further, that a police officer wishes to execute an arrest warrant against the wishes or orders of the Police Commissioner raises issues as to why that Police Officer is of that view and believes that he has such a particular interest in executing the warrant that he seeks court enforcement, against the position taken by the Police Commissioner.

51.    We are satisfied that any interests that the third respondents contend that they have in the execution of the warrant of arrest are not such that they constitute a direct interest entitling them to be joined as a party to the judicial review proceeding, for the above reasons. We respectfully are of the view that to the extent that the primary judge found otherwise, he was wrong and fell into error.

Conclusion

52.    As we have found that the primary judge was wrong and fell into error in hearing the application for joinder when the jurisdiction of the Court had not been properly engaged, in finding that a res judicata had arisen and in ordering the joinder of the third respondents, the appeal should be allowed.

Orders

53.

a)	The appeal against the judgment of Makail J. given on 7th December 2015 in OS (JR) 485 of 2014 is allowed, and the order to join the third defendants in such proceedings is set aside;

b)	The third respondents shall pay the costs of the appellant, first, second and fifth respondents of and incidental to this appeal.

_____________________________________________________________

Twivey Lawyers          : Lawyers for the Appellant                                     
Saulep Lawyers            : Lawyers for the First and Second Respondents    
Appeared in Person         : Third Respondents                                          
Nicholas Tame Lawyers : Lawyers for the Fifth Respondent