N4738

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No.657 of 2011

BETWEEN:

PETERSON BORASU, SIMA DOI, WILSON BERORO and WILLIE TUVIRA acting individually and jointly as landowners and as the duly authorised representatives of 120 landowners representing Portion 16C and Portion 17C of the Musa Bareji Agro-Forestry Project, Oro Province who have given their consents and authority whose names appear on the schedule to the originating summons
Plaintiffs

AND:

ROMILLY KILA PAT, Acting Secretary,
Department of Lands & Physical Planning
First Defendant

AND:

HON. LUCAS DEKENA,
Minister for Lands & Physical Planning
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:

MUSA VALLEY MANAGEMENT COMPANY LIMITED
Fourth Defendant

Waigani & Mt. Hagen: David, J
2012: 19 April & 20 July

CIVIL PRACTICE AND PROCEDURE — removal of party – representation - application to remove a lead plaintiff — applicants are three of four lead plaintiffs – applicants and respondent appointed as lead plaintiffs to represent 120 plaintiffs — applicants and respondent are plaintiffs in individual and representative capacities — plaintiffs seek judicial review of a series of decisions made by the First Defendant or his predecessor to acquire or lease their customary land for purpose of granting Special Agricultural and Business Lease under the provisions of Land Act and to register the lease - Special Agricultural and Business Lease granted to Fourth Defendant– National Court Rules, Order 5 Rules 9 and 13.

Cases cited:
Papua New Guinea Cases

Simon Mali v The State (2002) SC690

Overseas Cases

Duke of Bedford v Ellis [1901] AC 1
Smith v Cardiff Corporation [1954] 1 QB 210

Counsel

Jasper Amanu, for the applicants
Roger G. Otto, for the respondent
Irene Mugugia, for the First, Second and Third Defendants
Brendan Lai, for the Fourth Defendant

RULING ON MOTION

20 July, 2012 

1.	DAVID, J: This is a ruling on a motion filed by Kelly Naru Lawyers on 16 March 2012 on behalf of three of the four lead plaintiffs in a representative action namely, Peterson Borasu, Willie Tuvira and Wilson Beroro (the applicants) moving the Court for the following orders:

1. the plaintiff, Sima Doi be removed as a party to the proceedings pursuant to Order 5 Rule 9 (b) of the National Court Rules for lack of representative capacity under Order 5 Rule 13 of the National Court Rules;

2. leave be granted to the plaintiffs to discontinue the entire proceedings pursuant to Order 8 Rule 61 (2) of the National Court Rules;

3. In the alternative, pursuant to Order 12 Rule 1 of the National Court Rules, the 120 landowners whose names appear at the back of the originating summons meet at Popondetta and give written consents as to who shall act on their behalf.
 
2.	In the substantive proceedings commenced by originating summons and supported by Statement filed pursuant to Order 16 Rule 3 (2)(a) of the National Court Rules both filed on 5 August 2011, the plaintiffs seek judicial review of a series of decisions made by the First Defendant, Romilly Kila Pat, Acting Secretary, Department of Lands & Physical Planning or his predecessor, Pepi Kimas then Secretary of the said Department (the decisions) made:

1. on 30 September 2010 pursuant to Section 11 of the Land Act to acquire the whole of their customary land within Portion 17C, Milinch Gora & Safia (NW) Bibira (NE & SE) Fourmil Tufi and Moresby, Ijivitari District in the area known as the Musa/Bareji Agro Forest Project Area comprising 320,060 hectares in Oro Province (Portion 17C); and

2. on 30 September 2010 pursuant to Section 102 of the Land Act to issue or grant to the Fourth Defendant, Musa Valley Management Company Limited a Special Agriculture and Business Lease over Portion 17C for a term of 99 years (the lease) which decision was published in the National Gazette No.G228 dated 30 September 2010; and

3. on 8 October 2010 to register the lease.

3.	The reliefs sought by the plaintiffs essentially are:

1.	an order in the nature of certiorari to quash the decisions on the basis that; first, they were made contrary to Sections 10, 11 and 102 of the Land Act; second, they were made in breach of the principles of natural justice; third, they were unlawful acts proscribed by Section 41 of the Constitution; and fourth, they were made in breach of the "Wednesbury" principles of unreasonableness.

2.	consequent upon the grant of certiorari, a declaration that the registration of the lease over Portion 17C was null and void and that the First Defendant be directed to amend records within 21 days.

3.	an order to stay the decisions made by the First Defendant or his predecessor on 30 September 2010 to acquire Portion 17C and issue the lease to the Fourth Defendant.

4.	interim injunctions pending the determination of the substantive proceedings against the Fourth Defendant from dealing with Portion 17C in any manner including transferring it and making entries on the lease or conducting any kind of activity over Portion 17C 

4. According to the Court's record, leave to apply for judicial review was granted on 30 August 2011.

5.	On 19 September 2011, the Court granted; an order that the grant of leave operated as a stay of the decisions; interim restraining orders in the terms pleaded at paragraph 2 (b) and (c) of the Amended Notice of Motion filed by the plaintiffs on 11 August 2011 (the Amended Notice of Motion) pending hearing inter partes on 28 September 2011. The relevant paragraphs are:

"(b) The Fourth Defendant, its Board, Management, officers, servants and agents and associates, are restrained forthwith from dealing with, transacting, undertaking any activities whatsoever concerning or relating to the title over Portion17C the subject of these proceedings; and

(c) The First and Second Defendants, their officers and employees including but not limited to the Registrar of Titles and Director Customary Lands within the Department of Lands & Physical Planning be restrained from transferring, dealing with or making any entries against the lease known as Portion 17C Milinch Gora & Safia (NW) Bibira (NE & SE) Fourmil Tufi and Moresby, Ijivitari District, Oro Province."  

6.	The interim restraining orders were extended on 28 September 2011 to 2 November 2011. On 2 November 2011, the Court granted the restraining order sought in paragraph 2 (a) of the Amended Notice of Motion and ordered that all restraining orders be in force pending the determination of the substantive proceedings. Paragraph 2 (a) of the Amended Notice of Motion filed on 11 August 2011 states:

"(a) The Fourth Defendant, its Board, Management, officers, servants and agents and associates, are restrained forthwith from dealing with, transacting, undertaking any activities whatsoever commercial or otherwise over Portion 17C the subject of these proceedings;"
 
7.	In support of their motion, the applicants rely on 85 affidavits and these are:

1.	Affidavit of Lucas Teno sworn on 8 March 2012 and filed on 9 March 2012;
2.	Affidavit of Edrick Kanda sworn on 8 March 2012 and filed on 9 March 2012;
3.	Affidavit of Wilson Beroro sworn on 8 March 2012 and filed on 9 March 2012;
4.	Affidavit of Peterson Borasu sworn on 6 March 2012 and filed on 9 March 2012;
5.	Affidavit of John Baitura sworn on 8 March 2012 and filed on 9 March 2012;
6.	Affidavit of Hayward Jaoba sworn on 8 March 2012 and filed on 9 March 2012;
7.	Affidavit of Patrick Omaraburi sworn on 8 March 2012 and filed on 9 March 2012;
8.	Affidavit of Nelson Wedu sworn on 8 March 2012 and filed on 9 March 2012;
9.	Affidavit of Raymond Abani sworn on 6 March 2012 and filed on 9 March 2012;
10.	Affidavit of Mack Saiva sworn on 8 March 2012 and filed on 9 March 2012;
11.	Affidavit of Willingthon Vevera sworn on 8 March 2012 and filed on 9 March 2012;
12.	Affidavit of Service of Ralph Gaso sworn on 16 March 2012 and filed on 19 March 2012;
13.	Affidavit of Nelson Wedu sworn on 13 April 2012 and filed on 16 April 2012;
14.	Affidavit of Morgen Minio sworn on 13 April 2012 and filed on 16 April 2012;
15.	Affidavit of Raymond Abani sworn on 13 April 2012 and filed on 16 April 2012;
16.	Affidavit of Kokito Naimena sworn on 13 April 2012 and sworn 16 April 2012;
17.	Affidavit of Okono Ninio sworn on 13 April 2012 and filed on 16 April 2012;
18.	Affidavit of Mathew Toho sworn on 13 April 2012 and filed on 16 April 2012;
19.	Affidavit of Tom Gombai sworn on 13 April 2012 and filed on 16 April 2012;
20.	Affidavit of Samuel Nondi sworn on 13 April 2012 and filed on 16 April 2012;
21.	Affidavit of Eric Nondi sworn on 13 April 2012 and filed on 16 April 2012;
22.	Affidavit of Steven Makai sworn on 13 April 2012 and filed on 16 April 2012;
23.	Affidavit of Bartymus Kiso sworn on 13 April 2012 and filed on 16 April 2012;
24.	Affidavit of Peter Beso sworn on 13 April 2012 and filed on 16 April 2012;
25.	Affidavit of Sam Sanana sworn on 13 April 2012 and filed on 16 April 2012;
26.	Affidavit of Manasah Wedu sworn on 13 April 2012 and filed on 16 April 2012;
27.	Affidavit of Moses Anawaru sworn on 13 April 2012 and filed on 16 April 2012;
28.	Affidavit of Allen Tererembo sworn on 13 April 2012 and filed on 16 April 2012;
29.	Affidavit of Russel Sokara sworn on 13 April 2012 and filed on 16 April 2012;
30.	Affidavit of Bensfed Embo sworn on 13 April 2012 and filed on 16 April 2012;
31.	Affidavit of Lucas Erigo sworn on 13 April 2012 and filed on 16 April 2012;
32.	Affidavit of Charles Duna sworn on 13 April 2012 and filed on 16 April 2012;
33.	Affidavit of Denmark Eroro sworn on 13 April 2012 and filed on 16 April 2012;
34.	Affidavit of Smith Nara sworn on 13 April 2012 and filed 16 April 2012;
35.	Affidavit of John Andere sworn on 13 April 2012 and filed on 16 April 2012;
36.	Affidavit of Justice Warika sworn on 13 April 2012 and filed on 16 April 2012;
37.	Affidavit of Amos Bidana sworn of on 13 April 2012 and filed on 16 April 2012;
38.	Affidavit of Andrew Yabonisa sworn on 13 April 2012 and filed on 16 April 2012;
39.	Affidavit of Naigle Raphael sworn on 13 April 2012 and filed on 16 April 2012;
40.	Affidavit of Fred Kawoki sworn on 13 April 2012 and filed on 16 April 2012;
41.	Affidavit of Roden Oni sworn on 13 April 2012 and filed on 16 April 2012;
42.	Affidavit of Jonathan Gija sworn on 13 April 2012 and filed on 16 April 2012;
43.	Affidavit of Wilson Beroro sworn on 13 April 2012 and filed on 16 April 2012;
44.	Affidavit of David Nagindo sworn on 13 April 2012 and filed on 16 April 2012;
45.	Affidavit of Arthur Fegoro sworn on 13 April 2012 and filed on 16 April 2012;
46.	Affidavit of Dunkin Pere sworn on 13 April 2012 and filed on 16 April 2012;
47.	Affidavit of Wellington Vevera sworn on 13 April 2012 and filed on 16 April 2012;
48.	Affidavit of Patrick Omarabui sworn on 13 April 2012 and filed on 16 April 2012;
49.	Affidavit of Baldwin Abani sworn on 13 April 2012 and filed on 16 April 2012;
50.	Affidavit of Peter Warika sworn on 13 April 2012 and filed on 16 April 2012;
51.	Affidavit of Mack Saiwa sworn on 13 April 2012 and filed on 16 April 2012;
52.	Affidavit of Philip Evovo sworn on 13 April 2012 and filed on 16 April 2012;
53.	Affidavit of Ambu Nelson sworn on 13 April 2012 and filed on 16 April 2012;
54.	Affidavit of Douglas Yogoni sworn on 13 April 2012 and filed on 16 April 2012;
55.	Affidavit of Raymond Abani sworn on 13 April 2012 and filed on 16 April 2012;
56.	Affidavit of Amos Kossy sworn on 13 April 2012 and filed on 16 April 2012;
57.	Affidavit of Albert Giza sworn on 13 April 2012 and filed on 16 April 2012;
58.	Affidavit of Steven Tuvira sworn on 13 April 2012 and filed on 16 April 2012;
59.	Affidavit of Kasari Tewara sworn on 13 April 2012 and filed on 16 April 2012;
60.	Affidavit of Andrew Nonofari sworn on 13 April 2012 and filed on 16 April 2012;
61.	Affidavit of John G. Baitura sworn on 13 April 2012 and filed on 16 April 2012;
62.	Affidavit of Sebastine Goviro sworn on 13 April 2012 and filed on 16 April 2012;
63.	Affidavit of Lucas Teno sworn on 13 April 2012 and filed on 16 April 2012;
64.	Affidavit of Peter Wayade sworn on 13 April 2012 and filed on 16 April 2012;
65.	Affidavit of Nathaniel Jirifu sworn on 13 April 2012 and filed on 16 April 2012;
66.	Affidavit of Clarence Munja sworn on 13 April 2012 and filed on 16 April 2012;
67.	Affidavit of Dennis Teka sworn on 13 April 2012 and filed on 16 April 2012;
68.	Affidavit of George Begasi sworn on 13 April 2012 and filed on 16 April 2012;
69.	Affidavit of Kokori Enembo sworn on 13 April 2012 and filed on 16 April 2012;
70.	Affidavit of Nelson Wedu sworn on 13 April 2012 and filed on 16 April 2012;
71.	Affidavit of Robin Lindsay sworn on 13 April 2012 and filed on 16 April 2012;
72.	Affidavit of Jerry Yogoni sworn on 13 April 2012 and filed on 16 April 2012;
73.	Affidavit of Alphieus Dinambe sworn on 13 April 2012 and filed on 16 April 2012;
74.	Affidavit of Mathew Ewowo sworn on 13 April 2012 and filed on 16 April 2012;
75.	Affidavit of Isaac Barnabas sworn on 13 April 2012 and filed on 16 April 2012;
76.	Affidavit of Leonard Binombo sworn on 13 April 2012 and filed on 16 April 2012;
77.	Affidavit of Beroro Pono sworn on 13 April 2012 and filed on 16 April 2012;
78.	Affidavit of Leonard Bareji sworn on 13 April 2012 and filed on 16 April 2012;
79.	Affidavit of Jonah Yorude sworn on 13 April 2012 and filed on 16 April 2012;
80.	Affidavit of Willie Tuvira sworn on 13 April 2012 and filed on 16 April 2012;
81.	Affidavit of Johnson Opi sworn on 13 April 2012 and filed on 16 April 2012;
82.	Affidavit of Augustin Kiso sworn on 13 April 2012 and filed on 16 April 2012;
83.	Affidavit of Willian Gaxton sworn on 13 April 2012 and filed on 16 April 2012;
84.	Affidavit of Hemington Gebari sworn on 13 April 2012 and filed on 16 April 2012;
85.	Affidavit of Robin Giu sworn on 13 April 2012 and filed on 16 April 2012.

8. The plaintiff, Sima Doi (the respondent) contests the application. He relies on the following affidavits:

1.	Affidavit of Myron Ipape sworn and filed on 15 February 2012;
2.	Affidavit of Sima Doi sworn on 5 March 2012 and filed on 6 March 2012;
3.	Affidavit of Wilfred Gabuba sworn on 5 March 2012 and filed on 6 March 2012;
4.	Affidavit of Mathias Desegari sworn and filed on 6 March 2012; and
5.	Affidavit of Roger Gileng Otto sworn on 10 April 2012 and filed on 11 April 2012.

9. I have considered all these affidavits.

10. The defendants did not file any rebuttal affidavits. They essentially said that the dispute on the issue of representation was a matter for the plaintiffs to sort out amongst themselves. 

11. The Affidavit of Service of Ralph Gaso confirms service of a number of documents including the notice of motion that has been moved by the applicants upon Kuman Lawyers in February and March 2012. 

12. The facts from all the affidavit evidence are pretty much straight forward and I find the relevant facts to be these. The applicants and the respondent are landowners from the Musa-Pongani Bareji area more particularly within portions of land described as Portion 16C and Portion 17C in the Ijivitari District in the Oro Province. Landowners numbering 120 whose names appear in the schedule to the originating summons gave their consent and authority for the applicants and the respondent to be the lead plaintiffs in instituting these proceedings with the assistance of Kuman Lawyers who were appointed as their lawyers. By a letter dated 27 January 2012 signed by Patterson Borasu, but written on behalf of the applicants, respondent and all the other plaintiffs, Kuman Lawyers were informed about the termination of their services. The respondent says he was not consulted by the applicants. So by a letter dated 9 February 2012 signed by the respondent and 32 other plaintiffs, Kuman Lawyers were informed that the majority of genuine landowners did not support the action taken by the applicants to terminate their services and re-appointed them as their lawyers. The applicants want to discontinue these proceedings and they have the support of the majority of the landowners to do that. The respondent does not want the proceedings to be discontinued and says he has the support of other landowners who have signed a document entitled Declaration of Consent and Authority for Sima Doi to Continue Acting as lead Plaintiff in Proceedings "OS No.657 of 2011 (JR) and Revoke the Appointment of Patterson Bosaru, Wilson Beroro and Willie Tuvira as lead Plaintiffs (annexure "RGO2 of Mr. Otto's affidavit) to object. Mr. Doi has retained the services of Kuman Lawyers (annexure "RGO3 of Mr. Otto's affidavit). 

13. The court's record shows that on 15 February 2012, Kuman Lawyers filed a notice of ceasing to act giving notice that they had ceased to act for two of the applicants namely, Patterson Borasu and Wilson Beroro. On 17 February 2012, Kelly Naru Lawyers filed a notice of change of lawyers dated 15 February 2012 giving notice that they were acting for the plaintiffs. On 11 April 2012, Kuman Lawyers filed another notice of ceasing to act giving notice that they had ceased to act for the applicants and more than 60 other plaintiffs listed on the list attached to the notice.

14. Three issues arise in this motion for determination. The first issue is whether the plaintiff should be removed as a party. The second issue, which is dependent on how the first issue is determined, is whether I should grant leave to discontinue the proceedings. The third issue which arises in the alternative is whether the 120 landowners whose names appear at the back of the originating summons should be ordered to meet at Popondetta and give written consents as to who should act on their behalf.
 
15. The applicants' submissions essentially are; that the respondent should be removed as a lead plaintiff for lack of representative capacity because the mandate he was initially given by the 120 landowners has been withdrawn; and the granting of leave to discontinue the proceedings should be consequential upon the first issue been decided in their favour. The third issue was not pressed.

16. The respondent submitted that contrary to submissions of the applicants, he had the consent and authority of a number of landowners which was in evidence to continue with the proceedings. He refuted claims in the applicants' affidavit evidence of the forging of signatures of a number of plaintiffs found on the Consent and Authority to Act annexed to the respondent's affidavit and stated that they were unfounded and baseless. If the applicants and the plaintiffs they purport to represent in these proceedings wanted to withdraw their support, then they were at liberty to do so. For these reasons, he said he would oppose the application for leave to discontinue these proceedings. The third issue was not pressed.
 
17. As I have alluded to earlier, the position taken by the defendants was that this was a matter for the plaintiffs to sort out amongst themselves.

18. Mr. Lai submitted however that the onus was on the respondent to demonstrate that he still had the consent and authority of the landowners to represent them in these proceedings. Otherwise, he should agree to discontinue the proceedings and should he desire, commence fresh proceedings with others who he said supported him with respect to the same subject matter.

19. As to the first issue, I make these observations.

20. The applicants have invoked Order 5 Rules 9 and 13 of the National Court Rules as the jurisdictional basis for seeking to remove the respondent as a plaintiff. It is therefore convenient and instructive to reproduce below the relevant rules which are in the following terms:

"9. Removal of parties. (8/9)

Where a party—

(a) has been improperly or unnecessarily joined; or

(b) has ceased to be a proper or necessary party,

the Court, on application by any party or of its own motion, may, on terms, order that he cease to be a party and make orders for the further conduct of the proceedings." 

"13. Representation; Current interests. (8/13)

(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2) At any stage of proceedings pursuant to this Rule the Court, on the application of the plaintiff, may, on terms, appoint any one or more of the defendants or other persons (as representing whom the defendants are sued) to represent all, or all except one or more, of those persons in the proceedings.

(3) Where, under Sub-rule (2), the Court appoints a person who is not a defendant, the Court shall make an order under Rule 8 adding him as a defendant.

(4) A judgement entered or order made in proceedings pursuant to this Rule shall be binding on all the persons as representing whom the plaintiffs sue or the defendants are sued, as the case may be, but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.

(5) An application for leave under Sub-rule (4) shall be made by motion, notice of which shall be served personally on the person against whom it is sought to enforce the judgement or order.

(6) Notwithstanding that a judgement or order to which an application under Sub-rule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgement or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.

(7) This Rule does not apply to proceedings concerning—

(a) the administration of the estate of a deceased person; or

(b) property subject to a trust."

21. In Simon Mali v The State (2002) SC 690, the Supreme Court said that in all actions or proceedings of a representative nature all the intended plaintiffs must be named and duly identified in the originating process, be it writ of summons, originating summons or statement of claim endorsed on a writ. Pursuant to the rules, each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them, for various reasons one being the costs of the litigation, if awarded against the plaintiffs. 

22. There is no dispute that the applicants and the respondent are involved in this representative action as landowners themselves and representatives of the other landowners identified in the schedule to the originating summons as lead plaintiffs. There is a common interest, common grievance, and the reliefs sought were for the benefit of all plaintiffs who are represented by their representatives: see Duke of Bedford v Ellis [1901] AC 1; Smith v Cardiff Corporation [1954] 1 QB 210. 

23. Should the respondent be removed as a party to these proceedings? The respondent is a party to these proceedings in his personal capacity as a landowner as well as a representative in the proceedings in his capacity as a lead plaintiff. Order 5 Rule 9 of the National Court Rules permits the Court to remove a party who is improperly or unnecessarily joined or who has ceased to be a proper or necessary party. So it may be possible to remove the respondent if he does not have any representative capacity any more, but I cannot see how he can be removed as a party in his personal capacity. The application is misconceived. Moreover, I am also satisfied from the evidence adduced before me by the respondent that he has the consent and authority from a number of landowners out of the 120 plaintiffs to continue to represent them in these proceedings. For these reasons, I find that the applicants' argument based on lack of representative capacity lacks merit. 

24. As to the second issue, having refused to grant the relief sought in item 1 of the motion, the consequence of that is that the application for leave to discontinue the proceedings is refused. 

25. As to the third issue which concerns the alternative relief sought, the parties have all not pressed the issue. I will however briefly address the issue because there needs to be a way forward. It appears to me from the evidence that two factions have been formed amongst the plaintiffs in these proceedings. One group supports the applicants while the other supports the respondent. The matter the subject of these proceedings involves land which is an important and precious commodity in Papua New Guinea society. It is therefore in the interest of all the plaintiffs that some consensus is reached on the issue of representation including the further conduct of these proceedings. For these reasons, I am minded to determine this issue in favour of the applicants. 

26. The formal orders of the Court are:

1.	The applicants' application to remove the respondent as a party to the proceedings is refused.

2.	The applicants' application for leave to discontinue the proceedings is refused.

3.	All plaintiffs whose names appear in the schedule to the originating summons shall meet in Popondetta within one month from today.

4.	The applicants and the respondent shall jointly be responsible for the conduct of this meeting at a venue, date and time to be confirmed by them.

5.	Costs shall be in the cause.

6.	Time is abridged to the time of settlement by the Registrar which shall take place forthwith. 

_____________________________________________________
Kelly Naru Lawyers: Lawyers for the Applicants
Kuman Lawyers: Lawyers for the Respondent
The Solicitor-General: Lawyers for the First, Second and Third Defendants
B S Lai Lawyers: Lawyers for the Fourth Defendant