N6390
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 103 OF 2016

BETWEEN:

SUMMIT DEVELOPMENT LIMITED
Plaintiff

AND:
BYRON CHAN as Minister for Mining
First defendant

AND:
ROBIN MOAINA, NELLIE JAMES, KEPAS WALI,
SIMON TOSALI, GABRIEL YER, JOSEPH LELANG, 			ANTHONY SMARE, DAVID TOUA AND GREG 				ANDERSON, as members of the Mining Advisory Board
Second defendants

AND:
STANLEY NEKITEL as the Registrar of Tenement
Third defendant

AND:
MINERAL RESOURCES AUTHORITY
Fourth defendant

Waigani:	 Gavara-Nanu J.
2016:	24th June

PRACTICE & PROCEDURE – Application for a joinder - Judicial review proceeding - Interested person/party directly affected by the proceeding – National Court Rules; Order 5 r 8 (1), Order 16 r 5 (1), (2), (3), (5) and (6); Order 16 r 9 (1); Order 16 r 13 (5) (1) and (2); Order 16 r 13 (6) (3) and (4) (b) and (c) – Whether Order 5 r 8 (1) can be invoked in judicial review proceedings.

PRACTICE & PROCEDURE – Application for a joinder - Judicial review proceeding – National Court Rules; Order 16 – Procedure under Order 16 exclusive to judicial review proceedings – Inherent power of the Court – Common law – Constitution; s. 155 (4) – “Justice according to law” – Meaning thereof – Power of the Court to order joinder.  

Cases cited: 

Andrew Trawen v. Steven Pirika Kama & Michael Laimo v.Steven Pirika Kama (2010) SC1063 
Attorney General, Michael Gene v. Hamidian Rad [1999] PNGLR 444
Avia Aihi v. The State [198] PNGLR 81
Innovest Limited v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change (2014) N5949
Jack Nou v. Richard Chirake (2004) N2539
Jim Trading Ltd v. John Madison (2006) N3174
Kelvin Rumpia v. Abaris Buri & Ors N3035
Ken Norae Mondiai v. Minister for Forests (2008) N3298
Ken Norae Mondiai v. Wavoi Guavi Timber Company Limited (2006) N3061
Les Curlewis v. Reuben Renagi & Ors (2013) SC1274
Paul Asakusa v. Andrew Kumbakor (2008) N3303
Paul Berr v. Robin Yango (2012) N4706
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317
PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126
Simon Kaupa v. National Executive Council & The Independent State of Papua New Guinea (2014) N6025
Sir Puka Temu v Rigo Lua (2015) N5918
SCR No.2 of 1980; Re s.14 (2) of the Summary Offences Act, 1977 [1981] PNGLR 50
Special Reference by Morobe Provincial Executive (2010) SC1089 
Timbers PNG Limited v. PNG Forests Authority (2012) N4638
Yanta Development Association Inv. V. Piu Land Group Inc. (2004) SC798 

Counsel:

M. Mukwesipu with G. Kogora ,for the Plaintiff
E. Bua, for the First Defendant
K. Imako, for the Second, Third and Fourth Defendants
I. Shepherd, for the Applicant

24th June, 2016

1.	GAVARA-NANU J:    This is an application by GMG Global Mining Group Limited (applicant), made pursuant to a notice of motion filed on 30 May, 2016. The applicant seeks to be joined as the fifth defendant in this proceeding. The application is made under Order 16 r 9 (1) and Order 5 r 8 (1) of the National Court Rules. The applicant says it is directly affected by the proceeding and therefore has an interest in the case.

2.	Among other things, the applicant relies on paragraph 4 (1) (p), (q) and (r) of the Grounds of Review in the Statement in Support. Under these grounds of review, the plaintiff is challenging the legality of the applicant’s Exploration License issued under the Mining Act, 1992, in respect of the Mt. Kare Mining Project, in the Enga Province. 

3.	The first, second and third defendants did not take any position on the application. They neither opposed nor conceded to the application.

4.	Notably, the plaintiff has through its counsel, Mr Mokawau Mukwesipu conceded that the applicant has an interest in the case. However, it opposes the application claiming that it is incompetent. It argued that applicant has invoked wrong Rules in its notice of motion to seek the relief. First, in regard to Order 16 r 9 (1), it does not confer jurisdiction on the Court to grant the relief sought because the procedure under Order 16, which is exclusive to judicial review proceedings only provides for the applicant to be served with the notice of motion filed under Order 16 r 5 (1) and be heard on the motion, if it so desired. Second, in regard to Order 5 r 8 (1), it is irrelevant and cannot be relied on by the applicant because it is outside of the Order 16 procedure, and the procedure under Order 16 does not allow for the applicant to be joined as a party to the proceeding either upon its own application or at the direction of the Court. Mr Mukwesipu argued that the application is therefore misconceived and should be dismissed.

5.	Order 16 r 5 (1), (2), (3), (5) and (6) are relevant to the issues at hand and are reproduced here in full:

	5.	Mode of applying for judicial review.
	        (1)  Subject to Sub-rule (2), when leave has been granted to make an 	application for judicial review, the application shall be made by Notice of 	Motion to the Court. 
	       (2)  The Notice of Motion must be served on all persons directly 	affected and where it relates to any proceedings in or before a court and 	the object of the application is either to compel the court or an officer of 	the court to do any act in relation to the proceedings or to quash them 	or any order made in them, the Notice of Motion must also be served on 	the clerk or Registrar of the court and, where any objection to the 	conduct of the judge is to be made, on the judge.
   	       (3)    Unless the court granting leave has otherwise directed, there 	must 	be at least 14 days between the service of the Notice of Motion 	and the day named in it for the hearing     
	        (5)  An affidavit giving the names and addresses of, and the places 	and dates of service on, all persons who have been served with the 	Notice of Motion must be filed before the Notice of Motion is entered for 	hearing and, if any person who ought to be served under this Rule has 	not been served, the affidavit must state that fact and the reason for it, 	and the affidavit shall be before the Court on the hearing of the Notice of 	Motion.   
	         (6)  If on hearing of the Notice of Motion the Court is of the opinion 	that any person who ought, whether under this Rule or otherwise, to 	have been served has not been served, the Court may adjourn the 	hearing on such terms (if any) as it may direct in order that the Notice of 	Motion may be served on that person.
6.	Order 5 r 8 (1) is in these terms:
	8.  Addition of parties.
                       (1)  Where a person who is not a party-
                             (a)   ought to have been joined as a party; or
                             (b)   is a person whose joinder as a party is necessary to     ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on, 
	the Court on application by him or by any party or of its own motion, 	may, on terms, order that he be added as a party and make orders for 	the           further conduct of the proceedings.
	
7.	Order 5 deals with – PARTIES AND CAUSES OF ACTION and Division 1 of the Order deals with – Joinder of Causes of Action and Parties.

8.	Order 16 r 9 (1) is in these terms:
	9.	Hearing of application for judicial review.
	       (1)   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. 
9.	At the time I delivered my brief ruling on the application on 24 June, 2016, in which I granted the application, time did not allow me to offer any constructive comments on Order 5 r 8 (1). I now comment on the Rule. As will be seen later in my judgment, these comments and observations further fortify my ruling. 	
10.	I consider Order 5 r 8 (1) to be a general rule, which can be invoked for a joinder application in any civil proceeding, including judicial review proceedings. I will elaborate further on this point later in my judgment.  
11.	Turning now to Order 16 r 5, giving the Rule its plain and ordinary meaning, I find that the Rule merely provides for a person who is directly affected by a proceeding under Sub-rule (2), to be served with the Sub-rule (1) notice of motion. The clear legislative intention and purpose deriving from the terms of Sub rules (2), (5) and (6) is to ensure that those persons who are directly affected by the proceedings are duly notified of the proceedings and are given an opportunity to be heard on the motion, if they so desired. The terms of Sub-rule (5) make it mandatory for affidavits stating the names of persons served and not served, but should have been served with the notice of motion; the fact(s) and reason(s) for the persons who should have been served with the notice of motion but had not been served, to be filed before the hearing of the motion. Under the terms of Sub-rule (6), it is also plain that, if on the hearing of the motion, the Court found from the affidavits filed under Sub-rule (5) that the persons who should have been served with the notice of motion had not been served, the Court may adjourn the hearing of the motion and direct that the notice of motion be served on such persons. The notable aspect of this procedure is that the requirement of service only relates to the notice of motion and not in respect of other court documents. To me, this requirement confirms the view I expressed above that the persons served with the notice of motion have an option to decide whether to be heard on the motion or not.
12.	There are cases in which either Order 16 r 5 (2) or Order 5 r 8 (1) had been invoked in joinder applications: Jack Nou v. Richard Cherake (2004) N2539; Ken Norae Mondiai v. Wavoi Guavi Timber Company Limited (supra); Ken Norae Mondiai v. Minister for Forests (2008) N3298 and Simon Kauba v. National Executive Council & The Independent State of Papua New Guinea (2015) N6025. 
13.	In Jack Nou v. Richard Chirake (supra) the Court, pursuant to Order 16 r 5 (2) found that the applicant was directly affected by the proceeding and was ordered to be joined as a party to the proceeding. That case was adopted with approval by the Supreme Court in Yanta Development Association Inc. v. Piu Land Group Inc. (2004) SC798.
14.	 In PNG Deep Sea Fishing Limited v. Hon. Luke Critten, Governor for Milne Bay & Ors (2010) SC1126, the Supreme Court adopted with approval Ken Norae Mondiai v. Wavoi Guavi Timber Company Limited (supra), in which the National Court held that Order 5 r 8 (1) provides the jurisdictional basis for joinder applications. The Supreme Court in  considering this Rule went on to state that the requirements that an applicant for a joinder has to satisfy are set out under Orders 5 r 8 (1) and 16 r 5 (2). Under Order 5 r 8 (1), an applicant seeking joinder has to show that it – “ought to have been joined as a party...” or that its joinder as a party is – “...necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated on”. Under Order 16 r 5 (2), an applicant seeking joinder has to show that it is – “...directly affected...” - by the proceeding, thus has an interest in the case. Whether an applicant for a joiner is directly affected by a proceeding or not is a question of fact which has to be decided on the facts of each case.
15.	When one looks closely at the requirements under Order 16 r 5 (2) and Order 5 r 8 (1), they are intertwined and when applied, they effectively raise one common requirement which an applicant for a joinder has to meet viz; he or it – “ought to have been joined as a party...” - to the proceeding. This makes the two Rules equally relevant and applicable with equal force in joinder applications. In PNG Deep Sea Fishing Limited v. Hon. Luke Critten, Governor for Milne Bay (supra), the Supreme Court held that an applicant for a joinder must meet the requirements under these two Rules, before it can be joined as a party.  In that case, the Supreme Court considered Order 5 r 8 (1), in an appeal against the decision of the National Court which refused a joinder application made under Order 5 r 8 (1). The Supreme Court held that the requirements set out under the two Rules being satisfied by an applicant for a joinder is pre-requisite to the grant of a joinder.
16.	With respect, apart from its bending effect, I consider the approach taken by the Supreme Court in PNG Deep Sea Fishing Limited v. Hon. Luke Critten, Governor for Milne Bay (supra)  to be the proper and appropriate way to apply Order 16 r 5 (2) in a joinder application. Application of Order 5 r 8 (1) is in my view imperative in joinder applications once the requirement under Order 16 r 5 (2) is satisfied. It is imperative under these Rules that an applicant for a joinder who is “directly affected” by a proceeding under Order 16 r 5 (2), also has to satisfy the requirements under Order 5 r 8 (1). This view is fortified and even made plain by the fact that the requirements under Order 5 r 8 (1) correlate with the requirement under Order 16 r 5 (2), especially the requirement under Order 5 r 8 (1) (a). Furthermore, Order 5 r 8 (1) in my view provides an appropriate mechanism for joinder applications. 
17.	The right given to a person or a party to apply for a joinder in judicial proceedings is now made crystal clear and settled by Order 16 r 13 (6), (4) (c). 
18.	It is convenient that at this juncture I offer some brief comments on Order 16 r 13, which constitutes the Judicial Review (Amendment) Rules, 2005 (amending JR Rules).  This Rule codifies and particularizes the procedure under Order 16 and widens the scope of the procedure and confers wider discretion on the Court: Peter Makeng v. Timbers (PNG) Ltd (2008) N3317; Paul Asakusa v. Andrew Kumbakor (2008) N3303 and Innovest Limited v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change (2014) N5949. The Rule emphasizes among other things a fair disposition of cases. The purpose of the Rule is stated this way:
	….These Rules are intended to improve the disposition of judicial review 	cases in the 	National Court in a quick, fair and cheap manner.
	These Rules are intended to be read consistently with the judicial review 	procedure contained in Order 16 of the National Court Rules.
19.	The Rule provides specifically for a fair disposition of judicial review cases and regulates the procedure under Order 16.  
20.	The relevant Sub-rules of Rule 13 relating to joinder applications are (5) and (6) (1), (2), (3) and (4) (b) and (c), they read:
	5.	Directions to be issued at time of grant of leave.
		Immediately after granting leave to apply for judicial review, the 		judge granting leave shall consider and issue directions as to, 			among other things, the following: 
		(1)   	Filing of Notice of Motion and supporting affidavits under 			Order 16 rule 5 (1).
		(2)  	 Identification of all persons directly affected by the decision 			the subject of the review, who may be served with the 				Notice of Motion including the Clerk or Registrar of the 				Court or tribunal which made the decision. 
                   (3)	Service of the order granting leave including directions 				issued hereunder and Notice of Motion and supporting 				affidavits and any other documents filed for purposes of the 			leave application, on persons identified under (2) and filing 			proof of service.  
                  (4)	Availability of decision and reasons for decision together 			with any other relevant documents or depositions of 				 the tribunal or public authority which made the decision the  		          subject of review.                      
	        (5)	Fix a date for Directions Hearing to take place within (14) 			days there-from. This date shall be entered on the Notice of 			Directions Hearing issued by the Registrar under Rule 6 (1) 			hereunder. 
	6. 	Directions Hearing. 
		(1)	The Registrar shall give Notice of the Directions Hearing in 			the form in Schedule A.		
		(2)	At the Directions Hearing, where parties are represented by 			a lawyer, the lawyer must be familiar (with) the matter.
		(3)  	A person who is served with the Notice of Motion is entitled 			to attend the Directions Hearing.
		(4)  	At the Directions Hearing, the Judge may consider and 				determine and issue directions or orders for the prompt 				hearing of the application, amongst other things, the 				following:
			(b) 	 Identification of persons served or ought to have 					been served with the Notice of Motion.
		     	(c) 	 Joinder of persons served with the Notice of Motion 				as parties to the proceedings. 
21.	For the foregoing reasons, I am of the respectful view that the Rules that should be invoked for joinder applications are Orders 5 r 8 (1), 16 r 5 (2) and 16 r 13 (6) (4) (c). These Rules together with s. 155 (4) of the Constitution collectively provide the jurisdictional basis for a joinder application.  The circumstances in which s. 155 (4) may be invoked are canvassed later in the judgment. 
22.	The initial joinder applications may be made either at the first Directions hearing following the grant of leave for judicial review, or soon thereafter. Pursuant to the respective terms of the above Rules, the Court may order joinder either upon an application being made by a person or a party who is directly affected by the proceeding or by any party to the proceeding or at the direction of the Court. 
23.	Order 16 r 13 (6) (4) (c) effectively fills the apparent vacuum in Order 16 r 5 which lacks express provisions for joinder applications. 
24.	In this case, Mr Ian Shepherd of counsel for the applicant has placed reliance on Simon Kauba v. National Executive Council and The Independent State of Papua New Guinea (supra). Again, at the time I gave my brief ruling on the application, time did not allow me to offer any constructive comments on that case. I will comment on it now. In that case, the plaintiff sought to be joined as a party in a judicial review proceeding. The relief was sought under Order 5 r 8 (1) and s. 155 (4) of the Constitution. The respondents argued that Order 8 r 5 (1) could not be invoked by the applicant because it is outside of Order 16 procedure. For this argument, the respondents placed reliance on Attorney General Michael Gene v. Hamidian Rad [1999] PNGLR 444 and Peter Makeng v. Timbers (PNG) Limited (supra). The former is a Supreme Court decision and the latter is a National Court decision which followed the former. In both cases, it was held that Order 16 sets out an exclusive procedure for judicial review proceedings. In Peter Makeng, the Court went further and said that procedures outside of Order 16 cannot be invoked for joinder applications in judicial review proceedings unless such procedures are expressly adopted under Order 16 procedure. The Court in Timbers PNG Limited v. PNG Forest Authority (2012) N4638 adopted Peter Makeng v. Timbers (PNG) Limited (supra) and followed Attorney General Michael Gene v. Hamidian Rad (supra).       
25.	In Simon Kauba, the trial judge Makail J, among other things, held that the ruling in Peter Makeng is inconclusive, thus the issue regarding Order 5 r 8 (1) as a source of jurisdiction for the Court to hear joinder applications in judicial review proceedings remains open for more judicial determination. The learned trial judge expressed a view that the absence of specific Rules under Order 16, to provide for joinder applications does not remove or limit the Court’s exercise of its discretionary power to order joinder in appropriate cases. His Honour said the procedure under Order 16 gives wide discretionary power to the Court and the Court can on its own initiative order joinder in appropriate cases. His Honour gave limited consideration to Order 5 r 8 (1), but in regard to Order 16, his Honour said the procedure set out under Rule 5 (2) inferentially addresses the issue of joinder and said that as long as an interested party is directly affected by the proceeding, as stipulated under this Sub-rule, the party had the right to be joined. 
26.	With respect, I concur generally with the view that Order 16 sets out an exclusive procedure for judicial review proceedings. However, there also needs to be an appreciation of the fact that Order 16 procedure does expressly allow for procedures outside of it to be invoked in appropriate judicial review cases. For Example, Order 16 r 7 (2), which allows for Order 8 Division 2 to be applied in judicial review proceedings in which damages are claimed and Order 16 r 8 (2), which allows for Order 9 Divisions 1 and 2 and Order 11 Division 3, to be applied in applications for discovery, interrogatories and filing of affidavits.  There are other general Rules outside of the Order 16 procedure which are invariably applied in all civil proceedings, including judicial review proceedings, although they are not expressly adopted under Order 16 procedure.  
27.	Consequently, notwithstanding the lack of express provision under Order 16 procedure which adopts Order 5 r 8 (1); for the reasons given, the application of this Rule is in my view indispensable and statutorily imperative in joinder applications in all proceedings, including judicial review proceedings. In any event, judicial review being part of the civil jurisdiction, application of Order 5 r 8 (1) compliments Order 16 r 5 (2) and r 13 (6) (4) (c). I consider Order 5 r 8 (1) to be no different to Order 4 r 36, which is invariably invoked by litigants seeking dismissal of judicial review proceedings for want of prosecution and summary determinations. In Kelvin Rumpia v. Abaris Buri & Ors N3035, the Court expressly stated that Order 4 r 36 is a general provision, meaning it can be applied and relied on in any civil proceeding, including judicial review proceedings. Another procedure outside of Order 16 procedure which is generally invoked in judicial review proceedings is Order 4 r 19, to file an ‘Undertaking as to Damages’ when seeking restraining or stay orders.  There is abundance of case law in support of this proposition. See, for example Sir Puka Temu v. Rigo Lua (2015) N5918. For these reasons, I find that the applicant can rely on Order 5 r 8 (1).
28.	Of course, one needs to bear in mind the general principle that Rules are not an end in themselves but are a means to an end, and by reason of which,  if rigid application of the Rules will result in injustice, including denial of  the right of a party to be joined as a party and be fully heard, then such rigid application of the Rules should be dispensed with, if to do so is in the interest of justice: Les Curlewis v. Reuben Renagi & Ors (2013) SC1274; Innovest Limited v. Hon. Patrick Pruaitch, Minister for Forests and Climate Change (supra) and Jim Trading Ltd v. John Madison (2006) N3174. 
29.	The procedure provided under Order 16 r 5 undoubtedly appears brief and abrupt starting from the service of the notice of motion to the hearing of the motion. This Rule does not provide for joinder applications, and there are no express provisions in the Rule, elaborating and particularizing the procedure. This apparent vacuum and uncertainty is now filled and cleared by the new JR Rule 13, which provides an elaborate and codified procedure  for Order 16 r 5 (2) from the service of the notice of motion to the hearing of the motion. The Rule prescribes as part of the procedure under Rule 5; Directions hearings, Pre-trial conferences, motions, summary determinations, compilation of review books for substantive hearings, grounds for review and joinder of persons served with the Rule 5 (1) notice of motion as parties to the proceedings as stipulated under Rule 13 (6) (4) (c). 
30.	As to Order 16 r 9 (1), it is important to appreciate that the procedure under this Rule follows on from the procedure set out under Order 16 r 5. It is equally important to appreciate that the intention and purpose of Order 16 r 9 (1) is to give to a person who had not been served with the Order 16 r 5 (1) notice of motion, as provided under Sub-rules (2), (3), (5) and (6) but wished to be heard in opposition to the motion, a right to be heard. Such person has to apply to the Court and prove that he is a proper person who should be heard in opposition to the motion. This requirement is plain from the use of the following terms in the Sub-rule - “…and appears to the Court to be a proper person to be heard, shall be heard….”   Then the Court has to determine whether the person is a proper person who should be so heard. Again this is plain from the above terms of the Sub-rule.  A similar view was held in Ken Norae Mondiai v. Wavoi Guavi Timber Company Limited (2006) N3061. Thus, Order 16 r 9 (1) essentially provides an avenue for a person who had not been served with the notice of motion but desires to be heard in opposition to the notice of motion, to be heard. The Rule is silent on joinder applications. It follows that the applicant cannot rely on this Rule.
31.	Apart from the above mentioned Rules as a source of Court’s jurisdiction or power to grant the relief sought in this application, this is an appropriate case in which the applicant can also invoke the inherent power of the Court. There are valid grounds for the Court to exercise its inherent power and order joinder, pursuant to Orders 5 r 8 (1) and 16 r 5 (2), of the applicant as a party to the proceeding and be heard on the motion which is challenging the legality of its Exploration License. 
32.	The Court’s inherent power is conferred by both common law and s. 155 (4) of the Constitution. The latter is applicable here and it reads:
	Both the Supreme Court and the National Court have an inherent power 	to make, in such circumstances as seem to them proper, orders in the 	nature of prerogative writs and such 	other orders as are necessary to do 	justice in the circumstances of a particular case.  
33.	In Avia Aihi v. The State [1981] PNGLR 81, the Supreme Court said the phrase “to do justice” in s. 155 (4) of the Constitution meant “to do justice according to law” and the word “law” in this context meant the body of law as defined in s. 9 of the Constitution. In that case the Supreme Court said the Court can exercise its inherent power under s. 155 (4) of the Constitution to protect and enforce a primary right. See also SCR No.2 of 1980; Re s.14 (2) of the Summary Offences Act, 1977 [1981] PNGLR 50; Andrew Trawen v. Steven Pirika Kama & Michael Laimo v. Steven Pirika Kama (2010) SC1063 and Special Reference by Morobe Provincial Executive (2010) SC1089. 
34.	In Avia Aihi v. The State (supra), Kerney DCJ, at page 91 in discussing the meaning of the phrase - “inherent power” in s. 155 (4) said: 
	“I agree with the views of Prentice C.J. and Andrew J. in Constitutional 	Reference No. 1 of 	1979; Premdas v. Papua New Guinea [1979] 	P.N.G.L.R. 329, at pp. 337, 401.18 that the Constitution, s. 155 (4), 	involves at least a grant of power to the courts. I consider that the sub-	section gives unfettered discretionary power both to this Court and the 	National Court so to tailor their remedial process to the circumstances of 	the individual case as to ensure that the primary rights of parties before 	them are protected”.
35.	As I adverted to in the beginning of this judgment, the plaintiff has conceded that the applicant has an interest in the case. The concession is unequivocal and unqualified. In essence the concession automatically entitles the applicant to be joined as a party to the proceeding and be heard on the motion: Paul Berr v. Robin Yango (2012) N4706. In that sense, the granting of the application is as a matter of course. 
36.	In any event, given the circumstances of the case, I would not be doing justice according to law, viz. Order 16 Rules 5 (2) and 13 (6), (4), (c) and Order 5 r 8 (1), if I accepted the argument of the plaintiff and refused the application. 
37.	The applicant’s primary right conferred by the Rules to be heard on the motion must be fully accorded to it. This can only be possible if the applicant was joined as a party to the proceeding.
 38.	In the result, it is my duty to order, as I now do that the relief sought in this application be granted and that the applicant be joined as the fifth defendant in the proceeding.
39.	Orders accordingly.

________________________________________________________________
Gadens Lawyers: Lawyers for the Plaintiff:  
Solicitor General: Lawyers for the First Defendant:  
Allens Linklaters Lawyers: Lawyers for the Second, Third and fourth Defendants
 Ashurst Lawyers: Lawyers for the Applicant