N7719
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1448 OF 2014(CC2)

BETWEEN
GAUDI LOGAE, Chairman of Kuriu Incorporated Land Group
First Plaintiff

AND
KURIU INCORPORATED LAND GROUP
Second Plaintiff

AND
DR. KEN NGANGAN as Secretary for Finance
First Defendant

AND
DAIRI VELE as the Secretary for Treasury
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani:  Dingake J
2018:   19th June, 13th July

PRACTICE AND PROCEDURE – Joinder Application – Whether or not a party who wishes to be joined has sufficient interest and joinder is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon – held Applicant failed to meet the required test – joinder refused.

Cases Cited:

PNG Deep Sea Fishing Ltd v Hon. Luke Critten (2010) PGSC53 SC1126)
Timbers PNG Ltd v Papua New Guinea Forest Authority (2012) N4638)

Counsel:

Mr. J Posi, for the Plaintiff
Mr. J Aku, for the First Defendant
Mr. J. Sione, for the Second and Third Defendants
Mr. T M Rei, for the joinder Applicants

13th July, 2018

1.   DINGAKE J:	 This is an application by six (6) applicants to be joined as plaintiffs in proceedings WS No. 1448 of 2014.

2.   The application is made in terms of Order 5 Rule 8(1) of the National Court Rules.

3.  The six (6) applicants are:

•	Rev. Mabata Ata and Kore Kore Gaudi both leaders of the Mavara Clan;
•	Mabi Momo leader of Abisiri Clan;
•	Sarani Ahuta leader of Kuriu Clan;
•	Rei Auda leader of Tanomotu Clan;
•	Tabu Inogo leader of Gaibudubu Clan all of Roku village, Central Province seeking to be joined as Plaintiffs each and severally in this proceedings.

4.  The application is supported by three (3) affidavits sworn by Rev. Mabata Ata (affidavits filed on the 17th April, 7th and 9th of May, 2018).

5.  The applicants aver that their application stems from the consequential findings of the Supreme Court in SCM No. 11 of 2012, to the effect that as the ancestor of Gaudi Logae also signed the 1892 Purchase Document, he is a principal land owner of Napanapa DA5 land for and on behalf of Kuriu Clan “because other ancestors also signed as land owners of Napanapa DA 5 Land”.

6.   The issue that falls for determination is whether the applicants should be joined as plaintiffs in this proceedings?

7.   This matter has tortuous history. It started in the Local Land Court, and wormed its way to the National Court; went up to the Supreme Court and is back to the National Court again.

8.   The facts of the case can be stated briefly and crisply. The genesis of the dispute between the parties could be traced to 2009. On the 5th of November, 2009, the Local Land Court awarded ownership of Napanapa DA5 Land to the First and Second plaintiffs herein.

9.  The decision of the Local Land Court was appealed against by various aggrieved and or interested parties to the Provincial Land Court on the 21st of December, 2010.

10.  The Provincial Land Court declared Pastor Hanua Gadiki and Napanapa Landowners Association Inc. as the principal landowner of DA 5 Napanapa Land.

11.  Significantly, subsequent to the decision of the Provincial Land Court, judicial review proceedings were filed, being OS(JR) No. 243 of 2011 and OS(JR) No. 15 of 2011. The latter has no decisive bearing on the current application.

12.  The proceedings in OS(JR) No. 243 of 2011 were filed by Gaudi Logae and Kuriu Incorporated Land Group.

13.   After hearing arguments on the merits, this Court (per Gavara-Nanu J) on the 18th of July, 2012, quashed the decision of the Provincial Land Court made on the 21st of December, 2010, in its entirety, and declared Gaudi Logae as the principal traditional landowner for himself and for the Kuriu Clan in respect of the Napanapa DA 5 Land.

14.  An appeal by Kore Kore Gaudi and Napanapa Landowners Association Incorporated, against the decision of this Court (per Gavara-Nanu J), to the Supreme Court, in case SCM No. 11 of 2012 was not successful.

15.  A person may only be added as a party to the proceedings if the Court is satisfied that the applicant (1) “ought to have been joined as a party,” or “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”. (PNG Deep Sea Fishing Ltd v Hon. Luke Critten (2010) PGSC53; SC1126).

16.  Once any of the above factors has been satisfied the Court has a discretion to exercise, as to whether such a person pay be added as a party to the proceedings (Order 5, Rule 8 (1) (a) and (b)).

17.  The principles on whether or not a party can be joined are: (1) whether the applicant has sufficient interest in the proceedings, (2) whether the applicant’s joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

18.  The test for whether a person who wants to be joined has sufficient interest in the proceeding or whether his joinder is necessary are:

(1)	whether any relief is sought against the proposed party; 
(2)	the plaintiff opposes the application for joinder;
(3)	the proposed party will be affected if the relief sought in the statement of claim is granted;
(4) 	the joinder of the proposed party is necessary to satisfy any orders in the proceedings (Timbers PNG Ltd v Papua New Guinea Forest Authority (2012) N4638).

19.   In this case the plaintiff opposes the application for joinder.  On the evidence, and on the authority of Supreme Court in SCM No. 11 of 2012, none of the applicants has any right or interest to apply to be joined in this proceedings as the ownership of the DA 5 Land was declared to be owned by Gaudi Logae as the principal for and on behalf of himself and Kuriu Clan.

20.  The applicants appear to raise disputes relating to the customary ownership of land, which issues have been authoritatively and finally determined by the apex Court of the land.

21.   On closer scrutiny of this application, it seems plain that this is a rehash of the same issues that the Supreme Court finally determined and nothing of substance has really changed since the matter was determined by the Supreme Court. The applicants’ continued litigation on the same issues in the absence of a good explanation or material change of circumstances is an abuse of Court process.

22.   Having read the totality of evidence filed of record, I am satisfied that there is nothing to suggest that the joinder of the applicants is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.

23.  In the result:

a)	The application does not meet the requirements of Order 5 Rule 8 1(a) or (b);
b)	The application is dismissed in its entirety;
c)	The applicants’ application shall pay costs to the Respondents.
___________________________________________________________
Rageau Manua & Kikira Lawyers:  Lawyers for the Plaintiff   
Manase Lawyers:  Lawyers for the First Defendant 	
Twivey Lawyers: Lawyers for the Second & Third Defendants
TM Rei Lawyers:  Lawyers for the Joinder Applicants