N11257
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS 215 OF 2013

BETWEEN:
YAFERAKA INCORPORATED LAND GROUP
Plaintiff

AND:
BADI SENEMAHIA INCORPORTAED LAND GROUP 
First Defendant

AND:
RAPAHAEL APPA, PROVINCIAL LAND COURT MAGISTRATE
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAGLUME/WAIGANI:  KANGWIA J
13 JANUARY, 24 FEBRUARY & 21 MARCH 2025
 
JUDICIAL REVIEW – Review of decision by Provincial Land Court – whether trial judge err in the conduct of the proceedings – intervening proceeding - application to substitute parties – Order 5 Rule 8 relied on.

Cases cited
Timbers PNG Ltd v Papua New Guinea Forest Authority (2012) N4638
Tarsie v Ramu Nico Management (MCC) Ltd [2010] N4141
Kare Puga Development Corporation v Kruse (2010) N4183 
Aitsi v The State (2008) N5353
Sullivans v Van Der Brook [1999] NSWSC 1177
 
Counsel
M. Ipape for the plaintiff
E. Waifaf for the first defendant
No appearance for the second & third defendants

1.     KANGWIA J: Before the court is an application for Judicial Review of the decision made in the Mendi Provincial Land Court on 20 December 1995 in proceeding styled as appeal case No 9 of 1992 between Kapi Nato & Others as Appellants and Samai Kei & Others as Respondents. The application seeks to remove into this Court and quash the decision of the Provincia Land Court. Leave was granted by Justice Kassman on 19 June 2019. 
2.       It appears the Respondent being aggrieved by the Local Land Court decision appealed the decision to the Provincial Land Court in the same year because the appeal case was given registry number 9 of 1992. There is no evidence to show that the Applicant was aggrieved by the Local Land Court Decision.  It appears the Applicant became aggrieved by the decision of the Provincial Land Court some 24 years after the Local Land Court Decision was made.   
3.       On the hearing of the Respondents appeal the Provincial Land Court presided by Provincial Land Magistrate Raphael Appa quashed the decision of the Local Land Court and declared that; “the whole area of dispute at Wakesa 7X and 9X oil heads and the immediate surroundings belonged to Kapi Natto and his Senemahia clan”.  
4.     This is the decision the subject of the application for Judicial Review for which leave was granted. 
5.     On the date set for trial at Walume in Southern Highlands Province, both parties tendered into evidence by consent affidavits sought to be relied on and closed their respective cases without calling further evidence. The matter was then adjourned for parties to make submissions on a date to be fixed in Waigani. 
6.     On 24 February 2025 when the matter returned at Waigani for submissions, the proceeding took another twist. Mr Ipape for the Applicant informed the Court that the Applicant had filed a notice of motion seeking orders to substitute the parties to the proceeding and it should be determined first before submissions. Despite objection by Mr. Waifaf the Court granted leave for the notice of motion to be heard. 
7.      The orders sought in the notice of motion are in these terms.
1.	An order pursuant to s 155 (4) of the Constitution, Order 1 Rule 7 and Order 16 Rule 13 (13) of the National Court Rules and the inherent jurisdiction of the Court for the service requirements be dispensed with and this application be heard and dealt forthwith.
2.	An order pursuant to s 155 (4) of the Constitution and Order 1 Rule 7, Order 12 Rule 1, Order 5 Rule 8 (a) and (b), Order 5 Rule 12 (1) of the National Court Rules for;
(a)	Yaferaka Incorporated Land Group to be removed as Plaintiff and substituted with Sakai Kei as the Plaintiff on behalf of the Yaferaka clan,
(b)	Badi Sanemahia Incorporated Land Group to be removed as First Defendant and replaced with John Kapi Natto as the First Defendant on behalf of Badi Sanemahia clan.
(3) Costs of the application to be in the cause.
(4) An order that time be abridged to the time of settlement of these orders by the Clerk of Court.
(5) Any other orders this Court deem appropriate.
8.    On behalf of the Applicant Mr. Ipape relies on the sole affidavit of Sakai Kei and submits that the substitution orders stated in the notice of motion should be granted in the exercise of discretion. 
9.     For the Respondent Mr. Waifaf argues the contrary and submits that the motion should be refused as the Applicant has no standing after the ILGs were deregistered pursuant to s 36 of the Land Groups Incorporation (Amendment) Act 2018. 
10.     When put to counsel on what the law is on an application for substitution of parties in an application for judicial review, both counsels were unable to offer any assistance. 
11.     After hearing counsels, the decision on the application for substitution was reserved to a date yet to be fixed.
12.     This now is the decision on the notice of motion for substitution of parties. 
13.     The Applicants evidence in support of the Notice of motion for substitution of parties is in the affidavit of Sakai Kei which was handed up during submissions. 
14.     The Respondent on the other hand, relies on s 36 of the Land Groups Incorporation (Amendment) Act 2018 to oppose the application. Relevant parts of the Act were also handed up during submissions.  
15.     In the affidavit of Sakai Kei, he claims that he is the incumbent Chairman of the Plaintiff ILG/clan. 
16.     He deposes that in the Provincial Land Court the appeal proceeding is styled as Appeal Case No. 9 of 1992: Kapi Nato & Ors v Samai Kei & Ors while in the application for Judicial Review the proceeding is styled as Yaferaka Incorporated Land Group v Sanemahia Incorporated Land Group & 2 Ors. 
17.     He then deposes that legal advice he received was that ILGs that did not re-register under the amended ILG laws automatically became de-registered after the grace period expired. As a result, all the 117 beneficiary ILGs including the Applicant and Respondent became defunct. He blames State agencies for not creating awareness and work with the 117 clans to re-register their ILGs under the amended legislation.
18.     He deposes that a Court Order directed a working committee to reregister all the ILGs. Following the Court Order Petroleum Kutubu Limited Board passed a resolution to fund the ILG re-registrations, but the resolution is yet to be implemented. 
19.    He further deposes that further legal advice obtained was that he can obtain orders for substitution, and therefore he obtained the consent and authority of the Yaferaka clan members to substitute the parties in the application for judicial review. Annexed to his affidavit are the signatures of 21 people who are purported to have given their consent and authority to apply for substitution of parties. 
20.     In opposing the Notice of motion, the Respondent relies on s 36 of the Land Group Incorporation (Amendment) Act 2018 to assert that the Applicant lacks standing. The provision when reproduced states:
“36.  SAVING AND TRANSITIOAL ARRANGEMENTS
All current and existing incorporated land groups that were incorporated prior to 27 February 2012, shall continue for a transitional period of 10 years only and that such incorporated land groups shall automatically cease to exist at the tenth anniversary of this date”.

21.    The Applicant seems to acknowledge the effect of this provision on the ILGs to make the application for substitution of parties. The effect of s 36 is affirmed in the affidavit of Sakai Kei which states that the 117 ILGs in their area were all deregistered.
22.    The issue that emerges from the competing positions is whether the application for substitution of parties is incompetent for lack of standing. This issue draws the attention of the Court to the question of jurisdiction. 
23.     The notice of motion to substitute parties emanated from an application for Judicial Review of the decision by the Provincial Land Court in Mendi for which leave was granted. 
24.     By way of background, it is uncontroverted that Judicial Review is a unique standalone proceeding unlike other civil proceedings as it concerns applications for an order in the nature of mandamus, prohibition, certiorari or quo warranto and its processes are guided by Order 16 of the National Court Rules. It has its own time limitations. 
25.     The mode of applications for Judicial Review is by notice of motion to the Court pursuant to Rule 5. Therefore, the person making the application for Judicial Review must be named as the Applicant. The converse effect is that the opposing party becomes a Respondent. The present proceeding has erroneously named the parties as Plaintiff and Defendant. 	
26.     Be that as it may, Order 16 does not prescribe any procedure for substituting a party in an application for judicial review.
27.     Substitution of parties is a rule of practice employed in many jurisdictions and occurs on the death of a party in a claim that is not extinguished. Motion can then be moved by a successor or representative to put finality to the claim. In this jurisdiction case law on substitution of partiers in an application for Judicial Review is scant. 
28.     In the present application the applicant has relied on Order 5 Rule 8 of the National Court Rules to apply for substitution of parties. It is instructive to reproduce this rule and when reproduced it states:
“ 8. Addition of parties (8/8) (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.
(2) A person shall not be added as plaintiff without his consent.”

29.     The requirements of this rule do not provide any room for substitution of a party which occurs where a party in a proceeding has died, and the claim is not extinguished.  Order 5 Rule 8 only allows for a party to be joined or added as a party to a proceeding. When the provision sought to be invoked only allows for joining of a party the application to substitute parties becomes unenforceable under this rule.
30.     If the Court were minded considering whether the applicant could be joined as a party the principles on whether or not an applicant can rely on Order 5 Rule 8 to be joined in a proceeding are adequately set out in the case of Timbers PNG Ltd v Papua New Guinea Forest Authority (2012) N4638. They are:
1.	Whether the applicant has sufficient interest in the proceeding
2.	Whether the applicant’s joinder is necessary to ensure all matters in dispute in the proceedings can be effectively and completely adjudicated upon
3.	The proposed party will be affected if the relief sought in the claim is granted 
4.	The joinder of the proposed party is necessary to satisfy any orders made in the proceeding. 
31.     Whether to order that the applicant be joined as a party is an exercise of discretion. (Tarsie v Ramu Nico Management (MCC) Ltd [2010] N4141; Kare Puga Development Corporation v Kruse (2010) N4183.
32.     In all cases of joinder, the Court retains the discretion whether to join or sever (if already joined) in the interest of justice. 
33.     There are other considerations that a Court must be satisfied with before an order can be made to join a party.  
34.      In the case of Aitsi v The State (2008) N5353 in an application for addition of defendants in an amendment to the writ of summons pursuant to Order 8 Rule 53 the Court while relying on the Australian case of Sullivans v Van Der Brook [1999] NSWSC 1177 held that:
“The Plaintiff is seeking to add new defendants almost two years after the 6 years time limitation had expired and is not appropriate that this should be permitted.”  

35.     In the present case the Applicant ILG seeks to substitute parties after the 40 days time limitation for making an application for Judicial Review had expired. 
36.    According to the affidavit of Sakae Kei the parties in the application for judicial review are ILGs who have been de-registered and are prevented from proceeding with the application, so they want to substitute the ILGs with other persons as parties. How sound the proposition might be, it does not meet the requirements under Order 5 Rule 8 and the application for substitution is untenable. Order 5 Rule 8 only allows for adding of parties to existing parties and not replacing existing parties. 
37.     The Applicant ILG has also failed to meet the requirements of Order 8 Rule 53 to be properly joined as a party. There is no evidence of the interest the Applicant ILG has to apply for Judicial Review of the Provincial Land Court decision when the records show that the parties in the two Land Courts were individuals representing others. 
38.     There is no evidence that the Applicant ILG was a party in the Local Land Court or the Provincial Land Court. There is no evidence of any application made to be joined as a party in the Local Land Court or Provincial Land Court. Furthermore, there is no evidence that the applicant made application to be joined as a party in the application for leave to apply for judicial review. 
39.     It appears the National Court was misled into granting leave for Judicial review when the Applicant ILG had no standing ab initio as a party.  According to the affidavit of Sakae Kei, the parties in the Provincial Land Court were Kapi Nato & Others v Samai Kei & Others and it would be safe to assume that the parties were the same parties in the Local Land Court.  There is no evidence of how the Applicant ILG acquired standing to apply for Judicial Review.  
40.    Secondly, it is uncontroverted that the named ILGs in this proceeding are non existing entities after they were deregistered by amendment to s 36 of the Land Groups Incorporated (Amendment) Act. They ceased to exist and are unable to sue or be sued in their corporate name.   
41.     If the Court was minded dispensing with the requirements of Order 5 Rule 8 the Court is still handicapped by the lack of jurisdiction when the proceeding is introvertedly statute barred pursuant to Order 16 Rule 4 (2) of the National Court Rules. The 40 days time limit set by this rule expired on 29 January 1996 without anyone filing any application for Judicial Review. 
42.     There is also no evidence that the Applicant made an application for extension of time to file its application for Judicial Review. 
Under the circumstances the jurisdiction of the Court has not been properly invoked and the application for Judicial Review should be refused.  
43.     Notwithstanding the conclusion on the issue of jurisdiction, I am minded making a general observation from the materials before the Court.  
44.      After the Local Land Court made its decision on 4 August 1992 Kapi Nato & Ors appear to have been the most aggrieved parties when they took immediate steps in the same year to file an appeal to the Provincial Land Court.  As for Samai Kei & Others there in nothing to show that they were aggrieved by the Local Land Court decision. The records also show that the same parties were involved in the Provincial Land Court.  After the Provincial Land Court decision was made on 20 December 1995 Samai Kei & Ors allowed the Provincial Land Court decision to stand undisturbed for more than 20 years. Even then the application for Judicial Review was made after an inordinate delay by the applicant ILG without disclosing its standing. 
45.     The reasons given that appeal documents and the Court Orders of the Provincial Land Court were deliberately withheld and not served on the Applicant are not valid grounds and belated by more than 20 years when the record before the Court shows that both parties were actively involved in the Provincial Land Court with the assistance of lawyers on record. Lawyers do not place their names in cases they do not represent. The statement of Mathew Tamutai who appeared as lawyer for the Appellant in the Provincial Land Court shows that the opposing lawyer was one named Langtry. 
46.     It creates room to doubt the veracity and genuineness of the application for Judicial Review. It appears the Applicant only became aggrieved when financial benefits were accruing from the land “Wage” which was the subject of the original dispute. There is a high probability that an application for Judicial Review of the Provincial Land Court decision would not have been pursued if no financial benefits were accruing from the land. That is apparent because the Applicant did not challenge both the Local and Provincial Land Court decisions for more than 20 years. 
47.     Under the circumstances the doctrine of finality to a proceeding should be allowed to prevail and the application for substitution of parties should be refused. The effect of the refusal is that it infects the application for Judicial Review of the Provincial Land Court decision, and it must stand dismissed in its entirety. 
Formal Orders
1.	Application for substitution is of the parties in the application for Judicial Review is refused.
2.	The application for Judicial Review shall stand dismissed in its entirety.
3.	The Applicant shall bear the costs of and incidental to this application to be agreed if not taxed. 
_____________________________________________________________
Lawyers for the applicant: Ipape Lawyers		
Lawyers for the respondent: Edward M. Waifaf Lawyers