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Aluya v Jubi and Hawinda [1992] PNGLR 306 (7 December 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 306 - Kupiawa Aluya v Katia Jubi and Lawi Hawinda 

[1992] PNGLR 306

N1121

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPLICATION BY LAWI HAWINDA

Waigani

Brown J

12 November 1992

7 December 1992

PRACTICE AND PROCEDURE - Leave to intervene in appeal from Land Titles Commission ruling - Persons not "aggrieved" with right to appeal pursuant to Part V of the Land Titles Commission Act 1962 - Interveners seeking right to be heard - Interests correspond with existing respondents to appeal.

APPEAL - Fresh evidence - When allowed?

WORDS AND PHRASES - "Aggrieved persons", Land Titles Commission Act.

Facts

Various persons seek by leave to intervene in appeal proceedings before the National Court from a decision of the Land Titles Commission upon review. They are members of the clans and subclans named as respondents to the appeal, whose named representatives were heard by both the Land Titles Commissioner at first instance and the Commission upon review.

Held

1.       Where it has been shown that the interveners and the existing respondents have a mutuality of interest, justice and common sense dictate that intervention is not warranted.

2.       Intervention is not permitted for they are not "aggrieved persons" within the meaning of Part V of the Land Titles Commission Act 1962, who have appealed within the time limit.

Cases Cited

PNG v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448.

Counsel

Appellants in person.

R Pato, for respondents.

A Kaiabe, for applicants seeking leave to intervene.

7 December 1992

BROWN J: These various persons (who I shall refer to hereafter as "interveners") seek the Court's leave to be heard on an appeal by various clans against a decision of the Land Titles Commission upon review, on 4 March, 1992, affirming a decision at first instance of the Lands Titles Commissioner made on 25 July 1991.

The persons seeking leave were neither parties in the proceedings before the Land Titles Commissioner at first instance nor were they persons aggrieved who have appealed the Commissioner's determination. "Aggrieved persons" have the right to bring an appeal pursuant to Part V of the Land Titles Commission Act 1962.

These interveners are:

(a)      Lawi Hawinda on his own behalf and on behalf of the Arua-Ingita clan;

(b)      Ibira Pereya on his and the Pina clan's behalf;

(c)      Lembo Talira on his behalf and that of other members of the Hiwa main tribe and Wita clan;

(d)      Palia Handabe on his and the Wita clan's behalf.

The Arua clan was represented by one Larry Andagali in the proceedings before the Land Titles Commission. The Pina clan's representative was Andira Halepange. The Hiwa main tribe was represented by Katia Jubi and the Wita by Egawi Tayanda. All these representatives are named as respondents to the appeal. Mr Kaiabe (the lawyer for the interveners) read various affidavits by the particular interveners, the affidavit of Dandali Pungas dated 17 July 1992 and an affidavit of Alfred Kaibe.

The interveners Lawi Hawinda and Pelia Handabe's earlier affidavits of December 1991 are found in an affidavit of Marago Pate sworn 24 August, 1992. These two interveners' affidavits form part of a memorandum of understanding between the subclans of Arua Ingiria, (namely Papole, Pelara, Kandopa); the subclans of Pina (namely Dala, Tibu, Kipa, Haitene); the subclans of Hiwa (namely Poroporo); the subclans of Wita (namely Keneru and Keneria) and the clans of the Tujuba tribe (namely Tuguba Pepe, Tuguba Pate, Tubuga Nguane, Tuguba Tagobali, Tuguba Tabu, Tuguba Yugu, Taguba Tagua and Tuguba Ware). That memorandum recites the fact that the parties intend to give effect to all that is stated in the affidavits forming part of the memorandum (and touched on above).

To the extent that the agreement sets forth the understanding of these various clans and subclans, it may be said to bind them. So where the affidavits which form the basis of the memorandum criticise the Land Titles Commission decision, I presume these interveners are ad idem with the respondents to the appeal in relation to the issues raised in the appeal. Yet these interveners now come and seek to be separately heard on the same issues raised in the appeal and touched on in the memorandum of understanding. While such an application to intervene may be contrary to the spirit of the memorandum, that is not a conclusive reason to refuse their application.

The affidavits clearly relate to evidence of genealogy and land use which may or may not accord with the evidence before the Land Titles Commissioner on the original hearing. Where it does not, to allow it to be read in these proceedings must mean it forms part of the evidence on the appeal if I were to allow intervention.

I am not prepared to allow what amounts to an attempt to bring "fresh evidence" into the appeal in this fashion. The interveners clearly identify with the original respondents to the appeal and by their memorandum, have reiterated what they see as a relationship and seek to pursue that relationship. It seems plain to me that the respondents to the appeal should take account of the interveners' interest on the hearing of the appeal.

As well, there is no apparent reason why these interveners could not have put their own arguments at the original hearing before the Commissioner, if their interests clash with those of the respondents. Yet, after that hearing, the interveners and the respondents entered into a memorandum of understanding recognising the mutuality of their interests. Consequently, no just reasons have been advanced to warrant intervention.

I should say the manner in which these interveners have presented their case is very confusing. To annex affidavits to other affidavits cannot be allowed. No deponent of a head affidavit, for instance, could be cross-examined on the material in the annexed affidavit. The lawyers for the respondents in this motion took no issue with the manner of putting forth the interveners' arguments on the basis of these prolix affidavits, probably because they were as confused as I. It has taken me some time to wade through the material unnecessarily annexed to these various affidavits of the interveners. Nevertheless, annexing affidavits to affidavits is wrong and objectionable. I have, however, read those annexed affidavits on their own.

The effect on me is that justice and common sense dictate that the intervention is not warranted nor permitted by law. It is not warranted, for the respondents to the appeal, by their own memorandum, recognise the interest of the proposed interveners. It is not permitted by law, for they are precluded now from intervening, not having appealed from the Commission's original decision as "persons aggrieved" within the statutory appeal period of 90 days. I find support for my refusal to extend time in the reasoning of Woods J. in PNG v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448. Their apprehension in the appeal hearing seems to be a fear that the concurrent interests of the respondents may not accord with their particular view of the appropriate arguments to be advanced on the day. Nevertheless, I find that they are not persons entitled to be heard on appeal and dismiss their motions with costs.

Appellants appear in person

Lawyer for the respondents: Steeles.

Lawyer for applicants seeking leave to intervene: A Kaiabe.