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Andago v Hamaga [2018] PGNC 136; N7239 (23 April 2018)

N7239

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 1011 OF 2017

BETWEEN
HURIBA ANDAGO – as Leader & Representative
of Tukuba Kayumba Clan, Hides PDL7
First Plaintiffs

AND
ELAPE TINDIPI – as Lader & Representative
of Yagora Clan, Hides PDL7
Second Plaintiff

AND
TOLAI AWE – as Leader & Representative
of Tugubu Pate Clan, Hides PDL7
Third Plaintiff

AND
NALI ANGOYA – as Leader & Reprsentative
of Tuguba Aiya Clan, Hides PDL7
Fourth Plaintiff

AND
TIBABE AGORA – as Leader & Representative
of Taguli Clan, Hides PDL7
Fifth Plaintiff

AND
HAME LEGANI – as Leader & Representative
of Tuguba Pepe Clan, Hides PDL7
Sixth Plaintiff

AND
ROBERT HAWI – as Leader & Representative
of Tuguba Gayumba Clan, Hides PDL7
Seventh Plaintiff

AND
TABE HAYAGA – as Leader & Representative of Hugu Clan, Hides PDL7
Eight Plaintiff

AND
JOHN TIKO – as Leader & Representative of Tamburuma Clan, Hides PDL7
Ninth Plaintiff

AND
MALIABE TALIYA – as Leader & Representative of Taguali Clan, Hides PDL7
Tenth Plaintiff

AND
HALUNI HIMUNI – as Leader & Representative of Tuguba Mina Clan, Hides PDL7
Eleventh Plaintiff

AND
ANDY HAMAGA – as Chairman of Hides PDL7 Local
Level Government Special Purpose Authority & In Person
First Defendant

AND
HIDES PDL7 LOCAL LEVEL GOVERNMENT
SPECIAL PURPOSE AUTHORITY
Second Defendant

AND
AUGUSTINE MANO – As Managing Director
of MRDC & Government Facilitator
Third Defendant

AND
KEPSY PUIYA KOYA – As Secretary of the
Department of Petroleum & Energy & as Government Facilitator
Fourth Defendant

AND
THE INDEPENDENT STATE ORF PAPUA NEW GUINEA
Fifth Defendant

AND
BANK OF SOUTH PACIFIC
Sixth Defendant

Waigani: Dingake J
2018 : 23^rd April

PRACTICE AND PROCEDURE – Application by interested parties to be joined as plaintiffs and defendants – National Court Rules, Order 5, Rule 8.

Cases Cited:

PNG Deep Sea Fishing v Critten (2010) SC1126
Tigam Matewo v Keith Faul Kner (2009) SC960

Counsel:

Mr. R. Habuka, for Plaintiffs/Applicants
Mr. D. Kop, for First & Second Defendants/Respondents
Mr. M. Tukuliya, for the State
Mr. C. Kopunye, for the Third Defendants/Respondent
Mr. S. Ababh, for the Sixth Defendant

23^rd April, 2018

1. DINGAKE J: This is an application for joinder filed by various interested parties who all want to join as interested parties to the substantive cause of action herein.
   
2. There are seven (7) interested parties who have all filed application for joinder pursuant to Order 5 Rule 8 (1) of National Court Rules. These are Malcom Bani Paijako representing the Taguba Tagobali clan, Tom Wandipe, Albert Tundu, James Mara as the clan leader of the Taiga sub-clan, Steven Ipule, Peperaya Kupali and Angai Walawi.
   
3. The first four of the interested parties filed applications to be joined as plaintiffs, whilst the last three filed an application to be joined as defendants.
   
4. The last three interested parties who filed an application to be joined as defendants, also sought as an alternative to being joined as defendants, that the substantive proceedings to which these joinder applications relates as well as Court proceedings OS No. 1011 of 2017 – OS No. 1 of 2018 (JR) – Angai Walawi & Others v Thomas Potape & Others be consolidated and be heard together pursuant to Order 12 Rule 1 of the National Court Rules. The consolidation aspect of the application was not sufficiently well motivated and I find it is not merited.
   
5. The substantive proceedings before this Court concerns an alleged entitlement or the sharing of K15 Million paid by the National Government to Hides Petroleum Development License (PDL) 07, which is now subject of this Court proceedings. The money was paid for the benefit of landowners from Hides PDL 07 area in Hela Province.
   
6. The landowners are all beneficiaries of a total K35 Million that was paid by the National Government through Mineral Resources Development Corporation (MRDC) a company incorporated by the National Government to hold monies for and on behalf of all petroleum and mineral resource owners throughout the country.
   
7. The arrangement was that from the K35 Million, K20 Million was paid to Hides PDL01 Landowners and K15 Million was paid to Hides PDL 07.
   
8. All the interested parties who are landowners from PDL 07, are entitled to benefit from K15 Million.
   
9. The K15 Million referred to earlier was paid to Hides PDL 07 Local Level Government Special Purpose Authority (Hides PDL 07 LLG SPA) to be distributed to all genuine landowners.
   
10. The interested parties who have filed an application to join as defendants aver that in addition to being landowners from Hides PDL 07 they were also elected as Board Members. These defendants challenge the legitimacy of the Board under the first defendant, who they aver, was not properly appointed as Chairperson, and that under his leadership, the Board is not competent to distribute the monies allocated for distribution to PDL 07 landowners.
    
11. The above board is recognized by the Minister for Inter-Government Relations.
    
12. The above interested parties who wish to be joined as defendants have brought judicial review proceedings in proceedings OS No. 1 of 2018 (JR) to challenge the legitimacy of the Board under the leadership of the first defendant.
    
13. Save for Malcom Paijako and James Mara, there is no dispute that all the interested parties are landowners in PDL 07 and that as a consequence they have sufficient interest to be joined as parties.
    
14. Mr Kop for the first and second defendants has taken issue with the form of the notice of motion filed by Mr. Paijako, in particular the assertion by Mr. Paijako that he represents his clan. Mr. Kop contends that a clan is not a legal entity; and that it can only have legal capacity once it has been incorporated and a certificate of incorporation has been issued.
    
15. Mr. James Mara on the other hand claims to be a clan leader but attached no evidence to that effect. I will return to the unique issues pertaining to the application by Mr. Paijako & Mr. Mara in due course.
    
16. The application by three interested parties who sought to be joined as defendants is opposed on the basis that it would delay the efficient disposal of the substantive application. In other words, it is said that the joinder of the interested parties who wish to join as defendants is not necessary to ensure that all matters in dispute in the main proceedings can be effectively and completely adjudicated upon. It is also argued that such a joinder will unduly delay the resolution of the substantive matter before the Court.
    
17. Mr. Japson who represented the interested parties who want to be joined as defendants argued that as landowners in PDL07 they have sufficient interest. He submitted that they want to be joined as defendants, not plaintiffs because they are challenging the legitimacy of the Board and its Chairman being the first defendant.
    
18. It is trite learning that whether or not to join a party to proceedings is a matter of discretion by the Court, which discretion must be exercised on sound principles of law and on good grounds.
    
19. A party or parties who wish to be joined as a party to the litigation must meet two requirements:
    
    • (a) Whether the applicant has sufficient interest in the proceedings; and
      
    • (b) 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 (PNG Deep Sea Fishing v Critten (2010) SC1126).
      
20. In considering whether a party has met the above requirements, it is imperative to have regard to the cause of action pleaded in the substantive matter before the Court. In this matter the cause of action relates to beneficiaries of K15 Million of landowners of PDL07. It follows from the above cause of action that every legitimate/genuine landowner of PDL 07 has an interest in the subject matter of the substantive matter before the Court.
    
21. It is convenient at this stage to deal with the circumstances of Mr. Paijako and James Mara to the extent that they purport to represent their clans.
    
22. I agree with Mr. Kop that Mr. Paijako to the extent that his notice of motion and or entire application, suggest that the interested party is the clan, and attaches no certificate of incorporation, to establish legal capacity to sue, such an application is incompetent and cannot succeed and I so hold .
    
23. Mr. Paijako has attached a letter of authorization to his supporting affidavit signed by people purporting to be clan leaders. There is no evidence to establish or confirm:
    
    • (i) That the aforesaid persons are indeed clan leaders from members of the clan; and
    • (ii) That they are authorised to bring this or any proceedings on their behalf.
      
24. Mr. Paijako’s application is similar to that of Mr. Mara who claims to be a clan leader – but attaches nothing to show that he has been authorised by the clan to represent them, and that he is their clan leader. To the extent that Mr. Mara attached no evidence to establish that he represents the clan, a point which his lawyer, Mr. Dusal, conceded in court, mean his application must fail and I so hold: (See Tigam Matewo v Keith Faul Kner (2009) SC960).
    
25. I turn now to the application of the balance of the interested parties who have applied to be joined as plaintiffs. It is conceded that they as landowners have sufficient interest in the matter. I have applied my mind to whether their joinder is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon. I have no hesitation in holding that each one of them is a necessary party. As landowners in PDL07 they are entitled to participate in the distribution of K15 Million.
    
26. I turn now to the parties who sought to be joined as defendants. At the hearing of this application much opposition was expressed against the interested parties being permitted to join as the defendants mainly because they have instituted review proceedings challenging the legitimacy of the Board and its Chairman as earlier indicated and fear was expressed that their joinder may delay the proceedings.
    
27. The three interested parties who sought to be joined as landowners allege to be landowners of PDL07 and this averment has not been credibly contested.
    
28. As to whether their joinder is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon, the answer seems to be that, it is possible that the judicial review proceedings they have instituted may delay the disposal of the substantive matter in this case. They have already been granted leave to institute review proceedings.
    
29. As landowners their participation is obviously necessary in finding a lasting solution to the matters in dispute.
    
30. In my mind it would be unjust and unreasonable to exclude them simply because they have brought review proceedings challenging the legitimacy of the Board and its Chairman. I am satisfied that without their participation all matters in dispute in these proceedings cannot be effectively and completely adjudicated upon. One such matter is whether the Board under the Chairmanship of the first defendant is the legitimate body to facilitate the distribution. This matter is already in Court and the Court must be allowed to pronounce on the legitimacy of the Board and the leadership of the first defendant. This is what justice and the Rule of Law requires.
    
31. I see no good reason to exclude the applicants herein, save for Mr. Paijako and Mara, for the reasons stated earlier, from these proceedings, when they are landowners in PDL07 and having regard to the cause of action.
    
32. The possibility of delay expressed by other parties opposed to the joinder is not sufficient to justify exclusion of the parties who have sufficient interest in the substantive matter.
    
33. In summation it is appropriate as a matter of discretion to uphold the application for joinder herein filed. This will avoid the prospect of a multiplicity of proceedings regarding the same cause of action.
    
34. In the result, the following persons shall be added as plaintiff’s and described accordingly.
    

a) Tom Wandipe;

b) Albert Tundu;

35. The application by the following persons; Mr. Paijako and Mara to the extent that they represent their clans and or as unincorporated clans, is refused.
    
36. The following three interested parties are joined as defendants.
    

a) Steven Ipule;

b) Peperaya Kupali;

d) Angai Walawi.

37. Each party shall pay its own costs.
    
38. The time for entry of this Order is abridged to the date of settlement by the Registrar which shall take place forthwith.

_____________________________________________________________ Kandawalyn Lawyers: Lawyers for the Plaintiffs
Pakil Lawyers: Lawyers for the Defendants