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Tika Associates Ltd v Ngangan [2018] PGNC 304; N7420 (16 August 2018)

N7420

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 244 OF 2018 (CC1)

BETWEEN
TIKA ASSOCIATES LIMITED
Plaintiff

AND
DR. KEN NGANGAN as Secretary for Finance
First Defendant

AND
KEPSY K. PUIYE as the Secretary for
Department of Petroleum & Energy
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
BANK OF SOUTH PACIFIC LIMITED
Fourth Defendant

Waigani: Dingake J
2018 : 24 May, 14 Jun

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 Applicants 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);
Simon Mali v The State (2002) SC690

Counsel:

Mr. Jimmy Dia Lyipita, for the Plaintiff
Mr. Robbie Kebaya, for the Defendants
Mr. Philip Ame & Mr. Mapiso, Interested Party

16^th August, 2018

1. DINGAKE J: By way of diverse notice of motions, three in number, applicants pray that they be joined as defendants in proceedings OS No. 244 of 2018.

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

3. The applicants are:

1. Steven Koyomu
2. Peter Eiyu
3. Paul Pinde
4. Vincent Kikimowu
5. Wolutou Land Group Incorporated.
6. Paul Sapake and Jason Tirime of Toale Hongiri sub-clan.
7. Nelson Yekili of Yenido Gobasi sub-clan.
8. Yaks Yakoraia of Tiasapi sub-clan.
   

4. I have considered all the affidavit material in support of all the applications for joinder.

5. It would seem that what triggered the various applications for joinder was the originating summons filed by the plaintiff on the 16^th of April, 2018, seeking, inter alia, an order that it is entitled to 30% of the underpaid royalty payments for Gobe Landowners from 1989 to 2005 following an alleged agreement entered into between the plaintiff and Gobe Landowners on the 28^th of October, 2017.

6. The plaintiff also seeks a declaration that the first defendant pay out the Gobe Landowners underpaid entitlements pursuant to Section 17(1) of the Public Finance Management (Amendment) Act 1995, in accordance with the agreement of the 28^th of October, 2017 as an authority issued by landowners.

7. The combined effect of the affidavits of Peter Eiyu and Paul Pinde, in support of notice of motions filed on 13^th of June, 2018 (Doc No. 6) is that there are Chairpersons of Ase Tipurupeke and Haukarake Tipurupeke clans respectively, who at some stage signed an agreement with the plaintiff (Tika & Associates) to the effect that 30% of payment due to the clans would be paid to the plaintiff (Tika & Associates). The agreement is not attached and it is not clear what it said and whether it was signed on behalf of their respective clans or not. The applicants do not even set out the terms of the agreement to assist the Court to locate their interests or determine whether it is necessary to join them.

8. The supporting affidavit in support of the joinder of Wolutou Land Group Incorporated deposed to by Wilfred Upeke avers that the applicant is a registered customary owner of State Lease, which lease covers almost 82 000 hectares of land area on which the Gobe Petroleum Project PDL 3 &4 sits and avers that as the Principal Landowner, it should have been joined as a party to the proceedings.

9. The affidavit of Paul Sapake filed in support of the notice of motion filed on the 20^th of June, 2018 (Doc No. 18) avers that he is the leader of Imawe Bogasi Stock Clan and Chairman of the Toale Hongiri ILG, one of the 9 sub-clan ILGs of the Imawe Bogasi Stock Clan. He avers, inter alia, that he has not authorised, nor engaged the plaintiff (Tika & Associates) to undertake any consultancy work on behalf of his Toale Hongiri ILG.

10. The issue that falls for determination is whether the applicants should be

joined as plaintiffs in this proceedings?

11. 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)

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

13. 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.

14. 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).

15. In this case, all the applicants who have applied for joinder have not proved to this Court by any cogent and credible evidence that they have interest in the subject matter of the main proceedings they seek to join in their individual capacities. Their averments relating to signing an agreement with the plaintiff concerning 30% consultancy fee does not advance their case for joinder in any significant manner, in the absence of that agreement and further evidence establishing their interest.

16. In so far as some applicants wish to be joined as representing clans, the applications cannot succeed, as they have not adduced any written authority to bring this application, on behalf of their respective clans (Simon Mali v The State (2002) SC690). The applicants who purport to be representing clans, have also not adduced evidence establishing that it is necessary that they be joined in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.

17. Having regard to 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.

18. In the result:

1. The applications do not meet the requirements of Order 5 Rule 8 1(a) or (b);
2. The applications are dismissed in their entirety;

100. The applicants pay costs to the Respondent.
     

___________________________________________________________
Leo Lawyers: Lawyers for the Plaintiff
Office of the Attorney General: Lawyers for the Defendant
Ame Lawyers: Interested Party