Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kupako v Covec (PNG) Ltd [2019] PGNC 165; N7889 (21 June 2019)

N7889

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 612 of 2017

BETWEEN:
KAKAS KUPAKO
First Plaintiff

AND:
PIPO MIKELE
Second Plaintiff

AND:
COVEC (PNG) LIMITED
Defendant

Waigani: Shepherd J
2019: 31^st May & 21^st June

PRACTICE AND PROCEDURE – National Court – requirements for joinder – Order 5 Rule 8(1) National Court Rules - applicant for joinder must have sufficient interest in the proceeding - joinder must be necessary for effective determination of issues raised – factors to be considered – whether any relief is sought against proposed party – whether plaintiff opposes the application for joinder - whether proposed party will be affected if relief sought in statement of claim is granted - whether joinder of proposed party is necessary to satisfy orders made in the proceeding.

PRACTICE AND PROCEDURE – stay of National Court proceeding – Order 12 Rule 40(1)(d) National Court Rules, stay pending determination of ownership of customary land and interests in customary land by Local Land Court or Provincial Land Court on appeal

REAL PROPERTY – Ownership and interests in customary land – Sections 26 and 53 of Land Disputes Settlement Act - only Local Land Court and Provincial Land Court have jurisdiction to determine disputes as to ownership and interests in customary land – Village Court only has limited jurisdiction to issue interim orders authorizing use or prohibiting use of customary land pending determination of customary ownership of land issues by Local Land Court or Provincial Land Court

Held:

1. On an application for joinder under Order 5 Rule 8(1) of National Court Rules, the Court in the exercise of its discretion must be satisfied (1) that the applicant has sufficient interest in the proceedings, and (2) the joinder of the applicant as a party is necessary to ensure that all matters in dispute in the proceeding can be effectively and completely adjudicated upon.

2. The factors which the Court must consider on an application for joinder include whether (1) any relief is sought against the applicant; (2) the plaintiff opposes the application for joinder; (3) the applicant 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 made in the proceeding.

3. The applicants had not satisfied the requirements of Order 5 Rule 8(1) to warrant joinder as no determination of a longstanding dispute as to customary ownership of the subject land or of interests therein, whether in whole or in part, had been made in favour of the applicants by a Local Land Court under Section 26 of the Land Disputes Settlement Act or on appeal by a Provincial Land Court under s.53 of that Act.

4. A stay of the proceeding was nevertheless granted under Order 12 Rule 40(1)(d) of National Court Rules to enable the plaintiffs and the applicants to litigate the dispute regarding customary ownership of the subject land and/or interests therein at Local Land Court level, and if necessary on appeal to the Provincial Land Court, at Wabag, Enga Province so that a final determination of customary ownership and/or interests can be made, following which this proceeding is to return before the National Court for further orders.

Cases cited:

Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718
PNG International Hotels Pty Ltd & Anor v Registrar of Land Titles & Ors (2007) N2307
PNG Deep Sea Fishing Ltd v Hon. Luke Critten (2010) SC 1126
Tika Associates Ltd v Dr Ken Ngangan as Secretary for Finance & Ors (2018) N7420
Konze Kara v Public Curator of Papua New Guinea and The State (2010) N4048
Golpak v Alongkarea Kali & Ors [1993] PNGLR 8
Ronnie Wabia v BP Explorations Operating Co. Ltd & Ors [1998] PNGLR 8
Louis Lucian Siu v Waime Land Group Inc (2011) SC1107
Aru Ako & Anor v Lessie Ben Wia (2013) N5100
Joseph Lyaki Taleokon v Jeffrey Apakali (2013) SC1306

Counsel:

Mr G. Manda, for the Plaintiffs
Mr I. Jacob, for the Defendants
Mr T. Tape, for the Applicants

DECISION
21 June, 2019

1. SHEPHERED J: By motion filed on 28 May 2019 the applicants seek joinder as second defendants in this proceeding. Apart from joinder, the applicants also seek dismissal of this proceeding, alternatively a stay of this proceeding until such time as the issue of ownership of certain customary land which is in dispute between the applicants and the plaintiffs is settled.
   
2. The application for joinder is made in terms of Order 5 Rule 8 of the National Court Rules. The application for dismissal, alternatively a stay of the proceedings, is made by the applicants in reliance on Order 12 Rule 40(1) of the National Court Rules.
   
3. The applicants are Francis Akus and Sulin Kissam, both of whom assert that they and the family members they represent are the true owners of customary land known as the Winn gravel pit which is located near Tapinini on the Porgera-Laiagam road, Enga Province. The applicants say that the first and second plaintiffs in this proceeding are strangers to that customary land and that they have no lawful right to claim customary ownership of the land.
   
4. The application for joinder and either dismissal or a stay of this proceeding has been belatedly made by the applicants in response to the originating summons filed by the plaintiffs on 21 July 2017. By that originating summons the plaintiffs were initially seeking judicial declarations in reliance on a Village Court decision made on 11 November 2014 that royalties payable by the defendant (Covec) for its extraction of gravel from the Winn gravel pit should be apportioned and paid by Covec as follows:
   

a) 55 % to the first plaintiff for distribution to members of his Wiya Clan;

b) 45% to the second plaintiff for distribution to members of the Wandiyanda Clan.

The plaintiffs by their originating summons also sought an order for Covec to account for royalty payments said to have been unpaid to the Winn gravel pit landowners between 2012 and 2014.

5. A series of directions were made by the Court in this proceeding on 6 March 2018 whereby:
   

a) pending the final determination of this case or until further order of the Court, Covec was to pay the sum of K64,240.80 into the Registrar of the National Court's Trust Account, this being the amount which Covec asserts was equivalent to the unpaid royalties owing to the Winn gravel pit landowners for the years 2012 to 2014 but which Covec had intentionally been withholding from payment until disputes which had arisen regarding the customary ownership of the Winn gravel pit had been resolved;

b) this case was to proceed on pleadings, with the plaintiffs to file a statement of claim complying with the National Court Rules relating to representative actions and clearly stating the names of the persons the plaintiffs are each representing;

c) the plaintiffs' statement of claim was to be published at least once in the public notices section of one of the daily newspapers so as to give notice to any other persons claiming a customary ownership interest in the Winn gravel pit and to the world at large of the plaintiffs' National Court action against Covec.

6. In compliance with the directions of the Court made on 6 March 2018, Covec duly paid the sum of K64,240.80 into the National Court Registrar's Trust Account. Those monies continue to be held in the Registrar's Trust Account pending the outcome of this case or until further order of the Court.
   
7. The plaintiffs filed their statement of claim on 23 March 2018 and a sealed copy was served on the defendant's lawyer on 28 March 2018.
   
8. The plaintiffs' statement of claim pleaded, among other things, that in 2012 Covec entered into a quarry agreement with purported customary landowners represented by Chris Laiza and others, not being the plaintiffs, for the extraction of gravel from the Winn gravel pit on terms which at 80 toea per cubic metre seriously undervalued the resource. The plaintiffs' statement of claim also referred to a provision in Covec's quarry agreement to the effect that in the event of any dispute as to who were the true customary landowners of the Winn gravel pit, the dispute would be resolved between the disputants themselves, in which event Covec was not to be involved in the dispute.
   
9. Annexed to the plaintiffs' statement of claim is a schedule containing the signatures of 10 members of the Wiya Clan and 10 members of the Wandiyanda Clan authorizing the first and second plaintiffs to represent them in this proceeding and signifying the agreement of those clan members that the ratio of royalties payable by the defendant is 55% to the Wiya Clan and 45% to the Wandiyanda Clan.
   
10. The relief sought in the plaintiffs' statement of claim includes a claim for judgment against Covec for unpaid royalties for gravel extracted from the Winn gravel pit between 2012 and 2014 alleged by the plaintiffs to be worth K5,927,649.

11. The plaintiffs' statement of claim was published in the public notices section of the Post-Courier newspaper on 8 May 2018.
    
12. Following a series of further directions by the Court, including interlocutory orders for discovery and inspection of documents as well as settlement of a statement of agreed and disputed facts and issues for trial, the plaintiffs then applied for leave to file an amended statement of claim. That application was granted on 9 April 2019. The plaintiffs' amended statement of claim was filed on 12 April 2019. The amount claimed against Covec by the plaintiffs in their amended statement of claim for alleged unpaid royalties and compensation was increased from K5,927,649 to K24,508,005.93.
    
13. Covec filed its defence to the plaintiffs' amended statement of claim on 3 May 2019.
    
14. On 6 May 2019 the parties were ordered to return before the Court on 31 May 2019 for final directions to be given to progress the case to trial and for a trial date to be allocated.

The amended pleadings were closed when the plaintiffs filed their reply to Covec's defence on 11 May 2019.

15. It was at this late stage that the applicants, without forewarning to the plaintiffs or to Covec, suddenly filed their motion on 28 May 2019 seeking joinder and then dismissal of the whole of this proceeding, alternatively a stay of the proceedings pending resolution of the conflicting claims which have been made regarding customary ownership of the Winn gravel pit.
    
16. I allowed the applicants' motion to be heard at short notice on the return of this matter before me on 31 May 2019 after Mr Greg Manda, counsel for the plaintiffs, indicated that the applicants' motion was opposed but that he was ready to proceed. Mr Israel Jacob of Mann-Rai Lawyers, counsel for Covec, stated that his client's position was that the orders sought by the applicants were not opposed. The applicants were represented at the motions hearing by Mr Timil Tape of Kandawalyn Lawyers. After hearing the motion and submissions from all three counsel, I reserved the Court's decision on the motion.
    

Issues for determination

The issues which fall for determination by the Court are these:

1. Have the applicants met the criteria for joinder under Order 5 Rule 8 of the National Court Rules?

2. Should this proceeding be stayed or dismissed pending resolution of the dispute regarding customary ownership of the Winn gravel pit?

Issue No. 1 – the application for joinder

17. The law in relation to joinder of parties is well settled. Order 5 Rule 8(1) of the National Court Rules provides:
    

"(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."

18. The established principles on joinder of a party under Order 5 Rule 8(1) are these:

(1) whether the applicant has sufficient interest in the proceeding;

(2) whether the applicant's joinder as a party is necessary to ensure that all matters in dispute in the proceeding can be effectively and completely adjudicated upon.

See Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718; PNG International Hotels Pty Ltd & Anor v Registrar of Land Titles & Ors (2007) N2307; PNG Deep Sea Fishing Ltd v Hon. Luke Critten (2010) SC 1126; and more recently Tika Associates Ltd v Dr Ken Ngangan as Secretary for Finance & Ors (2018) N7420.

19. The factors which the Court must consider when applying these two principles to an application for joinder were identified by Hartshorn J in Konze Kara v Public Curator of Papua New Guinea and The State (2010) N4048. Those factors include whether:
    

(a) any relief is sought against the proposed party;
(b) the plaintiff opposes the application for joinder;

(c) the proposed party will be affected if the relief sought in the statement of claim is granted;

(d) the joinder of the proposed party is necessary to satisfy any orders made in the proceeding.

20. As to the first of these factors, in this case, no relief is sought by the plaintiffs against the two applicants as proposed parties.
    
21. As to the second of these factors, the plaintiffs strenuously oppose the joinder application. The plaintiffs contend that the applicants have no interest in this proceeding because the plaintiffs deny that the applicants are the lawful customary owners of the Winn gravel pit. The plaintiffs assert that only they and the clan members they represent are the lawful customary owners of the disputed land and resource. Covec supports the applicants' motion, although this concurrence by Covec for the orders sought by the applicants was not explained by Covec's counsel in his short submissions at the motions hearing.
    
22. It is the third of the factors identified by Hartshorn J in the Konze Kara case as requiring consideration when applying the principles relevant to an application for joinder which bears close analysis. Can it be said in this instance that the applicants will be affected if the relief sought in the plaintiffs' amended statement of claim is granted? The answer to that question depends on who has lawful customary ownership of the Winn gravel pit. If it is the plaintiffs and the clan members they represent who have lawful customary ownership, then the applicants would have no standing to bring any claim for royalties or compensation against Covec. The applicants could not be affected by any judgment against Covec in this proceeding. But if it is the applicants and their family members who have the lawful customary ownership of the Winn gravel pit, then the applicants would most certainly be affected if this proceeding were to proceed to trial and judgment be granted in favour of the plaintiffs against Covec. It must be borne in mind that the plaintiffs' claim against Covec as pleaded in the plaintiffs' amended statement of claim is for damages exceeding K24.5million, an enormous sum of money. Whether judgment could ever be obtained in that amount is of course a matter for trial, and is mere conjecture at this stage. But this does not alter the fact that if this proceeding were to go to trial on the current state of the pleadings between the plaintiffs and Covec alone, a serious injustice to the applicants could occur if it were the applicants, not the plaintiffs, who are the lawful customary owners of the Winn gravel pit.
    
23. There is nothing in the evidence before the Court which was presented at the motions hearing on 31 May 2019 which conclusively demonstrates to my satisfaction who has the lawful customary ownership of the Winn gravel pit or entitlement to benefit from this resource. I find that this essential issue, which goes to the core of the plaintiffs' cause of action in this proceeding against Covec and which has been raised by the applicants' motion, remains unresolved, even at this late stage of the case. My reasons for this finding are summarized below.
    
24. The plaintiffs assert that it is they and their clan members, not the applicants and their clan members, who have valid customary ownership of the Winn gravel as a result of the National Court on 15 September 2014 having dismissed a claim in National Court proceeding OS No. 89 of 2014 by Francis Akus, who is one of the current applicants for joinder. The defendants cited in that National Court case were Chris Laiza, Kakas Kupako and Covec (PNG) Ltd. The plaintiffs in this current proceeding OS No. 612 of 2017, Kakas Kupako and Pipo Mikele, contend that the effect of the National Court's dismissal of OS No. 89 of 2014 was that it restored an earlier order of the District Court at Wabag dated 11 November 2004 in proceeding VCA No. 43 of 2004 between Pipo Mekele as complainant and Kakas Kupako as defendant, which arose on appeal from orders made in certain proceedings at Village Court level at Tapinini. In short, the plaintiffs in this proceeding OS No. 612 of 2017 assert that the District Court order in VCA No. 43 of 2004 validates their current claim that in respect of the Winn gravel pit, the Wiya Clan represented by the first plaintiff Kakas Kupako has customary ownership of 55% of the land and that the Wandiyanda Clan represented by the second plaintiff Pipo Mekele has customary ownership of the remaining 45% of the land.
    
25. The only affidavit relied on by the plaintiffs for the purposes of opposing the applicants' joinder motion is the affidavit of first plaintiff Kakas Kupako sworn on 19 July 2017 and filed in this proceeding on 21 July 2017. Annexed to Mr Kupako's affidavit are copies, many indistinct or truncated, of different court orders made at Village Court, District Court and National Court level, all bearing witness to a proliferation of past litigated disputes which occurred between 2004 and 2013 regarding the customary ownership of the Winn gravel pit involving Kakas Kupako, Pipo Mekele, Chris Laiza, Covec and Francis Akus, the latter party being one of the current applicants for joinder in this proceeding OS 612 of 2017, as well as others. I observe that not one of those orders was made by a District Land Court or a Provincial Land Court.
    
26. I also note that one of the copies of orders annexed to Mr Kupako's affidavit, Annexure "F", is an order purportedly made on 5 December 2013 in National Court proceeding OS No. 890 of 2018 at Mt Hagen between Chris Laiza as plaintiff and Kakas Kupako as defendant which declared Chris Laiza to be "the legitimate principal landowner and thus have the privilege to accept ownership of the [Winn] Gravel Pit". That order was fraudulently manufactured, as was confirmed by letter dated 13 December 2013 from Justice Goodwin Poole of the National Court at Mt Hagen to Magistrate Wialo Sakato of the District Court at Wabag, which letter is Annexure "G" to Mr Kupako's affidavit. Justice Goodwin Poole states in his letter, with reference to the purported order of 5 December 2013:
    

"The Orders enclosed were not made on 5^th December 2013. I returned to Mt Hagen that afternoon from Port Moresby and the Court did not sit until 9.00 am Friday 6^th December 2013.
I have grave doubts about the authenticity of the Orders – on the face of it the document is a forgery."

27. The applicants for joinder tell a different story. In support of their application for joinder, the applicants rely on the affidavit of Sulin Kissam sworn on 27 May 2019, filed in OS No. 612 of 2017 on 28 May 2019. I set out extracts of that affidavit, as Mr Kissam's evidence is the basis for the applicants' assertion, as submitted by their counsel, that the applicants have sufficient interest in the current proceeding to warrant their joinder:
    

"2. Francis Akus is my paternal uncle ... and we are the true landowners of Winnie/Win Gravel Pit, the land from which this the compensation claim in this proceeding is based. I explain ... that the Plaintiffs are not the customary landowners but we the Applicants and our family members.

...

5. We entered into an agreement with [Covec] for extracting gravel at our Winnie/Win Gravel Pit on or around 30^th October 2012. The true copy of the agreement is annexed hereto and marked with letter "C".

...

7. The Plaintiffs to this case have never summoned us in any court claiming their ownership of the land against our customary landownership.

8. What I know of in relation to customary land ownership issue of that particular land was around 2001 when a person by the name of Kupako Ipisakale had a dispute at the Tipinini Village Court and the Village Court decided in favour of Francis Akus that includes our family. The true copy or the Village Court decision is annexed herein and marked with letter "C2".

9. The Plaintiffs are not the customary landowners of Winnie/Win Gravel Pit. The Plaintiffs are from Piam Village which is about 15 to 20 kilometers away from the Gravel Pit, the subject of the claim. My village and house is next to the gravel pit and it is within the heart of my village ...
...

18. On one occasion, the Plaintiffs even threatened and arrested Francis Akus around 2015 for no reason but just to suppress him and make him fearful to give up on the land claim. He was in the cell for 5 months and was released.

19. The Plaintiffs are also threatening me with criminal charges and arrest. I am only educated up to Grade Six and they think they will scare me away from opposing their claim. However, I was able to engage my lawyers and get them to represent me in court against the Plaintiff[s] as I am the true landowner and not the Plaintiffs."

28. Mr Kissam also refers in his affidavit to National Court proceeding OS No. 89 of 2014 at Wabag: Francis Akus v. Chris Laiza, Kakas Kupako and Covec (PNG) Ltd. Mr Kissam deposes that the National Court in that case referred the parties back to the Village Court to settle the ownership of the Winn gravel pit. Curiously a copy of that National Court order was not annexed to Mr Kissam's affidavit. However a copy of the National Court's order for the dismissal of that case is annexure "I" to the affidavit of Mr Kupako. The order is dated 15 September 2014. It was made by Acting Justice Kewi Kawi. The order clearly states that the entire proceeding in OS No.89 of 2014 was dismissed for want of jurisdiction.
    
29. Mr Kissam deposes in his affidavit that following the dismissal of proceeding OS No. 89 of 2014, three separate summonses were issued out of Village Courts in Porgera District during 2015 on complaint by Francis Akus addressed to Kakas Kupako and others requiring them to attend village court to settle the dispute over the ownership of the Winn gravel pit. As Mr Kupako failed to respond to any of those summonses, Mr Kissam says that a further summons to Mr Kupako was issued out of the "Wabag Joint Court" (presumably the Joint Village Court at Wabag) on 6 February 2018 requiring Mr Kupako to attend that Court on 20 February 2018 to settle matters relating to the dispute over ownership of the Winn gravel pit. Mr Kupako apparently refused to accept service of that fourth summons, just as he had done with the previous three Village Court summonses, so, according to Mr Kissam's evidence, the Joint Village Court at Wabag made a settlement order, obviously ex parte, on 20 February 2018 by which Francis Akus was declared to be the chief landowner of the Winn gravel pit and that "he is entitled to land payment." A copy of that order of the Joint Village Court at Wabag made on 20 February 2018 was inexplicably not annexed to Mr Kissam's affidavit. However, for reasons I now explain, nothing turns on that omission.
    
30. Referring back to the dismissal of Francis Akus's case in National Court proceeding OS No. 69 of 2014 against Chris Laiza, Kakas Kupako and Covec on 15 September 2014, there is no transcript in evidence in the current joinder application in OS No. 612 of 2017 as to the reason or reasons why Acting Justice Kawi-iu dismissed Francis Akus's case in OS No. 89 of 2014 for want of jurisdiction. However it is not surprising that that case was dismissed as it is well established that the National Court has no jurisdiction to determine disputes as to ownership of customary land or interests in customary land. Whether His Honour indicated to the parties at the time of dismissal of that case that they should return to a Village Court rather than a Local Land Court to sort out the ownership issue, as alleged by Mr Kissam in his affidavit, is doubtful. I say this because only a Local Land Court and a Provincial Land Court on appeal from a decision of a Local Land Court have jurisdiction under Section 26 and Section 53 respectively of the Land Disputes Settlement Act Chapter 45 to determine disputes over customary ownership or interests in customary land. A Village Court, a District Court and the National Court have no power to determine issues going to the ownership of customary land: see Golpak v Alongkarea Kali & Ors [1993] PNGLR 8, Ronnie Wabia v BP Explorations Operating Co. Ltd & Ors [1998] PNGLR 8; Louis Lucian Siu v Waime Land Group Inc (2011) SC1107.
    
31. In the leading case of Louis Lucian Siu, the Supreme Court comprising Injia CJ, Manuhu and Kawi JJ had this to say:
    

"Section 3 of the Land Disputes Settlement Act states that the Act applies to disputes as to interests in customary land or as to the position of the boundaries. Doherty J, in Golpak v Alongkarea Kali & Ors ... stated that the right to make a contract over an interests [sic] in land is caught by Section 2(d) of the Land Disputes Settlement Act where land is defined to be customary land and includes an interests in land. A contract for use of land is "an interests in land."

"Interests is defined in Section 2 of the Act as "any interests in the land of whatsoever nature, that is recognized by the customs of the people of the area in which the land is located". And "land" is defined as customary land and includes ... earths and minerals or under the land; and interests in land". Section 3 of the Act states, "this Act applies to disputes as to interests in customary land" and Section 26(a) provides amongst other things, that the Local Land Court has jurisdiction "over and in relation to a dispute as to an interest in land."

32. In the Golpak case, Doherty J when holding that the National Court has no jurisdiction to deal with issues as to ownership of customary land or interests in customary land observed as follows:

"It seems to me that the spirit and the intent of the legislature in writing the Land Disputes Settlement Act was to prevent the National Court from arbitrating on the forms of accession and hence ownership or control on interests in customary land and I think therefore that it would be against both the letter and the spirit of the legislation if I took upon me the powers to make declarations on what is an interests in land. I therefore consider that this Court does not, at this time, have jurisdiction to arbitrate in this case and I must therefore refer it to the Local Land Court to determine who have the interests in the land."

33. The Golpak and Louis Lucian Siu cases are unassailable authority for the proposition that disputes regarding customary ownership and entitlement to monetary or financial benefits arising from the use of or associated with the extraction of any natural resources from customary land can only be determined by a Local Land Court at first instance under Section 26 of the Land Disputes Settlement Act, subject to a party's right of appeal to a Provincial Land Court under Section 53 of that Act.
    
34. As to situations where a Village Court or a District Court purport to determine disputes relating to customary land issues, I cite the observations made by Injia CJ in Joseph Lyaki Taleokon v Jeffrey Apakali (2013) SC1306:

"Neither the District Court nor the ... Village Court have any jurisdiction to determine disputes over customary land issues, not to mention jurisdiction over freehold land, registered or otherwise. Any finding by those Courts over customary ownership of the subject land is made without jurisdiction... "

35. Section 43 of the Village Courts Act 1989 limits the powers of a Village Court when dealing with a dispute as to customary ownership of land or the right by custom to use of customary land to orders which:
    

(1) authorise or prohibit the use or occupation of customary land;

(2) restrain a party to the dispute from interfering with the authorized use or occupation of customary land,

or for any other purpose, pending a decision of the Local Land Court or the Provincial Land Court.

36. Section 48 of the Village Courts Act states:
    

"Subject to Section 43, a Village Court has no jurisdiction under Division 4 in relation to a matter involving the ownership of land."

Division 4 of the Act deals exclusively with the civil jurisdiction of Village Courts. See also Aru Ako v Lessie Ben Wia (2013) N5100.

37. Returning to the applicant's motion for joinder, as none of the numerous Court orders adduced in evidence by the applicants and the plaintiffs at the motions hearing in this proceeding on 31 March 2019 relate to any order made under the Land Disputes Settlement Act by a Local Land Court or an order on appeal made by a Provincial Land Court which has determined once and for all the issue of customary ownership of the land known as the Winn gravel pit and/or who has the right to receive royalty payments or other forms of compensation for the extraction of gravel from the Winn gravel pit, I repeat that I find that these core issues remain unresolved. Those issues cannot be determined until such time as a proper ruling on them has been made by the Local Land Court at Wabag or on appeal by the Provincial Land Court at Wabag.
    
38. As to the fourth of the factors which Hartshorn J enumerated in the Konze Kara case should be considered by the Court on an application for joinder, that is to say whether the joinder of the applicants is necessary to satisfy any orders which are likely to be made in this proceeding, they will not on the present state of the pleadings between the plaintiffs and Covec.
    
39. If the applicants were to be joined at this stage, only for their claim to customary ownership of the Winn gravel pit and/or interests therein to be rejected by the Local Land Court or on any appeal to the Provincial Land Court and for either of those Courts to instead make findings in favour of the plaintiffs, then there would be no utility by allowing the applicants to join this proceeding OS No. 612 of 217 at this juncture.
    
40. The corollary is that if the plaintiffs' claim to customary ownership and to an entitlement to be paid for extraction of gravel from the Winn gravel pit were to be rejected by the Local Land Court or the Provincial Land Court on appeal in favour of Francis Akus and/or Sulin Kissam, then the plaintiffs would in my view have no option at that stage but to seek leave to discontinue their claim against Covec in this proceeding OS No. 512 of 2017 or risk summary dismissal. These are issues for the future.
    
41. A further reason why it would not be proper for the Court to exercise its discretion to allow joinder of the applicants in this proceeding at this stage is that the applicants' motion seeks joinder as defendants, not as plaintiffs. At the hearing of this motion, counsel for the applicants did not explain why the applicants, even if they were to be allowed to be joined as parties, should be joined as defendants rather than as plaintiffs. The plaintiffs make no claim against the applicants in this proceeding for the obvious reason that the plaintiffs deny that the applicants have any right to customary ownership of the Winn gravel pit or to any entitlement to benefit from that resource. If the applicants were to be joined as defendants, there would be no relief claimed against them by the plaintiffs so the applicants would presumably have to file a cross-claim against only Covec, which would not be allowed unless they could furnish this Court with definitive proof of their lawful customary ownership of the whole or part of the Winn gravel pit and/or to interests in that resource. And even then, there could well be issues of time-bar as to part of the cross-clam which Covec would be entitled to raise unless the cross-claim were to seek equitable remedies and not damages in contract or some other cause of action caught by Section 16 of the Frauds and Limitations Act 1988.
    
42. Moreover, I note that Order 5 Rule ((2) of the National Court Rules provides:
    

"A person shall not be added as a plaintiff without his consent."

There is nothing in the applicants' evidence or counsel's submissions made on their behalf which suggests that the Court should infer that the applicants actually wished to be joined as plaintiffs, not as defendants, in this proceeding. If that is what the applicants in fact wanted, that they be joined as plaintiffs, then their motion should have been worded accordingly and the matter should have been addressed in affidavit material filed in support of the motion. It was not.

43. I accordingly find that the applicants do not have sufficient interest in this proceeding at this stage to warrant joinder. At best the applicants have a contingent interest which will only lawfully vest in them upon a determination being made by the Local Land Court or the Provincial Land Court at Wabag on appeal to the effect that it is the applicants and their family members, not the plaintiffs in this proceeding, who have the lawful customary ownership of the whole or part of the Winn gravel pit and/or that they have an interest in that resource which entitles them to benefit from that resource. The applicants' motion for joinder is refused.
    
44. However the applicants will be at liberty to re-apply for joinder in this proceeding should they be able to return to this Court with proof that a final determination as to the customary ownership of the Winn gravel pit and/or interests therein has been made in their favour or partly in their favour by the Local Land Court or the Provincial Land Court at Wabag on appeal.
    
45. I have communicated with the Assistant Registrar in charge of the Wabag Registry of the National Court and he confirms that there is currently a functioning Local Land Court at Wabag and also a functioning Provincial Land Court at Wabag.
    

Issue No. 2 – Application for dismissal or stay

46. It follows therefore that this proceeding OS No. 612 of 2017 cannot progress further at this juncture and that it must be stayed until this Court is satisfied that a proper determination as to the customary ownership of the Winn gravel pit and entitlement to benefits arising from the extraction of gravel from that resource has been made according to law.
    
47. The applicants have applied in term 2 of the motion which was heard on 31 May 2019 that this proceeding be either dismissed or stayed. Dismissal of this proceeding is not an option. The plaintiffs will be entitled to pursue their claim in this action against Covec if they can satisfy this Court that the customary ownership dispute regarding the Winn gravel pit and/or interests therein has been resolved in their favour, or at least partly in their favour, under the Land Disputes Settlement Act.
    
48. Order 12 Rule 40(1)(d) of the National Court Rules states:
    

"(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
...

(d) the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings."

48. In the exercise of my discretion I will accordingly order that this proceeding be stayed generally on condition that the plaintiffs and the applicants be directed to forthwith litigate their dispute regarding customary ownership of the Winn gravel pit and/or interests therein, including any entitlement to benefit from that resource, at first instance with the Local Land Court at Wabag and on appeal if necessary with the Provincial Land Court at Wabag, following which plaintiffs and/or the applicants can apply to the Registrar for the return of this proceeding OS No. 612 of 2017 before this Court. It is at that stage that this Court will then be able to assess whether it is the plaintiffs or the applicants, or possibly the plaintiffs and the applicants, or some of them, who have a cause or causes of action against Covec sufficient to allow the case to proceed to trial or if this proceeding should be dismissed.

Interim injunction

49. In view of past hostilities between the plaintiffs and the applicants, I will also issue an interim injunction under Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution restraining the plaintiffs, the applicants and associated persons from harassing, intimidating or threatening each other pending the return of this case before the National Court.

Costs

49. As the applicants' motion has been refused in part as to joinder but granted in relation to the stay application, I consider it appropriate that the applicants, the plaintiffs and Covec should each bear their own costs of and incidental to the applicants' motion.
    

ORDER

50. The Court orders that:
    
    1. The order for joinder sought by the applicants in their notice of motion filed on 28 May 2019 is refused.
       
       2. This proceeding is stayed generally on these terms:
          

(a) The plaintiffs and the applicants are directed to forthwith litigate their dispute regarding customary ownership of the Winn gravel pit and/or interests therein, including any entitlement to receive royalties or other forms of compensation for the extraction of gravel from that resource, allowing for any apportionment of that customary ownership and/or interest therein, at first instance with the Local Land Court at Wabag and on appeal if necessary with the Provincial Land Court at Wabag, in accordance with the provisions of the Land Disputes Settlement Act.

(b) This proceeding is to return before this Court on application to the Registrar by the plaintiffs or the applicants as soon as the said dispute has been finally determined by either the Local Land Court at Wabag or on appeal if necessary with the Provincial Land Court at Wabag.

3. Pending final determination of this proceeding or until further order, the plaintiffs and the applicants, their family and clan members, agents and anyone whomsoever acting on their behalves are restrained from harassing, intimidating or threatening each other.
   
4. In the event of breach by any person of term 3 of this Order, the person or persons most adversely affected by that breach shall be entitled to call in aid the nearest available police officer or police officers, who shall deal with the breach according to law.
   
   5. The applicants, the plaintiffs and Covec are to each bear their own costs of and incidental to the hearing of the applicants' motion filed on 28 May 2019.
      
   6. The time for entry of this Order is abridged to the time of signing by the Court which shall take place forthwith.

_____________________________________________________________
Greg Manda Lawyers: Lawyers for the Plaintiffs
Man-Rai Lawyers: Lawyers for the Defendant
Kandawalyn Lawyers: Lawyers for the Applicants