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Awari v Samson [2021] PGNC 364; N8993 (2 August 2021)

N8993

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 719 OF 2018

BETWEEN:
TIMON AWARI
Plaintiff

AND:
BENJAMIN SAMSON REGISTRAR OF TITLES
First Defendant

AND:
LUTHER SIPISON SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 22^nd July, 2^nd August

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Application for Joinder – Interested Party by – whether the applicant has sufficient interest in the matter – Whether the joinder application is necessary to fully determine all relevant issues raised in the matter – Order 5 Rule 8 NCR – Materials relied insufficient – Balance not discharged – Application dismissed – cost follow the cause.

Cases cited:

Takori v Yagari [2008] PGSC 3; SC905
Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Counsel:

T. Tingnni, for Applicant
H. Babe, for Plaintiff

RULING

02^nd August, 2021

1. MIVIRI, J: This is the Ruling on joinder application by Notice of motion pursuant to Order 5 rule 8 of the National Court Rules of the 08^th June 2019.
   
2. It was filed a year ago since and by todays hearing date 22^nd July 2021 it would be two years outstanding on the record of the Court. The National Court motions amendment rules 2005 is clear that by rule 17 of that rule the court is empowered to strike out the motion if it is not moved within a month since filing. This is a motion outstanding for two years in the running. It clearly breaches this rule and stands to be dismissed if no good reasons are advanced to save its demise.
   
3. The underlying reasons for so imposing are clear, that whereas here joinder is sought in an action, the earlier the better as with the lapse of time prejudice would be more than apparent against parties that are before the Court. And for the party intending it would be no justice if a cause of action clear is denied proper hearing and accord to dispense in law. But the facts relied must substantially support that it is not denial of, but allowance to join justified by the facts and materials relied on, and the law.
   
4. The motion is pursuant to Order 5 Rule 8 addition of Parties. The question posed is ought the applicant be joined as a party of the proceedings. Is it necessary for the disposition of all matters in dispute in the proceedings for their effective disposal that the applicant ought to be joined to determine and adjudicate that issue? This is not a case where the applicant is in possession of the subject land in dispute. If the proceedings proceed, he will not be given his say in the matter.
   
5. The applicant relies on his affidavit filed of the 07^th May 2019 deposing that he is the owner customarily of the land in dispute described as 2176C at Saraga. He relies on the fact that he has been living in the disputed land for more than 10 years where it is located at six-mile Saraga dump Dogura Road. He says he is the leader of the People and the Community around Moresby Northeast contesting that seat a number of times and has now won and is Minister for Housing and Urbanization. He says he entered into an agreement with one Homoka Saraga for sale of the land. Which was customary land recognized by Ivai ILG. It was sold for K 100, 000.00 and payment was made on instalment basis. The evidence relied is hearsay not firsthand from the said Homoka Saraga. The list relied as evidencing payment is in handwriting presumably by the different persons and cannot be relied on as evidence of payment received. It is not from a custodian of records as in a registry, or if an ILG minutes of a meeting showing sale and receipt of moneys relating to the subject land.
   
6. There is no evidence of sale confirmed by Homoka Saraga and of receiving K 100, 000.00 in payment for that sale. Even if it was customary land sale, it is not evidenced out properly firsthand. What is relied on are annexures not in this proceedings but a proceeding in the district Court where the material was pursued there. Even then it is not firsthand from the initiator or the person subject to what comes out as evidence. It is therefore second- or third-class evidence. It is not conclusive evidence even relied on affidavit relied on the applicant. He is not coming firsthand. He pursues second or third hand evidence and in law where he is pursuing that he must be heard, the evidence does not support his cause.
   
7. This is a judicial review proceedings that was on and about since 12^th October 2018 per the affidavit relied of Timon Awari plaintiff of the 09^th June 2021. He formally served the originating documents set out in his affidavit paragraph 3 on the 22^nd October 2020. Leave was granted on the 12^th March 2019. The first and second defendants were served of all originating documents on 26^th March 2019. And the substantive notice of motion was served 27^th March 2019. The Solicitor General was served 01^st April 2019. And directions on the matter issued by this court are set out from paragraph 09. Primarily what is clear is that deduced from the affidavit relied on of Timon Awari of the 12^th October 2018 is that the land was prior to its conversion customary land owned by Homoka Saraga and the Ivai Incorporated Land Group. Together with the plaintiff and executives of the ILG they entered into a contract of sale for the land on the 12^th August 2015 with the plaintiff for the sum of K 450, 000.00. Upon execution of the Contract the plaintiff lodged an application for conversion of the land to obtain title over the land on the 27^th August 2015. This was successfully done before the land Titles Commission presided by Kutt Poanga on the 18^th August 2017 which was the second hearing. And thereafter the Registrar of titles issued a Certificate of title to the Plaintiff on the 10^th November 2017.
   
8. This matter has now proceeded past to the substantive hearing stage which has the above facts raising whether or not the cancellation of the title held by the Plaintiff was proper by the Registrar of Titles.
   
9. That issue will not involve necessarily that the applicant be joined as a party to the proceeding. His joinder will not effectively determine and adjudicate that issue. Because it is matter as to the procedures under the laws relating to grant of title and the like. What is likely from the joinder will not solve that issue because the evidence relied on set out above is either second- or third-class evidence. They are not related to the process and procedure in the issuing cancellation of title. And would not benefit to join. It would multiply issues not related to the core set out above. It is primary to maintain it to the core of the dispute. That will not be the case for the joinder. His joinder will not address and settle the issue raised. It would be better to refuse and leave him out then to join. The cause of action is immediately between the parties originally named and does not extend to the intended joinder the applicant here.
   
10. Looked at from another angle it is not a light matter to derail a party from the hand of justice: Takori v Yagari [2008] PGSC 3; SC905. This is looking at a party named already as a party within and integral. Would that be the case of the applicant in that justice would be denied the applicant if not granted leave to join? He does not demonstrate that he has an arguable case to be joined. Multiplicity of proceedings must be avoided, so is this a case where the applicant would be forced into that situation? That he must necessarily institute separate proceedings to get at the same facts, same circumstances and issues posed. When the facts relied on here are glossed set out above, it is clear that is not the case here. The facts and evidence relied do not support that there is an arguable case posed to allow joinder, it is not warranted from the material presented in support.
    
11. And it is fundamental that Judicial review is a very restricted process and is not open to the world or busy bodies: Pipoi v Seravo, National Minister for Lands [2008] PGSC 7; SC909. And to open is not to invite an inordinate and delayed party into the arena without just cause. Even then the applicant must be directly affected by the process of the proceedings, in this case between the plaintiff and the defendants. The process in granting the title is between the plaintiff and the defendants’ registrar of titles and the Department of Lands and Physical Planning. The applicant was not one of the person who missed out because process by law was not followed to grant title to the plaintiff. That is not the case of the facts relied on by the applicant. His originating process will not be in order so as to follow as in: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949.
    
12. What is the summary is that the balance has not been discharged by the applicant beyond the balance of preponderance that he be joined as a party to this proceeding. His materials relied do not warrant his joinder. He has not demonstrated merit in law and therefore his application is refused with Costs to follow the event forthwith.
    
13. The formal orders of the Court are:
    
    • (i) Motion for joinder is refused and dismissed.
    • (ii) Costs will follow the event on a party to party basis.

Orders Accordingly.

__________________________________________________________________

Tingnni Lawyers : Lawyer for the Applicant

Hebrew Babe Lawyers : Lawyer for the Plaintiff

Office of the Solicitor General : Lawyer for the Defendants