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Kairar Enterprises Ltd v Rosso [2026] PGNC 16; N11693 (4 February 2026)

N11693

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA NO. 10 OF 2023

BETWEEN
KAIRAR ENTERPRISES LIMITED
Plaintiff

AND
HON JOHN ROSSO, MP, as Minister for Lands & Physical Planning
First Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

WAIGANI: PURDON-SULLY J
8 DECEMBER 2025; 4 FEBRUARY 2026

PRACTICE AND PROCEDURE – APPEAL – Requirements for Joinder – Applicant must prove sufficient interest in the proceedings and that joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon – Leave refused – Application dismissed – Order 5 Rule 8 of the National Court Rules.

Cases cited

Amaiu v Yalbees [2020] PGSC 133
Benard v Alex Aipa (trading as Aipa Trading) [2021] N9247
Coecon Ltd v Westpac Bank (PNG) Ltd [2012] N5097
Dollfus Mieg et Compagne S A v Bank of England [1951] 1 Ch 33
Kara v Public Curator of Papua New Guinea and the State [2010] N4048
Kuman v Digicel (PNG) Ltd (2013) SC1232
Martin Mason v. Romily Kila Pat (2016) N6550
Miriori v Daveona [2018] PGSC 19; SC1674
PNG Deep Sea Fishing Limited v Critten [2010] SC1126
PNG Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396
Varika v Mendikwae [2016] N6228
Yakasa v Piso (2014) SC1330

Counsel

Mr. V Gonduon for the applicant
Mr. C Yaga for the appellant
No appearance for first and second respondents

1. PURDON-SULLY J: By Notice of Motion filed 23 October 2025 the applicant, Jonah Sasingian, an occupant of land being Section 310, Allotment 101, Hohola, National Capital District (the land) the subject of these proceedings seeks leave to be joined as a party to the proceedings.
   
2. The application is made pursuant to Order 5 Rule 8 of the National Court Rules (NCR).
   
3. The application is opposed by the appellant, Kairar Enterprises Limited.
   
4. This is the Court’s ruling.
   

CONTEXTUAL BACKGROUND

5. The appellant is the registered proprietor of the land.
   
6. The appellant purchased the land in 2009 from the previous owner, Mr David K Kati, the purchase financed by way of bank loan. The State Lease is in evidence. The appellant has continued to meet the rates and taxes on the land including its mortgage commitments under the loan.
   
7. The appellant asserts that the land is vacant being occupied by illegal settlers including the applicant. Notwithstanding legal ownership it has been unable to access the land and has taken steps to evict the current occupants including the applicant.
   
8. On 21 July 2022 the District Court made orders for eviction of the unlawful occupants of the land.
   
9. While the District Court proceedings were on foot the applicant commenced National Court proceedings (WS No 572 of 2023 – Jonah Sasingian v Kairai Enterprises Limited) (the first National Court proceedings) seeking inter alia a declaration that the State Lease held by the applicant is null and void by reason of fraud.
   
10. On 4 February 2022, the first National Court proceedings were dismissed by the National Court as being statute barred.
    
11. Aggrieved the applicant appealed to the Supreme Court in proceedings SCA No 22 of 2022 (the Supreme Court appeal).
    
12. On 23 March 2023 the Supreme Court appeal was discontinued on the applicant filing a Notice of Discontinuance of Appeal.
    
13. Pending the hearing of the Supreme Court appeal the applicant commenced further proceedings in the National Court (OS No 165 of 2022 – Jonah Sasingian & Anor v Kairar Enterprises Limited) (the second National Court proceedings) seeking orders, amongst others, that the Department of Lands & Physical Planning is the legitimate owner of the land.
    
14. On 12 November 2024, the National Court dismissed:
    
    1. The applicant’s Notice of Motion for want of prosecution; and
    2. The second National Court proceedings by reason of being statute barred and res judicata.
       
15. It is the appellant’s case that it was only after reading of the applicant’s affidavit in the second National Court proceedings that it became aware that a copy Gazette Notice No G576 of 21 July 2022 purporting to forfeit the applicant’s interest in the land. It then had its lawyers carry out a search and make written contact with the Secretary of the Department of Lands & Physical Planning seeking revocation of the forfeiture made in 2015 but not gazetted until 2022. There was no response to that communication. The appellant’s case is that it did not receive a Show Cause Notice as required under the Land Act. Further, while the basis of the revocation was unpaid land rentals, the rentals have been paid.
    
16. The current appeal proceedings were commenced on 12 June 2023, following a grant of leave by this Court seeking an extension of time to appeal out of time.
    
17. On 8 May 2024 the National Court made Consent Orders in terms of the substantive reliefs sought by the appellant, finalising the appeal proceedings (the consent orders).
18. On 12 November 2024 the respondents filed an application to set aside the consent orders.
    
19. On 20 October 2025 the consent orders were set aside.
    
20. On 20 August 2025 the applicant initiated further National Court proceedings against the appellant and others including the two earlier registered proprietors of the land in WS No 297 of 2025 – Sasingian v Kairar Enterprises & Ors (the third National Court proceedings).
    
21. It is the applicant’s case that the land was an undeveloped waste land which over 25 years he maintained, developed and on which he has built and occupied a house. As developer he was not given the opportunity to participate in the tender process to acquire the land. He does not recognise the appellant as the registered proprotor. The person who sold the land to the appellant did not occupy or develop the land. He is seeking to protect his interest in the land because:
    
    1. of the forfeiture of the appellant’s State lease on 21 July 2022 for non-compliance with the requirements for acquisition of State lease;
    2. lack of due diligence on the part of the Department of Lands & Physical Planning when advertising the land;
    100. false representations on the part of the appellant that the land was vacant land.
         
22. It is the appellant’s case that it only became aware of the purported forfeiture of the State Lease with respect to the land during the second National Court proceedings.
    

CONSIDERATION

23. Order 5 Rule 8 of the NCR which is titled Addition of parties, relevantly 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.

24. It is submitted on behalf of the applicant, in summary, that the applicant’s joinder is necessary to ensure that all the matters in dispute in the proceedings can be effectively and completely adjudicated the Court referred to the principles to that end as outlined by the Supreme Court in PNG Deep Sea Fishing Limited v Critten [2010] SC1126 (PNG Deep Sea Fishing) together with the relevant principles as reviewed by Hartshorn J in Varika v Mendikwae [2016] N6228.
    
25. The Court is not persuaded by the applicant’s submissions. While learned Counsel for the applicant invites the Court to apply the relevant principles to the evidence he does not explain how on the evidence the applicant has demonstrated a sufficient interest in the proceedings and otherwise meet the relevant test on the authorities to which he referred the Court.
    
26. The law on joinder is well settled in this jurisdiction. The relevant test as outlined in the seminal decision of PNG Deep Sea Fishing; Varika v Mendikwae [2016] N6228 with respect to Order 5 Rule 8(1) is:
    
    1. Whether the applicant has a sufficient interest in the proceedings;
    2. Whether the applicant’s joinder is necessary to ensure that all matters in dispute in the proceeding can be effectively and completely adjudicated upon.
       
27. In deciding whether the above test has been met the Court should have regard to the cause of action pleaded (PNG Deep Sea Fishing Ltd (supra); Miriori v Daveona [2018] PGSC 19; SC1674).
    
28. Furthermore, in considering whether the above test has been met, the factors outlined by Hartshorn J in Kara v Public Curator of Papua New Guinea and the State [2010] N4048 (Kara) warrant consideration. These include whether:
    
    1. Any relief is being sought against the interested party who seeks to be joined as a party;
    2. Whether the plaintiff opposes the application;
    100. Whether the interested party who seeks to be joined as a party will be affected if the relief sought in the statement of claim is granted;
    4. The joinder of the interested party who seeks to be joined as a party is necessary to satisfy orders made in the proceedings
       
29. Applying those principles to the facts before me:
    
    1. None of the reliefs sought in the Notice of Appeal are against the applicant.
    2. The appellant opposes the application for joinder.
    100. The cause of action (the purported unlawful revocation of a State Lease) in the current proceedings is against the first and second respondents, not the applicant.
    4. If the appellant views that he has a cause of action against the respondents he is entitled to pursue his remedy against those respondents. He cannot be compelled to proceed against other persons who he has no desire to sue (Dollfus Mieg et Compagne S A v Bank of England [1951] 1 Ch 33 cited with approval by Hartshorn J in Coecon Ltd v Westpac Bank (PNG) Ltd [2012] N5097 at [11]).
    5. The applicant has not demonstrated a sufficient legal or equitable interest such that he would be affected in the event the substantive orders are made in the current proceedings.
       
30. With respect to the latter, residing on a property for 25 years and effecting improvements does not in and of itself permit a conclusion that the applicant has an interest in the land. On the evidence, the applicant has been squatting on the land. There is no evidence he has been formally and legally permitted to occupy the land (Benard v Alex Aipa (trading as Aipa Trading) [2021] N9247).
    
31. While a squatter or those who occupy land over a long period of time, without authority, but also without objection, may acquire an equitable interest in the land (PNG Ready Mixed Concrete Pty Ltd v PNG & Ors [1981] PNGLR 396; Amaiu v Yalbees [2020] PGSC 133; SC2046), the applicant adduces no evidence that the appellant was aware of his presence for many years before warnings were given or any attempts made to oppose his occupancy.
    
32. It is difficult to see, on the applicant’s own evidence, how he could assert he has an equitable interest in the land (Martin Mason v. Romily Kila Pat (2016) N6550, per Gavara-Nanu J at [19] and [20]).
    
33. Relevantly, litigation initiated by him to date did not lead to a finding that he had a legal or equitable right to occupy the land.
    
34. The first and second proceedings in the National and/or Supreme Court commenced by the applicant were dismissed or discontinued. In neither National Court proceeding did the applicant seek a declaration that he held an interest in the land. In the second National Court proceedings, for example, he sought a declaration that he was “a long term occupant, developer and applicant to (the Department of Lands & Physical Planning)”. A long-term occupant, developer and applicant does not, without more, give rise to a finding of legal or equitable interest in land.
    
35. In the context of his litigation history the Court places little weight on the applicant’s initiation of the third National Court proceedings. It is trite to observe that anyone can file an application in Court. It does not suggest a meritorious claim. While in the third National Court proceedings the applicant seeks orders inter alia for adverse possession of the land and the grant of a State Lease in his favour, his Statement of Claim does not expressly plead an equitable interest in the land, at least in sufficiently clear terms such as to define that as one of the issues for determination thus putting the appellant on notice to meet it (Yakasa v Piso (2014) SC1330; Kuman v Digicel (PNG) Ltd (2013) SC1232; Amaiu v Yalbees [2020] PGSC 133; SC2046 at [10]).
    
36. I have carefully considered the various documents in evidence with respect to the proceedings initiated by the applicant. Whether or not, as submitted on behalf of the appellant, the current application before the Court and the initiation by the applicant of the third National Court proceedings is an attempt to forestall eviction orders taken out by the appellant in the District Court is not a matter that requires discussion. What, however, can be comfortably said is that there is a paucity of evidence to support the applicant’s claim for joinder in these proceedings. Further, the applicant does not come to court with clean hands.
    
37. The applicant’s evidence, his various complaints against the authorities, the appellant and previous owners of the land, his appeal to the interests of justice by reason of a sense of being wronged, suggest, at best, marginal insight into his own actions and his contribution to his current circumstance if not an impressive sense of entitlement to do as his pleases. On his own evidence, and without troubling himself with enquiry as to who owned the land and whether he should seek permission to be there at all, he used the land for his own purposes, initially as a garden, but thereafter, “gradually as the years went by, settled on it without any objections raised by anyone, including (he appellant)”.
    
38. It is trite to observe that it is difficult to object to what you do not know. It is also trite to observe that the fact that it was vacant land and a swamp did not entitle him to effect improvements without permission, let alone construct a home and reside there.
    
39. Further, his evidence, if accepted, raises more questions than it answers. If the land was, as he deposes, vacant state land and had been since 1997, he appears to have done nothing up until 2016 to regularise his use of or any acquired interest in it, including after discovery of a state lease in favour of an earlier owner, Mr Kati.
40. Nor when in 2016 and 2017, on his evidence, he was informed by the Department that Mr Kati had forfeited the lease and that he could apply for state lease when the land went to tender, did that engender a sense of urgency by way of follow up. Time appeared to drift. Years went by. Other than a purported application to the Land Board for State Lease, the details of that not in evidence, including by reference to date, corroborative documents and outcome, it was not until October 2021, when served with eviction proceedings, that he appeared sufficiently motivated to action. His evidence, again, is silent as to his response to the proceedings before the District Court, given that he was an occupant, had a right to be heard and yet orders were made for eviction.
    
41. His complaints about lack of hearing of the National Court proceedings on the merits are, respectfully, difficult to accept. If, as he complains, the first National Court proceedings were dismissed ex parte, he had the opportunity to challenge that and yet, he discontinued his appeal against those orders. His explanation for doing so at [7] and [8] of his affidavit filed 23 October 2025 is respectfully, a ‘word salad’, difficult to follow. If the Supreme Court proceedings lacked utility because the appellant’s proprietorship had been forfeited, then on that logic the filing of the second National Court proceedings would also have lacked utility. Even if that was not the case, the applicant had the right to challenge the dismissal of the second National Court proceedings, but did not do so. Gliding onto another matter, his evidence is silent on the dismissal of those proceedings, ignoring the terms of the orders in evidence, namely the dismissal of his notice of motion for want of prosecution and his proceedings being statute barred and res judicata.
    

CONCLUSION

42. Applying the principles set out in the PNG Deep Sea Fishing Ltd and Kara authorities cited earlier, I have concluded that the applicant has not demonstrated a sufficient interest in the appeal to warrant the Court granting him leave to be joined as a party in the proceedings.
    
43. The applicant has not proven by evidence that his joinder “is necessary to ensure that all matters in dispute in the proceedings may be effectively and completely determined and adjudicated on”.
    
44. The appellant seeks no relief against the applicant. The applicant’s joinder is not necessary to satisfy orders made in the proceedings. The appeal relates to revocation of the appellant’s title by the First Respondent Minister without receipt by the appellant of the requisite Notice to Show Cause under the Land Act. It is his case that the forfeiture was defective and null and void. It is further contended that the delay of seven (7) years from the date of the purported forfeiture to its gazettal publication was unreasonable and unlawful. That is a case for the respondents to answer, not the applicant.
    
45. As noted earlier, the submissions on behalf of the applicant do not address, other than by mere assertion and invitation for the Court to apply the relevant principles, how the joinder is necessary to satisfy any orders that may be made on appeal.
    
46. The evidence of the applicant that the interests of justice require joinder to assist the Court to deal with the substance or merits of the appeal and to protect his interests is not made out.
    
47. In informing my discretion on the application and based on the tests outlined I have also taken into consideration that the appellant opposes the application for joinder. In this regard I respectfully agree with the views of Dingake J in Miriori v Daveona (supra) at [35] (citing with approval the views of Wynn Parvy J, in Dollfus Mieget Compagnice S.A. v Bank of England (supra)) that the appellant who views his cause of action lying against the first and second respondents is entitled to pursue his remedy against those parties alone and should not be compelled to proceed against other persons who he has no desire to pursue.
    
48. In the result the application for joinder is without merit and is refused.
    

ORDERS

49. The court makes the following orders:
    
1. Leave for joinder is refused.
2. The applicant’s Notice of Motion is dismissed.
3. The applicant pay the appellant’s costs on a party and party basis to be agreed or taxed.
4. Time to abridge.
   

Lawyers for the applicant: Gonduon Lawyers
Lawyers for the appellant: Mel & Henry Lawyers