Enda v Pouru [2013] PGNC 100; N5314 (5 August 2013)

N5314

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 69 OF 2013 (COMM)

BETWEEN:

BONNY ENDA, ALFRED WAND and BRIAN MEHO
on their own behalf and for and on behalf
of the 44 ILGS of WALSA FCA AREA
Plaintiffs

AND:

KANAWI POURU Managing Director
of PNG FOREST AUTHORITY
First Defendant

AND:

Dr PETER KORA Chairman of PNG
NATIONAL FOREST BOARD
Second Defendant

AND:

PNG NATIONAL FOREST BOARD
Third Defendant

AND:

PNG NATIONAL FOREST AUTHORITY
Fourth Defendant

Waigani: Hartshorn J.
2013: 19th June,
: 5th August

PRACTICE AND PROCEDURE - Application for joinder – whether proposed party has sufficient interest in the proceeding – whether joinder necessary for an effective determination of the issues raised – whether proposed party will be directly affected if relief sought is granted

Facts:

Amanab Forest Products Ltd (Amanab FPL) seeks to be joined in this proceeding as the fifth defendant. The plaintiffs' oppose the application and the defendants' support it. Amanab FPL contends that it will be affected if the relief sought by the plaintiffs' is granted as it is the holder of a Timber Permit for the project area known as Amanab Blocks 1-4 & Imonda Consolidated FMA Area, and the plaintiffs' seek to have part of their customary land not included in that project area. If the subject land is not included in the project area, it will be reduced to about 23,245 hectares.

Held:

1. Amanab FPL will be prevented from exercising its timber permit rights over more than 42% of the land in respect of which it has been granted a Timber Permit under the Forestry Act 1991if the relief sought by the plaintiffs' is granted and thus has sufficient interest in the proceeding and a right to be heard.

2. To ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon, it is necessary that Amanab FPL be joined as a defendant to the proceeding.

Cases cited:
Papua New Guinea Cases

PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126
Kara v. Public Curator of Papua New Guinea (2010) N4048
Timbers PNG Ltd v. Papua New Guinea Forest Authority (2012) N4638
Coecon Ltd v. Westpac Bank (PNG) Ltd (2012) N5097

Overseas Cases

Dollfus Mieg et Compagnie S. A. v. Bank of England [1951] 1 Ch 33

Counsel:

Mr. C. Narokobi, for the Plaintiffs
Mr. S. Mitige, for the Defendants
Mr. R. Bradshaw, for the Applicant

5th August, 2013

1. HARTSHORN J: This is an application for joinder. Amanab Forest Products Ltd (Amanab FPL) seeks to be joined in this proceeding as the fifth defendant. The plaintiffs' oppose the application and the defendants' support it. The application is made pursuant to Order 5 Rule 8(1) National Court Rules.

Background

2. The plaintiffs substantively seek amongst others, declarations and orders concerning 17,000 hectares of their customary land (subject land). They claim that this subject land has been unlawfully allocated by the defendants under the Forestry Act 1991, to be part of what is described as the Imonda Forestry Management Area, without their consent, instead of being allocated to what is described as the Walsa Forest Clearing Authority, as they requested.

The application

3. Amanab FPL contends that it will be affected if the relief sought by the plaintiffs' is granted. This is because Amanab FPL is the holder of a Timber Permit for the project area known as Amanab Blocks 1-4 & Imonda Consolidated FMA Area, and the subject land is in that project area. If the subject land is removed from the project area, the project area will be reduced to about 23,245 hectares.

4. Further, Amanab FPL contends that although it is not named as a party, the relief sought is in effect against Amanab FPL as if successful, its Timber Permit and the Forest Development Project Agreement it has with the Papua New Guinea Forest Authority will be breached as a significant portion of the land for which it has contracted will not be available for its purposes. In addition, it is contended that if part of the relief sought by the plaintiffs' is granted, that is that the subject land be allocated to the existing Walsa FCA, s. 90A (2) Forestry Act 1991 will be breached. Consequently, Amanab FPL submits that its joinder to the proceeding is necessary to ensure that all matters concerning the subject land are effectually and completely determined and adjudicated upon.

5. The plaintiffs' contend that their complaint is against the defendants and not Amanab FPL. They claim amongst others, that s. 58 (f) (i) and (ii) and s. 64 (3) (a) Forestry Act 1991 have not been complied with. For these issues to be determined as well as the other relief sought, does not require Amanab FPL to be joined. The plaintiffs submit that they are customary landowners and their consent must be obtained before their land is used. A further submission was made that if Amanab FPL was allowed to join, this would make the proceeding complicated and it did not need to be. It was simply a case of the plaintiffs' not agreeing to how their subject land had been used.

6. Order 5 Rule 8 (1) National Court Rules is as follows:

"(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,...."

7. Counsel for Amanab FPL relied upon the Supreme Court case of PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126 and Kara v. Public Curator of Papua New Guinea (2010) N4048. In PNG Deep Sea Fishing (supra), Kandakasi J. and Sawong J. said:

".... we are of the view that the most important test (sic) for joinder of parties are:

(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.

8. In considering whether a proposed party has met the above tests, it is necessary and important to have regard to the cause of action pleaded. For it is the pleadings that disclose the matters in dispute and who are the correct plaintiffs and defendants. If the pleadings disclose a cause of action against more than one person and only one of them has been named and an application is made to join the other party or parties who have not yet been named in the proceedings, that party or parties may be joined. Conversely, if a cause of action pleaded discloses or suggests that the pleaded cause of action is vested in common or jointly with another party who has not been named and an application is made to join a party, the application may be granted. Where however, the pleadings either deliberately or inadvertently omit to plead all of the relevant facts or there is a lack thereof, there must be a close examination of the facts and or the basis on which the application for joinder is made."

8. I was a member of the Court in PNG Deep Sea Fishing (supra) and agreed with their Honours' reasoning and conclusions concerning the appeal against the refusal to add parties.

9. In Kara v. Public Curator of Papua New Guinea (2010) N4048, after referring to the tests that are listed a) and b) in PNG Deep Sea Fishing (supra), I stated that:

"25. In considering whether a proposed party has a sufficient interest in the proceeding or whether his joinder is necessary to ensure that all matters in dispute in the proceeding can be effectually and completely adjudicated upon, certain factors warrant consideration.

26. These 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."

10. It is the position though that a plaintiff is normally entitled to determine who it sues. In Coecon Ltd v. Westpac Bank (PNG) Ltd (2012 ) N5097, I referred to the case of Dollfus Mieg et Compagnie S. A. v. Bank of England [1951] 1 Ch 33 in which Wynn-Parry J. said:

"The general rule is, I think accurately stated.... in these words: "Generally in common law and chancery matters a plaintiff who conceives that he has a cause of action against the defendant is entitled to pursue his remedy against the defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue." "

11. In Coecon v. Westpac (supra), although it was apparent that the plaintiff had a cause of action against the person sought to be joined as a defendant, the plaintiff had decided, for whatever reason, not to pursue him and only to pursue the defendant. The plaintiff opposed the application for joinder. I refused the application. Similarly in Timbers PNG Ltd v. Papua New Guinea Forest Authority (2012) N4638, I refused an application for joinder that was opposed by the plaintiff.

12. In Coecon v. Westpac (supra), no relief was sought against the person sought to be joined and he would not have been affected if the relief sought by the plaintiff was granted. In Timbers PNG Ltd (supra), the plaintiff had been granted leave to judicially review a decision of the Minister for Forests. No relief was sought against the company seeking to be joined. The company could have been indirectly affected if the judicial review of the Minister's decision was successful but not as a direct result of the relief sought by, or the actions of, the plaintiff.

13. In this instance however, although no relief is sought against Amanab FPL it is apparent that some of the relief that is sought is against Amanab FPL in all but name only. If the order that is sought, that the subject land be allocated to Walsa FCA, is granted, it will directly affect Amanab FPL as Amanab FPL will be prevented from exercising its timber permit rights over more than 42% of the land in respect of which it has been granted a Timber Permit under the Forestry Act 1991.

14. Consequently, I am satisfied that Amanab FPL has sufficient interest in the proceeding and has a right to be heard. To ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon, I am of the view that it is necessary that Amanab FPL be joined as a defendant to the proceeding. Given this it is not necessary to consider the other submissions of counsel.

Orders

15. The formal Orders of the Court are:

a) The relief sought in paragraphs 1, 2 and 4 of the notice of motion of the applicant filed 29th May 2013 is granted,

b) The costs of the parties and the applicant of and incidental to the notice of motion are reserved.
________________________________________________

Narokobi Lawyers: Lawyer for the Plaintiffs
Papua New Guinea Forest Authority: Lawyers for the Defendant
Bradshaw Lawyers: Lawyers for the Applicant