Wafimbukie v Huamori Land Group Incorporated [2018] PGNC 92; N7160 (6 February 2018)

N7160

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 752 of 2015

BETWEEN:
JACOB WAFIMBUKIE
Plaintiff

AND
PETER KENDINO
Second Plaintiff

AND
HUAMORI LAND GROUP INCORPORATED
First Defendant

AND
HON. RICHARD MARU, MP,
in his capacity as Minister for Trade and
Industry and Member for Yangoru-Sausia
Second Defendant

AND
DICKSON GUINA,
in his capacity as Secretary for Provincial Affairs
Third Defendant

AND
JEMIMAH SOLOP,
in her capacity as Acting Registrar of Land Titles
Fourth Defendant

AND
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Hartshorn J.
2017: 16^th May,
2018: 6^th February

APPLICATION BY NON-parties for joinder, to set aside a consent order, and for injunctive relief

Cases:

AGC (Pacific) Ltd v. Sir Albert Kipalan (2000) N1944
Alyn Bruce Ralu v. Gerald Kwamalo Kolo & Ors (2008) WS241/07 Unreported, delivered 12^th June 2008
Attorney General v. Corporation of Birmingham [1880] UKLawRpCh 219; (1880) 15 Ch. D 423
Calliope Tardios v. Pammela Linton [2015] EWHC 1429
PNG International Hotels Pty Ltd v. Registrar of Titles (2007) N3207
Steven Punagi v. Pacific Plantation Timber Ltd (2011) SC1153
Umapi Luna Pakomeyu v. James Siai Wamo (2004) N2718

Counsel:

Mr. P. Yange, for the Applicants
Mr. R. Diweni, for the First Plaintiff
Ms. A. Nasu, for the Third, Fourth and Fifth Defendants

6^th February, 2018

1. HARTSHORN J: This is a decision on a contested application for the joinder of two defendants, and if successful, the setting aside of consent orders. Restraining orders are also sought.
   

Background

2. The plaintiffs commenced this proceeding seeking declaratory and other relief concerning amongst others, their rights to and a purported transfer of, Portion 163C Milinch, Dagua Fourmil, Wewak, East Sepik Province (Land). The defendants are the Huamori Land Group Incorporated, the State and representatives of the State.
   
3. A mediation of the dispute was successful and a court order by consent was ordered and entered on 24^th October 2016 (consent order). Clause 4 of the consent order provides that “Subject only to a determination of the question of costs the Mediated Agreement (dated 27^th August 2016) as amended or varied in accordance with term 2 above, finally determines and resolves the issues raised in this proceeding.”
   

This application

4. The applicants Michael Yuahau Kendinge and Boaz Hembehi, seek to be joined as defendants to this proceeding, the consent order to be set aside, and for orders to restrain the payment of money made pursuant to the consent agreement.
   
5. The applicants’ claim that amongst others, they have interests in the Land but they are not provided for in the mediated agreement. They purport to be from the Huamori Clan and that they have supported and funded the incorporation of the Huamori Land Group Incorporated. They claim that they have substantial improvements on the Land which need to be compensated for through a proper land investigation and compulsory acquisition process.
   

Joinder

6. The applicants rely on Order 5 Rule 8(1) National Court Rules to be joined to this proceeding. It is submitted that the consent order did not conclude the proceeding, an example being that the first issue in the originating summons concerning the incorporation of the Huamori Land Group Incorporated has not been settled as is apparent from a reading of clause 9 of the mediated agreement. The applicants also claim that they have sufficient interest in the subject matter of the proceeding and that their joinder is necessary to ensure that all matters in dispute in the proceeding can be effectively and completely adjudicated on.
   
7. 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, 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.”

8. The first issue to be considered in the determination of whether this court can order the joinder of a person as a party to a proceeding that has been finally determined is whether this proceeding has been finally determined.
   
9. As referred to, clause 4 of the consent order states that the mediated agreement as amended or varied, finally determines and resolves the issues raised in this proceeding, subject only to a determination of the question of costs.
   
10. From a reading of clause 4 of the consent order it is clear that the intention of the parties and of the Judge who ordered the consent order that, apart from the question of costs, the issues raised in the proceeding are finally determined and resolved. The court does not have before it issues of which it is seized in the proceeding that the Presiding Judge has stated are not finally determined. I am satisfied therefore that the consent order finally determines this proceeding and is a final judgment or order that has been ordered and significantly, that it has been entered: Steven Punagi v. Pacific Plantation Timber Ltd (2011) SC1153; Calliope Tardios v. Pammela Linton [2015] EWHC 1429. In this regard I refer in contrast to my decision in Alyn Bruce Ralu v. Gerald Kwamalo Kolo & Ors (2008) WS241/07 Unreported, delivered 12^th June 2008. This was a case where a non-party sought to be joined to set aside a consent order. The consent order, although ordered, had not been entered. Joinder was able to be ordered upon the court being satisfied that the applicant had sufficient interest.
    
11. The next issue is whether Order 5 Rule 8(1) National Court Rules is able to be relied upon for the joinder of a person as a party to a proceeding when that proceeding is the subject of a consent order that has finally determined the proceeding. The applicants cite three cases in support of their application for joinder: Umapi Luna Pakomeyu v. James Siai Wamo (2004) N2718; AGC (Pacific) Ltd v. Sir Albert Kipalan (2000) N1944 and PNG International Hotels Pty Ltd v. Registrar of Titles (2007) N3207. The first two cases did not concern joinder after a final judgment had been given. In PNG International Hotels (supra), it is apparent that a final judgment may have been given but Davani J did not appear to consider the question of whether the court has jurisdiction to order joinder to a proceeding that has been finally determined.
    
12. I have had recourse to the English Court of Appeal case of Attorney General v. Corporation of Birmingham [1880] UKLawRpCh 219; (1880) 15 Ch. D 423 which was recently cited with approval in Calliope Tardios v. Pammela Linton (supra). In Attorney General v. Corporation of Birmingham (supra), Jessel MR said:
    

“It was never intended to allow an amendment of the pleadings to introduce fresh parties after final judgment. The rule only applies before decree, for the parties are to be brought before the Court to enable it “to adjudicate upon and settle all the questions involved in the action.” Here the questions have been finally adjudicated upon.”

13. This case was decided under the English Order XVI, R. 13 and is similar to our Order 5 Rule 8(1) National Court Rules. Further, decisions from the Courts of England and Wales are persuasive in this jurisdiction.
    
14. Attorney General v. Corporation of Birmingham (supra) was not referred to by Davani J in PNG International Hotels (supra) and may not have been brought to Her Honour’s attention.
    
15. I am of the view that as the consent order is a final judgment or order, ordered and entered, that finally determines this proceeding, Order 5 Rule 8(1) National Court Rules cannot be relied upon to join the applicants as this court has no jurisdiction to make the order for joinder sought: Attorney General v. Corporation of Birmingham (supra).
    
16. Consequently, as the applicants are unable to be joined to this proceeding, they are unable to seek the other orders that they seek in their notice of motion.
    

Orders

17. The formal Orders of the Court are:
    
    1. All of the relief sought in the notice of motion of the applicants filed 15^th April 2017 is refused;
    2. The applicants shall pay the costs of the first plaintiff and the third, fourth and fifth defendants of and incidental to the said notice of motion;
    100. Time is abridged.

_____________________________________________________________
Islands Legal Services: Lawyers for the Applicants
Diwenis: Lawyers for the First Plaintiff
Office of the Solicitor General: Lawyers for the Third, Fourth and Fifth Defendants