N9209
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS No. 789 of 2015 (HR) Consolidated with OS (JR) No. 682 of 2013

BETWEEN:
NATIONAL SUPERANNUATION FUND LIMITED
Plaintiff

AND:
YAWENAIK HOLDINGS LIMITED ALSO KNOWN AS YAWENAIK HOLDINGS LIMITED
First Defendant

AND:
CHRIS MANDA IN HIS CAPACITY AS SURVEYOR GENERAL
Second Defendant

AND:
ROMILLY KILA PAT AS A DELEGATE OF THE MINISTER OF LANDS AND PHYSICAL PLANNING
Third Defendant

AND:
HON. BENNY ALLAN IN HIS CAPACITY AS MINISTER OF LANDS AND PHYSICAL PLANNING
Fourth Defendant

AND:
HON. POWES PARKOP IN HIS CAPACITY AS CHAIRMAN AND OTHER MEMBERS OF THE NATIONAL CAPITAL DISTRICT PHYSICAL PLANNING
Fifth Defendant

AND:
BENJAMIN SAMSON IN HIS CAPACITY AS REGISTRAR OF TITLES
Sixth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

AND:
SANAMO GROUP LIMITED
Eighth Defendant

Waigani: Miviri J
2021: 24th September

PRACTICE & PROCEDURE – Joinder Application – Whether sufficient interest to join –consolidation of proceeding – necessary for an effective determination of issues raised – material filed support joinder – balance discharged on probabilities – application granted – costs in the cause.

Cases Cited:
Papua New Guinea Cases

PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 
AGC (Pacific) Ltd v Kipalan [2000] PGNC 4; N1944 
Application by Application by John Mua Nilkare, [1998] PNGLR 472 

Overseas Cases

Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA

Counsel:

W. Mai, for Plaintiff 
J. Asupa, for Second, Third, Fourth and Sixth Defendants
L. Raula, for Fifth Defendant
B. Kumo, for Eight Defendant
E. Asigau, for 6 Interested Parties

RULING
24th September, 2021
1.	MIVIRI, J: 		This is the Ruling of the Court on an Application by Amended Notice of Motion filed 10th February 2021 by Bati Hangong, Belinda Gurra, Ganjiki Davidson Wayne, Marilyn Wingi, Rosemary Aopoi, and Dicksee Hiraiya to be joined as parties to the proceedings as nineth defendant in this proceeding. 

2.	Reliance is placed upon Order 5 Rule 8 of the National Court Rules, “The Rules.” Which is in the following terms: “Addition of parties. (8/8)
(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.
(2)     A person shall not be added as plaintiff without his consent.
(3)     Without limiting the generality of Sub-rule (1), where a person not a party to proceedings for possession of land is in possession (by himself or by a tenant) of the whole or any part of the land, the Court, on application by him, may, on terms, order that he be added as a defendant and make orders for the further conduct of the proceedings.”
3.	In pursing the cause under this rule the applicants rely on their affidavits;

(i)	Affidavit of Rosemary Aopoi filed of the 28th August 2020;
(ii)	Affidavit of Dicksee Hiraiya filed also of the 28th August 2020;
(iii)	Affidavit of Marilyn Wingi filed the 04th September 2020;
(iv)	Affidavit of Belinda Gurra filed of the 04th September 2020;
(v)	Affidavit of Bati Hangong filed 1st October 2020;
(vi)	Affidavit of Ganjiki Wayne filed of the 1st October 2020.

4.	Which relevantly disclose that the Plaintiff seeks to review the decisions of the second, third, fourth, fifth and Sixth Defendants to resurvey, subdivide and otherwise deal with the parcels of land described as Portion 1568, Bomana and Portion 2123 Bomana which created new portions of 3163 and 3162. It is contended by the Plaintiff that he was holder of the State Lease for portion 2123 before its transfer to the First Defendant. It is his claim that it was improperly unlawfully awarded to the First Defendant by the Second to Seventh defendants. And that the resurveying of both portions of land, about 46 hectares from Portion 2123 (now portion 3163) was improperly excised becoming portion 3162.

5.	On the 12th September 2017 an interim injunction was granted on the application by the Plaintiff preventing any dealings on the said portions and the subsequent sub divided land portions. Its effect was that the National Capital District Physical Planning Board refused to accept planning and building applications from third parties who had purchased allotments within portion 3162. Which also included the applicants now seeking joinder.

6.	The applicants are registered proprietors of land allotments purchased in the subdivided portion 3162. They have 46 hectares situated outside of the plaintiff’s interest over the subject land. But each of the applicant’s land is situated within portion 3162 on land which was formally covered by Portion 1568 which the plaintiff has no interest over. They are bona fide purchasers having indefeasibility of title under section 33 of the Land Registration Act. The particulars deposed to in their respective affidavits are as follows:	

(a)	Bati Hangong section 100 Lot 20 Bomana portion 3162 purchased 18/01/2017;
(b)	Belinda Gurra Section 36 Lot 35 Bomana portion 3162 purchased 17/05/2017;
(c)	Ganijiki D Wayne Section 36 Lot 33 Bomana portion 3162 purchased on 02/12/2016;
(d)	Marilyn Wingi Section 36 Lot 23 Bomana portion 3162 purchased on 17/05/2017;
(e)	Rosemary Aopoi Section 36 Lot 23 Bomana Portion 3162 purchased on 18/08/2017;
(f)	Dicksee Hiraiya Section 36 Lot 22 Bomana Portion 3162 purchased on 10/06/2017.

7.	The plaintiffs have objected to the joinder of the applicants arguing that with or without their joinder it will not make any difference to the proceedings as a whole. Their remedy is to damages. Adding them as parties to the proceedings will not affect the proceedings in any way. They will not contribute anything though to an extent they are affected by the current Injunctive Order.

8.	If this were viable it would be no basis to say that damages are their remedies. It would have to be pinned down as to who is responsible for causing damages to them for which they are entitled, if the action of adding them as parties will not affect in any way. There is an author to the damages that are caused against the applicants. Here it would be the plaintiff.

9.	What is apparent is that as a result of the pending proceedings and injunctions each of the applicants cannot obtain the necessary permit from the National Capital District Physical Planning Board to obtain the permits necessary to build their homes. And the delay in the prosecution has caused hardship because the applicants are unable to deal with their land without breaching the terms of the injunction outstanding on the subject land which injunction also covers their subject land set out above. The plaintiff has conceded that variation of the injunction and its terms will ease the restraint on the applicants. But that has not happened. Until that is so the applicants are literally standing by on their land watching the plaintiff and the other defendants in the dispute. They effectively cannot do anything either to uplift the injunction or vary its terms, because they are no parties to the cause of action. They are seriously and directly effected by the injunction as some of them have evidence of Bank loans mortgaged to the subject land they hold. It is real in the sense that conditions of the loans maybe imposed upon if they fail to build on the subject land. It means serious prejudice in their cause no fault of theirs, but for the injunction, and the action now by the Plaintiff running since 2015 giving almost six (6) going almost to seven (7) years in a cause of action that must reach finality.

10.	In fact, the substantive cause of action seeks winding up of the cause that has been set on motion by the defendants granting the subject land. It means in effect the applicants too will be affected as title holders to the subject land. Without being in it as parties they will be at a loss to the cause of action. They have a right to be heard in their defence of the titles to the subject land they hold, if there is a winding up as caused by the plaintiff against the defendants. The overturning of the initial decisions of the defendants will adversely affect the applicants. It will prejudice their interests in the titles they hold over the subject land. This is inclusive of the current injunction in place against. Which weighs heavily in favour of the applicants considering no allegation of fraud levelled against the titles that they hold as set out above.

11.	The test is (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 the proceedings can be effectively and completely adjudicated upon: PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010). 

12.	Because the underlying rational is, "It is a fact of life that often a case will involve more than one plaintiff or defendant, and more than one cause of action. Thus, the foregoing rules ...have been developed as to the appropriateness of joining various parties and causes of action so as to ensure that all proper and necessary parties are able to be joined...It is useful to note for our present purposes (and assistance) the impact of the Australia High Court decision in Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA, which is that: a party will be estopped from bringing any further action that arises out of the same subject matter as an earlier action. This decision emphasizes the importance of the doctrine of res judicata, as operating to prevent prejudice and unfairness to a party, more particularly a defendant, being burdened and saddled with multiplicity of allegations and claims to answer. The doctrine also operates to confirm the twin doctrines of finality and certainty in judicial decision-making process.

13.	In all cases of joinder, whether simply of causes of action or also parties, the Court retains the discretion to join or sever (if already joined) if the interests of justice demand so. 

14.	There is generally much merit in joining all possible defendants to avoid bringing separate proceedings against each and failing against each. On a tactical level, if all possible defendants are joined, often each will tend to run a case designed to show that another defendant is liable. The rules also provide for alternative plaintiffs if there is some issue as to proper plaintiff. For example, in some commercial litigation it may not be certain which legal entity actually entered into a transaction, AGC (Pacific) Ltd v Kipalan [2000] PGNC 4; N1944 (24 February 2000).”  

15.	In my view what is glaring is that the applicants cannot touch the soil of their land without touching the injunction at the discretion of the Plaintiff. It is material that they are joined as parties in particulars of the notice of motion sought pursuant to Order 5 Rule 8. Because in so doing multiplicity of proceedings will be avoided. Here it is clear that the rights to be heard are pertinent and outstanding in favour of the motion. There is no apparent or identifiable matter either in law or fact, that would be against the motion as pleaded given all set out above.

16.	Even with section 155 (4) of the Constitution is there unfettered discretion to fashion orders that will ‘do justice’ which is just and fair. And justice is not narrow but as set called out by the material filed in support not without nor narrowly called: Application by John Mua Nilkare, Review Pursuant to S155(4) of the Constitution [1998] PNGLR 472. Here the material leaves nothing against grant of the joinder applied in the terms proposed that the applicants now become collectively nineth defendants in the proceedings. Accordingly, the motion is granted as pleaded.

17.	The formal orders of the Court are:

(i)	The Notice of Motion for Joinder is granted in accordance with Order 5 Rule 8 of the National Court Rules.

(ii)	The applicants now become collectively the nineth defendants in the proceedings.

(iii)	Costs will follow the event forthwith.

Orders Accordingly.
__________________________________________________________________

Allens: Lawyers for the Plaintiff 
Office of the Solicitor General: Lawyers for the State Defendants
NCDC Legal Division: Lawyers for the Fifth Defendant
Kessadale Lawyers: Lawyers for the Applicants for Joinder	
Jema Lawyers: Lawyers for the Tenth Defendant