Lau v Maniwa [2016] PGSC 2; SC1481 (5 February 2016)

SC1481

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 19 OF 2014

BETWEEN

HUI TECK LAU in his capacity as director of
Wewak Agriculture Development Ltd & director of Sepik Oil Palm Plantation Ltd
First Appellant

AND

WEWAK AGRICULTURE DEVELOPMENT LIMITED
Second Appellant

AND

SEPIK OIL PALM PLANTATION LIMITED
Third Appellant

AND

LEO MANIWA for himself and on behalf of Kowiru villagers
First Respondent

AND

OTHERS AS PER ATTACHED SCHEDULE
Second Respondent

AND

HON. PUKA TEMU in his capacity as
Minister of Lands & Physical Planning
Third Respondent

AND

PEPI KIMAS in his capacity as
Secretary for Lands & Physical Planning
Fourth Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Makail, J
2015: 9th December &
2016: 5th February

PRACTICE & PROCEDURE – Legal representation of party – Class action – Right of a party to legal representation – Choice of lawyer – Same or common interest – Supreme Court Rules – Order 2, rule 1 – National Court Rules – Order 2, rule 34 – Order 9, rule 13

Cases cited:

Simon Mali v. The State (2002) SC690
Eliakim Laki & Ors v. Maurice Alaluku & Ors (2002) N2001
Peterson Borasu & Ors v. Romilly Kila Pat & Ors (2012) N4738

Counsel:

Mr. T. Cook, for Appellants
Mr. H. B. Wally, for First and Second Respondents
Mr. M. Muga, for Faction of Second Respondents
No appearance, for Third, Fourth & Fifth Respondents

RULING
5th February, 2016

1. MAKAIL J: This is a ruling in relation to a dispute over legal representation of the Second Respondent in these proceedings. The individuals who comprise the Second Respondent are landowners from Kowiru village in East Sepik Province. They were represented by the First Respondent in a class action in the National Court against the Appellants. I note the names of the Second Respondent are not in a schedule attached to the notice of appeal even though the notice of appeal refers to an attached schedule. It is attached to the originating summons filed in the National Court. However, they are 21 of them and they instituted judicial review proceedings challenging the legality of a Special Agricultural and Business Lease ("SABL") granted to the Third Appellant over their customary land. The First and Second Respondents retained Mr. Herbert Best Wally of H. Best Wally Lawyers in those proceedings.
2. On 04th July 2014 the National Court upheld the application for judicial review and declared the SABL illegal, null and void. The Appellants then filed an appeal in these proceedings. Again, H. Best Wally Lawyers were retained by the First and Second Respondents to represent them in these proceedings and on 15th July 2015 filed a notice of appearance.
3. In the course of the proceedings a faction of the Second Respondent purportedly retained Mr. Meli Muga of Simpson Lawyers to act for them. Mr. Muga made appearance on their behalf on a number of occasions. During a hearing of the appeal before the full Court of the Supreme Court, Mr. Wally objected to Mr. Muga's appearance and filed an application seeking an order to stop Simpson Lawyers from acting for this faction. The Supreme Court vacated the hearing and referred the question of legal representation to a single judge of the Supreme Court to determine. This is how the matter is before this Court for determination.
4. Mr. Wally alleged that he received no instructions to cease acting for this faction and maintained that he is the lawyer on record for the Second Respondent including this faction. Mr. Wally argued that Simpson Lawyers have no instructions, therefore, no authority to represent the Second Respondent including this faction. He further argued that if Simpson Lawyers were to be retained by this faction the proper course to take is to seek leave of the Court pursuant to Order 2, rule 1 of the Supreme Court Rules and Order 2, rule 34 of the National Court Rules.
5. Mr. Muga countered by submitting that his law firm has instructions to act for this faction and it is evident from this that the landowners' interests are divided and therefore, legal representation is divided. One group are opposing the appeal and the other is supporting the appeal.
6. In the National Court the First Respondent instituted a class action on behalf of himself and each of the Second Respondent. A class action is also referred to as a representative action. A representative action is defined by Osborn's Concise Law Dictionary Ninth Edition by Sheila Bone at 331 as "An action brought by one or more members of a class on behalf of the entire class. The names of those represented are attached as a schedule to the claim."
7. It is based on a same or common interest. Our National Court Rules, Order 9, rule 13 recognises and provides for a representative action. Past decided cases such as Simon Mali v. The State (2002) SC690; Eliakim Laki & Ors v. Maurice Alaluku & Ors (2002) N2001; Peterson Borasu & Ors v. Romilly Kila Pat & Ors (2012) N4738 and many others have held that in representative actions, all intended Plaintiffs must be named and duly identified in the originating process. Further, each and every intending Plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them.
8. This procedural requirement proceeds from the right of a party to legal representation and choice of lawyer. In my view the dispute over legal representation of the Second Respondent can be resolved by reference to the issue of same or common interest of the Second Respondent. In the proceedings in the National Court, the First and Second Respondents including the faction represented by Simpson Lawyers had a same or common interest and that was to dispute the legality of the SABL granted to the Third Appellant. The National Court decision was in their favour. The Appellants challenge that decision.
9. In my view although these proceedings arise as a result of the decision of the National Court, they are fresh proceedings because they are instituted in the Supreme Court. Accordingly, a party may decide to change position by either choosing to support or oppose the appeal. So, is there evidence to show that this faction no longer have the same interest as the rest of the Second Respondent? In other words, are they supporting the appeal while the rest oppose it?
10. Numerous affidavits have been filed, notably both counsel swore affidavits as well as the First Respondent, Philip Dagun, Elias Maimbe, Michael Caybah, Michael Mamber, Francis Jim, Peter Yuwora, Ernest Wamb, Jacob Winduo and Florian Sabna. There are nine of them who oppose the engagement of Simpson Lawyers. These affidavits are contained in the Application Book filed on 26th May 2015. In relation to whether these nine individuals no longer have the same interest and support the appeal, except for Mr. Muga whose affidavit was sworn and filed on 28th November 2014, Mr. Wally's affidavit and that of these nine individuals were filed subsequent to 28th November 2014.
11. The significance of mentioning the time of filing these affidavits is that, earlier the First Respondent and these nine individuals terminated the services of H. Best Wally Lawyers and instructed Simpson Lawyers to act for them. Subsequently, they withdrew their termination notice and reinstated H. Best Wally Lawyers. Their instructions to their lawyer are to oppose the appeal and I refer to the various letters of termination of appointment and in retrospect, letters of appointment of lawyers sent by them to the two law firms in the affidavits referred to above. Mr. Muga does not take issue with the First Respondent and this faction of Second Respondent retaining H. Best Wally Lawyers. I am satisfied this faction of the Second Respondent's interests and that of the First Respondent have not changed, thus it is open to them to retain H. Best Wally Lawyers to represent them.
12. As for the remaining 12, out of this number, 6 of them namely Daniel Matu, Mathew Koimo, Bob Sumboi, George Wrondimi, Willie Jonduo and Andrew Kabai filed affidavits deposing that they terminated the services of H. Best Wally Lawyers and appointed Simpson Lawyers to act for them. The reason is that they support the oil palm project undertaken by the Appellants. This is the faction who changed their position following the National Court decision. There is no evidence refuting this evidence. Thus, while they were Plaintiffs in the judicial review proceedings instituted by the First Respondent, they no longer share the same interest in these proceedings. For this reason, I am not satisfied they are precluded from appointing Simpson Lawyers to act for them in this appeal.
13. Further, I am not satisfied that it is necessary for Simpson Lawyers to seek leave of the Court to act for this faction of Second Respondent pursuant to Order 2, rule 34 (supra) as this rule does not apply to this factual scenario.
14. There is no evidence that Joe Wafewa, Peter Waliawi, Begi Bone Association of Tring, Paul Iboni, Jacob Walndu and deceased Robert Nungowi who are the last 6 of the Second Respondent share the same interests as the faction led by the First Respondent or the faction now represented by Simpson Lawyers. For this reason, it will be left to them to decide which side they are on and appoint a lawyer of their own choice to act for them in this appeal.
15. Mr. Muga referred to a further six individuals who also filed affidavits opposing the authority of the First Respondent and Mr. Wally as their lawyer. They are Jeffrey Yombi, Elias Maniwa, Bruno Benny, Jacob Wapiru, Mathew Row and Daniel Matu. Mr. Wally refuted their claim by submitting that they are not parties to these proceedings. I uphold Mr. Wally's submission and dismiss their objection.
16. The Court must do its best to assist parties resolve the issue of legal representation in order to avoid inconveniences and confusion at the hearing. The situation in this instance will not be resolved by simply removing either lawyers, but rather splitting up the parties – as they now have competing interests. One way to do that is by exercising the discretion under Order 11, rule 11 of the Supreme Court Rules. The Court may order that any person be added as a party to the proceedings or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions.
17. These are the orders I propose:
    1. The First Respondent shall remain as First Respondent to these proceedings and shall be represented by H. Best Wally Lawyers.
       
    2. Philip Dagun, Elias Maimbe, Michael Caybah, Michael Mamber, Francis Jim, Peter Yuwora, Ernest Wamb, Jacob Winduo and Florian Sabna shall remain as Second Respondent to these proceedings and shall be represented by H. Best Wally Lawyers.
       
    3. Daniel Matu, Mathew Koimo, Bob Sumboi, George Wrondimi, Willie Jonduo and Andrew Kabai shall now become Fourth Appellants to these proceedings and shall be represented by Simpson Lawyers.
       
    4. Joe Wafewa, Peter Waliawi, Begi Bone Association of Tring, Paul Iboni, Jacob Walndu and deceased Robert Nungowi (or the Administrator or Executor of his estate) shall decide which position to take in these proceedings and shall appoint a lawyer of their own choice within three weeks from the date of this Order.
       
    5. The objection by Jeffrey Yombi, Elias Maniwa, Bruno Benny, Jacob Wapiru, Mathew Row and Daniel Matu as to the First Respondent's authority to act for them and H. Best Wally Lawyers' legal representation is dismissed.
       
    6. All Court documents relating to these proceedings to be filed subsequent to this Order shall be amended to reflect the amendments forthwith.
       
    7. The matter is adjourned to Monday 29th February 2016 at 9:30 am for Directions Hearing.
       
    8. Costs of the application shall be in the appeal.
       

Ruling and Orders accordingly.
_____________________________________________________________
Kuman Lawyers: Lawyers for the Appellants
H. Best Wally Lawyers: Lawyers for the First and Second Respondents
Simpson Lawyers: Lawyers for faction of the Second Respondent