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Napanapa Landowners Association v Logae [2016] PGSC 48; SC1533 (7 July 2016)

SC1533

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCM No. 11 OF 2012

BETWEEN:


NAPANAPA LANDOWNERS ASSOCIATION
First Appellant


AND:
KORE KORE GAUDI
Second appellant


AND:
GAUDI LOGAE

First respondent


AND:
KURIU CLAN LAND GROUP INC

Second respondent
Waigani: Injia CJ, Hartshorn & Collier JJ.
2016:28th June
: 07th July


PRACTICE AND PROCEDURE – appeal – dispute under Land Dispute Settlement Act –two separate proceedings before National Court – appeal from one of those proceedings – whether res judicata – whether decision of National Court in earlier proceedings made on merits– application for joinder – National Court Rules 1983 Order 5 Rule 8 – whether primary Judge erred in refusing to hear joinder application –joinder application made late in proceedings – exercise of judicial discretion – appellant was put on notice of proceedings – appellants given opportunity by primary Judge to make submissions – presence of appellants at National Court proceedings not necessary to decide disputed matter –decision not res judicata – refusal to join parties in National Court proceedings not error – appeal dismissed


EVIDENCE – whether primary Judge incorrectly quashed decision of Provincial Land Court – full consideration of the evidence – uncontradicted evidence – brief evidence – adequate evidence to find that lower Court erred – appeal dismissed


Papua New Guinea Cases Cited:


Investment Promotion Authority v Canopus No.16 Ltd [2012] N5316
Kewakali v Independent State of Papua New Guinea [2011] SC1091
Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346
Kuman v Digicel (PNG) Ltd [2013] SC1232
Marape v O'Neill [2015] SC1458
Motor Vehicles Insurance Ltd v Kiangua [2015] SC 1476
Peter Yama v PNGBC Ltd (2008) SC922
Punagi v Catholic Diocese of Mount Hagen Board of Trustees [2013] SC1297.
SC Review No 8 of 199, Application by Toffamo Simang Mionzing re Finschhafen Open Electorate [1992] PNGLR 122
Spirit Haus Ltd v Marshall [2004] N2630; Takoa Pastoral Co Ltd v Temu [2009] N3739
Tamali Angoya v Tugupa Association Inc (2009) SC 978.
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] SC906
Telikom PNG Ltd v Tulin [2004] SC748
Titi Christian v Rabbie Namaliu OS No 2 of 1995, 18.07.96, Supreme Court
Waim No 85 Ltd v Independent State of Papua New Guinea [2015] SC1405


Overseas Cases Cited:


Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Borealis AB (Formerly Borealis Petrokjemi AB) (Formerly Statoil Petrokjemi AB) v Stargas Limited, M/V “Berge Sisar” [2002] EWCA Civ 757


Legislation and other materials:


Associations Incorporation Act 1966
Land Dispute Settlement Act 1975
National Court Rules 1983
Spencer, Bower & Handley Res Judicata (4th edition) (Lexis Nexis, 2009)


Counsel:
L. Tangua, for the First Appellant
T. Tape, for the Second Appellant
L. Manua, for the First and Second Respondents

JUDGMENT

7th July, 2016

  1. BY THE COURT: This is an appeal against orders of the National Court made on 13 and 18 July 2012 in respect of:

2. The background to this appeal can properly be described as convoluted. It arises from a long standing (and ongoing) intramural clan dispute over traditional ownership of a large parcel of land near Port Moresby described as Napanapa DA-5 Land and leadership of a related landowners association, the Napanapa Landowners Association Inc. Before turning to the substantive proceedings it is helpful to summarise the background, both to explain the context in which the current dispute has come before the Courts and to identify key facts which are relevant to issues in this appeal.

Background

3. The parties accept that on or about 5 June 1892 a Colonial instrument was executed by local landowners in respect of Napanapa DA-5 Land, in which those landowners sold the land to the Colonial authorities. In evidence before the primary Judge below is an instrument under Part II of The Crown Lands Ordinance of 1890, attesting the acquisition of the Napa Napa DA-5 Land by the State. All parties to this appeal accept the authenticity of that instrument. The instrument is in the following terms:

I, William MacGregor, Administrator of British New Guinea hereby certify as follows:

  1. That on the twenty fourth day of March 1891 – Fourteenth day of May 1890

Goasa-heni of Dobi; Garuka-Mabata of Roko; Rei-Seli of KioKara; Morea Iramo; Kore-Gaudi; Enai-Gaudi; Tabuganika; Maima Kone-maba; Heni Morea; Gari-Kore; and Tahuia Mamo, and Ganika-Gaudi of the Koitapuan tribe.

Being then the proprietors or owners of the land herewith more particularly described, did sell and transfer to the Colonial Government of British New Guinea, on behalf of and for Her Majesty the Queen the whole of the said piece of land and all their rights therein.

That the consideration for which the said Goasa-heni of Dobi; Garuka-Mabata of Roko; Rei-Seli of KioKara; Morea Iramo; Kore-Gaudi; Enai-Gaudi; Tabuganika; Maima Kone-maba; Heni Morea; Gari-Kore; and Tahuia Mamo, and Ganika-Gaudi of the Koitapuan tribe

------------------------------------- did sell the said land... was fourteen (14) axes, thirty nine (39) hatchets, twenty six (26) knives, seventy eight (78) pounds weight of tobacco, seventy eight (78) handkerchiefs.

  1. That the said land is situated on the Western side of Port Moresby Harbour in the Possession of British New Guinea and is known or called by the name of Mavaralolo and Roko.
  2. That the area of the said land is about nine hundred and seventeen (917) acres.
  3. That the follow [sic] are the boundaries of the said land, that is to say –

Commencing at a post on the summit of Mavaralolo Hill and bounded thence on the North west by a line bearing twenty seven (27) degrees, thirty eight (38) minutes and distant ten thousand and forty six (1046) [sic] to a post and ten thousand two hundred (10 200) links to a high water thence mark founded on the East, South, North and West by Port Moresby, the ocean and Idlers Bay, bearing Southerly, Westernly, Easterly, Northerly to a post ten (10) links above high water mark in Idlers Bay. Thence bounded on the North West by a line bearing Seventy Four (74) degrees, forty three (43) minutes, and 30 seconds, and distance five thousand three (5,300) links to the point of commencement.

  1. That the said land at the time that it was sold as aforesaid was not occupied by any person.
  2. That Frank E Lawes – Resident Magistrate and Peter Lifu of Port Moresby

acted as interpreter between the said owners of the said land and the persons who represented the Crown in the transactions which ended in the acquisition on behalf of the Crown of the said land.

  1. That the following is a sketch of the said land :-

(Sketch Map)
4. In submissions to this Court a number of the landowners identified in the Colonial instrument were identified as ancestors of parties to this appeal, in particular Mr Logae and Mr Kore Kore Gaudi.


5. On 21 December 2010 Magistrate William Noki in the Central Provincial Land Court made orders including:

6. These orders generated two originating summons in the National Court for judicial review of Magistrate Noki’s decision. It is appropriate to set out details of both, although it is only the proceedings in OS 243 of 2011 which are the subject of appeal to this Court.

OS 15 of 2011

7. An originating summons referable to the orders of Magistrate Noki was filed on 20 January 2011. The plaintiffs who sought relief pursuant to that summons were:

  1. Kore Kore Gaudi, President, Napanapa Landowners’ Association Inc.
  2. Mabata Ata, Deputy President, Napanapa Landowners’ Association Inc. and
  3. Napanapa Landowners Association Inc.

8. A copy of the originating summons and relevant Statement Pursuant to Order 16 Rule 3 of the National Court Rules were not provided to the Court. However from material in the appeal book we understand that the specific relief sought by the plaintiffs was as follows:

  1. That leave be granted for Judicial Review pursuant to Order 16 Rule 3 of the National Court Rules of the decision or Order of His Worship William Noki made on the 21st day of December 2010 at the Central Province Provincial Land Court held at Port Moresby of the same date.
  2. An order in nature of Certiorari to remove into the National Court of Justice and to quash the decision or order of the First Defendant dated 21st December 2010 wherein he quashed the Consent Court Order of the Local Land [sic] made on the 29th of May 2001 which decision of Consent Court Order awarded ownership of Napa Napa Land – DA 5 to Ata Ageva and his descendants and replacing it with a new or fresh decision or order that “Pastor Hanua Gadiki or the Rokurokuna sub-tribe of Koita tribe as the Principal Landowner of DA5 Napa Napa Land based on historical evidence and facts, inclusive of descendants of all five (5) clans of Roku and including extended family members.
  3. An order that such order or decision was made against the principles dealing with setting aside, varying or quashing Consent Orders which principles are set out in the decisions of the Supreme Court of Justice in the cases of Simon Mali and Ors v The State SC 690 BEING sca 0.10 [SIC] of 2001 and Kitogara Holdings Pty Ltd v The State & Ors [1988-89] PNGLR 346 wherein it was held that Consent Orders cannot be appealed against for the purposes of being set aside, varied or quashed (on appeal) by the parties thereto except by persons not parties thereto unless cogent reasons are given and that such appeal is lodged without any unreasonable delay.
  4. Alternatively or additionally an order in the nature of Mandamus directing that the decision of the First Defendant dated 21st December 2010 and entered 23rd December 2010 be quashed to the extent that the ownership of Napa Napa Land – DA5 having already been determined fully and perfected in a Consent Court Order of 29th May 2001 cannot be disturbed by way of varying or quashing it in order to be replaced with a new or fresh order as has happened in this case.
  5. Alternatively or additionally an order in the nature of Mandamus directing that the Consent Court Order of the Local Land Court, Central, dated 29th May 2001 cannot be varied, set aside or quashed or replaced by any subsequent order on appeal or otherwise as it is a consent court order and that it has binding force and effect.
  6. An order that the Consent Court Order of 29th May 2001 had binding force and effect.
  7. Damages
  8. ...
  9. ...
  10. ...

9. The plaintiffs in that matter also filed a notice of motion on 20 January 2011, relevantly seeking the following orders:

  1. That pursuant to Order 16 rule 3 of the National Court Rules, leave be granted to review the decision or order made by His Worship William Noki, the first Defendant herein dated 21st December 2010.
  2. That in the event leave is granted, a further order pursuant to Order 16 rule 8 of the National Court Rules that the Third Defendant by itself, its servants, agents, officers, employees or workers be forthwith restrained from releasing any funds to Pastor Hanua Gadiki as compensation or other benefits accruing from Napa Napa Land – DA5 until further order(s) of this Honourable Court.
  3. ...
  4. ...
  5. ...

10. After a hearing on 5 May 2011 at which time Salika DCJ allowed an application by Pastor Hanua Gadiki to join the proceedings, the defendants to these proceedings were:

  1. William Noki, Senior Land Court Magistrate;
  2. Dr Lawrence Kalinoe, Secretary, Department of Justice & Attorney General;
  3. The Independent State of Papua New Guinea and
  4. Pastor Hanua Gadiki.
  5. At this point we note that,in the course of the proceeding before Salika DCJ, it appears that Pastor Gadiki asserted that he was the Chairman of the Napa Napa Landowners Association, an assertion contradicted by the assertion of Mr Kore Kore Gaudi who asserted that he was the Chairman. We note that these competing assertions continued up until the time of the hearing by this Court of the current appeal, and appear reflective of ongoing rivalry for the position of Chairman of the Napanapa Landowners Association Inc between Pastor Gadiki and Mr Kore Kore Gaudi. The apparent ongoing movement back and forth of the Chairmanship position between the two leaders over a relatively short period of time is relevant to an issue currently before this Court. We will return to this issue later in this judgment.
  6. In summary Salika DCJ made the following observations:

13. His Honour observed:

21. The point has been made that Kore Kore Gaudi, Mabata Ata and Hanua Gadiki are all members of the Mavara clan. Anyone of them can be a principal landowner depending on the part one plays in a proceeding and perhaps depending on who is the eldest in the clan.

22. For instance in the proceedings and the decisions which made Hanua Gadiki the principal landowner of Napa Napa numbered PLC 009, 010 and 011 of 2011, Hanua Gadiki is named as the principal Respondent,. Kore Kore Gaudi and Mabata Ata were also Respondents in the proceedings.

23. The court therefore regarded him as the principal landowner but otherwise the Plaintiffs are also landowners by being of the Mavara clan.

24. The judicial review application is seeking to review the decision of PLC No 009, 010 and 011 more so the orders of the Court which declared Hanua Gadiki as the principal landowner.

25. In PLC No. 009, 010 and 011 the parties are different to the District Court matter of DC 02/2001 which is a Consent Order.

14. His Honour considered the question whether a consent order could be set aside, and concluded that it could in certain circumstances.

His Honour then observed:

28. In this case the Plaintiffs are only seeking to have themselves recognized as Chairman and Deputy Chairman of the Napa Napa Landowners Association.

29. Hanua Gadiki is the recognized Chairman and public officer of the Napa Napa Landowners Association Inc. He is the only recognized Public Officer as well as evidenced by the IPA records.

30. Under section 27 of the Associations Incorporation Act the Public Officer is the only person the Association is to act through and no one else.

31. Therefore any meeting called by anyone else in this case is not valid. In the same way any proceedings by Napa Napa Landowners Association must be under the hand of the Public Officer. In this case Hanua Gadiki is the Public Officer and these proceedings are not authorised by him. On this ground alone the matter may be dismissed.

32. In the best interest of the Napa Napa Landowners Association it is only proper that any disputes be resolved according to the terms of the Incorporation of the Napa Napa Landowners Association.

33. It is my view that these proceedings are of no help to members of the Mavara clan. Rather they are a hindrance to the developmental aspirations of the Napa Napa Landowners Association and the Mavara clan for that matter.

34. In that regard I determine that these proceedings are frivolous and vexatious and are not in the hand of the Public Officer.

35. Accordingly I dismiss the entire proceedings as the three Plaintiffs have no standing to take out these proceedings.

(emphasis added)
15. His Honour ordered:

  1. The entire proceeding is dismissed.
  2. The restraining order of 15th April 2011 is set aside.
  3. The Provincial Land Court order of 21st December 2010 is of full effect.
  4. The First and Second Plaintiffs and Fourth Defendant jointly receive the compensation and royalties payments for and on behalf of the Napanapa Landowners Association Incorporated and its members.
  5. The First and Second Plaintiffs pay costs to the Defendants.

OS 243 of 2011

16. On 10 May 2011 a further originating summons was filed in OS 243 of 2011 in respect of the Napa Napa DA-5 Land. In that originating summons the plaintiffs sought the following relief:

  1. An Order for leave be granted to the Plaintiff/Applicant for judicial review pursuant to Order 16 Rule 3 of the National Court Rules of the decision or order of His Worship William Noki on 21 December 2016 and entered on 23 December 2010, before the Central Province Provincial Land Court at Port Moresby.
  2. An Order that the Defendants pay the Costs of and incidental to the application and the proceedings.
  3. Such further and other Orders as the Honourable Court deems proper.

17. The plaintiffs in these proceedings were:

  1. Gaudi Logae of Kuriu Clan;
  2. Kuriu Clan Land Group Inc.

18. The defendants against whom relief was sought were:

  1. William Noki, Senior Provincial Land Court, Magistrate;
    1. Dr Lawrence Kalinoe, Secretary of Department of Justice & Attorney General;
  2. Independent State of Papua New Guinea.

19. The originating summons was supported by an affidavit of Mr Gaudi Logae sworn on 28 April 2011.
20. We note that the plaintiffs in this matter are currently the respondents to the appeal before this Court.


21. In affidavits filed in support of the originating summons Mr Logae deposed, inter alia, that:

22. A Statement Pursuant to Order 16 Rule 3 of the National Court Rules was filed in this matter on 10 May 2011. Relevantly this Statement provided as follows:

  1. THE PLAINTIFF/APPLICANT
    1. The First Plaintiff is an adult male citizen of Papua New Guinea and ordinarily resident of the National Capital District. The First Plaintiff is from Roku Village and is a member of the Kuriu Clan.
    2. The First Plaintiff is a direct descendant of one Garuga Mabata who with other members of the Kuriu Clan sold the land known as Napa or DA 5 to the Colonial Administration on 5 June 1892.
    3. The Second Plaintiff is an incorporated entity pursuant to Law. It comprises members of the Koriu Clan with the First Plaintiff as its Chairman. The purpose of the incorporation of the Second Plaintiff is to assist the First Plaintiff and his Clan members pursue their interest in the disputes concerning the Napa Land.
  2. RELIEVES [sic] SOUGHT BY THE PLAINTIFFS/APPLICANTS

The relieves sought by the Plaintiffs/Applicants include:

  1. An Order in the nature of a Certiorari to remove and bring into the National Court of Justice and to quash in its entirety the decision or Order of His Worship William Noki made on 21 December 2010, and entered on 23 December 2010, before the Central Province Provincial Land Court at Port Moresby.
  2. An Order or Declaration that the First Plaintiff for and on behalf of Kuriu Clan is the principal landowner of the Napa Napa Land.
  3. ....
  4. An Order that the Defendants pay the Plaintiffs’/Applicants’ costs of and incidental to these proceedings.
  1. GROUNDS RELIED ON BY THE PLAINTIFFS/APPLICANTS

The Grounds relied on by the Plaintiffs/Applicants in pursuance of these proceedings include:

  1. Unreasonableness under the Wednesbury Principles; and/or
  2. Taking into account irrelevant considerations.
  3. Unreasonableness under the Wednesbury principle

Considering the circumstances of the particular case and having proper consideration of the evidence on the long history of disputes associated with the land concerned in the proceeding before the First Defendant and the substantial evidence in the various appeals that were consolidated and heard together and the conduct of the First Defendant a reasonable person would conclude that the decision reached and made by the First Defendant was unfair and unreasonable in that no reasonable tribunal would have reached or made such a decision.

  1. Taking into account irrelevant considerations

In the case of the hearing before the First Defendant, the First Defendant insisted on the Parties to present stories and or songs associated with the land irrespective of the evidence filed in the proceedings by the Parties. The First Defendant’s decision confirms the Plaintiff’s contentions that he failed to consider the case and evidence before the Court on the merit rather the First Defendant took into consideration irrelevant matters or considerations in reaching his decision.


23. On 16 June 2011 the National Court ordered that the plaintiffs be granted leave to proceed by way of Judicial Review against the decision of Magistrate Noki.


24. On 8 July 2011 the plaintiffs filed a notice of motion in the proceedings. Critically for the purposes of this appeal, at that stage a fourth defendant was added to the proceedings, namely:

  1. Hanua Gadiki, as the Chairman of the NapaNapa Landowners Association and as a member of Rokurokuna sub-tribe of Koita Tribe.

25. In the notice of motion the plaintiffs sought the following orders:

  1. An Order in the nature of a Certiorari to remove and bring into the National Court of Justice and to quash in its entirety the decision or Order of His Worship William Noki made on 21 December 2010, and entered on 23 December 2010, before the Central Province Land Court at Port Moresby.
  2. An Order or declaration that the First Plaintiff for and on behalf of Koriu Clan is the principal landowner of the Napanapa Land.
  3. An Order pursuant to section 155 (4) of the Constitution staying the enforcement of the Court Orders of 21 December 2010 by the Central Province Provincial Land Court at Port Moresby.
  4. An Order that the Defendants pay the Plaintiffs’/Applicants costs of and incidental to these proceedings.

26. In support of the notice of motion Mr Gaudi Logae swore an affidavit on 20 July 2011. In this affidavit Mr Logae deposed, inter alia:

27. The trial of the proceedings was set down for 13 July 2012. On 12 July 2012 the Napanapa Landowners Association Inc filed a notice of motion seeking orders that it be joined as a fifth defendant to the National Court proceedings, and that Mr Kore Kore Gaudi be joined as sixth defendant in his capacity as Chairman and registered Public Officer of Napanapa Landowners Association Inc. An affidavit in support of this application was sworn by Mr Kore Kore Gaudi on 12 July 2012 and filed in the proceedings. In that affidavit Mr Kore Kore Gaudi deposed, materially:


OS 243 of 2011: hearing before Gavara-Nanu J

28. The matter came before the primary Judge Gavara-Nanu J on 13 July 2012.

Application for joinder before primary Judge and Order of 13 July 2011

29. At the hearing Counsel for the appellants entered an appearance, and informed his Honour that his clients had filed a notice of motion to vacate the trial. The following interchange then occurred:

GAVARA-NANU J: We are not here to hear motions. This is a time set down for hearing trial.

MR TAPE: I understand that and I appreciate that, your Honours. Napa Napa Landowners Association is one of the owners...

GAVARA-NANU J: Why did you not make this application before?

MR TAPE: That is correct, your Honours, I appreciate that but the association was never included as a party when the association has substantial interest over the land.

....

MR TAPE: Yes, the association has never been known of these proceedings until this week, your Honours, in its dealing with one of the authorities dealing with the land came to realize that these proceedings has been on foot and we have done a court file search this week and realized that the matter has been set down for trial today. And therefore, we have filed the application urgently to bring to this court’s attention that the association which represents the interests of the plaintiffs as well as the other four landowning clans of Roku village are concerned, the association represents their interests, and if the matter proceeds to trial and if there is any outcome of the decision, I mean, any decision or outcome from these proceedings will seriously affect the interest of the association as well as the other four landowning clans of Roku village who were also parties to the initial provincial land court matter which is the subject of this review.

GAVARA-NANU: You appreciate that if we were to join your clients as parties to the proceedings then everything has to be redone.

MR TAPE: Sorry, your Honour.

GAVARA-NANU: If we were to join your clients as parties to these proceedings at this stage then we have to start from square one.

MR TAPE: Yes, your Honours, I understand that.

GAVARA-NANU: And your client will have to pay costs.

MR TAPE: Yes. We have filed an undertaking as to damages as well. And also, your Honour would note that the exclusion of the association as a party to these proceedings is intentional as you may see on the court file.

GAVARA-NANU: No, no, I am not going into the merits. I have not seen your documents yet.

MR TAPE: Yes.

GAVARA-NANU J: You are asking to be joined?

MR TAPE: That is correct.

GAVARA-NANU J: And you served that document on your friends?

MR TAPE: Yes, we have served on Rageau Kikira & Manua Lawyers yesterday and State lawyer just this morning because our application was filed yesterday.

GAVARA-NANU: All right, take your seat.


30. His Honour invited submissions on the joinder application of the appellants from the respondents and the State. Mr Manua for the plaintiffs in the substantive proceedings (who are the respondents to this appeal) objected to joinder of the Napanapa Landowners Association Inc and Mr Kore Kore Gaudi in the proceedings, and submitted, in summary:

31. After hearing Mr Manua his Honour invited further submissions from Mr Tape. The following interchange took place:

GAVARA-NANU J: All right, Mr – what is your name again?

MR TAPE: Mr Tape, your Honours.

GAVARA-NANU J: Tape?

MR TAPE: Yes. Thank you, your Honours. Firstly, the application is made in accordance with the rules, your Honours that is Civil Jurisdiction Rule [2005] division 3 which says that, “Once a matter is pre-trialed and listed for trial, neither... (reads)... upon application made in court.” Pursuant to that provision of the rule, Civil Jurisdiction Rule [2005] edition, we have filed a notice of motion, among other orders that we are seeking, to vacate the trial date and we have filed an undertaking as to damages. Okay, going back to what my friends have said, your Honours, firstly, though the ---

GAVARA-NANU J: Just wait first. Yes ---

MR TAPE: Thank you, your Honours ---

GAVARA-NANU J: Just wait first, wait. Yes, Mr Tape, the question is whether we still join you as a party at this late stage. That is the issue.

MR TAPE: Yes, your Honours. The decision of the land court, order – item 5 specifically mentions the association as a legal entity that represents the five clans of Roku village. The plaintiffs in these proceedings are one of the five clans of Roku village and the other four clans, are not represented in this court, who are also the landowners, your Honours, and the Napa Napa Landowners Association owns portions 34859 and 1083 of DA5. The titles to that ownership are attached in the affidavit of Kore Kore Gaudi.

The land, the subject matter of the review, is a State leased land and certain portion of the land, the subject of the review, are owned by the association in its capacity as a representative for the five clans of Roku village and only one of the clans of Roku village, the plaintiffs, is applying to be recognized as principal landowners. But if we may consider the decision of the land court more closely, your Honours, we would note that the decision or the court orders says that the five clans are the principal landowners of DA5 therefore, your Honours, the interest of the association which is representing the other four clans of the landowning members of Roku village will be seriously affected. And in order for doing justice to the other four clan members who are also parties and their interests have also been taken into account in the provincial land court, it is important that the association and its public officer, newly registered and appointed public officer Kore Kore Gaudi, should be joined as parties to these proceedings. Also your Honours, the members of the clans come from the same village which is Roku village. The proceedings were not published in the village for everyone to see. The matters have been dealt with by the lawyers and how could the villagers know that this matter has been on foot until it is brought to their attention which has been done this week. Thank you.


32. His Honour then gave his decision refusing the application by Napanapa Landowners Association Inc, in the following terms:

GAVARA-NANU J : Having heard Mr Tape as to whether his clients should be joined as parties to these proceedings, first of all the proceedings have been on foot since 10 May 2011 and the plaintiffs in these proceedings come from the same village as Mr Tape’s clients. We are not convinced that they were not aware of these proceedings. We consider that the application of this nature should have been made much earlier. If the application was granted, what it means that this matter, the trial will be vacated, the new party will have to file fresh documents, affidavits, pleadings and everything has to start all over again and that is going to delay the matter further. The matter has been set down for trial today. We question that the application is late, very late and we are of the view that if Mr Tape’s clients feel that the decision of this court, in some ways, adversely affect their interests, they will always be at liberty to make whatever applications they want to make to benefit from such decision of the court.

For these reasons, we will refuse to join the clients or the applicants or the interested party to be joined as a party to the proceedings. We will hear the review now. Now, Mr Tape, your applications is refused. We will hear Mr Manua.

Primaryproceedings in the National Court and Orders of primary Judge of 18 July 2011


33. In the primary proceedings there were appearances by Counsel on behalf of the plaintiffs and State defendants. In respect of the fourth defendant, Pastor Hadiki, there was no appearance, which absence was questioned by his Honour.
The following interchange took place between his Honour and Counsel for both plaintiffs and the State defendants:

GAVARA-NANU J: Who is representing ---?

MS MUGUGIA: Mr Gobu represents the fourth defendants.

GAVARA-NANU J: Who?

MS MUGUGIA: Mr Gobu, BT Gobu, Mr Takin.

GAVARA-NANU J: And where is he?

MS MUGUGIA: Your Honours, I cannot assist the court with regard to that.

MR MANUA: Your Honours, we have served documents on him including the notice of trial. There is affidavit service of all those documents as directed by Justice Cannings last two weeks ago. What we gather is that he has shown lack of interest.

GAVARA-NANU J: Is his client here?

MR MANUA: No, your Honour.

GAVARA-NANU J: I mean they have been joined as parties here.

MR MANUA: Yes, they are joined as parties and they have not – they were delaying. They have not cooperated with this matter since Mr Takin filed notice of appearance.

GAVARA-NANU J: Sorry?

MR MANUA: Since Mr Takin has filed notice of appearance for the fourth defendants ---

GAVARA-NANU J: He has?

MR MANUA: That is what we understand so we have been communicating with them in regards to the matter and he has shown lack of interest. In fact, we served the notice of trial on his office as directed by his Honour Justice Cannings and he has even failed to appear in court.
34. Counsel for the plaintiffs then directed his Honour to evidence in the review book, being affidavits filed by Mr Gaudi Logae. Counsel submitted that this evidence supported the proposition that Pastor Gadiki and his claim group were not landowners. Rather, Counsel submitted that the evidence supported the finding that landowners were identified in the Colonial instrument of 1892, and they included Mr Logae’s ancestor Mr Garuka Mabata. The plaintiffs sought to overturn the decision of Magistrate Noki, on the basis that (in summary):


35. Ms Mugugia for the State defendants did not contest the orders sought. However Counsel drew to the Court’s attention the proceedings in OS 15 of 2011 and the order made by Salika DCJ on 13 May 2011. Counsel submitted that:

... the court ordered on 13 May 2011 that the provincial land court order of 21 December 2010 is in full effect...


36. His Honour asked Ms Mugugia whether the primary proceedings before the Court were res judicata, however no conclusive submission to that effect was made by the State.


37. Ultimately Counsel submitted that the State defendants did not object to the relief sought by the plaintiffs.


38. On 18 July 2012 the primary Judge returned to Court to deliver his ruling in respect of the plaintiffs’ notice of motion. After referring to submissions by Counsel for the State defendants in relation to OS 15 of 2011, and his Honour’s earlier orders and reasons for refusing the application by Napanapa Landowners Association Inc and Mr Kore Kore Gaudi to join the proceedings, his Honour continued:

It should also be noted that in proceedings OS15 of 2011, Napa Napa Landowners Association and Kore Kore Gaudi were parties to those proceedings and they were the beneficiaries of the orders by the court including Pastor Hanua Gadiki. But be that as it may, proceedings in OS 15 are different to these proceedings therefore I must decide this case on its own merits. I should not allow the decision in OS 15 of 2011 to influence my decision in these proceedings.

Therefore having considered the materials before me, I find that on the strength of the supporting affidavit sworn by Gaudi Logae who has deposed in his affidavit sworn on 28 April 2011 that one of those men who sold the subject land, that is the land at Napa Napa to the colonial administration, was the great grandfather namely Garuga Babata [sic]. This evidence is in my opinion sufficient for me to grant the orders sought. I also note that Gaudi Logae was a party to the proceedings before the provincial land court magistrate whose decision is being challenged in these proceedings.

The orders of the court are therefore as follows: 1) The decision by the provincial land magistrate which is the first defendant made on 21 December 2010 is quashed. 2) That Gaudi Logae for and on behalf of Kuriu clan of Roku village is a principal landowner of Napa Napa land. 3) Costs will be to the plaintiffs.

...


Appeal

39. A notice of appeal against the orders of the primary Judge in OS 243 of 2011 was filed in this matter on 24 August 2012. It is this notice of appeal which is currently before the Court.


40. The primary Judge in his reasons for decision observed that, although their application to join the proceedings was refused, the appellants had sufficient interest in the proceedings to appeal his Honour’s orders. In this appeal there is no dispute that the appellants have sufficient interest to appeal the decision within the meaning of principles explained by the Supreme Court in Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988-89] PNGLR 346 and Tamali Angoya v Tugupa Association Inc (2009) SC 978.


41. Nine broad grounds of appeal are before the Court. They are lengthy and in summary are as follows:

42. The appellants appeal from all orders of the primary Judge, although a curious aspect of the appeal is that each of the appellants only presses certain grounds. As we were informed at the hearing, a reason for this is that since the notice of appeal was filed the Chairmanship of the Napanapa Landowners Association Inc has changed hands, again, back to Pastor Gadiki (as at the date of the hearing of the appeal). We understand that, as a result, that the interests of the appellants no longer completely coincide.

43. The first appellant pressed grounds 2.1 (a)-(e), 2.2 (a) and (b), 2.3, 2.4, 2.5, 2.6 (e) and 2.7 (c).

44. The second appellant pressed grounds 2.1 (e), 2.2, 2.5, 2.6, 2.7, 2.8 and 2.9.

Consideration

45. Notwithstanding the somewhat disjointed approach of the appellants to the appeal and the plethora of appeal grounds, we consider that issues raised by the appeal can be reduced to three questions, namely:

  1. Did the decision in OS 15 of 2011 mean that the proceedings in OS 243 were res judicata? (grounds 2.2, 2.5, 2.7 (c));
  2. Did the primary Judge err in refusing to hear the application for joinder by the appellants, and in failing to join the appellants to the proceedings? (grounds 2.1, 2.3, 2.4); and
  3. Did the primary Judge err in quashing the decision of the Provincial Land Court, based only on the limited evidence before the Court in OS 243 of 2011? (grounds 2.6, 2.7 (a) and (b));
  4. Did the primary judge err in granting the declaratory order that the first appellant for and on behalf of the Kuriu clan of Roku village is a principal landowner of the Napa Napa land?

46. We will examine each of these issues in turn.

1. Did the decision in OS 15 of 2011 mean that the proceedings in OS 243 were res judicata?

47. In the appeal the appellants argued strongly that the proceedings in OS 243 of 2011 were res judicata in light of the decision of Salika DCJ in OS 15 of 2011. This argument was based on:

48. Recently in Waim No 85 Ltd v Independent State of Papua New Guinea [2015] SC1405 the Supreme Court summarised principles relating to res judicata, in the following terms:

An essential prerequisite for a matter to be regarded as res judicatais that the earlier judicial determination followed a hearing on the merits of the matter which is before the court in the later hearing. In Peter Yama v PNGBC Ltd (2008) SC922 the Supreme Court stated, following the leading Supreme Court decision in Titi Christian v Rabbie Namaliu OS No 2 of 1995, 18.07.96, unreported, that the following elements must be resolved in the affirmative if res judicata is to apply:


(a) was the earlier decision a judicial decision?

(b) was the judicial decision pronounced?

(c) did the judicial tribunal have competent jurisdiction?

(d) was the judicial decision final?

(e) did the judicial decision involve a determination of the same question?

(f) are the parties the same?

(cf Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] SC906 at [16], [28]; Motor Vehicles Insurance Ltd v Kiangua [2015] SC 1476 at [81]; Spencer, Bower & Handley Res Judicata (4th edition) (Lexis Nexis, 2009).

49. So, for example, a motion that is dismissed for want of prosecution is not determined on its merits, and the doctrine of res judicata does not apply if a motion expressed in the same terms as an earlier motion, which has been dismissed for want of prosecution, is moved : Waim No 85 Ltd v Independent State of Papua New Guinea [2015] SC1405, Punagi v Catholic Diocese of Mount Hagen Board of Trustees [2013] SC1297.

50. It is clear to us that the proceedings in OS 243 of 2011 were not res judicata, and his Honour was correct in coming to the same conclusion.

51. First, and importantly, as Salika DCJ specifically observed in OS 15 of 2011:

In this case the Plaintiffs are only seeking to have themselves recognized as Chairman and Deputy Chairman of the Napa Napa Landowners Association


52. Indeed, the dispute in the proceedings in OS 15 of 2011 concerned a leadership dispute between Mr Mabata Ata, Mr Kore Kore Gaudi and Pastor Gadiki in respect of the Napanapa Landowners Association. Clearly, the claim and relief sought before Salika DCJ was in different terms to that before the primary Judge in OS 243 of 2011.
53. Second, Salika DCJ dismissed the proceedings in OS 15 of 2011 on the basis that “the three Plaintiffs have no standing to take out these proceedings”. In this respect it is abundantly plain that the decision of Salika DCJ in OS 15 of 2011 was not on the merits of the case. His Honour’s decision in OS 15 of 2011 was not a “final” decision as explained by Waim No 85 Ltd – the proceedings were dismissed on the question of standing.


54. Third, the order of Salika DCJ in OS 15 of 2011 that the decision of the Provincial Land Court of 21 December 2010 was “of full effect” was a consequential order referable to the dismissal of the proceedings in OS 15 of 2011 for want of standing of the plaintiffs. This order could stand only until there were proceedings where final orders were made to that effect.


55. Accordingly, the proceedings in OS 243 of 2011 were not res judicata, and there was no impediment to the respondents’ application for judicial review proceeding being heard by the primary Judge.


2. Did the primary Judge err in refusing to hear the application for joinder by the appellants, and in failing to join the appellants to the proceedings?


56. National Court Rules Order 5 rule 8 (1) provides:
Where a party 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 mattes 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.


57. The terms of Order 8 rule 5(1) are such that the National Court has a discretion to add a party to proceedings : SC Review No 8 of 199, Application by Toffamo Simang Mionzing re Finschhafen Open Electorate [1992] PNGLR 122; Marape v O'Neill [2015] SC1458 at [60]. Relevant principles for consideration by the Court in hearing an application for joinder include:

1. Whether the applicant has sufficient interest in the proceedings; and

2. 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.

(Marape v O'Neill [2015] SC1458 at [62], cf


58. Relevantly in Investment Promotion Authority v Canopus No.16 Ltd [2012] N5316 Hartshorn J observed:

18. 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 effectively and completely adjudicated upon, certain factors warrant consideration.


19. 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.


59. We note in this case however that the primary Judge refused the appellants’ application for joinder because in his Honour’s view:

60. In this case it cannot seriously be disputed that the appellants had an interest in proceedings OS 243 of 2011. Indeed, there is no dispute that their interests are adversely affected by the findings of the trial Judge such as to provide a basis for an appeal (indeed his Honour recognised this). Mr Tape for the appellants was given the opportunity to put to the primary Judge the position of his clients and their interest in the proceedings.

61. In our view the participation of the appellants in the proceedings before the primary Judge would not have been inappropriate. Notwithstanding this, and the apparent interest of the appellants in proceedings OS 243 of 2011, we do not consider that his Honour erred in refusing the application for joinder for the reasons given.

62. First, an appellate Court should be slow to interfere in the exercise of discretion by the Judge at first instance. This is a general principle well-settled in common law jurisdictions, and has certainly been adopted by this Court : Kuman v Digicel (PNG) Ltd [2013] SC1232; Kewakali v Independent State of Papua New Guinea [2011] SC1091; Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] SC906; Telikom PNG Ltd v Tulin [2004] SC748.

63. Second, his Honour was correct in observing that the application for joinder by the appellants was made very late in the proceedings. The proceedings had been on foot for more than a year at the time the appellants filed the application for joinder. Indeed, the appellants’ joinder application was filed only the day before the hearing. As his Honour correctly pointed out, the success of the joinder application would have resulted not only in the vacation of the hearing date, but necessitated an almost complete revision of the Court process leading to the hearing including almost certain amendments of pleadings, additional consequential timetabling orders referable to the joinder of the appellants to the proceedings, and filing of additional evidence from all parties. The prejudice to the other parties in permitting the joinder of the parties would have been extreme.

64. In written submissions to this Court the first appellant contended that the lateness of the appellants’ joinder application was an irrelevant consideration for his Honour to take into account in determining the joinder application. We do not agree. Case management issues, and the avoidance of wastage of judicial time and public expenses, are relevant factors for Courts to take into account in exercising its discretion whether, at a late stage of proceedings, an application for joinder should be entertained. In this respect we note the following comments, made in similar circumstances, of the Court of Appeal of England and Wales in Borealis AB (Formerly Borealis Petrokjemi AB) (Formerly Statoil Petrokjemi AB) v Stargas Limited, M/V “Berge Sisar” [2002] EWCA Civ 757 at [45]:

First, a case management decision such as this, relating to the joinder of parties and the preservation of a fixed date for trial, is of course a matter for the judge's discretion, but it is a matter peculiarly of his discretion. Secondly, the Court of Appeal should, as is accepted on both sides, as a matter of classical doctrine (and every decade has a different passage to cite on this doctrine) be very slow to interfere with a decision of discretion. It can only do so where the judge has gone wrong in principle, or has omitted to consider a relevant matter, or has taken account of an irrelevant matter, or has acted wholly outside the general generous ambit given for his decision making, ie has gone plainly wrong. Thirdly, this case, as dealt with by the judge, did raise a stark conflict between on the one hand an applicant whose only remedy is in these proceedings, and on the other hand another party, Bergesen, who would suffer no prejudice save the general unpleasantness of continuing litigation in circumstances where, as Mr Siberry had always acknowledged, all the costs of any adjournment would have to be borne by his clients. Moreover, I would accept that Bergesen, as a shipowner, must be perfectly familiar with litigation and, has, whether for good reasons, or as they ultimately turned out, for bad, been responsible for five or six years of delay in the past.


(cf observations in such cases as Spirit Haus Ltd v Marshall [2004] N2630; Takoa Pastoral Co Ltd v Temu [2009] N3739 at [24]; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175)
65. Third, there were submissions to the effect by Counsel for the respondents that members of the first appellant, and presumably the second appellant, who apparently live in the same village as the respondents, would have known of the proceedings and the trial date. We are not in a position to make any findings in respect of this contention. But critically, for all intents and purposes, the first appellant (through Pastor Gadiki) was a party to and was put on notice of there spondents’ application. As we observed earlier in this judgment, on 8 July 2011when the respondents filed the notice of motion in OS 243 of 2011, the notice of motion named Pastor Gadiki, as the Chairman of the Napanapa Landowners Association and as a member of Rokurokuna sub-tribe of Koita Tribe,as a defendant.


66. Section 27 of the Associations Incorporation Act 1966 provides as follows:

SERVICE OF NOTICES.


(1) A notice, demand, summons, writ or other document or process may be served on an incorporated association by serving it personally on the public officer of the association or by sending it by post to him at his usual or last-known place of abode or business.

(2) An incorporated association may give a notice or make a demand by writing under the hand of the public officer.
67. In this case Pastor Gadiki was named as a defendant to OS 243 of 2011, a year before the trial, in his capacity as the Chairman of the Napanapa Landowners Association. There is material to support a finding that, pursuant to orders of Cannings J, the respondents served all relevant documents on Pastor Gadiki including the notice of trial. In the normal course of events, particularly in light of section 27 (1) of the Associations Incorporation Act 1966, it would be reasonable to assume that service of documents on the Chairman of an incorporated association, in his or her capacity as the Chairman of the Association, and in his or her capacity as public officer of the Association (which Pastor Gadiki certainly was at the time of the decision in OS 15 of 2011) would mean that the first appellant would be put on notice of the proceedings. If this did not occur in practice, it is because of the apparent, and unfortunate, dysfunction of the Napanapa Landowners Association Inc rather than any fault of the respondents.


68. Further, we note that, in fact, neither the Napanapa Landowners Association Inc nor Mr Kore Kore Gaudi were parties to the proceedings before the Provincial Land Court, which decision the respondents sought reviewed in OS 243 of 2011. On the other hand, Pastor Gadiki was a party to the Provincial Land Court proceedings, and accordingly was – properly – named as a defendant in the proceedings before his Honour. As we observed earlier in this judgment, it became clear at the hearing of the appeal that the interest of Mr Kore Kore Gaudi in joining the proceedings on 13 July 2012 was onlyin his capacity as the then Chairman of the Napanapa Landowners Association Inc, a role which we understand has now been resumed by Pastor Gadiki.

69. In these circumstances we consider that there was no need for the applicants in OS 243 of 2011 to take any further steps to formally join the appellants to those proceedings, because procedurally (in the case of the first appellant) and practically (so far as concerns both appellants) they were already joined.

70. Fourth, we note that despite his Honour’s misgivings concerning the lateness of the appellants’ application, his Honour provided the appellants’ Counsel reasonable opportunity to make submissions in respect of their joinder application. It cannot be said that his Honour denied the appellants’ natural justice in respect of submissions to advance their case.

71. Finally, the case of the respondents in OS 243 of 2011 was relatively straight-forward, namely that the learned Magistrate took into account irrelevant considerations and did not have proper regard to the evidence before the Provincial Land Court. While the presence of the appellants at the hearing before his Honour may have been helpful as contradictors, we do not consider it was essential to ensure that all matters in dispute in the proceedings could be the subject of effective and complete adjudication by his Honour.

3. Did the primary Judge err in quashing the decision of the Provincial Land Court, based only on the limited evidence before the Court in OS 243 of 2011?

72. We can deal with this issue briefly. The primary Judge, in considering the decision of the learned Magistrate, clearly had regard to the evidence filed before him. The relief sought by the plaintiffs before his Honour was not opposed by the State defendants at the hearing. Of particular importance to his Honour was the Colonial instrument whereby the DA-5 Land was sold to the Colonial Administration by persons in the community with authority to do so, including an ancestor of Mr Gaudi Logae.
73. In circumstances where:

it was open to the primary Judge to find that the learned Magistrate erred in declaring Pastor Gadiki the principal landowner of DA-5 Land. While the evidence before the Court was brief, brief evidence does not necessarily equate to inadequate evidence unable to form the basis of a valid decision of the Court.


4. Did the primary judge err in granting the declaratory order that the first appellant for and on behalf of the Kuriu clan of Roku village is a principal landowner of the Napa Napa land?


74. The appellants argue that the primary judge, having granted an order in the nature of certiorari and quashed the decision of the Provincial Land Court, should have remitted the matter to the Provincial Land Court for a rehearing to determine ownership of the Napa Napa land. The Provincial Land Court had the exclusive jurisdiction to determine the ownership of the Napa Napa land.

75. We are satisfied that the primary judge had the power to grant the declaratory order in question. The National Court's power to grant orders in the nature of certiorari and consequential orders in the nature of declaratory orders and injunctions are set in Order 16 Rule 1 of the National Court Rules 1987. A declaration or injunction may be made in a judicial review application if the Court considers that, having regard to the nature of the relief sought, the persons against whom the relief is sought, and the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted.

76. The primary Judge considered that the evidence before him supported the respondent's claim before the Provincial Land Court that the first respondent for and on behalf of the second respondent was a principal landowner of the Napa Napa land, and that he be declared to be so. The declaratory order made was consequent upon the primary Judge's finding that the Provincial Land Court erred in its decision and quashed the decision. Clearly, the power to grant the declaratory order was within his power given by Order 16 Rule 1 of the National Court Rules 1987.

Conclusion

77. In our view the grounds of appeal of the appellants lack merit. The appropriate order is to dismiss the appeal with costs.

THE COURT ORDERS THAT

  1. The appeal is dismissed
  2. The appellants are to pay the costs of the respondents, such costs to be taxed if not otherwise agreed.

________________________________________________________________
Baniyamai Lawyers: Lawyers for the First Appellant
Kandalawyn Lawyers: Lawyers for the Second Appellant
Rageau Manua Kikira: Lawyers for the First and Second Respondents

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