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Pulupe v Mapiria [2019] PGNC 86; N7533 (5 April 2019)

N7533

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1156 OF 2018

BETWEEN
ANDREW PULUPE, DICKSON ANGO, TAYALI TOKAI, TANDAKO TINDINI, AND LIBE PEPEREJA as Representatives of HAYAPA CLAN, KIRU CLAN, PAKO CLAN, PIMBI CLAN and TAYAKA CLAN the customary landowners of KOBALU CAMPSITE, Hayapuga Local Level Government, Tari, Hela Province
Plaintiff

AND
LEMSON MAPIRIA as Chairman of Hides Special Purpose Authority
First Defendant

AND
HIDES LLG SPECIAL PURPOSE AUTHORITY
Second Defendant

Waigani: Dingake J
2019: 14^th March

05^th April

PRACTICE AND PROCEDURE – application for joinder – applicants in a joinder application must prove they are interested parties and that their joinder is necessary to ensure all matters in dispute in the proceedings may be effectively and completely determined and adjudicated upon – application has merit - applicants be joined as plaintiffs as this would avoid bringing separate proceedings that may delay the distribution of the benefits – applicants to be joined as parties
Cases Cited

Timbers PNG Ltd v Papua New Guinea Forest Authority (2012) N4638

Counsel

Mr. Daniel Kop, for Plaintiff
Mr. Tabe Jugari, for Interested Party
Mr Abraham Serowa, for Defendant

5^th April, 2019

1. DINGAKE J: This is an application for joinder filed by various interested parties who all want to be joined as plaintiffs.
2. The persons who seek to be joined as plaintiffs are described in the Notice of Motion filed on the 28^th of January, 2019, filed of record. These interested parties are :
   1. Elape Manape, Pangata Kuai, Cr. Enerst Hengebe Malingi, Ako Paliya, Tiki Payabe and Sinai Robert as representatives of Agana Clan, Lerepe Takipe Clan, Tamburuma Tumbeli Clan, Akiapu Clan, Pangobi Clan, Angarere Clan the customary landowners of Liru Creek to Hiwanda Village buffer zone area of Hides PDL 1 area, Hayapuga Local Level Government, Tari, Hela Province;
   2. Hongai Paliya, Hebert Hongai, Vincent Tai and Himube Kayabe as representatives of Pende Clan, Paibu Clan, Tumbu Clan the customary landowners of Kobalu to Liru Creek buffer zone area of Hides PDL 1 area, Hayapuga Local Level Government, Tari, Hela Province; and
   100. Hengene Bariagua, Tatabe Waraya, Andawi Tambo and David Agibe as representatives of Tikua Clan, Takima Clan, Jumu Clan and Tungube Clan to customary landowners of Manape Village to Jumu-Tagimu Village buffer zone area of Hides PDL 1 area, Hayapuga Local Level Government, Tari, Hela Province.
3. The substantive matter, the subject of the Writ of Summons and Statement of Claim filed on the 26^th of September, 2018, document No. 1 filed of record relates to distribution of benefits due to landowners from PDL 1 pursuant to the Hides PDL 1 License Based Benefits Sharing Agreement (LBBSA) signed by the landowners and the State.
4. The benefit at stake and due for distribution amounts to K20 million.
5. It is common cause from the papers filled of record that the beneficiaries, that includes the applicants herein, are entitled to share 1% of K20 million.
6. The applicants for joinder aver that there are entitled to participate or share in the distribution. They aver that 1% share was meant to be shared equally between the clans that live along the Kobalu to Hiwanda Stretch, and as averred in paragraph 7 of the affidavit of Paliya Hongai filed on the 28^th of January, 2019.
7. I have considered all the evidence in this matter, in particular the supporting affidavits of the applicants, significantly the affidavit of Paliya Hongai, Manepa Elape and Hengene Bariagua and I am satisfied that the application is merited. The applicants have persuaded me that they are interested parties and that their joinder is necessary to ensure that all matters in dispute in the proceedings may be effectively and completely determined and adjudicated upon. (Timbers PNG Ltd v Papua New Guinea Forest Authority (2012) N4638).
8. It is in the interests of justice and the orderly progress of this matter that the applicants be joined as plaintiffs as this would avoid bringing separate proceedings that may delay the distribution of the benefits.
9. In order to expedite this matter it is important that the original plaintiffs and the applicants, who I will in due course add as plaintiffs, and their legal representatives, cooperate to progress this matter to finality.
10. The joinder of the applicants would require as prayed by the applicants, that the Writ of Summons and Statement of Claim filed on the 26^th September, 2018 be amended, filed and served, in terms of the rules of this court.
11. In the result it is ordered that:

11.1. The following applicants are joined as plaintiffs in this matter:

1. Elape Manape, Pangata Kuai, Cr. Enerst Hengebe Malingi, Ako Paliya, Tiki Payabe and Sinai Robert as representatives of Agana Clan, Lerepe Takipe Clan, Tamburuma Tumbeli Clan, Akiapu Clan, Pangobi Clan, Angarere Clan the customary landowners of Liru Creek to Hiwanda Village buffer zone area of Hides PDL 1 area, Hayapuga Local Level Government, Tari, Hela Province;
2. Hongai Paliya, Hebert Hongai, Vincent Tai and Himube Kayabe as representatives of Pende Clan, Paibu Clan, Tumbu Clan the customary landowners of Kobalu to Liru Creek buffer zone area of Hides PDL 1 area, Hayapuga Local Level Government, Tari, Hela Province; and

100. Hengene Bariagua, Tatabe Waraya, Andawi Tambo and David Agibe as representatives of Tikua Clan, Takima Clan, Jumu Clan and Tungube Clan to customary landowners of Manape Village to Jumu-Tagimu Village buffer zone area of Hides PDL 1 area, Hayapuga Local Level Government, Tari, Hela Province.

11.2. The original and the new plaintiffs that have been added are directed to meet within 14 days from today, the 5^th of April, 2019 to agree on the amended Writ of Summons and Statement of Claim and to file and serve same within 14 days from today (05.04.19).

11.3. If for whatever reason the plaintiffs are unable to meet as envisaged by 11.2 above, the applicants herein are granted leave to file and serve an Amended Writ of Summons and Statement of Claim in accordance with the rules of this court, within 21 days from today (05.04.2018).

11.4. There is no order as for costs.

11.5. The time for entry of this order is abridged to the date of settlement by the registrar which shall take place forthwith.

Daniel Kop Lawyers: Lawyers for the Plaintiffs
Haiara’s Legal Practice: Lawyers for interested party
Jema Lawyers: Lawyers for the Defendants