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Ondalane v Lare [2022] PGSC 76; SC2276 (16 June 2022)

SC2276

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 66 OF 2021

BETWEEN:
KIMALEYA ONDALANE
First Appellant

AND:
YANALE LARE
Second Appellant

AND:
MARK TONY EKEPA et al
First to Fifth Respondents

SCA 96 OF 2021

BETWEEN
NELSON AKIKO
First Appellant

AND
RUBEN LOLI NALEPE
Second Appellant

AND:
MARK T. EKEPA et al
First to Fourth Respondents

Waigani: Hartshorn J,
2022: 9^th &16^th June

SUPREME COURT – practice and procedure – applications for joinder – principles of law on joinder applications discussed and considered – applicants of joinder, Porgera Landowners Association Inc (PLA) not included as party in National Court – whether PLA will be affected by the appeal – whether PLA should be joined so as to ensure all issues and disputes in the appeal are adjudicated upon - It has not been made out that PLA will be affected by the appeals such that it should be joined - it is not necessary that PLA be joined to ensure that all matters in dispute in the appeals may be effectually and completely determined and adjudicated upon - applications for joinder should be dismissed

Cases Cited:
Papua New Guinean Cases

Bobby Enda v. Kanawi Pouru (2013) N5314
Coecon Ltd v. Westpac Bank (PNG) Ltd (2012) N5097
Clive Eaka v. Pacifika Holdings Ltd (2015) N7568
Marape v. O’Neill (2015) SC1458
Radio Taxis Ltd v. Wano (2018) SC1768
Timbers PNG Ltd v. Papua New Guinea Forest Authority (2012) N4638
21 ILG’s Gobe Project Area Incorporated Land Groups v. Imawe Bogasi ILG (2006) N3096

Overseas Cases:

Dollfus Mieg et Compagnie S. A. v. Bank of England [1951] 1 Ch 33

Counsel:

Mr. P. Harry, for the Appellants in SCA 66/21
Mr. J. Haiara, for the Appellants in SCA 96/21
Mr. R. Raka, for the Second and Third Respondents in both appeals
Mr. T. Tanuvasa, for the Fifth Respondent in SCA 66/21
and for the Fourth Respondent in SCA 96/21
Ms. J. Nandape, for the Applicant in both appeals

16^th June, 2022

1. HARTSHORN J: This is a decision on two contested applications for the Porgera Landowners Association Inc. (PLA) to be joined as a respondent to two Supreme Court appeals.

2. Both applications were heard together with the consent of counsel and the court.

Background

SCA 66/21

3. The appellants in SCA 66/21 appeal against the refusal of their joinder application by which they sought to join the National Court proceeding OS 102 of 2021 (OS102/21) from which these appeals emanate. They also appeal the judgment and orders made on 2^nd July 2021 in OS102/21 which were made with the consent of the parties (consent order). These appellants were not parties to OS102/21.

SCA 96/21

4. The appellants in SCA 96/21 appeal the consent order. These appellants were not parties to OS102/21.

5. OS102/21 was commenced by the first respondent in both appeals, Mr. Mark Tony Ekepa. Mr. Ekepa in OS102/21 sought various orders. These orders in essence were for the appointment of legitimate landowners of the Porgera SML area to be Land Negotiating Committee (LNC) agents and executive officers of PLA. The consent order amongst others, concerns the appointment of legitimate landowners of the SML area to be LNC agents and the election by those LNC agents of the chairman and executive committee members of a new association or the PLA.

Applications for joinder

6. The PLA applies to be joined as the sixth respondent to SCA 66/21 and as the fifth respondent to SCA 96/21. Order 11 Rule 11 Supreme Court Rules is relied upon as the jurisdictional basis for these applications. No issue was taken with the jurisdictional basis relied upon.

7. The grounds for joinder are in essence that as the two appeals challenge the consent order which commenced the process of appointing the LNC agents who comprise the membership and office bearers of PLA, the outcome of the appeals will affect the interests of PLA as a legal entity. Further, it is claimed that the joinder of PLA is necessary to ensure that all matters in dispute in the appeals can be effectively and completely adjudicated upon.

8. The appellants object to the joinder applications as amongst others, PLA does not have locus standi to make these applications for joinder as there is not in evidence a duly passed resolution authorising PLA to take a step in legal proceedings; the applications are late and if granted will delay the hearing of at least one of the substantive appeals; all of the respondents have already endorsed the appeal books and have consented to one of the appeals being heard at the end of this month; the applications are only supported by the evidence of Mr. Ekepa, the Chairman of PLA. He commenced OS102/21 from which these appeals emanate, but he did not name PLA then as a party to OS102/21; no orders were made against PLA in OS102/21; PLA does not have an interest that will be affected and PLA will not be required to comply with any order regardless of the decision in the appeals.

Law

9. I reproduce [20] – [29] of Marape v. O’Neill (2015) SC1458 which details the law on an application for joinder:

“20. Order 11 Rule 11 Supreme Court Rules relevantly provides that a court or Judge may order that any person be added as a party to proceedings but does not provide for how the discretion to add a party is to be exercised.

21. Order 2 Rule 1 (h) Supreme Court Rules relevantly provides that the National Court Rules shall apply with necessary modifications as if they were Supreme Court Rules with regard to any matter where there is a relevant provision in the National Court Rules, no provision in the Supreme Court Rules and no order has been made as to the procedure to be followed.

22. As there is no provision in the Supreme Court Rules as to how the discretion to add a party is to be exercised and as far as I am aware no relevant order has been made as to the procedure to be followed, Order 5 Rule 8 (1) National Court Rules is relevant. It is:

“(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 ........”

23. In the Supreme Court case of PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126, Kandakasi J. and Sawong J. said:

“.... we are of the view that the most important test (sic) for joinder of parties are:

(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 dispute in the proceedings can be effectively and completely adjudicated upon.

8. In considering whether a proposed party has met the above tests, it is necessary and important to have regard to the cause of action pleaded. For it is the pleadings that disclose the matters in dispute and who are the correct plaintiffs and defendants. ...”

24. I was a member of the Court in PNG Deep Sea Fishing (supra) and agreed with their Honours’ reasoning and conclusions concerning the appeal against the refusal to add parties.

25. In Kara v. Public Curator of Papua New Guinea (2010) N4048, after referring to the tests that are listed a) and b) in PNG Deep Sea Fishing (supra), I stated that:

“25. 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 effectually and completely adjudicated upon, certain factors warrant consideration.

26. 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.”

26. As to the second factor above, where the plaintiff, in this case the appellant, opposes the joinder, as I referred to in Coecon Ltd v. Westpac Bank (PNG) Ltd (2012) N5097, this factor was recognised in Dollfus Mieg et Compagnie S. A. v. Bank of England [1951] 1 Ch 33 in which Wynn-Parry J. said:

“The general rule is, I think accurately stated.... in these words: “Generally in common law and chancery matters a plaintiff who conceives that he has a cause of action against the defendant is entitled to pursue his remedy against the defendant alone. He cannot be compelled to proceed against other persons whom he has no desire to sue.””

27. In Coecon v. Westpac (supra), although it was apparent that the plaintiff had a cause of action against the person sought to be joined as a defendant, the plaintiff had decided, for whatever reason, not to pursue him and only to pursue the defendant. The plaintiff opposed the application for joinder. I refused the application. Similarly in Timbers PNG Ltd v. Papua New Guinea Forest Authority (2012) N4638, I refused an application for joinder that was opposed by the plaintiff.

28. In Coecon v. Westpac (supra), no relief was sought against the person sought to be joined and he would not have been affected if the relief sought by the plaintiff was granted. In Timbers PNG Ltd (supra), the plaintiff had been granted leave to judicially review a decision of the Minister for Forests. No relief was sought against the company seeking to be joined. The company could have been indirectly affected if the judicial review of the Minister’s decision was successful but not as a direct result of the relief sought by, or the actions of, the plaintiff.

29. In Bobby Enda v. Kanawi Pouru (2013) N5314, although the plaintiffs opposed the joinder application and no relief was sought against the applicant seeking to be joined, it was apparent that if the relief sought was granted it would have directly affected the applicant’s rights to exercise its timber permit rights. Consequently, I was satisfied that the applicant had a sufficient interest and granted the joinder.”

Consideration

Preliminary

10. Counsel for the appellants raise the issue that PLA is an incorporated entity under the Associations Incorporation Act. Indeed, this is how PLA is described in the submissions of its counsel. It is submitted that as such, PLA cannot initiate legal proceedings or as in this instance, apply to be joined to proceedings without a duly passed resolution of the incorporated association – PLA, authorising it to apply to join the appeals. Counsel for PLA did not make submissions on this point.

11. The PLA is described by Mr. Ekepa and by its counsel as an incorporated entity under the Associations Incorporation Act. They therefore consider the PLA to be a separate entity. If the PLA is incorporated under the Associations Incorporation Act, (there is no evidence before the court as to its status) then the PLA is a separate entity and is capable of suing and being sued in its corporate name: s.10(1) Associations Incorporation Act. Unless provided by the law otherwise, in my view, an incorporated association cannot initiate proceedings or take a step in legal proceedings without a duly passed resolution authorising such step to be taken. I refer in this regard generally to 21 ILG’s Gobe Project Area Incorporated Land Groups v. Imawe Bogasi ILG (2006) N3096 at [43] to [56]; Radio Taxis Ltd v. Wano (2018) SC1768 at [8] and Clive Eaka v. Pacifika Holdings Ltd (2015) N7568 at [14] to [15].

12. In the absence of such a resolution authorising PLA to apply to be joined in these appeals, PLA lacks the necessary locus standi and the two joinder applications should be dismissed.

13. If the applications are not dismissed on this basis, then I consider the applications further.

Joinder

14. It is necessary in my view to first consider what relief is being sought in the National Court proceeding from which these appeals emanate and then the orders appealed. OS102/21 was commenced by originating summons and so there is no pleading. In OS102/21, various orders are sought for the appointment or election of legitimate landowners of the SML area to be LNC agents and executive officers of PLA. No order is sought against PLA and the consent orders do not contain any orders against PLA.

15. It was submitted that the reason for Mr. Ekepa not naming PLA as a party in OS102/21 was that, PLA then was in a dysfunctional state. Now however, Mr. Ekepa deposes that PLA has an executive that has been validated and endorsed by the Court and PLA is fully functional. He further deposes that the appellants are effectively trying with these appeals to return PLA into a dysfunctional state, that the substantive appeal will certainly affect the interest of PLA and therefore it is only fair that PLA be represented and heard at the appeals.

16. It is the case that regardless of whether PLA is dysfunctional it remains the same entity. The effect that any relief sought in the appeals will have on PLA will be the same whether or not it is dysfunctional. Whether PLA is dysfunctional is due to the actions or inactions of the officeholders or members of PLA and not the entity, PLA, itself.

17. As mentioned, a factor to be considered in deciding whether, PLA should be joined is that the plaintiffs, in this instance the appellants, oppose its joinder. In the normal course, a plaintiff is entitled to pursue his remedy against the defendants of his choosing: Dollfus Mieg v. Bank of England (supra), Coecon Ltd v. Westpac Bank (supra), Timbers PNG v. PNG Forest Authority (supra) and Enda v. Pouru (supra). A factor that may require the joinder of a party in opposition to a plaintiff’s wishes is if the party seeking to be joined will be directly affected if the relief sought in the proceeding is granted: Enda v. Pouru (supra).

18. Here, the appellants are entitled to appeal against the parties to OS102/21. PLA was not a party to OS102/21. No relief is sought against PLA. If PLA will be affected by the appeals it will only be affected to the extent that it might have been in OS102/21 when it was not named as a party by the plaintiff in OS102/21 who now supports its joinder. Further, it is not necessary that PLA be joined to be able to satisfy any orders which are sought or which may be made in the appeals.

19. That these appeals are two proceedings in a number of proceedings concerning or which are about a similar subject matter, as deposed to by Mr. Ekepa, does not require this court to consider other factors in determining the joinder application, contrary to what was submitted. What is before this court are applications for joinder to these appeals and no other proceedings. No other proceedings were before this court at the hearing of the joinder applications apart from these two appeals.

20. Following a consideration of the evidence and submissions, I am not satisfied that it is been made out that PLA will be affected by the appeals such that it should be joined. Further, it is not necessary that PLA be joined to ensure that all matters in dispute in the appeals may be effectually and completely determined and adjudicated upon. The applications for joinder should be dismissed. Given this it is not necessary to consider the other submissions of counsel apart from as to costs.

21. As to costs being sought against counsel for PLA on an indemnity basis, the required criteria to be met for such an order to be made have not been.

Orders

22. The Court orders that:

a) The applications for joinder by Porgera Landowners Association Inc. in SCA 66 of 2021 and SCA 96 of 2021 are dismissed.

b) The costs of and incidental to the said applications of the appellants in SCA 66 of 2021 and SCA 96 of 2021 shall be paid by the applicant, Porgera Landowners Association Inc. on a party party basis to be taxed if not otherwise agreed.
__________________________________________________________________
Haiara's Legal Practice and Harry Lawyers: Lawyers for the Appellants
Mawa Lawyers, Nelson Lawyers and the Solicitor General: Lawyers for the Respondents
Nandape and Associates: Lawyers for the Applicant