Umapi Luna Pakomeyu, Sam Pelo and Keita Umapi Acting for and on Behalf of Themselves and The Members of The Seretapake Clan of Basabulu Village In The Erave District, Southern Highlands Province and Keapo Kombukalo and Mano Dage for and on Behalf of Themselves and Some Members of The Souwolo Clan of The Basabulu Village in The Erave District of The Southern Highlands Province v James Siai Wamo for and on Behalf of Himself and Some Members of The Souwolo Clan of Kapa No 2 Village Kutubu, Southern Highlands Province, Roy Yaki Former Minister for Petroleum and Energy, Hon Sir Moi Avei MP, Minister for Petroleum and Energy, Joseph Gabut, Director for Petroleum, Thaddeus Kambanei, Secretary Department of Finance, Independent State Of Papua New Guinea, Josepha Kanawi—Chief Commissioner Land Titles Commissioner and Edward Kae for and on Behalf of Imawe Bogasi (2004) N2718

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 12 November 2004
• Court: National Court
• Citation: (2004) N2718
• Year: 2004
• Judgement Number: N2718

Full Title: Umapi Luna Pakomeyu, Sam Pelo and Keita Umapi Acting for and on Behalf of Themselves and The Members of The Seretapake Clan of Basabulu Village In The Erave District, Southern Highlands Province and Keapo Kombukalo and Mano Dage for and on Behalf of Themselves and Some Members of The Souwolo Clan of The Basabulu Village in The Erave District of The Southern Highlands Province v James Siai Wamo for and on Behalf of Himself and Some Members of The Souwolo Clan of Kapa No 2 Village Kutubu, Southern Highlands Province, Roy Yaki Former Minister for Petroleum and Energy, Hon Sir Moi Avei MP, Minister for Petroleum and Energy, Joseph Gabut, Director for Petroleum, Thaddeus Kambanei, Secretary Department of Finance, Independent State Of Papua New Guinea, Josepha Kanawi—Chief Commissioner Land Titles Commissioner and Edward Kae for and on Behalf of Imawe Bogasi (2004) N2718

National Court: Kandakasi J

Judgment Delivered: 12 November 2004

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 595 OF 2003

UMAPI LUNA PAKOMEYU, SAM PELO and KEITA UMAPI acting for and on behalf of themselves and the members of the SERETAPAKE CLAN of Basabulu Village in the Erave District, Southern Highlands Province

First Plaintiff

AND:

KEAPO KOMBUKALO and MANO DAGE for and on behalf of themselves and some members of the SOUWOLO CLAN of the Basabulu Village in the Erave District of the Southern Highlands Province

Second Plaintiff

AND:

JAMES SIAI WAMO for and on behalf of himself and some members of the SOUWOLO CLAN of Kapa No. 2 Village Kutubu, Southern Highlands Province

First Defendant

AND:

ROY YAKI FORMER MINISTER FOR PETROLEUM AND ENERGY

Second Defendant

AND:

HON. SIR MOI AVEI MP, MINISTER FOR PETROLEUM AND ENERGY

Third Defendant

AND:

JOSEPH GABUT, DIRECTOR FOR PETROLEUM

Fourth Defendant

AND:

THADDEUS KAMBANEI , SECRETARY DEPARTMENT OF FINANCE

Fifth Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

AND:

JOSEPHA KANAWI – CHIEF COMMISSIONER LAND TITLES COMMISSION

Seventh Defendant

AND:

EDWARD KAE for an on Behalf of IMAWE BOGASI

Eighth Defendant

WAIGANI: KANDAKASI, J.

2004: 2nd August

12th November

PRACTICE & PROCEDURE – Joinder of parties – Rational - To avoid duplication of proceedings and minimize costs – Party with clear and known interest in cause of action not joined in proceedings ought to be joined - National Court Rules, O. 5, r. 8.

EVIDENCE - Gazettal –Admissibility of - Production of copy of - Sufficient and admissible – Evidence Act s. 49 and 52.

JUDICIAL REVIEW – Right to judicial review – Legislation prescribing time limit– Provision akin to time limits for appeals – Distinction - No provision for Court to extend – Aggrieved party to exercise right of review strictly within the prescribed time limits – Delay within meaning of statutory time limit and National Court Rules – lack of satisfactory explanation – Delay resulting in prejudice and affect good administration – Relief sought – Applicant not establishing basis for relief sought – Claim for mandamus – Proof of failure by authority to exercise or perform or exercise powers and functions required – No proof of – Application dismissed – Oil and Gas Act 1998 as amended s. 169 (10).

Papua New Guinean Cases Cited:

AGC (Pacific) Limited v Sir Albert Kipalan, & 4 Ors (24/02/00) N1944.

NTN Pty Ltd v. Post & Telecommunication [1987] PNGLR 70.

NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139.

Michael Ole v. Papua New Guinea Lawyers Statutory Committee (15/11/02) N2308.

Bernard Hagoria v. The Ombusman Commission (26/05/03) N2400.

Soso Tumu & Others v. The Independent State of Papua New Guinea & Others (28/02/2002) N2190.

Counsel:

G. Garo for the Plaintiffs/Respondents.

B. Andrews for Applicant/Eight Defendant.

12th November 2004

KANDAKASI, J.: There are four notices of motion before the Court. These are:

1. An application for leave for judicial review by the plaintiff – motion filed on 17th October 2003;

2. An application for interim restraining order by the plaintiffs – motion filed on 17th October 2003;

3. An application to be joined as a party by Imawe Bogasi Association – motion filed on 18th November 2003; and

4. Application seeking a dismissal of the proceeding by Imawe Bogasi – motion filed on 18th November 2003.

All of these motions came up for hearing before me on 16th December 2003, which was just before the commencement of the Court vacation for that year. The arguments were involved and quite long, that the Court could not promptly hear and arrive at a decision before its vacation. The Court therefore, issued directions for the parties to file their respective submissions to assist the Court in properly noting and following the arguments of the parties when it finally gets around to hearing the matter. There was therefore no hearing in any sense of the word. This is apparent from the last of the directive orders the Court made on 16th December 2003, for the parties to list the matter for hearing before the vacation judge if there was any urgency.

Despite, the foregoing, the parties proceeded on the basis that the Court ordered them to file their respective submissions for the Court’s consideration and thereafter a decision on the notices of motions. In early February 2004, the plaintiff’s lawyers enquired of my office as to when the Court would hand down its decision. Following no response from my office, the plaintiff’s lawyers, followed up on their enquiry in May 2004. During these times, I was continuously away on circuit until October 2004. In any event my associate reminded the parties of the correct position and indicated on my instructions that, if the parties wished to wait indefinitely, and agree, I would consider their submissions and then arrived at decision when I am ready. In early August this year, the parties agreed to that proposal. I therefore proceeded to consider the submissions of the parties and what follows is my decision on the motions.

I consider it appropriate that the application for joinder should precede the plaintiff’s application. This is because if the applicant in that application is indeed a person with an interest in the matter, the Court ought to hear him before a decision on the plaintiff’s application. Then depending on a decision on his application, I will deal with the application to dismiss the proceedings. If that application becomes successful, that would dispose of the matter. If not, the Court will then consider the plaintiff’s application.

Application to Join

Division 1 of Order 5 of the National Court Rules provides for the joinder of causes of action and parties. Rule 2 provides in general terms as to the joinder of parties. It states that a party should be joined where the questions of law or fact raised in the proceedings are common with the one who has already issued the proceedings and or the relief sought arises out of the same transaction or series of transactions. It also grants the Court discretion to order a joinder where it considers appropriate.

Of particular application in the present case is r. 8. This rule reads in relevant parts as follows:

“8. 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.”

In my view, Sakora J., in AGC (Pacific) Limited v Sir Albert Kipalan, & 4 Ors (24/02/00) N1944 correctly discussed and brought out the rational for the provisions in the rules for joinder of parties and causes of action, which are intertwined. There His Honour said:

“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…[I]t is useful to note for our present...