21 ILGS Gobe Project Area Incorporated Land Groups as per the Ministerial Determination and attached as schedule “A” to this Writ and Imawe Bogasi ILG and its 9 Subsidiary ILGs v Independent State of Papua New Guinea and Mineral Resources Development Company Limited and Petroleum Resources Gobe Limited and Bernard Pawhi, as the Acting Secretary for the Department of Petroleum & Energy (2006) N3096

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 29 September 2006
• Court: National Court
• Citation: (2006) N3096
• Docket Number: WS No. 1027 of 2005
• Year: 2006
• Judgement Number: N3096

Full Title: WS No. 1027 of 2005; 21 ILGS Gobe Project Area Incorporated Land Groups as per the Ministerial Determination and attached as schedule “A” to this Writ and Imawe Bogasi ILG and its 9 Subsidiary ILGs v Independent State of Papua New Guinea and Mineral Resources Development Company Limited and Petroleum Resources Gobe Limited and Bernard Pawhi, as the Acting Secretary for the Department of Petroleum & Energy (2006) N3096

National Court: Davani J

Judgment Delivered: 29 September 2006

N3096

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1027 of 2005

BETWEEN:

21 ILGS GOBE PROJECT AREA INCORPORATED LAND GROUPS as per the Ministerial Determination and attached as schedule “A” to this Writ

First Plaintiffs

AND:

IMAWE BOGASI ILG and its 9 Subsidiary ILGs

Second Plaintiffs

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

First Defendant

AND:

MINERAL RESOURCES DEVELOPMENT COMPANY LIMITED

Second Defendant

AND:

PETROLEUM RESOURCES GOBE LIMITED

Third Defendant

AND:

BERNARD PAWHI, as the Acting Secretary for the DEPARTMENT OF PETROLEUM & ENERGY

Fourth Defendant

Waigani: Davani .J

2006: 29 May

2 June

29 September

Counsel:

P. Donigi, for first plaintiffs

J. Haiara, for second plaintiffs

P. Korowi, for first and fourth defendants

P. Kuman, for second and third defendants

CONSTITUTION – Plaintiffs seek declaratory orders to have Act declared unconstitutional – National Court does not have jurisdiction – constitution, s. 18 (1)

PLEADINGS – Plaintiff suing as a non-entity – not a proper plaintiff – suing as landowners when issue yet to be determined – ILG Constitutions state the manner and form of authority to sue – certificate is authority by ILG to sue – therefore no reasonable cause of action disclosed – action frivolous and vexatious – abuse of court process – National Court Rules O. 12 R. 40 (a) (b) (c) - Land Groups Incorporation Act ss. 11, 13.

CUSTOM – reliance on custom to have act declared unconstitutional – plaintiffs seek to prove ownership to land by custom – National Court does not have jurisdiction.

MINING – Determinations – effect of – whether project beneficiaries are deemed to be landowners – Determinations allow for ILG’s to receive benefits – receipt of equity benefits under Determinations is not declaration of ownership to land – Oil and Gas (Amendment) Act 2001 No. 21 of 2001 – ss. 169A (1) (2)

Cases cited:

Papua New Guinea cases:

• Mamun Investments Pty Ltd & Anor v. Paul Ponda & Anor [1995] PNGLR 1;

• Petition by R.T. Hon. Michael Somare [1982] PNGLR 65;

• SCR No. 3 of 1982 (1992) PNGLR 405;

• SCR No. 5 of 1982 (1982) PNGLR 379;

• The Hon. Patterson Lowa, The Minister for Minerals and Energy and others v. Wapule Akipe & ors, The Hon. Patterson Lowa, the Minister for Minerals and Energy and others v. Wapula Akipa & others, Mount Kare Alluvial Mining Pty Limited and anor v. Wapula Akipe and others; Mount Kare Alluvial Mining Pty Limited and anor v. Wapula Akipe and others [1992] PNGLR 399;

• PNG Forest Products Pty Ltd and Inchcape Berhad v. The Independent State of Papua New Guinea and Jack Genia, Minister for Forests [1992] PNGLR 85;

• Gabriel Apio Irafawe v. Yauwe Riyong (1999) N1915;

• In the matter of Section 18(1) of the Constitution of Papua New Guinea and in the matter of Jim Kas, Governor of Madang Province (2001) SC670;

• Soso Tumu v The State (2002) N2190;

• Eliakim Laki and 167 others v. Maurice Alaluku & 2 others (2002) N2001;

• Simon Mali v. The State (2002) SC 690;

• Kiee Toap v. The Independent State of Papua New Guinea and Electoral Commission of Papua New Guinea and Anor (2004) N2731;

• Dumal Dibiaso Incorporated Land Group No. 1664 and 2 others v. Kala Kuma and 9 others (2005) SC 805 dated 3 November 2005;

Overseas Cases:

• Foss v. Harbottle (1843) 2 Hare 461; Ch 12 LJ 319;

• Republic of Peru v. Peruvian Guano Company (1887) 36 Ch. D. 489;

• Hubbard and Sons Ltd v. Wilkinson, Heywood and Clerk Ltd [1899] 1 QB 86;

• Dyson v. Attorney-General [1911] 1KB 410;

• Lonrho v. Fayed [1991] 3 All ER 303;

• Nagle v. Fielden [1996] 1 All ER 689;

1.1

DECISION

29 September, 2006

1. DAVANI .J: By amended Notice of Motion filed by Posman Kua Aisi Lawyers on 29 September, 2005, the second and third defendants (‘applicants’) move the court for orders that;

1. The pleadings, either in whole or in part, be struck out pursuant to O. 8 R. 27 (1) (a) (b) and/or (c) of the National Court Rules (‘NCR’) as -

(i) they fail to disclose a reasonable cause of action; and/or

(ii) the pleadings have a tendency to cause prejudice, embarrassment and delay; and/or

(iii) are an abuse of process.

2. The pleadings be dismissed pursuant to O. 12 R. 40 (1) (a) (b) and/or (c) of the NCR on the same grounds as above.

3. Alternatively, the proceedings be dismissed because the National Court does not have jurisdiction to deal with these matters because they raise constitutional issues, falling within the interpretive jurisdiction of the Supreme Court as provided by s. 18(1) of the Constitution.

4. Alternatively, the proceedings be dismissed because the plaintiffs lack standing as customary landowners.

5. Further and in the alternative, that the proceedings be dismissed because each ILG have not filed written Consent and Authorities to Act and Resolutions evidenced by Certificates from each ILGs, done in accordance with their Constitutions, unless such resolutions, written Consents and Authorities are filed within 14 days.

6. Alternatively, that proceedings be dismissed because the plaintiffs failed to give notice under s. 5 of the Claims By and Against the State Act (‘CBASA’).

Order 8 Rule 27 (1) (a) (b) (c) of the NCR reads;

“27. Embarrassment, etc.

(1) Where a pleading –

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1) of this Rule.”

O. 12 R. 40 (1) (a) (b) (c) of the NCR reads;

“40. Frivolity, etc.

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -

(a) no reasonable cause of action is disclosed;

(b) the proceedings are frivolous or vexatious;

or

(c) the proceedings are an abuse of the process of the Court,

The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1) of this Rule.”

S. 18 (1) (2) of the Constitution reads;

“18. Original interpretative jurisdiction of the Supreme Court

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.”

S. 5 of the CBASA reads;

“5. Notice of claims against the State

(1) No action to enforce any claim against the state lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to -

(a) the Departmental Head of the Department responsible for justice matters; or

(b) the Solicitor-General.

(2) A notice under this Section shall be given –

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as –

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by -

(a) personal service on an officer referred to in Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45am and 12 noon, or 1.00 pm and 4.06 pm or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).”

Schedule 2.1 (2) of the Constitution reads;

“Sch 2.1 Recognition, etc, of custom

…

(2) Subsection (1) does not apply in respect of any custom that is and to the...