SCA NO. 85 OF 2009; Ramu Nico Management Limited (MCC) and Mineral Resources Authority and The Independent State of Papua New Guinea v Joe Koroma Guyeibi Nogoi Omowo Land Group Inc. ILG No. 12155 and Peter Kowane and Tigina Kwiane Land Group ILG No. 10244 (2009) SC1046

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 12 October 2009
• Court: Supreme Court
• Citation: (2009) SC1046
• Year: 2009
• Judgement Number: SC1046

Full Title: SCA NO. 85 OF 2009; Ramu Nico Management Limited (MCC) and Mineral Resources Authority and The Independent State of Papua New Guinea v Joe Koroma Guyeibi Nogoi Omowo Land Group Inc. ILG No. 12155 and Peter Kowane and Tigina Kwiane Land Group ILG No. 10244 (2009) SC1046

Supreme Court: Injia, CJ

Judgment Delivered: 12 October 2009

SC 1046

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 85 OF 2009

Between:

RAMU NICO MANAGEMENT LIMITED (MCC)

-First appellant-

MINERAL RESOURCES AUTHORITY

-Second appellant-

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

-Third appellant-

And

JOE KOROMA

-First Respondent-

GUYEIBI NOGOI OMOWO LAND GROUP INC. ILG No. 12155

-Second Respondent-

PETER KOWANE

-Third Respondent-

TIGINA KWIANE LAND GROUP ILG No. 10244

Waigani: Injia, CJ

2009: 12th October

APPEAL – application for leave to appeal National Court decision refusing to dismiss proceedings – second application seeking leave to appeal against same interlocutory judgment also consolidated – main issue determined by trial judge was whether the National Court lacked jurisdiction to entertain claim, ie whether the case before the trial judge involved dispute as to ownership or customary land covered under SML 8 or tenement – Order 12 rule 40 National Court Rules, s.14 Supreme Court Act

APPEAL – grant or refusal of leave discretionary – main test is whether applicant has shown that there is a prima facie case or an arguable case that the decision was wrong and that substantial injustice will be done by leaving the erroneous decision un-revisited or unrevised on appeal – customary ownership is determined by Land Courts and Lands Title Commission – National Court does not have jurisdiction to determine ownership of tenement or SML – arguable case demonstrated where trial judge read s.155 of Mining Act in isolation to other provisions under Part VII – patent error by trial judge demonstrated – application for leave clearly arguable – leave granted in both applications – ss4,15, 60, 156, 157 Mining Act

Cases Cited

Breckwoldt v Groyke [1974] PNGLR 106.

Matiabe Oberia v Police and the State (2005) SC 801, Sir Julius Chan v Ombudsman Commission of Papua New Guinea [1999] PNGLR 240, Rimbink Pato v Anthony Manjin [1999] PNGLR 6, Baing v PNG Stevedores Pty Ltd (2000) SC 627, Boyepe Pere v Emmanuel Ningi (2003) SC 711

Counsel

J. Kumura, for the First & Third Appellants

J Aisi, Jnr, for the Second Appellant

T Nonggorr, for the Respondents

12 October, 2009

1. INJIA CJ: This is an application for leave to appeal from a decision of the National Court refusing to dismiss the proceedings under O 12 r 40 of the National Court Rules. The application is made under s 14 of the Supreme Court Act.

2. In SCA No. 88 of 2009, Mineral Resources Authority (first appellant), Ramu Nickel Ltd (second appellant), Ramu Nico Management (MCC) Ltd (third appellant), The State (fourth appellant) v Joe Koroma (first respondent), Guyeibi Nogoi Yowa Omowo Land Group Inc. ILG No. 12155 (Second respondent), Peter Kowane (third respondent) and Tigina Kwiave Land Group ILG No. 10244 (fourth respondent), the appellants sought leave to appeal against the same interlocutory judgment. The two appeals were consolidated for purpose of hearing and were heard together.

3. The applications are contested. Both parties filed affidavits and relied on them. Counsel made their submissions and I reserved my ruling to consider them. I now deliver my ruling.

4. By way of background, in proceedings commenced in the National Court at Madang in proceedings OS No. 280 of 2009 Joe Koroma & others v Mineral Resources Authority & others, the plaintiffs sought declaratory orders, inter alia, that any agreement signed by persons other than the plaintiffs purporting to represent the landowners of Krumbukari Block 1 (hereinafter abbreviated KB 1) in respect of the Ramu Nickel Project, be declared void as having no authority and that any negotiations leading to determinations for compensation of use of land, etc be done with the plaintiffs and other disputing claimants.

5. There were no pleadings entered into between the parties on the claim even though provision is made for pleadings in proceedings commenced by Originating Summons: see O 4 r 35 of the National Court Rules. The nature of the claim and defences to the claim were deposed to in the affidavits filed by both parties in respect of interlocutory applications they each filed. The first interlocutory application filed by Notice of Motion was by the defendants seeking dismissal of the proceedings under O12 r 40. The plaintiffs responded by filing a Motion seeking orders inter alia disclosure of relevant documents. The trial judge heard both applications together. The judge dismissed the defendants’ motion saying the plaintiffs had a reasonable cause of action. The judge then granted the plaintiffs’ Motion. The defendants appeal from these decisions.

6. The main issue decided by the trial judge is whether the National Court lacked jurisdiction to entertain the claim by virtue of s 15 of the Land Titles Commission Act, ss 4, 157 & 160 of the Mining Act. The Judge ruled that the plaintiffs’ claim was about entitlement to compensation for use of customary land as claimants under s 155 of the Mining Act; it was not about interest in customary land. Therefore the Court had jurisdiction to determine the matter.

7. The following matters are not in dispute. On 12th June 2009, Special Mining Lease No. 8 (SML 8) for a term of 40 years was issued to Ramu Nickel Ltd by the Head of State. Since 2001, a dispute over the land covered in SML 8 between customary landowners, the plaintiff included, was registered with the Land Courts established under the Land Dispute Settlement Act and the Land Titles Commission (LTC) and was pending determination. In respect of proceedings before the (LTC), there has been a delay in the LTC hearing due to a number of factors the more recent one being the death of the newly appointed Commissioner the late Patric Nasa.

8. In essence then the LTC has assumed jurisdiction to hear and determine the dispute as to who are the customary owners of the land on which SML No. 8 has been issued, for purpose of determining eligibility to compensation under the Mining Act. The grant of SML 8 was not affected by any dispute amongst customary landowners as to ownership. Section 4 of the Mining Act is clear on this point when it states:

(1 Where a dispute arises as to interests in customary land or the position of boundaries of customary land such dispute shall not affect-

(a) The of a person to make application for and be granted a tenement under this Act: or

(b) The validity of a tenement granted under this Act.

(2) A dispute referred to in Subsection (1) shall be settled as provided for by the land Disputes Settlement Act (Chapter 45).

9. The respondents main contention is that the negotiations for compensation agreements and agreements reached under ss 154, 155 & 156 of the Mining Act involved KBK Landowner Association but did not involve the respondents who were disputing claimants. The disputing claimants were not consulted and their attempts to get involved were refused by MRA because it chose to deal with landowner associations only. Only four clans represented by KBK Landowner Associations receive benefits under the benefit sharing agreement or MOA to the exclusion of the disputing claimants.

10. The trial judge described the respondents’ case before him in these words:

“The plaintiffs are asserting through the originating summons that all documents and agreements regarding the Ramu Nickel Project purporting to be signed on behalf of the customary landholders are void, on t he ground that the provisions of part VII of the Mining Act have not been complied with. This is not a speculative claim. T he plaintiffs are asserting that the breaches of the Act have already been committed. They are claiming, like a number of other clans including members of the Kurumbrukari Landowners Association, to have an interest in land. They are disputing claimants. They say they had a right to be heard and consulted on all things included in the compensation agreement and other agreements and documents that have been signed on behalf of the Kurumburkari Landowners Association.”

11. The trial judge then dealt with the appellants’ main point as follows:

“However, this is not a case in which the plaintiffs are asking the court to determine that they own customary land. They are not asking the Court to determine which clan owns which parts of the SML. Those are issues that are before the Special Land Titles Commission”.

12. The disputing claimants’ argument arises from the wording of ss 155, 156 & 157 of the Mining Act. The reference to disputing claimants first appear in s 157 (1) which states:

“157. Determination of compensation by the Warden.

(1) The –

(a) Holder of a tenement; or

(b) Landholders claiming an entitlement to compensation, including the claimants to disputed land,

May, where they are unable to agree on the amount of compensation to be paid, by notice to the Chief Warden, request a Warden to determine the amount payable.” My emphasis).”

13. Part VII of the Mining Act sets out the procedure for determining compensation to customary landholders in respect of land covered in a tenement or SML. The...