Bernard Kosie v John Kapi Natto

• Jurisdiction: Papua New Guinea
• Citation: (2015) N6263
• Date: 01 April 2015
• Court: National Court
• Year: 2015

Full : OS 618 of 2010; Bernard Kosie – Chairman of Usano Gibu Ginu Incorporated Land Group and Usano Gibu Ginu Incorporated Land Group Inc. (Reg #6140) v John Kapi Natto – Chairman of Namo’Aporo Landowner Association and Namo’Aporo Landowner Association and Rendle Rimua – Secretary for Department of Petroleum & Energy and Mineral Resources Development Company and The Independent State of Papua New Guinea (2015) N6263

National Court: Hartshorn J

Judgment Delivered: 1 April 2015

N6263

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 618 of 2010

BETWEEN:

BERNARD KOSIE – Chairman of USANO GIBU

GINU INCORPORATED LAND GROUP

First Plaintiff

AND:

USANO GIBU GINU INCORPORATED

LAND GROUP Inc. (Reg #6140)

Second Plaintiff

AND:

JOHN KAPI NATTO – Chairman of NAMO’APORO

LANDOWNER ASSOCIATION

First Defendant

AND:

NAMO’APORO

LANDOWNER ASSOCIATION

Second Defendant

AND:

RENDLE RIMUA – Secretary for

Department of Petroleum & Energy

Third Defendant

MINERAL RESOURCES

DEVELOPMENT COMPANY

Fourth Defendant

AND:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Hartshorn J.

2014: May 15th

2015: April 1st

TRIAL

Cases:

Don Polye v. Jimson Papaki & Ors (2000) SC637

Mendepo v. National Housing Corporation (2011) SC1169

Michael Gene v. Hamidian Rad [1999] PNGLR 444

Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317

PNG Forest Products Pty Ltd v. State [1992] PNGLR 85

Puri Ruing v. Allan Marat (2012) N4672

Rabaul Shipping Ltd v. Rupen (2008) N3289

Rimbao v. Pandan (2011) SC1098

Ronny Wabia v. BP Petroleum Development Ltd (2009) N4337

State v. Peter Painke [1976] PNGLR 210

State v. Tom Watinga [1994] PNGLR 255

Telikom (PNG) Ltd v. ICCC and Digicel (2008) SC906

Timbers (PNG) Ltd v. Valentine Kambori & Ors (2010) N4282

Wan Global Ltd v. Luxurflex Ltd (2012) SC1199

Counsel:

Mr. J. Abone, for the First and Second Plaintiffs

Mr. E.M. Waifaf, for the First and Second Defendants

Ms. I. Mugugia, for the Third and Fifth Defendants

1st April 2015

1. HARTSHORN J: The plaintiffs’ are the Usano Gibu Ginu Incorporated Land Group and its Chairman. The subject land is a portion of land described as UDT 6 and the land contained in the First Phase of Usano/Aiio Road, which is located in the area comprised in Petroleum Development Licence 2 of the Kutubu Project (Land).

2. The second and first defendants’ are the Namo’Aporo Landowner Association Incorporated and its Chairman. The remaining defendants are the State and the Secretary for the Department of Petroleum and Energy (State defendants), and the Mineral Resources Development Company which was not represented at the hearing.

3. The plaintiffs’ seek declaratory relief to the effect that amongst others, that they be recognised as landowners of the Land because of a land mediation agreement, and that they warrant due recognition as landowners by the second defendant, to be able to receive benefits from the Kutubu Project.

4. The plaintiffs then seek amongst others, orders in the nature of mandamus directing that the first and second defendants hold a meeting to recognise the plaintiffs as landowners and members of the second defendant, to appropriate a percentage, and to instruct the State defendants as trustees to recognise and pay the plaintiffs’ royalties and other benefits from 1999.

5. A consequential order is also sought. Further, an order in the nature of prohibition or ‘restrictive’ is sought restraining the State defendants from releasing any benefits to the first and second defendants or affiliated member Incorporated Land Groups.

6. The first and second defendants oppose the granting of the relief sought. The State defendants submit that this court should make appropriate orders to compel the second defendant to consider, permit and grant membership to the second plaintiff as a member of the second defendant.

7. The plaintiffs rely upon s155 (4) Constitution for the majority of the relief sought and O14 r9 and r10 National Court Rules and this court’s inherent jurisdiction for the restraining orders.

8. In the submissions of the plaintiffs, the final question that was posed was whether this court had the jurisdiction to hear this matter. I will deal with this question first.

9. At this stage it is appropriate to refer to this court’s inherent jurisdiction as a superior court of record established by the Constitution, to prevent abuse of the court process: State v. Peter Painke [1976] PNGLR 210. Abuse of process means any use of the process or procedures of the court for an improper purpose or in an improper way: Painke (supra); State v. Tom Watinga [1994] PNGLR 255. Further, it is settled law that the court has the power to dismiss proceedings which are an abuse of process: PNG Forest Products Pty Ltd v. State [1992] PNGLR 85, Ronny Wabia v. BP Petroleum Development Ltd (2009) N4337, Timbers (PNG) Ltd v. Valentine Kambori & Ors (2010) N4282 and can do so of its own motion similar to the Supreme Court: Don...