Mathew Sisimolu and Others v Lohila Naua as Acting Secretary – Department of Petroleum and Others

• Jurisdiction: Papua New Guinea
• Judge: Yagi J,Geita J,Numapo, J
• Judgment Date: 18 January 2024
• Neutral Citation: SC2525
• Citation: SC2525, 2024-01-18
• Counsel: Mr N. Kopunye with Ms M. Worinu, for the Appellants,Ms B. Kumo, for the Second Respondent,Mr A. Jerewai, for the Fourth Respondent,No appearance by the First & Third Respondents
• Docket Number: SCA NO. 20 OF 2020
• Hearing Date: 26 April 2023,18 January 2024
• Court: Supreme Court

SC2525

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 20 OF 2020

Between:

Mathew Sisimolu

First Appellant

and

James Kaia, Fred Kitapa and Soso Tomu

Second Appellants

v.

Lohila Naua as Acting Secretary – Department of Petroleum

First Respondent

and

Mineral Resources Development Company Limited

Second Respondent

and

Independent State of Papua New Guinea

Third Respondent

and

Philip Kende

Fourth Respondent

Waigani: Yagi J, Geita J & Numapo, J

2023: 26^th April

2024: 18^th January

PRACTICE AND PROCEDURE — application to dismiss proceeding — power of the Court — National Court Rules, Order 4 Rule 49(8) — requirement to cite concise jurisdiction of the Court — whether s. 5 of the Claims By and Against the State Act 1996 is the correct jurisdiction to grant the relief sought.

STATUTORY INTERPRETATION — Claims By and Against the State Act 1996, s. 5 — meaning of “claim” — general principles of statutory interpretation — Constitution, s. 109(4) — fair and liberal meaning to be given — whether “claim” under s. 5 of the Act means and include all other types of civil claims.

PRINCIPLES OF NATURAL JUSTICE — right to be heard — Constitution, s. 59 — minimum duty to act fairly — whether the appellants were denied the right to be heard before the order for dismissal of proceedings was made.

PRACTICE — Power to dispense with strict compliance — Effect of non-compliance with rules. Relevant considerations — Sincerity of parties — National Court Rules, O, rr7,8,9.

STATUTORY INTERPRETATION — Interpretation of ss 1, 2 of Claims by and Against the State — use of “claim”.

APPEAL — s. 5 Notice Claims By and Against the State Act (Claims Act) — whether notice is required for all claims against the State — notice is only required for those claims involving monetary considerations — s.2 (1) Claims Act specifies types of claims requiring s. 5 notice — application seeking equitable relief (injunctive relief and declaratory orders) do not require notice the Claims Act —

SUPREME COURT — PRACTICE & PROCEDURE — Discretion to deal with issues of non-compliance with the Rules — Requirement to state the concise jurisdictional basis to grant the relief sought — Order 12 Rule 40 NCR — Breaches of Order 4 Rules 40(1) and 49(8) NCR and Rule 8 of the Motion (Amendment) Rules 2005.

This was an appeal against a decision of the National Court dismissing the proceedings instituted by the appellants where they claimed declarations and injunction against the respondents including the State and its entities. The appellants were elected to hold executive offices with a landowner body or organization under a charter agreement called “The Charter of the Gobe Leadership Committee” within a resource project area. Following the election of the appellants the former chairman of the organization disputed the validity or legitimacy of the appellants election. The appellants then issued proceedings claiming declarations and an injunction to assert their rights as duly elected executives of the landowner organization. They did not give notice under s. 5 of the Claims By and Against the State Act 1996 (CBASA) before commencing the proceeding. Upon application made by the State and its entity the National Court dismissed the proceeding by the appellants on the basis that the appellants did not comply with the notice requirement under the CBASA. The appellants being aggrieved appealed against the dismissal order. The 3 main grounds in the appeal were (1) the notice of motion filed by the State and its entity was incompetent as it did not cite the correct jurisdiction of the Court to grant the relief sought; (2) the claims by the appellants being in the nature of declarations and injunction is such that the requirement to give notice under s.5 of the CBASA did not apply and (3) the appellants right to be heard on the substantive claims was denied.

Held:

Per Yagi J and Numapo J:

(1) The requirement of Order 4 Rule 49(8) of the National Court Rules is that a notice of motion must contain a concise reference to the Court's jurisdiction to grant the relief sought.

(2) Section 5 of the Claims By and Against the State Act 1996 is a condition precedent which in effect is a statutory defence. It does not invest in the Court a jurisdiction or power to dismiss a proceeding.

(3) The notice of motion filed by the State and its entity which cited s. 5 of the Claims By and Against the State Act 1996 as the jurisdictional basis to dismiss the proceeding is not correct and therefore is incompetent and should be struck out or dismissed.

(4) The requirement to give notice of a claim under s. 5 of the Claims By and Against the State Act 1996 do not apply to declarations and injunctions which are not claims of monetary nature.

(5) The National Court erred in law in dismissing the proceeding and hence the dismissal order should be quashed and set aside and the proceeding in the National Court be reinstated or restored forthwith.

Per Geita J (dissenting):

(6) Section 5 of the Claims By and Against the State Act 1996 grants the power to the National Court to dismiss a proceeding for failure to give notice of a claim to the State.

(7) The National Court did not err in relying on s. 5 of the Claims By and Against the State Act 1996 in dismissing the proceeding.

(8) The proceedings commenced by the appellants in the National Court is an abuse of process because the appellants have already been elected into office and there is no longer a controversy in pursuing the claims or declarations and injunction.

Per Yagi J and Numapo J (Geita J dissenting):

(9) Grounds (a), (b), (c) and (d) of appeal are upheld. The appeal be allowed and the order of the National Court is quashed and set aside and the National Court proceeding is reinstated or restored forthwith.

Cases Cited:

Papua New Guinean Cases

Yaluma v The State (2010) N4088

Agmark Pacific Ltd v Cocoa Board of PNG (2012) N4902

Frederick Martins Punangi v Sinai Brown (2004) N2661

Katherine Mal v Commander, Beon Correctional Institution (2017) N2661 Farhad Rahmati v The State (2018) N7468

Thomas Karo v The Commissioner of Correctional Services and The State (2018) N7799

Mision Asiki v Zurenuoc, Provincial Administrator (2005) SC797

Paul Tohian & The State v. Tau Liu (1998) SC566

Simon Kauba v Alphonse Willie (2021) SC2162

JH Rayner (Mincing Lane) Ltd v Chief Collector of Taxes (1991) N1175

Tumu for Luhalipu Clan v Independent State of Papua New Guinea (2002) N2190

Daniel Hewali v The State (2002) N2233

Paul Tohian, Minister for Police and the State v Tau Liu (1998) SC566

Jim Kas v Justice Mark Sevua & Ors (2000) N2010

State v Downer (PNG) Ltd (2009) SC979

Kuso Maila Anda Limited v United Pacific Corporation Limited (2019) SC1894

Anna Wemay v Kepas Tumdai [1978] PNGLR 173

Polling v Motor Vehicle Insurance (PNG) Trust [1986] PNGLR 228

Mount Hagen Urban Local Level Government v Sek No 15 Ltd (2009) SC1007

State v Nimbituo & Ors (2020) SC1972

Overseas Cases Cited:

Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450

Adams P Brown Male Fashion Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170

Counsel:

Mr N. Kopunye with Ms M. Worinu, for the Appellants

Ms B. Kumo, for the Second Respondent

Mr A. Jerewai, for the Fourth Respondent

No appearance by the First & Third Respondents

Kopunye Lawyers: Lawyers for the Appellants

Lawyer for the First & Third Respondents: None on record

Jema Lawyers: Lawyers for the Second Respondent

Jerewai Lawyers: Lawyers for the Fourth Respondent

18^th January 2024

1. Yagi J: This is an appeal arising from a decision of the Waigani National Court delivered ex tempore on 13 March 2020 whereby the Court dismissed the proceeding instituted by the appellants on the basis of alleged non-compliance with the requirement to give notice of their claim to the State pursuant to s. 5 of the Claims By and Against the State Act 1996 (CBASA).

Background Facts

2. The relevant background facts in the case are these. The first and second appellants (appellants) are members of various clans within the Gobe Petroleum Project area (GPP area) in the Southern Highlands Province. They claim to be leaders of various clan groups who are subject to a document entitled “The Charter of the Gobe Leadership Committee” executed on 22 November 1997 between several influential leaders from within the clan groups in the GPP area (Charter). One of the objectives of the Charter is for the leaders to negotiate on behalf of people within the GPP area with the Project Developer and the State in terms of the development issues. The Charter, among others, created the membership and provided for election of members of the GPP every two years.

3. The Charter also created a governing body called “Gobe Leadership Committee” (GLC). The GLC elected the fourth respondent as the Chairperson of the GLC. There were also other leaders elected as pioneer members of GLC under the chairmanship of the fourth respondent.

4. The appellants claim that the fourth respondent who holds himself as the Chairman of GLC was illegally holding office because there have never been any meetings called and election held to appoint new members of the GLC for several years contrary to the requirements of the Charter.

5. Between 1997 and 2019, a period of approximately 22 years, among other significant changes, was that several pioneer or original members of the Executive Committee passed away leaving vacancies which required filling. The validity and legitimacy of the office bearers and management and administration of the affairs of the GLC consequently became a serious issue.

6. By a notice dated 30 July 2019, signed by six members of the GLC, called for a meeting of the GLC on a date, time and venue specified with a single specific agenda to deal with the composition of the GLC.

7. During the meeting on 03 August 2019, it was resolved that the office bearers under the Chairmanship of the fourth respondent (Philip Kende) were dissolved and hence...