Pepi Kimas v Boera Development Corporation Ltd

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 15 May 2017
• Citation: (2017) SC1587
• Court: Supreme Court
• Year: 2017
• Judgement Number: SC1587

Full : SCA No 59 of 2017; Pepi Kimas, as Delegate of the Minister for Lands and Independent State of Papua New Guinea v Boera Development Corporation Limited and Apau Besena Company Limited and Namona Oala & Igo Namona Oala for and on behalf of Iduata Gubarei No 2 Clan of Boera Village and Moi Eno & Oala Moi for and on behalf of Koke Gubarei No 1 Clan of Boera Village and Raho Kevau for himself and on behalf of Tabumaga Clan of Boera Village and Tau Moi for himself and on behalf of Iduata Gubarei No 1 Clan of Boera Village and Mea Daro for himself and on behalf of Iduata Gabarei No 2 Clan of Boera Village and Seri Alesa for himself and on behalf of Rurua Clan of Boera Village and Rei Miria for himself and on behalf of Iduata Sinavai No 1 Clan of Boera Village and Homoka Loa for himself and on behalf of Iduata Sinavai No 2 Clan of Boera Village and Sir Moi Avei for himself and on behalf of Koke Sinavai Clan of Boera Village and Helai Lohia for himself and on behalf of Taurama Clan of Boera Village and Kohu Muri for himself and on behalf of Koke Gubarei No 1 Clan of Boera Village and Lohia Kohu for himself and on behalf of Koke Gubarei No 2 Clan of Boera Village and Seneka Kevau for himself and on behalf of Laurina Clan of Boera Village and Gudia Meha for himself and on behalf of Nenehi Clan of Boera Village and Rev. Morea Seri for himself and on behalf of Isumata Clan of Boera Village and Iava Gomara for himself and on behalf of Idu Araua Clan of Boera Village and Esso Highlands Limited (2017) SC1587

Supreme Court: Makail, J

Judgment Delivered: 15 May 2017

SC1587

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 59 OF 2017

BETWEEN

PEPI KIMAS, as Delegate of the MINISTER FOR LANDS

First Appellant

AND

INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Appellant

AND

BOERA DEVELOPMENT CORPORATION LIMITED

First Respondent

AND

APAU BESENA COMPANY LIMITED

Second Respondent

AND

NAMONA OALA & IGO NAMONA OALA for and on behalf of IDUATA GUBAREI NO. 2 CLAN OF BOERA VILLAGE

Third Respondent

AND

MOI ENO & OALA MOI for and on behalf of KOKE GUBAREI NO. 1 CLAN OF BOERA VILLAGE

Fourth Respondent

AND

RAHO KEVAU for himself and on behalf of TABUMAGA CLAN OF BOERA VILLAGE

Fifth Respondent

AND

TAU MOI for himself and on behalf of IDUATA GUBAREI NO. 1 CLAN OF BOERA VILLAGE

Sixth Respondent

AND

MEA DARO for himself and on behalf of IDUATA GABAREI NO. 2 CLAN OF BOERA VILLAGE

Seventh Respondent

AND

SERI ALESA for himself and on behalf of RURUA CLAN OF BOERA VILLAGE

Eighth Respondent

AND

REI MIRIA for himself and on behalf of IDUATA SINAVAI NO. 1 CLAN OF BOERA VILLAGE

Ninth Respondent

AND

HOMOKA LOA for himself and on behalf of IDUATA SINAVAI NO. 2 CLAN OF BOERA VILLAGE

Tenth Respondent

AND

SIR MOI AVEI for himself and on behalf of KOKE SINAVAI CLAN OF BOERA VILLAGE

Eleventh Respondent

AND

HELAI LOHIA for himself and on behalf of TAURAMA CLAN OF BOERA VILLAGE

Twelfth Respondent

AND

KOHU MURI for himself and on behalf of KOKE GUBAREI NO. 1 CLAN OF BOERA VILLAGE

Thirteenth Respondent

AND

LOHIA KOHU for himself and on behalf of KOKE GUBAREI NO. 2 CLAN OF BOERA VILLAGE

Fourteenth Respondent

AND

SENEKA KEVAU for himself and on behalf of LAURINA CLAN OF BOERA VILLAGE

Fifteenth Respondent

AND

GUDIA MEHA for himself and on behalf of NENEHI CLAN OF BOERA VILLAGE

Sixteenth Respondent

AND

REV. MOREA SERI for himself and on behalf of ISUMATA CLAN OF BOERA VILLAGE

Seventeenth Respondent

AND

IAVA GOMARA for himself and on behalf of IDU ARAUA CLAN OF BOERA VILLAGE

Eighteenth Respondent

AND

ESSO HIGHLANDS LIMITED

Nineteenth Respondent

Waigani: Makail, J

2017: 9th&15th May

SUPREME COURT – PRACTICE & PROCEDURE – Application for leave to appeal – Leave sought to appeal interlocutory judgment –Ruling on vacation of trial and leave to amended Order 16, rule 3 Statement – Whether arguable case established – Substantive issues pending determination – No substantive rights of parties determined – Appropriate Court to determine issue – Leave refused – Supreme Court Act – Section 14 (3) (b)

Cases cited:

Boyope Pere v. Emmanuel Ningi (2003) SC711

Chief Collector of Taxes v. Bougainville Copper Limited (2007) SC853

Joshua Kalinoe v. Paul Paraka Lawyers (2014) SC1366

Mathew Vingome v. Diala& UPNG (2014) N5710

Madang Timbers Limited v. Henry Wasa (2012) SC1196

Morobe Provincial Government v. Tropical Charters Limited (2010) N3977

Peter Makeng v. Timbers (PNG) Limited (2008) N3317

Patrick Pruaitch v. ChronoxManek& Ombudsman Commission (2010) SC1052

Sir Julius Chan v. Ombudsman Commission of Papua New Guinea [1999] PNGLR 240

The State v. Timothy Gitua (2016) SC1479

Counsel:

Mr. T. Griffiths, for Appellants

No appearance, for 1st to 4th Respondents

Mr. L. Henao with Mr. G. Gaudi, for 5th to 18thRespondents

RULING

15th May, 2017

1. MAKAIL, J: This is an application for leave to appeal made pursuant to Section 14 (3) (b) of the Supreme Court Act. The Appellants seek leave to appeal an interlocutory ruling of the National Court to first vacate the trial date of 8th March 2017, secondly, grant leave to the 5th to 18thRespondents to further amend a Statement made pursuant to Order 16, rule 3 (2) (a) of the National Court Rules and further, file a Notice of Motion for substantive relief under Order 16, rule 5.Leave is required because the judgment sought to be appealed is interlocutory in nature and the substantive matter in the National Court is still pending.

Principles of Leave

2. The purpose of an application for leave to appeal is stated by the Supreme Court in Patrick Pruaitch v. ChronoxManek& Ombudsman Commission (2010) SC1052. It is a “filtering process designed to prevent cases going to a higher tribunal which have no merit”.

3. It is, therefore, necessary for the Appellants to satisfy the Court that there is an arguable case:Sir Julius Chan v. Ombudsman Commission of Papua New Guinea [1999] PNGLR 240 at 249 - 250 and adopted in Patrick Pruaitch. Some Supreme Court judgments such as Boyope Pere v. Emmanuel Ningi (2003) SC711, Chief Collector of Taxes v. Bougainville Copper Limited(2007) SC853 and The State v. Timothy Gitua (2016) SC1479 used the expression “meritorious and arguable case”. The use of these expressions interchangeably does not alter the onus of proof and it remains for the Appellants to make out a case.

4. Equally, as the substantive rights of the parties have yet to be finally determined by the National Court, the other consideration the Appellants must satisfy is what the Supreme Court in Madang Timbers Limited v. Henry Wasa (2012) SC1196 referred to as “.....that not only is there a patent error but that the error affects the parties’ substantive right.”And further, as the Supreme Court said,this is because “That it will also prevent the proper determination of the issues and that because of that, there is error in the interlocutory judgment that goes to jurisdiction.”I am guided by these principles in my consideration of the application.

Background Facts

5. The case under consideration has a long history going back to the time the first Liquefied Natural Gas (“LNG”) project was established in the country. As is in any resource project development, land was needed. In this instance, a number of portions of land were identified to build the LNG facility between Boera and Papa villages in the West Hiri area of Central Province.

6. The disputed portions of land were Portions 2457C and 2458C. They were identified for the LNG project. They became the subject of a declaration by notice under the hand of the First Appellant as delegate of the Minister for Lands and Physical Planning on 10th March 2009 pursuant to Section 5 of the Land Act. It was essentially a declaration that these portions were State land and the Second Appellant will use them for the LNG project. The declaration was published in a notice in the National Gazette No. G70 dated 17th April 2009.Before the declaration was made, a three-month notice was given for anyone to object to thisproposal as required by Section 5 of the Land Act and the Respondents did.

7. The declaration became a subject of judicial review proceedings OS (JR) No. 485 of 2009 in the National Court. By those proceedings, the First to Fourth Respondents disputed the declaration and alleged, amongst other things, that they were traditional owners of Portion 2458C and through the First Respondent were in the process of acquiring them in the form of leases when the declaration was made.As a result, they missed out. It is also relevant to mention that they further alleged that the declaration was contrary to a number of provisions in the Constitution, therefore, unconstitutional. This aspect was dismissed by the Supreme Court in appeal SCM No. 6 of 2012 against the grant of leave for judicial review while the balance of the review was remitted for hearing in the National Court on 9th March 2012.

Arguable Case

8. This is a summary of the facts giving rise to the substantive dispute but the real issue is this, the declaration covered...