WS 1014 OF 2017; Charles Osi for himself and on behalf of the fifty-three (53) individual clan leaders whose consent and authority is annexed as Schedule A to this Statement of Claim v Joseph Sungi in his capacity as Custodian for Trust Land and Bewani Palm Oil Development Limited and Bewani Oil Palm Plantations Limited (Third Defendant/Cross Claimant) and Hon. Douglas Tomuriesa, MP, in his capacity as the Minister for Forests and the Independent State of Papua New Guinea (Fifth Defendant/First Cross Defendant) (2019) N8058

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Hartshorn J
• Judgment Date: 02 September 2019
• Citation: (2019) N8058
• Judgment Number: N8058
• Year: 2019

Full Title: WS 1014 OF 2017; Charles Osi for himself and on behalf of the fifty-three (53) individual clan leaders whose consent and authority is annexed as Schedule A to this Statement of Claim v Joseph Sungi in his capacity as Custodian for Trust Land and Bewani Palm Oil Development Limited and Bewani Oil Palm Plantations Limited (Third Defendant/Cross Claimant) and Hon. Douglas Tomuriesa, MP, in his capacity as the Minister for Forests and the Independent State of Papua New Guinea (Fifth Defendant/First Cross Defendant) (2019) N8058

National Court: Hartshorn J

Judgment Delivered: 2 September 2019

N8058

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 1014 OF 2017

BETWEEN:

CHARLES OSI

for himself and on behalf of the fifty-three

(53) individual clan leaders whose consent and authority is

annexed as Schedule A to this Statement of Claim

Plaintiff

AND:

JOSEPH SUNGI

in his capacity as Custodian for Trust Land

First Defendant

AND:

BEWANI PALM OIL DEVELOPMENT

LIMITED

Second Defendant

AND:

BEWANI OIL PALM PLANTATIONS

LIMITED

Third Defendant/Cross Claimant

AND:

HON. DOUGLAS TOMURIESA, MP, in his

capacity as the MINISTER FOR FORESTS

Fourth Defendant

AND:

THE INDEPENDENT STATE

OF PAPUA NEW GUINEA

Fifth Defendant/First Cross Defendant

Waigani: Hartshorn J

2019:2nd September

Application to dismiss the proceeding

Cases Cited:

Papua New Guinea Cases

Amos Ere v. NHC (2016) N6515

Andita Keko v. Barrick (Niugini) Ltd (2015) N7569

Bernard Kosie v. John Kapi Nato (2015) N6263

Bernard Kosie v. John Kapi Natto (2016) unreported SCA 55/15 delivered 6th May 2016

CMSS (PNG) Ltd v. State (2014) N5717

Digicel (PNG) Ltd v. Tongayu (2018) N7237

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

Kerry Lerro v. Stagg &Ors (2006) N3050

Mamun Investment v. Koim (2015) SC1409

Michael Gene v.Hamidian- Rad [1999] PNGLR 444

Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007

Obert Laka v. Stan Nekital (2016) N6557

Paul Eddie v. Bill Kirokim (2012) N4932

Paul Tohian v. Tau Liu (1998) SC566

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, Mendepo v. National Housing Corporation (2011) SC1169

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

Siu v. Wasime Land Group Incorporated (2011) SC1107

Takori v.Yagari & Ors (2008) SC905

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

Overseas Cases

H. Stanke& Sons Pty Ltd & Anor v. O’Meara [2007] SASC 246

Hubbuck& Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1899] 1 Q.B. 86

Counsel:

Mr. J Holingu, for the Plaintiff

Mr. J. Brooks and Ms. E Heagi, for the Third Defendant/Cross Claimant

2nd September, 2019

1. HARTSHORN J: This is a decision on a contested application to dismiss this proceeding.

Background

2. The plaintiff pleads that he represents himself and 53 others who own customary land contained within a State Lease described as Portion 160C Milinch Oeneka (SW) and (SE) Bewani (NW) & NE) Fourmil Vanimo and Aitape West Sepik Province now the subject of a Special Agriculture and Business Lease (SABL).

3. The plaintiff claims that the grant of the SABL to the second defendant Bewani Palm Oil Development (BPOD), the sub lease by BPOD to the third defendant Bewani Oil Palm Plantations Limited (BOPP), a Project Agreement between them, and a project agreement between the fifth Defendant the State and BOPP are all unlawful, invalid and of no force or effect.

4. The plaintiff seeks substantively, amongst others, a permanent injunction restraining BPOD and BOPP from being present on his customary land and from carrying out land clearing and logging activities on his customary land. He also seeks declaratory relief and that an account be taken. Damages are also sought.

This application

5. BOPP submits that the proceeding should be dismissed pursuant to Order 12 Rule 40(1)(a),(b) and (c) National Court Rules, amongst others, as:

a) it is an abuse of process as it is one of a multiplicity of proceedings involving the same subject matter;

b) it is an abuse of process as the relief sought requires a proceeding being brought by way of judicial review pursuant to Order 16 National Court Rules;

c) it is an abuse of process as the requisite requirements for representative proceedings have not been complied with;

d) the pleadings have a tendency to cause prejudice, embarrassment and delay and will prejudice the fair and just hearing and determination of the proceeding;

e) the proceeding is statute barred;

f) it is an abuse of process as s. 5 Claims By and Against the State Act (Claims Act) has not been complied with.

6. The plaintiff submits that the application for dismissal should be refused as:

a) the pleading in the statement of claim discloses a reasonable cause of action;

b) despite this proceeding arising out of the same set of facts as proceeding WS603/17, this proceeding is different, and should not be dismissed as one of a multiplicity of proceedings;

c) the requisite representative requirements have been complied with;

d) this proceeding is not statute barred as declaratory relief is sought and so s. 18 Frauds and Limitations Act applies;

e) a prerogative writ is not being sought;

f) only the State is able to raise the s. 5Claims Act issue.

Law

Order 12 Rule 40 National Court Rules

7. In regard to Order 12 Rule 40 National Court Rules upon which the BOPP relies, there are numerous authorities in respect of the principles to be considered. I make reference to the following cases: Kerry Lerro v. Stagg &Ors (2006) N3050, Takori v.Yagari & Ors (2008) SC905, Mt Hagen Urban Local Level Government v. Sek No. 15 (2009) SC1007 and Siu v. Wasime Land Group Incorporated (2011) SC1107. The Court in Mount Hagen v. Sek (supra) in paragraphs 27 to 30 conveniently sets out the requirements of Order 12 Rule 40 (1) (a), (b) and (c) as follows:

“27. The terms “vexatious”, “frivolous”, “abuse of the process of the Court” and “reasonable cause of action” under O.12 r.40 of the National Court Rules have been judicially considered, defined and expounded in a number of decisions in both the National and Supreme Courts. These cases include Ronny Wabia v. BP Exploration Co. Limited & 2 Others [1998] PNGLR 8 (N1697); PNG Forest Products Pty Ltd and Another v. The State and Genia [1992] PNGLR 85; Gabriel ApioIrafawe v. YauweRiyong (1996) N1915; EliakimLaki and 167 Others v. Maurice Alulaku and Others (2002) N2001; KieeToap v. The Independent State of Papua New Guinea & Another (2004) N2766; Kerry Lerro trading as Hulu Hara Investments Limited v. Philip Stagg, Valentine Kambori& The State (2006) N3050; Philip Takori& Others v. Simon Yagari& 2 Others (2008) SC 905. These cases say the same thing.

28. The law with regard to an application for dismissal of proceedings based on O.12 r.40 is settled in our jurisdiction. We note that the principles are succinctly set out in Kerry Lerro’s case (supra) and which has more recently been approved and applied by the Supreme Court in Philip Takori’s case (supra).

29. The phrase ‘disclosing a reasonable cause of action’ consists of two parts; cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles stated by these cases can be summarized as follows:

(i) A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.

(ii) The Court has an inherent jurisdiction to protect and safeguard its processes from abuse.

(iii) The purpose of O.12 r.40, is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.

(iv) A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.

(v) A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

30. In an application under O.12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement of claim is seriously wanting where a necessary fact or legal element has not been pleaded.”

8. Further, notwithstanding all of the various judicial pronouncements since, the position is succinctly summarised in Hubbuck& Sons, Ltd v. Wilkinson, Heywood & Clarke, Ltd [1899] 1 Q.B. 86. At 90-91 the Court of Appeal said:

“The second and more summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the...