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21 ILGS Gobe Project Area Incorporated Land Groups v Imawe Bogasi ILG [2006] PGNC 83; N3096 (29 September 2006)

N3096
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1027 of 2005

BETWEEN:

21 ILGS GOBE PROJECT AREA INCORPORATED LAND GROUPS as per the Ministerial Determination and attached as schedule "A" to this Writ
First Plaintiffs

AND:

IMAWE BOGASI ILG and its 9 Subsidiary ILGs
Second Plaintiffs

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
First Defendant

AND:

MINERAL RESOURCES DEVELOPMENT COMPANY LIMITED
Second Defendant

AND:

PETROLEUM RESOURCES GOBE LIMITED
Third Defendant

AND:

BERNARD PAWHI, as the Acting Secretary for the DEPARTMENT OF PETROLEUM & ENERGY
Fourth Defendant

Waigani: Davani .J
2006: 29 May,2 June
29 September

Counsel:

P. Donigi, for first plaintiffs

J. Haiara, for second plaintiffs

P. Korowi, for first and fourth defendants
P. Kuman, for second and third defendants

CONSTITUTION - Plaintiffs seek declaratory orders to have Act declared unconstitutional - National Court does not have jurisdiction - constitution, s. 18 (1)

PLEADINGS - Plaintiff suing as a non-entity - not a proper plaintiff - suing as landowners when issue yet to be determined - ILG Constitutions state the manner and form of authority to sue - certificate is authority by ILG to sue - therefore no reasonable cause of action disclosed - action frivolous and vexatious - abuse of court process - National Court Rules O. 12 R. 40 (a) (b) (c) - Land Groups Incorporation Act ss. 11, 13.

CUSTOM - reliance on custom to have act declared unconstitutional - plaintiffs seek to prove ownership to land by custom - National Court does not have jurisdiction.

MINING - Determinations - effect of - whether project beneficiaries are deemed to be landowners - Determinations allow for ILG’s to receive benefits - receipt of equity benefits under Determinations is not declaration of ownership to land - Oil and Gas (Amendment) Act 2001 No. 21 of 2001 - ss. 169A (1) (2)

Cases cited:

Papua New Guinea cases:

• Mamun Investments Pty Ltd & Anor v. Paul Ponda & Anor [1995] PNGLR 1
• Petition by R.T. Hon. Michael Somare [1982] PNGLR 65
• SCR No. 3 of 1982 [1992] PNGLR 405
• SCR No. 5 of 1982 [1982] PNGLR 379
• The Hon. Patterson Lowa, The Minister for Minerals and Energy and others v. Wapule Akipe & ors, The Hon. Patterson Lowa, the Minister for Minerals and Energy and others v. Wapula Akipa & others, Mount Kare Alluvial Mining Pty Limited and anor v. Wapula Akipe and others; Mount Kare Alluvial Mining Pty Limited and anor v. Wapula Akipe and others [1992] PNGLR 399
• PNG Forest Products Pty Ltd and Inchcape Berhad v. The Independent State of Papua New Guinea and Jack Genia, Minister for Forests [1992] PNGLR 85
• Gabriel Apio Irafawe v. Yauwe Riyong (1999) N1915
• In the matter of Section 18(1) of the Constitution of Papua New Guinea and in the matter of Jim Kas, Governor of Madang Province (2001) SC670
• Soso Tomu & 8 clans v. the State and 4 others (2002) N2190
• Eliakim Laki and 167 others v. Maurice Alaluku & 2 others (2002) N2001
• Simon Mali v. The State (2002) SC690
• Kiee Toap v. The Independent State of Papua New Guinea and Electoral Commission of Papua New Guinea and Anor (2004) N2731
• Dumal Dibiaso Incorporated Land Group No. 1664 and 2 others v. Kala Kuma and 9 others (2005) SC 805 dated 3 November 2005
  

Overseas Cases:

• Foss v. Harbottle [1843] EngR 478; (1843) 2 Hare 461; Ch 12 LJ 319;
• Republic of Peru v. Peruvian Guano Company [1887] UKLawRpCh 186; (1887) 36 Ch. D. 489;
• Hubbard and Sons Ltd v. Wilkinson, Heywood and Clerk Ltd [1898] UKLawRpKQB 176; [1899] 1 QB 86;
• Dyson v. Attorney-General [1911] 1KB 410;
• Lonrho v. Fayed [1991] 3 All ER 303;
• Nagle v. Fielden [1996] 1 All ER 689;
  

DECISION

29 September, 2006

1. DAVANI .J: By amended Notice of Motion filed by Posman Kua Aisi Lawyers on 29 September, 2005, the second and third defendants (‘applicants’) move the court for orders that;

1. The pleadings, either in whole or in part, be struck out pursuant to O. 8 R. 27 (1) (a) (b) and/or (c) of the National Court Rules (‘NCR’) as -

(i) they fail to disclose a reasonable cause of action; and/or

(ii) the pleadings have a tendency to cause prejudice, embarrassment and delay; and/or

(iii) are an abuse of process.

2. The pleadings be dismissed pursuant to O. 12 R. 40 (1) (a) (b) and/or (c) of the NCR on the same grounds as above.

3. Alternatively, the proceedings be dismissed because the National Court does not have jurisdiction to deal with these matters because they raise constitutional issues, falling within the interpretive jurisdiction of the Supreme Court as provided by s. 18(1) of the Constitution.

4. Alternatively, the proceedings be dismissed because the plaintiffs lack standing as customary landowners.

5. Further and in the alternative, that the proceedings be dismissed because each ILG have not filed written Consent and Authorities to Act and Resolutions evidenced by Certificates from each ILGs, done in accordance with their Constitutions, unless such resolutions, written Consents and Authorities are filed within 14 days.

6. Alternatively, that proceedings be dismissed because the plaintiffs failed to give notice under s. 5 of the Claims By and Against the State Act (‘CBASA’).

Order 8 Rule 27 (1) (a) (b) (c) of the NCR reads;

"27. Embarrassment, etc.

(1) Where a pleading -

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms or otherwise, order that the whole or any part of the pleading be struck out.

(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1) of this Rule."

O. 12 R. 40 (1) (a) (b) (c) of the NCR reads;

"40. Frivolity, etc.

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -

(a) no reasonable cause of action is disclosed;

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

The Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1) of this Rule."

S. 18 (1) (2) of the Constitution reads;

"18. Original interpretative jurisdiction of the Supreme Court

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate."

S. 5 of the CBASA reads;

"5. Notice of claims against the State

(1) No action to enforce any claim against the state lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to -

(a) the Departmental Head of the Department responsible for justice matters; or

(b) the Solicitor-General.

(2) A notice under this Section shall be given -

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as -

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by -

(a) personal service on an officer referred to in Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45am and 12 noon, or 1.00 pm and 4.06 pm or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321)."

Schedule 2.1 (2) of the Constitution reads;

"Sch 2.1 Recognition, etc, of custom

...

(2) Subsection (1) does not apply in respect of any custom that is and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.

..."

1. Background

2. Litigation in this matter, although only filed in 2005, has a long, convoluted history which is evidenced by the extensive pleadings and applications filed by all parties. Originally filed on 6 July, 2005, the Writ of Summons and Statement of Claim was subsequently amended on 13 October, 2001, (the ‘amended writ’ ‘amended statement of claim’). Amendments included are very extensive. And the second and third defendants now seek to have the amended writ dismissed or partially struck out or for the whole proceedings to be dismissed, relying on their motion and submissions in support.

3. In the body of these reasons, I set out where appropriate, the relevant parts of the amended writ that are challenged.

2. This Application and analysis of evidence and the law

4. The applicant’s lawyer Mr. Kuman presented submissions on the motion that he filed which was responded to extensively by all respondents. Written submissions were filed by lawyers with the exception of Mr Korowi who made verbal submissions only, supporting Mr Kuman’s application. I have considered all these submissions both on facts and law and set out my analysis of these submissions.

2.1 Application to dismiss

5. In the amended Notice of Motion, the applicants seek to have the pleadings struck out either wholly or in part pursuant to O. 8 R. 27 (1) (a) (b) (c) of the NCR or that the proceedings be dismissed pursuant to O. 12 R. 40 (1) (a) (b) and/or (c) of the NCR and on several other grounds which I have set out above.

6. But it is to be noted that on perusing these two provisions, there is a clear distinction between O. 8 R. 27 and O. 12 R. 40. Order 8 Rule 27 refers to the striking out ‘either wholly or in part’ of pleadings. And that is where Mr Donigi’s submissions are relevant, to a certain extent. Mr Donigi points out this distinction but then extends this submission to the preliminary issue of standing and the non-filing of the Notices of Intention to Defend. I have already dealt with the latter issue and which is now not relevant to this application. But the issue of the plaintiffs standing was argued by counsel and is now before me for determination.

7. What is of importance is the distinction between the word ‘proceeding’ and ‘pleadings’. On hearing Mr Kuman for the applicants, the thrust of his submissions under both O. 8 and O. 12 are that the pleadings i.e amended writ or the whole of the proceedings, which is the claim in its entirety, should either be struck out for the various deficiencies pointed out or be dismissed. And although I accept Mr Donigi’s submissions on the distinction between ‘pleadings’ and ‘proceedings’, I must state at the outset that all counsels submissions before me were as to whether certain parts of the amended Statement of Claim ought to be struck out or whether the amended Statement of Claim including the whole proceedings ought to be dismissed. And it is on that basis that I proceeded.

8. The law in relation to applications to strike out or dismiss relying on the cited provisions of the NCR is very clear. In fact, all counsel relied on the same authorities, which authorities I set out in the latter part of these reasons.

9. When a party relies on O. 8 R. 27 and O. 12 R. 40 of the NCR, they must identify the relevant paragraphs or sentence in the pleading or the proceedings itself which they submit;

a. does not disclose a reasonable cause of action or is not appropriate to the nature of the pleading; or

b. has a tendency to cause prejudice, embarrassment and delay in the proceedings; or

c. is otherwise an abuse of the process of the court.

10. As to the striking out of a pleading, Mr Donigi submits that the rationale or purpose of this rule is to rectify the ‘problem’ on the pleadings to then enable parties to properly identify the issues for trial. He submits that the court should not strike out the whole of the pleadings unless it is so hopelessly drafted that the court will not be able to help. Submissions raised by all counsel are as to whether parts of the amended Statement of Claim ought to be struck out or alternatively, that proceedings should be dismissed.

11. There are several grounds on which the applicants rely in seeking either a dismissal or striking out, the first of which is the plaintiffs’ standing. 12. The plaintiffs’ standing has been challenged by the second and third defendants. It is appropriate that I deal first with this addressing grounds and submissions raised by Mr Kuman and all opposing counsel.

2.1.1 Lack of standing

13. The second and third defendants challenge the plaintiffs’ standing. Mr Kuman submits that the entire pleadings in the Statement of Claim is bad in law as the plaintiffs are claiming as "Gobe landowners" when the issue of "landownership" over Gobe is still unresolved. He submits that since 4 December, 2000, there has not been any determination as to the rightful owners of Gobe, and that this status is the same since Sheehan .J’s decision in Appeal No. 111 and 144 of 2000. Mr Kuman also referred the court to the history of the Gobe land disputes which are succinctly set out by Kandakasi .J in Soso Tomu v. State N 2190 dated 28 February, 2002.

14. Mr Kuman relies on the affidavit of Mr. Philip Kende sworn on 3 August, 2005 where he deposes at paragraphs 19 to 22 that the Land Titles Commission is conducting a hearing to determine who the landowners of the Gobe project are and that whilst the issue of ownership of the subject lands is before the Land Titles Commission, that the plaintiffs cannot proceed in the way they have until that is determined.

15. He submits further that additionally, there is no evidence of any or lawful resolutions, evidenced by certificates as required under the respective Constitutions of each of the 21 Gobe Project Area Incorporated Land Groups (‘ILGs’), expressly authorizing and consenting to these proceedings being brought and to instruct Lomai & Lomai Attorneys to act. This is referred to in the affidavit of Peter Kuman filed on 2 August, 2005 where he refers to and has attached the Constitutions of all the ILGs.

16. Mr Kuman also submits that pursuant to O. 8 R. 8 of the NCR, that the amended writ does not specifically plead who the plaintiffs are. The attachment that purportedly pleads who the plaintiffs are, is evidence and is not a pleading. He reminds the court that O. 8 R. 8 of the NCR provides that only facts are to be pleaded and not the evidence. He submits that the present description of the first plaintiff on the amended writ as "21 Incorporated Land Groups" is only a description as opposed to being an entity capable of suing and being sued.

17. Mr Donigi for the plaintiffs submit that the plaintiffs are embarrassed by this ground. He submits that the defendants are estopped from recognizing the plaintiffs as legitimate entities with the power to bring this action because there is evidence that the second and third defendants recognize the plaintiffs as recipients of royalties and beneficiaries of funds received by them for and on behalf of the plaintiffs by virtue of their position as trustees of the plaintiffs. Mr Donigi submits that apart from being an embarrassing ground, that it is a frivolous and vexatious ground and is likely to cause prejudice to the fair trial of the action by the plaintiffs because it will cause a delay in the trial of the plaintiffs’ case. He submits that it is therefore an abuse of the process of the court.

18. Mr Donigi submits that the defendants have to show to the court by way of affidavit evidence that the ILG chairmen who met last year did not have authority to bring this proceeding and that it is not for the plaintiffs to prove their standing.

19. Mr Donigi referred the court to O. 5 and the rules therein and submits that the plaintiffs do have standing. He submits that Mr. Kende has been removed as the third defendant’s director and did not apply to challenge the position. He submits further that the plaintiff cannot hide behind the shield of a corporate entity like the third defendant and put forward a motion that has no standing at law, both procedurally and substantially and that therefore, that ground of the notice of motion is frivolous, embarrassing, vexatious and is intended to delay the fair trial of the plaintiffs case, and therefore an abuse of the process of the court.

20. The second plaintiffs submit that the decisions of Sheehan J. in Appeal No. 111 and 144 of 2000 and Kandakasi J. in Soso Tomu v. The State N2100 dated 28/02/02 have been overtaken by the Ministerial Determination as gazetted in Gazette No. G. 102 of 24 June, 2002. Mr Haiara for the second plaintiff then referred to Soso Tomu v. The State (supra) where he pointed out that in that case, Kandakasi .J had found that the Oil and Gas Act 1998 did not apply to the Gobe Petroleum Project because Gobe was in production prior to the commencement of the Act, by virtue of ss. 168 (6) and ss. 168(8) of that act.

21. Mr Haiara pointed out that following Soso Tomu v. The State (supra), the Oil & Gas Act was amended and which amendment was certified on 3 April, 2002 and gazetted on 17 April, 2002, to come into effect on the date of gazettal, the effect of which was that a new s. 169A was inserted to specifically deal with petroleum projects which had commenced production prior to the commencement of the Act. He submits that the new s. 169A was created to overcome or to correct issues faced by the State following Justice Kandakasi’s decision in Soso Tomu v. The State (supra). Following that amendment, the Minister then determined the beneficiaries of the Gobe Petroleum Project which was published in Gazette No. G. 102 dated 24 June, 2002 and that these beneficiaries would receive royalty and equity benefits under s.167 and s.168 of the Oil and Gas Act 1998 (the ‘Act’).

22. Mr Haiara submits that by virtue of that amendment, the plaintiffs are landowner beneficiaries and are identified by the Minister under s.169A and Gazette No. G. 102 dated 24 June, 2002. This document is included as annexure "A" to the affidavit of Paul Sapake sworn on 4th and 5th August, 2005. This was followed by a subsequent ministerial determination Gazette No. G. 64 dated 13 May, 2003, which varied the previous determination and the Imawe Bogasi Stock was divided into 9 ILGs. This is annexure "B" to the same affidavit of Paul Sapake referred to herein.

23. As to what is sufficient interest, Mr Haiara referred the court to Mamun Investments Pty Ltd & Ors v. Paul Ponda & Ors [1995] PNGLR 1 where the majority of the Supreme Court, per Kapi DCJ and Injia .J (as they then were) considered what a ‘sufficient interest’ or ‘locus standi’ would be. Their Honours said at page 4 that "The applicant must have sufficient interest in the matter to which the application relates. Such interest may be a property interest or proprietary interest, legal or equitable or even a social or political interest."

24. Mr Haiara submits that pursuant to ministerial determinations G102 and G64, the plaintiffs have been receiving the benefits conferred by s.167 and s.168 of the Act in proportions determined by the Minister and as per the said ministerial determinations. That accordingly, the plaintiffs being the current beneficiaries of the benefits in respect of the Gobe Petroleum Project, have a real interest in the subject matter of this dispute.

25. As to whether the plaintiffs should have their names included in a schedule to the writs of Summons, Mr Haiara referred the Court to Simon Mali v. The State (2002) SC 690 where the Supreme Court said that in all actions or proceedings of a representative nature all the intended plaintiffs must be named and duly identified in the originating process, be it writ of summons, originating summons or statement of claim endorsed on a writ. Pursuant to the rules, each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them, for various reasons one being the costs of the litigation, if awarded against the plaintiffs.

26. Mr Haiara then referred the court to the affidavits of committee members of Toale Hongiri ILG sworn and filed in support of this claim. These are;

1. Paul Sapake - Chairman, affidavit sworn on 4th and filed on 5th August, 2005

2. Jason Tirime - Treasurer, affidavit sworn on 11th and filed on 12th May, 2006.

27. Annexure "C" to the affidavit of Jason Tirime is the Resolution passed by the Committee Members at its meeting held at the Holiday Inn on 16 April, 2006. In that meeting, the committee members unanimously resolved to rectify the actions taken by the incumbent Chairman and the Treasurer to pursue this action on behalf of the Toale Hongiri ILG and other Imawe Bogasi Clan members including the other 8 ILGs. Mr Haiara submits that even if some of the authorities or consent by other ILGs are lacking in some respects, that the Toale Hongiri ILG, being the largest beneficiary has the full consent of all its committee members and therefore has the standing to pursue these proceedings on its own behalf and on behalf of other Imawe Bogasi clan members, which includes the 8 ILGs.

28. Annexure "D" is the letter of Instruction and Authority from all Chairmen of the second plaintiffs, authorizing the Toale Hongiri ILG to pursue this action on their behalf and for Toale Hongiri ILG.

29. Mr Haiara, relying on the principles of joinder, submits that the 21 ILGs are properly joined and are therefore suing in that capacity. But I have not been referred to a court order to join the 21 ILGS. The principles of joinder submitted by Mr Haiara, do not apply in this case because they are only applicable when an application to join is being moved. In this case, none of the ILGs applied to the court to be joined. "21 ILGs" is a name chosen by whoever was instructing the plaintiffs’ lawyer, to be the appropriate name or description to sue under. The issue now, in line with submissions by Mr Kuman, is whether the first plaintiff is a proper entity, to be suing? And do these ILG’s have a sufficient interest in the matter for them to remain as proper plaintiffs? I accept the submissions put to the court by Mr Haiara on what a ‘sufficient interest’ is. But this case can be distinguished from Mamun Investments Pty Ltd & Ors (supra) and other cases referred to me by Mr Haiara. There is no dispute that the 21 or 24 ILGs do have an interest over the Gobe land. But the issue is whether the named plaintiff is the proper plaintiff to sue. And additionally, although Mr Haiara has cited and referred to Simon Mali (supra), there is no evidence before the court of instructions from each ILG to the lawyers authorizing them to pursue this claim. I discuss this further when I consider Mr Kuman’s submissions on this point.

30. Mr Haiara also submits that the appropriate direction from the Court would be that any plaintiff ILGs that do not wish to be joined as a party must file a formal Notice of Withdrawal by resolution passed in accordance with their respective ILG Constitutions and likewise for those ILGs who support this action to do the same and that the Court has jurisdiction to make such orders under s.155 (4) of the Constitution. I find those submissions to be totally misleading and misconceived. I say this because there is no application to join before me neither is there a court order to join and yet Mr Haiara’s submissions are that the 29 ILGs are joined. These submissions must fail.

31. As to the adequacy or not of the authorities and resolutions referred to me by Haiara, I discuss these in greater detail, later below.

32. It is not disputed that the issue of the ownership of the Gobe land is still unresolved. And throughout, in the amended Statement of Claim, the plaintiffs plead as ‘the Gobe Landowners.’ Obviously, they cannot plead that they are "landowners" when that issue has yet to be determined. Which then takes me to Mr Donigi’s submissions. Are the defendants estopped from raising this submission considering they have recognized the plaintiffs’ ownership to the said land by the payment of compensation to them? What is the scheme of arrangement between the first plaintiff, the second defendant, third defendant and the Department of Petroleum and Energy, in relation to payments made to ILGs at the present time and previously. I ask myself, was the State paying the 21 ILG’s royalties because they were declared to be the rightful landowners? Were the reasons behind the passing of the Determinations referred to by Mr Haiara and Mr Donigi, by the State, an acknowledgement by the State that the various tribes and groups residing or living on the affected portions of land, landowners? And it is common knowledge that the State’s task is now made more difficult by the fact that numerous disputes have now arisen amongst the landowners themselves, over ownership to the subject lands and the receipt or non-receipt of equity benefits.

33. I note that the first Determination was published in the National Gazette on 28th September, 2001 No. G119. There, the then Minister for Petroleum and Energy, Mr Roy Yaki, made or issued an interim determination on the "14.8% non-adjudication land area landowners of the Gobe Oil Project entitled to receive royalty and equity benefits from the Gobe Oil project." The determination titled "DETERMINATION ON 14.8% NON-ADJUDICATION LAND AREA ROYALTY AND EQUITY BENEFICIARIES OF THE GOBE OIL PROJECT" states further;

"Having received and considered expert reports, submissions from landowner groups, we, the Minister and Director responsible for the implementation of the Oil and Gas Act 1998, make the following determination:-

1. The land groups and percentage sharing appearing on the attached Schedule 1 relate to the main resident clans and their entitlements based on the Compromise Agreement signed by the said main resident clans.

2. The land groups appearing in Schedule 2 are entitled to receive royalty and equity benefits in accordance with benefit sharing agreements facilitated by the land groups appearing in Schedule 1.

This determination supersedes previous determinations and take effect immediately.

Dated this 16th day of August, 2001.

R. YAKI, LLB, MP

Minister for Petroleum and Energy."

34. National Gazette No. G102 dated 24 June, 2002 and subsequent amendment to G102, No. G64 dated 13 May 2003 referred to me by Mr Haiara, are titled "Determination of identification of Project Area Landowners Beneficiaries for the sharing of equity and royalty benefits in respect to the Gobe Petroleum Project" and "Variation of determination of identification of Project Area Landowner Beneficiaries for the sharing of equity and royalty benefits in respect to the Gobe Petroleum Project, respectively. (‘Determination 1 and Determination 2’). Determination 1 states "We, Roy Yaki, LLB, MP, Minister for Petroleum & Energy of the Independent State of Papua New Guinea, Joseph Gabut, Director of Petroleum appointed under the Oil and Gas Act 1990 (as amended) and Thaddeus Kambanei, Acting Secretary for Finance, being the Departmental Head responsible for financial matters, by virtue of section 169A of the Oil and Gas Act 1998 (as amended) and for the purposes of the Gobe Petroleum Trust declared pursuant to a Declaration of terms by Deed Poll dated 9th November 2001 (the Gobe Petroleum Trust) and all other powers us enabling and having considered the relevant court decisions, Landowner Agreements and the submissions for the Government and Independent Advisors, hereby make the following determination as to the identity and entitlements of person to receive equity and royalty benefits from the Gobe Petroleum Project;

"1. the Incorporated Land Groups entitled to benefits from the Gobe Petroleum Project pursuant to the Oil and Gas Act 1998 (as amended) including as Project area Landowners, Beneficiaries, or Project Area Incorporated Land Groups pursuant to the Gobe Petroleum Trusts are those incorporated Land Groups set out in column 1 of the Schedule.

2. Each Incorporated Land Group set out in Column 1 of the Schedule are entitled to share in the equity and royalty benefits arising from the Gobe Petroleum Project pursuant to the Gobe Petroleum Trusts I the percentages set out at column 2 of the Schedule.

..."

35. The opening paragraph in the variation or Determination 2 is in the exact same terms except that the Minister is now Sir Moi Avei, the sections of the Oil and Gas Act referred to are s.169A and s.169(2) and Thaddeus Kambanei is now the Secretary. And the amendment seeks to amend "Imawe Bogasi 34%" and to substitute 9 incorporated land groups comprising the Imawe Bogasi Clan.

36. And are they receiving these benefits because they have been declared to be the landowners? Section 169A (1) and (2) of the Oil and Gas (Amendment) Act 2001 No. 21 of 2001 certified on 3.4.02 states;

"169A. IDENTIFICATION OF LAND OWNERS BENEFICIARIES AND SHARING OF BENEFITS IN RELATION TO EXISTING PETROLEUM PROJECTS.

(1) If in respect of petroleum projects which on the commencement date are in production or have commenced development, persons or incorporated land groups or other entities, who should be receiving benefits from such petroleum projects, have not been identified or where a dispute exists as to which persons or incorporated land groups or other entities should be identified to receive such benefits, the Minister may make a determination as to the persons or incorporated land groups or other entities who should receive the benefits arising from such petroleum project.

(2) In making a determination under Subsection (1), the Minister shall consider any agreements by persons who are or claim to be project area landowners, the decisions of courts of Papua New Guinea as to ownership of land or rights in relation to land in the vicinity of the petroleum project in question, the results of social mapping and landowner identification studies that have been carried out in accordance with this Act, and submissions from affected Local-level Governments or affected Provincial Governments of the petroleum project in question or from any other person claiming an interest or to be affected by the decision of the Minister."

37. And these Determinations were passed to allow for "persons or ILGs and other entities "to receive "benefits" from the petroleum projects because these "persons or ILGs or entities have not been identified or where a dispute exists as to which persons or incorporated land groups or entities should be identified to receive these benefits." (s.169A). (my emphasis).

38. And it is common knowledge that ownership to the lands in question have yet to be determined by the Land Titles Commission. That is a fact that is not opposed by the plaintiffs. But because mining has commenced, clans and tribes located within the area being mined are affected by these operations and want to benefit from the spin-offs etc. This has resulted in numerous claims and demands by ILGs, clans and individuals to the respective government departments for monetary compensation and other benefits. And in an attempt to alleviate these issues and problems, the Government then passed these Determinations, and payments to beneficiaries to be controlled and managed by the second defendants as trustee under the terms of a trust deed. And the payments or equity benefits are paid to the beneficiaries, listed in the three Determinations, as amended.

39. It is clear that payment of equity benefits to ILGs was not made on the basis of determination of ownership, rather, the many disputes that exist and which resulted in the Minister issuing the Determinations.

40. With respect, Mr Donigi’s submissions are incorrect and misleading.

41. And Mr Haiara’s submission that the plaintiffs are "landowner beneficiaries" are correct only to the extent that they have been identified by the Minister as ILGs under the Determinations who should receive benefits from the petroleum projects. Effectively, that is not a decision as to who owns the said lands. Mr Haiara is also incorrect.

42. And as to whether the plaintiffs have an interest, there is no denying that they do have an interest, but that interest is subject very much on whether they are or have been declared by the Land Titles Commission to be the legitimate, true, landowners. And that has yet to occur.

43. As to Mr Kuman’s submissions that all ILGs have not consented to these proceedings being brought, Mr Haiara asks the Court to accept the Toale Hongiri ILG’s consent to Act as authority for all ILGs and this is because it is the largest ILG and its consent to sue is a representation for all ILGs. The ILGs ability and authority to sue is governed by its Constitution. Peter Kuman’s affidavit (for the second defendant) sworn on 1 August, 2005 and filed on 2 August, 2005 has attached to it copies of Constitutions of the 24 ILGs now suing as the plaintiffs. These Constitutions are all identical in their terms and content except for the name of the ILG and the Committee members names. Therefore, I need not set them all out.

44. The relevant clause in these standard Constitutions, on the ILG’s authority to act, is clause 5. It reads;

"5. MANNER IN WHICH THE GROUP ACTS

(1) The land group acts in the following manner:-

(a) Before any act of the land group, the Committee or the continuing or surviving members thereto, shall give notice to the members stating:-

(i) when and where the land group will meet; and

(ii) the nature of the matter on which the land group proposes to act.

(b) Notice given under paragraph (a) must be sufficient to allow the members of the land group resident in village to attend the meeting, and normally should not be less than three (3) days.

(c) The matter on which the land group proposes to act shall be fully discussed at the meeting, and a decision reached on the matter by consensus of the members present.

(d) A decision reached in accordance with paragraphs (a), (b) and (c) shall not be invalidated by reason of the absence from the meeting of any individual members or members of the land group, providing however that not less than one half of all existing clan members are present at the meeting so convened.

(e) When a decision is reached in the above manner, that decision is the decision of the land group, and is sufficient authority for the Committee to act on behalf of the land group so as to carry out the decision.

(2) The acts of the land group are evidenced by the members of the committee completing and signing the certificate in the schedule to this Constitution."

45. And in accordance with clause 5 (2) of the standard Constitution, the certificates evidencing the ILG’s decision to sue are not before me.

46. Section 13 of the Land Groups Incorporation Act chap. 147 (‘LGIA’) sets out the powers of ILGs. Section 13 (1) (b) of the LGIA states that the powers of ILGs "shall be regulated and exercised, in accordance with and subject to any conditions or limitations imposed by its Constitution and any relevant custom; and (c) shall be exercised in the manner specified by its Constitution or any relevant custom".

47. Each ILG should have before the Court a certificate signed by committee members certifying that "...at a meeting of the Land Group held on ................a decision was taken to ..........." (see Schedule to LGIA), file court action against, in this case, the MRDC and Petroleum Resources Gobe Limited. Ideally, the certificate should be in that form. Again, such certificates are not before me.

48. And what of the action before me now? Is it properly before me? By its Writ of Summons and Statement of Claim filed on 6 July, 2005, the plaintiff pleads at par. 1 that;

"1. The plaintiffs are the 21 Incorporated Land Groups (ILGs) representing the Gobe Project Area Landowners who have interest in or rights over the land and oil and gas at and below the surface of the land (hereinafter referred to as "the land") the subject of the Petroleum Development Licences numbered 3 & 4 issued by the First Defendant pursuant to the provisions of the Oil and Gas Act to the Gobe Venture Partners. As such they can sue in their 21 Incorporated Land Groups’ name and style as determined by the Minister for Petroleum and Energy and incorporated under the Land Group Incorporation Act. The name of the Plaintiffs is annexed as Schedule "A" to this Writ of Summons."

49. Schedule ‘A’ to that Writ is Determination 1 referred to earlier.

50. By its amended Writ of Summons and Statement of Claim filed on 13 October, 2005, the plaintiffs are pleaded and described as;

"Parties

1. The Plaintiffs are:

(a) The 21 Incorporated Land Groups (ILGs) representing the Gobe Project Area Landowners who have interest in or rights over the land and oil and gas at and below the surface of the land (hereinafter referred to as "the land") the subject of the Petroleum Development Licences numbered 3 & 4 issued by the First Defendant pursuant to the provision of the Oil and Gas Act to the Gobe Venture Partners;

(b) As such they can sue in their 21 Incorporated Land Groups’ name and style as determined by the Minister for Petroleum and Energy and incorporated under the Land Groups Incorporation Act;

(c) The names of the plaintiffs are annexed as Schedule "A" attached to this Writ of Summons."

51. But Schedule A is not attached to the amended Writ of Summons.

52. The ILG is a corporation and must be sued in that capacity. Section 11 of the Land Groups Incorporation Act Chap. 147 states;

"11. Status of recognized groups

1. An incorporated Land Group -

(a) is a corporation; and

(b) has perpetual succession; and

(c) may sue and be sued in its corporate name as set out in its constitution; and

(d) for the purpose of a more effective exercise and performance of its powers and functions, may do and suffer all things that a corporation may do or suffer."

53. First, the present description of the plaintiff is that of a non-entity. The plaintiff must be an entity. As the Supreme Court said in Dumal Dibiaso Incorporated Land Group No. 1664 and 2 others v. Kala Kuma and 9 others (2005) SC 805 of 3 November 2005, at pg. 12;

"By law, under the Land Groups Incorporation Act any ILG has the legal capacity to sue and be sued in its own name and style. An incorporated land group has perpetual right of succession as a separate corporate legal entity recognized by law. It follows therefore that if it has to commence legal proceedings or is sued by anyone it must be named accordingly in or by its name shown in the register of incorporated land groups."

54. The Supreme Court said further at pg. 22;

"What clear evidence of such authority, there really was no evidence for the court to conclude that the defendants had the authority of the ILGs and could be sued in the way and style they were sued. To accede to the argument simply means that anyone can progress himself to be acting for another in his capacity as the agent of his principal and make commitments that will find the unsuspecting principal".

55. These comments were made by the Supreme Court overruling a National Court decision to issue order absolute in Garnishee proceedings to a party that was not properly named and who was not a party in the original action. I find these comments apply in this case because similar issues in relation to the capacity of individual respondents and companies acting purportedly for and on behalf of ILGs, were raised.

56. Obviously, this first important requirement was not complied with. The description of the plaintiff is ambiguous and is that of a non-entity. Similarly, the "proper plaintiff" rule has been breached here. I say this because this is synonymous with a claim by a company which must sue in its correct name because it is a separate entity, as is the case here (see s. 11 of LGIA). This is sometimes referred to as the rule in Foss v. Harbottle [1843] EngR 478; (1843) 2 Hare 461, Ch 12 LJ 319.

57. This claim can be struck out for ambiguity and want of certainty, on this ground alone. No amount of amendments can cure this because this uncertainty or anomaly affects the whole claim.

2.1.2 Lack of jurisdiction - interpretation and application of a Constitutional law.

58. Mr Kuman for the second and third defendants further submits that the pleadings in the Statement of Claim clearly show that the plaintiffs are inviting the National Court to invalidate the provisions of the Oil & Gas Act 1998 and to declare the said act, unconstitutional.

59. He pointed out that in Patterson Lowa and others v. Wapule Akipe [1992] PNGLR 399 the Supreme Court held that there are three (3) circumstances upon which constitutional questions involving the interpretation and application of the Constitutional law, can be referred to the Supreme Court;

(i) through the use of s. 19 of the Constitution by "designated authorities".

(ii) National Court may refer Constitutional matters under its powers conferred by s. 57 of the Constitution;

(iii) Through s.18 of the Constitution, which is the "original jurisdiction".

60. In Lowa v. Akipe (supra) the Supreme Court held that the trial judge;

"rightly held that he had no jurisdiction as a National Court judge to make a declaration that ss. 7 and 200 of the Mining Act (Chapter 195) were unconstitutional as being contrary to s. 53 of the Constitution. In agreeing to this we emphasize that if the plaintiffs had gone to the National Court pursuant to s. 57 of the Constitution for enforcement of their rights to property under s. 53 of the Constitution, the National Court would have had clear jurisdiction to entertain the matters and (if thought fit) make the declarations sought by the respondents."

61. The Supreme Court said further;

"In the enforcement of rights and freedoms guaranteed by the Constitution, the National Court has concurrent powers with the Supreme Court and these powers include declaring a statute to be unconstitutional. S. 18 is a jurisdiction provision specifically for the Supreme Court.

It is, of course, to be read subject to provisions such as s. 57.

In this case the respondents did not apply to the National Court for enforcement of their property right guaranteed by s. 53 of the Constitution. They merely took action in the National Court and sought various orders including a declaration that ss. 7 and 200 of the Mining Act were unconstitutional. By taking this course the respondents failed to invoke the wide powers of the National Court conferred by s. 57(3) of the Constitution."

62. Mr Kuman referred the court to the following paragraphs in the amended writ and Statement of claim which he submits are pleadings that seek to invoke the Supreme Courts interpretive powers. These are;

(i) Par. (16) - He submits that this paragraph pleads a matter within the original interpretative jurisdiction of the Supreme Court under s. 18(1) of the Constitution and that therefore the National Court lacks jurisdiction. Par. 16 of the amended Writ and Statement of Claim reads;

"16. The Gobe Landowners claim that s. 1 (2) (j) of the Oil and Gas Act is unconstitutional and contrary to s. 53 of the National Constitution, particulars of which claim are as follows;

a. The acquisition of a participating interest in a petroleum project in accordance with Part IV of the said Oil and Gas Act was not for a public purpose nor for a reason that is reasonably justifiable in a democratic society;

b. The said acquisition of a participating interest was for the enrichment of third parties other than the public at large;

c. The third parties include Orogen Limited and Oil Search Limited and their respective shareholders and assigns, examples of which fact are;

i. Oil Search Limited and its shareholders benefited substantially in the subsequent sale of participating interests in Orogen Minerals Porgera Limited and Mineral Resources (Porgera) Limited on 21 November 2003; and

ii. Oil Search Limited and its shareholders benefited substantially in the subsequent sale of participating interests in the Ramu Nickel project in 2003."

(ii) Par. (17) and par. (18) - That they are a restatement of the status of the landowner equity as provided under the Oil & Gas Act 1998, which grant of equity is by operation of a valid law. Par. 17 & par.18 read;

"17. The Gobe Landowners further claim that the servants and agents of the first defendant also informed the landowner representatives that the first defendant was generous in granting to the landowners a 2 percentage points equity in the Gobe project and a further right to receive royalty payments of 2% on the well head value of the oil to be exploited from the Licence area."

"18. The Oil and Gas Act reserved the right of the State to take up to 22.5% participating equity interest in any oil or gas development project, particulars of which are as follows;

a. S. 165 (1) of the Oil and Gas Act."

(iii) Par. (19) - Mr Kuman submits that the statement or pleading is contrary to the provisions of the Oil & Gas Act 1998. Par. 19 reads;

"19. The Gobe Landowners claim that the State is not entitled to the said 22.5% participating equity interest in the said Gobe oil and gas field."

(iv) Par. (20) and par.(21) - Mr Kuman submits that these paragraphs raise constitutional issues and are matters within the original interpretative jurisdiction of the Supreme Court under s. 18(1) of the Constitution. These pars. read;

"20. The Gobe Landowners assert their right to possession of and interest in the said undivided 22.5% participating equity interest in the oil and gas field in the Gobe project by virtue of their prior right to;

a. possession or acquisition that was an incident of grant or acceptance of or of an interest in or right over their land and oil and gas at or below their land or the land of their predecessors in title by custom in accordance with s. 53 (5) (a) and (c) of the Constitution; or

b. possession or acquisition by custom in accordance with s. 53 (5) (a) and (d) of the Constitution.

21. By Part IV of the Oil and Gas Act, the first and fourth defendants through their agents and employed advisers created an elaborate legislative scheme to grant the said 22.5% interest in the oil and gas in the Gobe project to a nominee of the first defendant being the Mineral Resources Development Company and Orogen Limited thereby depriving the Gobe Landowners of the right to receive benefits equivalent in value to the said 22.5% interest in the said Gobe project."

63. Mr Kuman submits that pursuant to s. 18(1) of the Constitution, the National Court lacks jurisdiction to determine and grant the reliefs sought by the plaintiffs. He submits that the matters raised in the pleadings relate to the "interpretation and application" of a Constitutional Law. (see Kapi DCJ’s comments in Lowa v. Akipe). He submits that the plaintiffs seek that the National Court interpret the Constitution when the reality is that the plaintiffs cannot do that because the interpretation and application of a Constitutional law is the exclusive preserve and domain of the Supreme Court except when the National Court is asked to enforce Constitutional rights pursuant to s. 57 of the Constitution. Mr Kuman submits further that the plaintiffs are asking the National Court to give its opinion on whether the Act is unconstitutional.

64. Mr Kuman also pointed out that s. 18 of the Constitution provides for a situation where a question will only be referred to the Supreme Court if in the course of a National Court proceeding, a question arises as to the interpretation and application of a Constitutional law. That the National Court must first find facts which give rise to the question before the question is referred. He referred the court to SCR No. 3 of 1982 [1992] PNGLR 405 and SCR No. 5 of 1982 [1982] PNGLR 379. In the latter case, the Court said at pg. 383;

"with respect there can be no assumptions of facts in a s. 18 reference. Section 18 questions are referred where facts in a case gives rise to a question of interpretation or application of a Constitutional law. It is the function of the Court which refers the question to find the facts which gives rise to such questions. It cannot refer questions on assumed facts or hypothetical facts."

65. In concluding, Mr Kuman submits that the plaintiffs are seeking a remedy that requires an interpretation or application of a Constitutional law or where the ultimate relief involves the application or interpretation of a Constitutional law.

66. Mr Donigi submits for the plaintiffs that it is clear, s. 18(2) of the Constitution, gives this court or any tribunal, to find facts and to devise questions to be referred to the Supreme Court for interpretation and application. He submits that Mr Kuman’s submissions are embarrassing and an abuse of the process of the court.

67. He submits that the defendants are window shopping and are misleading this Court by drawing the courts attention only to s. 18(1) of the Constitution, when the relevant section to be considered is s. 18(2) of the Constitution.

68. He concludes by submitting that the question of jurisdiction has been decided, that this ground of the notice of motion is frivolous, embarrassing, vexatious, is intended to delay the fair trial of the plaintiff’s case and is therefore an abuse of the process of the court.

69. Mr Haiara for the second plaintiff submits that the plaintiffs claim is mixed because not all paragraphs pleaded in the amended writ and Statement of Claim raise issues of constitutional interpretation and application, contrary to submissions by the second and third defendants. He referred the court to par. 29 - 35 of the Amended Statement of Claim as an example where the plaintiffs are claiming damages for loss of interest on royalty monies and for future royalty monies to be paid on time in accordance with the amount prescribed in s. 159 and penalty for delay at penalty rate prescribed under s. 162 of the Act. He referred the court to the reliefs sought being pleaded at pars. 39 (k), (i) and (m) (r) (s) (t) (u) (v) (w).

70. He submits further that insofar as remedies for breach of constitutional provisions are concerned, the reliefs are being sought under s. 58 of the Constitution. (see par. 39(y) of the Amended Statement of Claim) and pursuant to s. 58 of the Constitution, the National Court does have the jurisdiction under s. 18(2) to determine the issues raised before the trial Court, before any issues of constitutional interpretation and application can be referred to the Supreme Court.

71. In the matter of a Petition by R.T. Hon. Michael Somare [1982] PNGLR 65 under s. 18 (1) of the Constitution, his Honour Miles J. said;

"The second basic principle is that where the National Parliament has exceeded its powers, then the Supreme Court is entitled to say so. Subject to the Constitution itself, the Supreme Court has original and exclusive jurisdiction as to any question relating to the interpretation or application of a constitutional law; Constitution s. 18 (1). This jurisdiction has been accepted as including the power to rule that a particular piece of legislation is invalid as seen outside the power of the National Parliament." (my emphasis)

72. But how can the plaintiffs address this dilemma? As the Supreme Court said in Re: Jim Kas Governor of Madang (2001) SC670;

"...an authority prescribed under s. 19 of the Constitution may make special reference on any question relating to the interpretation or application of any provision of a constitutional law, including any question as to the validity of a law or a proposed law". (my emphasis)

73. And is there an issue or question relating to the interpretation or application of a Constitutional Law?

In Raz v. Matane [1985] PNGLR 329, Kapi DCJ as he then was said that where the Constitution or any Constitutional Law gives jurisdiction to the National Court to interpret or apply a constitutional law, and where a question relating to the interpretation or application of a constitutional law arises, the National Court is not bound to refer the question to the Supreme Court. But he held further that "under s. 18 of the Constitution, a question relating to the interpretation or application of a constitutional law arises where there is an issue as to the interpretation or application of a constitutional law". (My emphasis) (pg. 330). Then the matter must be referred to the Supreme Court.

74. In Raz v. Matane (supra) the issue before the court did not involve an issue pertaining to the validity of an act of Parliament and therefore the court did not have to decide the important question of whether or not to refer to the Supreme Court.

75. In this case, the proceedings challenge the validity of an act of parliament, albeit, the Oil and Gas Act, which means it falls within the exclusive jurisdiction and domain of the Supreme Court.

76. As to the plaintiffs claim for damages, the plaintiffs plead that because of the oppressive provisions in the Oil and Gas Act which denied the plaintiffs the right to claim a greater share in the royalties, that their constitutional rights under s. 46, s.47, s.53, s.57, and s.58 and schedule 1.2 of the Constitution, to name a few, have been breached and that the plaintiffs are entitled to damages. I would have to refer again to Raz v. Matane (supra). In that case the referral to the Supreme Court was in relation to the enforcement of s. 57 of the Constitution. S. 57 reads;

"57 Enforcement of Guaranteed Rights and Freedoms

(1) A right or freedom referred to in this division shall be protected by, and in enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an act of the Parliament...".

77. Kidu CJ as he then was, said in Raz v Matane (supra) on the application of s. 57 of the Constitution;

"S. 57 was quite clearly meant to be used by the Supreme Court, the National Court and any other court designated by an Act of the Parliament to remedy breaches of human rights..." (pg. 331).

78. The plaintiff is asking the court to interpret certain provisions of the Constitution as against certain provisions of the Oil and Gas Act, to then issue declarations, declaring the plaintiffs right to its reliefs, that certain rights have been breached and which would in effect be declaring the provisions of the Oil and Gas Act to be unconstitutional or illegal.

If this court is to find that there have been breaches of rights, it will mean the general interpretation of the scheme and intent of the Oil and Gas Act and any other relevant legislation. And if the plaintiffs are of the view that they have suffered because of these ‘oppressive and harsh’ provisions, that they should want a proper challenge in the correct arena, in this case the Supreme Court. The amended statement of claim and the reliefs sought, demonstrate that generally the claim is by the "Gobe Landowners" seeking declaratory orders that the Oil and Gas Act is unconstitutional, that it has breached their customary rights and because it is harsh and oppressive. They seek to have the court declare that the Oil and Gas Act is not beneficial to them as a people in that they do not or have not received benefits rightfully due to them as "landowners". Issues that I have already canvassed, in relation to the plaintiffs being able to sue as landowners, their capacity to sue, the proper plaintiff rule, and generally, the validity of an act of parliament, all go towards the viability of the plaintiffs claim and whether it should continue, considering these obvious anomalies.

79. And the other submissions by counsel on custom, and which are related to the Constitutional issue, all impinge on whether the plaintiffs are "Gobe Landowners", a matter yet to be determined.

2.1.3 No cause of action - reliance on custom

80. The plaintiff relies on the customary practice of the landowners of Gobe that there must be "prior notification" and "prior consent" (see par. 8 of amended Statement of Claim) before there is entry upon the land. The plaintiffs say that this was not done because the defendants, amongst other reasons, were very dominant in their discussions with the plaintiffs. They also submit that the transaction or events leading up to the signing were a "manifestly unfair transaction". (see par. 15 of amended Statement of Claim). And throughout in the amended Statement of Claim, relying on custom, the plaintiff claims, amongst others;

i. That the State did not educate the Gobe landowners on their Constitutional rights to possession of or rights to property in or interests in the Oil and Gas under their land;

ii. That the acquisition of a participating interest in a petroleum project in accordance with part IV of the Oil and Gas Act was not for a public purpose nor for a reason that is reasonably justifiable in a democratic society;

iii. And that therefore, s. 1 (2) (j) of the Oil and Gas Act is unconstitutional and contrary to s. 53 of the National Constitution.

iv. That the State is not entitled to the 22.5 percent participating interest provided for in s. 165(1) of the Oil and Gas Act and that the Gobe Landowners assert their right to possession of and interest in the undivided 22.5 percent equity interest in the oil and gas by virtue of their prior right;

- in or over the land and the oil and gas act or below their land or the land of their predecessors by custom in accordance with s. 53 (5) (a) and (c) of the Constitution.

81. Furthermore, the plaintiffs claim is that they have been deprived of their right to negotiate the terms of agreements because the Oil and Gas Act has taken away that right by specifically stating the percentage in participating equity interests, being 22.5 percent. They plead that the State is not entitled to that.

82. And the plaintiffs plead further that by an elaborate scheme in Part IV of the Oil and Gas Act, the first and fourth defendants gave by legislation, to the MRDC and Orogen Minerals Limited, the 22.5 percent interest. That, as pleaded in paragraphs 18 to 21 of the amended Writ and Statement of Claim, the first defendant though its agents and employed advisers, created an elaborate scheme (referred to above) in the Mineral Resources Development Company Pty Limited (Privatization) Act whereby, apart from depriving the plaintiffs of the 22.5 percent interest, also breached s. 47 of the Constitution when it deprived the plaintiffs of the right to appoint a trustee, to appoint a director, to nominate trustee shareholders and the right to negotiate the terms of arrangement to negotiate a management company of their choice.

83. At this time, it is necessary that I set out in full the reliefs sought by the plaintiffs in the amended writ, which in fact are, the final result of the whole claim in the amended writ. The reliefs determine whether the plaintiffs are in effect, invoking s. 18 (1) of the Constitution through reliance on custom. The reliefs sought in the amended Writ and Statement of Claim are;

"39. By reason of the forgoing the Gobe Landowners therefore claim:

a. A declaration that insofar as the Oil and Gas Act deprives the Gobe Landowners of their rights to:

i. freely associate with any person of their choice; or

ii. enter into contracts with any parties or persons of their own choice; or

iii. enter into any business dealings with any persons of their own choice;

iv. enter into contracts with any parties or persons of their own choice in respect to any undertakings at, on, or under their land and especially the undertakings that are more particularly specified in s. 1 (2) of the Oil and Gas Act is:

v. a proscribed act within the meaning of s. 41 of the National Constitution; and/or

vi. unconstitutional by virtue of ss. 32, 45 (1), 47, 53 (1) and 55 (1) of the National Constitution.

b. A declaration that the Oil and Gas Act insofar as it affects the rights of the Gobe Landowners, was not a law that was made for the purpose of the Gobe Landowners was not a law that was made for the purpose of giving effect to the public interest in public order and public welfare as stipulated in s. 1 (1) of the Oil and Gas Act and is therefore unconstitutional to the extent of its deprivation of the rights of the Gobe Landowners under ss. 32, 44, 47, 48, 49, 51 and 53 of the National Constitution.

c. A declaration that the terms "any land" appearing in s. 6 (1) of the Oil and Gas Act means land owned by the State and does not include any land owned by the Gobe Landowners in accordance with custom.

d. A declaration that the terms "any land" appearing in s. 6 (1) of the Oil and Gas Act means any land owned by the State and does not include any land or interest in land that is an incidence of grant or acceptance of or of any interest in or right over, land owned by the Gobe Landowners or any of their predecessors in title according to custom.

e. A declaration that the vesting of property in petroleum and helium at or below the surface of the land the property of the Gobe Landowners in the First Defendant by virtue of s. 6 (1) of the Oil and Gas Act is unconstitutional and therefore void and of no effect.

f. A declaration that the Gobe Landowners are entitled to the beneficial interests in the 22.5% undivided equity interest in the Gobe project.

g. A declaration that the legislative scheme created by Part IV of the Oil and Gas Act without the consent of the Gobe Landowners is unconstitutional and void as regards the Gobe Landowners.

h. A declaration that the legislative scheme created by Minerals Resources Development Company Limited (Privatisation) Act without the consent of the Gobe Landowners is unconstitutional and void as regards the Gobe Landowners.

i. A declaration that the delays in the payment of royalties to the Gobe Landowners beyond the time stipulated in s. 168 of the Oil and Gas Act is harsh and oppressive or is not warranted by or is disproportionate to the circumstances of this case or is not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind and is therefore contrary to s. 41 of the National Constitution.

j. A declaration that the delays in the payment of royalties to the Gobe Landowners beyond the time stipulated in s. 168 of the Oil and Gas Act without payment of interest on the said royalty monies is a deprivation of the property rights of the Gobe Landowners and is unconstitutional by virtue of s. 53 of the National Constitution.

k. A declaration that the Gobe Landowners are entitled to claim the penalty interest outlined in s. 162 of the Oil and Gas Act where the First Defendant fails to make the payment within the time stipulated in s. 168 of the said Act.

l. Further and in the alternative to paragraph 33 (k) above, a declaration that the Gobe Landowners are entitled to claim interest on royalties due and payable to the Gobe Landowners until payment is made at a rate deemed reasonable by this Honourable Court.

m. An order that all bank, credit, investment, operational and any other accounts maintained by the First, Second or Third Defendants for and on behalf of or on account of the Gobe Landowners since the commencement of the Gobe project in 1998 be filed in the Honourable Court to assist it in its deliberations as to accountability and damages to be awarded to the Gobe Landowners.

n. An order that no petroleum in gaseous state or form found at, above or below the Gobe Landowners’ land be extracted and/or be dealt with in any manner including the exportation via a pipeline to Australia without the written consent first had and obtained in writing from the Gobe Landowners.

o. An order that the Gobe Landowners are not limited in any way by the terms and conditions set out in the Oil and Gas Act in any negotiations concerning the grant of their consent to the extraction of any petroleum in gaseous state or form found at, above or below their land.

p. An order that the Gobe Landowners should be paid all outstanding payments received from the Gobe Project and not disbursed by the First or Second Defendants equal to the said 22.5% undivided equity interest in the Gobe project immediately.

q. An order that the First Defendant pays damages for loss of earnings incurred by the Gobe Landowners being the amount equal to payments received by the First and Second Defendants in respect to the said 22.5% undivided equity interest in the Gobe project less any amount already paid to the Gobe Landowners since the commencement of the said Gobe project plus interest at the rate of eight percentage points per annum since date of commencement of the Gobe project up to and inclusive of the date of payment pursuant to this order.

r. An order that the Gobe Landowners be paid all outstanding royalty payments since the commencement of the Gobe project and all future royalty payments.

s. An order that the Gobe Landowners be paid penalty interest at the rate of 1/3 percent on amount of royalty monies from time to time remaining unpaid and compounded from the date the monies are required to be paid as stipulated in s. 168 of the Oil and Gas Act.

t. As an alternative to paragraph 33(s) above, an order that the Gobe Landowners be paid penalty interest at the rate deemed reasonable by this Honourable Court on amount of royalty monies from time to time remaining unpaid compounded from the date the royalty monies are required to be paid as stipulated in s. 168 of the Oil and Gas Act until the date of payment of the said royalty monies.

u. An order that all interest remaining unpaid is compounded from the date of payment of the royalty monies to the date of judgment.

v. An order that unpaid interest as compounded to the date of judgment earn interest at the rate deemed reasonable by this Honourable Court until paid by the First Defendant.

w. An order that the First, Second and Third Defendants account for all monies received by them for and on behalf of the Gobe Landowners since the commencement of the Gobe project.

x. An order for punitive damages to be paid by the First Defendant as the Honourable Court sees fit.

y. An order for compensatory damages as the Honourable Court sees fit pursuant to s. 58 of the National Constitution for breach of the constitutional rights of Gobe Landowners.

z. Interest at the rate of eight percentage points (8%) per annum on any outstanding monies.

aa. Such other declarations and orders as the Honourable Court sees fit.

bb. Costs of and incidental to these proceedings to be paid by the Defendants."

84. Before I discuss these reliefs and their effect or the proceedings, Schedule 2.1 (2) of the Constitution states that custom will not be applied as part of the underlying law if it is inconsistent with a constitutional law. I refer to par. 24 of the amended Statement of Claim where the plaintiffs plead s. 159 (1) of the Act and plead that the "Gobe landowners claim the right to earn royalty payments set at 2 percentage points of the well head value of oil and gas over and above the reserved 22.5% of equity interest in any field which right was taken by virtue of the operation of section 159 (1) of he Oil and Gas Act."

85. Section 159(1) of the Act states that subject to subsection (2), a tenement holder shall pay to the State royalty at a rate of 2.00 percent of the wellhead value of all petroleum produced from the license area.

86. The plaintiffs plead further at par. 25, that by that reason, the Gobe landowners have suffered loss of royalty earnings by 2 percent of the wellhead value of the Gobe project. And these pleadings rely very much on the opening paragraphs of the amended Statement of Claim which refer to breaches of customary law and the elaborate scheme by the Government of Papua New Guinea to change the customary definition of land by;

"- separating land from Petroleum or Helium at or below the surface of any land owned by the Gobe landowners; and

- deemed ownership of the petroleum and helium at or below the surface of any land owned by the Gobe landowners to be the property of the first defendant;

- the particulars of which change are confirmed in s. 6 (1) of the Oil and Gas Act." (par. 9 of amended Statement of Claim).

87. And s. 6 (1) of the Act states that "subject to this act, notwithstanding anything contained in any other law or in any grant, instrument of title or other document, all petroleum and helium at or below the surface of any land is, and shall be deemed at all times to have been, the property of the State." And the related relief sought is par. 39 (e) referred to above, that s. 6 (1) of the Act should be deemed unconstitutional, void and of no effect.

88. This relief is similar to the other reliefs sought, which I have set out above, that various provisions in the Act have breached the plaintiffs constitutional rights and customary rights and are therefore unconstitutional.

89. In response and support of his application, Mr Kuman submits that paragraphs 5,6,7,8,9,10,19,25,26, 27 and 28 of the amended Statement of Claim insofar as they relate to "custom" and issues of "customary ownership" of land, do not disclose any cause of action, for these reasons:

(a) Pursuant to Schedule 2.1(2) of the Constitution, where a "custom" is pleaded to determine ownership of land, such custom is not applicable because it would be inconsistent with s. 6 (1) and other similar provisions of the Oil & Gas Act 1998.

(b) Any such "custom" as pleaded is subject to s. 2, s.3 and s.5 of the Customs Recognition Act, chapter 19 and in that regard;

(i) the plaintiffs have failed to plead custom as a "question of fact" as is required under s. 2(1) of the Customs Recognition Act.

(ii) the recognition of the "custom" as pleaded would be against "public interest" within the meaning of that phrase in s.3 (1) (a) of the Customs Recognition Act.

(iii) custom per se cannot constitute a cause of action but can only be taken into account under s. 5 of the Customs Recognition Act and the plaintiffs have pleaded custom as a cause of action.

(c) Section 6 (1) of the Oil & Gas Act 1998 is valid and effective for all intents and purposes and the National Court does not have jurisdiction to declare the same null and void and/or unconstitutional.

(d) And that the Oil & Gas Act 1998, in its authority, is a law that complies with s. 38 (2) of the Constitution insofar as it deals with restrictions on qualified rights.

90. First, by s. 18 (1) of the Constitution, this court is unable to and is bound by that provision, not to resolve questions or issues relating to interpretation and application of Constitutional Laws.

91. In this case, there is no issue as to interpretation or application to then invoke the application of s. 18(2) of the Constitution. This is because the plaintiffs claim is largely based on the fact that they are the customary land owners, when that issue has yet to be determined. And I refer again to SCR No. 5 of 1982 (supra), where the Supreme Court set the mechanism or foundation whereby questions can be referred to the Supreme Court. These are;

- The court must find the facts which give rise to such questions;

- But these facts must not be assumed or hypothetical.

92. Just dwelling on the peripheries of Mr Kuman’s submissions on custom, obviously, the facts and issues relating to custom and illegality are in this case, assumed and hypothetical. And this court cannot devise questions based on assumptions, which have yet to be proven.

93. The plaintiff is clearly asking the National Court to rely on and interpret custom and to declare several provisions of the Oil and Gas Act as unconstitutional. The determination of customary issues of ownership to land fall within the domain of the Land Titles Commission. Not the National Court. Again, this court cannot determine the ownership of land, issues that involve the application of custom, (see par. 5, 6, 7 and 8 of the amended Statement of Claim).

94. Obviously, if any question is to be referred, this court would be relying on the main thrust of the plaintiffs’ case, as I said above, that they are the "Gobe Landowners". And that is an assumed fact until the proper determination of that issue.

95. Mr Donigi for the first plaintiffs presented extensive written submissions in response to the submissions made by Mr Kuman and which I have considered.

96. As to Mr Kuman’s submissions on pars. 5, 6, 7, 8, 9, 10, 19, 25, 26 and 27 of the Statement of Claim, Mr Donigi submits that the plaintiffs have failed to traverse the statement that the plaintiffs were at ‘all material times’ in "possession of land" and what is above or below the land, the subject of the project. He submits that these paragraphs do not deal with custom. He submits that because the second and third defendants Defence does not traverse those facts that those facts are then deemed to be admitted. The "offending" paragraphs in the amended Statement of Claim which plead custom are those set out above including pars. 26, 27 and 28 of the Statement of Claim. It is necessary that I set these out. They are;

"5. The beneficiaries of the plaintiffs (hereinafter called the "Gobe Landowners") were at all material times in possession of the said land and any matter or thing that are at, above or below the surface of the land including any oil and gas at and below the surface of their said land.

6. By customary law of the said Gobe Landowners, land is defined to include all that is at, above the surface and below the surface of the land.

7. At no time has this customary definition of land been changed by agreement or by act or deed and the Gobe Landowners herein assert that definition in the claim herein.

8. The customary law of the Gobe Landowners in respect to entry upon customary land is as follows:

a. The right to entry for whatever reason upon any part of the land under customary ownership is guided by the principles of prior notification and prior consent;

b. The principle of prior notification is practiced where the person seeking entry is from the same lineage, family or clan;

c. The principle of prior consent is applied where outsiders (other than members of the same lineage, family or clan) seek entry;

d. Lack of observance of the principle of prior consent without fail lead to tribal warfare.

9. The first defendant has by legislation created an elaborate scheme that changed the said customary definition of land by:

a. separating land from petroleum or helium at or below the surface of any land owned by the Gobe Landowners; and

b. deemed ownership of the petroleum and helium below the surface of the land owned by the Gobe Landowners to be the property of the first defendant;

c. the particulars of which change are contained in s. 6 (1) and Part IV of the Oil and Gas Act.

10. The Gobe Landowners claim s. 6 (1) and Part IV of the Oil and Gas Act only applies to petroleum and helium at or below the surface of any land owned by the first defendant and not land owned by the Gobe Landowners by custom.

11. By reason of the said change in the definition of land, the first defendant declared all oil and gas below the surface of any land as defined by it to belong to the State, particulars of which are contained in s. 6 (1) of the Oil and Gas Act.

26. The Gobe Landowners have at all material times acquired and had possession of the land the subject of the said Gobe project since time immemorial by custom.

27. By reason of the paras. 5, 6, 7, 8, 10, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22 and 23 above, the Gobe Landowners claim prior possession by custom of the land and the property in or right over the property or interest in the property of oil and gas contained in the reservoirs beneath the land areas the subject of PDL 3 & 4 and which possession is protected by the National Constitution, particulars of the relevant sections of which are as follows:

a. S. 53 (5) (a), (c), (d);

b. s. 11 (2);

c. Schedule 2.1;

d. Schedule 1.2 (1) definition of "custom"; and

e. Schedule 2.2 (1) (c).

28. By reason of paras. 26 & 27 above, the Gobe Landowners claim that no Organic Law or an Act of Parliament can take away or compulsorily acquire their rights to property or interests in or right over property in the oil and gas at or below the land owned and defined by custom, the subject of the Gobe project."

97. Without having to set out in full the submissions in response by Mr Donigi, his submissions briefly are basically that;

1. Custom is pleaded as a fact;

2. That the plaintiffs will call evidence to prove custom e.g proof of custom in par. 6 of the amended Statement of Claim, that by customary law of the Gobe Landowners, land is defined to include all that is above and below the surface of the land;

3. That the second and third defendants have not specifically denied the existence of custom in their Defence, hence have admitted these facts.

98. But again, the plaintiffs are seeking to assert their rights as customary landowners. They say they are "landowners" when that is not the case. They refer to their "hold" and "claim" over the Gobe land, that they were at all times in possession of that land as ‘customary landowners’. But this is the preliminary fact that must be proven before the plaintiffs can proceed to the substantial part of their claim. And it is not a case of whether these facts have been traversed or not, which I find have been traversed by the very nature of all defendants Defence. That it is a case of the plaintiffs proving that they are the customary landowners, a step the National Court cannot undertake for reasons pointed out earlier.

99. Mr Donigi’s submissions fail here.

3. Conclusion

100. Briefly, the plaintiffs claim declarations and damages because of the first, second and third defendants actions and/or inactions which has now resulted in the commencement of mining, breaching their rights as customary landowners. The plaintiffs;

1. sue as ILG’s within the Gobe area;

2. they seek reliefs based on their claims that they are the customary landowners;

3. That by its very scheme, the Oil and Gas Act is unconstitutional and should be declared invalid because;

3.1 as landowners, their rights to compensation under the Act have been breached because of the manner in which the Oil and Gas Act is drafted;

3.2 That the plaintiffs have not enjoyed their rights and entitlements to the minerals on the Gobe Land because of an elaborate scheme in Part IV of the Oil and Gas Act involving the first and fourth defendant and the MRDC and Orogen Minerals Limited and the application of the Mineral Resources Development Company Pty Limited (Privatization) Act;

101. The plaintiffs in fact, challenge the basis and existence of all that has transpired between the first defendant, second defendant, third defendant and the ILGs. They challenge the grants of licenses and the negotiations leading thereto since 1996; agreements signed between the State and the ILGs, the creation of Petroleum Resources Gobe Limited (PRGL), the establishment of PRGL as trustee and the enactment of the Mineral Resources Development Company Limited (Privatization) Act and the Oil and Gas Act.

102. The plaintiffs suing as ‘landowners’ plead that they have been misled, cheated and lied to by the first, second and third defendants and as a result, their constitutional rights have been breached by the various provisions in the Oil and Gas Act. That they as landowners have been denied full access and rights to the equity benefits from minerals below the ground which rightfully belong to them as "Gobe landowners".

103. The claim is very large, involving issues I canvassed in these reasons and have formed conclusions on.

104. First, the plaintiffs claim as "Gobe landowners" cannot succeed, because the issue of ownership to the Gobe lands has yet to be determined. And it is a determination or decision that must be made by the Land Titles Commission not the National Court.

105. And the plaintiffs cannot sue in the manner they have because they are a non-entity. They are not a ‘proper plaintiff’. Additionally, there are no proper authorities done in accordance with the Land Groups Incorporation Act, authorizing the ILG’s to file this action.

106. Lastly and most importantly, the plaintiffs seek to have provisions of the Oil and Gas Act declared invalid and have asked the National Court to do that, when it does not have the jurisdiction to do so.

107. Is this a case that only requires amendments to rectify the error or one where the action is obviously and incontestably bad, that it must be dismissed? Mr Kumans application to strike out "the pleadings in the proceedings" in whole or in part is made pursuant to O. 8 R. 27 (1) (a) (b) and/or (c) of the NCR. His application to dismiss the "pleadings in these proceedings" is made pursuant to O. 12 R. 40 (1) (a) (b) and/or (c) of the NCR. The alternative grounds to have the "proceedings" dismissed is made relying, amongst others, on the plaintiffs lack of standing and reliance on custom to have an act of parliament declared invalid and unconstitutional. Submissions by Mr Kuman are to either strike out or dismiss the Writ of Summons and Statement of Claim or alternatively, to dismiss the whole proceedings.

108. On consideration of submissions in totality, I find that the second and third defendants in effect seek to have the whole proceedings dismissed because of the various reasons raised above. Which means submissions under O. 12 R. 40 and on the alternative orders as sought in the notice of motion, are relevant. Mr Donigi submits that O. 12 R. 40 requires that the defendants must deal with the proceedings as a whole and not just the pleadings. He submits that the motion should be struck out as faulty because by its reference to "proceedings" (par. 2 of amended motion), means that it does not refer to the pleadings as a whole. I find that this is a preliminary issue which could have been raised before the hearing of the motion but which was allowed to be moved, submissions made and now, decision. In any event, all counsels submissions were directed towards the dismissal (or not) of proceedings which includes the amended Writ of Summons and Statement of Claim. The court has not been misled nor have the plaintiffs.

109. I have in this conclusion, considered the alternative submissions under O. 12 R. 40 to then make my findings. I considered them in the following order;

i. Whether there is a reasonable cause of action

110. The law on this is succinctly laid out by Sheehan .J in PNG Forest Products v. The State [1992] PNGLR 85. He said at pg. 88 when citing Chitty .J in Republic of Peru v. Peruvian Guano Company [1887] UKLawRpCh 186; (1887) 36 Ch. D. 489.

"If, notwithstanding defects in the pleading...the Court is of the view that a substantial case is presented the Court should, I think, decline to strike out that pleading: but when the pleading discloses a case which the Court is satisfied will not succeed, then it should strike it out and put an end to litigation."

He continued "this line of reasoning was followed in the Court of Appeal in Hubbard and Sons Ltd v. Wilkinson, Heywood and Clerk Ltd [1899] 1QB 86 at page 91 where Lord Lundley MR was emphasizing the distinction between seeking to have action decided on a preliminary point of law and moving to have it struck out for want of a reasonable cause of action stated -

"...Two courses are open ...the first method is appropriate to cases requiring argument and careful consideration. 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 Statement of Claim as it stands is insufficient, even if proved, to enable the plaintiff to what he seeks."

111. In Lonrho v. Fayed [1991] 3 All ER 303, Lord Bridge cited and quoted Dyson v. AG [1911] 1KB 410 where Fletcher Moulton LJ said that the procedures shall be confined to cases where the cause of action was ‘obviously and almost incontestably bad’.

112. Sheehan .J further quoted from Salmon LJ in Nagle v. Fielden [1996] 1 All ER 689 where he said -

"It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable."

113. Sheehan .J in applying the above cases said at page 89;

"It has certainly not been shown before me that it is ‘plain and obvious’ that the plaintiff cannot succeed or that the defence is unarguable...The fact is that both plaintiffs and defendants have extensive arguable cases on fact and law. That provides all the more reason for the action to be set down for trial, rather than attempt to exclude a party from contention without hearing..."

114. And again, as Cannings .J said in Kiee Toap v. The State and Electoral Commission of Papua New Guinea and Anor (2004) N2731;

"• If it is plain and obvious that the statement of claim, even if proved, will not entitle the plaintiff to what he is asking for, it is appropriate to strike out the proceedings on the ground that no reasonable cause of action is disclosed. But the procedure should be confined to cases where the cause of action is obviously and almost incontestably bad. The plaintiff should not be driven from the judgment seat unless the case is unarguable (PNG Forest Products Pty Ltd and Another v. the State and Genia [1992] PNGLR, 85, National Court, Sheehan J.).

• If the statement of claim is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified, it should be struck out (Gabriel Apio Irafawe v. Yauwe Riyong (1999) N1915, National Court, Kirriwom J.).

• If the statement of claim just leaves a defendant guessing as to what the plaintiff’s allegations are, it should be struck out (Eliakim Laki and 167 Others v. Maurice Alaluku & 2 Others (2002) N2001, National Court, Sevua J.)."

115. It is now not a matter of whether the action or case is unarguable or not. I have seen that the cause of action, both on the matters pleaded in the Statement of Claim and the reliefs sought is such that there is no cause of action at all, that it is obviously and incontestably, bad.

ii. Are the proceedings frivolous or vexatious?

116. The amended Statement of Claim raise what appears to be grievances and concerns by the ILGs about the manner in which the State and its related instrumentalities have conducted their dealings over Gobe. But the action on which the plaintiffs claim is founded is ambiguous and uncertain because the plaintiffs plead matters of custom relying on provisions of the Constitution to have an act of parliament declared invalid. And that cannot be done because evidence on custom must be led in the National Court to prove these claims. And in relying on their customary rights, yet to be proven, the plaintiffs are saying they are the landowners. And the only arena where this can be done is the Land Titles Commission, not the National Court.

117. Even if the matter were allowed to progress to trial, the same issues will arise and which in all likelihood, will result in the claim being struck out or dismissed for not disclosing a cause of action.

118. This is not a case where the court is not sure of what the action is. It is not an ambush nor is it one where the second and third defendants have not been specific in their submissions on the offending paragraphs. And even if the offending paragraphs were not identified, which is not the case here, the general, overall claim as I have consistently affirmed and reaffirmed in this decision, is that it is a claim by ‘Gobe landowners’, an issue yet to be determined; that the plaintiff is a non-entity, and that the ‘Gobe landowners’ are asking this court to recognize their customary rights to land and to have the offending provisions in the Oil and Gas Act or the whole act itself, declared unconstitutional, when this court does not have the jurisdiction to do so.

iii. Are the proceedings an abuse of the process of this court?

119. I find that they are, for the reasons raised above.

120. Although the claim is mixed, no amount of amendment can cure the fact that the claim is by a non-entity who say they are landowners and as such are entitled to the reliefs sought. No amount of amendment can cure the fact that the claim is by "Gobe Landowners", an issue yet to be determined. No amount of amendment can cure the fact that the plaintiff, non-entity and that it relies on custom to have declared unconstitutional, an act of parliament. These defects and anomalies cannot be cured.

121. The whole claim must be dismissed. The plaintiffs can always recommence action in the proper form and in the appropriate arena. That is a matter for them. Which is why I find that it is not necessary for me to consider submissions by counsel on s. 5 of the CBASA.

122. The plaintiffs must also pay all defendants costs of the proceedings.

4. Final orders

1. The plaintiffs’ claim is dismissed in its entirety;

2. The plaintiffs shall pay all defendants’ costs of the proceedings to be taxed if not agreed.

_____________________________

Lomai & Lomai Attorneys: Lawyer for first plaintiffs

Steeles Lawyers: Lawyer for second plaintiffs

Korowi Lawyers: Lawyer for first and fourth defendants
Posman Kua Aisi Lawyers: Lawyer for second and third defendants