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Umai v Rimua [2011] PGNC 303; N6168 (1 August 2011)

N6168

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 873 OF 2000

BETWEEN:

LESLIE OPE UMAI suing on behalf of himself And as Chairman of Gobe Landowners and the 22 Incorporated land Groups Special Committee
Plaintiff

AND:

RENDLE RIMUA as Secretary, Department of Petroleum and Energy & Trustee of Gobe Landowners Benefits Trust Account
First Defendant

AND:

CHRIS KALEBO as Acting Secretary, Department Of Finance & Trustee of Gobe Landowners Benefits Trust Account,
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:

PETROLEUM RESOURCES GOBE LIMITED
Fourth Defendant

Waigani: Hartshorn J.
2011: 18th May
: 1st August

Trial

Counsel:

Mr. D Awaita, for the Plaintiff
Mr. P. Kuman, for the Fourth Defendant

10th August 2011

1. HARTSHORN J: The plaintiff, for himself and purportedly on behalf of Gobe Landowners and 21 Incorporated Land Groups (ILG's) claims K 50 million that he alleges is due by the defendants on accounts stated between the plaintiff and the defendants. Essentially the K 50 million is sought for the payment of goods and services rendered to the Gobe Landowners and 21 ILG's by third parties.
   
2. When the matter was called for trial, the first, second and third defendants were not present or represented. Notwithstanding this, I was satisfied that the Solicitor General who represents the first, second and third defendants had been served with a copy of the order of this court dated 13th April 2011 which included the date when the trial was to proceed, and so the trial proceeded in the absence of representation of the first, second and third defendants. The fourth defendant Petroleum Resources Gobe Ltd (PRG) was represented.
   
3. Notwithstanding that the plaintiff makes his claim against all of the defendants, according to the facts upon which the plaintiff relies pleaded in his statement of claim, it is PRG against which the claim is directed, pursuant to a consent and indemnity agreement between the 21 ILG's and PRG purportedly executed in December 2005 (Consent Agreement).
   
4. PRG denies owing the sum of K 50 million as it was not a party to the Consent Agreement and PRG's Board has not resolved to pay that sum. To do so PRG contends, would defeat the purpose of the Gobe Trust Deed established under the Oil and Gas Act. Further, PRG contends that the debts incurred by the plaintiff and the entities he purports to represent, were a consequence of private arrangements between those entities and their creditors. PRG also submits that the plaintiff lacks the necessary consent and authority to commence this proceeding, the proceeding does not disclose a reasonable cause of action is frivolous and vexatious and is an abuse of the court's process.
   
5. I consider first the claim against PRG. PRG was joined as the fourth defendant to the proceeding in October 2010. No relief was claimed against PRG in the statement of claim but there are allegations made concerning PRG. Since the joinder of PRG, the plaintiff has not filed an amended statement of claim that makes specific allegations and seeks specific relief against PRG, although by virtue of its joinder, PRG is now included in the non-specific claim for relief for K 50 million.
   
6. The claim against PRG appears to be pursuant to the Consent Agreement. The evidence of the Consent Agreement is a copy that is not executed on behalf of the State and which is not dated. In the statement of claim, it is alleged to have been executed on 26th December 2005 and in an affidavit filed in support of the plaintiff, it is deposed to have been executed in 2003. Notwithstanding these points of issue, the parties are the State and the Chairmen of 21 ILG's. I note further that PRG is not a party and that the wording of the Consent Agreement does not impose an unequivocal obligation upon the State or its representative to make payment, by use of the words, "... The Departmental Head of the Department of Petroleum and Energy or his delegate may authorise..."
   
7. Reliance is also placed by the plaintiff upon letters written by the State Solicitor dated 3rd March 2006 and by the Acting Minister for Petroleum and Energy, The Hon. William Duma dated 18th January 2007.
   

8. As to the State Solicitor letter, it is not clear as to the documentation to which reference is being made in the letter. The reference to, "... Consent Agreement with PRG seal..." is unlikely to be referring to the Consent Agreement that is in evidence in this proceeding, because as I have mentioned, that Consent Agreement is not dated, is not executed on behalf of the State, PRG is not a party to it and so there is no requirement for the PRG seal to be affixed. The State Solicitor's letter, in my view, does not assist the plaintiff's case.

9. As to the letter written by the Acting Minister for Petroleum and Energy, putting aside the issue of whether the Acting Minister can make such a direction, it is clear that the Acting Minister merely makes recommendations and does not direct the Managing Director and CEO of Mineral Resources Development Co Ltd. This letter does not assist the plaintiff's case.

10. From a perusal of the documentation in evidence upon which the plaintiff relies and taking into account the inadequacy of the pleading against PRG, I am not satisfied that the plaintiff has properly made out his case that PRG owes the plaintiff and the entities he purportedly represents, the amount or any amount claimed. Given this finding it is not necessary to consider the other submissions of counsel for PRG.

11. Similarly, as to the claims of the plaintiff against the other defendants, notwithstanding that they were not represented at the trial and have not filed a defence, the pleading against these defendants and the documentation relied upon to support the plaintiff's claim against them, are clearly inadequate and are not sufficient to enable the court to find for the plaintiff.

12. The proceeding is dismissed. The plaintiff shall pay the fourth defendant's costs of and incidental to the proceeding, to be taxed if not agreed.

____________________________________________________________
Amnol and Company Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the First, Second and Third Defendants
Kuman Lawyers: Lawyers for the Fourth Defendant