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Umbrella Hides PDL 7 Inc v Mano [2020] PGNC 367; N8678 (9 December 2020)

N8678

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 188 OF 2020

BETWEEN:
UMBRELLA HIDES PDL 7 INC
First Plaintiff

AND:
HURIBA HANDAGO representing affected Hides PDL 7 landowners whose names appear at the Back of the Originating Summons attached as Schedule “A”.
Second Plaintiff

AND:
ERICK HAWAI AKO foe himself as Chairman of Umbrella PDL 7 Association Inc.
Third Plaintiff

AND:
AUGUSTINE SANGA MANO as Managing Director and CEO of MRDC
First Defendant

AND:
DAIRI VELE as Secretary for Treasury
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Tusais AJ
2020: 04^th, 09^th December

PRACTICE AND PROCEDURE – Civil -Notice of Motion – Urgent interim injunction – Decision pending in separate proceeding seeking reinstatement of restraining order for exact same relief –Motion abuse of court process and dismissed. - O12 r 40 National Court Rules

Cases Cited:

PNG Forest Products v Minister for Forest (1992) PNGLR 85
Ronnie Wabia v BP Exploration (1998) PNGLR 8

Counsel:

Mr. D. Lora, for the Applicants / Plaintiffs
Mr C. Kopunye, for the First Respondent / Defendant
Ms S Tiankin, for the Second & Third Respondents / Defendants

RULING ON MOTION

09^th December, 2020

1. TUSAIS AJ: INTRODUCTION: This is an application by the plaintiffs seeking urgent interim injunction to restrain the Mineral Resources Development Corporation (MRDC), from taking any further steps to open bank accounts of landowners at Hides PDL 7. The applicants argued that the MRDC aided by police and military personnel was going ahead to open bank accounts for people who were not genuine landowners.

BACKGROUND

2. The applicants / plaintiffs have a related Judicial Review case titled OS (JR) 225 of 2019 seeking the following relief:

1. “Leave of the court pursuant to Order 16 Rule 3 to apply for Judicial Review of the decision of the first defendant being the ministerial determination pursuant to section 169 and 170 of the Oil and Gas Act 1998 (as amended) made on the 13 March 2019 which decision was endorsed by the second and third defendants.
   
2. An order in the nature of certiorari to remove into this honourable court and quash the decision made on the 13^th March 2019 by the first defendant being the ministerial determination pursuant to section 169 and 170 of the Oil and Gas Act 1998 (as amended) .... In which the first defendant apportioned all benefits into percentages from the UBSA allocation for the PNG LNG License seven (PDL 7) to the 6 impacted regions and clans who are beneficiaries, and which are entitled to receive Royalty and Equity benefits.”
   

3. That Judicial Review case is ongoing and the plaintiffs in that case are the same as in the present Originating Summons that this motion was filed and argued. Mr Lora submitted that this case, OS 188 of 2020 is different as it challenges the legislative validity of sections 176 of the Oil and Gas Act 1998 (as amended). He submitted that in OS (JR) 225 the plaintiffs were challenging the Ministers decision which allowed among other things for bank accounts to be opened for landowners in the Hides PDL 7 area. The plaintiffs claim that they are the only legitimate landowners and seek injunctive orders restraining the MRDC from opening bank accounts for people who were squatters or had no legitimate claims to land ownership. That all royalty payments were to be paid into the first applicants accounts for disbursement to its members.

4. On 14^th November 2019, the applicant / plaintiffs successfully obtained injunctive orders under OS 225 of 2019 restraining the Department of Petroleum and Energy and MRDC from taking any further action to implement the Ministers decision, inter alia opening of bank accounts. This order was set aside in an ex parte order on 21^st October 2020. The applicants / plaintiffs in OS 225 / 2019, then applied by motion to reinstate that injunction. The matter was heard by Miviri J on 16^th November and his honour adjourned to 14^th December for decision. On 30^th November 2020, this case OS 188 of 2020 was filed. On the same day notice of motion and two separate affidavits in support by plaintiff Huriba Andago were filed seeking urgent injunctive relief as follows:

1. “ Pursuant to Order 1 Rule 7 of the National Court Rules, service requirements of this Notice of Motion be dispensed with;
   
2. Pursuant to section 155 (4) of the Constitution and Order 12 Rule 1 of the National Court Rules, the department of Petroleum and Energy and the MRDC and any other related office including the defendants be restrained from:
   
   1. Taking any further steps to open the bank account of landowners at Hides PDL 7.
      
   2. Issue Clan Benefit Certificate.
      
   100. Elect Directors of Gas Resources PNG LNG Hides Limited.
        

Until the substantive matter in this proceeding is finally determined or as otherwise directed to by a court of competent jurisdiction.”

APPLICANTS ARGUMENTS

5. In his verbal submissions, Mr Lora for the applicant / plaintiffs only asked the court for restraining orders against MRDC opening new accounts. No mention was made of the two other reliefs numbered 2 “b” and 2 “c” in the notice of motion. So, I will only deliberate on whether to grant restraining orders for opening bank accounts.

6. Mr Lora submitted that the applicants were seeking restraining orders against MRDC because it was using forceful means by engaging the Police and army to continue with opening of bank accounts in the name of illegitimate landowners. In support of the motion the applicant relied on two affidavits sworn by Huriba Andago, the second plaintiff. Mr Andago is the deputy chairman of Umbrella Hides PDL 7 Association. In annexure E of his affidavit dated 30^th November (court document 4) is a letter written by Mr Lora of Andano David Lorawi Lawyers, to Ms Sandy Tiankin of Solicitor General’s office dated 19^th November 2020. Part of that letter reads as follows:

“I understand that on 14 November 2019, the court made injunctive orders against MRDC and the department of Petroleum which restrained the opening of landowner bank accounts and payments. This Order was set aside in an ex parte Order on 21 October 2020.

The Plaintiffs have filed an application to reinstate this injunctive order. The Notice of motion for this injunctive order was heard on 16 November 2020, the court adjourned to 14 December 2020 for its decision.”

7. When asked if these proceedings were duplicitous and the same relief sought as in the application in the other court proceedings, OS (JR) 225, Mr Lora responded that he was making this application because the state was bulldozing everyone and opening accounts. He asked the court to issue interim injunctive orders pending the handing down of decision by his honour Miviri J on December 14^th 2020.

DEFENDANTS RESPONSE

1. FIRST DEFENDANT
   

8. Mr Kopunye counsel for MRDC argued that:

1. There was no urgency in this case because the applicant / plaintiffs had prior knowledge of the bank account opening exercise conducted by MRDC.
   
2. The opening of accounts did not automatically mean that MRDC and State were bound to pay money into those accounts and no money had in fact been deposited.
   

100. There was no reasonable cause of action disclosed in the Originating Summons
     

2. SECOND DEFENDANT
   

9. In her submissions Ms Tiankin for the second and third respondents argued that this application is an abuse of process. That the same plaintiffs in OS (JR) 225 of 2019 are filing separate proceedings relating to the same subject matter. She argued that the standing of those plaintiffs was challenged in OS (JR) 225 and remained as an unresolved issue for decision.

THE LAW

10. The applicants through their lawyer have conceded that there is a related Judicial Review case on the subject matter the current case is based on. In that case an application to reinstate injunctive orders restraining MRDC and other State agencies from going ahead with opening of bank accounts is pending decision by Miviri J. I asked Mr Lora this hypothetical question; that were I to grant restraining orders pursuant to this motion then would Miviri J have wasted time writing his decision in the other pending motion? Mr Lora submitted in reply that he was only asking for injunctive orders for the period leading up to Miviri J’s set date for decision on 14^th December 2020.

11. This is a blatant abuse of the court’s processes. In my view it is highly disrespectful to the court and borders on contempt. For a lawyer to make such an application may also be unprofessional conduct in breach of the Lawyers Act. Judges of the National Court deal with a great many cases. Of the 44 Judges throughout Papua New Guinea, the total number of cases as at July this year was 25,171. At the Waigani National Court there were a total of 9,241 matters consisting of 1,141 criminal and 8,100 civil cases. So, for a party to knowingly make an application seeking orders which another judge is concurrently deliberating on, is totally unacceptable and should not be allowed.

12. The court has power under Order 12 rule 40 (1) to dismiss any proceedings in its entirety or a particular relief sought. It 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 –
   
   1. No reasonable cause of action is disclosed; or
   2. The proceedings are frivolous or vexatious; or
   100. 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.”

13. Constitution section 155 (4) gives inherent jurisdiction to the Supreme and National Court to make such orders as is necessary to do justice in any case. Both courts have inherent power and the duty to protect itself from frivolous claims by litigants: PNG Forest Products v Minister for Forest (1992) PNGLR 85 and Ronnie Wabia v BP Exploration (1998) PNGLR 8.

RULING

14. For the reasons outlined above the court finds that this motion is an abuse of the process of the court under Order 12 rule 40 (1) (b) (c) and dismiss it. I do not consider it necessary to canvas the arguments raised by both defendants except to say they have merit and both counsels might consider it worthwhile to file their own motions and argue those issues at a later date.

ORDERS

15. It is ordered that:

1. Motion dismissed
2. Matter adjourned to the registry
3. Plaintiff is to pay both defendants costs of this application, to be taxed if not agreed.
   

Orders accordingly

________________________________________________________________
AD. Lora & Associates: Lawyers for the Applicants / Plaintiffs
C. Kopunye: Lawyer for the First Respondent / Defendant
Office of the Solicitor-General: Lawyers for the Second & Third Respondents / Defendants