N9086
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
1.	OS (JR) No. 208 of 2019

TUGUYAWINI LIBE PARINDALI of NGUANE, ALEMBO PALIAWE of TAGOPALI CLAN, ERICK KEMBO of PEPE 2 CLAN, JOROME TAWI & GIYA JOKOYA of WARE 2 CLAN, POTAPE MARAGO of PATE CLAN, ALL of TUGUPA BLOCK of HIDES PDL1, TARI HELA PROVINCE Suing in their own representative capacities as Landowners and on behalf of members of their respective clans as mandated Leaders.
Plaintiffs

2.	OS (JR) No. 209 of 2019

KAKAPAIA PARINDALI AND IKIPE TOGORIAGO OF PELA CLAN, MICHAEL KANE OF PEPE KOE CLAN, AMI KALOMALI OF PARAJA CLAN, PHILIP IRUKA OF PEPE MBELA CLAN AND OLAPE MARAGO OF JAKORA CLAN, ALL FROM THE KAMIA KERA REGION IN THE TUGUBA BLOCK WITHIN HIDES PDL1 SUING FOR THEMSELVES AS INDIVIDUALS LANDOWNERS AND AS APPOINTED CLAN LEADERS
First Plaintiffs

AND: 
MAKAPE PARAPU OF WARAPIA CLAN, NGINI LAWI OF IMINI CLAN, ALIAWI HARIGALI OF HAGA CLAN, PETER HUPILAGA OF TAMEA CLAN, PHILIP HORAWI OF HONAGA CLAN, AYALO PARINDALI OF PELA CLAN, IKIPE ALEMBO OF KUARA CLAN AND JAMES IPUA OF TAGUALI CLAN ALL FROM THE TUGU TAPIRA REGION IN THE TUGUBA BLOCK WITHIN HIDES PDL1 SUING FOR THEMSELVES AS INDIVIDUAL LANDOWNERS AND APPOINTED CLAN LEADERS
Second Plaintiffs

AND:
LOHIAL NUAU ACTING SECRETARY DEPARTMENT OF PETROLEUM
First Defendant

AND:
HON. FABIAN POK MINISTER FOR PETROLEUM
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
HOWARD LOLE AS LEADER OF JUGU CLAN AND TUGU AND TUGUBA TRIBE
Fourth Defendant

AND:
PETER POTAPE OF TUGUBA WARE II AND CHIEF KUPYAWIALUJIA of PEPE 11 CLANS of HIDES PDL
Fifth Defendant

Waigani: Miviri J
2021: 06th & 22nd July, 5th August 

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive notice of Motion – Application for Dismissal – Abuse of Process – Res Judicata – Order 12 Rule 40 (1) (c) NCR – Section 155 (4) Constitution – Reagitating of – Motion to dismiss granted – National Court Judgment on Same on Record – proceedings dismissed as abuse of process – cost in the cause.

Cases Cited:

Pelego v Pok [2021] PGNC 50; N8745 
Pruaitch v Manek [2019] PGSC 123; SC1884 
Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 
Takori v Yagari [2007] PGSC 48; SC905 
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 
Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4992 
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 
Counsel

D. Kop, for Plaintiffs
P. Sapu, for Plaintiffs (OS (JR) 209 of 2019.
M. Tukuliya, for First, Second, Third Defendants
J Rotep, for Fourth Defendant
J. D. Lyipita, for Fifth Defendants

RULING
 05th August, 2021
1.	MIVIRI, J: This is the Ruling on the fifth and sixth defendant’s application by notice of motion of the 11th June 2021 invoking Order 12 Rule 40 (1) (c) and section 155 (4) of the Constitution to dismiss both proceedings for being abuse of the process of Court and that it lacks jurisdiction to hear a customary land dispute.

2.	That the proceedings are res judicata having been determined already by a competent Court of the same issues arising from the same facts and circumstances. That this will be a reagitating of it yet again before the same court which has been held to be abuse of the process of Court. It is frivolous and vexatious action and should be dismissed. The current proceeding challenge the Ministerial Determination made by the Second Defendant in identifying landowners who will receive benefits from the extraction of gas including use of their land in the PNG LNG Project. A number of judicial review proceedings emanated as a result of that action by the Minister challenging the Ministerial Determinations of which these are two such proceedings.

3.	Five of which were OS (JR) Nos 211, 217, 221, 223, & 226 of 2019 dealt with before Justice Makail delivering a ruling in Pelego v Pok [2021] PGNC 50; N8745 (8 February 2021). That judgment details out the same facts circumstances and issues raised as here. They were dealt with in that case. Effectively it means what is before this Court is the same and cannot be retried having seen the hand of Justice and being accorded the same in law given its facts and circumstances. 

4.	It is the same two major tribes in the PDL1, PNGLNG of Hiwa and Tuguba who have been receiving royalties from the Gas to Electricity project from Porgera Gold mine prior to the PNGLNG project. Both tribes have entered into an agreement executed on the 07th July 1993. It outlined the split percentage of 50-50 identifying well pad landowners, facility owners water source landowners and so forth. It would serve no utility to recanvas the facts again over the same matter. Suffice to say that here the plaintiffs claim that an additional 38 clans which are part of the Tugupa block have not been included in the Ministerial determination. And against which the plaintiffs are claiming that they were identified as beneficiaries under the same Tuguba Block by the former Minister for Petroleum and Energy Hon Nixon Duban in Ministerial Determination of the 19th and 28th May 2014.

5.	The basis of their identification as new members is not clear. There is no evidence especially when their main same Tribes of Tuguba block recipients have been and have already been recognized and benefit made. And as to how they have continued to miss out in the payment and receipt of equity and royalty is not clear. And as Plaintiffs if indeed were denied natural justice and error of law they have not applied to join the proceedings as parties to the cause of action now instituted and on foot. Because here the current plaintiffs are part of the eight (8) clans identified by the Minister in his determination. What has been intended to here by thisproceedings seeks life to what is not there in the first place. That is misappropriation, as that is being dishonest creating what is not there, so that payment can be made to that without justification in law. If it is a cross of the Hiwa and Tuguba by intermarriages, migration, and other such consistency, make up then it is still the same people already recognized and sourced out with benefits by the Minister. There is no need to pay any more than necessary.

6.	Both proceedings OS (JR) 208 & 209 of 2019 do not have anything out of the ordinary to sway that peculiar evidence has been pointed to deal differently from the others that have been the subject of dismissal by this Court. No other evidence has been led before me to show material change so as to justify the inclusion of the subject 38 additional. There is no Landowner Benefit Identification exercise (LOBID) from which comes this 38 so that there is justification for each clan identified and the percentage to be able to give effect to sections 167 and 168 of the Oil and Gas Act. That is not the evidence. The rights to the boundary remain vested on Hiwa and Tuguba, and there is no shift in this regard from the initial. And this is very clear in the light of Pelego (supra) which when compared derives the same facts and issues, comparison does not deviate from that primary and remains as it is initially settled. It is exactly the same in all material particulars and would be running the same course yet again. And would be heading the same as Pelego in its determination. It too will not succeed given.

7.	It is part and parcel of OS (JR) No. 211, 217, 221, 223, & 226, now Pelego (supra) so justice would not be served in maintaining it on the record of the court. Its determination has already been made and dismissal has eventuated. It would follow likewise because, it is analogous to the observation authoritatively made by the Supreme Court in Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019) that “piecemeal interlocutory applications to National Court and multiple appeals to Supreme Court can constitute abuse of process.  Circumstances which give rise to abuse of process are varied and not limited to fixed categories – Court must consider circumstances of case, prejudice to each of the parties and need for public confidence in administration of justice – Delay in conduct of proceedings and failure to take available procedural steps are factors capable of constituting abuse of process.”

8.	In this regard affidavit sworn by fourth defendant Howard Lole of the 28th June 2020 filed 30th June 2021 sets this out clearly. He is of the Jugu Clan in Nogoli Tangi Hides Gas Fields specifically PDL 1. That what is challenged in the current proceedings is the Ministerial decision on the 09th March 2019 and registered in the National Gazette 188 on the 13th March 2019 in which as Minister responsible he made determination under sections 168 and 169 of the Oil & Gas Act identifying 8 clans under the Tugupa Block as Landowners within PDL1, hides Gas Project area as being entitled to equity and royalty benefits. That is the evidence that is not in favour of maintaining this proceedings. It is supported by the affidavit and evidence of Jimmy Dia Lyipita of the 11th June 2021 who reiterates all above in all material particulars. It is evidence clearly against the maintenance of this proceeding in law because it has already met the hand of Justice and determined. Hence there is no utility in law to maintain it on the records of the Court given. The law does not favour its maintenance.

9.	There is no contradictions by the plaintiffs apart in both proceedings so that there is room to sway away from the motion pleaded for dismissal. Hence it would not be an error of law to follow Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008). Because it is an abuse of process to be seeking what has already been attained in other proceedings. The label maybe different but the substance is still the same. That by this authority is res judicata and has no continued place in the records of the court and must be dismissed as an abuse of process.

10.	Because the Land Titles Commission presided by Sir Arnold Amet has effectively laid to rest the ownership of the subject land rests with Hiwa and Tuguba over Hides PDL1 project facility. And that has been the case unaltered for 20 years on end. This is evident in the agreement entered into between the two on the 07th July 1993. Which has led proportionately to the split allocation on the licence base as follows; Hiwa 37% ; Tuguba 25% ; Tugu Tapira 10.4% ; Habono 12.8% ; JP Karai 11.8%  ; and Kamia Kera 3%. And so, it has been laid to rest that the eight (8) clans of Tuguba have stood by and there is nothing a new from that except that there is a dispute within that existence by reason of law cannot permeate into the current existence. Because of that fact the Minister has appropriately dealt with the matter in law. He has identified and effected in accordance. In so doing he has not fallen into error. He has given effect to section 169 of the Oil and Gas Act. And this issue has been canvassed in the decision of Pelego (supra). This court is ceased of the matter and cannot revive it yet again on the same fact’s, issues and circumstances. It is determined and remains in that manner and cannot be the subject of revival here. 

11.	There is abuse of process pursuant to Order 12 Rule 40 (1) (a) & (b) of the National Court Rules made out discharged on the balance against the plaintiff by the fifth and sixth defendants. It is not in similar light as in Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007), that dismissal would be denying justice for the plaintiffs. That is not the case by the facts and the law set out above. 

12.	It is not an open forum open to busy bodies so much so that matters trivial and misguided can fall at will: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008). Judicial Review is restrictive and for very good reasons because, “Grant of leave for review of an executive decision or act is a prerequisite for the hearing of a claim for judicial review...The leave application itself is a guided process in which the question of grant or refusal is discretionary. This stems from the fact that the judicial review application is a restrictive process. The rationale is simple: Judicial Review is not an open forum for busy bodies and other persons with misguided or trivial complaints over administrative errors to air their grievances” at para 9,”Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4992 (6 December 2012)

13.	There is no decision to be reviewed and the jurisdictional basis for the court to hear is not before the court: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 20140. Creation of entities doubling or tripling them so that there are more heads than real in the guise to lure more onto the plate that is already full must stop because the stomach can only take so much. 

14.	The formal orders of the court granted in accordance with Order 12 Rule 40 (1) (c) of the National Court Rules are: 

(1)	The application for dismissal is granted in both cases OS (JR) 208 & 209 of 2019.
(2)	Both Proceedings OS (JR) 208 & 209 of 2019 are dismissed as an abuse of the process of court.
(3)	Costs will follow the event forthwith.
Orders Accordingly.
__________________________________________________________________
Toll Lawyers: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the State
Saulep Lawyers: Lawyers for the Fourth Defendant
Asia Pacific Lawyers: Lawyers for the Fifth Defendant