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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS 287 OF 2023 (IECMS)
BETWEEN:
PIU LAND GROUP INC.as Registered ILG and Special Agriculture Lease Holder Tribe
First Plaintiff
AND:
AUGUSTINE GWAI as Chairman of TUKITALUMB Landowners Association Inc. Under PIU Tribe
Second Plaintiff
AND:
HONOURABLE LUTHER WENGE as Governor For Morobe Provincial Government, MOROBE PROVINCE
First Defendant
AND:
ANO PALA MINISTER for Mines and Mineral Resources Authority (MRA)
Second Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Bre, AJ
2023: 20th & 22nd December
CIVIL PRACTICE AND PROCEDURE - Application for summary dismissal – ex parte restraining orders - interest in previous Supreme Court decisions invalidating title to land not disclosed – lack of representational capacity to commence proceedings- abuse of process- costs on indemnity basis- ex parte orders set aside- proceedings summarily dismissed.
Cases Cited
Tuwi v Goodman Fielder International Limited (2016) SC1500
Lerro v Stagg (2006) N2936
Mt Hagen Urban Local Level Government v Sek No.15 (2009) SC1007
Phillip Takori & Others v Simon Yagari & 2 Others (2008) SC905
Simon Mali v The State (2002) SC690
Somare v Nen [2018] PGSC 81; SC1722
Tigam Malevo v Keith Faulkner (2009) SC960
Jackson Tuwi v Goodman Yanta Development Association Inc v Piu Land Group Inc [2005] PGSC 24; SC798
Legislation
National Court Rules O12 r40
Counsel
Mr Russell Uware, for the Applicant/Third Defendant
Mr Rimbink Pato with Mr P Mark assisting, for the First Defendant
Mr E Korua, for the Second Defendant
Mr Chrisman Sumba, for the Plaintiff/Respondent
RULING
22nd December 2023
1.BRE, AJ: INTRODUCTION: This matter was initially scheduled for inter-parte hearing of ex parte interim restraining orders granted on 25 October 2023 restraining the Defendants from conducting any negotiations or meetings on the Wafi Golpu Mine Special Mining Lease area until the proceedings were determined. However, the Plaintiff's lawyer was late, while the State and the Governor for Morobe Province had their respective motions before the Court. The Governor's motion was short served, so I proceeded to hear the State's application which was sufficiently served on the Plaintiffs' Lawyer.
2. The State seeks orders to summarily dismiss the proceedings for lack of Section 5 notice and for abuse of process or alternatively to set aside the ex parte restraining order of 25 October 2023.
BACKGROUND
3. The background to the proceedings concerns negotiations by the Defendants with landowner groups concerning landowner interest in the Wafi Golpu mine in Morobe Province. The Plaintiffs are aggrieved that they are not participating in the discussion forums and commenced these proceedings.
4. On 25 October 2023, I granted ex parte orders sought by the Plaintiff to restrain the discussions until their grievances to participate and their landownership rights based off an agriculture and business lease described as Portion 8C, Milinch of Wasu, Fourmil of Markham, Morobe Province was determined.
5. The Defendants opposed the proceeding and filed their respective motions on 28 November 2023 and 19 December 2023 to summarily dismiss the proceeding for abuse of process and for the originating summons not disclosing a reasonable cause of action.
EVIDENCE
6. The State relies on the Affidavits of Martina Irosu and Russell Uware both sworn on 24 November 2023 and filed on 28 November 2023. Counsel for the State also handed up a copy of a letter dated 14 December 2023 to the Plaintiff's lawyer, Mr Sumba, giving notice to seek costs on a solicitor/client basis if the proceedings are not withdrawn. I accepted the letter as part of the evidence.
SUBMISSIONS
7. The State relied on two grounds to dismiss the application. The first concerns a preliminary matter of lack of Section 5 notice and the second, concerns abuse of process. Both grounds relate to the competency of the proceedings.
8. Counsel for the other Defendants supported the State's submissions and pointed out two Supreme Court decisions which declared invalid the Special Agriculture Business Lease (SABL) relied on by the Plaintiff. The decisions are Somare v Nen [2018] SC1722 and Yanta Development Association Inc v Piu Land Group Inc [2005] SC798.
9. Counsels for the Defendants also pointed out certain irregularities in the proceedings such as those concerning sufficient authority to commence a representation or class action, undertaking as to damages and that the proper mode of proceeding should be by way of judicial review.
10. Counsel for the Plaintiff submitted that Section 5 notice was given but he was late in filing the Affidavit and sought to tender a copy of a Section 5 notice from the Plaintiffs to the State which was objected to by the State.
11. Mr Sumba submitted in relation to the summary dismissal application for the Court to consider the nature of the Plaintiff's claim on the constitutional grounds claimed for an opportunity to participate in the mining project. That it is not the Plaintiffs intention to stop the mining development forums and the commencement of the mine but to be heard as to matters concerning its rights to participate as customary landowners.
12. Mr Sumba submitted further that there were three land titles commission hearings after the Supreme Court decisions that he would need further instructions from his clients on and requested for an adjournment.
ISSUE
13. The issue concerns whether this proceeding should be dismissed for competency as it pertains to Section 5 Notice to the State and for being an abuse of process pursuant to Order 12 Rule 40 of the National Court Rules ( 'NCR') or alternatively, that the ex parte orders of 25 October 2023 be set aside.
LAW
14. The applicable law are Section 5 of the Claims By and Against the State Act 1996 ( 'ÇBASA'), National Court Rules Order 12 rule 40 and relevant caselaw.
Section 5 (1)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 and Section 5A by the claimant to -
(a) the Departmental Head of the Department responsible for justice matters; or
(b) the Solicitor-General."
National Court Rules Order 12 rule 40 reads:
"40. Frivolity, etc. (13/5)
(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; or
(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). "
ANALYSIS
15. I issued an ex tempore decision to set aside my orders of 25th October 2023 and reserved my ruling on the relief sought under Order 12 rule 40 NCR which I now set out.
16. As to the order to set aside the ex parte restraining orders, it became apparent to me in the course of counsels' submissions that certain vital facts were not disclosed by the Plaintiff during the ex parte application. These included the two Supreme Court decisions relied on by the defence and Section 5 notice on the State. The two Supreme Court decisions are quite significant as it adversely affects the claim of the Plaintiff to the Wafi Golpu project area, the Plaintiff is a party to these proceedings and were mischievously omitted in the evidence and submissions for the ex parte orders.
17. I also note that all parties desire for the Wafi Golpu mine to commence operations and acknowledge that this is a major development project of national importance for the country that must commence and to which the Defendants have a process of landowner identification that they are managing.
18. On those bases, a continuation of the restraining orders serves no purpose and is set aside.
19. As to the summary dismissal of the substantive proceedings, the Court is required to cautiously exercise its discretion to summarily dispose of proceedings which are clearly untenable. I adopt and apply where relevant, with respect, the considerations of the Supreme and National Courts established in the cases of Lerro v Stagg (2006) N2936, Phillip Takori & Others v Simon Yagari & 2 Others (2008) SC905 and Mt Hagen Urban Local Level Government v Sek No.15 (2009) SC1007. The principles include:
“1) A plaintiff or defendant should not be driven from the judgement seat in a summary way. The rules are designed to enhance parties rights and to ensure a prompt and fair disposal of matters.
2) Simultaneously, the Court also has a duty to protect and safeguard its processes from abuse.
3) The object of this rule is to stop cases which ought not to be launched.
4) In terms of a claim not disclosing a 'reasonable cause of action’; two considerations apply: one, the legal form of action and second all necessary facts proving the legal form of action must be disclosed in the pleadings.
5) The Court must exercise its discretion sparingly and only in very clear cases where the pleadings are ‘obviously and almost incontestably bad' or is 'plain and obvious’ or 'so bad or vague’ that even if the claim is proved will not entitle the Plaintiff to the remedy it seeks.
6) A lack of particulars can be cured by amendment to the pleadings”.
20. The legal form or jurisdictional basis of the cause of action by the Plaintiff in the Originating Summons is based on Section 53 of the Constitution, alleging breach of their right to freedom from unjust deprivation of property.
21. The Plaintiffs claim in the Affidavit of Augustine Gwai filed on 9 October 2023 that their agriculture and business lease covered an area of 50,000 hectares, which comprise the same area now known as Special Mining Lease 10 comprising the Wafi Golpu mine and attached copies of Court and other documents confirming their title but failed to disclose the decisions of the two Supreme Court cases.
22. I have perused the two supreme Court decisions. The Supreme Court case of Yanta Development Association Inc v Piu Land Group Inc clearly outlines the dispute of the SABL granted to the Plaintiff ILG, with the Yanta and Hengambu Association showing the Plaintiff had obtained a certiorari to quash the Ministerial revocation on 18 May 2003 of its SABL . The Yanta and Hengambu Associations appealed to the Supreme Court which quashed that Certiorari on 29 August 2005 as the Minister had power to revoke the SABL for failing to comply with the requirements of Section 10, 11 and 102 of the Land Act concerning the grant of SABL by the Minister over customary land. The Supreme Court held that no valid title could pass to the Piu ILG and the SABL granted to Piu ILG on 24 July 2001 is void ab initio.
23. The Plaintiff's evidence from the Affidavit of Augustine Gwai is that a Land Titles Commission in August 2010 , presumably, after the two Supreme Court decisions; ruled in favour of the Plaintiff, however, he does not disclose the ruling nor evidence of the decision, but; attaches copies of an appeal in proceedings CIA 177 of 2010 by the Yanta Association seeking judicial review of the Land titles Commission decision which was subsequently dismissed on 24 May 2015 for want for prosecution. He does not mention Yanta Development Association Inc v Piu Land Group Inc (2018) SC1722 to which the Plaintiff is clearly a party.
24. The factual scenario alluded to by the Second Plaintiff continues in Yanta Development Association Inc v Piu Land Group Inc where I adopt with respect the background facts as stated in that case. The appointment by the National Executive Council of the Special Land Titles Commissioners between 21 October 2008 and 10 December 2010 was revoked, to which the Commissioners filed a judicial review whereby the National Court quashed the NEC's decision of 10 December 2010. The decision of the National Court was appealed to the Supreme Court on 06 August 2017. The decision of the Supreme Court was handed down two years later on 30 October 2018 quashing the National Court decision. Parties have not referred to any further proceedings after the Supreme Court decision in SC1722.
25. It is apparent that the legal foundation to the Plaintiff’s claim that it has a valid agriculture and business lease over 50,000 hectares of land described as Portion 8C, Milinch of Wasu, Fourmil of Markham, Morobe Province is legally defective and its claim is untenable. The Plaintiff has misled the Court in obtaining the ex parte orders and the legal basis of its substantive claim is fundamentally weak and frivolous.
26. Further, the Plaintiff not competently before the Court having not demonstrated valid consent of the Piu Incorporated land Group members to commence this proceeding.
27. The law on representative capacity is settled in the cases of Simon Mali v The State (2002 SC690), Tigam Malevo v Keith Faulkner (2009) SC960 and Jackson Tuwi v Goodman Fielder International Limited (2016) SC1500. The basic elements of instituting a class action are:
a) All intended Plaintiffs be named in the originating process.
b) Each intended Plaintiffs must give specific instructions evidenced in writing to the lawyers to act for them.
c) The principal or lead Plaintiff must produce an authority to the Court to show that he is authorized by them.
28. The Plaintiff commenced this action to be included in the mining development forum discussions which the Defendants should appropriately
respond to as part of the consultative process that they oversee.
The most appropriate remedy for persons aggrieved by the Defendant’s decision would be to seek judicial review of the Defendants
decision, if they have customary land rights to the Wafu Golpu mine project area and are being excluded by the Defendants.
29. Considering all these factors, this proceeding is an abuse of process and must be summarily dismissed. The Court must guard against abuse of its process and strike down cases that are obviously untenable.
30. As to the procedural matters raised concerning Section 5 notice and an undertaking for damages, I have considered in the interest
of justice to address the issue of Section 5 despite the State's objection. The late hand up of the letter and draft unsworn affidavit
by the Plaintiff's lawyer indicates Section 5 service requirements were purportedly complied with by service of a letter dated 19
September 2023 at 1pm on 20th September 2023 on the Solicitor General's Office. However, the State's evidence on lack of Section 5 notice is corroborated by Martina
Irosu and counsel Uware's Affidavits that the State was served 9 November 2023 which I accept as proper evidence. On that basis,
I am not satisfied that proper service was affected on the State prior to 09 November 2023.
As to the Undertaking on Damages that was filed on 09 October 2023.
31. In conclusion, the proceeding does not disclose a reasonable cause of action, is frivolous and incompetent on procedural grounds in a lack of Section 5 notice on the State and representative capacity. The proceeding is summarily dismissed in its entirety.
32. As to costs, I find the conduct of the plaintiff in disclosing half-truths in evidence to the Court tantamount to perjury. The Plaintiff's lawyer has a duty as an officer of the Court to disclose all material facts and law on the matter if he was aware of the Supreme Court decisions. The State gave the required forewarning notice to seek costs on an indemnity basis if the Plaintiff does not withdraw the proceedings. There is sufficient basis to award costs against the Plaintiff on an indemnity basis.
ORDERS
33. The formal Orders of the Court are:
Orders accordingly.
Stran Investment Ltd: Lawyers for the First and Second Plaintiffs
Steeles Lawyers: Lawyers for the First Defendant
Mineral Resource Authority, Legal Division: Lawyers for the Second Defendant
Solicitor General by his employed Lawyer: Lawyers for the Third Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2023/484.html