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Donigi v The State [1991] PGLawRp 503; [1991] PNGLR 376 (7 November 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 376 - Donigi v The State�

[1991] PNGLR 376

N1008

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DONIGI

V

THE STATE

Waigani

Brown J

10 October 1991

7 November 1991

PRACTICE AND PROCEDURE - Declaratory relief - When available - As to effect of legislation - Specific problem for determination - No power to declare abstract propositions - Locus standi - Sufficient interest - Joinder of parties - Binding effect on interested parties - Merger of rights

A private citizen, who was a traditional landowner and president of the Law Society of Papua New Guinea, sought declaratory relief as to the constitutionality of particular provisions of the Mining Act (Ch No 195) of the Petroleum Act (Ch No 198) which reserve rights of ownership in gold, minerals or petroleum below the surface of land to the State. The landowner could not show the presence of gold, minerals or petroleum below the surface of customary land owned by him.

The State as defendant sought to strike out the proceedings.

The National Court Rules, O 5, r 8, provides:

N2>�8.����� Addition of parties

(1)����� Where a person who is not a party:

(a)����� ought to have been joined as a party; or

(b)����� is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.�

Held

N1>(1)����� The power of the National Court to grant declaratory relief in respect of legislation:

N2>(a)����� is dependent on there being a specific problem concerning it which requires the determination of personal or proprietary rights: there is no power to declare hypothetical problems; and

California v San Pablo and Tulare Railroad [1893] USSC 165; 149 US 308 at 314 (1893) and Australian Boot Trade Employees� Federation v The Commonwealth [1954] HCA 9; (1954) 90 CLR 24 at 50, adopted and applied.

N2>(b)����� requires all necessary and proper persons whose interests may be affected to be joined as parties.

(Per Brown J) Where persons not within the contemplation of the parties to proceedings are likely to have an interest in the outcome of the proceedings affecting their private or public rights and, where declarations of the nature envisaged by the plaintiff cannot effectively bind such persons, there is no good cause to be achieved in embarking on a consideration of the issues without proper representative orders which cannot be made in this case.

N2>(c)����� requires the plaintiff to have sufficient interest as a particular member of the public who is suffering or is at risk of suffering direct and substantial damage other than that which is common to the rest of the public.

Rickless v United Artists Corporation [1988] QB 40; [1987] 2 WLR 945, Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 and Boyce v Paddington Borough Council [1902] UKLawRpCh 174; [1903] 1 Ch 109, applied.

N1>(2)����� In the circumstances, the proceeding should be struck out:

N2>(a)����� the plaintiff�s claim was hypothetical and not founded on property rights actually affected;

N2>(b)����� the declaration as sought would not bind other interested persons; and

N2>(c)����� the plaintiff�s interests as a citizen, landowner and president of the Law Society were objectively not sufficient to found the particular claim.

Cases Cited

Australian Boot Trade Employees� Federation v Commonwealth [1954] HCA 9; (1954) 90 CLR 24, adopted and applied.

Boyce v Paddington Borough Council [1902] UKLawRpCh 174; [1903] 1 Ch 109.

California v San Pablo and Tulare Railroad [1893] USSC 165; 149 US 308 (1893).

I G Farbenindustrie A G Agreement, Re [1944] Ch 41; cited SCR No 4 of 1980.

Johnson v Dunbar 114 MYS (2nd) 845 (1952).

Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173.

Petition of M T Somare, Re [1981] PNGLR 265, distinguished.

Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34.

Rickless v United Artists Corporation [1987] 2 WLR 945.

Robinson v Western Australian Museum (1977) 51 ALJR 806.

Notice of Motion

The proceedings came before the court by way of notice of motion by the defendant seeking to have the plaintiff�s summons for declaratory relief struck out.

Counsel

The plaintiff in person.

Z Gelu, for the State.

Cur adv vult

7 November 1991

BROWN J: This motion seeks that the plaintiff�s proceedings be struck out. The plaintiff�s originating summons seeks declarations, including declarations, in relation to the unconstitutional nature of particular sections of the Mining and Petroleum Acts, as they purport to affect ownership in gold, minerals, helium or petroleum found in or under land owned by the plaintiff.

The State says that the plaintiff lacks standing. It has filed an affidavit by the Acting State Solicitor, Mr Zacchary G Gelu, who also says the plaintiff lacks sufficient interest in the proceedings. He says that in these particular circumstances the plaintiff, even as a citizen and landowner, has no locus standi. He also is not an authority enumerated in s 19(3) of the Constitution. Further in the absence of gold, minerals or petroleum there exists no actual or contingent matter in issue between the parties.

The plaintiff on the other hand argues that property includes tangible and intangible rights. He claims a right to that which may or may not be under his land. This is sufficient interest in property to satisfy the Court.

He is the president of the Papua New Guinea Law Society a body vitally interested in the application of the law in Papua New Guinea and he is personally involved in political and social inquiries which relate to the general issue of landholder rights and interests. His personal involvement is of long standing and is genuine.

He has presented papers at development seminars and has been extensively reported by the media when he has made statements in relation to the subject. Since the phrase has been used in cases reported both here and abroad, I should say that I find he is not a �busy body�, as somebody intermeddling in affairs of no consequence to him.

The plaintiff points to the Supreme Court (SCR No 4 of 1980; Re Petition of M T Somare [1981] PNGLR 265) as supporting his claim to locus standi. He is a citizen and has a genuine interest in the proceedings before the Court. He says this is a challenge to the legislative power to make laws relating to mines of gold and petroleum found in or under his customary land, since such laws are at variance with his constitutional right to property.

The plaintiff then embarked shortly on an address which related more to the merits of the application, stating that the court has a duty to protect and uphold a constitutional right which has been infringed. The provision of the Constitution is found at s 53 � �Unjust Deprivation of Property�. I should refer the question about infringement of my own volition pursuant to s 57 � Enforcement of Guaranteed Rights and Freedoms, to the Supreme Court. That latter section of the Constitution, does, as Mr Gelu for the State says, rather beg the question in this instance, whether there has been unjust deprivation of property. There cannot be in fact, for gold, for instance, has not been shown to exist. There are no mines of gold or other minerals on the plaintiff�s land nor so far as I am aware is there petroleum.

I am left rather, with consideration of factors relevant in proceedings seeking declarations, factors which include �locus standi�. But before I identify and discuss those factors, I wish to make some general points.

Mr Donigi�s claim is as a customary landowner of a particular piece of ground, one which is known as �Dupulum� of Lowan village, East Sepik Province.

He has deposed to the importance he places on the Balaebus Clan relationship and has described shortly, but by way of illustration, his links with his land.

I am satisfied he is a �traditional landholder�. It is conceded that at this time no mines or minerals are on or known to be under his land nor do any petroleum licences affect the land.

Land tenure of customary land in Papua New Guinea is like a many faceted jewel, giving a different face from every angle. The variances are multiplied for each clan may argue that its customary land holding relationships differ ever so slightly to those of its neighbours, (giving such custom its peculiar many faceted effect) while clans at opposite ends of the country, may not have many similarities at all. But the thread in this diversity is the emphasis on the interacting social relationship. I particularly have regard to Thomas G Harding�s monograph on the subject of land tenure (Encyclopaedia of Papua New Guinea, 1972 ed, Peter Ryan; vol 2) where (at 606) he says:

�... Land & Kin Groups

The societies of New Guinea are familaristic or kin-based. They lack the highly specialized land use, market system, and formal politico-legal institutions that give form and substance to property in land characteristic of Anglo-American society. Both economic and political processes may be said to be embedded in social relationships, usually of a kin or quasi-kinship nature. Property relations in general, and those involving land in particular, are attributes of these social relationships. It is accurate to say that �principles of land tenure grow out of the social relations of the people who use the land�. The social system determines land tenure; or rather, the latter is a part of the former. Since principles of land tenure are not codified, and since in disputes there was formerly no agency independent of and superior to the litigants themselves that was charged with preserving and interpreting principles, customary rules are subject, to a marked degree, to the pressure of circumstances and dominant interests.

The actual forms or types of land that are the objects of proprietary interest are determined largely by patterns of land use, and these flow from the technology-environment relationship. Thus, as the technical-environmental complex is varied � between, let us say, sago processing, taro growing in lowland rain forest, yam cultivation in savannah, or fishing � forms of tenure will vary also.�

I find echoes of that general thesis in the plaintiff�s affidavit filed in support. He says for instance:

N2>�10.��� In my custom, land includes everything on, in or under the soil, subject however that I may give permission to a third party to use the land on a temporary basis to make and plant food crops until harvest time but not permanently. Any period in excess of the period from cultivation to harvesting will be considered permanent and is not permissible. Custom requires all members of my clan including myself to defend with our lives the land and its territorial integrity. Nothing can be obtained, acquired, disturbed or disposed of from our customary land without prior agreement by all members of my clan.�

In support of his thesis, Thomas G Harding refers to some nineteen books, articles and monographs on the subject. No doubt there are many more. I do take his point, however that the social system determines land tenure.

Land use from a traditional Melanesian view does not encompass mining for minerals or petroleum exploration. Land use is predominantly associated with ground use, agricultural pursuits, the mining of clay for pottery perhaps and in some parts the use of surface occurring obsidian for tool manufacture. But until comparatively recent times mining, quarrying or dredging for metals and ores has not been part of the history of land use. Mesopotamians had a history of smelting ores and casting metals particularly copper. The crushing and separating process before refining and smelting is technology introduced into Papua New Guinea with the advent of modern mining since late last century. Mining at times conflicted with traditional land use but it has been accommodated within the customary land tenure system by imposition of foreign mining laws adopted and applied in this country in colonial times. Traditional land use touched on by Harding include (at 604):

�In addition to arable land, dwelling sites, burial and ceremonial grounds, and non-agricultural land utilized for hunting [qv] and collecting, the following should be mentioned: paths and rights-of-way; locations strategic for trade or defence; streams, wells, springs, and fords; stone quarries, salt wells, and deposits of clay and rare earths; off-shore and fringing reefs; bird rookeries; economic trees of all types � coconut, sago, Areca, Java almond (Canarium indicum), pandanus, breadfruit, and so on; and such natural features as caves, rocky outcrops, and groves that may be significant by reason of their mythological associations with particular social groups.�

Gold was the particular metal which gave rise to a mining industry in Papua New Guinea. A comprehensive history of the gold mining industry, 1873-1930 in the British New Guinea and Papua may be found in H Nelson, Black White & Gold (1976). The principle mining laws in Papua, for instance leading up to the Japanese invasion commence with the adopted Queensland legislation being the Gold Fields Ordinance 1888 and conclude with the Mining Ordinance 1937 which repealed previous legislation. That latter ordinance included provisions of an earlier 1907 ordinance. The New Guinea Mining Ordinance 1928-1940 and the Mining Ordinance 1937 were amended from time to time and by the House of Assembly for the Territory of Papua New Guinea in pursuance of the powers conferred by the Papua New Guinea Act 1949-1966 by the Mining (Papua) Ordinance (No 2) 1966 (No 26 of 1967) and the Mining (New Guinea) Ordinance (No 2) 1966 (No 25 of 1967). Those amending ordinances inserted in a new subsection in the principle ordinances as follows:

N2>�78ba(1)������� The Administration shall pay to the owner of private land an amount equal to five per centum of the total amount of any royalties paid under this Ordinance in respect of mining leases on that land.�

I include that amendment as indicative of a particular benefit flowing to landowners.

The Mining Act (Ch No 195) provides in Pt XVIII � �Transitional provisions�.

Section 202(1): �The purpose of this section is to substitute rights, liabilities, functions and duties under this Act for the rights, liabilities, functions and duties which existed under the repealed Act immediately before the commencement date.�

The repealed Act means:

N2>(a)����� in relation to that part of the Country formerly known as the Territory of Papua � the Mining Act 1937; and

N2>(b)����� in relation to that part of the Country formerly known as the Territory of New Guinea � the Mining Act 1928.

The commencement date means 8 June 1978, being the date on which the Mining Act (Amalgamated) 1977 came into force. So then for the purposes of mining, the repealed Acts were in force (and adopted as pre-Independence laws) by virtue of s 200(3) and Sch 2.6 of the Constitution (Ch No 1) and thus continued in force by that Constitutional Provision until the coming into operation of the Mining Act (Ch No 195).

The Petroleum (Prospecting and Mining) Act (Ch No 198) in its appendix 1 names the Petroleum Act, as amended by the Torres Strait Treaty (Miscellaneous Amendments) Act 1984 as its source.

Former legislation referred to in the Act includes:

N2>(a)����� the Mineral Oil and Coal Ordinance 1923 of the former Territory of Papua; or

N2>(b)����� the Petroleum (Mining) Ordinance 1934, of the former Territory of Papua; or

N2>(c)����� the Petroleum (Prospecting and Mining) Ordinance 1938 of the former Territory of Papua; or

N2>(d)����� the Petroleum Ordinance 1936 of the former Territory of New Guinea; or

N2>(e)����� the Petroleum (Prospecting and Mining) Ordinance 1938 of the former Territory of New Guinea; or

N2>(f)����� the pre-Independence Petroleum (Prospecting and Mining) Act 1951.

I intend, by referring to this legislation and to its sources, merely to show that the mining developments and petroleum exploration extending over very many years in this country has been carried out in accordance with and regulated by these laws.

So far as petroleum ownership is concerned s 7 of the pre-Independence Petroleum (Prospecting and Mining) Ordinance 1951 provides for instance:

�Section 7 � subject to this Ordinance, but notwithstanding anything contained in any other law of the Territory or in any grant, instrument of title or other document, all petroleum and helium at or below the surface of any land in the Territory shall be and shall be deemed at all times to have been, the property of the Administration.�

The post-Independence legislation, s 2, is in similar terms of favour of the Independent State of Papua New Guinea.

The reservation of gold and minerals in or on any land in Papua New Guinea as property of the State is found in s 7 of the Mining Act (Ch No 195).

The actions then of all persons corporations and the State vitally interested in mining, whether gold, minerals or petroleum, have been predicated by this continuing expression of ownership in the State.

This brings me to one of those factors which I consider relevant. It is that the issue must be ripe in the sense expressed by the United States Supreme Court in California v San Pablo and Tulare Railroad [1893] USSC 165; 149 US 308 (1893) at 314, where the courts duty:

�... is limited to determining rights of persons or of property which are actually contravened in the particular case before it. But the court is not empowered to declare most questions or abstract propositions or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it.�

This rationale was applied by Kitto J, in Australian Boot Trade Employees� Federation v Commonwealth [1954] HCA 9; (1954) 90 CLR 24 at 50, where he stated:

�Undoubtedly cases can arise, and in the past they have arisen from time to time, in which the course of resolving questions of validity in anticipation of events, prima-facie unsatisfactory though it is, appears to be desirable because the circumstances provide reasons in its favour which outweigh the objections to it.�

One of the questions asked of the court was whether, on alternate assumptions in relation to particular evidence, s 78 of the Conciliation and Arbitration Act 1904 (Cth), or any part of that section, is beyond the powers of the Parliament of the Commonwealth.

Here, the plaintiff�s reasons in favour of resolving questions of validity include that he is a proponent of the view that property in these minerals and petroleum in this country is in the customary landowners and a �common desire of landowners throughout Papua New Guinea to participate in development activities�. That last phrase is specious, to say the least and had overtones of an emotional involvement in this controversy, an involvement which has been held not to be enough for ripeness. Nevertheless I am of the view that the objections to this suggested course of resolving these questions, outweigh the plaintiff�s reasons.

The objections are specifically related to the choice of parties which I shall touch on later in my reasons. I also adopt Kitto J�s reasoning (at 51) where he says:

�It appears to me highly desirable that exegesis of the section and pronouncement as to the validity of its several provisions should await an occasion or occasions when the Court can grapple with specific problems concerning it in relation to situations which have actually arisen.�

This brings me to the question of the identification of the proper defendant in these proceedings. The State, of course, has an abiding interest. But so have those customary landowners whose land is affected by mining or petroleum exploration. Should not they be classified as having an �interest� these proceedings affected as they are by the respective Acts the subject of review? Since the affirmative case proposed by this plaintiff would affect existing rights, should not they be put on notice as it were of the possibility of an interference with their existing rights?

I have regard to O 5, Div 1, r 8 of the National Court Rules which states:

N2>�8.����� Addition of parties

(1)����� Where a person who is not a party:

(a)����� ought to have been joined as a party; or

(b)����� is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.�

These rules have been judicially commented upon in this context in the case of Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34 where Glass JA, in commenting on different considerations which applied where a third party sought leave to intervene and where a plaintiff applies to add a defendant said (at 37) (dealing with a previous order of Ash J):

�The learned judge ruled that �there is no basis upon which the appellant ought to have been joined as a party in those proceedings claiming damages for breach of contract against the architects and the engineers, or that its joinder as a party is necessary to ensure that all matters in dispute in those proceedings may be effectually and completely determined and adjudicated upon�. He directed himself that the rule was to be construed in accordance with the views expressed by Devlin J, as he then was, in Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357 at 380 when considering the provisions of the Rules of the Supreme Court, O 16, r 11 which are in relevant respects identical, he said:

�The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.�

The judge�s attraction to this construction was fortified by its adoption in The Result [1958] P 174 at 180, and its approval by the House of Lords in Vandervell Trustees Ltd v White [1971] AC 912, when it allowed an appeal from the Court of Appeal ([1970] Ch 44) which had refused to adopt the Devlin view in Amon. Counsel for the builder also referred us to a decision of the Privy Council, Pegang Mining Co Ltd v Choong Sam [1969] UKPC 16; [1969] 2 MLJ 52 which affirms that no necessity is shown unless the party to be joined is directly affected by any order which may be made in the action and to the adoption of the Devlin analysis in Fire Auto and Marine Insurance Co Ltd v Greene [1964] 2 QB 687. But it is to be observed that in Amon, and in all the subsequent decisions which approved it with or without modification, the application of the rule was being considered in a context where a third party was seeking to intervene over the opposition of the plaintiff. It is no doubt proper in such a factual context to judge the necessity for adding a new defendant in terms of the matters in dispute raised by the plaintiff. But the existence or otherwise of a relationship of necessity is to be judged in an altogether different manner when it is the plaintiff who seeks to add a defendant.�

While the plaintiff in these proceedings is not seeking to add defendants, the rules do envisage a joinder of defendants for example in cases where �... some common question of law or of fact would arise in all the proceedings� (r 2(a)(i)).

Because then, of the wide reaching ambit of the plaintiff�s declarations which he seeks, it may be that consideration be given to permitting joinder, as defendants, of all such landowners who seek to intervene, were it not for the cautionary decision of the United Kingdom Court of Appeal.

In Re I G Farbenindustrie A G Agreement [1944] Ch 41. The judgment of Lord Green MR is correctly summarised in the headnote:

�The court has no jurisdiction to add as a party to proceedings a person who has only a commercial interest in those proceedings, even though his interest may be affected by the result of the proceedings.�

Am I to treat other landowners actually affected as having only a �commercial interest� and thus disentitle them from being heard?

These various cases I think illustrate the importance of correctly identifying defendants whose interests may be affected.

The dangers inherent in declarations where all necessary and proper parties have not been joined are such in this case that I do not consider proper representative orders could be made. There is no merger of rights in a declaratory judgment (In the United States Johnson v Dunbar), and since these proceedings involve private rights, I would apply that principle in this country.

The next factor with which I seek to deal is that referred to by the plaintiff as the standing of the citizen categorised as he says he is, by SCR No 4 of 1980; Re Petition of M T Somare. The catchwords to the headnote include the phrase � �Petitioner having sufficient standing as citizen�. The majority of the Supreme Court found that the Leader of the Opposition in the National Parliament, as a citizen, had standing to invoke the powers of the Supreme Court under s 18(1) of the Constitution to determine whether an Act of Parliament (the Defence Force (Presence Abroad) Act 1980) was invalid as being unconstitutional.

The case involved the justiciability of political issues which may be distinguished from those raised in this case, issues which are bound to private and public rights. The right in the public is in right of the State to the property in minerals and petroleum in the country as declared by the particular sections of the Mining and Petroleum Acts quoted earlier.

A reading of the particular judgments of the majority of the Court does show that the Chief Justice relied on citizenship as the only necessary criteria for that type of proceeding. Both Kapi J (as he then was) and Miles J found it necessary to go further and find �standing�. Kapi J says (at 295):

�As to what is sufficient interest, I would adopt the objective test laid down by Lord Denning in R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] 2 All ER 378. It is not possible to lay down a workable definition for all cases because each case is different. I would leave it to courts to develop the application of the rule in individual cases.

Applying this to the present case I find that Mr Somare would have standing. As a member of the Parliament he belongs to the governmental body which has been invested with the power of law-making by the Constitution. In relation to the issue in this case, Mr Somare has raised, amongst other things, that the law-making body has not complied with certain provisions of the Constitution in passing the Defence Force (Presence Abroad) Act 1980.

If anyone has interest in the matter it is the members of the legislature who make the laws.�

Miles J relies more on an implied discretion in the circumstances of the case. He says (at 310):

�To recognise the petitioner�s standing in the present proceedings is not to exaggerate the function or status of the Leader of the Opposition. But if the recognition of standing is a discretionary matter, as I believe it should be, it is of significance that the petitioner was the leader of some thirty-seven members of the National Parliament who opposed the Act when it was a Bill before the House. There was no way of course in which he could seek an opinion from the court under s 19 before the Bill passed into legislation, he not being one of the authorities authorized to do so by s 19(3).�

So then, of the three justices who considered the issue, Kapi J and Miles J considered something more than citizenship was required for locus standi in suits involving purely political considerations.

It is interesting however that Miles J quotes (at 309) Robinson v Western Australian Museum (1977) 51 ALJR 806 at 831:

�In Baker v Carr [1962] USSC 42; 369 US 186, 204 (1962) the United States Supreme Court stated that �the gist of the question of standing� is whether the plaintiff (seeking relief) has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination ...�

In that Australian case the plaintiff, Robinson, was a marine salvage contractor and claimed a private right to a wrecked ship, the �Dutch Gilt Dragon�, as finder. He had a personal stake for he had discovered a treasure trove.

I consider that distinction between private (and public) rights as is the plaintiff�s case here, and political rights needs to be drawn. I do not consider the plaintiff has a private right infringed for he has not shown that he has minerals or petroleum in or under his land.

The traditional English case dealing with standing in one who seeks declaratory or injunctive orders is Boyce v Paddington Borough Council [1902] UKLawRpCh 174; [1903] 1 Ch 109 which has been developed and applied in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 with dictum of Lord Diplock in that case applied since in Rickless v United Artists Corporation [1987] 2 WLR 945. Lord Diplock speaks of a right (of standing) in a litigant being a particular member of the public who suffers or is at risk of suffering particular direct and substantial damage other and different from that which was common to all the rest of the public. I am unable to see any particular risk of damage in this plaintiff by the application of s 7 and s 200 of the Mining Act (Ch No 195) or s 5 and s 83 of the Petroleum Act (Ch No 198) to him, nor have any private rights in the plaintiff to enjoy his land been affected. For those reasons the plaintiff lacks standing.

There is no merger of rights in a declaratory judgment. In the absence of intervention by an appropriate authority to seek a special reference to the Supreme Court under s 19(1) of the Constitution, I consider the State is but one of an unlimited class of persons having a real or tangible interest in the subject of the declaration sought. In those circumstances the State, while having a proper interest in the proceedings cannot represent the interest of other landowners having minerals or petroleum or those landowners having subsisting agreements with mining or petroleum companies or entitled to benefit under the respective Acts. Consequently it would be inappropriate to entertain this claim involving as it can, only this defendant having regard to the paramount right it seems, in the State, under existing legislation, to ownership of minerals and petroleum.

As I have said I am not satisfied this issue is ripe for resolution.

It is not such a case where I am bound to refer the issues to the Supreme Court. Those factors which I have dealt with must be found in the plaintiff�s favour before the Court looks to see whether a constitutional issue arises. I have not reached that point. For all of these reasons, including the plaintiff�s lack of locus standi, I strike out the proceedings.

Accordingly, I make orders in the terms of par 1 of the defendant�s motion of 2 November 1990.

On the question of costs?

(After hearing counsel for the State) I order each party to pay their own costs.

Proceedings struck out.

The plaintiff in person.

Lawyer for the State: Z Gelu.