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Ekanda v Potape [2012] PGNC 276; N4930 (10 December 2012)

N4930

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 706 OF 2012

BETWEEN:

SIMON EKANDA and 31 ORS, CHIEF and LEADERS OF THE TUGUBA TRIBE whose names are annexed to the Writ of Summons as schedule "A" for and on behalf of themselves and the members of the Tugube Tribe and their respective Clans
First Plaintiffs

AND:

HON. FRANCIS POTAPE, MINISTER FOR DEPARTMENT OF PETROLEUM AND ENERGY
First Defendant

AND:

THE INDEPENDENT STATE OF the PAPUA NEW GUINEA
Second Defendant

AND:

ESSO HIGHLANDS LIMITED
Third Defendant

Waigani: Hartshorn J.
2012: 6th & 10th December

Application to Dismiss proceeding for non compliance with Claims By and Against the State Act – abuse of process – Order 12 Rule 40 National court Rules

Facts:

This is an application to dismiss the proceeding as an abuse of process for the failure by the plaintiffs to comply with s. 5 Claims By and Against the State Act.

Held:

The plaintiffs have not complied with the requirements of s. 5 Claims By and Against the State Act. Consequently this proceeding is an abuse of process and pursuant to Order 12 Rule 40 National Court Rules, is dismissed.

Cases cited:

Paul Tohian v. Tau Liu (1998) SC566
Mision Asiki v. Zurenuoc, Provincial Administrator (2005) SC797

Counsel:

Mr. E. M. Waifaf, for the First and Second Defendants
Mr. K Imako, for the Third Defendant

10th December, 2012

1. HARTSHORN J: This is an application to dismiss the proceeding as an abuse of process for the failure by the plaintiffs to comply with s. 5 Claims By and Against the State Act (Claims Act). This application is made by the first and second defendants and is supported by the third defendant. I allowed the application to be heard in the absence of representation on behalf of the plaintiffs as the motion containing the application was adjourned to its hearing date when counsel for the plaintiffs was present and appearing on their behalf. I am satisfied therefore that the plaintiffs through their counsel are aware of the hearing date and time of the motion. I am also satisfied that the plaintiffs' lawyers were served with the motion.

2. The plaintiffs filed a claim on 5th July 2011. The relief sought in the statement of claim is for amongst others, declarations that the Kokopo Umbrella Benefit Sharing Agreement dated 15th May 2009 (UBSA) is illegal, void and of no effect and that the Hides PDL1 Licensed Based Benefit Sharing Agreement of 5th December 2009 (LBBSA) is illegal, invalid, void and of no effect. Declarations are also sought that the transfer of the Petroleum Development Licence to the third defendant is illegal, invalid and void, that no development Forum was held and that provisions of the Oil and Gas Act have not been complied with.

3. The first defendant was the then Minister for Petroleum and Energy and the second defendant is the State. Consequently the defendants contend that notice of an intention to make a claim against the State must be given pursuant to s.5 Claims Act.

4. It is pleaded in paragraph 6 of the statement of claim that such notice was given by letter dated 3rd June 2010. It is not pleaded when that letter was actually given or how it was given or to whom.

5. The evidence in support of this application is that of Mr. Eava Geita who at the time of swearing his affidavit was the Acting Solicitor General of Papua New Guinea. He deposes amongst others, that following a perusal of the case management system at the Solicitor General's Office, although he was able to search the records concerning this proceeding, there was not recorded in the incoming or outgoing correspondence records any notice pursuant to s. 5 Claims Act from the plaintiffs.

Law

6. Section 5 Claims Act provides amongst others, that no action to enforce any claim against the State lies against the State unless notice in writing of an intention to make a claim is given. A notice shall be given within a period of six months after the occurrence out of which the claim arose or where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach.

7. Pursuant to the Supreme Court case of Mision Asiki v. Zurenuoc, Provincial Administrator (2005) SC797, the notice requirements of the Claims Act apply to actions founded on contract or tort or a breach of constitutional rights but not to actions seeking orders in the nature of prerogative writs. Further, the requirement to comply with s. 5 Claims Act has been held to be a condition precedent in the Supreme Court case of Paul Tohian v. Tau Liu (1998) SC566.

8. Notwithstanding that the majority of the relief sought in the statement of claim is for declaratory relief, that relief is in essence in respect of an action that is founded in contract or tort. This is evident by amongst others, the allegations that the UBSA is illegal and that the plaintiffs have suffered loss and damage. In this regard I note that damages for trespass, environmental destruction and pollution are sought. Consequently, I am of the view that notice pursuant to s. 5 Claims Act is required to be given.

9. Here, the evidence of Mr. Geita is uncontested concerning whether notice of intention to make a claim was given. I note further, that even if such a notice was given at the date of the letter pleaded in the statement of claim (which is not what is pleaded), such a notice would not be within time, at least in regard to the claim arising out of the UBSA.

10. In all of the circumstances, I am satisfied that the plaintiffs should have, but have not complied with the requirements of s. 5 Claims Act. Consequently this proceeding is an abuse of process and pursuant to Order 12 Rule 40 National Court Rules, should be dismissed.

Orders

11. The Orders of the Court are:

a) This proceeding is dismissed,

b) The plaintiffs shall pay the costs of the first, second and third defendants of and incidental to this proceeding,

c) Time is abridged.
_____________________________________________________________
Steeles Lawyers: Lawyers for the Plaintiffs
Greg Manda Lawyers: Lawyers for the First and Second Defendants
Allens Lawyers: Lawyers for the Third Defendant