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Kosie v Natto [2015] PGNC 287; N6263 (1 April 2015)

N6263

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 618 of 2010

BETWEEN:
BERNARD KOSIE – Chairman of USANO GIBU

GINU INCORPORATED LAND GROUP

First Plaintiff

AND:

USANO GIBU GINU INCORPORATED

LAND GROUP Inc. (Reg #6140)

Second Plaintiff

AND:
JOHN KAPI NATTO – Chairman of NAMO’APORO
LANDOWNER ASSOCIATION
First Defendant

AND:
NAMO’APORO
LANDOWNER ASSOCIATION
Second Defendant

AND:
RENDLE RIMUA – Secretary for
Department of Petroleum & Energy
Third Defendant

MINERAL RESOURCES
DEVELOPMENT COMPANY
Fourth Defendant

AND:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Hartshorn J.
2014: May 15^th

2015: April 1^st

TRIAL

Cases:
Don Polye v. Jimson Papaki & Ors (2000) SC637\
Mendepo v. National Housing Corporation (2011) SC1169
Michael Gene v. Hamidian Rad [1999] PNGLR 444
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317
PNG Forest Products Pty Ltd v. State [1992] PNGLR 85

Puri Ruing v. Allan Marat (2012) N4672
Rabaul Shipping Ltd v. Rupen (2008) N3289
Rimbao v. Pandan (2011) SC1098
Ronny Wabia v. BP Petroleum Development Ltd (2009) N4337
State v. Peter Painke [1976] PNGLR 210
State v. Tom Watinga [1994] PNGLR 255
Telikom (PNG) Ltd v. ICCC and Digicel (2008) SC906
Timbers (PNG) Ltd v. Valentine Kambori & Ors (2010) N4282
Wan Global Ltd v. Luxurflex Ltd (2012) SC1199

Counsel:

Mr. J. Abone, for the First and Second Plaintiffs
Mr. E.M. Waifaf, for the First and Second Defendants
Ms. I. Mugugia, for the Third and Fifth Defendants

1^st April 2015

1. HARTSHORN J: The plaintiffs’ are the Usano Gibu Ginu Incorporated Land Group and its Chairman. The subject land is a portion of land described as UDT 6 and the land contained in the First Phase of Usano/Aiio Road, which is located in the area comprised in Petroleum Development Licence 2 of the Kutubu Project (Land).

2. The second and first defendants’ are the Namo’Aporo Landowner Association Incorporated and its Chairman. The remaining defendants are the State and the Secretary for the Department of Petroleum and Energy (State defendants), and the Mineral Resources Development Company which was not represented at the hearing.

3. The plaintiffs’ seek declaratory relief to the effect that amongst others, that they be recognised as landowners of the Land because of a land mediation agreement, and that they warrant due recognition as landowners by the second defendant, to be able to receive benefits from the Kutubu Project.

4. The plaintiffs then seek amongst others, orders in the nature of mandamus directing that the first and second defendants hold a meeting to recognise the plaintiffs as landowners and members of the second defendant, to appropriate a percentage, and to instruct the State defendants as trustees to recognise and pay the plaintiffs’ royalties and other benefits from 1999.

5. A consequential order is also sought. Further, an order in the nature of prohibition or ‘restrictive’ is sought restraining the State defendants from releasing any benefits to the first and second defendants or affiliated member Incorporated Land Groups.

6. The first and second defendants oppose the granting of the relief sought. The State defendants submit that this court should make appropriate orders to compel the second defendant to consider, permit and grant membership to the second plaintiff as a member of the second defendant.

7. The plaintiffs rely upon s. 155 (4) Constitution for the majority of the relief sought and Order 14 Rules 9 and 10 National Court Rules and this court’s inherent jurisdiction for the restraining orders.

8. In the submissions of the plaintiffs, the final question that was posed was whether this court had the jurisdiction to hear this matter. I will deal with this question first.

9. At this stage it is appropriate to refer to this court’s inherent jurisdiction as a superior court of record established by the Constitution, to prevent abuse of the court process: State v. Peter Painke [1976] PNGLR 210. Abuse of process means any use of the process or procedures of the court for an improper purpose or in an improper way: Painke (supra); State v. Tom Watinga [1994] PNGLR 255. Further, it is settled law that the court has the power to dismiss proceedings which are an abuse of process: PNG Forest Products Pty Ltd v. State [1992] PNGLR 85, Ronny Wabia v. BP Petroleum Development Ltd (2009) N4337, Timbers (PNG) Ltd v. Valentine Kambori & Ors (2010) N4282 and can do so of its own motion similar to the Supreme Court: Don Polye v. Jimson Papaki & Ors (2000) SC637, Rimbao v. Pandan (2011) SC1098, Mendepo v. National Housing Corporation (2011) SC1169.

10. It was submitted by the plaintiffs that s. 155 (4) Constitution gives the Supreme and National Courts an inherent power to make orders in the nature of prerogative writs and such other orders as our necessary to do justice.

11. As to s. 155 (4) Constitution, I need do no more than reproduce the following passage from Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317, a decision of Injia DCJ (as he then was) in which in respect of s. 155 (4) Constitution, His Honour said that it:

“........is not the source of primary jurisdictional power. .........

Section 155 (4)confers jurisdiction on the Court to issue facilitative

orders in aid of enforcement of a primary right conferred by law, whether

such right be conferred by statute or subordinate legislation enacted under

the enabling statute: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma

More v UPNG [1985] PNGLR 401 at 402.”

12. The primary right to seek an order in the nature of mandamus and

prohibition is conferred by Order 16 Rule 1 National Court Rules. That Rule

provides that such an order shall be made by way of an application for

judicial review in accordance with Order 16 National Court Rules.

13. Here, the plaintiffs have not made application for judicial review in

accordance with Order 16 National Court Rules. This proceeding was

commenced pursuant to Order 4 National Court Rules.

14. As the plaintiffs have not made application for judicial review in

accordance with Order 16 in respect of their applications for orders in the

nature of mandamus and prohibition, those applications should be dismissed

as an abuse of the process of the court.

15. As to the declaratory relief sought, the plaintiffs’ are amongst others,
seeking to enforce a land mediation agreement - a purported Local Land

Court Order. To determine whether to enforce the agreement/order, this

court must review it and the circumstances concerning its purported making.

Notwithstanding that the declaratory relief sought by the plaintiffs does not

state that they seek an order in the nature of a prerogative writ such as

mandamus or prohibition, when the purpose and substance of the proposed

relief are considered, in addition to the language of the proposed relief, it is

my view that orders in the nature of a prerogative writ are sought.

16. As orders in the nature of a prerogative writ are sought, but application

has not been made pursuant to Order 16 National Court Rules, the

application for the relief sought is an abuse of process. In this regard I refer

to Michael Gene v. Hamidian Rad [1999] PNGLR 444, Telikom (PNG) Ltd

v. ICCC and Digicel (2008) SC906, my decisions in Wan Global Ltd v.

Luxurflex Ltd (2012) SC1199 and Puri Ruing v. Allan Marat (2012) N4672,

and the decision of Lay J. in Rabaul Shipping Ltd v. Rupen (2008) N3289.

17. For the above reasons as I am satisfied that all of the relief sought is an

abuse of the process of this court, this proceeding should be dismissed.

Orders

18.

1. this proceeding is dismissed;
2. the plaintiffs’ shall pay the costs of the first and second defendants of and incidental to the proceeding;

100. time is abridged.

___________________________________________________________

Parkil Lawyers: Lawyers for the First and Second Plaintiffs
Edward M. Waifaf Lawyers: Lawyers for the First and Second Defendants
Office of the Solicitor General: Lawyers for the Third and Fifth Defendants