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Ape, Spokesperson and Member of the Yala Clan v Giheno, Minister for Mining & Petroleum [1996] PGNC 61; N1498 (18 December 1996)

Unreported National Court Decisions

N1498

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 531 OF 1996
BETWEEN
KOMEALIA APE SPOKESPERSON AND MEMBER OF THE YALA CLAN - PLAINTIFF
AND
JOHN GIHENO - MINISTER FOR MINING & PETROLEUM - FIRST DEFENDANT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - SECOND DEFENDANT
AND
CHEVRON NIUGINI PTY - THIRD DEFENDANT
AND
BARACUDA PTY LTD (NO. 2) - FOURTH DEFENDANT

Mount Hagen

Lenalia AJ
18 December 1996

CIVIL JURISDICTION - Injunctions - Interlocutory injunctions - Where applicable - Preservation of status quo - Proof on the balance of convenience.

CIVIL JURISDICTION - Administrative decision - Whether National Court can interfere when other venues in that administrative process has not been exhausted.

Cases Cited

Robinson v National Airlines Commission [1983] PNGLR 476

Soso Tomu & Ors v The Independent State of Papua New Guinea & Ors - Unreported OS 83 of 1996

Counsel

R Riddell for the 3rd & 4th Defendants

A Kwimberi for Applicant

INTERLOCUTORY JUDGEMENT

18 December 1996

LENALIA AJ: By a motion filed on 10th of December 1996, the Plaintiffs sought a prohibitive order to restrain the Defendants from signing an agreement with the landowners of Gobe Main and Gobe South East projects to commence work until the Plaintiff’s application for review of the Lands Titles Commission’s decision of 29th February 1996 has been reviewed. They also sought a mandatory order to force the Second Defendant to discharge its duties to provide funds for the review of the Plaintiff’s application lodged on 17th May, 1996 with the Chief Land Titles Commissioner. I granted leave for the Plaintiff to dispense with requirement for service seeing it was urgent and since the proposed signing of the agreement was scheduled for the next day and secondly I made an ex-parte restraining order against all parties involved.

By another motion filed on 17th of December 1996, the 3rd and 4th Defendants through their lawyer sought orders to set aside the ex-parte restraining orders that were obtained on 11th of December. The 3rd and 4th Defendants sought the following order:

1. That the time for service of the motion be abridged.

2. That order No. 1 made by this Honourable Court in the proceedings on 11th of December, 1996 and entered the same date be set aside.

3. That paragraph 1 of the Originating Summons filed on 10th December 1996 be struck out.

4. That the Third Defendant be removed as a party to these proceedings.

5. That the Plaintiff pay the Third Defendant’s costs of this motion.

6. Such further orders as the Court sees fit.

7. That the time for entry of these orders be abridged to the date of settlement by the Assistant Registrar which shall take place forthwith.

In support of their application, the applicants by their lawyers filed affidavit evidence from Mr Patrick James Gillies, the Deputy Project Manager of the Gobe Project who alleges that the 3rd Defendant holds interest in various forms of licences which were issued under the Petroleum Act including a 25% Petroleum Prospecting Licence “PPL” 161 in the area commonly known as Gobe Main including portions of the Oil Field generally known as “South East Gobe”. It appears from their evidence that the 3rd Defendant is amongst other interest holders of PPL 161 of which Chevron is the operator pursuant to an “On Shore Operating Agreement: dated 7th March 1989. It is part of the 3rd Defendant’s responsibility as operator of PPL 161 to protect the legal rights and interests of interest holders of PPL 161.

By virtue of Clause 6.7 of the On Shore operating Agreement, Chevron as operator is also given responsibility to prosecute, defend and settle claims and litigants with third parties only if it is so required in order to safe guard the parties’ interest under the licence. A declaration has been made by the 3rd Defendant pursuant to S. 30 of the Petroleum Act with certainty that petroleum is or has been located both in PPL 161 and PPL 56 an adjoining PPL which contains the balance of South East Gobe field. The parties to PPL 161 and PPL 56 are proposing to undertake a joint development of both Gobe Main and South East Gobe Oil Fields.

In reply to the latter motion, the Plaintiff’s representative asserts basically the same thing. His evidence is that, his clan has been a party to the determination handed down by the Land Titles Commission on the 29 of February, 1996. The Land Titles Commission decided that the Plaintiff and the Yala Clan are not parties to the claim as they are not land owners of Gobe Main and South East Gobe Oil Fields.

From the evidence of the Plaintiff, it is clear that his clan was a party to the proceedings before the Land Titles Commission hearing and they have applied for a review of that decision on a letter to the Chief Land Titles Commissioner dated 17th May 1996.

A news paper clipping in Post Courier - page 19 dated 9th August 1996 was attached and marked “B” to support the view that the Chief Land Titles Commissioner has declined to set up a review due to lack of funds. By a letter dated 28 June 1996 the Plaintiff’s lawyer wrote a letter to the First Defendant copied to all other defendants advising that no further commitments should be made in relation to Gobe Main and South East Gobe Oil Fields as they were an aggrieved party. These correspondences seemed to have fallen on deaf ears as no response were made by anyone of those concerned.

In support of the Affidavit field by the Plaintiff the lawyer for the Plaintiff argued that their client has an arguable case before the Chief Land Titles Commissioner and therefore, the court should not disturb the orders made on 11th of December 1996. I note that the Plaintiff and his clan have a right to review pursuant to S. 36 of the Land Titles Commission Act 1962 as amended to date. The Plaintiff has also complied with S. 34 of the Act providing that an aggrieved party may within ninety days after the decision apply to the Chief Commissioner for a review of a decision. This is the reason why the Plaintiff says that the orders I made on the 11 of this month should not be set aside.

In reply to the submission by the lawyer for the Plaintiff, Mr Riddell submitted that the Plaintiff has no interest in the matter and by the decision of the Land Titles Commission handed down on the 29 of February, the Plaintiff and his clan have no standing. I have carefully read the evidence of all parties and considered them. I have also carefully considered submissions by both lawyers on behalf of their clients. The application by the Plaintiff was for restraining orders. It is trite law that the interlocutory injunctions are discretionary remedies. Two important issues need to be satisfied by a party before the Court can exercise its discretion. The first being that the Plaintiff has to show that he has at least some legal status in a dispute and that he has an arguable case to the right he seeks to protect by the injunction. This means that he must show by evidence that there is a serious issue to be tried and that it is an appropriate case for an injunction to issue. It is the duty of this Court to balance whether the imposition of that restraining order is reasonable and necessary to protect the Plaintiff from some irreparable harm or whether damages would be sufficiently recompensed. I must also consider the possibility of harm that would be likely caused to the Defendants and the Plaintiff ability to meet an order in damages should they fail in their claim to the land in question. The second issue is whether or not on the balance of convenience an interlocutory injunction would be an appropriate remedy and in particular in relation to the administrative decision made by the Land Titles Commission. The reasons for issuing an interlocutory injunction were spelt out by the Supreme Court in Robinson v National Airlines Commission [1983] PNGLR 476. The court said at page 480:

“The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action ‘where other factors appear to be evenly balance it is a counsel of prudence to take such measures as are calculated to preserve the status quo’, per Frost CJ in Mount Hagen Airport Hotel Pty Ltd v Gibbs and Anor [1976] PNGLR 316. No real principles can be laid down as towhen they should or should not be granted except they are granted when just or convenient” and what falls within that description must differ substantially from case to case. As Lord Denning M.R. said in Hubbard v Vosper [1972] 2 WLR 380 at 396:

‘In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of claim but also to the strength of the defence and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead. The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules.’

What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success and that he has property or other interests which might be jeopardised if no interlocutory relief were granted. Then it becomes a matter of seeing if, in all the circumstances of the case the court should nonetheless exercise its discretion by declining to issue an interlocutory injunction. In order to determine this, the court will have regard to such factors as the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches and delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, and most importantly, hardship and the balance of convenience: see Meagher pars 2167-2168.”

The Plaintiff’s assertion is in question to a decision by the Land Titles Commission in relation to ownership of the portion of lands now commonly referred to as Gobe Main and South East Gobe Oil Fields situated in the Southern Highlands of Papua New Guinea. I note from the Lands Titles Commission Act that the Plaintiff has a right to apply for a review which they have already done. The Chief Commissioner is obliged under S. 36 of the Act to conduct a review of the decision of the Commissioner and he may either confirm or set aside a decision. I also note that the Act also provides for a right of Appeal to the National Court what used to be the Supreme Court, see S. 38.

It is submitted on behalf of the 3rd and 4th defendants that, the Plaintiff has no right whatsoever under the Land Titles Commission determination handed down on the 29 of February 1996 because they have lost that right through that determination. I do not agree with the lawyer for the Applicant on this view on the basis that if I were to accept that proposition it would mean suppression of the Plaintiff’s right whose rights are protected by the Land Titles Commission Act for review and eventually for appeal: see SS. 34, 36 and 38 of the Land Titles Commission Act 1992 as amended to date. The case of Soso Tomu and Ors v The Independent State of Papua New Guinea and Ors Unreported OS 83 of 1996 was cited by Mr Riddell to support the proposition that, the Plaintiff must have “locus standi” in order for them to invoke this Court’s jurisdiction to seek relief. I do not read that case this way.

Although it also arose out of a Land Titles Commission determination, a host of declaratory orders were sought questioning the legality of S. 5 and 83 of the Mining Act 1992 and were said to be contrary to SS. 53 58 of the PNG Constitution. Two restraining orders were also sought, the first to restrain the government from issuing a licence to the developers and secondly, to restrain developers from dealing in any way with the benefits of compensation until the determination was reviewed. The Plaintiffs in Soso Tomu’s case acknowledged to that Court that, their claim required interpretation or application of provisions of the Constitution which rests solely with the Supreme Court, see S. 18 of the Constitution. The application before me on 11th of December was only to restrain the parties from signing the agreement until the review was heard.

My view is that there is no arguable case before this Court as this is a claim in relation to land dispute already determined by the Land Titles Commission which decision is subject to review in accordance with administrative procedures set out in the Land Titles Commission Act itself. I suppose that once the Chief Land Titles Commissioner has received an application for review the parties to such dispute are statutory barred from further dealings in any way as a decision is subject to review which review is also subject to appeal pursuant to S. 38 of the Act. It is my view that the Plaintiff has not exhausted all the means to seek what they want through what is provided for under the Land Titles commission Act. A proper approach to the Chief Land Titles Commissioner where he or she refuses to expedite a review under the Act because there are no funds is may be for the Plaintiffs to apply for an order in the nature of mandamus for the Chief Commissioner to expedite a review so that the question for ownership can be quickly settled. I must therefore agree with the lawyer for the 3rd and 4th Defendants that, the Plaintiffs do not have standing in this Court and I must set aside the orders I issued on the 11 of December 1996. The Plaintiff shall meet the costs in this motion to be taxed if not agreed.

Lawyer for Plaintiff: Paulus M Dowa Lawyers

Lawyer for 3rd & 4th Defendants: Gadens Ridgeway Lawyers