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Umbrella Hides PDL 7 Association Incorporated v Pok [2020] PGNC 448; N8627 (30 October 2020)

N8627

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 225 OF 2019

BETWEEN:
UMBRELLA HIDES PDL 7 ASSOCIATION INCORPORATED
First Plaintiff

AND:
HURIBA ANDAGO TUGUBA KAJUMBA AND TAMBURUMA TRIBE
Second Plaintiff

AND:
ALOUSIS PANGALI OF HONAKA PARIMA KUJELE CLAN
Third Plaintiff

AND:
ERIC HAWAI AKO OF TUGUBA NGUANE TRIBE
Fourth Plaintiff

AND:
HALUNI HIMUNI HMOGO OF KELA CLAN AND TUGUBA NGUANE TRIBE
Fifth Plaintiff

AND:
THOMAS LAMBI OF TAMBURUMA TRIBE
Sixth Plaintiff

AND:
TOLAI AWE OF TUGUBA PATE CLAN
Seventh Plaintiff

AND:
HONORABLE DR FABIAN POK MINISTER FOR PETROLEUM
First Defendant

AND:
LOHIAL NUAU, THE ACTING SECRETARY FOR DEPARTMENT OF PETROLEUM AND ENERGY
Second Defendant

AND:
DAIRI VELE, SECRETARY OF TREASURY DEPARTMENT OF TREASURY
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2020: 21^st October

PRACTICE & PROCEDURE – Judicial Review & appeals – Application for discharge of Interim Orders – change of circumstances – National Court Rules No Basis for Order – balance discharged – Interim Orders discharged – cost follow event.

Cases Cited:

Philip v Tiliyago [2019] PGSC 17; SC1783

Mali v State [2002] PNGLR 15

Pato v Kopyala [2017] PGNC 400; N7279
Counsel:

No appearance for all Plaintiffs
S. Tiankin, for all Defendants

RULING

30^th October, 2020

1. MIVIRI, J: This is the Ruling on the defendant’s notice of motion pursuant to Order 12 Rule 8 (5) of the National Court Rules, “the Rules” to discharge the interim restraining orders of the 14^th November 2019 or alternatively a variation of those same orders also pursuant to the same order and rule.
   
2. Leave was granted to the defendant to move because when the parties appeared on Tuesday 13^th October 2020 inter party it was ordered that the motion of the defendants will be heard on 21^st October 2020 at 9.30am. There was neither appearance by the plaintiffs nor any explanation to other than to hear the motion set. This is the ruling following.
   
3. Firstly, the evidence relied on is the affidavit of Sandy Tiankin sworn of the 19^th February 2020 filed the 21^st February 2020 of Patrick Dabugo sworn and filed the 18^th November 2019 and lastly that of Andy Hamaga sworn and filed also of the 18^th November 2019.
   
4. This evidence establishes materially that the plaintiff association is not landowner represented association nor is it representative of the clans but individual clan members who do not have the consent of each respective clan to bring this action. By Order 5 rule 13 of the Rules the action is not properly before the court and therefore any consequences of the action will not entail the parties named in the proceeding. Representative actions at law means the plaintiffs named must have standing to bring the cause of action here. It would amount to an abuse of process where that is not the case. And the evidence that has come out here shows that the plaintiffs by Order 5 Rule 13 of the rules are not properly before the court. It means their action is irregularly before the court and will suffer dismissal as in Philip v Tiliyago [2019] PGSC 17; SC1783 (3 April 2019). Examining the proceeding with its originating documents for the purposes of the argument advanced it is clear that there is no authority assigned for the action instituted by the second to the seventh plaintiffs.
   
5. Further factor that is flawed in the plaintiff’s cause is that the orders derive from erroneous legal basis because the notice of motion filed on the 31^st October 2019 was defective on the face there is no order 16 Rule 3A. There was no jurisdictional basis upon which it could linger and survive or produce. The subject order also covers areas which do not have any dispute with the defendants. Because the entire area is made of 6 regions and 5 out of the 6 are not in dispute. They must be released from the tentacles of the restraint to be able to get what is due to them. And Majority of them 5 out of the 6 are waiting to receive royalties and equity benefits due.
   
6. Underlying is that this is a major project of prominence to the State and to all immediately within the vicinity of Hides PDL 7. Because the economic benefits due from it for all is such that actions at law instituted must comply with the law and the rules. This is not to pre-empt the outcome of the originating summons filed but the naming of the parties as plaintiffs must be within the bounds of the rules of court. Parties appearing as representing a group must have that properly set out. Rights are in law and follow from the application of law. Individuals must be stopped from pursuing individual action where it is clearly a matter of the clan or tribe because land in Papua New Guinea is not individually owned but communally and should be properly set out either by a properly authorized action derived in accordance: Mali v State [2002] PNGLR 15 (3 April 2002).
   
7. The challenge here to dismantling the interim orders of the 14^th November 2019 which are in the following terms; That the Department of Petroleum and Energy and the Minerals Resource Development Corporation and any related office including the Defendants be restrained from taking any further steps to finalize the actions taken by the Minister for Petroleum and Energy, the subject of these proceedings until matter is settled or heard and determined.
   
8. The actions taken by the Minister was that he made a determination as a result of the Land Owner beneficiary Identification Exercise (LOBID) in January 2019. Because PDL 7 is made up of 6 regions/Blocks; Parepare, Keteranda, Timala Kangulu, Middle region and Tawanda Takuja. There is no material to the contrary apparent or identifiable to deviate the application made. In law actions must be justified before the court by those who institute it. Here despite notice including date of hearing there is no appearance by the Plaintiffs by their counsel. There are very serious matters which have come out as a result of this hearing for the interim orders to be set aside. These must be heard interparty. Including primarily as to whether or not the action is properly before the court or not. Because pertinent is the determination by the Minister for land owner beneficiary Identification exercise which must be properly done so what is due from the project rightly in law goes to those due it.
   
9. There is clear evidence of a change in circumstances from the initial when the order was obtained particulars set out above. And the relative conduct of the parties particulars set out above does not necessitate the continuation of the interim restraint. And this is clear with the disclosure that the plaintiffs lacking standing in the manner set out above. But opportunity is given that they justify or else the defendants are at liberty to apply to dispose. And it is clear there is no Order 16 Rule 3A. Hence the order cannot stand in law: Pato v Kopyala [2017] PGNC 400; N7279 (28 July 2017).
   
10. In the totality the motion to set aside the interim orders are granted as pleaded. The orders of the court are:
    
    • (1) The application of the defendants is upheld.
    • (2) The interim orders of the 14^th November 2019 is hereby set aside forthwith.
    • (3) The matter is set for the directions hearing Monday 9^th November 2020 at 9.30am.
    • (4) Parties are directed to assist whether the action in its present form can be maintained within rules of court.
    • (5) Costs follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

PNG Legal Services: Lawyer for the Plaintiff Applicant

Office of the Solicitor General: Lawyer for the Defendants