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Foe Association Inc v Yawari [2023] PGNC 349; N10423 (25 July 2023)

N10423

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 259 OF 2022


FOE ASSOCIATION INC.
First Plaintiff


And
JOHNNY YAWARI CHAIRMAN FOR FOE ASSOCIATION INC. AND ALSO CHAIRMAN OF DAMO LAND GROUP INC.
Second Plaintiff


V


DAVID MANAU-SECRETARY FOR DEPARTMENT OF PETROLEUM & ENERGY
First Defendant


And
HON. KERENGA KUA, MP, MINISTER FOR PETROLEUM & ENERGY
Second Defendant


And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


And
FOE PDL 2 RESOURCES OWNERS ASSOCIATION INC
Fourth Defendant


Waigani: Miviri J
2023: 20th & 25th July


PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion – Application for Dismissal of Proceedings – Order 16 Rule 13 (13) (2) (a) & (b) & Order 12 Rule 40 (1) NCR – Breach of Orders – Competency of Proceeding – Standing Of Plaintiffs – Consent Orders All Parties to – Effect Of In Law – Binding On All Parties to – Non Compliance of – Proceedings In competent –Abuse of Process – Materials relied sufficient – balance discharged – Motion granted – Cost follow event.


Cases Cited:
Pelego v Pok [2021] PGNC 50; N8745
Wolutou Land Group Incorporated v Pok [2021] PGNC 290; N8998
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Somare, Re [1981] PNGLR 265
Pruaitch v Manek [2019] PGSC 123; SC1884
Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC906
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8
Attorney General v Hamidian-Rad [1999] PNGLR 278
Takori v Yagari [2007] PGSC 48; SC905


Counsel:
J. Nandape, for Plaintiff
R. Uware, for First, Second, Third Defendant
L. Kandi, for Fourth Defendant


RULING


25th July 2023

  1. MIVIRI, J: This is the ruling on the first, second, and third defendants, notice of motion of the 27th June 2023, invoking Order 16 Rule 13 (13) (2) (a) and (b) and Order 12 Rule 40 (1) of the National Court Rules underpinning both prayers, that the proceedings herein are incompetent and discloses no reasonable cause of action amounting to abuse of the process of court. And the plaintiffs have failed to comply with the Court Orders issued by this Court of the 12th January 2023 and the 06th March 2023.
  2. Further that the First Plaintiff, Second Plaintiff, and additional Plaintiffs listed in Court Order dated the 06th March 2023 in paragraphs 2, 3, 4, 5, and 6, lack standing and as such the proceeding herein is incompetent, and ought to be dismissed as disclosing no reasonable cause of action, being frivolous, or vexatious, or an abuse of court process, pursuant.
  3. He produces and pursues reliance on a number of affidavits, but materially of four principal deponents which are:
  4. He is supported by the fourth defendant who also relies on the same four affidavits including further four of;
  5. Primary and common by these affidavits is that the first Plaintiff is an association, Foe Association Incorporated on 20th December 1995. Whilst the second Plaintiff is a natural person and the Chairman of the Foe Association Incorporated (FAI). And the plaintiff filed an originating summons of the 09th December 2022 with all other documents required for leave application for Judicial review to challenge the decisions of the Second Defendant (Minister). That is the Ministerial Determination published in the National Gazette No, G878 on the 25th November 2022. In that determination the Minister exercised his powers pursuant to section 169 and 170 of the Oil and Gas Act 1998 (as amended) as to who are entitled to receive royalty and equity benefits from the Kutubu oil Project PDL2 and PNG LNG project.
  6. That this was as to the formular, or method used by the First Defendant the Secretary with the Department of Petroleum and Energy to assist the Second Defendant the Minister by a Landowner Beneficiary Identification Program (LOBID) administratively which occurred in 2019 and 2022. And genuine and legitimate landowners from the Graticular Blocks 2152, 2079, 2225, and 2298 participated meaningfully in the LOBID.
  7. David Manau is the Secretary of the Department of Petroleum and Energy. He deposes that, “There two main ethnic tribes identified in Kututbu PDL 2 as Customary Landowners whom are impacted and affected and entitled to receive royalty and equity. These are the Fasu and Foe Tribes. The Fasu Tribe are most impacted and affected Landowners by virtue of their landowning Rights with majority of their land area covered by eight of the twelve Blocks. These include blocks 2005, 2006, 2077, 2078, 2150, 2151, 2224, 2297 and were allocated 90% benefit in the sharing arrangement. The Foe ethnic tribe’s customary land area are covered by Blocks 2079, 2152, 2225, 2298, hence were awarded 10%. These percentage were shared equally amongst all the ILG that made up these two ethnic tribes.
  8. Royalty and Equity benefits from PDL2 are shared per 90% and 10% to the Fasu and Foe tribes respectively, and these are further distributed equally to all the relevant incorporated land Groups (ILGs) within their respective tribal groups.
  9. With the arrival of PNG LNG Project there have been concerns and complaints over the years, from Clans residing within the PDL2 licence area, who were, to a greater degree, directly impacted and affected by the project activities. Those concerned and affected clans argued that they should be allocated a slightly higher percentages of the benefit sharing than those who are less impacted, those who are not impacted at all and those clans residing outside the PDL2 license area. Hence, the LOBID exercise was carried out in 2019 and early 2022 to address this.
  10. The Ministerial Determination under National Gazette No. G878, dated 25th November 2022 captured all the clans without missing or omitting any clan and without adding any new clan. The Ministerial Determination further categories the Foe clans into correct tribal categories and regions; consequently, allocating a 70% share to clans residing within the PDL2 license area and a 30% share to the ones residing outside of the License area. Annexure “C is the Ministerial Determination published in the National Gazette on November 25th 2022.
  11. There are twelve (12) graticular blocks that comprises PDL2 License area. The Foe tribe are spread across the region of four (4) graticular blocks. That is in particular; Block 2079, Block 2152, Block 2225, and Block 2298. The Fasu tribe is spread across the majority of the eight (8) graticular blocks.
  12. Although the Second Plaintiff is of Foe background, he does not own customary land within any of the four (4) graticular blocks nor does his clan as shown by the Map. His village is Gesege and situated well outside of the four (4) blocks that make up the Foe region of PDL2. Therefore, he has no legal standing to be pursuing this matter in the first place.
  13. Finally, the Second Plaintiff has failed to comply with Court’s strict compliance orders of 12th January 2023, of serving Defendants the necessary Documents, which includes additional affidavit, list of additional Plaintiffs, terms of any proposals for out of Court settlement, and the orders of the 12th January 2023.”
  14. The material particulars of the second affidavit of this witness sworn of the 28th June 2023 filed the 29th June 2023, affirms the earlier affidavit and re affirms that the LOBID exercise was carried out, in which none of the clans were omitted nor were there any new clans added into the benefit sharing. But instead, the Clans were simply reclassified into specific regions of their landowning localities and benefits allocated to them accordingly. The Ministerial Determination of 25th November 2022 Gazettal No. G878 maintains all current benefitting clans, but, reclassified all of them consequently allocating a 70% share to clans residing within the PDL2 License area and a 30% share to the ones residing outside of the License area. This is a more equitable sharing arrangement in the spirit of the Oil & Gas Act 1998.
  15. Furthermore, first Plaintiff has no legal standing as an incorporated land Group as per the Land Group-Incorporation (Amendment) Act 2018 as they have not provided any evidence of them re-registering their incorporated Land Group.” This is a fundamental requirement of law that has not seen any rebuttal evidence from the plaintiffs that it has been complied with. The effect is that there is no standing in law on the part of the plaintiffs. They cannot come to equity without heed of the law. Because this evidence is not any different from the affidavit of Johnny Yawari sworn of the 09th December 2022 filed that same day. He confirms in all material particulars what is deposed to by the defendant’s evidence set out above. It means that the plaintiffs agree that there is no dispute to the facts and therefore the material particulars of the evidence. So applied to the discussion set out above, it gives no ground to save against the motion of the defendants.
  16. Because in similar set of circumstances involving section 169 and 170 of the Oil and Gas Act, this Court in Pelego v Pok [2021] PGNC 50; N8745 (8 February 2021) dismissed that action. And that decision was followed yet again in Wolutou Land Group Incorporated v Pok [2021] PGNC 290; N8998 (6 August 2021). The ministerial determination was discretionary. It was not wrong where natural justice was observed and could not be ultra vires where process of law as here was followed. There could not be any breach particularly in the light of the orders of this court which orders are both set out above.
  17. It strong supported by Russel Uware, Lawyer affidavit sworn and filed of the 27th June 2023. Relevant particulars of which are the annexures “A” & “B” the Court Orders of the 12th January 2023, and the 06th March 2023 which were served on the office of the Solicitor General by the Lawyers for the Plaintiff. The former is issued by this Court presided by the Deputy Chief Justice Kandakasi. Which is in the following terms:

It is ordered of the 12th day of January 2023 and entered 27th January 2023.


  1. The second order of the 06th March 2023 filed of the 29th March 2023 is by consent and is in the following terms:
  2. The plaintiff has no material filed in reply to this motion for dismissal by the defendants. And the defendants are moving upon the orders of this Court that were issued as dated set out above. There are two sets of orders, firstly of the 12th January 2023, and secondly of the 06th March 2023 which were served on the office of the Solicitor General by the Lawyers for the Plaintiff. They served the orders on the Solicitor General but have not filed material in accordance to depict that the parties have now included the persons who have been now given the status of plaintiffs by that order. This is the consent order by all parties as of the 6th March 2023. None of the plaintiffs ordered to be included in that order are now included depicting by the plaintiffs. Orders consented to by the parties the plaintiffs inclusive who have opted not to execute and implement what is due on their part to satisfy.
  3. As if that is not enough the Court Orders of the 12th January 2023 do not have evidence in favour of the satisfaction on the part of the plaintiffs in particular order number two as to filing appropriate document confirming them as either plaintiffs or defendants as the case might be. This is clear evidence because there is no change in the parties named before the Court by documents filed to give effect to that order by the Plaintiffs. There is nothing on the record of the file in court to satisfy this order on the part of the plaintiffs.
  4. Nor is there any evidence filed by the plaintiffs as of the 03rd February 2023 sustaining the issue as to standing in their respective cases as ordered by the Court to resolve that issue. It is an open issue order number (iii) still so without any evidence to the contrary in favour of the plaintiffs. It will by that fact become one of the issues for determination in this matter. And the defendants have not urged out of a vacuum. They are simply pulling the plaintiffs to task over the orders tying both sides of the dispute to amicably assist the Court to determine this matter. This includes the open issue of Standing that has not been closed by the plaintiffs to read in their favour. The material that has been filed by the defendants clearly set out that the plaintiffs have no standing in this matter to challenge the Ministerial Determination set out above by the evidence of Secretary David Manau above.
  5. There are no plaintiffs’ affidavits filed in accordance with Order (iv) of the Court order set out above of the 12th January 2023. And it has not been explained why this is the case on the part of the plaintiffs. There is no application to vary that order supported by material filed so as to seek variation in accordance with PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010) by the plaintiffs. It is overt that there is a clear breach of the court order number iv by the plaintiffs.
  6. Order (v) and (vi) have not been implemented by the plaintiffs. There is no material depicting that settlement is in sight against the material that the Defendants have filed laying out the basis for the Ministerial Determination affidavit of Secretary David Manau above with the determination. The basis the defendants have acted as they have done in the matter. Gauging it leaves no room in the standing of the plaintiffs in the matter. On the level of Judicial review and let alone any cause of action in law, they really do not have standing, or locus standie.
  7. It would amount to an abuse of process to maintain an action as is the case here where the plaintiffs have no standing to maintain Somare, Re [1981] PNGLR 265. There is no legal basis to sustain and maintain the action. It has no nexus to the allegation made in law by the plaintiff, Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019). And it would be not wrong for this Court to follow cemented out by the seminal decision further of Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008).
  8. The way or the process that the plaintiff has sought to run Judicial review without standing does have a heavy burden against maintaining on the record of the court his proceedings. Because he has not sought the hand of equity in that he has found favour with the law, but rather he has run against the law. And that is not in accordance with Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. And given in my view he does not make out the remedies due, because the facts are not there to invoke the discretion to give him the remedies he seeks, Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). He has no pleading giving heed to the orders of this Court to maintain his cause of action intact. Without satisfying the orders of this Court, the action is without the legs to be allowed in. What is here is abuse that cannot be tolerated nor allowed to run its course. It is in similar vein as Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8 and suffers the same, in that it will be dismissed because it is frivolous and vexatious action intended to get a course that will defeat the hand of the law. Equity heeds the law and does not derail the law. This application in aggregate is sustained because the plaintiff does not demonstrate, nor has he maintained integrity in the observation heed of the orders of this Court. He has sought to attain in breach of the law, Attorney General v Hamidian-Rad [1999] PNGLR 278 and will suffer the same fate, it will be dismissed with costs because leave for Judicial review will not flow where the orders of this Court are breached. It is an abuse of process to be maintained in the records of court.
  9. The orders of the Court to see out settlement of this matter and for the parties to come with settlement has not eventuated. It is clear defiance of the order relating and if coupled with the later orders of 06th March 2023, there really is nothing before me to save the cause instituted by the plaintiffs. He has not filed any material let alone an affidavit or material to defend the motion of the defendants. Particulars of service are set out above. He really has shown nothing in his favour to save the cause of action. It is true that dismissal of the entire proceedings denotes denying him from the Judgement seat. But if the facts are closely weighed out in heed to give favour to save his cause of action, there really is nothing apparent or identifiable in the light of Takori v Yagari [2007] PGSC 48; SC905 (28th February 2007), mindful that, “our Judicial system should never permit a plaintiff or a defendant to be driven from the Judgement seat in a summary way, without a Court having considered his right to be heard. A party has a right to have his case heard as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the court. That right cannot be lightly set aside.”
  10. Every opportunity has been accorded by this court and this is reflected by both sets of orders set apart in the chronology the life of this action. And the heed of this Court to give effect to his cause of action has not been returned in the observance of the orders made, firstly on the 12th January 2023. Then on the 06th March 2023. Minute details are set out word for word to depict that this Court has bended backwards to give effect to the cause of the plaintiff. To go further would be to be prejudicial to the defendants who have the heart of the majority in this matter, the people immediately of the project area effected by it and of People of Papua New Guinea by and through their government, in the hands of the Departmental head and the Political head the Honourable Minister for Petroleum and Energy.
  11. The balance given does not lie in sustaining this action in Court but dismissing it for abuse of process. Further that the First Plaintiff, Second Plaintiff, and additional Plaintiffs listed in Court Order dated the 06th March 2023 in paragraphs 2, 3, 4, 5, and 6, lack standing and as such the proceeding herein is incompetent, and is hereby dismissed as disclosing no reasonable cause of action, being frivolous, or vexatious, or an abuse of court process, pursuant. Non compliance of the orders of 12th January 2023 is self-executing clear from order 12, “Failing any compliance of any of these orders will result in the proceeding standing dismissed with costs if the defaulting party are the Plaintiffs or Judgement shall be entered for the plaintiffs with the relief sought or such other reliefs the Court considers appropriate with costs shall be granted if the defaulting parties are the defendants.” Here it is the plaintiffs and so suffer that fate by that order, dismissal of their cause of action with costs to follow the event forthwith.
  12. I do not go alone that costs be on indemnity basis but will be on a solicitor client basis given the facts circumstances that I have set out above.
  13. The formal orders of the Court are:

Orders Accordingly.
__________________________________________________________________
Nandape & Associate Lawyers: Lawyers for the Plaintiff/Applicant
Office of the Solicitor Generals: Lawyers for First Defendants
M. S. Wagambie Lawyers: Lawyers for Fourth Defendants

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