Wabia v BP Petroleum Development Ltd [2009] PGNC 258; N4337 (26 May 2009)

N4337

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1675 OF 2005

BETWEEN:
RONNY WABIA on behalf of himself and his family
listed in the Schedule 1 attached herewith
Plaintiff

AND:
BP PETROLEUM DEVELOPMENT LIMITED formerly operating
as BP Exploration Operation Company Limited
First Defendant

AND:
OIL SEARCH LIMITED
Second Defendant

AND:
JOSEPH GABUT, the Secretary of Department of Petroleum & Energy
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

And:
HENRY TANDUMA, EKAWI TAYANDA, HEWABI OGOBI,
KATIA YUBI, HALIMBU LEMBO
Fifth Defendant

Waigani: Hartshorn J.
2009: 16^th March,
: 26^th May

Application to Dismiss Proceeding

Facts:

The plaintiff for himself and others, alleges that they are the customary owners of certain land in the Hides Gas Project Area and not the persons that BP Petroleum Development Ltd and Oil Search Limited have been dealing with. The plaintiffs further allege that BP and Oil Search wrongfully occupy their land. The plaintiffs commenced this proceeding seeking declaratory and injunctive relief and damages. The second defendant now applies for the proceeding to be dismissed as an abuse of process or for failing to disclose a reasonable cause of action.

Held:

The plaintiff’s claim, if it proceeded to trial, would be bound to fail and is frivolous. It is dismissed.

Cases
Papua New Guinea cases

Eric Sam v. Lamus Lom (1981) N284
PNG Forest Products Pty Ltd v. The State [1992] PNGLR 85
John Nilkare v. Ombudsman Commission (1995) N1344
Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8
Kiee Toap v. The State (2004) N2731 and N2766
Lerro v. Stagg (2006) N 3050

Overseas cases

McC v. Mullan [1985] AC 528
Tampion v. Anderson [1973] VicRp 32; [1973] VR 321

Counsel:

Mr. J. Abone, for the Plaintiff
Mr. T. Dawidi, for the Second Defendant

26^th May, 2009

1. HARTSHORN J: Mr. Ronny Wabia for himself and others, alleges that they are the customary owners of certain land in the Hides Gas Project Area and not the persons that BP Petroleum Development Ltd and Oil Search Limited have been dealing with. Further, Mr. Wabia alleges that BP and Oil Search wrongfully occupy their land. Mr. Wabia commenced this proceeding seeking declaratory and injunctive relief and damages.

2. Oil Search now applies for the proceeding to be dismissed as an abuse of process or for failing to disclose a reasonable cause of action.

3. Oil Search submits that the proceeding is an abuse of process of the court amongst others, as it is based upon a decision of the Mendi Local Land Court that was made without jurisdiction. Reliance is placed upon Order 8 Rule 27 and Order 12 Rule 40 National Court Rules.

4. Mr. Wabia submits that the jurisdiction to determine issues of ownership and title to customary land is vested in the Local Land Court under the Land Disputes Settlement Act and as such his ownership of title as declared by the Mendi Local Land Court on 6^th October 1999 is legitimate. He says that he is entitled to ask that his ownership as declared, be recognized.

5. Oil Search submits that as the Land Titles Commission in 1991 had already determined customary land ownership in respect of land the subject of the Mendi Local Land Court decision, the Mendi Local Land Court did not have jurisdiction pursuant to s. 27(4) Land Disputes Settlement Act. Section 27 (4) is relevantly as follows:

“(4) A Local Land Court shall not proceed to hear and determine a dispute..... unless it has first satisfied itself that no previous order has been made in relation to the land by-

(a) a Provincial Land Court or a Local Land Court; or

(b) the Land Titles Commission.”

6. It is not in dispute, as I understand it, that the land the subject of the Mendi Local Land Court decision is included in the land the subject of the Land Titles Commission decision.

7. In submissions filed on behalf of Mr. Wabia, it is stated that Mr. Wabia does not challenge the Land Titles Commission decision but merely wants to confirm and clarify it as he is a Wita Clan member and there is no proper landowner identification in the Land Titles Commission decision. In the conclusion of the submissions it is further stated that Mr. Wabia does not challenge the Land Titles Commission decision but wishes to confirm it and to seek recognition for his ownership of part of the land declared to be owned by the Clan to which he belongs.

8. Given this, as the Land Titles Commission has made an order in relation to the land, pursuant to s. 27(4) Land Disputes Settlement Act, the Mendi Local Land Court should not have proceeded to hear and determine the dispute in relation to the land.

9. To hear the dispute as it did, the Mendi Local Land Court was acting outside of its jurisdiction. In this regard I adopt the words of Pratt J. in Eric Sam v. Lamus Lom (1981) N284 which appear relevant:

“We’re not dealing here with a superior court where consent to jurisdiction is not an uncommon thing. We have an inferior court, a court of statute whose jurisdiction is clearly defined in the terms of the statute and a court which must live within the four corners of that statute.”

10. In acting outside or in excess of its jurisdiction, the Mendi Local Land Court’s decision can be classified as an irregularity and void from the outset: McC v. Mullan [1985] AC 528. There is however, no application before this court to review the decision of the Mendi Local Land Court. Oil Search submits in essence that the Mendi Local Land Court decision was made without jurisdiction and therefore it should be disregarded. Until that decision is set aside or quashed however, it must be treated as valid.

11. In John Nilkare v. Ombudsman Commission (1995) N1344, Sheehan J. (as he then was) was concerned with a judicial review application in respect of an Ombudsman Commission referral to the Public Prosecutor. Notwithstanding that under consideration here is a decision of an inferior court, the statement of the law contained in the following passage cited from In Review of Administration Action (Law Book Co 1987) at p212, in my view is applicable:

“There is no such thing as an “absolute nullity”, something which everyone in every context can ignore with safety. Context is all important. Even an official act which is null in all sorts of contexts needs to be stopped by a judicial order if the bureaucracy is not to treat it as valid and effective. In order to obtain an appropriate remedy the right person must apply for an appropriate remedy against the right person at the right time....”

12. Oil Search relies on amongst others, Order 12 Rule 40 National Court Rules which provides amongst others, that proceedings may be dismissed if they are frivolous. Proceedings have been held to be frivolous if the plaintiff would be bound to fail if the matter went to trial: Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8, Kiee Toap v. The State (2004) N2731, N2766, Lerro v. Stagg (2006) N 3050 and Tampion v. Anderson [1973] VicRp 32; [1973] VR 321.

13. If this proceeding went to trial, in determining whether to grant the declaration sought by Mr. Wabia that the Mendi Local Land Court decision is “legally valid for all intents and purposes”, there would be a consideration of the Land Titles Commission and the Mendi Local Land Court decisions by this court. Both of these decisions are concerned with disputes as to interests in customary land. A consideration of both decisions would involve this court in a consideration of such disputes. Given that this court does not have jurisdiction as to such disputes it would be obliged to dismiss Mr. Wabia’s claim.

14. Alternatively, if this court was able to consider the 2 decisions without intruding into the customary land dispute question, given the admissions concerning the Land Titles Commission making a previous order in relation to the same land in respect of which the Mendi Local Land Court made a decision, this court would be obliged to dismiss Mr. Wabia’s claim because of s. 27(4) Land Disputes Settlement Act. Mr. Wabia’s claim in my view, is bound to fail if it went to trial.

15. The power to dismiss proceedings which are amongst others, frivolous, is discretionary under Order 12 Rule 40. The court also has the inherent power to dismiss proceedings which are an abuse of its process: PNG Forest Products Pty Ltd v. The State [1992] PNGLR 85.

16. As I have found that Mr. Wabia’s claim, if it proceeded to trial would be bound to fail and is frivolous, I order that it be dismissed. The costs of and incidental to the proceeding are to be paid by the plaintiff to the defendants.

_______________________________________________________
Parkil Lawyers: Lawyers for the Plaintiff
Oil Search (PNG) Limited: Lawyers for the Second Defendant