Ambi v Exxon Mobil Ltd [2012] PGNC 134; N4844 (27 July 2012)

N4844

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 422 OF 2011

BETWEEN:

THOMAS TAIYA AMBI –
Chairman and Director of Parapia PDL1 Holdings Ltd
First Plaintiff

AND:

PARAPIA PDL 1 HOLDINGS LTD
Second Plaintiff

AND:

EXXON MOBIL LIMITED
First Defendant

AND:

OIL SEARCH LIMITED
Second Defendant

AND:

HON. FRANCIS POTAPE-
Minister for Petroleum and Energy
Third Defendant

AND:

RENDEL REMUA-
Secretary for Department of Petroleum and Energy
Fourth Defendant

AND:

JOHN ANDRIAS-
Secretary for Department of Commerce and Industry
Fifth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

AND:

HIDES GAS DEVELOPMENT CORPORATION LIMITED
Seventh Defendant

Waigani: Hartshorn J.
2012: 18th May
: 27th July

Application to dismiss proceeding

Facts:

The second defendant, Oil Search Ltd, applies to dismiss this proceeding pursuant to Order 12 Rule 40 National Court Rules and this court's inherent jurisdiction on the grounds that the plaintiffs do not have the locus standi to bring this proceeding.

Held:

1. The first and second plaintiffs do not have the necessary standing to bring this proceeding. Consequently the proceeding should be dismissed as being frivolous or vexatious, an abuse of the process of the court, and for not disclosing a reasonable cause of action
   
2. The National Court does not have the jurisdiction to determine a dispute concerning the ownership of customary land. If prosecuted, this claim is bound to fail. As such it is frivolous and vexatious and an abuse of the process of the court.
   

Cases cited:

Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8
21 ILGs Gobe Project Area Incorporated Land Groups v. The State (2006) N3096
Nimamar Rural ILG v. Thomas Tanasu Ltd (2009) N3758
Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107

Counsel:

Mr. T. Anis, for the Second Defendant

27th July, 2012

1. HARTSHORN J: The second defendant, Oil Search Ltd, applies to dismiss this proceeding pursuant to Order 12 Rule 40 National Court Rules and this court's inherent jurisdiction. I allowed this application to be heard in the absence of representation on behalf of the plaintiffs as I was satisfied that the notice of motion had been served upon the lawyers for the plaintiffs and that they had been informed of the motion's hearing date and time.

2. Oil Search seeks the dismissal of the proceeding on a number of grounds. The first ground that I shall consider is whether the plaintiffs have standing or locus standi to bring this proceeding. If the plaintiffs did not have the necessary standing, then the proceeding is frivolous or vexatious and an abuse of the process of the court: 21 ILGs Gobe Project Area Incorporated Land Groups v. The State (2006) N3096, Nimamar Rural ILG v. Thomas Tanasu Ltd (2009) N3758. It can also be argued that if the plaintiffs have no standing, no reasonable cause of action is disclosed as any cause of action disclosed cannot reasonably be brought by the plaintiffs.

3. It is submitted by Oil Search that the plaintiffs did not have the necessary standing as:

a) the plaintiffs' claim to be owners of customary land and seek relief in respect of customary land.

b) only individual citizens of Papua New Guinea and not a company can own customary land,

c) the first plaintiff sues in the capacity of the Chairman and a Director of a company and the second plaintiff is that company,

d) the claim by the second plaintiff company that it owns customary land is misconceived,

e) the first plaintiff as an officer of a company and the second plaintiff as a company do not have the necessary standing to seek the relief that they do and indeed to bring this proceeding seeking that relief.

4. I agree with Oil Search's submissions in this regard. Pursuant to s. 2 (1) Land Act, in that Act, customary land is land that is owned or possessed by an automatic citizen or a community of automatic citizens and a "citizen" does not include a company. The second plaintiff's claim to be the owner of customary land is not sustainable. The first and second plaintiffs do not have the necessary standing to bring this proceeding. Consequently the proceeding should be dismissed as being frivolous or vexatious, an abuse of the process of the court, and for not disclosing a reasonable cause of action.

5. Notwithstanding this finding, I will consider another ground upon which Oil Search seeks dismissal of the proceeding.

6. The plaintiffs' claims are in essence that they are the true customary landowners of the subject land and that the defendants, including Oil Search, have been dealing with persons who are not the true landowners of the subject land. Consequently, submit the plaintiffs, they have not received benefits to which they are entitled for the last 21 years. Oil Search submits that this raises a dispute as to the ownership of the subject customary land and the National Court does not have jurisdiction to determine such disputes.

7. I agree with these submissions of Oil Search. The plaintiffs are disputing that the persons with whom Oil Search have been dealing are the true owners of customary land and so a dispute as to the ownership of customary land arises. The National Court does not have jurisdiction to determine such disputes: Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8, Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107. Consequently, as this claim of the plaintiffs' is bound to fail if prosecuted in this court, it is frivolous and vexatious and an abuse of the process of the court.

8. Given the above, it is not necessary for me to consider the other submissions of counsel. For the above reasons, the proceeding should be dismissed.

Orders

9. The orders of the Court are:

a) This proceeding is dismissed.

b) The plaintiffs shall pay the second defendant's costs of the proceeding.

c) Time is abridged.

_______________________________

Lyons Putupen & Associate: Lawyers for the Plaintiff
Bradshaw Lawyers: Lawyers for the Second Defendant