Hongiri Investments Ltd v Independent State of Papua New Guinea [2012] PGNC 331; N5811 (1 October 2012)

N5811

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS 816 OF 2011

BETWEEN:

HONGIRI INVESTMENTS LIMITED
Plaintiff

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
First Defendant

AND:

RENDLE RIMUA
in his capacity as Acting Secretary of the Department of Petroleum and Energy
Second Defendant

AND:

STEVEN GIBSON
in his capacity as the Acting Secretary of the Department of Finance
Third Defendant

AND:

DR GA'ALIAH KORA
in his capacity as the Acting Secretary for the Department of National Planning and Monitoring
Fourth Defendant

Waigani: Hartshorn J.
2012: June 20th,
: October 1st

TRIAL – whether plaintiff has standing – privity of contract

Case cited:

PNGBC v. Barra Amevo & Ors (1998) N1726
Christian Life Centre v. Associated Mission Churches of PNG & Ors (2002) N2261
The Papua Club Inc v. Nusaum Holdings Ltd (No. 2) (2004) N2603
Ben Maoko v. Kevin Ling (2008) N3293

Counsel:

Mr. J. Haiara, for the Plaintiff

1st October, 2012

1. HARTSHORN J. The plaintiff, Hongiri Investments Ltd, seeks declaratory relief and associated orders in respect of the Gobe Agro-Technical High School Project (GATHS Project) against the State. The plaintiff contends that the State agreed to establish and fund the GATHS Project, but to date has not, hence this proceeding and the relief sought.

2. The trial of this matter was held in the absence of representation of the State and other defendants as I was satisfied that proper and sufficient notice of the time and date of the hearing had been given.

3. The first issue that arises is whether the plaintiff has the necessary standing. This court must be satisfied that the plaintiff is able to properly seek the relief that it does. The plaintiff is a company purportedly owned by Gobe Project area landowners from the Samberigi Station of Erave District, Southern Highlands Province. There is no documentary evidence from the Registrar of Companies or otherwise however, to substantiate this.

4. It is clear from the two agreements upon which the plaintiff relies for the relief that it seeks, that the plaintiff is not a party to either of them. The two agreements are:

a) a Memorandum of Agreement between the State and Gobe Project Area Landowners dated 19th April 1998, and

b) the Benefits Sharing Agreement between the State, other parties and the Petroleum Development Licence No. 4 Gobe Project Landowners dated March 2009.

5. It is settled law that a person cannot sue on a contract unless he is a party to it. In Christian Life Centre v. Associated Mission Churches of PNG & Ors (2002) N2261, Lenalia J said:

".... no person can sue or be sued on a contract unless he or she is a party to it: Dunlop Pneumatic Tyre Co Ltd v. Selfridge & Co Ltd [1915] UKHL 1; [1915] AC 847. The doctrine of privity means a contract cannot as a general rule confer rights or impose obligations arising under it on any person except the parties to it."

6. Other National Court decisions that have considered and ruled pursuant to the doctrine of privity of contract include: PNGBC v. Barra Amevo & Ors (1998) N1726, The Papua Club Inc v. Nusaum Holdings Ltd (No. 2) (2004) N2603 and Ben Maoko v. Kevin Ling (2008) N3293.

7. From a perusal of the evidence and the submissions made, I am not satisfied that it is open to this court in this instance, to depart from this doctrine. Consequently the relief sought by the plaintiff should be refused. Given this, it is not necessary to consider the other submissions of counsel.

Orders

8. The Orders of the Court are:

a) This proceeding is dismissed.

b) As there was no appearance on behalf of the defendants at the trial, no orders as to costs are made.

c) Time is abridged.
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Steeles Lawyers: Lawyers for the Plaintiff