Potape v Gigira Laitepo Palamanda Association Incorporated [2021] PGNC 573; N9233 (18 October 2021)

N9233

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 24 OF 2020 (IECMS - CC2)

BETWEEN:
CHIEF PETER POTAPE for himself and on behalf of
the Tugupa Tribe Landowners of Hides PDL1
Plaintiff

AND:
GIGIRA LAITEPO PALAMANDA ASSOCIATION INCORPORATED
First Defendant

AND:
TUGUYAWINI LIBE PARINDALI as Chairman of
Gigira Laitepo Palamanda Association Incorporated

Second Defendant

AND:
DAVID MANAU as Secretary for Department of Petroleum & Energy

Third Defendant

AND:

HON. KERENGA KUA as Minister for Petroleum & Energy
Fourth Defendant
AND:
MINERAL RESOURCE DEVELOPMENT COMPANY LIMITED
Fifth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Shepherd J
2021: 16^th February
2021: 18^th October

PRACTICE AND PROCEDURE – Application to dismiss proceedings – Order 12 Rule 40 (1) National Court Rules – judicial declarations – failure to establish Court’s jurisdiction to grant declaratory relief sought is abuse of process warranting dismissal of proceeding – no reasonable cause of action - Court will not grant declaratory relief if no utility – no utility in judicial declaration declaring valid that which a court of competent jurisdiction has already found to be valid.

PRACTICE AND PROCEDURE – Representative actions – Order 5 Rule 12 National Court Rules – procedural requirements – all intended plaintiffs must be named and properly identified in originating process – each plaintiff must give specific instructions evidenced in writing to representative and to lawyer to act – authorisation to representative and to lawyer to act must be annexed to originating process at commencement of suit - failure to comply with procedural requirements means no standing, no cause of action is disclosed and is abuse of process.

PRACTICE AND PROCEDURE – coercive order sought to compel Dept of Petroleum and Energy and Mineral Resource Development Company Ltd to release royalty benefits held under s.168 of Oil and Gas Act 1998 – order refused – failure by plaintiff to identify corporate trustee holding subject royalty benefits held in trust under s.176(3) of Oil and Gas Act 1998.

Cases Cited:
Ere v National Housing Corporation (2016) N6515
Lerro v Stagg (2006) N3050
Malewo v Faulkner (2009) SC960
Mount Hagen Urban Local Level Government v Sek No. 15 Ltd (2009) SC1007
Parindali v Nuau (2001) N9086
Pelego v Pok (2021) N8745
Philip v Tiliyago (2019) SC1783
Siu v Wasime Land Group Incorporated (2011) SC1107
Takori v Yagari (2008) SC905
Wamabiag v Palme (2012) N4715

Counsel:

Mr Jimmy Dia Lypita, for the Plaintiff
Mr Peter Sapu, for the First and Second Defendants
Mr Trent Tefuarani, for the Fifth Defendant

DECISION

18^th October, 2021

1. SHEPHERD J: This is a decision on an application to set aside an ex parte interim injunction and for the dismissal of this proceeding. The application has been made by the first and second defendants, supported by the fifth defendant. The application is opposed by the plaintiffs. The application to set aside the ex parte interim injunction is made pursuant to Order 12 Rule 8 (3)(a), 4 and 5 National Court Rules (NCR). The application for dismissal is made under Order 12 Rule 40 (1) NCR.

Background

2. The plaintiffs in this class action are said to be represented by Chief Peter Potape of the Ware 2 clan, which is one of the clans that comprise the Tuguba tribe who are affected resource/landowners in that area known as PDL1 near Tari, Hela Province forming part of the greater area required for the Gas Hides Project. In the documentation presented in evidence to this Court, the Tuguba tribe is sometimes referred to as the Tugupa tribe or the Tugube tribe. For the purposes of this decision, I accept that the difference in spelling of the name of this tribe is phonetic. It is obvious that the Tuguba tribe, the Tugupa tribe and the Tugube tribe are one and the same tribe whatever differences in the spelling of the tribe’s name occur in the documentation. I will refer in this decision to the tribe as being the Tuguba tribe as that is the name accorded to it in the majority of the documentation now before the Court.
3. The originating summons filed in this proceeding on 18 May 2020 was registered in the National Court’s newly implemented Integrated Electronic Case Management System as OS No. 24 of 2020 (IECMS). For the sake of brevity, the proceeding is referred to in this decision as OS 24/2020.
4. The plaintiffs sue in this proceeding under the style “Chief Peter Potape for himself and on behalf of the Tugupa Tribe landowners of Hides PDL1 whose names are attached in the Schedule”. However, the first and second defendants and several joinder applicants dispute Chief Potape’s claim that he is authorised to represent landowner members of the Tuguba tribe. For the purposes of this decision I refer to Chief Potape as “the plaintiff”. Whether he is genuinely authorised to represent those members of the Tuguba tribe he claims to represent is an issue which has been raised by the first and second defendants and is addressed later in this decision.
5. The plaintiff deposes in his affidavit filed on 18 May 2020 that the Hides PDL1 area consists of 6 regions or blocks, and that royalties derived from the Hides Gas Project are divided between 6 tribes of customary landowners under a License Base Benefit Sharing Agreement (LBBSA) in the following percentages:

1. Hiwa tribe: 37%
2. Tuguba tribe: 25%
3. Tugu Tapira tribe: 10.40%
4. JP Karai tribe: 11.80%
5. Habono tribe: 12.80%
6. Kamia Kera tribe: 3%

6. The plaintiff in his affidavit refers to a separate Intra Clan Benefit Percentage Sharing Agreement dated 10 February 2019 between the 8 clans which comprise the Tuguba tribe and which has apportioned the clans’ respective entitlements to the Tuguba tribe’s royalties from PDL1 such that each of these 8 clans is entitled to receive 12.5% of those royalties. The plaintiff asserts that the percentage split between the entitled 8 clans of the Tuguba tribe is as follows:

1. Nguane Clan: 12.5%
2. Ware 2 Clan: 12.5%
3. Pate Clan: 12.5%
4. Tabu Clan: 12.5%
5. Tagua Clan: 12.5%
6. Jugu Clan: 12.5%
7. Tagobali Clan: 12.5%
8. Pepe 2 Clan: 12.5%

7. The originating summons filed for the plaintiff in OS 24/2020 (the originating summons) claims a series of judicial declarations and one coercive order seeking payment of royalties said to have been withheld from the entitled 8 clans which comprise the Tuguba Tribe.
8. The first substantive relief that is sought in the originating summons are judicial declarations to the effect that the first defendant Gigira Laitepo Palamanda Association Incorporated (GLP Assn Inc) and its chairman the second defendant, Tuguyawini Libe Parindali (Mr Parindali), have no standing and do not represent the Tuguba Tribe.
9. Further declaratory orders are then sought in the originating summons. The judicial declarations sought are:
   • That the Hides PDL1 land ownership issue was settled by the Court decision of Amet J in LTC Hides Gas Project, Hiwa Tribes v Tuguba Tribes (1993) PNGLR 309 which decision was then reflected in a Compromise Agreement dated 7 July 1993.
   • That the Intra Clan Benefit Percentage Sharing Agreement reached on 24 January 2019 signed by the leaders of the Clans of the Tuguba Tribe for percentage sharing of royalties from PDL1 is legally binding.
   • That the Ministerial Determination of 28 February 2019 gazettal no. G188 which identified the 8 Clans of the Tuguba Tribe as each being entitled to 12.5% of the 25% royalties to which the Tuguba Clan is entitled from PDL1 is legally binding.
10. The remaining relief claimed in the originating summons is an order to the effect that the third, fourth, fifth, sixth and seventh defendants must within 7 days from date of the order effect payment of royalties owed to the 8 entitled clans of the Tuguba Tribe as from the first shipment of liquid natural gas in 2014 to date of commencement of this suit.
11. After a series of adjournments, on 15 December 2020 a procedural order was made in this proceeding for a total of 7 motions to be set down for hearing as special fixtures on 16 February 2021. Those motions were:

(1) the return of the inter partes hearing of the plaintiff’s motion filed on 18 May 2020 for interim restraining orders against GLP Assn Inc and Mr Parindali which had been heard ex parte by Kandakasi DCJ and granted on 12 June 2020;

(2) the motion of GLP Assn Inc and Mr Parindali filed on 1 July 2020 seeking orders to set aside the ex parte interim restraining order of 12 June 2020 and for the dismissal of this proceeding;

(3) the motion of Richard Takima Hirua and Erick Hawaii Ako filed on 2 July 2020 seeking joinder as second plaintiffs;

(4) the motion of the sixth defendant Kumul Petroleum Holdings Ltd (KPHL) filed on 3 July 2020 seeking the dismissal of this proceeding;

(5) the motion of the plaintiff filed on 7 August 2020 seeking leave to amend the originating summons and an order for the continuation of the ex parte interim restraining order of 12 June 2020;

(6) the motion of KPHL filed on 10 September 2020 seeking its own removal from this proceeding;

(7) the motion of the plaintiff filed on 14 September 2020 seeking the removal of KPHL and challenge to that company’s counsel.

12. On 16 February 2021 all 7 motions come on for hearing by the Court. Mr Peter Sapu of Diwenis Lawyers appeared as counsel for the first and second defendants. Mr Trent Tefuarani appeared as in-house counsel for the fifth defendant (MRDC). Mr Nathan Pilamb of Mel & Hennry Lawyers appeared for KPHL. There was no appearance by counsel for the plaintiff, Mr Jimmy Dia Lyipita, notwithstanding that he was present in Court when the procedural order of 15 December 2020 was made. There was similarly no appearance before the Court on 16 February 2021 of counsel for the Department of Petroleum and Energy and for the State or for joinder applicants Mr Hirua and Mr Ako.
13. As counsel for all parties were on notice of the hearing date of 16 February 2021, I proceeded to deal with those motions where counsel for the various applicants were actually present. The two motions which were heard by the Court on 16 February 2021 were these:

(1) the motion of GLP Assn Inc and Mr Parindali filed on 1 July 2020 seeking orders to set aside the ex parte interim restraining order of 12 June 2020 and for dismissal;

(2) the motion of KPHL filed on 10 September 2020 seeking its own removal from this proceeding.

14. KPHL’s motion was unopposed at the hearing on 16 February 2021. KPHL was accordingly ordered to be removed as a party to this proceeding, there being affidavit evidence before the Court that the plaintiff had conceded that KPHL had been joined in error. KPHL was also given leave to withdraw its dismissal motion filed on 3 July 2020 as the company was no longer a defendant in this suit.
15. At the hearing on 16 February 2021 the joinder motion of Mr Hirua and Mr Ako was adjourned to the Registry because of the non-appearance of their counsel. The Court then proceeded to hear and reserve on the dismissal motion filed the GLP Assn Inc and Mr Parindali.
16. Two days later, on 18 February 2021, the plaintiff’s counsel Mr Lyipita filed a motion seeking to have all orders made on 16 February 2021 set aside on the basis that it was alleged by Mr Lyipita that those orders had been made ex parte. This motion returned before the Court on 4 March 2021, at which time I reminded Mr Lyipita he was present in Court on 15 December 2020, which is when 7 motions then pending, including the plaintiff’s motion filed on 7 August 2020 seeking leave to amend his originating summons, were set down for hearing as special fixtures on 16 February 2021. Mr Lyipita was therefore on notice of the motions to be dealt with by the Court on 16 February 2021. I further reminded Mr Lyipita at the hearing on 4 March 2021 that on 23 December 2020 my associate had emailed to him and all other counsel involved in this proceeding a scanned copy of the Order made on 15 December 2020 and that Mr Lyipita had acknowledged receipt of same by return email to my associate the same day, on 23 December 2020. There was therefore no basis for Mr Lyipita to argue that he and the plaintiff were not on notice of the hearing on 16 February 2021 or that orders ex parte had been made that day in their absence.
17. Mr Lyipita therefore conceded on 4 March 2021 that he was on notice of the hearing which had taken place on 16 February 2021 but he nevertheless voiced his concern that he had filed an extract of submissions on 15 December 2020 in response to the GLP Assn Inc and Mr Parindali’s motion for dismissal, KPHL’s motion for dismissal and in opposition to the joinder application of Mr Hirua and Mr Ako. Mr Lyipita was adamant that the extract of submissions he had filed for the plaintiff should be taken into account by the Court in its reserved decision on the dismissal application of GLP Assn Inc and Mr Parindali. Mr Lyipita’s concern in this regard was however allayed when all other counsel then present in Court on 4 March 2021 indicated that they had no objection to the Court referring to Mr Lyipita’s extract of submissions for the plaintiff in opposition to the dismissal motion for the purposes of this reserved decision. An order was made by me on 4 March 2021 which reflected this agreement by other counsel.
18. I therefore state for the record that I have taken into account Mr Lyipita’s 8-page written extract of submissions for the plaintiff for the purposes of this decision. I have similarly taken into account the written submissions tendered by respective counsel representing all other parties who were heard on the dismissal application of GLP Assn Inc and Mr Parindali on 16 February 2021.
19. I also note for the record that as KPHL is no longer a defendant to this proceeding, the plaintiff’s position is that he continues to seek orders against the Secretary of the Department of Petroleum and Energy, the Minister for the Department of Petroleum and Energy, MRDC and the State itself for payment of royalties from PDL1 said to be owed to the entitled 8 clans of the Tuguba Tribe.

The application of GLP Assn Inc and Mr Parindali to set aside the interim ex parte injunction and for dismissal of this proceeding

20. If the Court determines that this proceeding should be dismissed under Order 12 Rule 40(1) NCR, the ex parte interim injunction granted on 12 June 2020, which has continued in force until now, would be subsumed under the order for dismissal and would be extinguished. Consideration by the Court as to whether the interim injunction should continue in force or be struck out at this juncture therefore hinges on the outcome of the dismissal application by GLP Assn Inc and Mr Parindali. I will therefore address the dismissal application as the primary matter to be decided by this Court.

The parties’ submissions

21. GLP Assn Inc and Mr Parindali submit that this proceeding should be dismissed under Order 12 Rule 40(1) NCR because no reasonable cause of action is disclosed, the proceedings are frivolous or vexatious and they are an abuse of process because:

(1) Although the plaintiff is suing in a representative capacity, he does not represent all members of the entitled 8 clans of the Tuguba tribe. It is submitted that the plaintiff has failed to meet the procedural requirements for a representative action required by Order 5 Rule 13 NCR. The plaintiff lacks standing and therefore no reasonable cause of action has been disclosed. The proceeding is therefore an abuse of process and must be dismissed.

(2) The Court has no power or jurisdiction in this proceeding to grant the plaintiff’s claim in para. (1) of the originating summons for judicial declarations to be made against GLP Assn Inc and Mr Parindali pursuant to ss. 2 and 20 of the Associations Incorporation Act.

(3) The plaintiff’s claims in para. 1 of the originating summons for declaratory relief to be made against GLP Assn Inc and Mr Parindali are premised on the basis that there were alleged pre-and post-incorporation irregularities such that the GLP Assn Inc is not legally capable of having been incorporated as an association and thereafter remaining as an incorporated association, particularly as the GLP Assn Inc only has two members, one of whom is Mr Parindali. It is submitted for GLP Assn Inc and Mr Parindali that these contentions by the plaintiff are baseless in law. No cause of action exists based on this ground. The plaintiff’s claims in this regard are therefore an abuse of process and must be dismissed.

(4) After commencing this proceeding, the plaintiff facilitated a change in the GLP Assn Inc’s status at the Investment Promotion Authority by persuading the Registrar to “remove” GLP Assn Inc as a registered incorporated association. The plaintiff’s conduct post-commencement of this proceeding establishes that the plaintiff, in seeking equitable relief, is not coming to this Court with clean hands. The plaintiff has disentitled himself from seeking any relief from this Court on this ground alone.

22. In answer, the plaintiff by his counsel Mr Lyipita submits that this proceeding is not an abuse of process, should not be dismissed and should therefore be allowed to continue to substantive hearing. The reasons advanced for this submission for the plaintiff include:

(1) The plaintiff has the authority of all relevant landowners in this class action to represent them. They have signed their names and given their consent in the schedule attached to the originating summons. Affidavits from legitimate clan representatives in support of the plaintiff bringing this proceeding and consenting to law firm Asia Pacific & Co acting for the plaintiff have been filed. The deponents of these affidavits are said by the plaintiff to have all been recognised and covered under the Ministerial Determination.

(2) Section 2 of the Associations Incorporation Act requires that pre-incorporation there must be a committee which appoints a person to apply for incorporation of the association and that this was not complied with. Furthermore, the powers vested by section 20 of the Associations Incorporation Act have been illegally vested in the GLP Assn Inc and Mr Parindali and those powers should be judicially declared to be null and void.

(3) The Ministerial Determination is legally binding and should be enforced in this proceeding so that royalties apportioned at 12.5% to each of the entitled 8 clans of the Tuguba Tribe held by or at the control or directions of the Secretary of the Department of Petroleum and Energy, the Minister for the Department of Petroleum and Energy, State-owned enterprise MRDC and the State should be paid by order of this Court in this proceeding without further delay.

Issues for determination

23. I consider that the application for dismissal made by GLP Assn Inc and Mr Parindali in reliance on Order 12 Rule 40 (1) NCR, taken in conjunction with the parties’ affidavit evidence and their respective submissions, raises the following issues:

(1) Has the plaintiff failed to meet the procedural requirements of Order 5 Rule 13 NCR for a representative action?

(2) Does the Court have jurisdiction or power pursuant to ss. 2 and 20 of the Associations Incorporation Act to make the judicial declarations sought by the plaintiff in para. (1) of the originating summons? If so, has the plaintiff established a cause of action for the relief sought against GLP Assn Inc and Mr Parindali?

(3) Has the plaintiff established a cause of action for the declaratory relief sought in paras. (2), (3) and (4) of the originating summons?

(4) Is this an appropriate case for the Court to make the coercive order for payment of royalties sought in para. (5) of the originating summons?

Order 12 Rule 40(1) National Court Rules

24. Order 12 Rule 40(1) NCR provides:

40(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings –
(a) no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

25. The legal principles applicable to Order 12 Rule 40 (1) NCR are well settled. The Court's power to stay or dismiss proceedings under any of the grounds specified in sub-rule (1) of Order 12 Rule 40 is discretionary and supplements the Court's inherent jurisdiction to protect and safeguard any abuse of its process: Wamabiag v Palme (2012) N4715.
26. Order 12 Rule 40(1) comes within Order 12 Division 4 NCR. Division 4, which comprises Rules 37 to 43 of Order 12, deals with the summary disposal of proceedings.
27. The present case was instituted by the filing of an originating summons. The Court accordingly has discretionary power to summarily dispose of this case if any of the circumstances set forth in Order 12 Rule 40(1) NCR are met to the satisfaction of the Court.
28. The authorities in respect of the principles which apply to applications for dismissal under Order 12 Rule 40(1) NCR are numerous. These include Lerro v Stagg (2006) N3050, Takori v Yagari (2008) SC905, Siu v Wasime Land Group Incorporated (2011) SC1107 and Ere v National Housing Corporation (2016) N6515.
29. A leading Supreme Court decision on Order 12 Rule 40 (1) NCR is Mount Hagen Urban Local Level Government v. Sek No. 15 Ltd (2009) SC 1007, which at [29] and [30], explains the purport of Order 12 Rule 40 (1) (a), (b) and (c) in these terms:
    

29. The phrase ‘disclosing a reasonable cause of action’ consist of two parts; cause of action and form of action. A cause of action is defined as a legal right of form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim. The principles ... can be summarized as follow:

(i) A plaintiff or claimant should not be driven from the judgment seat in a summary manner and that the Court should be cautious and slow in exercising its discretionary power.

(ii) The Court has an inherent jurisdiction to protect and safeguard its process from abuse.

(iii) The purpose of O.12 r.40 is to give the Court power to terminate actions or claims which are plainly frivolous or vexatious or untenable.

(iv) A frivolous claim is one that is characterized as a claim that is plainly and obviously untenable, that cannot possibly succeed and bound to fail if it proceeds to trial.

(v) A vexatious claim is one that is said to be a sham and cannot succeed where it seeks to merely harass the opposing party and put that party to unnecessary trouble and expense in defending or proving the claim.

30. In an application under O. 12 r.40 of the NCR, the Court may dismiss a proceeding or action where it is satisfied that the pleading in the statement claim is seriously wanting where a necessary fact or legal element has not been pleaded.

Issue 1: Has the plaintiff failed to meet the procedural requirements of Order 5 Rule 13 NCR for a representative action?

30. Order 5 Rule 13 NCR provides:

13. Representation: Current Interests

(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

31. It is well settled procedural law that in actions or proceedings of a representative nature, more commonly known as class actions, all of the intended plaintiffs must be named and properly identified in the originating process. Pursuant to Order 5 Rule 13 NCR each and every intending plaintiff must give specific instructions, evidenced in writing, to their lawyers to act for them. One of the reasons for this is to protect defendants against the costs of litigation should the plaintiffs be unsuccessful in their suit: Mali v The State (2002) SC 690 (Hinchliffe J, Sakora J, Batari J).
32. Where a person as plaintiff claims to represent a class of persons, all persons whom he claims to represent must produce to the Court written proof of their authority for the plaintiff to represent them: Malewo v Faulkner (2009) SC960 (Batari J, Mogish J, Cannings J).
33. In Philip v Tiliyago (2019) SC1783 (David J, Hartshorn J, Kariko J) the Supreme Court said at [24]:

The leading cases on a representative or class action are Simon Mali v The State (supra) and Tigam Malewo v Keith Faulkner (2009) SC960 which held that where a plaintiff is acting in a representative capacity for other persons:

• all intended plaintiffs (those who he claims to represent) must be named in the originating process;
• each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;
• any person who commences proceedings and claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorized by them to file proceedings as a class representative.

34. And at [29] and [32] in Philip v Tiliyago their Honours held:

29. The Courts have expressed the view that failure to meet the procedural requirements of a representative action under Order 5 Rule 13 means the plaintiff lacks standing and therefore no reasonable cause of action is disclosed, and it also amounts to an abuse of process. Recent cases reflecting this position include Huriba Andago v Andy Hamaga (2018) N7332, Dingake, J; Ben Kwayok v Jeremy Singomat (2017) N7097, Nablu J; Amos Ere v National Housing Corporation (2016) N6515, Hartshorn, J.

32. We ... endorse the proposition that non-compliance with the procedural requirements of a representative action under Order 5 Rule 13 National Court Rules should normally attract dismissal of a proceeding.

35. The facts in Philip v Tiliyago are somewhat similar to the circumstances of plaintiff’s case now before this Court. Philip v Tiliyago involved a dispute over royalty payments which had accrued to landowners of the PDL2 area in Hela Province. In that appeal, the respondent had claimed as plaintiff at National Court level that although the Ikubu clan was a beneficiary of royalties derived from PDL2, he and other members of his Ikubu clan were not aware as to how certain royalties paid by cheque received by the appellant from the State had been disbursed. The respondent had filed his National Court action on behalf of members of the Ikubu clan so that they could be paid their share of the royalties and any other beneficiary payments in the future in respect of PDL2. However, the Supreme Court was not satisfied that a list produced by the respondent to the National Court which had the names and signatures of various members of the Ikubu clan and photographs of those members signing against their names on the list could be properly construed as constituting the required consents and authorisations.
36. In the present case the entituling to the plaintiff’s originating summons filed on 18 May 2020 describes the plaintiffs (sic) as “Chief Peter Potape for himself and on behalf of the Tugupa Tribe landowners of Hides PDL1 whose names are attached in the Schedule”. I have checked the digital copy of the originating summons as filed and registered in the National Court’s IECMS platform by Asia Pacific & Co Lawyers and have ascertained that no schedule was attached to the originating summons when it was filed. Instead, the schedule is annexure “A” to the plaintiff’s affidavit which was filed on 18 May 2020 in support of the plaintiff’s motion filed on the same date seeking the ex parte interim injunction subsequently granted by Kandakasi DCJ on 12 June 2020. The schedule, omitted from the originating summons but attached to the plaintiff’s affidavit filed on 18 May 2020, has a heading which erroneously states that it is the schedule referred to in the originating summons. The text of the schedule (the Authority) is as follows:

SCHEDULE REFERRED TO IN THE ORIGINATING SUMMONS

AUTHORITY TO CHIEF PETER POTAPE TO ACT AS A CLASS REPRESENTATIVE FOR TUGUBA TRIBE.

We the undersigned members of the Hides PDL1 Tuguba Block Landowners hereby agree to and give authority to the named Chief Peter Potatpe [sic] to represent us in the originating summons or the court proceeding challenging Mr Parandali’s standing and for the State to honor its agreement to pay us the outstanding royalties. In that understanding, we sign herein to support and authorize Chief Peter Potape to represent us.

37. The Authority then contains a list comprising 5 columns:

No

Name

Clan

Signature

Date

Under these columns the Authority has listed the names of 96 purported members of the Tuguba clan, the names of their respective clans, their signatures (in most instances) and dates of signing by each named member. The dates of signing, all given in the same handwriting by some person, are dates ranging between 14 to 18 March 2020.

38. Although the plaintiff says he represents the members of all 8 clans which comprise the Tuguba tribe, I note that not one person from the Pate Clan is included in the list of names in the Authority.
39. The Authority is silent as to which lawyer or legal firm is authorised by each of the purported members of the Tuguba clan to act for them or for the plaintiff as their representative in bringing this proceeding. OS 24/2020.
40. The plaintiff deposes in [1] and [2] of his affidavit filed on 18 May 2020:

(1) I am the chief and mouthpiece of Ware clan and authorized representative of the other 7 clans of the Tuguba Tribe who are the landowners of Hides PDL1 area owning 25% share of royalties, and in that capacity I depose to the contents of this my affidavit.

(2) I was given the authority by the clan leaders and members of the Tuguba tribe to bring these proceedings, to correct some misunderstandings. We have also given consent to Asia Pacific & Co Lawyers to act in this matter.

[underlining added]

41. GLP Assn Inc and Mr Parindali challenge the authenticity of the plaintiff’s list of purported members of the Tuguba clan named in the Authority who have consented to the plaintiff representing them for the purposes of this class action. GLP Assn Inc and Mr Parindali refer to the affidavit of Urupu Andawi filed on 9 July 2020. Mr Andawi deposes in his affidavit that he is a director on the board of Hides Gas Development Company Ltd (HGDC) and that he comes from the Hides PDL1 area in Hela Province. He says that after having heard his name was on the plaintiff’s list of names for persons who had given authority for the plaintiff to file this proceeding, he obtained a copy of the plaintiff’s affidavit filed on 18 May 2020 and found his name at number 15 on the plaintiff’s list. Mr Andawi states at [4] and [5] of his affidavit:

4. I deny openly that at no time did I give my consent and don’t know how my name is there on the list. I have no intention of suing or authorising legal action against the chairman of HGDC (Tuguyawini Libe Parindali) whilst still being his director and conduct business together.

5. In short, I did not give my consent and so now pray that this court removes my name from this list and allow me to mind my own business.

42. I observe that apart from Mr Andawi, there are four other persons whose names are on the plaintiff’s list in the Authority as purported members of the Tuguba tribe who did not sign the list, namely Hebe Himuni, Jack Talabe, Issac Hambuali and Eric Hawai (who I infer is one and the same person as joinder applicant Erick Hawaii Ako of the Nguane clan).
43. GLP Assn Inc and Mr Parindali also refer to the affidavit of Willie Wandiya filed on 9 July 2020. Mr Wandiya says that although his name appears at number 26 on the plaintiff’s list in the Authority and that he signed alongside his name on that list, the purpose of the list was misrepresented to him by the plaintiff’s brother, Akope Potape, and that he did not give his consent for the plaintiff to represent him in this proceeding. Mr Wandiya deposes at length in his affidavit as follows, without editorial correction:

2. I admit signing and seeing that list but not for the purpose of filing this case. I gave my consent on the basis that the plaintiff’s younger brother Akope Potape who took the list around for signatures to gauge support said was intended for use in the case involving a claim for K19.2million against Hela Provincial government.

3. He misled me and others who were with me and achieved his plan when we signed and use same for this case which I say did not give my consent for this and I pray that my name be removed.

4. The use of other peoples names for self-serving purposes in our Huli custom is serious and not allowed. Therefore I called a public meeting on the 7th July 2020 at Hohola, next to the PNG headquarters and demanded an explanation as to how and why my name was used for a purposed that I had no interest or business with the Tugupas.

5. At that gathering local leaders whose names appear below summoned Peter Potape and his brother Akope Potape to explain why my name was on the list:-

1. Chief Paliwa Ola,

2. Cr. Handape Egari,

3. Thomas Tandapape,

4. Puria Tole;,

5. Makape Katia;

6. James Andy;

7. Tara Tombe;

8. Andrew Andakali;

9. Aluya Jakari;

10. Johnny Hingili

6. Akope Potape apologised and at 11.45 am , said he lied when the real intent and purpose for collecting names of landowners based here in the city was not revealed and I realized that other landowners names were also used. They too will file their affidavits.

7. In line with our custom, our leaders told Akope Potape to go and slaughter pigs and to give same to my clans man. I want to inform this high court that I did not give my consent for this case and request that my name be removed from this list now.

44. No affidavit material has been filed on behalf of the plaintiff disputing the contentions of deponents Mr Andawi and Mr Wandiya.
45. What is disturbing is that a photocopy of a different version of the plaintiff’s Authority has been inserted by an unknown person at the back of the printed copy of the plaintiff’s originating summons on the Court’s file for this proceeding OS 24/2020. This second version of the plaintiff’s Authority which has materialised after the originating summons was filed has obviously sought to rectify the absence of any authorisation in the first version of the Authority for the law firm Pacific Asia & Co. to act for the plaintiff and those members of clans in the Tuguba tribe in this proceeding whom the plaintiff claims to represent. The second version of the Authority states:

AUTHORITY & RESOLUTION TO ACT FOR TUGUBA BLOCK LANDOWNERS OF HIDES PDL1 PNG LNG PROJECT FOLLOWING GOVERNMENT’S DIRECTION DATED 12 MARCH 2020

____________________________________________________________

We the undersigned members of Hides PDL1 Tuguba Block landowners hereby agree to support application to dismiss court cases in Waigani National Court and obtain necessary restraining orders consistent with our elected government’s promised on the 12 March 2020 to pay our long outstanding royalty and equity funds withheld since first shipment of processed natural gas in 2014. We resolve to give authority to Asia Pacific & Co. Lawyers that has been engaged and we hereunder sign which shows our instruction to act for us in dismissing all of the proceedings which affect government’s intention to payout the funds.

46. This second Authority then reproduces under its heading and recital exactly the same list with 5 columns setting out the names of members of the Tuguba clan, clan names, signatures and dates that appear in the first version of the plaintiff’s Authority, which is annexure “A” to the plaintiff’s affidavit filed on 18 May 2020.
47. A copy of the second Authority is, however, annexure “C” to the affidavit of Mr Lyipita of Asia Pacific & Co. Lawyers filed on 18 May 2020 in support of the plaintiff’s motion for ex parte interim orders restraining LGP Assn Inc and Mr Parindali from making any public statements on behalf of the Tuguba tribe landowners of PDL1 for the Hides Gas Project or making representations in that context to the media and others. Mr Lyipita deposes in [5] of his affidavit to the effect that some unnamed persons, presumably the plaintiff and others from the Tuguba clan, requested him to represent them to apply for joinder in four other cases in the National Court which had been commenced by GLP Assn Inc, Mr Parindali and others. Mr Lyipita says:

5. At several occasion after Prime Minister informed all Landowners on the 12^th April 2020 at Sir John Guise Stadium, [?]requested me to join as a party to dismiss the following proceedings filed by the Second Defendant without their knowledge to delay/frustrate the payment of their rightful royalties and some of such proceedings are:

(a) OS 570 of 2015: Gigira Laitepe Palamanda Association Inc. vs State & Others

(b) OS 645 of 2015: Gigira Laitepe Palamanda Association Inc. vs State & Others

(c) OS 121 of 2019: Tuguyawinin Libe Parindali & Erick Kimbe vs. DPE & State

(d) OS (JR) 208 of 2019: Tuguyawinin Libe Parindali & Erick Kimbe vs. DPE & State

Annexed hereto and marked letter “C” is the true copy of their letter of instruction to act and verbally confirmed Peter Potape to continue lead the proceedings in the Waigani National Court.

48. I note that nowhere in the recitals under the heading in the second version of the Authority is express authorisation given to Asia Pacific & Co. Lawyers to represent any of the persons named in the list for the purposes of this present proceeding OS 24/2020. The authorisation which the second version of the Authority purports to give to Asia Pacific & Co. Lawyers is for the purpose of “dismissing all of the proceedings which affect government’s intention to payout the funds”, not for acting for the plaintiff or named members of the Tuguba tribe in prosecuting this proceeding OS 24/2020.
49. Furthermore, I am not persuaded that the photocopy of the second version of the plaintiff’s Authority which has been inserted behind the plaintiff’s originating summons some time after that originating process was filed in OS No. 24/2020 on 18 May 2020 and the further photocopy which is annexure “C” to Mr Lyipita’s affidavit are copies of a genuine document. It is transparently obvious that the heading and recitals where they appear at the top of page one of the second version of the plaintiff’s Authority are what is popularly known in the digital world as a “copy and paste job”. No explanation has been offered by the plaintiff as to how this second Authority came to be placed on the Court’s file behind the originating summons or why this Court should accept photocopies of that second Authority as being satisfactory evidence of authorisation of certain members of the Tuguba tribe to have appointed either the plaintiff to represent them in OS 24/2020 or that the second Authority constitutes authorisation for the law firm Asia Pacific & Co. to represent either them or the plaintiff in OS 24/2020. I therefore find instead that there is sufficient evidence to establish, on balance of probabilities, that the second version of the plaintiff’s Authority is a fabrication.
50. I further find that several of the persons whose names appear on the plaintiff’s first Authority with its list of purported members of the Tuguba tribe, such as Mr Andawi and Mr Wandiya, did not in fact give informed consent to the plaintiff to represent them for the purpose of this proceeding OS 24/2020.
51. Moreover, the affidavit material before the Court indicates that in addition to the 91 members of various clans within the Tuguba tribe who have purportedly signed the first Authority, there are many more members of the Tuguba tribe, possibly thousands, who have not given their consent and authorisation for the plaintiff to represent them in this proceeding. Nor have those other members of the Tuguba tribe agreed that Asia Pacific & Co. Lawyers can act for them or for the plaintiff in this proceeding. These findings, coupled with the absence of any genuine authorisation for the law firm of Asia Pacific & Co Lawyers to act for the plaintiff in this proceeding, lead to the inescapable conclusion that the plaintiff’s first Authority fails to constitute the degree of proof of consent and authorisations for the plaintiff required by Order 5 Rule 13(1) NCR and the cases of Mali v The State and Malewa v Faulkner.
52. Applying the criteria in Mali v the State and Malewa v Faulkner to the facts in this case, I find that because the plaintiff has asserted he was given authority to bring this proceeding by not only the clan leaders of the Tuguba tribe but also by members of the Tuguba tribe, who must number in their thousands:
    • Not all intended members of the Tuguba tribe whom the plaintiff has claimed to represent have been named in the schedule which was supposed to have been attached to the originating summons but which was not and was attached instead as annexure “A” to the plaintiff’s affidavit filed on 18 May 2020;
    • There is insufficient evidence to show that each and every intended member whom the plaintiff claims to represent in this proceeding has given specific instructions, evidenced in writing, to Asia Pacific & Co. Lawyers to act for them or for the plaintiff as their representative;
    • For those two reasons the plaintiff’s first Authority produced in evidence to the Court is defective and does not meet the standard to show that the plaintiff was authorised by all of the persons whom he has claimed to represent, for him to be lawfully able to commence and maintain this proceeding.
    • The plaintiff’s second Authority is a fabricated document.
53. I therefore uphold the submissions of the first and second defendants on this issue and rule that this proceeding is an abuse of process and should be dismissed on this ground alone.
54. Had the plaintiff confined his representation in this class action to members or certain members of his Ware clan, he may well have been able to produce to the Court evidence of the consents and authorisations required by Order 5 Rule 13(1) NCR. However, I decline to comment further on that possibility as to do so would be to enter the realm of speculation.

Issue 2: Does the Court have jurisdiction or power pursuant to ss. 2 and 20 of the Associations Incorporation Act to make the judicial declarations sought by the plaintiff in para. (1) of the originating summons? If so, has the plaintiff established a cause of action for the relief sought against GLP Assn Inc and Mr Parindali?

55. The plaintiff has asserted that the Court has jurisdiction pursuant to ss. 2 and 20 of the Associations Incorporation Act to grant judicial declarations that the GLP Assn Inc cannot represent the views of the customary landowners of the Tuguba Block of the Hides PDL1 LNG Project area and that Mr Parindali does not have standing via the GLP Assn Inc to express views of members of the Tuguba tribe.
56. GLP Assn Inc. and Mr Parindali in answer submit that ss. 2 and 20 of the Associations Incorporation Act confer no jurisdiction or power on the National Court to make judicial declarations such as those which the plaintiff is seeking in sub-paras. 1(a) and 1(b) of the originating summons and that the plaintiff’s claim for that declaratory relief is an abuse of process. The same submission would apply even if leave had been granted to the plaintiff to amend his originating summons to accord with the amendments set out in the amended originating summons which was irregularly filed by Asia Pacific & Co. Lawyers for the plaintiff without leave on 13 October 2020.
57. Section 2 of the Associations Incorporation Act (the Act) provides:

2. Notice of Intention to apply for incorporation of an association.

(1) Where the committee of an association authorizes a person to apply for the incorporation of the association under this Act, that person may, by notice in a newspaper published in and circulating generally throughout the country not less frequently than once a week, give notice that he intends to apply for the incorporation of the association under this Act.

(2) A notice under Subsection (1) shall –

(a) be in the prescribed form; and

(b) give details of the prescribed qualifications for incorporation of the association; and

(c) be submitted to and approved by the Registrar before publication; and

(d) contain the name and address of the person by whom it is given; and

(e) contain such other particulars as the Registrar directs.

(3) Where for any special reason it seems desirable to do so, the Registrar may direct the manner of publication for the purposes of this section.

(4) A person referred to in Subsection (1) may appeal to the Minister against the refusal of approval or any direction given under this section.

(5) The decision of the Minister on an appeal under Subsection (4) is final.

58. The Act is administered by the Registrar of Companies under the aegis of the Investment Promotion Authority. Section 2 of the Act sets out the pre-incorporation requirements for incorporation of an association under the Act. Section 2 provides for a notice of intention to apply for the incorporation of an association and related matters, including publication of notice of intention in a newspaper. If the Registrar refuses to give approval for the content of a notice of intention for publication or if a person is aggrieved by directions of the Registrar regarding a notice of intention, s.2(4) of the Act allows that person a right of appeal against the Registrar’s decision to the Minister having portfolio responsibility for the Act. The Minister’s decision on the appeal is final.
59. Section 2 of the Act is clearly a machinery provision. It sets out the procedure for the giving of notice of intention to apply for incorporation of an association under the Act. Section 2 confers no jurisdiction on the National Court to make declaratory orders. I find that the plaintiff’s claim in paras. 1(a) and 1(b) of his originating summons for declaratory orders against GLP Assn Inc and Mr Parindali based on s.2 of the Act is misconceived.
60. With reference to s. 20 of the Act, that provision is in these terms:

20. General powers of incorporated associations.

Subject to this Act, and to any special restrictions or prohibitions in its rules of trust deed, and without prejudice to any other powers contained in its rules or trust deed or implied by law, an incorporated association has power, by virtue of this Act –

(a) to act as trustee for any other association which has the prescribed qualifications for incorporation; and

(b) to accept and hold on trust any property that is given to the association subject to any trust, and to carry out any such trust; and

(c) to invest its moneys in or on any security in which trustees are for the time being authorized by law to invest trust funds; and

(d) to open and operate on bank accounts; and

(e) to borrow money on such terms and in such manner and on such security (if any) as the association thinks proper, for the purpose of carrying out its objects and purposes; and

(f) to secure the repayment of money so raised or borrowed, or the payment of a debt or liability of the association, by giving a mortgage, charge or security on or over all or any of the property of the association.

61. Section 20 of the Act provides for the general powers of associations which are incorporated under the Act. Section 20 does not confer on the National Court any jurisdiction to grant judicial declarations. As with s.2 of the Act, I find that the plaintiff’s claim for declaratory orders against GLP Assn Inc. based on s.20 of the Act is similarly misconceived.
62. The plaintiff’s claims for declaratory relief against GLP Assn Inc. are squarely based on ss. 2 and 20 of the Act. No other source of jurisdiction for the granting of that relief has been pleaded or invoked by the plaintiff.
63. It makes no difference whether the plaintiff seeks to pursue the relief sought in para. 1(a) and (b) his originating summons involving declarations pursuant to ss. 2 and 20 of the Act against GLP Assn Inc and Mr Parindali or solely against GLP Ass Inc as per the plaintiff’s proposed amended originating summons. The result is the same. The Court has no jurisdiction or power to grant whatever declaratory orders the plaintiff may be seeking pursuant to ss. 2 and 20 of the Act.
64. I accordingly find that the plaintiff’s application for declaratory relief sought in para. (1) of the originating summons discloses no reasonable cause of action; that it is frivolous because it is plainly and obviously untenable as pleaded and cannot possibly succeed and would be bound to fail if it were to proceed to substantive hearing; and it is therefore an abuse of process. In view of this finding, it is not necessary to consider the other submissions of respective counsel in connection with the declarations claimed in para. (1) of the originating summons.

Issue 3: Has the plaintiff established a cause of action for the declaratory relief sought in paras. 2, 3 and 4 of the originating summons?

65. The plaintiff seeks that this Court grant the following declaratory relief pleaded in paras. (2), (3) and (4) of the originating summons:

2. A declaration that Hides PDL1 Landownership issue was settled by decision of Amet J in the matter LTC Hides Gas Project, Hiwa Tribes v Tuguba Tribes (1993) PNGLR 309, which was solidified through the Compromise Agreement of 7^th July 1993.

3. A declaration that the Intra Clan Benefit Percentage Sharing Agreement reached on 24^th January 2019 which was signed by all genuine clan leaders of Tuguba Tribe for the percentage sharing or apportionment of benefits and later endorsed by Fourth Defendant is legally binding.

4. A declaration that the Ministerial Determination of 29^th February 2019 gazettal number G188 identifying the beneficiary clans in the following percentage apportionment of benefits for Tuguba tribe is valid for all intend [sic] and purposes:

Tuguba Tribe percentage apportionment of 25%

(a) Nguane 12.5%

(b) Ware 2 12.5%

(c) Pate 12.5%

(d) Tabu 12.5%

(e) Tagua 12.5%

(f) Jugu 12.5%

(g) Tagobali 12.5%

(h) Pepe 2 12.5%

66. The full title of the Hides Gas Project Land Case referred to by the plaintiff in para. (2) of the originating summons is set out below:

In the Land Titles Commission
Application No. 90/101
In the matter of an Order of the Governor-General acting on advice of the National Executive Council, under s.4(3) of the Land Disputes Settlement Act, in respect of a dispute over land delineated in Portions 150C to 163C (incl.) in the Milinch of Karius (SE) known generally as the Hides Gas Project
-And-
In the matter of an Application by the Minister for Lands under Section 74 of the Land Act in respect of Portions 159C to 163C (incl.) Milinch of Karius (SE) known as the Hides Gas Project.
Between:
The Tuguba Tribe
And:
The Hiwa Tribe

Clans of: Kopiye
Arua
Topani
Wita
Pina
Tuguba Pepe

67. I observe that the decision of Amet J (as he then was) in the Hides Gas Project Land Case only determined in a general way which clans in the Tuguba and Hiwa tribes have customary ownership of land within the Hides Gas Project area. The decision did not identify sub-clans.
68. Reproduced below are his Honour Amet J’s findings as at 1993 which are set out at p. 319 of the Hides Gas Project Land Case:

I make the following finding of ownership in relation to each portion of disputed land:

1. Nogoli camp site

2. Camp site water line easement – Kopiye clan

3. Road access from Nogoli to plant site and Kuru village: the five clans who are the present occupants:

(a) Kopiye clan owning 1.09 ha. Shown on Cat. No. 10/246 Portion 163.C.(A) Inst. No. 06/184.

(b) Ware clan owning 1.99 ha. shown on both Cat. No.10/246 Portion 163.C.(B) Ins. No. 06/184.

(c) Arua clan owning 3.92 ha. shown on both Cat. No. 10/346 and 10/347 Portion 163C.(C) Inst. No. 06/184

(d) Arua clan owning 0.85 ha. shown on both Cat. No. 10/347 Portion 163C.(D) Inst. No. 06/184

(e) Pina clan owning 4.39 ha. shown on both Cat. No. 10/347 Port 163 C.(E) Inst. No. 06/184.

4. Girebo water source and water pipeline. Encumbent Tuguba Pepe Clan.

5. Hides, parts of gas and water pipeline. Witta Clan.

6. Hides 2 and part of gas pipeline. Topani Clan.

7. Plant site and water line easement. Pina [Clan].

In the end result, the decision has been in favour of the clans who are in physical occupation of the land, supported considerably by the principles I have relied on above, as supported by the evidence of “sufficient” period of time in occupation.

69. There is reference in [6(i)] of the affidavit of the plaintiff’s counsel Mr Lyipita to a Compromise Agreement said to have been dated 7 July 1993 and which apparently confirmed who were the clans within the Tuguba tribe. I have been unable to locate a copy of the Compromise Agreement in any of the voluminous affidavit material which has been filed for the plaintiff in this proceeding. The Court cannot entertain any application for a declaration to be made concerning a land ownership issue if a document or a true copy of same to be referred to in the judicial declaration which is being sought has not been produced in evidence. The Court cannot make findings or rule on issues relating to a document which is central to the declaratory relief sought if that document is not before the Court. The plaintiff’s claim in para. 2 of the originating summons is for a declaration to be made by the Court that the Hides PDL1 land ownership was settled by the 1993 decision of Amet J in the Hides Gas Project Land Case as “solidified” by a Compromise Agreement dated 7 July 1993 which has not been adduced in evidence. The decision of Amet J in the Hides Gas Project Land Case is a matter of public record. However, the Compromise Agreement is not. It should have been adduced in the plaintiff’s affidavit material in support of originating summons. It was not. The relief claimed in para. (2) of the originating summons is liable to be dismissed on this ground alone as an abuse of process for failure to have produced evidence of the Compromise Agreement which allegedly “solidified” the 1993 decision of Amet J in the Hides Gas Project Land Case.
70. I observe, however, that the Compromise Agreement is referred to in a “To Whom It May Concern” document on Dept of Petroleum and Energy letterhead dated 13 March 2014 which is annexure “D” to Mr Lyipita’s affidavit filed on 18 May 2020. That document states that it was signed by Alphonse Alap, Assistant Director Coordination and Liaison Branch of the Petroleum Division of the Department. Mr Alap says as follows:

TO WHOM IT MAY CONCERN’

SUBJECT: CONFIMATION OF TUGUBA CLANS WHO ARE PARTIES TO THE COMPROMISE AGREEMENT

This is to confirm that per Hides Gas Project landownership Dispute Compromise Agreement between Hiwas and Tugubas made on the 7th day of July, 1993. The Tuguba clans who are parties to the Agreement and current beneficiaries of the Hides Gas Project such as royalty are as listed below:

1. Pate Clan

2. Ware 2

3. Jugu

4. Tagua

5. Tabu

6. Nguane

7. Pepe 2

8. Tagobali

The other clans who were not parties to the Compromise Agreement but included into the Tuguba clans during the benefit sharing are the Koe and Tukuba Maruka clan.

The above mention Tuguba clans, are landowning clans in the Hides PDL 01. The Tuguba clans and their sub clans and it members, therefore will also directly or indirectly benefit from the PNG LNG project proceeds such as royalties, Equity, IDG funds and others that arise from the operation of the project as they are signatories to the Hides PDL 1 and 7 LBSA.

71. Mr Lagap’s above statement indicates that in addition to Tuguba tribe clans nos. 1 to 8 which he has named, the “Koe and Tukuba Maruka clan (which could be two separate clans) are also acknowledged by the Department of Petroleum and Energy as being within the Tuguba clan and therefore entitled to a share of the royalties and other benefits accruing to clans within the Tuguba tribe from the PDL1 area of the Hides Gas Project. This runs counter to the plaintiff’s position, which is that only the clans listed 1 to 8 within the Tuguba tribe named in Mr Lagap’s “To Whom It May Concern” statement on behalf of the Department of Petroleum and Energy are the clans within the Tuguba tribe entitled to receive royalties and other financial benefits accruing from the Hides Gas Project.
72. I am unable to determine from the evidence adduced to date in this proceeding if the Koe and Tukuba Maruka clan(s) have taken steps to prevent the Department of Petroleum and Energy and the MRDC from releasing royalties and other financial benefits from the Hides Gas Project to the entitled 8 clans in the Tuguba tribe whom the plaintiff purports to represent.
73. Para. (3) of the originating summons refers to an Intra Clan Benefit Percentage Sharing Agreement Consent Form dated 24 January 2019. A copy of that Agreement Consent Form is annexure “B” to the plaintiff’s affidavit filed on 18 May 2020. This copy document, which is barely legible, appears to contain the consents of various persons within the 8 clans named in the Ministerial Determination referred to in para. (4) of the plaintiff’s originating summons. It indicates that agreement had been reached by representatives of clans nos. 1 to 8 listed in Mr Lagap’s “To Whom It May Concern” document dated 13 March 2014 that each of those 8 clans within the Tuguba tribe are to receive 12.5 % of royalties and other benefits from the Hides Gas Project.
74. A copy of the Ministerial Determination referred to in para. (4) of the plaintiff’s originating summons is annexure “C” to the plaintiff’s affidavit filed on 18 May 2020. The Ministerial Determination was made by Minister for Petroleum Dr Fabian Pok under ss.169 and 170 of the Oil and Gas Act No. 49 of 1998 (as amended). The Ministerial Determination is dated 9 March 2019, not 29 February 2019 as pleaded in para. 4 of the plaintiff’s originating summons. The Ministerial Determination was published in National Gazette No. G188 of 2019 on 13 March 2019. The Ministerial Determination states:

MINISTERIAL DETERMINATION

PNG LNG PROJECT – PETROLEUM DEVELOPMENT LICENCE No. ONE

PDL 1 – TUGUBA REGION

IDENTIFIED CLANS AND BENEFIT SHARING PERCENTAGE APPORTIONMENT

I, the Minister for Petroleum, Dr Fabian Pok, MEc, PhD, MP, by virtue of Sections 169 and 170 of the Oil and Gas Act 1998 (as amended), and all other powers enabling me hereby make the following Determination on the PNG LNG Project Petroleum Development Licence One (PDL 1), Tuguba Region, impacted beneficiary clans, which are entitled to receive Royalty and Equity benefits and the sharing of 25% of 57% from the UBSA allocation.

Having received and considered the reports and the signed Clan Consent Forms, the landowner identification studies carried under S.47 of the Oil and Gas Act 1998, the PNG LNG Umbrella Benefit Sharing Agreement (UBSA), the PDL 1 Licensed Based Benefit Sharing Agreement (LBBSA), the Amet J’s Decision Re Hides Gas (1993) PNGLR 309, the Hiwa Tuguba Compromise Agreement dated 7^th July, 1993 and other related submissions for the purpose of S.169 & 170, I as Minister responsible for the implementation of the Oil and Gas Act 1998 (as amended) made the following Determination:

1. Appearing on Schedule 1 are the beneficiary clans of the PNG LNG Project Petroleum Development Licence Onc (PDL 1) Tuguba Region, which are entitled to receive Royalty and Equity benefits in accordance with the benefit sharing agreement and percentage apportionments as shown on this Determination.

BENEFICIARY CLANS OF TUGUBA REGION OF HIDES PDL 1 AND PERCENTAGE APPORTIONMENTS

TUGUBA REGION- MAJOR BENEFICIARY CLANS AND PERCENTAGE APPORTIONMENTS

NO.	MAJOR CLANS	PERCENTAGE APPORTIONMENT
1	Nguane	12.5
2	Ware 2	12.5
3	Pate	12.5
4	Tabu	12.5
5	Tagua	12.5
6	Jugu	12.5
7	Tagobali	12.5
8	Pepe 2	12.5
	TOTAL:	100

75. In summary, the declaratory relief sought by the plaintiff at paras. (2), (3) and (4) of the originating summons is aimed at attempting to arm the plaintiff with judicial declarations which validate the Ministerial Determination of 9 March 2019 and which confirm that the 8 clans of the Tuguba tribe named in that Determination are the beneficiaries each entitled to a 12.5 % share of the overall 25 % which the Tuguba tribe receives out of the 100% total that the various entitled tribes receive under the PDL License Base Benefit Sharing Agreement (LBBSA) for the Hides Gas Project.
76. Mr Lyipita’s extract of submissions asserts at [6.8] to the effect that the declarations claimed at (2), (3) and (4) of the originating summons are sought by the plaintiff so as to give effect to the process under ss. 168 and 176 of the Oil and Gas Act to enforce payment of royalties “available under the Hides LBBSA Agreements”. Despite numerous references to the LBBSA in the affidavit material filed by the plaintiff, there is no documentary evidence before the Court of the actual content of the document called the LBBSA, nor have I been able to ascertain from the affidavit material before the Court the date on which the LBBSA was signed and who comprised the cohort of parties who signed that Agreement.
77. I observe that whereas the jurisdiction for the Court to grant the declarations sought in para. (1) of the originating summons is pleaded by the plaintiff, albeit wrongfully, as being ss. 2 and 20 of the Associations Incorporation Act, no source of jurisdiction of the Court is pleaded by the plaintiff for the declarations he seeks in paras. (2), (3) and (4) of the originating summons.
78. As the plaintiff claims declaratory relief in paras. (2), (3) and (4) of the originating summons for which no source of jurisdiction for this Court to grant has been pleaded or advanced for the plaintiff, it is necessary to consider what purpose the granting of the additional three declarations sought by the plaintiff could achieve.
79. I find that the validity of the Ministerial Determination has already been determined and upheld by the National Court in Pelego v Pok (2021) N8745 where Makail J on 8 February 2021 dismissed a multi-party challenge to that Determination in judicial review proceedings OS (JR) Nos. 2011, 217, 221, 223 and 226 of 2019. Representatives of the Pate clan and Muya clan within the Tuguba tribe coming from the PDL1 and PDL7 area of the Hides Gas Project were among the plaintiffs in those proceedings. The common grievance of all plaintiffs in those consolidated proceedings was that the clans which they represented had been omitted from Minister Hon. Dr Fabian Pok’s Ministerial Determination dated 13 May 2019 made under ss. 168 and 169 of the Oil and Gas Act which identified those landowner clans within the Hides Gas Project who are lawfully entitled to equity and royalty benefits.
80. The primary issues which were addressed by Makail J in Pelego v Pok were these:

1. Whether there was a dispute among the landowners in PDL1 and PDL 7 as to their identification for entitlement to sharing of equity and royalty benefits from the Hides Gas Hides Project.

2. If so, whether the Minister is authorised or empowered to make an identification for entitlement under ss. 169 and 170 of the Oil and Gas Act.

3. If so, whether the dispute as to landowner identification falls within the jurisdiction of the Land Disputes Courts under the Land Disputes Settlement Act.

81. With reference to issue 2, His Honour held at [62] that a social mapping study and landowner identification study under s.47 of the Oil and Gas Act are not pre-conditions for a Ministerial Determination to be made under ss. 169 and 170 of the Act. A Ministerial Determination made without the benefit of a social mapping study and landowner identification study is not a ground to set aside a Ministerial Determination, nor does the absence of those studies form a basis to find that the Minister acted ultra vires his power or made an error of law under s.169 of the Act.
82. His Honour continued at [63] and [64]:

63. It follows that it was open to the Minister to rely on the available information including the Land Titles Commission decision by Sir Arnold Amet and the Hiwa-Tugube Compromise Agreement which has not been varied or set aside and remains in force to date to make a determination.

64. I am satisfied that disputes over ownership and occupation rights including user rights which may lead to an entitlement to equity and royalty benefits under Section 169 should fall within the jurisdiction of the Land Disputes Court[s] under the Land Disputes Settlement Act. The plaintiffs are at liberty to take their grievance there.

83. The case of Parindali v Nuau (2021) N9086 is a further set of proceedings, OS (JR) 208 of 2019 and OS (JR) 209 of 2019, heard by Miviri J, which separately challenged the same Ministerial Determination of Minister Hon Dr Fabian Pok which was the subject of the judicial review proceedings in Pelego v Pok. This is the same Ministerial Determination which is the subject of the declaration now sought by the plaintiff in para. 4 of the originating summons in the present proceedings OS 24/2020 before this Court.
84. Mr Parandali in his capacity as representative of the Nguane Clan of the Tuguba tribe was the lead plaintiff in OS (JR) 208 of 2019. Chief Peter Potape as representative of the Ware 2 clan and Chief Kupyawialujia of Pepe 2 clan, both of the Tuguba tribe, were joined as 5^th defendants in consolidated proceedings OS (JR) 208 of 2019 and OS (JR) 209 of 2019.
85. It was held by Miviri J in Parindali v Nuau in his decision recently delivered on 5 August 2021 that as the same Ministerial Determination of Minister Hon. Dr Fabian Pok was found by Makail J in Pelego v Pok to be valid in law, the Ministerial Determination is binding for all purposes. Miviri J ruled that this second challenge to the same Ministerial Determination could not be sustained. The proceedings in Parindali v Nuau were dismissed as there was no decision of the Minister remaining for judicial review. The jurisdictional basis for the second challenge to the Ministerial Determination to revisit and review the Minister’s decision to issue that Determination no longer existed given the findings of Makail J in Pelego v Pok.
86. Reverting to the present case, I consider that there is no utility in the Court now issuing the judicial declaration sought in para. (4) of the originating summons which, if granted, would merely declare as valid that which the National Court in Pelego v Pok has already found is lawfully valid.
87. I am of the same view regarding the judicial declarations sought in paras. (2) and (3) of the originating summons. The granting of those declarations would similarly have no utility. The Ministerial Determination expressly refers to the Hides Gas Project Land Case of Amet J of 1993 as well as to the Hiwa-Tuguba Compromise Agreement dated 7 July 1993, these being the documents referred to in para. 2 of the originating summons. The Ministerial Determination also refers to “other related submissions for the purposes of s. 169 and 170” of the Oil and Gas Act, which I infer would also include the Intra Clan Benefit Percentage Sharing Agreement dated 24 January 2019 referred to in para. 3 of the originating summons. As Pelego v Pok has found that the Ministerial Determination is itself valid, there can be no utility in this Court declaring as valid certain items of source documentation which have culminated in a Ministerial Determination which the National Court, being a court of competent jurisdiction, has already declared to be valid.
88. I therefore find that the plaintiff’s application for declaratory relief in paras. (2), (3) and (4) of the originating summons discloses no reasonable cause of action.

Issue 4: Is this an appropriate case for the Court to make the coercive order for payment of royalties sought in para. (5) of the originating summons?

89. The relief which the plaintiff claims in para. [5] of the originating summons is as follows:

(5) Pursuant to Section 168 of the Oil and Gas Act 1998, and further to the agreements entered with the Tuguba tribe landowners in the Licence Based Benefit Sharing Agreement (LBBSA) and the MOU signed on 18^th August 2016 between the parties, the Third, Fourth, Fifth, Sixth and Seventh Defendants must effect payment of royalties owed to the Plaintiffs since the first shipment of LNG in 2014 to date within 7 days from the date of the Order.

90. If leave to file the proposed amended originating summons were to have been sought by the plaintiff and granted by the Court (which it was not), the relief claimed under the para. 5 of the amended originating summons would have been in these terms:

(5) An order that the fourth and fifth defendants pays all of the 25% royalty entitlements for Tuguba Block landowners accumulated with interest owed to the Plaintiffs since first shipment of PNG LNG liquified gas to overseas in 2014.

91. The plaintiff is seeking a coercive order primarily directed to the Department of Energy and Petroleum and the MRDC to pay royalties to the entitled 8 clans of the Tuguba tribe which have been held in abeyance by those defendants. It is clear on the evidence before the Court that the royalties have been withheld because of previous inter-clan and intra-clan disputes over entitlement by the Tuguba landowners at PDL1 and other PDLs within the Hides Gas Project area and also because of the prolix litigation concerning the Ministerial Determination made by Minister Hon. Dr Fabian Pok on 9 March 2019 which was gazetted on 13 March 2019 but which has now been resolved by the decision of Makail J in Pelego v Pok.
92. Section 168 of the Oil and Gas Act relevantly provides:

168. Royalty benefit.

(1) Subject to this section and Section 169, the State grants to the project area landowners, the affected Local-level Governments and the Provincial Governments of a petroleum project, if any, a royalty benefit in respect of that petroleum project.

(2 ) The royalty benefit granted under this section shall be shared between the project area landowners the affected Local-level Governments and the affected Provincial Governments of the project in proportions agreed by them in a development agreement, but in default of such agreement in the proportions determined by the Minister, by instrument.

(3) The royalty benefit granted under this section shall be payable monthly, by the Minister, out of royalties payable to the Minister pursuant to Section 159.

(4) The royalty benefit granted under this section shall be paid to the trustee and held on trust for the grantees in accordance with Section 176.

93. Section 176 (1) of the Oil and Gas Act provides:

176. Project benefits trusts.

(1) The equity benefit granted by the State in accordance with Section 167 and royalty benefit granted by the State in accordance with Section 168 to project area landowners ... shall be received and held upon trust for those project area landowners by a corporate trustee which is wholly owned by MRDC.

94. Section 176 (3) of the Act then sets out extensive requirements for the establishment and administration of equity and royalty trust funds which are held by a trustee company owned by MRDC. Those requirements include the creation of a trust deed approved by the Minister; the board of directors of the trustee company must comprise representatives of the State (including the managing director of MRDC) who are in the majority and representatives of the grantees of the benefit who are in the minority; the trustee company and the trust funds held by the trustee must be managed by MRDC; and unless otherwise agreed between the State and the grantees of the benefit or prescribed by law, the beneficiaries of the trust must be incorporated land groups.
95. The affidavit material filed for the plaintiff in support of the order for payment of royalties for the entitled 8 clans of the Tuguba tribe he is seeking at para. (5) of the originating summons is sparse. The reason given for the plaintiff seeking that order is to be found at [26] and [27] of the plaintiff’s affidavit filed on 18 May 2020 in support of his motion for interim restraining orders against GLP Assn Inc and Mr Parindali. This is all that the plaintiff says in this regard:

26. On the 24^th January, 2019, a final ministerial determination was made on the benefit sharing percentage apportionment for Tuguba Tribe, which was gazetted in the National Gazette of 13^th march 2019 as stated in paragraph 6.

27. The only thing remaining was for the State to do is to pay us the landowners of Tuguba tribe our 25% benefit. State’s own failure has delayed the payments which has caused me and my people to suffer in the streets of Port Moresby and in the villages of Tuguba Tribe.

96. The plaintiff’s counsel, Mr Lypita, contends at [5] of his affidavit filed on 18 May 2020 that the GLP Assn Inc and Mr Parindali filed their National Court proceedings OS 570 of 2015, OS 645 of 2015, OS 121 of 2019 and OS (JR) 208 of 2019 to delay or frustrate payment of the royalties which had accrued to Hides PDL Tuguba Block landowners.
97. Beyond this, there is no evidence for the plaintiff to indicate, among others:
    • where are the royalties presently held for the entitled 8 clans of the Tuguba tribe?
      • if the royalties have been paid by the State to the MRDC thence to a trustee company wholly owned and managed by the MRDC, have the provisions of s.176(3) of the Oil and Gas Act been complied with regarding the creation of a trust deed approved by the Minister? If so, who holds that trust deed and why has it not been produced in evidence before this Court?
      • if the remainder of the provisions of s.176(3) of the Oil and Gas Act have been complied with, and in particular are the entitled 8 clans of the Tuguba tribe incorporated land groups or has that requirement been dispensed with by agreement with the State or some other prescriptive measure?
      • if any steps have been taken by the plaintiff or others to require the MRDC to disclose the quantum of royalty funds which has accrued to the entitled 8 clans of the Tuguba tribe since first shipment of liquified natural gas from the Hides Gas Project to overseas in 2014?
      • have the royalty funds been accumulating interest and if so, at what rates of interest and for what periods?
98. In the absence of this crucial information, the Court has no credible evidence on which to rely for the purpose of issuing an order for the release and payment of royalties to the entitled 8 clans of the Tuguba tribe, assuming they were all properly represented by the plaintiff and the law firm Asia Pacific & Co (which I have found they were not). The evidence of the plaintiff, such as it is, on this core issue for the relief sought in para. (5) of the originating summons is vague and inconclusive.
99. I consider that in view of the unsatisfactory nature of the evidence presented by the plaintiff in support of the claim at para. (5) of the originating summons for a coercive order to be made by the Court for payment of accrued royalties, this Court is not in a position to grant that relief. I find that no reasonable cause of action in this regard has been disclosed for the purpose of this proceeding.

Conclusion

For the reasons given, I have found that each of the plaintiff’s claims in its originating summons for this Court to exercise its discretion to grant the declaratory and coercive relief sought have failed. Applying the recognized principles which pertain to applications to dismiss made pursuant to Order 12 Rule 40 (1) NCR, I have found that the originating summons and evidence adduced by the plaintiff in support of the relief sought have failed in the circumstances of this case to collectively disclose any reasonable causes of action and that abuse of process has occurred. I have also found that the plaintiff’s application for declaratory relief claimed pursuant to ss. 2 and 20 of the Associations Incorporation Act was frivolous in that the claim in that regard could not possibly succeed as pleaded. The plaintiff also failed to meet the procedural requirements of Order 5 Rule 13 NCR for a representative action. The proceedings must be dismissed. It follows therefore that the ex parte interim injunction granted on 1 June 2020 will be dissolved and all pending motions before the Court will be subsumed and voided under the order for dismissal.

100. However, I wish to add these observations. If the plaintiff can establish proper representation for a representative action in accordance with Order 5 Rule 13 NCR and if steps are taken to obtain the information required in connection with the location of the trust funds which should presently be held in a trustee company managed by the MRDC in accordance with s.176 (3) of the Oil and Gas Act, then fresh proceedings could presumably be instituted by the plaintiff in the National Court, whether it be by way of leave for mandamus under the judicial review procedure set out in Order 16 NCR should a decision without alleged reasonable cause be taken by MRDC or the relevant trustee company not to release and pay the royalties to any of the class of persons within the entitled 8 clans of the Tuguba tribe who the plaintiff can satisfy the Court he represents, alternatively by way of ordinary civil proceedings commenced by writ of summons seeking orders for the release and payment of those royalties. Order 4 Rule 3(2)(b) NCR provides to the effect that proceedings commenced by writ of summons rather than originating summons are more appropriate if there is likely to be a substantial dispute of fact. One of the features of this present case is that the preponderance of facts and issues which are in dispute is very significant, with allegations and counter-allegations of parties misleading the Court, misconduct by parties and improper purpose by parties being rife. It is not appropriate for this Court to allow this particular proceeding in OS 24/2020 to continue further using the originating process. It will be for the plaintiff and his legal advisors to decide what the next steps should be.
101. If there are clans or members of clans who continue to be aggrieved by the Ministerial Determination because of intra-clan disputes over customary land ownership, then I quote from Pelego v Pok where Makail J said at [64]:

I am satisfied that disputes over ownership and occupation rights including user rights which may lead to an entitlement to equity and royalty payments under Section 169 should fall within the jurisdiction of the Land Disputes Courts under the Land Disputes Settlement Act. The plaintiffs are at liberty to take their grievance there.

Costs

102. The usual order that costs should follow the event will apply, except that I consider it appropriate that the applicants for joinder should bear their own costs as they did not appear by counsel on the hearing of the dismissal application on 16 February 2021.

Order

103. The formal terms of the Court’s order are as follows:
     

(1) The ex parte interim injunction granted in this proceeding on 1 June 2020 is dissolved.

(2) The motion of the First and Second Defendants that this proceeding be dismissed is granted pursuant to Order 12 Rule 40(1) of the National Court Rules.

(3) All other motions which were pending in this proceeding are voided as they have been subsumed or merged by the preceding order for dismissal of this proceeding.

(4) The applicants for joinder as co-plaintiffs in this proceeding, namely Richard Takima Hirua and Erick Hawaii Ako, shall bear their own costs of and incidental to their motion filed on 2 July 2020.

(5) Subject to existing orders as to costs previously made in this proceeding, the Plaintiff shall pay the costs of the First, Second, Third, Fourth, Fifth and Seventh Defendants in contesting this proceeding, such costs to be taxed if not agreed.

_______________________________________________________________

Asia Pacific & Co. Lawyers: Lawyers for the Plaintiff

Diwenis Lawyers: Lawyers for the First and Second Defendants

Solicitor-General: Lawyer for the Third, Fourth and Seventh Defendants

Trent Tefuarani: In-house lawyer for the Fifth Defendant

Mel & Hennry: Lawyers for the Sixth Defendant

AD Lorawi Lawyers: Lawyers for Joinder Applicants R.T. Hirua and E.H. Ako