Akilo v Manau [2022] PGNC 268; N9727 (15 June 2022)

N9727

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 101 OF 2022 (IECMS)

BETWEEN:
TATAPE AKILO
for himself and as the successor of Tamita Malamu for an on behalf of the Hunimani Clan members who are landowners and 4 percent beneficiaries of the Hides Gas Compromise Agreement
First Plaintiff

AND:
TAYALI OLA
For himself and as successor of Tigi Kaia for an on behalf of the Ware Clan members who are landowners and 5 percent beneficiaries of the Hides Gas Compromise Agreement
Second Plaintiff

AND:
EKAWI TAYANDA
For himself and on behalf of the Wita Clan members who are landowners and 14 percent beneficiaries of the Hides Gas Compromise Agreement
Third Plaintiff

AND:
URULU WANDIAGO
For himself and as successor of Wandiago Gihamua for and on behalf of the Topani Clan members who are landowners and 14 percent beneficiaries of the Hides Gas Compromise Agreement
Fourth Plaintiff

AND:
TOLAI AWE
For himself and as successor of Marago Pate on behalf of the Pate Clan members who are landowners and 10 percent beneficiaries of the Hides Gas Compromise Agreement
Fifth Plaintiff

AND:
EKAPE ANDIRA
For himself and as successor of Andari Halepange on behalf of the Pina Clan members who are landowners and 11 percent beneficiaries of the Hides Gas Compromise Agreement
Sixth Plaintiff

AND:
JAMES DIWI
For himself and as successor of Walabe Mara for on behalf of the Tabu Clan members who are landowners and 12.5 percent beneficiaries of the Hides Gas Compromise Agreement
Seventh Plaintiff

AND:
JAMES BARI
For himself and as successor of Mathias Bari for on behalf of the Yugu Clan members who are landowners and 10 percent beneficiaries of the Hides Gas Compromise Agreement
Eighth Plaintiff

AND:
DAVID MANAU
as Secretary for Department of Petroleum and Energy
First Defendant

AND:

HONOURABLE KERENGA KUA
As Minister for Department of Petroleum and Energy
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Tamade AJ
2022: 14^th June, 15^th June

INJUNCTIONS – Interlocutory injunctions – restrain defendants – should injunctive orders remain or be set aside – requirements for injunctive orders – plaintiffs failed to make an arguable case to obtain injunctive orders.

Cases Cited:

Papua New Guinean Cases

The following case is cited in the judgement:

Employers Federation v Waterside Workers (1982) N393
Robinson v National Airlines Corporation [1983] PNGLR 476

Overseas Cases

American Cyanamid Company v Ethicon Limited (1975) 1 ALL ER 594

Counsel:

Mr. Jerry Kama, for the Plaintiffs
Mr. Eava Geita, for the Defendants

15^th June, 2022

1. TAMADE, AJ: On 12 May 2022, the Plaintiffs were granted certain injunctive orders ex parte by way of an urgent hearing. Those injunctive orders, therefore, returned to Court on Tuesday 14 June 2022 for inter-parte hearing for the Court to ascertain whether those injunctive orders should remain and or be dissolved and be set aside.

2. The Plaintiffs claim that they are landowners of the Hides Petroleum Development Licence (Hides PDL 1) area in the Southern Highlands Province. The Plaintiffs also claim that there were land disputes over the project area which were resolved through a Compromise Agreement between various clans in the project area.

3. The Plaintiffs claim that under the Compromise Agreement, they were expected to receive certain benefits from the project. The Plaintiffs assert that they have missed out on benefits emanating from the project even though they have submitted certain proposals for infrastructure grants to the Department of Petroleum and Energy.

4. In the Affidavits filed by the Plaintiffs, they state that, there was a promised payment of K120 million from the National Government for the Hides Gas Project, K93 million has been paid out for various projects and infrastructure but the Plaintiffs never received any funds at all.

5. The Plaintiffs also state that in 2015, they filed court proceedings against the State for funds that were supposed to be paid to the landowners but were instead paid to the provincial government which saw some funds being paid to the landowners and therefore on being aware that certain payments were to be paid out by the Department and the State, the Plaintiffs have come together to file these proceedings to ensure they have access to these payments.

6. The Plaintiffs also claim that they have requested necessary information from the Department of Petroleum and Energy in regard to the outstanding payments and they have written to the Attorney General, however they have not received any information or assistance in regard to their requests for information as to payments and or benefits from the project. They allege that the State has failed to adhere to the subject Compromise Agreement and as a result landowner benefits have been misused and or misappropriated through State entities.

7. The Plaintiff’s claims are varied and among the allegations as against the State and its agencies is that the State failed to carry out a proper landowner identification process to properly vet the identification of correct landowners to benefit from the project and this was resolved through the Compromise Agreement between clans that the Plaintiffs rely on in this proceeding.

8. The Plaintiffs then became aware through the Department of Petroleum and Energy by way of general notice in the National newspaper on 8 February 2022, that the Department of Petroleum and Energy had notified landowners of the Hides Gas to Electricity, Kutubu PDL 2, Gobe PDL 3 & 4 and Moran PDL 5 and 6 a notice of payment. The Plaintiffs submit that according to this media publication, the funds subject to payment were open to being paid to people other than the landowner beneficiaries.

9. The Plaintiffs then applied to Court for urgent restraining orders and were granted interim injunctive orders on 12 May 2022 to restrain the Defendants from paying out a total of K27 million.

10. The First Defendant, Mr David Manau who is the Secretary for the Department of Petroleum and Energy has deposed in an Affidavit stating that he is the Chairman of an Expenditure Implementation Committee for the final capped MOA outstanding payment of K120 million under an NEC decision No. 119/2021.

11. Mr Manau also states that the National Executive Council had approved the establishment of the Expenditure Implementation Committee under the Oil & Gas Act to vet and approve infrastructure project proposals using the criteria in an NEC decision No.96/2010.

12. Mr Manau also states that the final capped MOA outstanding funds are to the sum of K120 million for the purpose of infrastructure projects as the final payment in lieu of outstanding Oil Project MOA commitments for existing Oil and Gas projects for Kutubu, Gobe, Moran and Hides Gas to Electricity Project areas in accordance with the NEC Decision No. 96/2010.

13. Mr Manau states also that the Hides Gas Project Landownership Dispute Compromise Agreement dated 7 July 1993 is a land dispute agreement amongst the disputing landowners and does not concern the Department or the State.

14. What is of interest to this Court to note is that Mr Manau in his Affidavits states on oath that on 12 May 2022 when the Plaintiffs obtained the ex parte orders in Court, the same day the capped MOA funding of K27 million earmarked for the Hides project was disbursed to the successful project applicants. The Department of Petroleum and Energy only received the Orders of the Court on 18 May 2022. Mr Manau states that five of the eight Plaintiffs in these proceedings being the First, Second, Fifth, Seventh and Eight Plaintiffs on 12 May 2022 received part of the capped MOA cheque payments and executed Contracts and Deeds of Releases with the Defendants. Mr Manau states that the Plaintiffs are therefore estopped from claiming any benefits in these proceedings as they have signed agreements that releases the Defendants from any claims over these project payments. It is Mr Manau’s evidence that the Plaintiffs have misled the Court in failing to give full disclosure as to the payments received from the Defendants and that the proceedings, therefore, serve no purpose.

Should the interim injunctive orders of 12 May 2022 continue?

15. The requirements for the grant of injunctive orders as an equitable remedy are settled in numerous cases and as can be seen from the case of American Cyanamid Company v Ethicon Limited (1975) 1 ALL ER 594 and expanded in this jurisdiction in the case of Employers Federation v Waterside Workers (1982) N393 and Robinson v National Airlines Corporation (1983) PNGLR 476. The requirements for the grant of injunctive orders are:

a) has the Plaintiff delayed in making the application?

b) is the action frivolous or vexatious

c) is there a serious question to be tried - does the Plaintiff have a serious and not a speculative case which has a real possibility of ultimate success

d) does the balance of convenience favour granting or refusing the injunction

e) if an injunction is not granted, can the Plaintiff’s loss be adequately compensated in damages

f) is the Defendant adequately protected by the Plaintiff’s undertaking as to damages

g) when all other things are equal, the status quo should be preserved

16. Mr Kama of the Plaintiffs when asked whether he had any knowledge of whether his clients received the payments as stated by the First Defendant on 12 May 2022 was of little assistance. He submitted that he was informed by his clients afterwards however denies that his clients received any payment at all and made serious allegations that were imputed to mean that his clients did not receive any payment and did not sign any documents from the Defendants.

17. I had admonished Mr Kama during the course of the hearing that he had a duty to the Court to assist the Court as to the evidence presented by Mr Manau and that from 12 May 2022 to the date of hearing on 14 June 2022, Mr Kama never enquired with his clients as to the evidence by Mr Manau and never put forward any evidence in rebuttal. He simply made arguments at the bar table that the affidavit by Mr Manau cannot be believed alleging tha,t it was a fraud and that his clients never collected any payment from the Defendants.

18. The Court pointed out to Mr Kama in the exchange in submissions that two things of pertinent importance emerge from the Affidavit of Mr Manau, whether his clients were withholding information or not giving full disclosure to the Court and were thereby misleading and outright telling lies to the Court that they have actually collected payments from the Defendants and or that Mr Kama had not done his due diligence to disclose any material fact that came to his knowledge about whether he knew his clients received payments from the Defendants on 12 May 2022. A party has a duty to disclose any material fact that may not be in their favour, and this rests much heavier on the shoulders of lawyers representing their clients who owe that duty to the Court first and foremost.

19. The Court accepts that on 12 May 2022, Mr Kama may not have any knowledge at all about his clients receiving the said payments from the Defendants however from the 12 May 2022 to the date of hearing on 14 June 2022, from the exchange with Mr Kama, he had some information as to the payments, but he was in complete denial that his clients never received any such payments. A lawyer has a duty to the Court as an officer of the Court first and foremost then to his client. It is a lawyer’s duty to assist the Court as to matters that come within his knowledge and if those matters should be the subject of testing out the truth of the evidence be it cross-examination of Mr David Manau on his Affidavit and the matters deposed to therein, he should challenge the evidence in the appropriate manner and not in the making of spurious allegations at the bar table which is unfounded against evidence of a person under oath.

20. It has therefore come to the attention of the Court that on 12 May 2022 when the Court granted interim injunctive orders to restrain the Defendants from a payout of K27 million for the capped MOA funds for the Hides projects purposed for infrastructure projects that are paid to landowner entities, Mr Manau the First Defendant as Secretary for the Department of Petroleum and Energy has stated in evidence that five of the eight Plaintiffs to his knowledge have accepted payments from the Defendants in relation to the capped MOA K27 million funds.

21. Whilst the evidence from Mr Manau contains evidence as to contracts and Deed of Releases from various clan companies as to infrastructure projects and evidence of payments being paid, matters as to evidence should be properly tried however in the enquiry as to whether there is a serious question to be tried, the Plaintiffs have the onus to prove that there is an identified process as to how these funds have to be disbursed and that on the face of the evidence they present, it appears that the process was not followed by the Defendants and therefore an injunction is warranted in the circumstances. I find no identified process in the pleadings in the Originating Summons, no evidence as to whether such a process was not followed and there is no foundation whether the Plaintiffs are entitled as landowners and not as landowner companies to benefit from infrastructure project grants from the State. The Plaintiffs’ submissions assert a lot of speculations far from a succinct statement of any legal right to warrant a continuity of the injunctions.

22. The Affidavit of one Chief Mr Tatape Akilo states in his Affidavit filed on 9 May 2022, that, the State should give full disclosure of who are the recipients of the MOA capped K27 million and that if the recipients of these payments are not from the Hides Gas Project than the subject K27 million should be paid to the Council of Chiefs and or the Plaintiffs in these proceedings. I find this particular statement contradictory to the intent and purpose of infrastructure project grants in general in project areas which are only paid to landowner companies who meet certain requirements set and never to individual landowners.

23. It is for all these reasons that the Plaintiffs have not met the requirement that there is an arguable case on their behalf, setting out their legal rights as chiefs of their clans as opposed to as landowner companies, and they have not clearly identified the process involved in the release of the subject funds and whether the Defendants have erred in that process.

24. The act that the Plaintiff has obtained Court Orders to restrain has therefore passed on the same day the Plaintiff obtained Court Orders on 12 May 2022 and there is evidence from Mr David Manau the Secretary for the Department of Petroleum and Energy that five of the Plaintiffs have received some payments under the said capped payment.

25. There is an Undertaking as to Damages filed by the Plaintiffs however this Court has the task to assess whether the undertaking is sufficient as to the capacity of the Plaintiffs to meet such an undertaking as it must not be merely a paper undertaking. The Defendants may not be entirely protected by the undertaking in this instance.

26. To my mind, the balance of convenience does not favour the extension of the injunctive orders in addition to the requirement that what is presented before the Court is merely a claim that is speculative and not one which meets the standard of a matter that has serious issues to be tried that warrants the continuity of the injunctions granted to preserve those issues to be tried at the substantive hearing. The Court will therefore set aside those interim injunctive orders.

27. I, therefore, make the following orders

1. the interim injunctive orders granted on 12 May 2022 is set aside.
2. the Plaintiffs shall meet the costs of the Defendants for the application to be taxed if not agreed.
3. time is abridged to the date of these orders to take effect forthwith.
   

Orders accordingly.
________________________________________________________________
Jerry Kama Lawyers: Lawyers for the Plaintiffs
Office of the Solicitor General: Lawyers for the Defendants