Ibusubu v Kua [2023] PGNC 247; N10416 (19 July 2023)

N10416

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 127 OF 2023 (IECMS)

ASI IBUSUBU
Plaintiff

V
HON. KERENGA KUA, MP-MINISTER FOR PETROLEUM & ENERGY
First Defendant

AND
DAVID MANAU, SECRETARY FOR PETROLEUM & ENERGY
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2023: 18^th & 19^th July

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating summons – Notice of motion – Dismissal of entire proceedings – No Cause of Action Disclosed Abuse of Process Order 16 Rule 13 (13) (2) (a) or (b) NCR – Want of Prosecution Order 16 Rule 13 (13) (2) and Order 12 Rule 40 (1) NCR –No Locus Standi – Frivolous & Vexatious – Want of Prosecution Without Due Diligence – Plaintiff of – Leave Application Outstanding – Supporting Affidavit – Evidence Sufficient – balance discharged – dismissal of proceedings – costs follow event.

Cases Cited

District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
O'Neill v Eliakim [2016] PGSC 57; SC1539
Timothy v Marus [2014] PGSC 50; SC1403
Schram v Kekedo [2018] PGNC 198; N7291
Timbers PNG Ltd v Papua New Guinea Forest Authority [2012] PGNC 30; N4638
Agmark Pacific Ltd v Cocoa Board of Papua New Guinea [2012] PGNC 199; N4902
Kawage v Ane [2022] PGNC 402; N9878
Pruaitch v Manek [2019] PGSC 123; SC1884
Takori v Yagari [2007] PGSC 48; SC905
Kunjil v PNG Power Ltd [2007] PGNC 271; N3879

Counsel:

M. Makeu, for Plaintiff
R. Uware, for First, Second & Third Defendant

RULING

19^th July, 2023

1. MIVIRI, J: This is the ruling of the court on the first, second, and third defendant’s Notice of motion filed on the 5^th of July 2023 pursuant to Order 16 Rule 13 (13) (2) (a) (b) and Order 12 Rule 40 (1) of the National Court Rules for dismissal of the proceedings as an abuse of court process.
   
2. It is his argument at the outset that no cause of action is disclosed and therefore the maintenance of the action is an abuse of the process of court. The plaintiff lacks standing because the subject decision does not affect him at all nor his people. Therefore, no reasonable cause of action is caused. The proceedings are frivolous and vexatious and should be dismissed by virtue of the orders set out above. He does not have standing to bring forth the action and because this is the fact against him, it is an abuse of process for him to institute the process.
   
3. In so arguing he relies on the affidavit of search conducted by Nelson Baida sworn of the 28^th June 2023 filed that same day. He further relies on the affidavit of David Manau sworn of that date also and filed the 29^th June 2023. There is a second affidavit of this witness sworn of the 15^th February 2023 filed 17^th February 2023 that the applicant relies upon as basis to move this application.
   
4. Materially Nelson Baida is a para-legal with the office of the Solicitor General. He conducted a search on this matter at the Waigani National Court Registry on the 21^st June 2023. And that search revealed that since the filing of this judicial review application on the 19^th December 2022, the plaintiff is yet to move his leave application for the judicial review. Annexures “A” and “B” are the file cover and file endorsement of the subject file. It means it is now seven (7) months since the institution of the action and has not moved for leave. Given that time is of essence in Judicial review, that by order 16 Rule 4 (1) (2) of the Rules that if the application is seeking certiorari, it ought to be made within four (4) months after the date of the proceeding. It is now seven (7) months since filing. There is no explanation on record why this long since by the plaintiff.
   
5. And the application is sought to bring up the decision of the First Defendant, Minister and to quash it. That is certiorari, an allegation that there is error on the face of record for Judicial review to lie: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192. Given this fact the decision challenged was made on the 25^th November 2022 by the First Defendant by issuing a determination under Gazettal No. G878. That determination identifies and confirms the oil project and the PNG LNG project affected area landowner beneficiary clans and internal benefits sharing percentage apportionments for the Upper and Lower Foe Regions within the Kutubu Petroleum Development Licence 2 (PDL2), Southern Highlands Province. Annexure “A” is a true copy of the Ministerial Determination, per the affidavit of David Manau, Secretary Department of Petroleum & Energy sworn of the 15^th February 2023, filed the 17^th February 2023. In effect it would mean that the subject decision no doubt given the seven (7) months would have been given effect to and carried out. Because it was published in the National Gazette numbered set out above.
   
6. Which evidence is further affirmed by the affidavit of this witness of the 28^th June 2023 reaffirming this earlier affidavit sworn of the 15^th February 2023 filed the 17^th February 2023. He deposes that the plaintiff commenced these proceedings on the 19^th December 2022, seeking to judicially review the First Defendants Ministerial Determination issued under Gazettal Number G878 particulars set out above. “The plaintiffs in their sworn affidavit have failed to provide any evidence to show that they have re-registered their incorporated land Groups as per the Land Groups Incorporated (Amendment) Act 2018, hence they do not have locus standi to pursue this matter. Furthermore, their clan does not fall within the ambits of the Kutubu PDl licensed area rendering them not to have an arguable cause of action.”
   
7. It is a requirement of law by Land Groups Incorporation (Amendment) Act 2018 No. 15 of 2018 Repeal and Replacement of section 36 that; “All current and existing incorporated land groups that were incorporated prior to 27^th February 2012, shall continue for a transitional period of 10 years only and that such incorporated land groups shall automatically cease to exist at the tenth anniversary of this date”. There is no evidence that since this amendment the plaintiff has complied with a re-registration of its land group giving it legal capacity and standing. Because 10 years since 2012 with the present date 19^th July 2023 and even of 19^th December 2022 when this action was filed, there is no evidence of a re-registration of the Plaintiff Land Group. This is vital evidence underpinning this action, locus standi must be demonstrated at the outset for the action to move forward. Judicial review is by a person with standing: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. It must be properly pleaded to sustain Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303. Without the standing this action will not go any further and the foundations of judicial review must be strong to go past and the requirements have been set clear in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949. This is the pleadings for leave which has not been opened up before this Court. Its aggregate effect is that this pleading does not have standing to be voiced.
   
8. This position in law coupled with the primary evidence relied by the applicant cannot sustain the proceedings. There is no responding evidence explaining the delay in moving this originating summons for leave. Seven (7) months is a long time. When the plaintiff is affected by a decision that has been implemented, he does not sleep over the enforcement of that breach, if it is indeed a breach, or decision affecting him. Common Sense and logic demand that he immediately pursues to attain what is due to him. Here apportionment of the benefits sharing due by that Ministerial determination. It cannot be the case that he suffers and does not make complaint immediate of that fact or lays back in the face of injustice. Prejudice to the defendants and the administration of Government in a large project must be avoided. All People who are the majority as opposed to the select in the case of the plaintiff must not override good administration and governance to the majority. Apportionment is benefits to the people there and of Papua New Guinea. Weighing the two sides it would be prejudicial to maintain the action given.
   
9. There is no error in the mode that the applicant has sought to institute the proceedings to dismiss. Because he has specifically sought jurisdiction based upon Order 16 Rule 13 (13) (2) (a) (b) and Order 12 Rule 40 (1) of the National Court Rules for dismissal of the proceedings as an abuse of court process. The latter is of general application. But here specifically the former is the jurisdictional basis, and this application is in order. It is not out of the ordinary because it would follow similar as in O'Neill v Eliakim [2016] PGSC 57; SC1539; Timothy v Marus [2014] PGSC 50; SC1403 and the National court case of Schram v Kekedo [2018] PGNC 198; N7291. These cases specifically address that the Judicial review applications are under Order 16 of the Rules and not with the other provisions of the Rules as a whole. Because in Timbers PNG Ltd v Papua New Guinea Forest Authority [2012] PGNC 30; N4638 it was determined that Order 5 rule 8 of the National Court Rules was inapplicable to a judicial review application under Order 16. So, in law the applicant has come within and there is jurisdiction in the application drawn upon this Court to make given.
   
10. The plaintiff has not referred to authorities that set a different stage to follow. And this would not be what was observed in Agmark Pacific Ltd v Cocoa Board of Papua New Guinea [2012] PGNC 199; N4902 which is not applicable given what the law is set out above. And the pleadings here in the Notice of motion invoke jurisdiction properly to engage given the facts. This authority is not properly assisting the cause of the plaintiff. Reliance on Kawage v Ane [2022] PGNC 402; N9878 in that affidavit supporting the motion have not been filed. That is clearly not in line with the records of the Court showing the above affidavits on filed specifically detailing the evidence as to what is sought by the Notice of motion. This is ground that is without the evidence to support in favour of the plaintiff. It is without merit and will not sway against the material relied in support of the motion to dismiss.
    
11. It is fundamental that the plaintiff explain why the delay in seeking leave outstanding for seven (7) months in clear defiance of Order 16 rule 4 (1) (2) of the Rules that if the application is seeking certiorari, it ought to be made within four (4) months after the date of the proceeding. No written submission no material in support of the assertion to save these proceedings which is evident if the scale is weighed out by the material relied by the Applicant defendants. Because what is an abuse is depended on each set of facts and circumstances: Pruaitch v Manek [2019] PGSC 123; SC1884, multiple actions instituted on the same matter constituted abuse of process. Each circumstance will determine what is an abuse. This is materially a leave application outstanding for seven (7) months no reason as to why by the plaintiff. And considering Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007), plaintiff has not been driven off the seat of judgment without just cause on record in his favour. This is a court of record, and its record will seal as to whether there is material that will defeat the application Kunjil v PNG Power Ltd [2007] PGNC 271; N3879.
    
12. Here the records do not defeat nor deface or water down the application made for dismissal by the applicants. No material has been filed against the application on file since the service of the affidavit relied of David Manau since Wednesday 1^st March 2023 per affidavit of service by Kenneth Papi sworn of the 20^th April 2023. This Notice of motion filed since the 05^th June 2023 affidavit of service of the same sworn by Nelson Baida Para-Legal Office of the Solicitor General sworn of the 11^th July 2023. That he on the 11^th July 2023 served on the plaintiffs, (a) Letter by the Solicitor General dated the 05^th July 2023; (b) Notice of motion filed 05^th July 2023; affidavit of search by me filed 30^th June 2023; (d) affidavit in support by David Manau filed 29^th June 2023. Which were all left with Ms Saiembelly Killiawi legal Clerk with Makeu Legal Services appointed Lawyers for the Plaintiff at their office First Floor, A real Estate main office, section 48, allotment 2, Boreboa, Pitpit Street, North Waigani NCD on the 11^th July 2023 at 11.10am.
    
13. It is clear by this evidence that the plaintiff has not been dragged into this application without just cause. The plaintiff has demonstrated that he is not worried and has not taken the pains to save this cause of action. Rather he has simply prejudiced the defendants from a government decision that is beneficial to all. The aggregate is that this application discharges the burden on the scale required and must be granted as pleaded. Dismissal of the proceedings for want of prosecution and abuse of process. Costs will follow the event against the plaintiff in favour of the defendants.
    
14. The formal orders of the court are:
    
    • (1) The defendants notice of motion is upheld.
    • (2) The proceedings are dismissed for want of prosecution and abuse of process.
    • (3) Costs will follow the event forthwith.

Orders accordingly.
_________________________________________________________________

Makeu Lawyers: Lawyers for the Plaintiff

Office of the Solicitor General: Lawyers for the First, Second & Third Defendants