Kemi v Kua [2024] PGNC 24; N10669 (23 February 2024)

N10669

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 02 OF 2024 (IECMS)

BETWEEN:
JOHN KEMI as Chairman of Keri Landowners Association
Incorporated for and on behalf of the 31 ILG Chairmen
First Plaintiff

AND:
KERI LANDOWNERS ASSOCIATION INCORPORATED COMPRISING 31 INCORPORATED LAND GROUPS (ILGS)
Second Plaintiff

AND:
KERENGA KUA in his capacity as the
MINISTER FOR PETROLEUM & ENERGY
First Defendant

AND:
DAVID MANAU in his capacity as SECRETARY FOR THE DEPARTMENT OF PETROLEUM & ENERGY
Second Defendant

AND:
JIMMY HAUMU in his capacity as
DIRECTOR FOR THE PETROLEUM DIVISION
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Dingake J
2024: 19^th & 23^rd February

JUDICIAL REVIEW – practice and procedure – application for leave for review - decision(s) subject of review is of the Defendants made and published in Gazette No. 9967 on the 5^th of December 2023, making a Ministerial determination on identification of Landowner Beneficiaries of the Papua LNG Project – applicants for leave for review must satisfy preconditions – whether they have locus standi – whether they have an arguable case – whether they have exhausted other available avenues to resolve the matter – whether there has not been undue delay in bringing the matter to Court – plaintiffs contend they have satisfied all the preconditions so leave should be granted – defendants argue plaintiffs have no locus standi – plaintiffs do not have standing – application for leave refused

Cases Cited:

Simon Mali v The State (2002) SC690
Tigam Matewo v Keith Faulkner (2009) SC960
Imawe Bogasi ILG & Others v The State & Other (2006) N3096

Counsel:

Mr. Peter Daime, for the Plaintiff
Mr. Russell Uware, for the Defendants

RULING

23^rd February 2024

1. DINGAKE J: This is my ruling on a contested leave application for Judicial Review of the decision(s) of the Defendants made and published in Gazette No. 9967 on the 5^th of December 2023, making a Ministerial determination on identification of Landowner Beneficiaries of the Papua LNG Project.
   
2. If granted leave the Plaintiffs seek to challenge the decisions of the Defendants on the basis of alleged breach of various sections of the Oil & Gas Act of 1998.
   
3. In order to succeed the Plaintiffs must show that:
   
   • (a) They have locus standi.
   • (b) They have an arguable case.
   • (c) They have exhausted other available avenues to resolve the matter.
   • (d) That there has not been undue delay in bringing the matter to Court.
     
4. The Plaintiffs contend that they have met the above requirements and should be granted leave.
   
5. The State contends, on the main, that the Plaintiffs have no locus standi to bring the matter to Court and that leave should be refused.
   
6. As is plain from the face of the Court papers, the First Plaintiff, John Kemi, claims to bring this proceeding as Chairman of Keri Landowners Association Incorporated for and on behalf of the thirty-one (31) ILG Chairmen.
   
7. The Second Plaintiff is Keri Landowners Association Incorporated comprising thirty-one (31) Incorporated Land Groups (ILGs).
   
8. The Plaintiffs have attached to the Originating Summons a Power of Attorney signed by thirty-one (31) Chairpersons of ILG’s to John Kemi as evidence that the First Plaintiff has authority to bring this proceeding on behalf of thirty-one (31) ILG Chairmen.
   
9. The Plaintiffs argue that the signed Power of Attorney was given to the First Plaintiff to institute this proceeding “in their personal capacities.”
   
10. According to learned Counsel for the Plaintiffs, the requirements of representative or class action as set out in the case or Simon Mali v The State (SC690) and Tigam Matewo v Keith Faulkner (2009) SC960, have been met, as the Power of Attorney is very specific in its terms of reference and makes no mention of the names of the respective ILGs.
    
11. Mr. Uware, learned Counsel for the Defendants, argues, in a nutshell, that since John Kemi purports to bring this proceeding in his capacity as Chairman of Keri Landowners Association Incorporated for and on behalf of the thirty-one (31) ILG Chairmen, he should produce evidence that the Keri Landowners Association met and resolved to bring this proceeding and that it is not enough for the Chairpersons of the thirty-one (31) ILG’s to have signed the Power of Attorney attached to the Originating Summons.
    
12. It is plain, ex facie the Court papers filed of record, that John Kemi, in his capacity as Chairman of Keri Landowners Association Incorporated purports to bring this proceeding for and on behalf of the thirty-one (31) Chairmen and that the Second Plaintiff comprises thirty-one (31) Incorporated Land Groups (ILGs).
    
13. It is clear from reading the Land Groups Incorporated Act of 1974 that an Incorporated Land Group is: (a) a corporation; (b) has perpetual succession and (c) has the power to sue and be sued in its own name. It is expected to have a Constitution that should set out, inter alia, the manner in which the group acts and the manner in which its acts are evidenced.
    
14. In terms of the authority of Imawe Bogasi ILG & Others v The State & Other (2006) N3096, it is a pre-condition to a valid decision making of the ILG to convene a meeting of members for any decision to be taken.
    
15. In this case, I have not been referred to the Constitution of the Incorporated Land Groups referred to in this Litigation.
    
16. Having regard to the evidence before me, the fact that an Incorporated Land Group is a juristic person with the power to sue and be sued in its own name, the only proper way to take decisions is through a resolution taken by the members of the Group at a duly convened meeting of the members.
    
17. On the evidence before me, this was not done. I, therefore, hold that the Plaintiffs have no locus standi to bring this proceeding for and on behalf of Keri Landowners Association Incorporated and or on behalf of the thirty-one (31) Incorporated Land Groups (ILGs).
    
18. In the result, this proceeding is an abuse of Court process and is liable to be dismissed for want of standing by the Plaintiffs.
    
19. I therefore make the following Orders:
    
    • (1) The application for leave is refused.
      
    • (2) The Plaintiff shall pay the Defendant’s costs of this proceedings, to be taxed if not otherwise agreed.
      
    • (3) Time is abridged.

_______________________________________________________________
Peter Daime Kaii Lawyers: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants