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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 152 OF 2022 (IECMS/CC2)
BETWEEN:
EXXONMOBIL (PNG) LIMITED
Plaintiff
V
HALIMBU LEMBO
First Defendant
AND
LUKE HARE
Second Defendant
AND
EKAWI TAYANDA
Third Defendant
AND
ANTHONY TAPUKO
Fourth Defendant
Waigani: Anis, J
2024: 22nd May, 18th June, 2nd & 22nd July
TRIAL ON ORDER FOR PERMANENT INJUNCTION – Equitable relief – whether relief primary relief – consideration – ruling – no challenge on the substantive claim – whether plaintiff has adduced evidence on balance of probabilities warranting a permanent injunction to be issued – consideration - ruling
PRACTICE AND PROCEDURES – belated objection to competency of proceeding – whether Court should entertain such objection – if so, whether primary right not pleaded – distinction between primary right and primary relief discussed – whether proceeding an abuse of process – whether correct process should have been to lodge complaint with police - consideration – ruling
Cases Cited:
Jennifer Gawi v. Anna Gawi and Ors (2024) N10860
Traisa Transport Ltd v. Mountain Property Holdings Ltd and Ors (2024) N10694
Brothers Rugby Football Union Club INC v. Port Moresby Rugby Football Union INC (2004) N2537
Counsel:
G Jiki, for the Plaintiff
J Palek, for the First Defendant
Nil appearances by the Second, Third and Forth Defendants
JUDGMENT
22nd July, 2024
1. ANIS J: This matter was trialed on 22 May 2024. Closing submissions were completed on 2 July 2024 before the Court reserved its ruling to a date to be advised.
2. Parties have been notified so I will deliver my decision.
BACKGROUND
3. The plaintiff is the operator of this large Liquified Natural Gas (LNG) project in Papua New Guinea called PNG LNG Project (LNG Project). The LNG Project includes an area known as Hides Gas Field which is located in Hela Province. The plaintiff holds various interests in the LNG Project including its license which is known as Petroleum Development License No. 1 (PDL1/License). Three (3) wellpads are situated under PDL1, and they are described as wellpads E, F and G.
4. On 20 June 2022, various chiefs of sub-clans of Wita Clan, whose lands are situated within the PDL1 area, wrote a letter to the Prime Minister. They raised various issues that relate to their interest in the LNG Project, in particular, the delay in receiving various benefits, and in conclusion, they demanded a payment of K200,000,000 as compensation from the State. A carbon copy of the letter was forwarded to the plaintiff. The letter, according to the plaintiff, included a threat to shut down the plaintiff’s operation under its License. The part of the letter reads:
All Wita clansman has now united together to take this stand to close the valves at our three well heads and are giving your Government fourteen (14) days, notice to address our concerns before shutdown on the 24th June 2022.
5. Following that and on 13 July 2022, one of the plaintiff’s logistic vehicles (a bus) drove to a roadblock within the License area or site. A tree was fell onto the road, and the road was guarded by a group of landowners, about 10 or more men, who were armed with bush knives. The matter was immediately reported, and security personnel were called to the site to quell the situation. The armed men all fled the scene when they were confronted by security personnel.
6. The plaintiff claims that the defendants were the main perpetrators who caused the blockade and or were responsible for the event of 13 July 2022. So, on 15 July 2022, it filed this proceeding. It seeks permanent junctive relief against the defendants, their agents and servants. On 18 July 2022, this Court granted interim injunctions against the defendants (Orders of 18 July/Interim Injunction). The Interim Injunctions were extended and remain to this day.
7. Only the first defendant has shown interest and is represented in this matter. The other defendants have shown no interest in the matter, and they did not appear to defend themselves at the hearing.
EVIDENCE
8. The plaintiff tendered, without objection and cross-examination, 2 affidavits which were marked as Exhibit P1 and Exhibit P2.
9. The first defendant did not tender any evidence to oppose the claim. His only response was in regard to the preliminary issues, which I will now consider.
PRELIMINARY MATTERS
10. The first defendant raised 2 main preliminary matters. First, he argues that the proceeding should be dismissed because, (i), the plaintiff did not plead a primary relief, (ii), that the pleaded injunction is a secondary relief, and (iii), the plaintiff did not plead in the originating summons, its right or interest that it claims had or has been violated by the actions of defendants.
11. The second main preliminary argument concerns the Orders of 18 July 2022. The first defendant claims that the orders granted by the Court were criminal in nature thus it amounts to abuse of process. The first defendant submits that the proper mode of action should have been by way of a complaint lodged with the police for prosecution and not by filing an originating summons as done in this case. Therefore, the first defendant submits that it is an abuse of the Court process thus this Court should dismiss the proceeding.
12. In response, the plaintiff also raised objections to the preliminary issues raised by the first defendant. It submits that no proper application was filed, and further, it submits that the issues should have been raised before the matter was set down for trial.
13. I note the submissions of the partis on these matters.
14. At a trial, it is not unusual for the Court to hear preliminary matters or issues that a party may raise, and it is up to the Court to consider and determine whether it should deal with them or not, after hearing submissions from the parties. But it is or should be mandatory, in my view and for good administration of civil case in general, that any preliminary issues that had not been addressed at Directions Hearing stages but where parties intend to raise at trial, that sufficient notice be given or otherwise orders issued in that regard, to capture such an intention prior to trial. Section 59 of the Constitution; case: Jennifer Gawi v. Anna Gawi and Ors (2024) N10860.
15. The Court’s power in that regard is discretionary. In this case, the first defendant raised these preliminary matters in his closing submissions, which was belated. However, and to assist the Court, I had allowed time and had adjourned the closing submissions hearing to another date. The plaintiff was given the opportunity to file submissions in that regard.
16. In Traisa Transport Ltd v. Mountain Property Holdings Ltd and Ors (2024) N10694, the defendants raised a belated preliminary matter in their closing submissions. The Court upheld the submissions and in so doing, dismissed the plaintiff’s claim. At para. 24, the Court stated:
24. Premised on Rule 14 of the Company Rules and the case law, I have reasons to find that this proceeding may be an abuse of process. However, there are other considerations that I should ask myself before reaching a definitive view on this. The first question is this. Was this issue belatedly raised? The answer to that is in the affirmative. The next question is this. Even if the answer to the first issue is in the affirmative, can this Court still consider the issue and make a determination? The answer to that is also in the affirmative. Matters concerning abuse of process may be raised at any stage of a proceeding including at a trial of a matter. If a law has been broken or a process has been abused, Courts must not turn a blind eye or ignore the law when the matter is brought to its attention or upon its discovery. Courts also have a fundamental role to protect its process from being abused. See cases: Michael Wilson v Clement Kuburam (2016) SC1489, Breckwoldt & Co. (N.G.) Pty v Gnoyke [1974] PNGLR 106, PNG Forest Products and Inchcape Berhad v The State & Jack Genia, Minister for Forests [1972] PNGLR 85 and NAE Limited (1-21320) v Curtain Bros & Ors (2015) N6124.
17. Therefore, and as for this case, I will dismiss the preliminary objection of the plaintiff and proceed to hear the preliminary arguments. I note that time was given to the parties to address the preliminary matter. I have also received written submissions and heard oral arguments from the parties on the matter.
18. So, I ask myself this. Did the first respondent raise valid arguments that should convince this Court to dismiss the proceeding? My answer to that is, “no, I do not find any merit in the 3 preliminary issues raised by the first defendant.”
19. In a proceeding that is filed under an originating summons, (i), assertion of facts and (ii) a right(s) of a plaintiff, are not required to be pleaded. An originating summons shall only contain the relief that a plaintiff seeks. Form 7 is the relevant prescribed form to use for proceedings that are filed under Order 4 Rule 27 of the National Court Rules. Form 7 is reproduced in part as follows,:
Form 7—Originating Summons (Hearing to be Appointed)
Form 7.
O.4, r.27
ORIGINATING SUMMONS
(Hearing to be appointed)
(heading as in Form 1 or Form 3)
The plaintiff claims—
(state the relief claimed in the manner indicated in the form of originating summons Form 6).
(Where there is a defendant, add the following—
To the defendant:
You are liable to suffer judgement or an order against you unless the prescribed form of intention to defend this claim is received in the Registry within (30) days after service of this summons on you.)
......
[Underlining mine]
20. The relief sought in the Originating Summons filed by the plaintiff on 15 July 2022 (OS), are as follows:
(a) entering upon the land within the fenced area for Well Pads E, F, G in Hides PDL PDL 1 Hides or within 100 meters of such fence;
(b) entering upon any work site of the Plaintiff or its contractors or within 100 meters of such site at PDL 1 Hides;
(c) causing or setting up roadblockades or in any other way interfering with the Plaintiffs or its employees and/or its contractors and their respective employees access to the use of Well Pads E, F, G and work sites in PDL1 Hides;
(d) approaching any vehicle being used by the Plaintiff, its employees and/or its contractors and their respective employees at PDL 1 Hides;
(e) intimidating, coercing or making threats by word of mouth, letter, telephone or email or otherwise against the Plaintiff, its employees and/or its contractors and their respective employees or encouraging others to do s; or
(f) harming, preventing, interfering or attempting to harm, prevent or interfere with the Plaintiff, its employees and/or its contractors and their respective employees or encouraging other to do so.
2. Damages together with interest thereon pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act 1962.
3. Costs.
4. Such further orders as the Honourable Court deems fit.
21. The primary relief that is pleaded by the plaintiff in its OS is Permanent Injunction. Permanent Injunction is an equitable relief that is available and may be sought as a relief in this jurisdiction. In this case, it is sought as a primary relief. The plaintiff has abandoned its claim for damages.
22. The first defendant relies on the case of Brothers Rugby Football Union Club INC v. Port Moresby Rugby Football Union INC (2004) N2537 (Union case). However, I note that this case is distinguishable to the present case. The Court in the Union case was addressing insufficiencies in the declaratory relief that were sought by the plaintiff. The plaintiff herein is not seeking declaratory relief. Its primary relief is permanent injunction. Is that a relief that may be sought? The answer to that is “yes”.
23. The plaintiff herein has asserted its right or interest, from its evidence that have been adduced in Court. Its interest, premised upon which it intends to seek permanent injunctive orders against the defendants, were considered at the time the Court granted the Orders of 18 July. The plaintiff had established then with prima facie evidence, that it held a valid license over the LNG Project which was PDL1. This evidence was not contested before the interim orders were confirmed. The plaintiff, at this hearing, is presenting the same evidence to this Court, and is asserting its right or interest over the same areas, to, and this time, seek permanent injunctive orders.
24. As for the first defendant’s claim that the correct mode of action by the plaintiff should have been to make criminal referrals, the argument is futile for several reasons. First, the argument is made premised on the Orders of 18 July. The first defendant had the opportunity to raise its argument earlier, but it did not do so then, and he is attempting to raise it here. I find that to be an abuse of the Court process. Secondly, what is at stake now is not the Orders of 18 July, but rather, permanent injunctive relief as sought in terms as set out in the OS. Thirdly, there is nothing wrong with the mode of proceeding that was elected by the plaintiff. Permanent injunction and damages are types of relief that may be sought by filing an originating summons as done in this case. The plaintiff had the right to choose or decide how it intended to address its grievance. In this case, it decided to file the OS which is proper and properly before the Court.
25. I dismiss the preliminary issues.
ESTABLISHING INTEREST - PDL 1
26. The first defendant did not call any evidence to dispute the plaintiff’s interest over PDL1 where wellpads E, F and G are situated.
27. Secondly, the first defendant also did not call any evidence to dispute or contest the allegations of the incident that had occurred on 13 July 2022, nor did he deny that he was not a participant or person who was responsible for the incident with the other defendants that are named in this proceeding.
28. However, despite these, the plaintiff still has the burden of proof. It must first establish proof of its interest over PDL1. Secondly, it must provide evidence to show that the defendants were responsible for or were part of the group of men that entered the plaintiff’s premises on 13 July 2022 without its consent or authority, where they blocked off the road and issued threats to the plaintiff, its employees and contractors.
29. In regard to the plaintiff’s interest over PDL1, there is no dispute that the plaintiff holds this License under its name. The plaintiff is also the operator of the LNG Project. I am satisfied that the plaintiff has established that. I also note during submissions that the first defendant also acknowledged the plaintiff’s said interest.
INJUNCTIVE ORDERS
30. Should I grant permanent injunctive orders against the defendants?
31. I am minded to grant permanent injunctive orders against the defendants. The established facts show that the defendants’ grievances do not concern the plaintiff. They, however, had involved the plaintiff by using threats to disrupt its operations as leverage in pursuit of their grievances against the State.
32. I must say that I do not see any express or direct evidence that links the named defendants to the incident of 13 July 2022. The evidence is circumstantial and is contained under Exhibit P1. It is primarily premised on the letter of demand of 9 June 2022. The defendants, as clan leaders of the Wati Clan, signed the letter with other members of the clan, where they had issued a serious threat to shut down wellpads E, F and G if their demands were not met within 14 days. Circumstantial evidence linking the defendants after that was the actions of armed men from the clan who stormed the plaintiff’s premises, fell a tree to block off the access road and threatened the plaintiff’s employees and contractors who appeared at the roadblock on that day. At the trial, the defendants did not challenge the plaintiff that they are not leaders of the Wati Clan. They also did not adduce evidence or deny the threat that was issued by them which was contained in the letter of 9 June 2022. None of the defendants gave evidence to say that they did not sign or participate in the signing of the said letter.
33. And at this stage, it is not known whether the landowners’ various grievances with the State has been resolved. Thus, the risk of possible disruptions to the operations of the plaintiff in the future, in my view, is real or cannot be ruled out.
34. Conducts by landowners causing trouble at mine sites, oil rigs, or gas fields, to demand attention from the Government is already a common or constant occurrence in the country. Such actions are illegal and must be discouraged by those in authority, including the Courts. Millions of kina in revenue is lost every time a mine, an oil rig or a gas field is forced to shut down due to illegal actions or activities of landowners at these resource sites. In the present case for example, the plaintiff states that if the 3 wellpads are forced to close, the LNG Project will suffer financial loss of around USD 3.5 million per day.
35. When I consider all of that, I find that the plaintiff has satisfied this Court on the balance of probabilities that permanent injunctive orders should be granted.
36. The plaintiff also makes this additional submission. It submits that the Court should also include an order or a qualification in the order whereby the defendants may be permitted to enter the plaintiff’s premises or PDL1 site area if prior consent is obtained or given by the plaintiff to the defendants, their agents, servants or clan members. Although I note that the first defendant contests this suggested consequential order, I do not find any merit in his arguments.
37. I am minded to grant such an order.
SUMMARY
38. The claim by the plaintiff has been proven, and therefore I will grant permanent injunctive orders against the defendants, their clansmen, tribesmen, relatives, servants and agents.
COST
39. An order for cost is discretionary. I will order cost to follow the event.
ORDERS OF THE COURT
40. I make the following orders:
(a) entering upon the land within the fenced area for Well Pads E, F, G in Hides PDL PDL 1 Hides or within 100 meters of such fence;
(b) entering upon any work site of the Plaintiff or its contractors or within 100 meters of such site at PDL 1 Hides;
(c) causing or setting up road blockades or in any other way interfering with the Plaintiffs or its employees and/or its contractors and their respective employees, access to the use of Well Pads E, F, G and work sites in PDL1 Hides;
(d) approaching any vehicle being used by the Plaintiff, its employees and/or its contractors and their respective employees at PDL 1 Hides;
(e) intimidating, coercing or making threats by word of mouth, letter, telephone or email or otherwise against the Plaintiff, its employees and/or its contractors and their respective employees or encouraging others to do so; or
(f) harming, preventing, interfering or attempting to harm, prevent or interfere with the Plaintiff, its employees and/or its contractors and their respective employees or encouraging others to do so.
The Court orders accordingly.
_________________________________________________________
Allens: Lawyers for the Plaintiff
John W Palek: Lawyers for the First Defendant
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