Pakomeyu v Wamo [2004] PNGLR 38 (12 November 2004)

NATIONAL COURT OF JUSTICE

UMAPI LUNA PAKOMEYU, SAM PELO AND KEITA UMAPI ACTING FOR AND ON BEHALF OF THEMSELVES AND THE MEMBERS OF THE SERETAPAKE CLAN OF BASABULU VILLAGE IN THE ERAVE DISTRICT, SOUTHERN HIGHLANDS PROVINCE; AND
KEAPO KOMBUKALO AND MANO DAGE FOR AND ON BEHALF OF THEMSELVES AND SOME MEMBERS OF THE SOUWOLO CLAN OF THE BASABULU VILLAGE IN THE ERAVE DISTRICT OF THE SOUTHERN HIGHLANDS PROVINCE

V

JAMES SIAI WAMO FOR AND ON BEHALF OF HIMSELF AND SOME MEMBERS OF THE SOUWOLO CLAN OF KAPA NO. 2 VILLAGE KUTUBU, SOUTHERN HIGHLANDS PROVINCE;

ROY YAKI FORMER MINISTER FOR PETROLEUM AND ENERGY;
HON. SIR MOI AVEI MP, MINISTER FOR PETROLEUM AND ENERGY;
JOSEPH GABUT, DIRECTOR FOR PETROLEUM;

THADDEUS KAMBANEI, SECRETARY DEPARTMENT OF FINANCE;
INDEPENDENT STATE OF PAPUA NEW GUINEA;

JOSEPHA KANAWI – CHIEF COMMISSIONER LAND TITLES COMMISSION; AND

EDWARD KAE FOR AN ON BEHALF OF IMAWE BOGASI

WAIGANI: KANDAKASI J

2 August; 12 November 2004

PRACTICE & PROCEDURE – Joinder of parties – Rationale - To avoid duplication of proceedings and minimize costs – Party with clear and known interest in cause of action not joined in proceedings ought to be joined – National Court Rules, O. 5, r. 8.

EVIDENCE - Gazettal –Admissibility of - Production of copy of - Sufficient and admissible – Evidence Act s. 49 and 52.

JUDICIAL REVIEW – Right to judicial review – Legislation prescribing time limit– Provision akin to time limits for appeals – Distinction - No provision for Court to extend – Aggrieved party to exercise right of review strictly within the prescribed time limits – Delay within meaning of statutory time limit and National Court Rules – Lack of satisfactory explanation – Delay resulting in prejudice and affecting good administration – Relief sought – Applicant not establishing basis for relief sought – Claim for mandamus – Proof of failure by authority to exercise or perform or exercise powers and functions required – No proof of – Application dismissed – Oil and Gas Act 1998 as amended s.169 (10).

Facts

The plaintiffs sought leave to file an application for a judicial review of a certain determination made by the second and third defendents pursuant to the Oil and Gas Act, 1998.

The eight defendant then, firstly, sought leave to be joined as a party to the proceedings and secondly sought dismissal of the proceedings.

Held

1. On the evidence the eight defendant has sufficient interest in the matter the subject of the proceedings and ought to be joined as a party thereto.

2. The time limit of 28 days prescribed by s.169 (10) of the Oil and Gas Act, 1998 to apply for judicial review of a ministrial determination is mandatory and the court has no power to extend the time limit. The plaintiffs have clearly failed to comply with the time limit.
Proceedings dismissed with costs.

Papua New Guinea cases cited

AGC (Pacific) Limited v Sir Albert Kipalan, & 4 Ors (24/02/00) N1944.
Bernard Hagoria v. The Ombusman Commission (26/05/03) N2400.
Michael Ole v. Papua New Guinea Lawyers Statutory Committee (15/11/02) N2308.
NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139.
NTN Pty Ltd v. Post & Telecommunication [1987] PNGLR 70.
Soso Tomu & Ors v. The Independent State of Papua New Guinea & Ors [2002] PNGLR 250.

Counsel

G. Garo for the plaintiffs/respondents.
B. Andrews for applicant/eight defendant.

12 November 2004

Kandakasi j. There are four notices of motion before the Court. These are:

1. An application for leave for judicial review by the plaintiff – motion filed on 17 October 2003;

2. An application for interim restraining order by the plaintiffs – motion filed on 17 October 2003;

3. An application to be joined as a party by Imawe Bogasi Association – motion filed on 18 November 2003; and

4. Application seeking a dismissal of the proceeding by Imawe Bogasi – motion filed on 18 November 2003.

All of these motions came up for hearing before me on 16 December 2003, which was just before the commencement of the Court vacation for that year. The arguments were involved and quite long, that the Court could not promptly hear and arrive at a decision before its vacation. The Court, therefore, issued directions for the parties to file their respective submissions to assist the Court in properly noting and following the arguments of the parties when it finally gets around to hearing the matter. There was therefore no hearing in any sense of the word. This is apparent from the last of the directive orders the Court made on 16 December, 2003, for the parties to list the matter for hearing before the vacation judge if there was any urgency.

Despite, the foregoing, the parties proceeded on the basis that the Court ordered them to file their respective submissions for the Court's consideration and thereafter a decision on the notices of motions. In early February 2004, the plaintiff's lawyers enquired of my office as to when the Court would hand down its decision. Following no response from my office, the plaintiff's lawyers, followed up on their enquiry in May 2004. During these times, I was continuously away on circuit until October 2004. In any event my associate reminded the parties of the correct position and indicated on my instructions that, if the parties wished to wait indefinitely, and agree, I would consider their submissions and then arrive at a decision when I was ready. In early August this year, the parties agreed to that proposal. I therefore proceeded to consider the submissions of the parties and what follows is my decision on the motions.

I consider it appropriate that the application for joinder should precede the plaintiff's application. This is because if the applicant in that application is indeed a person with an interest in the matter, the Court ought to hear him before a decision on the plaintiff's application. Then depending on a decision on his application, I will deal with the application to dismiss the proceedings. If that application becomes successful, that would dispose of the matter. If not, the Court will then consider the plaintiff's application.

Application to Join

Division 1 of Order 5 of the National Court Rules provides for the joinder of causes of action and parties. Rule 2 provides in general terms as to the joinder of parties. It states that a party should be joined where the questions of law or fact raised in the proceedings are common with the one who has already issued the proceedings and or the relief sought arises out of the same transaction or series of transactions. It also grants the Court discretion to order a joinder where it considers appropriate.

Of particular application in the present case is r. 8. This rule reads in relevant parts as follows:

"8. Addition of parties. (8/8)

(1) Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings."

In my view, Sakora J., in AGC (Pacific) Limited v Sir Albert Kipalan, & 4 Ors (24/02/00) N1944 correctly discussed and brought out the rationale for the provisions in the rules for joinder of parties and causes of action, which are intertwined. There His Honour said:

"It is a fact of life that often a case will involve more than one plaintiff or defendant, and more than one cause of action. Thus, the foregoing rules ...have been developed as to the appropriateness of joining various parties and causes of action so as to ensure that all proper and necessary parties are able to be joined...[I]t is useful to note for our present purposes (and assistance) the impact of the Australia High Court decision in Port of Melbourne Authority v. Anshun Pty Ltd (1981) HCA, which is that: a party will be estopped from bringing any further action that arises out of the same subject matter as an earlier action. This decision emphasizes the importance of the doctrine of res judicata, as operating to prevent prejudice and unfairness to a party, more particularly a defendant, being burdened and saddled with multiplicity of allegations and claims to answer. The doctrine also operates to confirm the twin doctrines of finality and certainty in judicial decision-making process.

In all cases of joinder, whether simply of causes of action or also parties, the Court retains the discretion to join or sever (if already joined) if the interests of justice demand so.

There is generally much merit in joining all possible defendants to avoid bringing separate proceedings against each and failing against each. On a tactical level, if all possible defendants are joined, often each will tend to run a case designed to show that another defendant is liable. The rules also provide for alternative plaintiffs if there is some issue as to proper plaintiff. For example, in some commercial litigation it may not be certain which legal entity actually entered into a transaction."

In the present case, the application is by Mr. Edward Kae, Chairman of the Imawe Bogasi Association Inc. and the nine constituent sub-clans, Incorporated Land Groups ("ILG"). They are applying to be joined as defendants to these proceedings under O.5 r. 8 of the National Court Rules. They argue that, they are persons who ought to have been joined as parties and also whose joinder is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on.

There is no affidavit of facts supporting the application. Instead, they place reliance on the determinations of the Minister for Petroleum and Energy made on 21 June 2002 and 8 May 2003. Those determinations identified Gobe Petroleum project area landowner beneficiaries for the sharing of equity and royalty benefits out of the project, which are setout in a National Gazette.

The relevant National Gazettes G102 of 24 June 2002 and G64 of 13 May 2003 are annexed to the submissions of the applicants. In so doing, they rely on ss.49 and 52 of the Evidence Act (Chp.48). These provisions, in particular s.52 stipulate that:

"The production of a paper purporting to be a Gazette is in all courts evidence that the paper is the Gazette and was published on the day on which it is dated."

Given this, I note that the plaintiffs correctly do not take any issue with the admissibility of the National Gazettes in the way employed here by the applicants.

From the two National Gazettes, it is clear that the applicants are identified has having a 34% share of Gobe Petroleum Project Equity and Royalty Benefits. The Originating Summons seeks leave to apply for a judicial review of one of these determinations wrongly referenced in the originating process and carried into the submissions as dated, 21 July 2002, instead of 24 June 2002, which the subsequent 2003 gazettal varied. The relief sought, inter alia, is to quash the determination.

If the relief sought were granted, the Imawe Bogasi constituting a number ILGs would have their entitlement to benefits removed. Given that, the applicants say they ought to have been joined as defendants in the proceedings. The originating summons in paragraph one restates the applicants' interest in the subject of the proceedings. Despite that, one of the plaintiffs, Sam Pelo Boso has filed an affidavit sworn 2 December 2003 arguing that the applicants have no interest in the land the subject of the determinations and these proceedings. His contention is that the applicants have no interest because their land is located in Gobe Main. As such, he argues that the applicant's interest of 34 percent as determined by the Minister will not be affected.

I find on the evidence before me that the applicant has an interest in the matter the subject of these proceedings. The relief sought if granted, will affect that interest. Unless the applicant is joined as a party, there is the risk of multiplication of proceedings, which has been a common feature in the Gobe Project related cases. This would mean no doubt a lot of time and money for the parties and the Court. Accordingly, I find that, it is necessary that the applicant ought to have been originally joined as a defendant but was not. Therefore, I order that the applicant, Edward Kae for and on behalf of Imawe Bogasi Association be joined as the eight defendant in this proceedings.

Application to Dismiss

This now leads me to the eighth defendant's ("the applicant") application for a dismissal of these proceedings. From what I can gather from the applicant's submission, its application is founded on two main grounds. The first is based on s.39(10) of the Oil and Gas (Amendment) Act 2001, which I note is a wrong reference. The correct reference should be s.169 (10) of the Oil and Gas Act as amended by s.39(c) of the Oil and Gas (Amendment) Act 2001 (No.21 of 2001). This section prescribes a 28 days time limit for review of decisions made under the Act.

Secondly, the applicant argues that the plaintiffs are not entitled to the remedies they seek. The remedies sought are, inter alia, quashing and setting aside of the decisions of the second and third defendants contained in the two National Gazettes noted above for being arrived at without authority. The plaintiffs also seek an order in the form of mandamus compelling the Land Tiles Commission ("LTC") to rehear a land ownership dispute between the parties, and for interim restraining orders pending the outcome of a hearing of the proceedings and the hearings by the LTC.

The plaintiffs argue that the amending legislation has not yet come into force because the required gazettal has not yet taken place. At the same time however, they acknowledge National Gazette No. G66 of 17 April 2002, which they say relates to the Oil and Gas Act of 2001, suggesting thereby that it did not relate to the amending Act. Consequently, it is their argument that there is no time barr. As for the other basis, they argue that the Ministers did not have any authority to make the determinations because the LTC was yet to rehear and make a determination on the issue of ownership of the subject land. Given that, they now seek the herein-mentined relief.

(i) Time Bar Issue

I will deal firstly with the issue of the plaintiff's proceedings being time barred under s.169(10) of the Oil and Gas Act as amended. The provision in question reads:

"A Ministerial determination made pursuant to the section shall not be reviewable before any court unless an application for review is made within 28 days of the Ministerial determination."

The main Act, was enacted as No. 49 of 1998, The amending legislation, Oil and Gas (Amendment) Act 2001 was to come into operation in accordance with a notice in the National Gazette by the Head of State acting with and in accordance with the advice of the Minister. According to the applicants, that notice came in the form of National Gazette No. G66 of 17 April 2002, which the plaintiffs say did not concern the amending legislation.

I find there are two significant problems with the plaintiffs' arguments. Firstly, since the enactment of the main Act, it had only one amendment. That was by the Oil and Gas (Amendment) Act 2001 No. 21 of 2001. There is no contest from the plaintiffs that, that was the case.

Secondly, the gazettal in question, omitting the preliminaries reads, "...I hereby fix the date of publication of this instrument in the National Gazette as the date on which the said Act shall come into operation: - No. 21 of 2001 – Oil and Gas act 2001." It obviously omits the opening and closing brackets as well as the word "Amendment" after the word "Gas" and before the word "Act".

There is no other apparent or obvious mistake apart from the one noted. The amending legislation requires the Governor General on ministerial advise to publish the Notice of Commencement of the Act in the National Gazette. That is a statutory provision requiring him to perform an act in terms of s.89(2)(a)(i) of the Interpretation Act (Chp.2). For the purpose of that provision, the notice is an instrument, which the notice itself acknowledges. This is significant because, by virtue of s.89 (2) (a) (b) and (c) where a person signs an instrument purporting to bring into operation an Act and where the Gazette appears to reproduce the instrument, the act is deemed to be done.

When we consider this along with the fact that there has been only one amendment to the main Act and is the legislation in question, it follows that the omission of the brackets and the word "Amendment" is of no consequence on the coming into operation of the relevant Act on the date specified in the notice. This view is fortified by the provisions of s.89(2)(4) of the Interpretation Act, which read as follows:

"The act, matter or thing is not invalid and shall not be challenged or called into question by reason only of the fact that the words published in the gazette do not correspond exactly with the words of the instrument."

What this means is that, the amending legislation came into operation on 17 April 2002, being the date of its gazettal. As of that date therefore, a person aggrieved by a determination of the Minister under the Act, could seek a review of such a determination within 28 days from the date of the determination. In the present case, the Minister made the decision, the subject of the determination on 21 June 2002, with its gazettal on 24 June 2002. If we go by the date of the decision, the plaintiffs had until 19 July 2002, to seek a review of the determination. If however we go by the date of the gazettal, the plaintiffs' had until 22 July 2002 to seek a review of the decision.

The plaintiffs issued these proceedings on 17 October 2003, which was more than one year four months after the date of the determination and its gazettal. The plaintiff's acknowledge in their submissions this delay, although they put the period of delay at 11 months. They give that period going by the period stipulated under O 16 r. 4(2) of the National Court Rules for ordinary judicial review applications.

In their submissions, the plaintiffs seek to explain the delay by saying Mr. Sam Pelo Boso, the person authorized to represent the plaintiffs arrived in Port Moresby on 12 February 2003. Then sometime in the following month, he obtained a copy of the relevant gazettal. Despite that, he did not see a lawyer until 1 July 2003. Before that, he went and saw the first defendant on 16 May 2003 to negotiate a comprise with all of the landowners. That did not work so he took four (4) months since April 2003 to raise money to meet legal fees.

Through the lawyers, the plaintiffs sought an extension of time from the State for the purposes of the Claims by and Against the State Act on the 11 August 2003. That application was granted on 3 October 2003 and made known to the plaintiff's lawyers on 8 October 2003. Following that extension, notice of the claim was served on the State on 15 October 2003 and soon thereafter on 17 October 2003, issued these proceedings.

The plaintiff acknowledges that, where there is undue delay in seeking judicial review, the court may refuse leave or other relief sought (O.16 r.4(1)) if the relief sought is likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration. There are a good number of cases providing authority for this proposition. I referred to the cases on point such as that of NTN Pty Ltd v. Post & Telecommunication [1987] PNGLR 70; NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139 and Michael Ole v. Papua New Guinea Lawyers Statutory Committee (15/11/02) N2308 in Bernard Hagoria v. The Ombudsman Commission (26/05/03) N2400.

In their case however, the plaintiffs submit that the delay has not and would not result in any prejudice to any third party. They go on to submit that, they have explained the delay and further that, the delay would not affect good administration. Instead, they submit that, they have been prejudiced in that, at least two payments of several millions of Kina have been made and distributed to the applicant and the others identified in the determination. Additionally, they submit that, if the relieves they seek are not granted they will be denied justice.

The delay in this case is in respect of two distinct time requirements. The first is the delay in coming within the provisions of s.169 (10) of the Oil and Gas Act 1998 as amended. The second is under O. 16 r. 4(1) of the National Court Rules. Whilst there is, authority as indicated by the cases already mentioned in this context for the court to allow applications for judicial reviews outside the time limits under the later, there is no authority for the Court to do likewise in respect of the requirements under the former. Indeed, the wording in s.169(10) is in the mandatory "shall" as opposed the discretionary "may". This means in my view, that a person aggrieved by a ministerial determination under the Oil and Gas Act 1998 as amended has to come strictly within the time limit under s.169 (10). Hence, any application for review outside that period would be incompetent.

Of course, one might argue that, this is an unnecessary fettering of an aggrieved party's right to judicial review under s.155 (3) of the Constitution and so, therefore it is unconstitutional. There are two significant difficulties with such an argument. The first difficulty is the fact that, that argument is not before me. Secondly and more importantly is the fact that, s.169(10) of Oil and Gas Act 1990 as amended does not prevent an aggrieved person from exercising his right of review but it prescribes a time limit within which such a person should exercise that right.

In Bernard Hagoria v. The Ombudsman Commission (supra), I considered s.217 (6) of the Constitution which seemed to restrict the power of judicial review of decisions of the Ombudsman Commission. The provision in question reads:

"(6) The proceedings of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction."

I noted that this provision was in accordance with the requirements of the Constitution from where the Supreme and the National Court draw their respective powers of judicial review and that, this was not unique to PNG. I did that in these terms:

"It is well accepted that the Constitution is the highest law of the land to which all the other laws are subject to. The power in the National Court to judicially review and supervise, thereby the exercise of administrative decisions is Order 16 of the National Court Rules 1988 and s.155(3) (b) of the Constitution. However, s.155(3)(b) is subject to the exception in that subparagraph (3), which stipulates that 'except where the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.' This means, in my view, the power of the National Court is subject to any Constitutional or other Acts of Parliament concerning the Court's review powers.

This is not unique to Papua New Guinea. Australia has similar provisions. This has come to the lime light in the context of that country's immigration laws. A case on point is Plaintiff S157/2002 v. Commonwealth of Australia (2003) 195 ALR 23; [2003] HCA 2. This case highlights the point that the power in the courts to review administrative decision is not absolute. It can be restricted or even removed.

Section 217 (6) of our Constitution and s.24 of the OLOC, do not in my view, remove completely the power in the courts to judicially review the decisions of the Ombudsman. Instead it restricts it to cases in which the Ombudsman exceeds its jurisdiction. It follows therefore that, in order for a judicial review of a decision of the Ombudsman to proceed, the application must come within the terms of s.217 (6) of the Constitution and s.24 of the OLOC."

Neither of the parties referred this Court to any authority that displaces the above position. I therefore adopt and apply them here with one addition. The position is analogous to one's right of appeal for example under s.221 of the District Courts Act (Chp. 40) or s.17 of the Supreme Court Act. These provisions prescribe time limits for one to exercise its right of appeal. They remain constitutional evidence by the lack of a decision of the Supreme Court to the contrary. The restrictions under s.169 (10) of the Oil and Gas Act 1998 as amended are akin to these provisions. The only difference between these provisions and s.169 (10) of the Oil and Gas Act 1998 as amended is that, unlike the appeal provisions, there is no room allowed under the Oil and Gas Act 1998 for an extension of the time stipulated under s.169 (10).

In the present case, it is very clear that the plaintiffs filed these proceeding more than 1 year 4 months after the date of the decision and its gazettal. This means the proceedings are incompetent and are liable for dismissal on that basis. Even if there was no s.169 (10) of the Oil and Gas Act 1998, I would still dismiss the application because I am not satisfied that the plaintiffs provided a reasonable explanation for the delay of more than 11 months after the four months limit under O. 16 r. 4 (1) of the National Court Rules.

The determination was not a secret affair. The Head of State acting with and in accordance with the appropriate advice published it in the National Gazette. Therefore, it was a public event announced to the public at large including the plaintiffs. In addition to that, as this Court already noted, there were a lot of controversy surrounding the issues of ownership and entitlement to royalties, equity and other benefits to the landowners in relation to the Gobe Project, one of which came before me resulting in the judgment,

Soso Tomu & Ors v. The Independent State of Papua New Guinea & Ors [2002] PNGLR 250. So how was it that the plaintiffs did not come to learn of the determination and publication until March of 2003? There is simply no explanation or answer to this.

Although not entirely satisfactory, I find however that, there is a reasonable explanation for the delays subsequent to the plaintiffs obtaining a copy of the gazette containing the determination. Nevertheless, can the Court be satisfied and accept the plaintiffs' submission that the delay has not resulted in any prejudice to the applicants and any other third party and would or has not affected the good administration of and concerning the Gobe Project?

As noted already, there has been much controversy over the issues of land ownership and entitlement to royalties, equity and other benefits from the Gobe Project. Having dealt with a number of motion matters in relation to these controversies, I am aware as no doubt the parties are as confirmed during the times the Court came to deal with this matter that the determination, the subject of these proceedings, attempted to settle those controversies. One year four months since the date of the determination and its publication and more than two years have now passed without much controversy or incident and the landowners received two lots of payment from the State without any incident as well. If the Court were to grant the plaintiff's application for a quashing of the determination, there is undoubtedly the danger of reopening the controversies which has the potential of seriously affecting the good administration of the Gobe Project and the administration of the payment of royalties, equity and other benefits to the landowners, particularly after a substantial period of no controversy has passed.

In relation to the plaintiffs' claim that they have been and will be prejudiced if the Court does not grant the relieves they seek, I note that, they belong to Souwolo Clan. This appears clearly from the affidavits filed by the plaintiffs in support of their application. It is also very clear that the determination does allow for the Souwolo Clan's interest twice. The first is in the form of Souwolo Hapropake with an allocation of 6.25% interest and Souwolo on its own at 4.5%, giving a grand total of 10.75%.

The plaintiffs claim that Souwolo Hapropake does not represent them because a John Nahare who was a caretaker of their land registered Souwolo Hapropake as a land group without their authority. Souwolo Hapropake was a party to all of the proceedings concerning all of the landowner disputes relating to the Gobe Project. If indeed this ILG did not and does not truly represent the plaintiffs, they should have taken up the issue in all of the earlier proceedings but they have not. Their failure has resulted in the ministerial determinations, the subject of these proceedings. In any case, they are not without a remedy, they could take the issue up internally within the Souwolo clan and those claiming any rights or interest through or by them. That should not in any way interfere with the process that has resulted in the determination and its implementation that has already commenced and includes other third parties' interests.

There is a further reason to dismiss the proceedings. The object of the relief sought, namely amongst others for a quashing of the ministerial determination is to get this Court to compel the LTC to rehear the land ownership disputes between the various landowning groups in the Gobe Project area. The LTC did come to a decision but was successfully appeal against under appeal reference Appeal No. 111 of 2000 to the National Court, which ordered a rehearing.

The rehearing did not occur, because the parties to the proceedings did not go back to it for the rehearing. They did however end up in the National Court in various proceedings. One of those proceedings were those before me in Soso Tomu & Ors v. The Independent State of Papua New Guinea& Ors (supra). That case is significant because, amongst many issues raised and determined, the issue of the Minister's power to make determinations such as the one under consideration in this case was one of them. I am most surprised that the parties did not make any reference to the decision in that matter. There at pp. 12 - 26 of the judgment, I considered the powers of the Minister to make the kind of determination covered in the present case. I also considered at pp. 26 – 32, the question of whether the Minister's power to make such a determination is subject to decisions of the LTC and I concluded that he was, and suggested that the parties should go to the LTC for a determination of the question of ownership. At the end of the consideration of that issue, however, I said at pp.31- 32:

"I do accept the plaintiffs' suggestion that, if the various disputing parties in the case of the Gobe project acknowledged each other as the only parties with interest in the project, it would resolve the issue of who are the persons entitled to share in the equity and royalty grants. The Minister would then be left only to decide the proportion in which the parties should receive the benefits, unless the parties also agree on that issue as well. This suggestion falls in line with the scheme and intent of Parliament which I have laboured to clarify above. The intent of Parliament is to allow landowners who are affected by a project like the Gobe to agree on both who is entitled to a share in the equity and royalty grants and the proportion in which that is to be received by each of them. Only if they are unable to agree after every step has been taken to facilitate such agreements, a discretion is then vested in the Minister to make the necessary determinations but only in accordance with the provisions of the Act."

As noted, the plaintiffs do not make any mention of that judgment and what steps, if any, the parties took following that judgment. I delivered the judgment on 28 February 2002. Four months later the Minister made the determination under consideration in this case. There is the possibility therefore that the parties may have negotiated and settled both the issues of ownership and percentage of entitlements to each of the competing parties in the terms setout in the determination. That could have meant no need for the parties to go to the LTC for a rehearing of their landownership disputes. If the parties reached such an agreement, it could have formed the foundation for the Minister to arrive at the determination. It could have also rendered a rehearing of the ownership disputes by the LTC unnecessary. There is simply no evidence from the plaintiffs as to what exactly they or the other parties did about getting the LTC to rehear the matter.

This effectively leaves the Court with no basis to find that the Minister acted without authority as they claim. It is not for the Court to guess what might have happened. Rather, the plaintiff had the burden to demonstrate by evidence where and how the Minister acted without authority. This also has the effect of leaving the Court with no basis to conclude that the LTC failed to exercise its jurisdiction in terms of rehearing the landownership disputes in the light of the determination and time that have passed. The parties might well have ended controversies on the basis of the determination thereby rendering a rehearing by the LTC unnecessary. Surely, no Court can compel the LTC or any other decision maker, to either hear a matter and or make a decision, without the necessary factual and legal basis for the grant of such an order. In other words, there must first be proof of the LTC or any other decision maker failing to hear or make the decision without good reason when properly required to. Without any such foundation, the plaintiffs cannot get the relief they seek.

For all of the above reasons, I order a dismissal of the proceedings with costs following that event.

Lawyers for the plaintiffs: Paul Paraka Lawyers.
Lawyers for the eighth defendants: Maladinas Lawyers.