Clement Ote v Woodbank Pacific Limited [2020]

Dispute of over consent for logging in the Kumul TRP in Madang Province

Logging companies mentioned in this document:


                                                                 N8639
                         PAPUA NEW GUINEA
                [IN THE NATIONAL COURT OF JUSTICE]


                           OS NO. 378 OF 2020

                              BETWEEN:
  CLEMENT OTE for himself and on behalf of Amjah Clan members,
Pepaur Village, Sumkar District, Madang Province whose names appear at
          Schedule No. 1 attached to the Originating Summons
                                 First Plaintiff

                                AND:
                             AMJAHA CLAN
                                Second Plaintiff

                                 AND:
   TONY LAU, in his capacity as the Operations Manager of Woodbank
                              Pacific Ltd
                                First Defendant

                              AND:
                       WOODBANK PACIFIC LTD
                               Second Defendant

                                AND:
                         PAPIL HOLDINGS LTD
                               Third Defendant
                            Madang: Narokobi J
                        2020: 19th & 23rd November


NOTICE OF MOTION –– application for interim relief – Order 12 Rule 1
and Order 14 rule 10 (1) and (2), National Court Rules – section 155(4) –
Constitution – whether arguable case demonstrated – whether balance of
convenience favours granting of the interim injunctions – undertaking as to
damages – whether discretion should be exercised

NOTICE OF MOTION –– application to dismiss the proceeding – Order 12
Rule 40(1) – National Court Rules – abuse of process – lack of standing –

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exercise of discretion


Cases cited:

No cases cited

Counsel:

Mr P Dometa, for the First and Second Plaintiffs
Mrs J Kare, for the First and Second Defendants
Mr J Wohinangu, for the Third Defendant

                                   RULING

23rd November, 2020

1.     NAROKOBI J: I have two applications before me. The first is a motion
returning for inter-partes argument after an injunction was granted ex-parte on
11 November 2020 and the other is for the dismissal of the proceedings.


2.      I deal with the application for injunction first as it was filed first. I do so
for the reason that if the grounds for the continuation of the injunction has not
been met, then it paves the way for me to consider the application to dismiss.


3.    The plaintiffs are landowners in a logging area known as Kumil TRP in
Bogia, Madang province. Logging is done pursuant to a Logging and Marketing
Agreement dated 11 December 2017 between Papir Holdings Ltd and
Woodbank Pacific Ltd. The LMA paves the way for an authorization from
Papua New Guinea National Forest Authority described as TP 12-22.


4.    The plaintiffs in their originating summons claims declarations that the
logging was conducted on their land without their approval and consent. Further
declarations were sought for damages to be paid for the illegally harvested logs.


5.    The main reason upon which the injunction was granted was that there
was evidence provided at the relevant time that no consent was given from the

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landowners before logging occurred in their area. The evidence of consent is
usually given through signing of a document called a set-up form. Mr Clement
Ote says that he as the leader of the Amjaha Clan has never signed such a form
and therefore the logging in his area is unlawful. There have been about 15 trees
felled already. This was the reason the injunction was granted.


6.     After reading the affidavit material and hearing the submissions from all
parties, I am not satisfied that the plaintiff has articulated with the necessary
specificity its claim, that is the particular area that the harvesting of logs is
occurring for which their consent was necessary. In circumstances where there
are competing claims between various factions of landowners, and where there
are different developers contesting each other’s rights to harvest the logs in the
Kumil TRP, the plaintiff has to be very accurate with its claim. This goes to the
issue of whether the plaintiff has disclosed all relevant information to the court
when the injunction was issued.


7.      It was not immediately clear from the originating summons as to which
particular area the plaintiffs assert their rights. That information became clear
after the defendant’s submissions and evidence. The concerned are is Set-Up 24
a size of 150 hectares within Group 2 of the TRP area, which has a total of
9,292 hectares. I would think that since the plaintiff has the onus of proving its
case, it should have brought this information to the attention of the court, so that
any orders it makes would be specific to the land the subject of the proceedings.
It is now clear that the proceedings relate to a specific area within the Kumil
TRP and not the entire area in the TRP.


8.     For this reason, I will discharge the injunctions, as I am not satisfied that
the plaintiff had provided all necessary information before the court, especially
how its claim differs from the other clans within Group 2.


9.     I now turn to the issue of whether I should dismiss the proceedings. I
have considered the affidavits of a number of deponents including Terence
Novir filed 18 November 2020, Basil Kakot filed 18 November 2020, Nathan
Novir filed 18 November 2020, and Imelda Novir filed 18 November 2020 who
had initially given their consent authorizing Clement Ote, but have now
renounced their consent and also dispute him as the leader of their clan. There is
also evidence that a number of the persons signing the consent are minors.

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Under such circumstances, it is not feasible to allow the proceedings to
continue. The plaintiff must have proper authorization before it can come back
to court. As it also claims damages, perhaps the proper mode of proceedings is
by pleading its cause by way of a statement of claim endorsed on a writ of
summons.


10. I therefore consider that this is an appropriate case for me to exercise the
courts power to control its proceedings and dismiss this proceedings in its
entirety pursuant to Order 12 Rule 40(1)(c) of the National Court Rules as an
abuse of process.


11. As those persons who initially gave their consent have now changed their
mind, I will not make any order for costs. Each party will bear its own costs.


12.   I therefore make the following orders:


      a)     The interim orders issued on 11 November 2020 is discharged.
      b)     The entire proceedings is dismissed.
      c)     Each party will bear its own costs.
      d)     Time is abridged.
      e)     Filed is closed.


GP Lawyers: Lawyers for the Plaintiffs
Bradshaw lawyers: Lawyers for the First and Second Defendants
Gileng & Co Lawyers: Lawyers for the Third Defendants

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