N8514
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 403 OF 2018

BETWEEN:
DAVID OVA On behalf of the descendants of BOGE MARAGA
First Plaintiff

SINA HOMOKA On behalf of the descendants of HENAO MARAGA
Second Plaintiffs

LAKANI DORIGA On behalf of the descendants of TAU MARAGA
Third Plaintiff

AND:
IRUNA ROGAKILA THE REGISTRAR, INCORPORATED LAND GROUPS
First Defendant

WILLIAM TOKANA CHAIRMAN DUBARA IDIBANA ILG
Second Defendant

THE MINISTER DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

MATHEW JS TAVIRI
Fifth Defendant

Waigani: Miviri J
2020: 22nd September

PRACTISE & PROCEDURE – Judicial Review & appeals – Application for dismissal of Notice of Motion – National Court Motions Amendment Rules 2005 – Motion not filed – Application without material supporting – No determination – no orders – Costs in cause.

Cases Cited:

Isu v Ofoi [2014] PGNC 216; N5518 

Counsel:

A.	Chillion, for Applicant
F. Kuvi, for the Defendants

					RULING 
 23rd September 2020
1.	MIVIRI, J: This is the ruling of the court on the Plaintiffs verbatim for dismissal for want of prosecution of the Notice of motion of the fifth defendant Mathew JS Taviri dated the 04th June 2020 which is in the following terms.

2.	The motion is made pursuant to Order 12 Rule 1 of the National Court Rules. The orders sought are: 

(i)	the plaintiffs recognize the fifth defendant and the executives of the Dubura Idibana ILG Inc. who were duly elected into Office on the 12th December 2018; 
(ii)	the fifth defendant and the executives be allowed to perform their respective roles and functions in accordance with law; 
(iii)	the restraining orders of the 10th September 2018 shall not be applicable to the Fifth defendant and the executives; 
(iv)	the fifth defendant be removed as a party to the proceedings;
(v)	each party to pay its own costs of and incidental to the application;
(vi)	time for entry of the orders be abridged; and
(vii)	any other or further orders the court deems fit.

And the motion is by Turai Elemi of Elemi Lawyers for the fifth defendant and is dated 25th May 2020. Evidence in support of the motion will rely on the affidavit of Mathew JS Taviri sworn on the 25th May 2020 and the affidavit of David Ova sworn 22nd May 2020. It was supposed to have been moved today but Lawyer Francis Kuvi is not before the court. The court is informed by counsel for the plaintiff that he is before the Deputy Chief Justice in another court this afternoon hence will not be in. And this is pursuant to an email received by counsel for the plaintiffs.

3.	After being recounted details of the adjournment by the court from the 15th September 2020 to today 22nd September 2020 that the matter was for hearing, counsel immediately reacted verbatim for dismissal for the fifth defendant not prosecuting the motion. There is nothing on the record of the court from which to move. Because the National Court Motions (Amendment) Rules 2005 would be the basis upon which any motion would be based upon procedurally. There are 21 rules altogether and not one rule authorizes a motion without being formally filed. Nor does it authorize a motion to be moved without compliance of the rules. This is verbatim to dismiss for want of prosecution which has been made on the spur of the moment without any formal filing of the motion by the applicant. There is no written record of the motion nor any material relied on to support move. 

4.	True there is no appearance by the lawyer for the fifth defendant who filed that motion, but the reason has been disclosed by the plaintiff’s counsel that he is before another court presided by the deputy Chief Justice. And this is by an email that he received over the lunch break. The court is of record and therefore must have the motion with supporting material before it to so dispense justice. As it is there is no proper basis set out and the court will not be acting on a plea that is without any evidence and supporting material let alone the basis of the motion itself in law and the rules.

5.	If it were to be considered an application for dismissal, there is nothing to be considered and no determination leading to orders will emanate. It is analogous with judicial review proceedings if leave is granted then the substantive notice of motion must be filed because failure means there is nothing to be considered and determined: Isu v Ofoi [2014] PGNC 216; N5518 (3 March 2014). The end is there is nothing to be determined here because there is nothing on record by the National Court Motions (Amendment) Rules 2005.

6.	But to expedite the matter it will be formally adjourned for directions to Monday 5th October 2020 at 9.30am. Parties will undertake to inform whether the subject motion will be argued at the next Motion day Tuesday 13th October 2020 at 9.30am. 

7.	Costs will be in the cause.

Orders Accordingly.
_________________________________________________________________
Chillion Lawyers:	 Lawyer for the Plaintiff /Applicant		
Elemi Lawyers: Lawyer for the Fifth Defendant