N11196

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 146 OF 2024 (IECMS-CC2)

BETWEEN:
AIBU NAUMANEHA INCORPORATED LAND GROUP
Plaintiff

AND:
KUTT PAONGA in his capacity as the Acting Chief
Lands Title Commissioner
First Defendant

AND:
HON. JOHN ROSSO in his capacity as the Minister for
Lands & Physical Planning
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
NTP AGRICULTURAL COMPANY LIMITED
Fourth Defendant

AND:
PATRICK HAINO
Fifth Defendant

WAIGANI:   DINGAKE J
11 MARCH 2025

JUDICIAL REVIEW – Practice Procedure – Application to dismiss Originating Summons for being defective – held – Originating Summons should only plead Leave not other relief – Originating Summons dismissed.

Cases cited
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Innovest v Pruaitch [2014] PGNC 288; N5949
Kalinoe v Paul Paraka Lawyers SC1366
Makeng v Timbers PNG Ltd 2008 N3317

Counsel
Mr. Lionel Manua for the plaintiffs
Mr. Hezron Wangi for the defendants

RULING

1.	DINGAKE J.   This is my ruling with respect to the preliminary point taken by the State, to the effect that the Plaintiff’s Originating Summons filed with this Court on the 21st of June 2024, is defective for pleading substantive relief instead of just praying for leave to be granted.

2.	It is true that the Plaintiff’s Originating Summons pleads substantive relief. I do not need to reproduce the entire Originating Summons to show that it pleads substantial relief in this Ruling, as the said Summons (Doc No. 1) filed of record speaks for itself.

3.	The State has argued that the said Originating Summons is defective and is liable to be dismissed.

4.	I agree with the State that the Originating Summons is defective and liable to dismissal.

5.	It is trite law that an Originating Summons in Judicial Review should not plead any relief other than merely seeking to be granted leave. (Makeng v Timbers (PNG) Ltd 2008 PGNC 78; N3317; Innovest v Pruaitch 2014 PGNC 288; N5949; Kalinoe v Paul Paraka Lawyers SC1366).

6.	Firstly, it is indisputable that the Originating Summons goes beyond asking for Leave, but pleads other substantive relief. This is improper, Injia DCJ (as he then was) in Makeng v Timbers PNG Ltd (2008) N3317 when he stated that:

“37. In terms of the procedure for grant of leave for judicial review, an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized. A Motion seeking leave for judicial review and/or an order for stay or any other interlocutory relief is not required to be filed at the leave stage. The current practice by many lawyers of filing an Originating Summons seeking leave and also stay or other interim relief and then filing a Motion seeking the same relief as in the Originating Summons should cease as it only confuses the procedure and is inconsistent with the provisions of O 16 r 3 NS o 16 r 5(2).” (Emphasis mine)

7.	The above decision has been cited with approval by the Supreme Court, in many occasions, including in the case of Kalinoe v Paul Paraka Lawyers (2014) SC1366.

8.	The Originating Summons also pleaded consequential stay which is improper.

9.	The State also argues that the Stay Application must be filed on a separate Notice of Motion. It is trite law that a Stay Application should be filed separately and not merged with Originating Summons in which the prayer for leave is made (Makeng v Timbers PNG Ltd (2008) N3317).

10.	In this case, the Plaintiffs leave application suffers from want of form whereby the Order 16 r.3(2)(a) statement and the Affidavit verifying facts are merged into one document (Doc No. 2)

11.	In the result, for the reasons stated above, the Plaintiff’s Originating Summons is defective.

12.	In all the circumstances of this case, the Court orders that:

(1)	The Plaintiff’s Originating Summons is defective and is accordingly dismissed, with costs, and such costs to be agreed, if not, to be taxed.
_______________________________________________________________
Lawyers for the plaintiff: RMK Lawyers		
Lawyer for the defendants: Solicitor General