Gimasa v Kurt [2000] PGDC 20; DC183 (11 May 2000)

DC183

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 513 OF 2000

BETWEEN

Ganiga Gimasa
Complainant

V

Kaua Kurt
First Defendant

Kiotamu Keru
Second Defendant

Vivivi Kita
Third Defendant

Alano Naïve
Fourth Defendant

Vavivi Enao
Fiveth Defendant

One Pal
Sixth Defendant

Customary landowners - recovery of possession of land from illegal settlers- S.6 Summary Ejecetment Act - Not applicable - no clear title - the spirit and intent of- S. 6 may be used and relied upon. Practice and Procedure- District Courts Act Ch No. 40- S. 22 general ancillary jurisdiction- relied upon to give relief sought-

Constitutional Law - Sch. 2. 1 - custom shall be applied and enforced provided it is not.

Inter alia, repugnant to the general principles of humanity.

Section 5 Customs Recognition Act Ch. No. 19.- Custom may be taken into account in civil cases when the court thinks that by not taking the custom into account injustice will or may be done to a person.

MR IOVAS. GEITA. MAGISTRATE
15,31 March, 4,17 April, 11 May 2000:

Counsel
Complainant in Person
Defendants in Person

REASONS FOR DECISION

GEIT A I.S. - By a summons upon complaint the complainant seeks to have the defendants removed from his customary land at Kade Settlement near Baruni village. The complainant says that the defendants are illegally squatting on his customary land without right, licence or authority. According to the complainant settlers living around Kade, Baruni Dump and Sivolo settlements have been the cause of many law and order problems in their area. The continuous stealing from gardens, destruction of young trees, break and enter, car thefts, illegal roadblocks and arm hold- ups have been listed as some of the illegal activities caused by the settlers. The names of 48 Baruni landowners who claimed to have suffered under the illegal activities from the settlers have also been submitted to the court. The complainant further claims that as a result of these activities emanating from the settlements, villagers are now in fear of their lives and do not tend their food gardens any more. Furthermore the reputation of their village is discredited.

In their defence the defendants have stated that they were grateful to the complainant for allowing them to settle on his land at Momokoura settlement. They have agreed to pay K5.00 per head every month to the complainant. I suppose this money would be for the use and occupation of the complainants land. The defendants' claim that they have turned to Christianity and would be working towards bringing more Goilala's to Christ. They have submitted 32 names of persons who squat on Momokoura settlement. Of the six defendants, only Peter Bavivi, a community leader from that area gave written statements to the court. In the complaint a Kita Vavivi is mentioned. I suppose that is the same person whose statement is referred to above.

The defendants have not made any attempt to rebut the complainants allegations of the increase of illegal activities as a result of their presence on the land. I will not dwell further on that matter. The truth or otherwise of the complainant's allegation is noted however since their was no rebuttal I have accepted them as they are. The crux of the matter is the complainants call for the removal of the defendants from his customary land.

On the face of the complaint, the complainant has used the wording in Section 6 Summary Ejectment Act to evict the defendants. However he obviously has not relied on that section simply because the relevant provisions of the Act, does not apply to customary land. Section 2 Summary Ejectment Act reads: "This Act does not apply to customary land ". Section 6 reads as follows: -

"(1) Where a person without right, title or licence is in possession of premises, the owner may make a complaint to a magistrate of District Court to recover possession of the premises I and the magistrate may issue a summons in the prescribed form to the person in illegal occupation.

(2) Where the person summoned" appears and does not show reasonable cause why possession of the premises should not be given... issue a warrant directed to a member of Police Force...to enter, by force into the premises and to give possession of the premises to the complainant.

Unfortunately the complainant cannot establish his claim via the provisions of the Summary Ejectment Act The remedy it is designed to give is a quick and efficient means of obtaining possession of premises, (and this on the authorities extends to land) from persons without any rights to possession.

What then is the appropriate law to be applied in this factual situation? Does the complainant and his people have a cause of action I law. I am of the view that they have and their complaint must be addressed. I next look at the Land Dispute Settlement Act. This Act could be relied upon here by the complainant however the defendants are squatters and are obviously illegally settling on customary land owned by the complainant and his clan of Baruni village. Being settlers they obviously have no interest in the land nor have they title or licence to be there at the first place.

I am of the view that to invoke the relevant provisions of the land Dispute Settlement Act under this circumstance would be an abuse of process. Firstly if the defendants come from the same village or clan or even nearby neighbouring villages, that would be understandable since the possibilities of them having any interest in the disputed land is real. As it is the defendants are from Gollala and the possibilities of having any interest in Baruni land is very remote. Surely there must be a simpler way to assist customary landowners from evicting illegal settlers on their land. The land being customary owned, the complainant cannot show title or does not have one.

I next look at the land Act for possible answers. Section 113 Land Act Ch No. 223 may provide some answers here, however the penalty provisions are semi-criminal in nature in that persons who are found guilty face a fine of up to K400. The section is silent as to who is the prosecuting authority. It does not say if customary landowners are also entitled to file complaints using provisions of the Land Act to prosecute their complaint and at which court. Are offenders going to be prosecuted before civil courts or before criminal courts? What about questions of enforcement of such orders? Who is going to enforce the orders if parties are at default? In any event if Section 113 Land Act is relied upon by the complainant with subsequent orders of fines and those fines successfully paid, the complainant will be no better off than when they first started off. I say this because the illegal settlers will continue to remain on the land. All these questions still remain unclear and unanswered by the Land Act. In the meantime customary landowners will continue to find that squatters freely remain on their land as a result of loopholes in the legal system to address this problem.

What are the customary landowners remedy then? Should courts treat the complaint as a general civil complaint from parties seeking a civil remedy and exercise its general discretionary powers accordingly. Under the circumstance I am more inclined to think so. The complainant has come to this court seeking assistance and ifs the duty of this court to give relief within jurisdiction. In so doing I have relied upon the provisions of S.22 District Courts Act Ch. No. 40 to give the relief sought. The section reads:-

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it -

(a) grant such relief, redress or remedy or combination of remedies; and

(b) give the same effect to every ground of defence or counter-claim, whether equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner. "

Furthermore the use and recognition of custom is explicitly spelt out in the Customs Recognition Act Ch. No, 19, I quote Section 3 and 5,

Recognition of custom,

(1) Subject to this Act, custom shall be recognised and enforced by, and may be pleaded in, all courts except so far as in a particular case or in a particular context-

Its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest".

Civil cases.

Subject to this Act and to any other law, custom may be taken into account in a case other than a criminal case only in relation to... or where the court thinks that by not taking the custom into account injustice will or may be done to a person.

Furthermore Sch.2.1 of the Constitution says that "... custom is adopted, and shall be applied and enforced as part of the underlying law." That is so long as that particular custom is not inconsistent with the Constitutional Law or a statute, or repugnant to the general principles of humanity, We are here talking about the complainants right according to his customary law. That the right to use, own, distribute and the rights to safeguard its land against intruders. According to him his land rights are paramount despite the absence of title or lease. Just because he is unable to produce title to his customary land does not mean that he cannot come to the courts to seek assistance. Hence the Customary Recognition Act and the Constitution will be used to assist the complainant His customary rights to land ownership must be protected. By not taking the custom into account injustice will or may be done to the complainant I will therefore exercise my discretion to give relief to the customary landowners of Baruni through the complainant.

I therefore make the following orders:

1. That Kaua Kuri and five other named defendants, together with their families and relatives and or agents voluntarily move out from Kade, Momokoura and Baruni settlements and give up possession to the Complainant and his people from Baruni village.

2. After one months on the 15 June 2000 should the defendants together with their Families, relatives and or agents fail to comply, members of the Police Force will be empowered to intervene and use force to remove the defendants from the said same land.

Ends...