Togan v Man [2000] PGDC 35; DC270 (7 November 2000)

DC270

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 102 OF 2000

Patmos Togan
Informant

V-

Jonathan Hap Man
Defendant

Private Prosecution: Patmos Togan
Namatana: Patricia Tivese

2000: 3rd, 7th November

CRIMINAL JURISDICTION:
S 145 (1) (2) LANDS ACT

Cases cited
Public Prosecutor -vs- Nahau Rooney No.2 [1979] PNGLR 544

JUDGMENT

This is a private prosecution taken by Patmos Togan against Jonathan Hapman for unlawfully residing on a customary land pursuant to s. 145(1)(2) of the LANDS ACT.

The defendant Jonathan Hapman appeared personally before the District Court on the 3rd of November 2000. The charge was read to him. When asked if he admitted the charge, the defendant replied, "It is true, I still live on that customary land belonging to my big man." The Court then enters a plea of not guilty on his behalf. The case was adjourned to 7.11.2000 for hearing.

On the 7th of November 2000, both parties appeared before the Court and the case proceeded to hearing. Patmos Togan gave his sworn evidence that, he took the defendant to Court because, Joe Gaga and himself have won the ownership title to the customary portion of land known as Lagis. The decision of the Local Land Court, "Annex A" favours Joe Gaga and his brother Patmos Togan, the informants in this case.

Joe Gaga was called as a second witness. He collaborated the evidence of Patmos Togan. He contented that, Jonathan Hapman was served a copy of the Local Land Court Order, but failed to vacate the land. The decision of the Local Land Court was awarded to himself and his brother Patmos Togan. They did not allow Jonathan Hapman to reside on Lagis land. Therefore, he is illegally residing on Lagis customary land.

The Court then considered the evidence from the prosecution and ruled that, there was a prima facie case against the defendant. The defendant elected to give his defense on Oath. Jonathan Hapman told the Court that, he was the rightful owner of the land Lagis. He called two witnesses to support his evidence.

At the close of the defense case, the Court found that Jonathan Hapman had submitted no defense in Law to enable him to continue to reside on Lagis land. S. 145 (2) of the LAND ACT states; "It is not a defense that the entry, use or occupation of the land was under a claim of right." What Jonathan Hapman was raising in his defense is not a defense in Law.

The Court must be satisfied beyond reasonable doubt, in order to find the defendant guilty as charge.

The following factors were considered before arriving at a appropriate sentence.

AGGRAVATING FACTORS

(a) This offence is prevalent in the Namatanai Open Electorate area.

(b) The defendant showed no remorse. When asked to address the Court, he boldly told the Court, "I will not move out of Lagis land, unless the informants and the Court do something to pay for my properties." His action is very disturbing and calls for a hush penalty.

MITIGATING FACTORS

(a) The defendant is a first offender.

In this case, the Court must sent out a stern warning to the defendant and those considering to follow the defendant's foot steps to seek redress through proper legal channels. If the defendant chooses to take the law into his own hands, he will be dealt with accordingly.

In the case Public Prosecutor v Nahau Rooney No.2 [1979] PNGLR 544, the Court ruled that imprisonment was appropriate in some contempt cases and sentence the defendant to a term of imprisonment. The case Public Prosecutor -vs- Nahau Rooney supra, involves a very highly educated person who is very familiar with laws of this land. Where in this case, the defendant is a simple villager who knows very little about the law.

I remind myself that, ignorance of the law is no excuse, however I concluded that, this case is not the same as Public Prosecutor -vs- Nahau Rooney supra. I have also considered all sentencing options including imprisonment and concluded that, a fine would be appropriate in those circumstances. The fine must be such that, it will act as a deterrent factor to others.

Defendant is convicted and is ordered to pay a fine of K500.00 payable by 17.01.2000 in default shall be imprisoned with hard labour for a term of five (5) months.