Gele v Momae [2008] PGDC 45; DC743 (18 March 2008)

DC743

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CIVIL JURISDICTION]

DCi 121 of 2008

BETWEEN

OTTO GELE
Complainant

AND

PASTOR DANIEL MOMAE
Defendant

Kundiawa: J. SIKI
2008: March, 18,

CIVIL - Application for Restraining Order.

Cases Cited:
Nil

References:
District Courts Act &Lands Act

Counsel:
For the Complainant - In person
For the Defendant - In person

18 March 2008

JUDGEMENT

J. SIKI: This is an extempore judgement in relation to a dispute between the parties over the exercise of rights in the use of a vacant government land in Kundiawa.

The facts show that the parties are both settlers on a piece of government land at Gon Hill in Kundiawa town known as section 12.

The defendant is the dominant tenement occupies a portion of section 12 in which the complainant and 50 other settlers being the servient tenement pass through to go to their respective portions by way of an easement.

This action has been instituted by the plaintiff when the defendant settled and blocked off the easement denying the plaintiff and other’s living beyond of easy excess to and fro their settlement portions.

The crust of the complainant is in paragraph 3 of the statement of claim which says:

“....between September and October, 2007 the defendant has unlawfully and without consent or authority from either the Lands Department or from the other residents of section 12 at Gon Hill thereby blocking off access to the complainant and other residents living at section 12 settlement..."

The complainant has therefore sought court orders for the defendant to quit and remove buildings and structures he’s built and for a permanent restraining order from entering section 12 settlement again.

Section 4 (1) of the Land Act (the Act ) states: “All the land in the country other than customary land is the property of the State, subject to any estates, rights, titles or interests in force under any law”.

And Subsection (2) states that “all estates right, title and interests other than customary rights in land at any time held by a person are held under the state”.

The land in question is deemed conclusively not to be customary land. The Government through the expropriation process acquired effective control and ownership of the land upon which the township of Kundiawa sits by virtue of section 4 of the Act.

The issue is whether the applicant has any locus standi in seeking the relief sought.

The affidavit in support of the application show that the plaintiff along with the 50 other settlers were fenced off by the defendant settler depriving their free access to their homes and amenities like the market, schools, churches and the main road rendering the previously enjoyed easement void.

The plaintiff approached the defendant to get an easement arrangement again but the defendant did not agree to it. The plaintiff therefore sought the assistance from the Provincial Lands Officer and Provincial Administrator who wrote to the defendant to vacate section 12.

The defendant defied those notices and continued to live at section 12 giving rise to this action.

From the outset section 12 is State or Government land that is part and parcel of the township of the Kundiawa being part of the land that was expropriated during the colonial era as alluded to above.

For the plaintiff to bring the action he must show that he has a legal right to do so within the meaning of section 4 of the Act.

In this case, the plaintiff has not shown he has any such statutory rights in the land over that of the defendant. The parties are both illegal settlers on section 12 as such no one has any greater right than the other to enjoy the privileges accorded to legal tenants to sue or to be sued in relation to the subject land.

Even if the plaintiff is seeking judicial intervention on the grounds of equity, still equity must follow the law. And the law is that the defendant does not have any legal rights to sue or be sued, in relation to any dealings of section 12.It therefore follows the plaintiff can’t assume the privileges enjoyed by legal tenants as he is a squatter himself without any of those rights under section 4 of the Act. It is therefore the lands department that can seek any orders on behalf of the State as the legal custodian of all government land.

Accordingly the case is dismissed.

Parties to meet their own costs.

Complainant, - In person
Defendants, - In person