Sinau v Konoma [2008] PGDC 98; DC756 (1 May 2008)

DC756

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

CL 03 of 2008

BETWEEN

EMMILLIA SINAU
Complainant

AND

RAPHAEL KONOMA
First Defendant

AND

BRUNO GALIOM
Second Defendant

AND

SELENA TOM
Third Defendant

Buka: B Tasikul, SM

2008: May 1

CIVIL - Application for restraining order - Customary land ownership not disputed, except ownership of the plantation.

Cases Cited

Nil

Reference

Evidence Act, s. 8

Counsel

For the Complainant - In Person
For the Defendants - In Persons

1 May 2008

JUDGMENT

B Tasikul, SM : The complainant in this matter is seeking order from the court to restrain the defendants and their relatives from harvesting copra from a plantation known as Patitun situated at Lemankoa in the Haku area, Buka Island.

2. The plantation in dispute was bought by the complainant from Hakona Francisca and her family. The contract of sale was executed and sealed on the 7 June 1996. The purchase price was for K2000.00 cash including foods, pigs and traditional shell money.

3. The reason why Francisca Hakona and her family sold the plantation was basically because she was moving back to her village at Tohatsi. She wanted to settle at her own land according to Buka customs which is a matrilineal society.

4. When she left, the defendants and their relatives continued to harvest copra from the plantation, denying the complainant her right to the plantation.

5. The reason why the defendants and their relatives continued to occupy the plantation was because they claimed that their father planted this plantation. The defendants’ father was Francisca Hakona’s brother. He claimed he was never consulted before the plantation was sold to the complainant.

6. However, the complainant rebuked this claim stated that before the contract of sale agreement was executed a meeting amongst the Hakona family with the chiefs of Haku was held in which the issue was discussed. Those present at that meeting were Mark, Francisca, Thomas Galiom (who is the defendants’ father) and other members of the family.

7. In that meeting a consensus was reached that the plantation would be returned to the landowners whom the landowner would only compensate them for their hard work.

8. The issue now before me is whether or not the defendants have the right over the plantation? The issue of ownership to the land where the plantation is located is not disputed however the defendants and their relatives still reside at Lemankoa village that is why they still continue to claim ownership of the plantation.

9. While the defendants and their relatives may have the equitable interest over the plantation, the question is why did their father agree to the sale of the plantation in the meeting that discussed the return of the plantation to the landowners? The defendants were not present at that time. However, their father would have informed them that the plantation would be returned to the landowners.

10. If the defendants had disputed the sale of the plantation, why didn’t they intervene and stop the sale from taking place. The first defendant contented that the matter came before the District Court sometimes in 1996 and an Order was granted for the complainant to return the payment back to Hakona. I find that there is no evidence before me about this claim.

11. The most important evidence before me is a contract of sale agreement signed between the Hakona family and Emmillia Baki which clearly spells out the content of the agreement.

12. Also before me is a statutory declaration signed by Hakona Francisca declaring that the plantation was owned by her family and no one else. I take judicial notice of the contract of sale and the statutory declaration which was signed and witnessed by the Commissioner for Oaths stipulated under section 8 of the Evidence Act.

13. I therefore, find that the defendants and their relatives have no right over the plantation as it has already been sold to the complainant. I hereby grant the following order:

14. That the defendants with their family members, agents or servants or associates be restrained from further harvesting the dry copra from the plantation known as Patitun located at Lemankoa, Haku area, Buka Island.

For the Complainant - In Person
For the Defendants - In Persons