Maiya v Sowai [2009] PGDC 42; DC920 (4 June 2009)

DC920

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE AT AITAPE]

DC NO: 18-19 of 2009

BETWEEN

Raymond Tungi Maiya & Otto Tungi
(Complainants)

AND

Jack Raman Sowai
(Defendant)

AITAPE: M.SAMALA
2009: 15 May, 27 May
04 June

Civil – Claim for loss of properties, food and cash crops, Complainants alleged invited to occupy land, No clear proof on land deal agreement, Contradictory evidence, DPI damage assessments dated to 02 March 2009, Damage alleged occurred 01.01.2007 and 01.05. 2008, Complaint dismissed for want of proof.

CASE CITED:
No case

REFERENCE:
Evidence Act, sections 34 & 35

COUNSEL:
In persons, the Complainants
In person, the Defendant

REASON FOR DECISION

04 June 2009

M. Samala: The Complainants are from Poltulul Village, Aitape Local separately claiming a sum of K7 995.00 and K4 140.00 respectively against the Defendant for loss to food and cash crops after been forced out of the land. The damage claims were instituted in separate summons against the same defendant with trial held jointly on consent of parties as the nature of complaint arose from the same incident with date and time with the same parties and this is the judgment of the joint trial.

2. FACTS

The Complainants in their respective complaints claimed that on the 15 March 2000, Defendant came with nine (9) PUSATE customary land clan group elders from Wauningi, Siaute and Yaite/Wom Villages from Aitape inland visited him and his Pusate Clan members at Poltulul Village. There they then held talks with four of his clan elders and all insisted and requested that members of Pusate living at current Poltulul Village should return to their ancestral Pusate land at Wauningi and occupy it.

3. After the discussions in 2001 the Complainants left their Poltulul Village and went and peacefully settled at Wauningi on Pusate clan land, and for eight years have developed the land with planting of permanent food crops like sago, coconut, beltelnut palms, each complainant owned one hectare cocoa blocks and many other crops before finally were chased out off the land by Defendants and his immediate sons in 2007.

4. From the destruction of their crops in 2007, they brought the matter to Aitape Police, mediation was held and there they were compensated in the sum of K100.00. They are now claiming for the entire loss their suffered for labour over eight years developing the said land area and loss of enjoyment of all the food and cash crops left behind.

Documents filed in court supporting their claim being;

1. One page five paragraph sealed and certified joint Affidavit Statement signed by both Complainants dated 14 April 2009.

2. A two page Statutory Declaration Form signed by Clan elder and a witness John Kaiko but unsealed and not counter signed by all named fourteen (14) respective clan elders of four villages, ten elders from Wauningi, Siaute, Yaite/Wom and four elders from Poltulul who met on 15 March 2002 and said to have agreed on land use with space next to their each respective names for counter-signing but each did not sign.

5. EVIDENCE

Before going into the details of evidence, I wish to mention that the production of the unsealed Statutory Declaration filed by witness John Kaiko is refused as the document is not original and not signed or counter-signed by other named thirteen clan eldres involved in 15th March 2002 land deal except by witness and clan elder John Kaiko. Also it was not sealed and certified in year 2002, the year complainants alleged this Statutory Declaration was purported to have land agreement deal made between parties and so, there is no value and relevance for judicial notice to be taken in this document per the Evidence Act.

6. All parties and their witnesses gave sworn evidence including defendant elected to testify on oath. Defendant called one defence witness and in the complainants’ case, their called two witnesses.

7. In brief, Complainant Raymond Tungi Maiya claims his Tungi and Ariki family of Poltulul Village at Aitape are members of Pusate Clan who originally own Pusate Land at Wauningi up Aitape inland and the visit by Defendant and other nine Pusate Clan elders of Wauningi, Siaute and Yaite/Wom Villages in year 2000 was to ask Pusate Clan members from current Pultulul Village to return to their ancestral customary land in Wauningi. After that meeting in 2000, in 2001 he and second Complainant Otto Tungi (his brother) decided to leave their Poltulul Village and went to live at Wauningi. From the first year of settlement 2001 to 2006 they stayed peacefully and very much enjoyed life there developing the land area they were given by defendant and planted a lot of food and cash crops on it.

8. However, in 2006 life was not going well for them as food and cash crops had matured, they harvested and sold cocoa which made defendant jealous so defendant and his immediate sons started disputing them in telling them to vacate the land area they at. When they didn’t leave, they were physically chased out and had resulted in destruction done to many of the crops they own where the matter was brought before Aitape Police in 2007 and the Defendant and sons were ordered by police to compensate them in the sum of K100.00.

9. Now that they both had decided not to return, they are coming to court to claim for the loss of labour on improvements including loss of enjoyment of all crops destroyed and remaining, especially permanent food crops like coconuts, beltelnuts, sago and cash crop cocoa remaining on Pusate land at Wauningi.

10. The evidence of Raymond Tungi as strongly contested by Defendant in cross-examination as he denied liability raising in defence that if there was land deal agreement why and complainants did not summoned other nine elders but only him. He went to argue the elders and him never invited the Complainant or second Complainant his brother Otto Tungi to Pusate land at Wauningi in 2000 but that both had freely gone to live at Wauningi on their on accord for reasons both are married to Wauningi women and went to live with in-laws. There was no objection by Complainant he is not married to Wauningi woman or that second complainant his brother not married there and reveals fact both went to reside with in-laws.

11. Further, defendant strongly contested damage assessment by DPI for an amount of K7 995.00 and K4 140.00 respective done on 02 April 2009 which he questioned DPI assessment was not made for the wrong in 2007 and so, the complaint was not real as DPI made not physical assessment for damages done to crops in 2007 as Police already had mediated and they were asked to compensate K100.00 in settlement that year. After that there was no complaint till now and if the complaint is real, DPI damage assessment report should be dated to 2006 or 2007 and not 2009 as it is now. He said the same for assessment in second complaint and further commented that Complainants went to stay with in-laws but challenged customary owners there so they had to be told to leave or be forced out and that’s exactly what happened and had themselves to blame.

12. I am satisfied the defence of all DPI assessment documents in costings tendered to court for both complaints have the same date, dated 02 April 2009 signed by OIC DPI Aitape was done recently which cast a lot of doubts over actual destruction in 2006 or 2007 and genuine DPI assessment immediately be made soon after report brought over damage in 2007. The other uncontested fact remain is ten elders were said to invite complainants onto their land but very doubtful that only one been summoned and neither of the nine was called to testify on the claim and for proof complainants been invited onto the land by them.

13. The evidence of second Complainant Otto Tungi is similar to that of Raymond Tungi Maiya, his brother. I will not comment further on his evidence as consideration given in Raymond’s evidence also applies to him with strong contest against their evidences by defendant that he also married there and went with wife to live with in-laws and not been asked by them to go and settle on Pusale land. This complainant is observed not educated and got so much of his date and facts confused when replying to cross examination questions.

14. It puts a lot of doubt to the mind of the court when Complainants are suing for compensation over loss of properties they claim relating to customary land use agreement but the evidence put before court went against the claims as both are married there and went to live amongst in-laws. I am also not convinced as, if it’s ever true, they been invited, why do other nine elders beside defendant not summoned.

15. Complainants called two witnesses, Canisius Apai LLG Ward Member of Poltulul Village and John Kaiko a Poltulul Clan elder. Witness Apai’s evidence was very brief. He testifies that he has no knowledge of any agreement in 2000 or 2002 and can not tell court whether Complainants are invited by ten elders onto their land as claimed by Complainants. Although, he has lived all his life in the village and knows of the fact Complainants went to live at Wauningi and had now returned to their Poltulul Village. If it is ever true that they been chased out of Wauningi, that he heard nothing about it and can not comment on it as a witness in court or to tell lies to the court.

16. This witness is very honest and his evidence is of no value, relevance and assistance to the complaint and had to be refused. The second witness statement of John Kaiko, this witness based his evidence entirely on two pages Statutory Declaration he filed in support of the complaint. Court has warned witness the Statutory Declaration was not sealed and certified so can not be admitted into evidence. However, he testifies that all was true in the complaint as claimed when complainants been asked by defendant and nine other land clan elders of Wauningi, Siaute and Yaite/Wom Villages to return to Pusate land at Wauningi and that’s exactly what the two did after 2002 agreement.

17. He went further saying that since they were invited on the land and had developed it with planting of food and cash crops, now that they are forced out of the land, the landowners should compensate them for the loss of their labour, as well as, for loss to use of crops now remaining on the land. And that’s the reason why complainants are in court having all the statement in the Declaration he made and filed being all true.

18. Evidently, for this witness his evidence on land use agreement contained in the unsealed Statutory Declaration he filed has no proof and was strongly contested by defendant that further destroys the credibility his witness has when declaration bearing names of all fourteen elders of clans not been counter signed by none of the clan elders named as proof of agreement in 2001 in what deponent witness is alleging and so, this evidence also be refused.

19. In pursuant to evidential proof by affidavit documents, sections 34 & 35 (2) of the Evidence Act, Chapter 48 been cited and relied upon gave no satisfaction of prove one bit can establish technical proof as I find this witness affidavit has legal defects, not counter signed by all fourteen affected clan elders named to sustain proof and so, can not be admitted into evidence by law since defendant strongly objected it as he is not only one clan elder when equally other thirteen elders involved were named and all should be summoned since they know nothing about the land use agreement complainants are alleging and did not sign which indicates complainants are lying.

20. Firstly, the two pages Statutory Declaration has names of all fourteen (14) elders in 2002 alleged in land deal agreement but none counter signed besides space allocated near each name. Secondly, the affidavit not accompanying any copy of original land deal agreement dated either to year 2000 or 2002 with rights of PUSATE Land at Wauningi Village temporarily transferred to complainants accordingly, cast a lot of doubts as they are seen illegally occupying the land and live their on their on risks as there exist no proof complainants were invited on the land.

21. I intend not to continue further to elaborate on the defendant’s evidence and that of his witness one Andrew Akai since the denial of Defendant as been sustain throughout the cross examination questions in defence put to complainants and their witnesses and I am much satisfied defendant had made out his defence through out the trial against the claim he and other elders invited the complainants onto the land as well as the first matter was already heard and settled by Police in 2007.

22. Furthermore, defendant strongly objected the validity of DPI damage assessment against award of compensation each complainant is claiming. Having DPI document as the essential part of proof in any claim of this nature, I find complainants evidence contradictory, not consistent and convincing to sustain proof of the complaint on balance of probability having DPI assessment recurrently made with no actual physical assessment made on damaged properties in 2007 and find for Defendant to have the complaint matters both be dismissed for want of proof.

23. Having said that, being totally convinced and satisfied with the defence made out by the defendant thru cross examination evidence, from the totality of evidence put before court, complainants’ evidence is contradictory and lacks prove, I find for the defendant and accordingly, ordered that the matter of complaint be dismissed for want of proof.

Orders made accordingly.

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