Kabae v Muriki [2009] PGDC 85; DC993 (19 May 2009)

DC993

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

DCC 329 of 2008

BETWEEN:

MICHEAL K KABAE
Complainant

AND:

PETER MURIKI
1st Defendant

AND:

JOE TARA
2nd Defendant

AND:

JOE RUFUNAI
3rd Defendant

Madang: E Wilmot

2005: 19 May 2009

This matter arises from a complainant lodge the complainant Michael Kabae over claim that the defendant Mr. Peter Muriki trespassing over his land. He makes this complainant by way of section 145 of the land act.

Section 145 of the Land Act states

Section 145. UNLAWFUL OCCUPATION OF GOVERNMENT LAND AND CUSTOMARY LAND.

(1) A person who, without authority, enters, occupies or uses Government land or customary land, is guilty of an offence.

Penalty: For a first offence–a fine not exceeding K500.00 or imprisonment for a term not exceeding 6 months.

For a second or subsequent offence–a fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months.

(2) It is not a defence that the entry, use or occupation of the land was under a claim of right.

(3) A person who contravenes Subsection (1) and refuses to leave after receiving notice to quit from the Departmental Head or the Provincial Administrator of the province in which the land is located may be forcibly ejected by a member of the Police Force.

For these reasons the orders sought by the Complainant are therefore basically as follows:

1. that the powers be exercised by the court under 145 of the land act; or
   
2. that the land goes back to the complainant as the customary owner; and
   

100. That cost be order against the defendants or that the defendant pay the complainant’s cost of these proceedings.
     

The Parties Submissions Summarized

Complainant’s Evidence

The evidence of the complainant consist of:

1. his oral evidence in court
   
2. his first affidavit filed dated 020408 and filed 020408
   

100. his amended affidavit dated 080409 and filed on 080409
     

4. his affidavit of annexure filed on 22 10 08.
   

All these evidence are now before the court and your worship has read them and is well acquainted with their content.

DEFENDANT’s Evidence

The Evidence of the defendant consist of:

A) his second affidavit dated 14/04/09 filed on the same date

B) his first affidavit dated 23/03/09 filed on the same date

C) his affidavit of annexure dated 23/03/09 filed on the same date with annexure marked ‘’A to H”.

The complainant claims that since the colonial government till after independence, the state has never purchased the land from the true land owners. That is, from his fathers or ancestors up till now. The state just moved onto the land, surveyed it and developed it without obtaining the true ownership (title) from the customary owners.

He (complainant) search the lands department as per paragraph four (4) of the statement of claim but the lands department could not find any records of purchase by the state in the past (see also para. 5).

Therefore the state has no proper title over section 13 12 and 15 of the complainants potion of land in Bogia town. The state therefore cannot transfer by way of sale or lease any better or clear title to the subsequent owner/purchaser/lessees of the said portion of land.

The first defendant’s evidence:

The first defendant’s evidence id contained mainly in his affidavit and affidavit of annexure attached hereto.

It shows clearly that he obtained the title over section 3 from J&J Mah Pty Limited, who then transferred it to Yakuasa cattle ranch in 1986 86 and to Rural development bank by way of mortgage and then to Nelell Pty Ltd who then mortgaged it to the Bank South Pacific.

Summery of evidence before the court:

It is submitted that the evidence of the complainant is concerned about events and circumstance surrounding the proper acquisition of the land, subject of this claim, from the customary owner, the complainant. That is current land where the defendant now occupies plus the rest of the township of Bogia land is was not properly acquired.

The first defendant’s evidence is about the title he obtained from the previous owners namely the Rural Development Bank through a contract of sale dated 11 November 1997. The land or its certificate of title is now mortgaged to Bank South Pacific since 17 03 1998 until the loan of K90,000 is full paid off.

They submit that this whole case is very similar to the case of Custodian of Expropriated Property v-v Commissioner of Native Affairs) re Jomba Plains (1971-1972 P&NGLR 501.

In that case the German New Guinea Company acquired customary land from natives in 1887 and 1888 but did not pay for them. The natives were only given some trade goods. Judge Philip in 1932 then ordered the custodian to pay compensation for the lands to the commissioner who will then pay the natives. However no payment seems to have been paid.

In this case the complainant is saying the same thing. He is saying that his land section 3 12 and 15 at Bogia Township has never been paid for. He is now asking the defendant to vacate the land or be evicted by the court so that he can settle on his land and do business on it.

It is therefore submitted that is not his problem that the defendant will not move out because the state never had any clear title to the land in order to pass it onto the defendants.

The complainant’s evidence of the letters of the Lands Department dated 28 05 2008 by Casmir Mano to Alex Dira and From Alex Dira to the Secretary of the Lands & Physical Planning.

ANNEXURE “A” “B” of the complainant’s affidavit shows that there are no records of any transactions showing that the land was properly acquired.

It is submitted that the Defendant should peacefully vacate the land or be evicted by the court. The Lands Department has already admitted that they are not the true landowners and the title bases on the Survey done were without complying with the proper legal requirements procedures. State, therefore, ha no proper legal title. It cannot therefore give a good title to the subsequent owners because it has none.

RESPONDENT’S EVIDENCE

The evidence of the defendant consists of the following:

A) his affidavit of annexure dated 23/03/09 filed on the same date with annexure marked ‘’A to H”.

B) his first affidavit dated 23/03/09 filed on the same date

C) his oral evidence in court and

D) his second affidavit dated 14/04/09 filed on the same date

COMPLAINT’S EVIDENCE

The evidence of the complainant consists of the following:

A) his first affidavit dated 22/10/08 filed on the same date

B) his affidavit of annexure dated 22/10/08 filed on the same date.

C) his amended affidavit dated 02/04/09 filed on the same date

Your worship, all of the above evidences are now before the court and you are well acquainted with their contents.

RESPONDENT’S STATEMENT OF CLAIM

The respondent is proprietor of Nelell limited. Nelell limited is the current registered state lease holder of allotment 12, section 3, Bogia. The complainant failed to identify who actually is a state lease holder of lot. 12 sec 03, Bogia and has there fore infringe on the personal rights of the respondent and 2 others. Therefore the OS DCC 329 of 2008 was incorrect and illegal since the respondent and 2 others were not the state least holders of lot 12, sec. 3, Bogia and incorrectly summoned.

The allotment 12 section 3 Bogie is a business lease under 54, chapter 185 of land act 1996 and was transferred from previous lease holder of Nelell limited after satisfying all the necessary government requirements. The evidence of that is as per respondent’s affidavit of annexure ‘’A” and ‘’B’’.

Nelell limited acquired the business lease on lot 12, sec 3 Bogia when it was publicly tendered in 1996. There was no objection registered by the complainant had this be his customary land and was tendered at that time.

The allotment 12, section 3, Bogia is inside the Bogia town boundary of the state land.

The Complainant’s evidence:

The compliment’s evidence is that contained mainly in his affidavit of annexure attached in hereto.

The complainant has failed to prove any evidence of his ownership except copies of correspondences from lands officers expressing their opinions together with tempered copies of the Bogia town Maps.

Summery of evidence before the court:

It is submitted that evidence of the respondent is quite clear on how Allotment 12 section 3 is acquired and having a copy of the state lease on hand. DCC 329 claimed Respondent and 2 others are illegal occupying and residing on above mentioned allotment. The respondent has proven that beyond reasonably doubt under one section of the law, the land act 1996 administered by Lands Department. Therefore in this case the lands department that can evict the respondent and not the complainant.

Secondly if the complainant has any ownership issue of his customary land then this is a matter between him and the state. He should be taking the state to court instead of the defendant in this instant. All the affidavit of annexure presented are irrelevant in this case because the respondent is not the cause and has been dragged into it causing a lot of inconvenience.

Therefore the orders sought by the Defendant are basically as follows:

1. that the powers exercised by the court that this case be dismissed forthwith
   
2. the defendant is the legitimate state lease holder and remains peacefully on the land
   

100. the cost be ordered against the complainant or the complainant pays the cost of the proceedings
     

Court's findings:

In pursuing both submissions and affidavits by both parties this court can only come to one conclusion.

The respondent is proprietor of Nelell limited has obtained registered state lease holder over allotment 12, section 3, Bogia per section 54 of the land act.

The allotment 12 section 3 Bogie is a business lease within the specified section of the land act 1996. In following the evidence I find that it was transferred from previous lease holder of Nelell limited after satisfying all the necessary government requirements. I note ‘’A” and ‘’B’’.

The acquisition took place after successfully tendering for the above-mentioned allotment.

It is clear from the evidence provided by the defendant that he has good title within section 54 of the land act.

In conclusion I find the evidence brought by the complainant to be merely opinion and not conclusive.

That further section 145 of the land act is an administrative action that is to be exercised by the lands department. This section cannot be relied on to bring action to evict a person from being UNLAWFUL OCCUPATION OF GOVERNMENT LAND AND CUSTOMARY LAND.

I note the case of Custodian of Expropriated Property v-v Commissioner of Native Affairs) re Jomba Plains (1971-1972 P&NGLR 501. this is a very different case from the present. the the case referred it was on acquisition of customary land in this case it is a dispute over whether the current lease is legal. In all essence the complainant has brought this matter to the wrong court and has brought the wrong parties. The case should be against the state agency dealing with lands, not against thye current lease holder.

I find for the Defendant and order as follows:

1. the entire proceedings be dismissed
   
2. the defendant is the holder of business lease on lot 12, sec 3 Bogia
   

100. Complainant to pay the cost of proceedings.