Kubei v Amele No.2 Village Court [2010] PGDC 63; DC2003 (20 August 2010)

DC2003

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]
V/CT 13/2010

SAMALANG KUBEI
Appellant

V

AMELE NO.2 VILLAGE COURT & NUSMAI PIPOI
Respondents

MADANG: J KAUMI
2010:4th, 18th June 2nd, 16th, 22 July 6th, 20th August

APPEAL

VILLAGE COURT ACT- Appeal to District Court against a Preventive Order issued by a Village Court- Constitutional rights are guaranteed and must be accorded–Protection of the Law--Sections 37 (1) .

PRACTISE AND PROCEDURE-Strict application of the rules of evidence and of the acceptance of documents into evidence not applicable when a decision of Village Court under appeal or review.

A man appealed against a "Preventive Order" issued against him by a Village Court made pursuant to a dispute over ownership of customary land.

Held:
(1). The strict application of the rules of evidence and of the acceptance of documents into evidence are relaxed when a decision of a V.Ct is under appeal or review by the District Court and this is mandated by the operation of Sections 89 (5) and 59 (1) of the V.Ct Act.

(2). Division 5 of the Village Courts Act provides for the Preventive Jurisdiction of a Village Court and the provisions of s.51 under this Division in particular provides the mechanism for the issuance of such orders.

(3). The appellant has not shown in his submission how the 'Preventive Order' was unconstitutional and I fail to see how an order that was made in the interests of preventing a breach of peace and the upholding of the law in accordance with the provisions of ss.51 (1) and 43 can be unconstitutional in so far as infringing upon his right to movement as provided by s.52 of the Constitution.

(4). This 'Preventive Order' was not an end to a means rather quite the contrary, it was a means to an end and I find that it gave full effect to s.37 (1) of the Constitution of this country. By this I mean the rights of all parties who might have an interest in the subject customary land will be protected and enforced in the appropriate tribunal, the Local Land Court.

(5). The effect of this 'Preventive Order 'is only temporal pending an outcome by the appropriate tribunal.

(6). The original purpose of Section 51 (1) of the Village Courts Act was to prevent tribal fighting but the wording of this provision makes it clear that it can be used for individual as well as group trouble.

(7). Pursuant to the discretion given to this court by s.92 (a) of the Village Courts Act I confirm the decision of the Amele No.2 V.Ct in issuing 'Preventive Order' No. A20603 on 21/04/10.

Cases cited:
The following cases are cited in the judgment:
Wali vs Wali [2006] N 3051 (20th /04/06),

Legislations
Constitution of PNG
Village Court Act 1989

Abbreviations:
The following abbreviations appear in the judgment:
J Justice
N National Court judgment
V.CT Village Court

APPEAL

This was an appeal against a preventive order of a Village Court.

Representation:
Appellant in person
Respondent, in person

INTRODUCTION

1. Kaumi. M. This is a judgment on an appeal against a Preventive Order issued by the Amele No.2 V.Ct here in Madang.

2. At the outset I adopt as a matter of practice parts of the outline only of a judgment by Cannings J in Wali vs. Wali ^[1]. This is for a want of a suitable precedent in our jurisdiction.

BACKGROUND

3. The respondent Mr Nusmai Pipoi had summoned Kubei, the appellant and Nusmai Molomol to appear before the Amele No.2 V.Ct on 14/04/10 for allowing Dorcas Ismael to live on a piece of land that he says was under dispute at Bilibil village.

4. The land in dispute was formerly occupied by Mr. Mangan Wangalai and his family until they were forcibly removed by Bilibil villagers.

5. Samalang Kubei and Nusmai Pipoi have opposing claims to the said piece of land.

VILLAGE COURT PROCEEDINGS

6. The Amele No.2 Village Court issued a Preventive Order No. A20603 (Form 4) dated 21/04/10 against the appellant, Samalang Kubei and respondent Nusmai Pipoi from entering a piece of land owned by a Mr. Magan and from taking any property belonging to Mr Magan therein. It further ordered that the matter be brought to the Lands Officer to decide who the rightful owner of the land in dispute was. Mr. Pipoi did not appeal against this Preventive Order.

APPEAL TO DISTRICT COURT

7. On 12th May 2010 the appellant filed a notice of appeal, stating the following ground:

(i). Order was unconstitutional as it breached their freedom of movement and their rights to the land.

SUBMISSIONS

8. The strict application of the rules of evidence and of the acceptance of documents into evidence are relaxed when a decision of a V.Ct is under appeal or review by the District Court and this mandated by the operation of Sections 89 (5) and 59 (1) of the V.Ct Act. This court can therefore admit and consider documents which would otherwise be not admissible and I make these comments at this juncture as the documents submitted by both appl and resp are of such a nature.

APPELLANT'S SUBMISSIONS

9. The appellant's submission was contained in two documents, an affidavit sworn and filed on 14/06/10, and another affidavit sworn and filed on 22/07/10.

10. The appellant's first affidavit of the 14/06/10 set out what I believe was the real motive for his appeal. And its main thrust is the appellant's claim to the land in dispute on one hand and disputing the respondent's claim to it.

11. It covers his genealogy, brief accounts of other clans from Bilibil village, recent history of the said land and disputes the respondent's claim to the land.

12. His second affidavit of the 22/07/10 is a rebuttal of the depositions of the respondent's affidavit of 14/07/10.

RESPONDENTS' SUBMISSION

13. The respondents' response was contained in two documents, an Affidavit by Nusmai Pipoi sworn and filed on 14/07/10 and an affidavit by the Amele No.2 V.Ct filed on 1/07/10.

14. The respondent in his affidavit of 14/07/10 deposes to his claim to the land in dispute, his genealogy and history, events surrounding the eviction of Mangan from the said land and rebuttal of the appellant and other person's claims to that land.

ISSUES

15. The issues are as follows:-

ISSUE ONE (1)

Did the Amele No.2 Village Court act in contravention of any Constitutional Law, Act or subordinate enactment applying to it by issuing the 'Preventive Orders'?

ISSUE TWO (2)

Has there been a substantial miscarriage of justice? (This is a prerequisite to allowing the appeal under Section 92(1) of the Village Courts Act.)

ISSUE THREE (3)

Did the Village Court exceed its jurisdiction?

ISSUE FOUR (4)

What remedies, if any, should be granted by the District Court? (The District Court's remedial powers are prescribed by Section 92(1) of the Village Courts Act.)

RELEVANT LAW
16. There are certain provisions of legislations that are relevant to the issues at hand and they are as follows:-

CONSTITUTION

Section 37. PROTECTION OF THE LAW.

(1). Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

VILLGE COURTS ACT

Section 51. PREVENTIVE ORDERS.

(1). Where it appears to a Village Magistrate or a Village Court that a dispute may cause a breach of the peace, the Village Magistrate or the Village Court may–

(a) order the parties to appear before the Village Court with a view to having the dispute dealt with under this Act; and

(b) for the meantime, order the parties or any other person not to–

(i) enter into a further dispute or counsel another person to enter into a dispute; or

(ii) fight, prepare to fight or counsel another person to fight; or

(iii) spread rumors or fears about the existence or imminence of a dispute; or

(iv) make offensive weapons or carry offensive weapons in certain places; or

(v) do any other act or thing, whether or not specified in the order, that might aggravate the dispute or cause a breach of the peace.

(2) Where an order is made under Subsection (1) (b), the Court shall cause the order to be issued in writing and served on each party to the dispute or on any other person.

Section 43. DISPUTES IN RESPECT OF LAND.

A Village Court that has jurisdiction over an area in which there is situated any land that is the subject of a dispute as to–

(a) its ownership by custom; or

(b) the right by custom to its use,

may, on the application of a party to the dispute, make an order–

(c) authorizing the use or occupation of the land by one of the parties to the dispute for such purposes and subject to such conditions as are set out in the order; and

(d) where appropriate, prohibiting the use or occupation of the land referred to in Paragraph (c) except in accordance with an order referred to in that paragraph; and

(e) restraining the other party to the dispute from interfering with the authorized use or occupation,

or for any other purpose, pending a decision by the Local Land Court or the Provincial Land Court.

DELIBERATION OF ISSUES

ISSUE ONE (1)

Did the Amele No.2 Village Court act in contravention of any Constitutional Law, Act or subordinate enactment applying to it by issuing the 'Preventive Orders'?

17. The appellant has not shown in his submission how the 'Preventive Order' was unconstitutional and I fail to see how an order that was made in the interests of preventing a breach of peace and the upholding of the law in accordance with the provisions of ss.51 (1) and 43 can be unconstitutional in sofar as infringing his right to movement as provided by s.52 of the Constitution.

18. The reasons given by the Amele No.2 V.Ct for the issuance of the order were in fact giving effect to the provisions of s.43 (a) and (d) of the Village Court Act and this issuance was perfectly within their powers to do so. It had heard evidence from both disputing parties on 14/04/10 and found that there was a dispute to ownership of customary land and how the previous occupant had vacated it and on 21/04/10 it issued the 'Preventive Order' allowing for both parties to go further for an adjudication of their claims to the appropriate forum, the Local Land Court.

19. This 'Preventive Order' was not an end to a means rather quite the contrary, it was a means to an end and I find that it gave full effect to s.37 (1) of the Constitution of this country. By this I mean that the rights of all parties who might have an interest in the subject customary land will be protected and enforced in the appropriate tribunal, the Local Land Court.

20. Division 5 of the Village Courts Act provides for the Preventive Jurisdiction of a Village Court and the provisions of s.51 under this Division in particular provide the mechanism for the issuance of such orders.

21. The original purpose of this provision was to prevent tribal fighting but the wording of this provision makes it clear that it can be used for individual as well as group trouble. And in this instance the previous occupants of this land had six (6) of their homes burnt to the ground.

22. The effect of this 'Preventive Order ' is only temporal pending an outcome by the appropriate tribunal, in this instance the Local Land Court.

23. This Court is further in receipt of a letter from a Mr. Lapiu Mangan on behalf of the Mangan family dated 17/08/10 disputing these two parties' claim to the land in issue and this adds a new dimension to the whole matter as they are the very people whose properties are affected.

24. I answer this issue in the negative (no).

ISSUE TWO (2)
Has there been a substantial miscarriage of justice? (This is a prerequisite to allowing the appeal under Section 92(1) of the Village Courts Act.)

25. For the reasons above I answer this issue in the negative (no).

ISSUE THREE (2)
Did the Amele No.2 Village Court exceed its jurisdiction when it issued the 'Preventive Order'?

26. I answer this issue in the negative as well for the reasons outlined in answer to the first issue

ISSUE FOUR (4)
What remedies, if any, should be granted by the District Court?

27. The District Court's remedial powers are prescribed by Section 92(1) of the Village Courts Act.

DETERMINATION

28. The decision of the Court on the Appeal:-

(i).Pursuant to the discretion given to this court by s.92 (a) I confirm the decision of the Amele No.2 V.Ct in issuing 'Preventive Order' No. A20603 on 21/04/10.

Appellant in person
Respondent in person

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^[1] (2006) N 3051 (20th /04/06)