Saki v Piraka [2016] PGDC 11; DC3009 (28 April 2016)

DC3009

PAPUA NEW GUINEA

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

Cr 52 Of 2001

BETWEEN

AMBRAHAM SAKI
Plaintiff

AND

EMMANUEL MASIN PIRAKA
FirstDefendant

AND

FRANCIS SOMA TSIKOA
Second Defendant

AND

JOSEPH HAKETS KOPITCH
Third Defendant

AND

DAVID KISIN
Fourth Defendant

AND

DAVID TARIHIN
Fifth Defendant

AND

AGATHA SEVI MULAS
Sixth Defendant

AND

COSMAS KAROANA HANGATSIA
Seventh Defendant

BUKA: TASIKUL, PM
2016, 28^TH APRIL

REASON FOR DECISION

1. B.TASIKUL, this matter came before me by way of a summon to debtor in pursuant to s.181 of the DistrictCourt Act. This provision states;
   

(1) Where an order of a Court has been made for the recovery or payment of money with or without costs, or for costs alone including costs ordered to be paid by an informant, the party entitled to enforce it may, on summons, apply to a Court or Magistrate for an order that–

(a) the debtor; or
(b) in the case of a corporation–an officer of the corporation,

be orally examined as to–

(c) whether any and what debts are owing to the debtor; and
(d) whether the debtor has any and what other property or means of satisfying the order.

(2) A summons, under Subsection (1), may be issued by a Magistrate or Clerk.

(3) The debtor or officer shall be examined on oath, and any person may be summoned to give evidence or produce documents and may be examined on oath as in any case of summary jurisdiction.

2. To appreciate the matter, let me briefly high light the brief background of the matter.
   
3. The parties to this proceeding are the heirs or descendants of the original claimants to a consolidated land dispute refer to as Tanakobu/Tanahu/Tegese and seventy one (71) meter Tanahu /Tegese land.The disputing parties were John Habou, Pereka Kutsi, Peits Parkear, Samuel Kunbi and Thomas Saki respectively. It is not disputed that the defendants to this current proceeding are the descendants of the parties in substantive land court proceeding. They are;
   
   1. Emmanuel Masin and Cosmas Karoana Hagatsia are the descendants of Pirika Kutsi;
   2. Francis Soma the descendant of Peits Parkear;
   3. Joseph Hakets Kopitch, David Kisin, David Tarihin, and Agatha Sevi Mulas are the descendants of Thomas Saki.
      
4. On the 28^th January,1985 the Local Land Court in relation to Tanakoku land handed the decision which states;
   

Decision of the Court

The headman RINGIN of Nakaripa clan was the original owner of the land TANAKOBU and that the woman KORU of Nakaripa clan was living at Tanakobu with RINGIN, JOHN HABOU is the descendant of the woman KORU and the lineage of the Nakaripa clan of which RINGIN be the headman and the original owner of the land.

Accordingly I order that JOHN HABOU is the sole beneficial owner of the land TANAKOBU of all rights by native customary tenure of Buka Island

And I hereby order that PEREKA KUTIS of Nakas clan cannot claim the solemn ownership of the land TANAKOBU through the headman HOLI because;

1. PEREKA is not the descendant of HOLI;
   
2. HOLI only paid for a piece of the land at TANAKOBU for him (HOLI) and his children to be buried there when they die. HOLI did not buy the whole land.
   
3. HOLI did not buy that piece of land at TANAKOBU for the Nakas clan BUT for himself;
   
4. Therefore PEREKA KUTSI, cannot claim the land as a clan land accordingly to the customary ownership
   

And I hereby order that PEITS PAKEOR cannot claim the sole ownership of the land through the headman PALAO according to the customary ownership because;

1. Peits Pakeor is not the descendant of PALAO;
   
   2. PALAO was from the land Gontai and he only went to Tanakobu when he sees his wife REGETSI was living at Tanakobu. WhenPALAO died he buried at Gontai;
      
   3. PALAO was not the original owner of the Land Tanakobu.
      

BOUNDARY:

I order that the boundary for the land TANAKOBU to be where the pags (marks) which John Babou have installed. The land Tanakobu is bounded between the two strips of land namely Gontai and Tegese. Theboundary between Gontai and Tanakobu starts at the beach in the westerly direction about 10 metres from the tree at the beach in the north direction. It cuts through Tanakobu village near the beach and the LONTIS COMMUNITY SCHOOL above the cliff where the kapok tree near the side of the main road Buka/Kesa and across to the other side of the road to where the AILA tree is and goes all the way towards KAROOLA PLANTATION in the easterly direction almost parallel with the Tanakobu garden road.

The boundary between Tanakobu and Tagese in the southerly direction starts at the beach where the LAHUD HU tree is and it links with the metal picket (A) near the BUKA/KESA main road and it leads all the way in the easterly direction towards KAROOLA PLANTATION.

PLANTATION

Pereka Kutis, Peter Kakeor and any other members of Kakas clan who have cocoa or coconut plantation are to continue harvesting their crops for a period of twenty (20) years up to 28^th January 2004. During this period the plantation owners are to pay TWO HUNDRED KINA yearly to JOHN HABOU as compensation for the use of land. These payments are to commence in JANUARY 1985 and on every first month of the year for twenty years.

After 28^th JANUARY 2004 JOHN HABOU is to buy back the entire plantation at a rate of two kina (K2.00) for every year Coconut tree and Two Kina Fifty Toea (K2.50) for every Coconut tree that will be still productive.

I also order that there will be no more replanting of Cocoa or Coconut trees on the existing plantation and no more new plantations be established as from date of order 28the January.

Twenty year period is allowed to compensate the plantation owners for their time and effort and to allow them to resettle themselves in their new environment especially on their mothers land.

The only person unaffected by the above order is THOMAS SACKI because of his wife SINEVI who is from the land Tanakobu and in the genealogy of the woman KORU.
According to the custom the plantation THOMAS SACKI has in Tanakobu are for his wife and children of that marriage.

GARDENING

The lives of the people depends on the land on which they make garden ,It has been a traditional practise for so long that everyone used the land for gardening only even when the land belongs to another person. For this reason the members of the Nakasclan may use the land foe vegetable gardening only but they are not to establish any small scale business like Poultry,Piggery,T/Store etc unless allowed by land owners.

Decision of the Court

The land TANAHU is only a piece of land within the whole Land TANAKOBU.
The Seventy-one (71) metre dispute boundary is where the old village IVI used to be where the people of Tegese were living before. According that 71 metres strip of Land, the sole ownership and the rights are hereby ordered in favour of MR SAMUEL .P.

5. On the same date 28^th January 1985 the same Local Land Court handed down the decision between Samuel P. Kunbi and Thomas Saki.The nature of the dispute was the seventy one (71) meter Tanahu/ Tegese boundary. The decision states;
   

BOUNDARY

The boundary for the land TEGESE to be between TANAKOBU where the LAHULAHU Tree stands as indicate by both JOHN HABOU and SAMUEL P. KUNBI and be in line with the METAL PICKET (A) near the side of the Buka/Kesa main road and loads several kilometres towards KORAOOLA PLANTATION in the easterly direction beyond the stone KELI and the high water mark TAMA.

PLANTATION

Thomas Sacki and his brothers who have plantation of Cocoa and Coconut which lay along this 71 metres strip are to pay TWO HUNDRED (K200.00) to the land owner MR SAMUEL .P.KUNBI yearly as compensation for the use of land. These payments are to commence in January 1985 and on every first of each month for twenty years. Ialso order that the plantation owners are to continue harvesting the cash crops for the twenty year that is up to 28^th January 2004. After twenty years SAMUEL .P. KUNBI is to buy back all the plantation at the rate of K2.00 for each Coconut tree and K2.50 for each Cocoa tree that will still be productive.

Thomas Sackie and his clansman are not to establish any small scale businesses like Poultry, Piggery, new plantation etc. They are not to plant any new cash crops (Cocoa, Coconut, trees) on the existing plantations.

I have allowed twenty year period for Thomas Sackie and his people to resettle themselves on their own lands also that period will compensate their hard work, time and effort used in established these plantation.

GARDENING

As it has been a common traditional practise, Thomas Sackie and his clansman living on this 71 metres strip of Tegese are to continue to work on their vegetable gardens but not any other purposes.

6. The decision of the Local Land Court of the 28^th January, 1985 was appeal and on the 25^th November, 1985 the District Land Court by His worship Martin Golu (as he was then) affirmed the decision of the Local land court except the part of the order relating to 20 years and resettlement was quash and replaced with the appellants descendants to permanently settle on the land with the owner John Habou & others whilst working on their plantation. Further order that financial assistance at K200.00 yearly payment be affirmed and add that the appellants to provide financial assistance to John Habou & others on customary or traditional feast performances on his request.
   
7. Then through their heirs namely Anthony Billy and Ignatius Sapolo applied for review of the decision of the Local and Provincial Land court in the National court which the National Court dismissed the entire proceeding on the 19^th November,2008.
   
8. This now brings the current status of this matter now stands that the Provincial Land court has affirmed the decision of the Local Land court with a slid variation with the appellants’ descendants to permanently settle on the land with the owner John Habou & others whilst working on the plantation. This is basically the back ground of this matter.
   
9. The purpose of this proceeding by Abraham Sacki who is the heirs of John Habou and Samuel Kunbi is seeking orders that the descendants of Thomas Saki, Pirika Kutsi and Peits Pakeor pays the K200.00 compensation yearly as ordered by the Local Land Court dated 28^th January, 1985.
   
10. He claims that since the Local Land Court order was issue on the 28^th January,1985 the order has not been complied with and not even a payment been made with the exception of Emmanuel Masin Pirika and Joseph Hakets Kopitch who each paid K100.00 in 2003.
    
11. The defendants each and severally testified and told the court that their coconut and cocoa plantations are on their land Tanahu and not at Tanakobu. That is why they are not willing to pay any compensation.
    
12. I had the opportunity to visit those plantations and also to see for myself the boundary in relation to this proceeding.
    
13. Let me put this on record and wish to emphasis here again that the purpose of this proceeding is not to determine ownership issue or the boundary. These issues were been determine by the local land court of 28^th January, 1985.This proceeding is only concerned and about the outstanding payment that the defendants failed to pay as heirs or descendants of the original parties to the LLC proceeding of 28^th January, 1985.
    
14. This part of the decision by the District Land Court states that orders related to 20 years and resettlement thereafter is quash and replaced with the appellant descendant to permanently settle on the land with the owner John Habou & others whilst working on their plantations. Further order that financial assistance at K200.00 yearly payment to be affirmed and the appellant to provide financial assistance to John Habou & other on customary or traditional feast performances on his request.
    
15. The order of K200.00 financial assistance yearly does not specify for how long would this payment to continue. The Local Land Court gave a time limit of twenty (20) years, whereas this part of the order is now quashed by the District Land Court. The District Land Court decision is very vague. There is no time limit for this payment is terminated.
    
16. It is my humble view that with the District Land Court decision does not give any time limit when such compensation assistance should ceased it is very open for abuse and parties can easily capitalise on this type of orders.
    
17. Section 44 of the Land Dispute Settlement Act provides for the variations of Local Land Court orders. I will exercise my powers under the Act and varied the District Land Court order to be replaced to twenty (20) years and stated in the Local Land Court decision of 28^th January, 1985. These twenty (20) years ended on the 28^th January, 2005.
    
18. I ask myself is;has the defendants as heirs or descendant of the Thomas Saki, Pirika Kutsi, and Peits Parkear complied with the orders.
    
19. There is no evidence that throughoutthese years they paid anything with the only exception of Emmanuel Masin and Joseph Hakets. I am therefore satisfied that since the orders were issue no payment been made. I therefore find that all the defendants are liable to pay to the complainant in the following proportion;
    
    1. Emmanuel Masin Pirika –K3900.00
    2. Francis Soma Tsikoa –K4000.00
    3. Joseph Hakets Kopitch –K3900.00
    4. David Tarihin –K4000.00
    5. David Kisin –K4000.00
    6. Agatha Sevi Mulas-K4000.00
    7. Cosmas Karoana Hagatsia –K4000.00
       
20. Each and severally are given to pay this entire amount by the end of this year 2016. In the event that they fail to comply with this order all is sentence to twelve (12) months imprisonment.