Lessi v Lota [2016] PGDC 8; DC3005 (17 March 2016)

DC3005

PAPUA NEW GUINEA

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

Cr 36 -37 Of 2016

BETWEEN

WILFRED LESSI AND BART SAREKE
Informant

AND

GIOBUN LOTA AND SANDRA LOTA
Defendants

BUKA: TASIKUL, PM
2016, 17^TH MARCH

REASON FOR DECISION

1. B.TASIKUL, This matter came before me by way of a summon to a person upon information. The informant Wilfred Lessie and Bart Sareke are suing Giobun Lota and Sandra Lota for disobeying the decision of the Native Lands Commission (Government Gazette No 52 of November 1961) by constructing a new house on the land Muntoko and Siar Land without consulting and obtaining consent of the complainants. This proceeding is brought under s. 64 of the Land Dispute Settlement Act.
   
2. Section 64 of the Land Dispute Settlement Act, states;
   

A person who refuses to comply with an order or direction lawfully given by a Provincial Land Court or Local Land Court is guilty of an offence.

Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.

3. To appreciate the matter, let me briefly high light the brief background of the matter.
   
4. In or about March, July, August and October, 1961 the Native Land Commission conducted a hearing over the customary ownership of Muntoko and Siar land. The hearing was conducted in pursuant to the Native LandRegistration Ordinance, 1952.
   
5. The hearing was presided over by C.W. Kimmorley, who was then a Native Commissioner. The ownership over Muntoko and Siar was then awarded to Sombat and Tupuon.
   
6. The complainants in this present proceeding are now claiming that as the descendants of Sombat and Tupuon, the rights of ownership now rest with them.
   
7. It was then alleged that since the 13^th November, 2014 up to 12^th August, 2015 the two defendants without consulting the complainants constructed their house on the Siar portion of land. This is now the subject of this present proceeding.
   
8. Before the hearing I reminded the parties that this is not a land court hearing. This is a criminal trial and the standard of proof is beyond reasonable doubt. The issue here is; whether or not the defendants did disobey the decision of the Native Land Commission of November 1961.
   
9. The defendants denied and pleaded not guilty saying that their house is constructed on their land which they refer to as Tugese.
   
10. It is not disputed that the Native Land Commission awards the ownership of Muntoko and Siar land to the Nakas clan under the leadership of Sombat and Tupuon. This is confirm through a copy of the Native Land decision which was tendered in court as evidence. It is also not disputed that the complainants are the descendants of both Sombat and Tupuon.
    
11. The complainants presented a copy of the sketch map in which they pointed out to the court that the defendants did construct their house on Siar land.
    
12. The defendants denied and told the court that their house is built on their land Tugeasa. In generally denizening both defendants fail to provide to the court the actual sketch of where Tugeasa land is. However, witness Leonard Tsikoa told the court that there was no Siar Land, the portion the complainants are referring to is where Tugeasa land is.
    
13. The defendants witnesses who testified all make mention that the defendants’ house was constructed on Tugeasaland. While the court appreciates their testimony I found that there is no solid evidence that the land they all refer to as Tugeasa.
    

This is because section 70 of the Land Dispute Settlement Act states; All courts, Judges and persons acting judicially shall take judicial notice of–
(a) the signature of a person who is or has been a Provincial Land Magistrate, a Local Land Magistrate or a Land Mediator; and
(b) the fact that that person is or has been a Provincial Land Magistrate, a Local Land Magistrate or a Land Mediator,

if the signature purports to be attached or appended to an order or other document issued out of a Provincial Land Court or a Local Land Court.

14. This court noted the copy of the decision of the Native Land Commission of 1961 which clearly identified the three (3) portion of land namely; Muntoko, Dekrenki and Siar. There is nothing in this decision mentioned Tugeasa.
    
15. Therefore without any reasonable doubt I find the defendants guilty as charge. I therefore hereby ordered that they pay a fine of K150.00 each in default be sentence to six months imprisonment.