Nenizo v Kaman [2017] PGDC 11; DC3048 (28 September 2017)

DC3048

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCCi 91 OF 2017

BETWEEN
HENRY NENIZO & RAYMOND MASUVE

Complainants

AND
JOSEPH KAMAN

Defendant

Goroka: P Kaumba, Magistrate
2017: August 14
September 28

CIVIL:

Cases Cited:

Nil

References:

Nil

Counsels:

Lawyer for the Complainant, Tom Brian of KamoPilisa& Co. Lawyers

Lawyer for the Defendant, In person

28^th September, 2017

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DECISION
P KAUMBA, Magistrate: This is a complaint filed by the complainants seeking eviction orders against the Defendantto be evicted from the property described as Gohekoheto, Kami area in ward three(3) of Goroka District,Goroka, Eastern Highlands Province(herein-after referred to as ‘the Land’)pursuant to section 145(3) of the Land Act. The complainants also seek general damages for unlawful occupation pursuant to section 145(3) of the Land Actclaiming that:

(1) The complainants are the owners of the land, and
(2) The Defendant continues to unlawfully occupy the land in defiance of a Notice To Quit issued by the Provincial Administrator of Eastern Highlands Provincial Administration on the 20^th of March 2017.

1. ISSUES BEFORE THE COURT.
   

(1) Does the District Court have jurisdiction to deal with complaints for eviction orders under section 145(3) of the Land Act?
(2) Does the District Court have jurisdiction to hear a matter where there is a dispute between the complainants over the land and the dispute is yet to be resolved by the Land Court?
(3) Does the District Court have jurisdiction to hear a claim for unspecified general damages in relation to unlawful occupation of the land?
(4) Did Jeffery Mortel (a person of Philippine nationality)purchased the land?
(5) Whether the Defendant is the adopted son of Jeffery Mortel(deceased). If so can he inherit the land?
(6) Whether the defendant has acquired an equitable interest in the land by virtue of the fact that he has been on the land for over 30 years?

2. LAW.
   

CONSTITUTION

2. 56 Other rights and privileges of Citizens.

(1) Only citizens may-
(a) ...
(b) Acquire freehold land....

LAND ACT.

‘132 DISPOSAL OF CUSTOMARY LAN.

3. Subject to sections 10 and 11, a customary landowner has no power to sell,lease or otherwise dispose off customary land or customary rights otherwise than to citizens in accordance with custom, and a contract or agreement made by him to do so is void’.
‘’ 145 UNLAWFUL OCCUPATION OF GOVERNMENT LAND AND CUSTOMARY LAND

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(1) A personwho, 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 K1000.00 or imprisonment for a term not exceeding 12 months. right.
(2) 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’’

4. Public Policy. According to Osborn’s concise law dictionary public policy is defined as ‘Certain classes of acts are said to be against public policy, or against the policy of the law, when the law refuses to enforce or recognise them on the ground that they have a mischievous tendency so as to be injurious to the interests of the state or the community. Thus trading with an enemy, marriage-brocage contracts, and agreements in restraint of marriage or trade, are instances against public policy(see Egerton –v- Brownlow(1853)4H.L.C 1)...

5. Sir Pita Lus –vs- MathinusKambu&ors(2007)PGDC 175 held that a Notice TO Quit under section 145 of the Land Act has the same effect as an eviction order under the Summary Ejection Act.

3. FINDINGS ON FACT(S) AND APPLICATION OF LAW TO THE FACTS.
   

(1) The complainants are customary landowners of Gohekoheto, Kami Goroka Eastern Highlands Province.
(2) Mr Masuve allowed Jeffery Mortel to use the land in 1993 but the Defendant says it was in 1986 when the Mr Masuve allowed Jeffery Mortel onto the Land but whose is telling the truth is still in doubt but there is no need to enquire further because as we may see below this case will depend on whether the complainant can come to this court under section 145(3) of the Land Act.
(3) The complainants had a dispute over the land in 1995 and they went to the Local Land Court for resolution and the case is pending decision.
(4) Whilst the dispute was still on Mr Raymond Masuve allowed his friend Mr Jeffery Mortel to occupy part of the land on the understanding that once the dispute is over the said person will purchase it. This fact is in dispute due to finding in item (2) above.
(5) Mr Jeffery Mortel passed away in 1998 and Ms Mortel left for Philippines in 2014 due to old age.
(6) The complainants decided to come together and withdraw the Land Court proceedings and laid complaint with the Provincial Administrators office to evict the defendant and a notice to quit was issued on the 20^th of March 2017 but the police have not executed it.
(7) The complainant issued these proceedings against the Defendant due to the failure of the police to effect the notice to quit issued by the Provincial Administrators office giving excuse that they require a court order to give effect to the notice to quit.
(8) The court assumes jurisdiction to hear this case on the basis that we live in a democratic society and if the complainants wish to withdraw their case in the Land Court and pursue this case then it is their prerogative to do so.Secondly this case is between an outsider and customary landowners whereas the case before the Land Court is between customary

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(9) landowners and how the complainants being customary landowners deal with the case before the Land courtif a decision is given then that is a matter for them. This court can go ahead and determine whether the Defendant is an illegal occupant or not on customary land. Thirdly the complainants have reconciled in the presence of community representatives and church leaders on the 6^th of April 2017 and have come together and agreed to withdraw the Land Court case between them and develop the land and it is their prerogativeto do so and public interest requires that they be allowed to do so.Lastly the complainants have gone through administrative process provided under the Land Act that is through the office of the Provincial Administrator and notice to quit has been issuedand served on the defendant and this court cannot delay that administrative process from being effected.
(10) Mr Raymond Masuve allowed one Jeffery Mortel to use the land and thereafter it is claimed by the Defendant that Mr Mortel bought the land from Mr Masuve but there is no documentary evidence to confirm the purchase. The evidence on the purchase from the defendant and his witnesses are all oral and hearsay and they cannot be relied on by this court to make a finding of fact.
(11) The Defendant says he is an accounts clerk in the Mortels company 3 in 1 Ltd and witnessed the purchase of the land from Mr Masuve with k25000.00 cash and a Toyota Hilux Double Cab Yellow in colourvalued at K30,000. 00 but evidence before the court suggeststhat isthe defendant did not seethe transaction take place. He has failed to show copies of cheque payments to prove the purchase and sale agreement.He did not produce witnesses to confirm the purchase. Land is a very important capital asset for any company or person and transactions to do with land must be evidenced in writing as required by law and there no written evidence of the sale.
(12) Mr Mortel was brought onto the land by Mr Masuve that in future once the Land Dispute with Henry Nenizo is solved Mr Mortel will buy the land and there may have been some payments made. It was for purchase of the land or rental payments and Jeffery Mortel and his wife are not around to confirm the same. Hence this court cannot make a conclusive finding on whether the land was bought or not.
(13) Furthermore in the courts view customary land cannot be sold to a stranger or persons without any connection by custom/tradition or blood to the Kami clan of Goroka, Eastern Highlands Province. Mr Mortel is a foreigner from another country and how can he obtain an interest in the land in violation of the Land Act(see section 132 and section 56(1) of the constitution hereinabove).
(14) The Defendant says that the Mortels are PNG citizens are entitled to own land in PNG but there is no documentary evidence to confirm that.
(15) .The Defendant claims that he is an adopted son of Late Mortel and her wife but there is no documentary evidence to show that Mr Mortel actually adopted the Defendant under to the Adoption Act. If the defendants adoption is based on custom then that is illegal because Mr Mortel is a foreigner cannot adopt the Defendant under custom. It has to be done under the Adoption Act and there is no evidence of the same before this court.
(16) The Defendant claims that he has been on the land for almost 31 years and that will amount to him acquiring an equitable interest in the land. I think he may have acquired an interest

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(17) to a limited extent but to a large extent nothingbecause he claimed the property through the Mortel’sand since they have left he has no interest in the property. Furthermore findings in (5) to (14) above and (16) to (17) below makes it impossible for the Defendant to have a clear equitable interest in the land. Lastly the Defendant has said in cross-examination in court that he was not paid for working for the Mortel’s in last few months before the Mortel’s left so the landwas given to him to cover for his unpaid wages which contradicts what he has so far submitted to court thatthe land was bought by Mortel andas Mortel’s adopted son he is entitled to inherit the land.
(18) The Defendant also claims he is a shareholder in Mr Mortel’s company but there is no documentary evidence to show this court.
(19) . The defendant claims that he has all the right to inherit the land but there is no will left by the late Mortel to support his claim to the land either.
(20) . Based on the above findings the court is of the view that the defendant is an employee of the late Mortel and Ms Mortel and by virtue of his employment and due to the failure by the Late Mortel and wife to pay his final entitlements when they left.He claims he has a right to claim whatever is left behind by the Late Mortel and his company which is wrong and his claim does not hold water.
(21) Section 145 Land Actcreates an offence with a penalty provision for unlawful occupation which is a fine of K500.00 or imprisonment of a term not exceeding 6 months.It does not give a landowner a cause of action to issue eviction proceedings under it. Hence the complainants claim is misconceived and an abuse of process.
(22) The NOTICE TO QUIT issued by the Provincial Administrator under his Hand under the Land Act is the final product of a process provided by the Land Act wherein the complainant or any other customary landowner can pursue eviction proceedings to evict persons unlawfully on their land. Notice to Quit has the same effect as an eviction order. The only difference is that the notice to Quit is issued by a Provincial Administrator and eviction order under the Summary Ejectment Act is issued by a Magistrate in Court( see Decision of His Worship SGORA in Lus –vs- Kambu&ors herein-above). The complainant’s have not exhausted this process andthey must go back to the Notice To Quitdated 20^th of March 2017 and have it executed by police.
(23) In conclusion the court finds that the complainant’s complaint is misconceived and it should be dismissed.
(24) The court is also of the view that the claim for general damages by the complainants cannot be entertained because the damages has not been assessed and given a value and claimed in their complaint by the complainants to bring it within the jurisdiction of this court(see section 21 of the District Court Act above) and it cannot rule on it. It is also a claim incidental to the eviction order and since the complaint for eviction is misconceived. It follows that the complainants claim for general damages is void. Furthermore the complainants lawyer submits that the complainant is entitled to K10,000.00 in damages but this court has no power to grant damages in excess of K8000.00.

4. THE ANSWERS TO ISSUES BEFORE THE COURT ARE:

(1) No.

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(2) Yes.
(3) No.
(4) No.
(5) No.
(6) No.

5. COSTS.

6. Cost’s is a discretionary matter. Complainants have not done their homework properly to issue these proceedings and as usual costs should follow the event.

7. The Court’sformal orders are:

1. The complaint is dismissed.
2. The complainants claim for unspecified general damages for unlawful occupation of the Land described as Gohekoheto, Kami Eastern Highlands Province is struck out.
3. Costs to follow the event, to be taxed if not agreed.
   

Counsels:

Lawyer for the Complainant, Tom Brian of KamoPilisa& Co. Lawyers

Lawyer for the Defendant, In person