Hetegae v Kakaia [2017] PGDC 51; DC3083 (5 December 2017)

DC3083

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCCi 191Of2017

BETWEEN
PAUL HETEGAE

Complainant

AND

BAMO KAKAIA

Defendant

Goroka:P KAUMBA

2017: November23
December5
CIVIL:

Cases Cited:
Nil

References:
Nil

Counsels:

Lawyer for the Complainant, In person.

Lawyer for the Defendant, In person.

5^th December, 2017

DECISION

P KAUMBA, Magistrate:The Defendant filed notice of motion in this proceeding on the 7^th of November 2017 seeking inter alia the following orders:

1. The proceedings be dismissed for being defective in nature and abuse of process.
2. Permanent restraining order prohibiting the complainant/respondent and their families, relatives, servants and agents from continuing to trespass, and causing physical interference with the defendants possession of the land in dispute.

RELEVANT LAW

District Court Act.

Section 21 Civil Jurisdiction

(1) Subject to this Act and in addition to any jurisdiction conferred by any other law, a court has jurisdiction in all personal actions at law and in equity where the amount of the claim or the amount or value of the subject matter does not exceed-

• (a) Where the court consists of one more Magistrates Grade V-K10,000.00; and
• (b) Where the court consists of one or more Magistrates Grade VI-K8000.00 and ...

Section 22 General Ancillary Jurisdiction

Subject to this Act, a court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it- (a) grant relief, redress or remedy or combination of remedies, whether absolute or conditional and(b) give the effect to every ground of defence or counterclaim, whether equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

LAND ACT.

132 DISPOSAL OF CUSTOMARY.

Subject to sections 10 and 11, a customary landowner has no power to sell, lease or otherwise dispose of customary land, or customary land 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.

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

Penalty: for the 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.

(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 forcibly ejected by a member of the police force.

LAND DISPUTES SETTLEMENT ACT.

Disputes over customary land can be brought to the local land mediators and if parties are or a party is aggrieved by the mediators decision then he/or she can appeal to the Local Land Court. The Provincial Land Court is the final court of Appeal.

STATUTE OF FRAUDS AND LIMITATION ACT

2.CREATION ETC, OF INTEREST IN LAND.
Subject to Subsection(2) and section 5-

(a) No interest in land can be created or disposed of except-

• (i) By writing signed-
  • (a) By the person creating or disposing of the interest;or
  • (b) By that persons agent lawfully authorised in writing for the purpose
• (ii) By operation of law; or
• (iii) By will....
  

PRINCIPLE OF RES JUDICATA.

The common law principle that once a matter or issue in dispute between parties is decided by a court of competent jurisdiction, it cannot be raised again between the same parties in another court.

ISSUES.

1. Does the District Court have jurisdiction to hear a dispute over customary land?
2. Can the complainant bring a substantive claim under section 22 of the District Court Act?
3. Can this court hear a matter in which another District Court has already heard the same parties on the same issues previously?

FACTS AND FINDINGS OF LAW AND FACT

1. The complainant is suing the defendant and claims interalia an eviction order on the grounds that his father sold a customary land known as NEGINAGIHA Kama Goroka Eastern Highlands Province to the Defendant for K5000.00 and the Defendant paid K900.00 and was allowed to move onto the land and build house but failed to pay the outstanding balance of K4100.00.
2. There is no evidence of the above agreement in writing as required by the Statute of Frauds and Limitations Act(see above).
3. It is alleged that the complainant’s late father passed away in March 2015 without being paid the outstanding K4100.00.
4. After the complainant’s father’s death the complainant gave the Defendant 8 months to pay up but failed to do so and the dispute was referred to the lands office and the lands office gave notice to the parties and attempted to mediate solution.
5. The Provincial Administrators office issued a notice to quit to the Defendant on the 9^th of February 2016 but police failed to effect the same and advised parties to come to court.
6. Therefore the complainant issued proceedings in the District Court on the 6^th of January 2017(comp No 21 of 2017)claiming restraining orders and an eviction order and the case came before His Worship Gerard Vetunawa and on the 9^th of October 2017 His Worship dismissed it on the grounds that the wrong parties were before the court and I quote ‘the court has find that complainant is using the absence of the deceased Jasen who dealt with the complainant in the first place.he should have sued when the deceased seller was still alive. The defendant dealt with the deceased’.
7. With due respect His Worship decision is narrow and wrong interpretation of fact and law. The dispute is over land and the deceased seller’s son the complainant is deemed/presumed to have inherited the properties of his father in the absence of a will left behind by the late JasenHetegave and he can sue the Defendant.
8. The complainant is now coming to court again claiming restraining orders and an eviction order under section 22 of the District Court Act. The relief sought in the aforesaid case and this one, is basically the same, the only difference is that in the above mentioned case the complainant issued proceedings without quoting a provision of the District Court Act but now he comes to court under section 22 of the District Court Act and that in my viewis wrong. Section 22 provides for ancillary/incidental reliefs only and that is not the right provision under which one can bring an action for substantive relief like an eviction order. Substantive reliefs or cause of action in the District Court can be bought under section 21 of the District Court Act.
9. As I note from finding in item 5 above the complainant has already commenced proceedings for eviction under the Land Act and he should complete that process by getting the police to deal with the defendant under section 145 and 146 of the Land Act because notice to quit issued by the Provincial Administrator of Eastern Highlands Province over customary land has the same effect as an eviction order issued by the District Court in relation to state leases and freehold land under the Summary Ejectment Act.
10. Furthermore I note that the parties dispute has been determined by the District Court on the 9^th of October 2017 and the common law principle of res judicata applies hereand this court cannot hear the same matter again.
11. And therefore I find that the complainant’s complaint is misconceived and is an abuse of process.

COSTS

Cost is a discretionary matter. The complainant is a layman and he seems to have not sought legal advice before issuing this proceeding. Furthermore parties are close neighbours and this court does not want to be cause of disharmony in their neighbourhood. Hence I am of the view that parties should bear their own costs.

ANSWER TO ISSUES

1.No. Disputes over customary land must go to the Local Land Mediators and the Local Land Court.

2.No. Section 22 of the District Court is not a provision under which substantive cause of action can be brought before the District Court.

3. No. Common law doctrine of res judicata applies here and this court cannot hear the complaint again.

ORDER

My formal orders are:

1. The Complaint is dismissed.
2. Parties to bear their own costs.
   

Counsels:

Lawyer for the Complainant, In person.

Lawyer for the Defendant, In person.