Gitene v James [2018] PGDC 39; DC4032 (6 July 2018)

DC4032

PAPUA NEW GUINEA

[In the Civil Jurisdictions of the District Court held at Goroka]

DCR No 43 of 2018

Between:
SGT ROCKCY GITENE
(Police Informant)

And:
JENNIFER JAMES
(Defendant)

Goroka: C Inkisopo

2018: 6^th July,

District Courts Act – Court of limited jurisdiction with practice and procedure defined and demarcated by Act under Sections 21 and 22 –

Land Act 1996 – breach application under s 146 for failing to comply with Notice to Quit issued under s 145 of the Act –

Practice and Procedure – discretion exercised in favour of Defendant averting imposition of penal provisions of fine and/or forcible ejectment – reprieve granted Defendant to voluntarily vacate property within a given time frame –

Legislation/Rules/Regulations/Orders

1: District Courts Act Chapter No 40
2: Land Act, 1996

Case authorities

No cases cited

Held:

1: Defendant is found guilty of failing to comply with Notice to Quit occupation of a certain portion of customary land called “Apoga”, Kama Village, Goroka, EHP issued by the Provincial Administrator of the Eastern Highlands Province.

2: As by way of penalty under s 146(2) of the Land Act, 1996 and in the exercise of a discretion in favour of the Defendant considering her previous position as a faithful rent paying tenant to the customary owner for over 16 years, the Defendant is ordered to voluntarily vacate the subject “Apoga” land within a three (3) weeks period of 21 days from the date of this Order.

3: If the Defendant shall fail to vacate the subject “Apoga” land within the allowed timeline, Police shall be empowered to enter upon the premises and eject her, if necessary, with reasonable force to effect Defendant’s ejectment from the subject portion of the “Apoga” land and deliver a peaceable possession to the owner; Mr Mike Wingi.

Appearances:

1: Sgt Gitene for Police Prosecutions
2: Ms Jennifer James; Defendant Self in person

6^th July, 2018

JUDGMENT

C Inkisopo: This matter came before me by way of a Police Information dated 4^th July, 2018 charging the Defendant with breaching the Provincial Administrator’s statutory s 145(3) Notice to Quit issued on her to vacate a certain portion of customary owned land called “Apoga” at Kama Village, Goroka Town, Eastern Highlands Province.

2: The matter first came before me on 6^th July, 2018 with Sergeant Gitene for the Police Prosecution appearing also as the Informant whilst the Defendant Jennifer James appeared as a Defendant from a K50.00 police bail.

3: On arraignment, the charge was read and explained to the Defendant who understood same; at which she was directed to enter her plea to the charge. As for plea, she launched into making the following explanations (paraphrased);-

“I took the dispute over this piece of land to Goroka District Office to register as a Land Dispute but the District Office did not do anything on it. Peter Tom (original customary owner) should have sold the land to me as first option buyer; for I have been a faithful rent paying tenant to him for a lengthy period of over 16 years”

4: Peter Tom, the original customary owner of the subject land from whom the Defendant had been renting apparently sold the subject portion to one other, a Mike Wingi also from the Southern Highlands Province as the Defendant. The Defendant lamented that Peter Tom should have given her the first purchase option as being his faithful rent paying tenant for over 16 years if Peter Tom so desired to dispose of the subject land by way of an outright sale.

5: Whilst the Court appreciates and sympathizes with the Defendant’s lament, the Court views this line of explanation against the undeniable fact of the ownership of the subject land having have already changed hands and concluded and out of Peter Tom’s control and ownership for Defendant to enjoy the “rent-paying relationship” argument.

6: In my humble view, the Defendant’s explanations could hold water only if the rental agreement between her and Peter Tom had a clause or an agreement conferring on her the first right of option to buy it if the customary owner decides in future to sell it off like he did to Mike Wingi in the instant case. In the instant case, there is no such clause or agreement demonstrated in all the evidence on file so far for the Defendant to take avail of.

7: In considering and attempting to deal with this matter, I consider the following facts to be relevant;-

➢ The Defendant hailing originally from the Ialibu/Pangia District of the Southern Highlands Province occupied the subject “Apoga” land on a rental agreement basis with the original customary owner; Mr Peter Tom for over 16 years.

➢ The customary owner, Mr Peter Tom took an independent private individual decision to sell off the subject land to another buyer of his choice; a Mike Wingi (also) from the Southern Highlands Province where the payment for and possession of it having already been concluded and finalized.

➢ The Goroka District Office through its recognized official Land Mediators of Wesley Inapo and Kulo Tiai mediated the Defendant’s claim and found the Defendant to being only a rent paying tenant and her claim could not qualify as an issue as to ownership dispute contrary to the Defendant’s claim that the Goroka District Office did not conduct any mediation at all on her claim.

8: Considering the evidence in totality of this case against the above established facts, the crucial issue in this case is crystalized into this;-

“Peter Tom with whom the Defendant had an existing rental arrangement was no longer the owner of the subject portion of land for the Defendant to persist with and in her present line of Defense.”

9: It is this new owner Mike Wingi who is seeking to have Defendant evicted from the subject portion of land to carry out improvements that Defendant reportedly refused to relinquish and vacate, hence putting up a legally baseless and a stubborn resistance; in my humble view.

10: In order to continue in occupancy of the property whilst pressing her claim of not having been afforded the “first buyer option” on the basis of her (16 years continuous rental occupation cannot and does not in my humble view afford her (Defendant) a lawful excuse or defense to the present charge. Putting it differently; can it on that basis accord her a legal defense to the charge?

11: I fail to see where Defendant has demonstrated any legally meritorious cause with which she could take avail of as a defense to the charge. Her raising a purported ownership dispute registered with the Goroka District Office cannot and does not come to her aid as she was found to lack merit and legal standing to pursue her claim when in fact she was only a rent paying tenant.

12: She is further noted to have sought and obtained restraining orders from forced eviction against both Peter Tom and Mike Wingi by virtue of DC No 50 of 2016 which fell through as they were dismissed on application by both men before the Goroka Grade 5 Court per Raphael Appa PM in a written ruling on 15^th May 2017 finding that the Defendant lacked locus standi to press the claim she undertook.

13: The blunt fact of the matter remains; Peter Tom with whom the Defendant had a then existing rental agreement is no longer the owner for that rental relationship to continue to subsist simply because the previous customary owner is no longer the owner as he had already sold off his customary ownership interests in the particular portion of land to one other, a Mr Mike Wingi.

14: When the subject property ownership changed hands, the rental arrangement existing between her and the previous owner Peter Tom ceased to exist, the “Apoga” land ownership changed from Peter Tom to Mike Wingi. That change of ownership effectively operated to abrogate and annulled the Defendant’s status as a rent paying tenant; thus rendering her as an illegal occupant of the “Apoga” land.

14: Under this circumstance; she effectively possessed no right to continue to occupy the subject property. As a consequence thereof, she is deemed to be in occupation of the subject “Apoga” land without authority; which naturally cascades into becoming an offence if the alleged un-authorized occupant continues in occupation of same after a s 145 statutory Notice to Quit issued by the Provincial Administrator is not complied with by the said un -authorized occupant.

15: Here in our instant case, at the complaint of the new owner, Mr Mike Wingi, the Provincial Administrator issued the Defendant with a s 145 statutory Notice to Quit the subject property on the Defendant. It seem clear to this Court that when the Defendant failed to quit the occupation of the subject land, a Complaint seemingly was made to the Police that subsequently saw the Defendant arrested and charged for an alleged offence under s 146(1)(b) of the Land Act, 1996.

16: Defendant was arrested, charged and released on a K50 cash bail and made to appear in Court on 6^th July, 2018 for the Court to deal with her case.

Court’s finding

17: In all of the circumstances alluded to as above set out; and considering the Defendant’s explanations in her plea on arraignment, her such explanations do not in my humble view afford her a defense to the charge. She has therefore no Defense at all to the charge preferred against her under s 146(1) (b) of the Land Act, 1996.

Verdict:

18: In the final upshot, I find the Defendant guilty of the charge of failing to quit occupation of the “Apoga” land after having been served with a Notice to Quit issued by the Provincial Administrator pursuant to s 145 of the Land Act.

Sentence:

19: In considering the best possible penalty to impose in this case, the following factors peculiar to this particular Defendant were taken into consideration;

➢ Long time rent paying tenant over the subject portion of land who held a mistaken belief that she had all the right to remain on the property regardless on the-yet-again mistaken belief that she possessed the first option entitlement to purchase the subject portion of the “Apoga” land;

➢ First time offender having nil previous convictions recorded against her;

➢ Had previously been a faithful rent paying tenant over the subject property until it was sold to Mike Wingi; hence she deserved some level of leniency on sentence for this offence.

20: By way of penalty, the Court after considering and weighing up all factors that may be counted for and against her opts (in the ultimate upshot) to extend the Defendant a reprieve from the full extent of the monetary penalty prescribed under s 146(1)b) of the Land Act,1996.

21: In its place the Court however considering and taking recourse to the alternate penalty prescribed under s 146(2) for a possible forced ejectment, but considers it most fitting and appropriate to consider ordering the Defendant to voluntarily vacate the subject property within a given time frame.

22: The formal Orders of the Court are;-

(a) The Defendant is found guilty of the charge of breaching the statutory Notice to Quit under s 145 of the Land Act, 1996 pressed against her; and

(b) As by way of penalty, the Defendant is ordered to vacate the subject “Apoga” land within a period of 21 days from the date of this Order, failing which the Police Force shall be authorized to enter the subject “Apoga” land (with force if necessary) and give vacant possession to the Complainant Mike Wingi.

(c) The Defendant’s K50 bail shall be refunded.

(d) Orders accordingly

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Dated this 6^th day of July, 2018

Cosmos Inkisopo

Presiding Magistrate

(Nil Lawyers appeared)