Tonga v Bonga [2020] PGDC 25; DC4082 (15 June 2020)

DC4082

PAPUA NEW GUINEA

In the District Court of Justice at Kokopo

(sitting in its Civil jurisdiction)

CV 81 OF 2020

BETWEEN

WILLIAM TONGA

Complainant

AND

ISIDOR BONGA

SAMMY KUAU

ALLAN GAUNG

Defendants

KOKOPO: J. AMANU

2020: 30 March, 03, 08, 15 June

DECISION

CIVIL – District Court Act, Part X ,s. 209, 210 – Surety of peace and of good behavior – s. 214 of District Court Act considered – Type of Orders court grants in respect this Part of the Act.

CIVIL – Evidence considered – Defendants breached peace - but not of evil fame – principle of natural justice considered – s. 22 of District Courts Act not necessary to invoke – orders in terms of s. 214 (b) of the District Courts Act.

Legislation:
District Courts Act

Case Authorities cited:
Tony Yandu vs. Peter Waiyu (2005) N2894
James Whitney vs. Bethleen Kasap (2012) N4613

Counsel:
Complainant - Mrs. N. Rainol
Defendants – In Person

15^th June 2020

1. J. Amanu: The Complainant instituted this proceeding under Sections 209 and 210 of the District Courts Act (herein referred to as the Act). As pleaded in the Complaint, the Complainant seeks the following orders:

1. Pursuant to Section 209 and 210 of the District Court Act, named Defendants, their agents, servants, family members and associates whosoever be refrained and restrained from causing any interference in any manner, intimidation, harassment, any attempts to restrict the activities of the complainant and its Luluka Land Group affairs over the Raniolo Plantation on Portion 3275 Rem Milinch in Kokopo, and Fourmil Rabaul, ENBP.
   
2. That the named Defendants, their agents, servants, family members, clan members, associates whosoever be permanently restrained and refrained from holding illegally meetings to conspire against the Complainant’s Land Group with the sole intention of causing breach of peace, disturbance and disruption to its plans in developing its property at Raniolo Plantation on Portion 3275 Rem Milinch Kokopo, Fourmil Rabaul, East New Britain Province.
   
3. That the named Defendants, their agents, servant, family members, clan members associates whosoever are not to commit any breach of these order or cause injury towards the Informants/Complainants in any manner or form.
   
4. The Interim Protection Orders be enforced for duration of two (2) years in default penalty of imprisonment for 18 months in prison.
2. It was alleged that on 21^st and 28^th February 2020 at Raniolo Plantation, the Defendants and their agents illegally entered onto Luluka Land Group’s property at Raniolo Plantation Portion 3275, Rem Kokopo and planted “gorgor” plant as a sign of stop work. They also held numerous illegal meetings to conspire and mislead members of Luluka Land Group thereby breaching peace amongst its members causing tension and anxiety.

3. On the first mention of the matter, the Defendants deny the allegation and intended to defend the proceeding thus the matter preceded to trial.

EVIDENCE

4. The Complainant relied on his own affidavit sworn and filed on 06^th March 2020.
   
5. The Defendants likewise rely on their own affidavits sworn on 22^nd May 2020 and filed on

26^th May 2020.

LAW.

6. Since this proceeding is commenced pursuant to Section 209 and Section 210 of the Act I set out below the provisions:

S. 209 Information praying for surety of the peace.

Where a written information is laid before a Magistrate that a person has-

(a) Threatened—
(i) To do to the complainant or to his wife or child, or a person under his care or charge, bodily injury; or
(ii) To burn or inure his house; or
(iii) To commit a breach of the peace towards him or his wife or child or that other person,

Or to procure others to commit any such injury; or

(b) Used language indicating an intention to commit any such breach of the peace or to do any such injury or procure it to be committed or done,

And that the complainant is in fear of the defendant, and the complainant prays that the defendant may be required to find sufficient sureties to keep the peace, proceedings may be had under this Part.

S. 210 Information praying for surety to be of good behavior.

Where a written information on oath is laid before a Magistrate that a person is a person of evil fame, and the complainant prays that the defendant may be required to finds sufficient sureties to be of good behavior, proceedings may be had under this Part.

ISSUE

7. The issues before the Court are whether the Defendants by their actions or inactions have amounted to breach of peace and whether they are of evil fame?

ANALYSIS

6. I have considered both parties affidavit materials and also their oral submissions. There is no doubt that the Complainant is the Chairman of Luluka Land Group Incorporated as evidenced at paragraph 2 of the Affidavit of William Tonga annexing the copy of the Incorporated Land Group certificate. Furthermore, at paragraph 3 of the Affidavit it showed a copy of a State Lease showing that the land described as Portion 3275, Rem, Kokopo, ENBP is a State Land and has now been leased to Luluka Land Group Incorporated.
   
7. According to the Title document the subject land was leased on 04^th June 2007 for a period of 88 years from 30^th March 2007. So it is in fact a State Land and now a private property of Luluka Land Group Inc.
   
8. According to the Defendants’ Affidavit evidences, I find that Mr. Sammy Kuau did admitted planting “gorgor” (plant) as a way to express his grievances on behalf of his Incorporated Land Group through customary practice. Furthermore, Mr. Isidor Bonga and Allan Gaun have acted in their capacity as Ward Councillors to represent their people to address the issue in respect to the subject land by holding meetings amongst the people.
   
9. I do understand where the Defendants are coming from since they may, one way or the other; have interest in the dealings of the subject land.
   
10. However, the subject land is, by virtue of its registration, a private property belonging to Luluka Land Group Inc. Under s.33 of the Land Registration Act, the Title now is an indefeasible title which means Luluka Land Group has exclusive right over the subject land at the moment.
    
11. By way of analogy, there is a case in the National Court Tony Yandu vs Peter Waiyu (2005) N2894 where His Honour Justice Cannings said:

“A title is not in dispute unless the defendants or some other person take a formal, distinct, legal step to challenge the title (for example commencing a National Court proceeding challenging this legality of the title).”

12. Although that case involved an eviction proceeding, I find the abovementioned principle relevant in this current proceeding.
    
13. In this case, there is no evidence that the Defendants have taken any distinct, formal, legal step to challenge the Title. They have issues with Luluka ILG and the subject land but the land is now a State leased land and it is leased to Luluka ILG.
    
14. The Defendants further argued that the issue is customary in nature but as I said earlier the status of the subject land has been converted into a State land which means it is not a customary land anymore.
    
15. Having said that, I find that the Defendants did indirectly and or directly caused breach of peace. I do not find the Defendants to be of evil fame on the basis that they did not inflict any physical injuries and or any physical confrontation to the Complainant or his servants/agents or associates.
    
16. The subject land is already a State Lease and this fact must be understood clearly. It is now the property of Luluka Land Group Incorporated.
    
17. Now, what orders will the Court grant? Part X of the Act is a special type of law. It calls for Surety of the Peace and Good Behavior. Section 214 of the Act states:

“Case to be dismissed, or surety of the peace, etc., required.

After hearing the evidence relating to an information under Section 209 or 210, the Court may –

(a) Dismiss the case; or
(b) Require the defendant immediately, or at some time to be specified by the Court, to enter into a recognizance, oral or in writing, with or without sureties, in such reasonable amount as the Court thinks fit, to keep the peace or be of good behavior, as the case may be, for such time as it thins fit, or in default-commit the defendant to a corrective institution or police lock-up for such time as the Court thinks fit, not exceeding six months, unless in the meantime the required recognizance is given.”

18. So strictly according to the abovementioned law, the Court, after hearing evidences in proceeding which are instituted pursuant to s. 209 or 210, will have to either dismiss the case (s.214 (a)) or order the defendant to enter into a recognizance orally or written, with or without surety for a such time it thinks fit (s.214 (b)).
    
19. I say this in light of His Honour Justice Cannings’ remarks in the case of James Whitney vs. Bethleen Kasap (2012) N4613, His Honour Justice Cannings said:

“The proceedings under Part X are of special character. The proceedings are commenced by written information under either s.209 or s.210; and the power of the Court having heard the evidence relating to an information are prescribed in a particular way, by s.214 (case to be dismissed or surety of peace, etc required).”

20. The Court can, to my mind, invoke powers under s.22 of the Act to make further orders to give effect to s. 214 (b) if necessary in the circumstances of the case.
    
21. In this matter, I find that it is not really necessary to make any detail orders except for s.214 (b) of the Act.

FORMAL ORDERS OF THE COURT

1. The Defendants shall immediately on behalf of themselves and their agents/servants or associates enter into a recognizance in writing with K300.00 each pledged as sureties to keep peace and of good behavior towards the Complainant and his servants/agents or associates for a period of six (6) months from today.
2. In default, a warrant of arrest be issued to arrest the defaulting party and be brought to Court to be dealt with according to Law.
3. The Defendants shall meet the costs of the proceeding to be taxed if not agreed.

Orders Accordingly

Counsel for the Complainant: Natphil Lawyers

Defendants: In Person