Jamono v Egimbari [2021] PGDC 199; DC7060 (3 September 2021)

DC7060

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 100/2021.

IN THE MATTER BETWEEN:

OSBOURNE GOREWA JAMONO.
Complainant.
.
AND.

1. STELLA EGIMBARI
2. DICKSFORD KUWAI.

Defendants.

Popondetta: Michael W. Apie’e

2021: September 03^rd.

CIVIL PROCEEDINGS. Claim for summary Ejectment of Defendants from Property. Claim to Gain Possession of Property as Kin of the Deceased Estate Owner. Seeking to Restrain the Defendants from encroaching onto and dealing in any manner with the Property.

Cases Cited:

References:
District Court Act.
Employment Act

Representation:
Complainant in person.
Defendants in person.

JUDGMENT ON TRIAL.

Background.

1. The Complainant Osbourne Gorewa Jamono is a Nephew to the Late Jamono Wosiwo the Registered owner of Block Portion 0505144 SANGARA and further to that the Complainant also is title holder to the immediately Adjacent Block Portion 050143 as they had both settled on these blocks more or less at the same time.
   
2. The Complainant is aggrieved by the Defendants continued occupation and possession on the Late Jamono Wosiwo’s portion 050144 and so seeks to;
   
   1. Have the defendants evicted, and,
      
   2. More over restrained from dealing with this portion and
      
   100. This block be delivered into his control for and on behalf of the surviving members of Jamono Wosiwo’s family especially including Children Molly Jamono and her brother Joel Jamono who is mentally affected/Insane but still living on the Block.
        
3. It seems that after the death of Jamono Wosiwo on 12/02/96, the Defendants and especially Late Dickson Egimbari without approval from the Surviving members of Jamono Wosiwo somehow entered onto and took possession and control of this block and have continued to do so up to current.
   
4. The Complainant being aggrieved on behalf of the Jamono Wosiwo family files suit and brings this case before the District Court to seek the Restraining of the Defendants from dealing in any manner with the said Portion 050144 and to allow him to regain control and possession of the said portion for and on behalf of Surviving members of the Jamono Wosiwo family.
   
5. The Complainant is represented more or less fully by his Son Oswin Gorewa pursuant to Section 59 (1) (e) of the District Court act.
   
6. This matter came before me on the 10/08/21 and trial commenced and concluded with both sides making their evidentiary presentations.
   

Trial on 10/08/21:
Complainants case.

7. The Complainant then called his witnesses namely Nigel Hambarago a neighboring Block holder, Taylor Bino who also testified and Spokesman Oswin Gorewa also gave his oral testimony on oath.
   
8. The essence of their Evidence was that;
   

1. The Complainant Osbourne Gorewa Jamono is related by blood to the Late Jamono Wosiwo as his immediate nephew and therefore has filial connections to the said Jamono Wosiwo.
   
2. Also that before he died on the 12/02/96, the said Jamono Wosiwo had come to the Complainants block at Portion 050143 and gave the Complainant his verbal will by saying ‘You will have to harvest and tend the Block (Portion 050144) and look after me and my family as we are no longer able to look after it ourselves.’
   
3. By then, his children were either dying off or suffering from various maladies like mental illness and the extended family back at Kausada were too scared to come onto the block to assist in tending to the Block for fear of curses or hexes that might be associated with the block.
   
4. The said Jamono Wosiwo died a few months later on 12/02/96 and the Complainant and the extended family attended to his burial and sorting out of other customary obligations relating to the family especially the surviving children Molly and Joel Jamono.
   
5. During this time of inactivity on the Block Dickson Egimbari inserted himself into the block and started harvesting the palm without any approval from the surviving members of the Estate Owners family, such as Molly Jamono.
   
6. When the Complainant, following on from the Title Holders wishes, decided to regain control over Portion 050144, he was taken to court by the said Dickson Egimbari and the District Court per his Worship Late Max Haembo issued a restraining order on Oswin and Osbourne Gorewa Jamono, without getting their side of the Story on the 04/09/07.
   
7. From that time up till now, the even after Dickson Egimbari’s death, the Defendants still occupy and control portion 050144 even though the Title to the Property still remains in the name of Jamono Wosiwo and such title has been Discharged to the Complainant as per the Letter for the National Development Bank (NDB) dated 20/11/12.
   

Defense case.

9. Defendants called Frank Tureha who testified on oath and also Second defendant Dicksford Kuvai on the 10/08/21.
   
10. The essence of the defense is as follows;
    
    1. The Defendants are following on from the activities of Dickson Egimbari when he was permitted to takeover a more or less abandoned block to harvest and keep it in working order.
       
    2. They also seem to hint that the Defendants occupation and possession of Portion 050144 was approved by the relevant authorities including the District Court in it order of 04/09/07 and so they should be allowed to continue to possess and work this portion 050144 until the recognized Next of Kim Molly Javono returns to reclaim this block.
       
    3. They made reliance on a Statutory Declaration dated 01/11/2000 by Molly wherein she stated that she would assume ownership and control over this block from then on.
       
    4. This Statutory Declaration however does not disclose her nominee of a caretaker until she fronts up at Portion 050144 to take up ownership and control and also this court notes that this statutory declaration is also not issued in favor of anyone specific person.
       
    5. The Defendants hinted that the Block is kept and the Surviving son Joel taken care of by them by giving him money to buy Beetle-nuts ‘buai’ or smokes whenever they meet him from time to time
       
11. Observations /Assessments. Having heard the evidence in this trial I make the following observations and assessments;
    
    1. The Complainant Osbourne Gorewa Jamono and his Spokesman Oswin Gorewa are related by blood to the Estate Owner Late Jamono Wosiwo.
       
    2. The Defendants are not related by blood nor do they even come from the same area of Ijivitari as the Estate owner.
       
    3. The Late Estate Owner is said to have made an appointment of the Complainant to take possession and control of Portion 050144 whilst he was still alive and that is supported by evidence presented in court on oath by witnesses.
       
    4. The Defendants and especially late Dickson Egimbari entered into the Block and took possession and control over Portion 050144 without any approval from the family of the Estate Owner.
       
    5. The Decision of Max Haembo on the 04/09/07 was based on a hearing that was more-or-less Ex-parte, in that the Defendants then and Complainants now were not allowed to respond to the applications by Dickson Egimbari.
       
    6. This Court can only react to and Rule on the Evidence presented before it, and though I would honor the work and memory of his Worship and Late Magistrate Max Haembo, I am not bound by his Decision.
       
    7. Besides, Circumstances have changed since then, such as the demise of Dickson Egimbari and the Discharge of the Late Jamono Wosiwo’s title to Portion 050144 to the Complainant in the NDB’s Letter of 12/02/96.
       
    8. So in all the circumstances of this case, insofar as Portion 050144 is concerned, the Complainant has more leverage and Interests to this property in the eyes of this court than does the Defendants
       
    9. Molly’s intention to regain ownership and control of the Property in her Statutory Declaration can only be guaranteed if her own kin and kit is in control of the Property when she does decide to return and not anybody else.
       
12. In the final Analysis, the Court finds and Rules as follows that;
    
    1. On the basis of the Evidence presented the Defendants are found to have no right to Possess and occupy and deal with Portion 050144 in any manner whatsoever.
       
    2. The Complainant is found to have superior interests or rights over the said Portion 050144.
       
    3. The interests of Molly Jamono and Joel Jamono over portion 050144 can be better represented or protected if their own kin and kit is in possession.
       
    4. Accordingly, it is the Ruling o this Court that the Complainant is the proper person to gain Possession and Control of Portion 050144 until and when Molly Jamono decides to come back or Joel Jamono recovers from his metal malady.
       
13. Accordingly, the Court will order as follows;
    
    1. The Defendants are hereby order to vacate themselves from Portion 050144 forthwith immediately and allow the Complainant vacant possession of the same.
       
    2. Whatever outstanding issues they might have in regards to harvesting of Palm or debts relating to the block is to be settled and surrendered or taken over by the Complainant.
       
    3. In Default, Enforcement Proceedings to ensue against the Defendants.

Complainant in person.
Defendants in person.