Wauk v Zang [2021] PGDC 205; DC7064 (26 October 2021)

DC7064

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 66/2021.
IN THE MATTER BETWEEN:

MANAWE MAMBAK WAUK by her next friend ISRAEL KENDEP.
Complainant.
.
AND.

1. BOTTY ZANG
2. BARA WIGNO WAUK.

Defendants.

Popondetta: Michael W. Apie’e

2021: October 26^th.

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

Cases Cited:
Gawi v. PNG Ready Mixed Concrete PTY Ltd [1984] PNGLR 74 (27/04/84)

References:
District Court Act.
Summary Ejectment act
Wills Probate and Administration Act.
Oxford English Dictionary (Offline).

Representation:
Complainant in person with spokesman Mr. Israel Kendep.
Defendants in person.

JUDGMENT ON TRIAL.

Background.

1. The Complainant filed her action seeking to evict the Defendants from block 11-1563 Road ‘J’ igora.
   
2. It Seems the Complainant was once married to the Late Poseno Wauk, the Registered title holder to Block 11563 at Road J in Igora Division, but since the Late Poseno Wauks death in 1995, she has since remarried to one Paul Emzang Masange.
   
3. The Defendant is the Nephew of the said Poseno Wauk and was always with Poseno Wauk since the early 1970’s when this Block was obtained and established by the Late Posena with the full and undivided attention and hard work of the Defendant Bara Wigno/Wauk.
   
4. The Complainant filed suit before the District Court in DC 66 of 2021 and sought Orders as restated in her Submission as follows;
   
   1. That the Court issue a Warrant to a member of the Police Force to Enter and give Possession of the Block 111563 to the Complainant be issued for the immediate Evacuation of the Defendants Botty Zang and Bara Wauk/Wigno.
      
   2. Defendants to pay damages for Emotional Stress Suffered;
      
   3. Defendants pay damages for loss of Benefits from (Ongoing) sale of the Oil Palm fruits;
      
   4. Any other Orders the Court Deems appropriate.
      
5. The matter came before me on the 11/05/21 and after several mentions of this matter from the date of first mention, on the 30/07/21 Affidavit Trial was set for to take place on the 05/08/21, but that is delayed to 19/08/21 wherein the Parties filed their written submissions and then further adjourned to 25/08/21 wherein Final Submissions and rebuttals are made for the parties.
   
6. The Parties relied on the various and numerous affidavits they and their witnesses deposed and filed as follows;
   

Complainants Affidavits.

1. Affidavit of Israel Kendep dated 23/04/21.
   
2. Affidavit of Manawe Mambak Wauk dated 10/05/21
   
3. Affidavit of Charlie Moses`dated 07/07/21.
   
4. Affidavit in Better Particulars dated 08/07/21.

Defendants Affidavits.

1. Affidavit of Bara Wauk/Wigno dated 28/07/21.
   
2. Affidavit of Botty Zang dated 28/07/21.
   
3. Affidavit of Johnson Ezawo dated 28/07/21.
   
4. Affidavit of John Anganam dated 28/07/21.
   
5. Affidavit of Bara Nicodemus Aneta dated 28/07/21.
   
6. Affidavit of Bara Moses Taruma dated 28/07/21.
   
7. Affidavit of Bara Robert Palalau dated 28/07/21
   

7. The Parties through Spokes-Person Mr. Israel Kendep for the Complainant and Legal Counsel Mr. Simul Karuwalo from the Public Solicitors office for the Defendants both attended on the 25/08/21 and made final submissions and rebuttals for their clients.
   
8. In their various filings the Parties rely on varying and various documentations to sustain their various case and I note the following documents referred by the Parties as follows;
   
   1. In the various Affidavits filed for the Complainant the following documents are noted;
      
      1. The Order or Max Haembo dated 07/09/2001 obviously signed by someone else whose identity is not disclosed, thereby raising obvious questions about its veracity.
         
      2. Decision of Magistrate Seri Seneka dated 29/08/2002 ordering the eviction of the Defendant Bara Wigno/Wauk from Block 111563, why was it not sought to be enforced then?
         
      3. Letter dated 20/05/ 2020 from one Graydon Hanguru to Public Curators office vouching for the Complainant as owner of block 111563.
         
      4. There is a Letter dated 12/10/2020 by one Leo Ruki Project Manager of OPIC to Police Stating certain matters relating to the New Husband of the Complainant arguing with the Defendant Bara Wigno /Wauk. He also makes reference to a Court order 41201 issued in April 1998 recognizing the Complainant as Block owner
         
   2. The Defendants Position on these matters is that;
      
      1. The Defendant Bara Wigno /Wauk is related by Blood to the Deceased Estate owner.
         
      2. Since Manawe Mambauk Wauk is remarried, she no longer has any claim nor rights to deal in any manner with former husband Late Poseno Wauks Estate as such Estate should by custom revert to his family, as Manawe is no longer a widow as she is remarried.
         
   100. The Defendant also relied on certain documents and they are;
        
        1. Letter from Patrick Halpie a/Manager Lands at Oro Administration dated 19/05/2008 directed to Paul Emzang Masange to vacate block 111563.
           
        2. Letter from Oro Administration to Magistrate Max Haembo dated 02/06/2008 requesting the Eviction of the Complainant and her Husband Paul Emzang Masange from Block 111563.
           
        3. Letter dated 22/05/2011 from POPGA Board vouching for Bara Wigno /Wauk as the Next of kin of the Late Poseno Wauk.
           
        4. Letter dated 20/11/2013 signed for Norman Ajamei of Popondetta Oil Palm Growers Association (POPGA) vouching for the Defendant Bara Wigno/Wauk to get certain refunds relating to Housing Schemes relating to Block 111563.
           
        5. Letter dated 13/02/2014 from OPIC by Joe Bito Mula Divisional Manager for Igora to National Development Bank (NDB) for the Defendant Bara Wigno/Wauk to do file Search on Block 111563 account held with them.
           
        6. Letter dated 14/04/16 from Public Curators to OPIC Manager revealing Confirmation of Defendant Bara Wigno Wauk as the Next of Kin of Deceased Estate Owner Poseno Wauk.
           
        7. Letter from the Public Curators Mr. David Nohoro dated 02/01/2018 labelling the Complainant and her husband as Illegal Occupants of Block 111563 who ought to be removed. He also revealed in that letter that title to the Block has being administered by the Public Curators Office and granted to Bara Wigno/Wauk.
           
        8. Letter dated 26/05/2021 addressed to myself from Lands Advisor Mr. Roger Irurapa Jr. stating that both Parties have no real claim to the Property in issue, and he further stressed that Public Curator ought to be involved in this matter in order to implement the requirement under the WPAA. I have noted in the previous paragraph the involvement of Public Curators Office via Mr. David Nohoro in respect of this matter
           
        9. Letter dated 21/09/21 from Graydon Hanguru Acting Project Manager for OPIC vouching for Bara Wigno/Wauk as the Certified Grower for block 111563. This Person on 20/05/ 2020 had vouched for the Complainant but it is interesting to note that he changed his mind and vouched for Bara Wigno Wauk in 2021.
           
9. This matter came before this court by virtue of action properly filed and registered before the District Court according to Section 22 of the District Court this court has the Jurisdiction to deal with matters before it in an ample manner and I intend to do just that.
   
10. Section 22 of the District Court Reads;
    

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 such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same 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.

11. Having heard from the Parties, the Court makes the following Observations;
    
    1. The Complainant submits for the Orders Sought as follows;
       
       1. Eviction and giving of Vacant Possession under Section 6 of the Summary Ejectment Act.
          
       2. Orders for Damages for Stress,
          
       100. Orders for Damages for Loss of benefits from proceeds the Block 111563.
            
       4. Any other orders the Court Deems Appropriate.
          
    2. The Complainant bluntly asked for Eviction and Orders for Delivery of Vacant Possession against the Defendants under Section 6 of the Summary Ejectment Act. I will make observations on this request later in this ruling!
       
    3. The Complainant also claimed to be the next of kin of the Deceased Estate owner, Poseno Wauk, even though she has long since remarried to one Paul Emzang Masange and for all intents and purposes is no longer a widow of the Late Poseno Wauk.
       
    4. The Oxford Dictionary Definitions of a Widow; ‘ A woman who has lost her spouse by death and has not married again.’
       
       1. Manawe Mambak Wauk has remarried, she is therefore no longer the widow of Late Poseno Wauk and technically she ought to use Paul Emzang Masange’s surname and not her former Deceased husbands name ‘Wauk’.
          
       2. In the Proper discharge of their Duty, the Village Court ought to have investigated the Customs Appropriate to the Deceased as to whether in his custom a remarried former wife is still his widow with rights to his Estate or Not.
          
       100. Obviously this was not done as The Village Court rather sided with the Complainant and proclaimed her the owner even though she was remarried to another man and could no longer claim on Poseno Wauks Estate in Common Law or even by general Melanesian culture and Custom in my personal opinion.
            
       4. She also has no children by Poseno Wauk for whose sake she could at least claim some rights to remain and oversee the Property for them or live under their care.
          
       5. Their Adopted daughter is married out and has not shown any interest in this property.
          
    5. The Issue raised by the Complainant in her Submission is ‘Whether the Defendant can be ejected from Block 111563 at Igora?
       
    6. The Complainant relies on the Submission that Section 35K and Section 84(1) (a) and (h) of the Will Probate Administration Act of 1966 (WPAA) entitles her to seek these orders against the Defendant.
       
    7. The Reliance on Section 84(1) (a) and (h) of the WPAA by the Complainant is misconceived as;
       
       1. She has not sought Public Curator Intervention in her Claim so as to invoke this Provision, as correctly pointed out by Counsel for the Defendants in his submission,
          
       2. All proceedings except for Division 5 Section 34 to 35 and 35A to 35L of the WPAA which deals with Customary Devolution, remains in the domain of the National Court. The District Court simply has no Jurisdiction to deliberate on and Adjudicate on the WPAA as to Deceased Estates as in this Case.
          
    8. Section 35K of the WPAA comes under Division 5 and following, of the WPAA which related to Distributions in intestate Formal Estates in accordance with Custom.
       
    9. In Section 34 and Section 35G Clearly Identifies the Public Curator as the ‘Distributor’ to Intestate Properties and also accords the Public Curator with the power to appoint appropriate persons to act as Distributors.
       
    10. The Role of Distributors under Section 35D is to Distribute the Estate of one who dies intestate in accordance with Custom applicable to that deceased person and in accordance with Section 35E, which further prescribes that a person to be deemed entitled to an intestate Estate must be identified and certified by a District Officer or other persons to be appointed as Distributor by the Public Curator.
        
    11. Section 35H, Section 35I, Section 35J relate to other Administrative matters not currently relevant to the discussion here so I will leave those and go straight to Section 35K.
        
    12. Section 35K Relates to Disputes arising under this heading in respect of Distribution of the Estate of a person who dies intestate, by persons claiming rights to that estate.
        
    13. In that case the Village Court being the Legally Acknowledge and Recognized Arbiter of Customary Law in given area’s in Papua New Guinea is to apply applicable Custom relevant to the Deceased Estate owner to determine the manner in which the Deceased Estate can be subject to Distribution or Devolution.
        
    14. If there is no Village Court in that area then the District Court as a Court of Summary Jurisdiction can deal with such disputes in order to establish the veracity of Claimants in the Dispute
        
    15. However, in all that is to take place under section 35K, the Public Curator still maintains control and is still kept in the loop, so to speak, as in Section 35L of the WPAA, whoever does the Distribution of Deceased Estate following Section 35K must report Back to the Public Curator via Schedule 4 of the WPAA as to how the matter was dealt with.
        
    16. The Question then is; ‘In order for the Complainant to seek to Rely on this Provision, did she invoke the WPAA to seek Public Curators intervention in her Claims to the Deceased Estate of Poseno Wauk?’
        
        1. The Answer is ‘No!’ She did not.
           
        2. In fact, only the Defendant has made contact with the Public Curator in respect to this deceased Estate.
           
        100. To that end the Letters by Public Curators officer David Nohoro dated 14/04/16 and 02/01/2018 seem to indicate completion of considerations under the WPAA in favour of the Defendant Bara Wigo/Wauk.
             
    17. The District Court Still has no jurisdiction to Adjudicate on this matter in an ample manner except in a summary manner under section 35K as the Jurisdiction to fully deal with the Provisions of the WPAA is vested wholly in the National Court under Section 38 of the WPAA.
        
    18. However, in this case, the Proceeding before me has not being properly initiated by the Complainant and she has gone straight to seeking Eviction without first Registering her Claims/Concerns with the Public Curator.
        
    19. So in that regard, The Complainants reliance on Section 35K of the WPAA is also misconceived and untenable in Law.
        
12. The Complainants reliance on Section 6 of the Summary Ejectment Act to seek the Defendants Eviction from Block 111563 also warrants discussion and so I outline Section 6 of the Summary Ejectment Act which reads;
    

6. RECOVERY OF PREMISES HELD WITHOUT RIGHT, ETC.

(1) Where a person without right, title or license is in possession of premises, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises, and the magistrate may issue a summons in the prescribed form to the person in illegal occupation.

(2) Where the person summoned under Subsection (1)–

(a) does not appear before the District Court at the time named in the summons; or

(b) appears and does not show reasonable cause why possession of the premises should not be given, the Court may, on proof of the matter of the complaint, issue a warrant directed to a member of the Police Force requiring him, on or before a day specified in the warrant–

(c) to enter, by force and with assistants if necessary, into the premises; and

(d) to give possession of the premises to the complainant.

13. Observations /Assessments on Summary Ejectment: Having heard the submissions in this matter, I make the following observations and assessments on this issue as follows;
    
    1. The Case of Gawi v. PNG Ready Mixed Concrete PTY Ltd [1984] PNGLR 74 (27/04/84) is a case in Point on considerations under Section 6 of the Summary Ejectment Act.
       
       1. In a Case I delivered Judgment on recently in the case of Sylvia Mewa v. University of Natural Resources and Environment (UNRE) in relation to the case of Gawi above, I observed that ‘The case of Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72 deals with the issue of Equitable and Legal Interest over Alienated Lands. In that case Kapi DCJ (Deceased) as he then was, elaborated that ‘.when title to a Property is Bona Fide in dispute, the claim of right by one claiming title cannot be enforced, but when title is clear and such claimants have clear and undeniable rights or title over the property in question, they can move for Vacant Possession under Section 6 of the Summary Ejectment Act.’
          
    2. In this case, the Complainant, apart from the village Court officials vouching of her, has not disclosed any legal or equitable interest in the Property Block 111563, that entitles her to invoke Section 6 of the Summary Ejectment Act against the Defendant.
       
    3. In fact, it seems the reverse is more probably in that the Public Curator has written to indicate that the Defendant has being considered and preferred to take over the said Block.
       
    4. Even Mr. Graydon Hanguru Acting Project Manager for OPIC on the 21/09/21 wrote a letter vouching for Bara Wigno Wauk despite previously writing a letter in favour of the Complainant.
       
    5. On that basis, as per the Ruling in Gawi v. PNG Ready Mixed above,
       
       1. The Complainant has no standing to invoke Section 6 of the Summary Ejectment Act.
          
       2. Whatever rights/interests she might claim over Block 111563 is clearly/bona Fide in dispute by the Defendant who is claiming recognition from the powers that be, in respect of such property namely OPIC and the Public Curators office.
          
       100. As it stands, the Defendant seems to have a better claim to Block 111563 than the Complainant.
            
14. In the final Analysis, the Court finds and Rules as follows that;
    
    1. On the basis of the Evidence presented, the Complainant is found to lack Sufficient Rights/Interest to claim the Property of her deceased former husband, firstly since she is now remarried and no longer Lawfully a ‘Widow’ of the Late Poseno Wauk.
       
    2. Also, the evidence reveals that the Defendant has established far superior interests and rights over the Property given that OPIC and even the Public Curators Office have processed his claim and interests over the Property and have actually vouched for that.
       
    3. The Complainants seeking to invoke Section 6 of the Summary Ejectment Act against the Defendant is untenable and not feasible in law as the Complainant does not have clear legal rights over the Property and so whatever claims of interest she might have over this property is Bona Fide in dispute.
       
    4. Also on the Evidence offered to this court, it seems the Defendant probably has stronger claims or interest to the said property and so on that basis he cannot be summarily evicted as requested.
       
    5. The Complainant has also not established independently the Emotional Stress she claims, however if she was still a widow of late Poseno Wauk, the fact of this proceeding stressing her out would have being a foregone conclusion. She is remarried and living with another man and so this court finds no basis for the claim of Emotional Stress.
       
    6. Her claim of Lost earnings is rejected as she obviously did not have rights to claim that to begin with when she remarried.
       
15. Accordingly, the Court Rules and Order as follows;
    
    1. The Complainants claim for Summary Ejectment of the Defendant from Block 111563 is refused in its entirety.
       
    2. The Complainants claim for Damages for emotional stress and also for unrealized proceeds from the block 111563 is also unproven and is refused in its entirety.
       
    3. Costs awarded to the Defendant.

Complainant in person with spokesman Mr. Israel Kendep.
Defendants in person.