Sindapa v Tasiko [2021] PGDC 231; DC7091 (13 December 2021)

DC7091

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 116/2021.

IN THE MATTER BETWEEN:

DAVID SINDAPA.
Complainant.
.
AND.

1. FORDY TASIKO
2. GABI TASIKO
3. JUDY TASIKO
4. NELSON PAREKI
5. ORISE PAREKI.

Defendants.

Popondetta: Michael W. Apie’e

2021: December 13^th.

CIVIL PROCEEDINGS. Action seeking Summary Ejectment of Defendants from Lands supposedly Subjected to Alienation /Title in favour of the Complainant and others under Section 6 of Summary Ejectment Act.

CIVIL PROCEEDINGS. Claim for Restraining Orders against the Defendants

Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:
District Court Act.
Summary Ejectment Act

Representation:
Complainant for himself
Fordy Tasiko for the Defendants.

JUDGMENT ON TRIAL.

Background.

1. The Complainant David Sindapa filed this action on the 03/08/21 against the Defendants seeking orders of Ejection under section 6 of the Summary Ejectment Act over Lands known as Sejeru Mini Estate.
   
2. He also asked for orders further restraining the Defendants from making further incursions onto the Sejeru Lands in the future to till, build and squat on the said lands against his and Houpa Clans interests over the said Lands.
   
3. The District Court is therefore empowered under Section 22 of the District Court Act to deliberate on and Adjudicate on the matters raised herewith.
   
4. The matter came before me on the 24/08/21 for mention and the Defendants also attended and denied the claims by the complainant and stated that they would deny the claim on the basis of the Land being theirs.
   
5. After further mentions of the matter on the 07/09/21 and 14/09/21the matter is actually set for hearing on the 21/10/21 but on the 21/10/21, the parties agreed to do an affidavit trial and so matter is further adjourned to subsequent dates.
   
6. On the 10/11/21, the matter comes back before me and this time, stock take is taken of the various affidavits the Parties were relying on and the affidavits are noted as follows;
   
   1. For the Complainant she sought to rely on the affidavits of Abraham Sirota Filed on the 20/09/21 and also his own affidavit filed on the 20/09/21.
      
   2. The Defendants also sought to the affidavits of Nelson Pareki Koija-dated 25/10/2, affidavit of Nigel Ambogo filed 24/09/21, affidavit pf Fordy Tasiko dated 09/09/21 and the undated affidavit statement of Nigel Pareki and Basil Sanko.
      
7. On that foundation, the matter is adjourned to Tuesday the 16/11/21 for final Submissions and rebuttals.
   
8. The parties attended court on the 16/11/21 and made short submission basically deferring to their flings/Affidavits, and so the matter is adjourned to the 23/11/21 for Ruling but due to other intervening factors, the matter returns today 10/12/21 for Ruling on the Affidavit Trial.
   

Observations.

9. The Court makes the following observations of the Complainants claims;
   
   1. The Sejeru Land is encompassed in a Mini-Estate and the Complainant is listed as chairman and Title-holder of that project.
      
   2. According to the Complainants filings and annexures to his Affidavit an also that of his witness Abraham Sirota, the Sejeru Land is Houpa Clan Land and the Complainant was allowed in by virtue of his marriage to Andora Gilman Sirota, the Sister of Abraham Sirota and female representative of the Houpa Clan in their Incorporated Land Group, namely Houpa Land Group Incorporated ILG No: 670.
      
   100. Witness Abraham Sirota in his Affiavit claims that the Sejoru Land is Actually Houp Clan Land and that the Complainant has any part to play in the Mini-Estate Activities on the Sejoru Land by virtue of User Rights granted to him by Houpa clan for 44 years he is married to Houpa Clan member Andora Sirota.
        
   4. This claim over Sejeru Land was subjected to a Local Land Court hearing and determination on the 19/06/1992 by Local Land Court Magistrate Mr. Leslie Asimba as he then was.
      
   5. In that Local Land Court determination, His Worship Mr. Leslie Asimab as he then was declared and awarded the Sejeru Lands to the Houpa Clan under the Leadership of Late Gilman Sirota, obviously Abraham Sirota’s father.
      
   6. The Okaipa/Endehipa clan appealed the Local Land Court Decision to the Provincial Land Court however on the 18/08/1994, Provincial Land Court Magistrate his Worship Mr. Iowa Geita as he then was ordered the Appeal Quashed and Affirmed the Local Land Court Findings of Mr. Leslie Asimba of 19/06/92.
      
   7. Following on, on the 07/12/2001 upon application made before the District Court by Gilman Sirota, His Worship Leslie Asimba granted restraining Orders against the Okaipa and Endehipa Clans stated in no uncertain terms that these Clans were restrained from encroaching, trespassing, hunting, harvesting and makin gardens/Subsistence farming, fishing or initiating any economic activities in and around or over again on the following Lands of Evindo, Sejoru and Omboga.
      
   8. The Defendants and their witnesses on the other hand are making their claims on the basis of Re-litigating the Land Claims the obviously must have presses before the Local Land Court in 1992 before the Local Land Court.
      
   9. Having lost that argument before the Local Land Court in 1992 and then also in the Subsequent Provincial Land Court decision on the 18/08/1994, they are here again seeking to re-litigate the same case again before this District Court.
      
   10. They fail to realize that the fact that the Complainant David Sindapa is anywhere on Sejoru Land is by virtue of his affiliation by marriage to the Sejoru Land Owning Houpa Clan, not because of any supposed bequest to him by his own fore-bearers.
       
   11. The Local Land Court Declaration or Customary Land Ownership of Sejoru Land by the Houpa Clan on the 19/06/92 and the Subsequent affirmation of this Local Land Court Order by the Provincial Land Court on the 18/08/1994 conveys affirmation and proof of Ownership and Traditional Title over the Sejoru Lands to the Houpa Clan.
       
   50. This Sejoru Land is also included as part and parcel of the Houpa Clan Lands within their Incorporate Land Group in ILG No: 670.
       
   13. Further, this same Sejoru Land is titled in the Mini-Estate Oil Palm Project and therefore titled or Alienated Lands.
       
   14. The Case of Gawi v. PNG Ready Mixed Concrete PTY Ltd [1984] PNGLR 7 is a case on point in respect of applications for summary ejectment applications before the courts especially the District Court.
       
   15. The reasoning of Late Kapi DCJ as he then was in the case of Gawi v. PNG Ready Mixed Concrete PTY Ltd [1984] PNGLR 74 is on point here wherein the Late Deputy Chief Justice in discussing Section 6 of the Summary Ejectment Act held that ‘If the one Claiming Ejection of someone else has clear title then this Provision should be invoked, but if such persons Title or Claim to the Alienated Land is ‘Bone Fide’ in Dispute, then Section 6 cannot be invoked’
       
   16. In the case at hand, the Houpa Clans title to the Sejoru Lands has being subjected to challenge before the Land Courts and has stood the test and so for all intents and purposes Houpa Clan, and by Extension the Complainant have clear and Bona fide title to the Sejoru Lands.
       
   17. The Complainant has user rights allocated to him for 44 years and this Sejoru Land is no longer free and vacant Customary land that is open for bickering and challenges by other claimants.
       
10. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Claims by the Complainant are upheld.
       
    2. The Defendants are hereby Ordered to Self-Evict and vacate the Portions of the Sejoru Lands they are currently encroaching on and making gardens and occupying within 7 days from today by Friday the 17/12/21.
       
    3. After vacating the said portions of Sejoru Lands, they are further restrained from ever re-enter or encroach on these Lands again on pain of penalties that might befall them including imprisonment.
       
    4. Since the Parties are unrepresented by Legal Counsel, no orders will be made on costs.

Complainant in person.

Defendant in person.