Orere v Benny [2022] PGDC 101; DC9048 (23 September 2022)

DC9048

PAPUA NEW GUINEA.
CIVIL JURISDICTION.

CL NO: 96/2020.

IN THE MATTER BETWEEN:

KINGSFORD ORERE for and on behalf of the Hamaipa Clan of Urio Village, Oro-Bay in the Ijivitari (now Popondetta) District in the Northern Province.
Complainant(s).

AND:

MAX BENNY of Uhita Village
Defendant(s)

Popondetta: Michael W. Apie’e

2022: February, 23^rd September: 06^th.

CIVIL PROCEEDINGS.
-Application pursuant to section 22 of the District Court Act to enforce District Court order.
-Action seeking Enforcement of District Court Orders dated the 08/07/08 by Magistrate Mr. Leslie Asimba affirming a Previously Issued Local Land Court Order in 1997-1998 period by Late Magistrate Bruno Saiho
-Ejection of the Defendants from the said Kendatta Portion of Land at Sauga area in the Oro-Bay LLG Area of Popondetta Oro Province.
HELD.

1. The Complainants Application for Eviction of the Defendant from the Kendatta Lands in the Sauga area of Oro Bay LLG of Popondetta is refused.
2. The whole of the matter is referred back for fresh Land Mediations to be conducted between the Complainants Hamaipa Clan and other Clans harboring Customary interests and Claims over the Kendatta Land including the Paru-Jangoropa clan of Sauga.
3. Costs of this proceeding is awarded to the Defendant, to be agreed if not to be subjected to Taxation.
   

Cases Cited:
Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72
Theodore Mondia v. John Kapo SC1442
Victor Golpak –v- Patrick Alongrea Kali & 5 OR’s [1993] PNGLR 491
Wabia v BP Exploration Operating Co Ltd [1998] PGNC 18; N1697 (26 March 1998)
Jessica Haera v. Nelson Damlap DCC NO: 56 /2021 (31/08/21)

References:
District Court Act.
Summary Ejectment Act

Representation:
Mr. Anthony Rake for the Complainants
Mr. Emmanuel Yawisa for the Defendants

JUDGEMENT ON TRIAL.
Background.

1. The main Complainant Mr. Kingsford Orere is from the Hamaipa Clan of Sauga Tribe in the Oro-bay LLG of the newly Demarcated Popondetta District, Formerly of the Ijivitari District and he brings this Action under CI No: 96/20 seeking to evict the Defendant and his Family and people from the Kendatta Land.
   
2. This move to Evict, he claims, is based on Purported Findings and Rulings made by Local Land Court and District Court Magistrates previously, namely Local Land Court in 1997-1998 by late Magistrate Mr. Bruno Saiho and a District Court Order dated 08/07/08 by Retired Former Magistrate Mr. Leslie Asimba.
   
3. This current Action is seeking the Enforcement of the aforementioned Orders he claims were issued in relation of the Kendatta Land on which the Defendant and his people are currently Cultivating, Building and Residing on.
   
4. The Order he claims is the Enforcement of an Unverifiable/Missing Court Order Supposedly issued in the 1997-1998 period under the hand of Late Magistrate Bruno Saiho, which ‘Order’ was supposedly Affirmed and Confirmed in a Subsequent Court Order in CI No: 387/08 by Magistrate Mr. Leslie Asimba as he then was on the 08/07/08.
   
5. The Nature of the Order issued by Late Magistrate Mr. Bruno Saiho, be it a District Court Order or a Local Land Court order is not properly revealed or put to this Court thereby giving rise to pertinent issues of verifiability and believability or reliability of the existence of such Orders.
   
6. In 2019, in DC No: 125 of 2019, the Complainants Hamaipa Clan filed Action against the Defendant seeking the following orders;
   
   1. Restrain Both Parties from the use of the Land;
   2. The matter be referred back to the Local Land Court to verify the rightful ownership.
      
7. Point of issue here: ‘If a Local Land Court had adjudicated on the Matter already in the 1997-1998 Period through Late Bruno Saiho, as claimed by the Complainant, why is there this Lingering need for Local Land Court intervention to adjudicate on the Land as revealed unwittingly in this Filing by the Complainant, by seeking to have the matter referred back to the Local Land Court to determine Rightful Ownership of the Land?’
   
8. The words used in the Action in DC No: 125/2019 is either a miss-statement on the part of the Complainant or an actual disclosure of the actual Situation on the ground in that no Local Land Court Determinations had being had into the Kendatta Land therefore the ‘Intended Request for Local Land Court hearing into Land Ownership over Kendatta Land by the Hamaipa Clan!’
   
9. However, all that being stated, that action in DC No: 125 of 2019 was ordered withdrawn by former Principal Magistrate Ms. Dessie Magaru as she then was for one reason on another on the 21/11/19.
   
10. The Current Action under LC No: 96 of 20 should actually Read CI No: 96/20 for Records/Registry Purposes as it is a Proceeding seeking to Ultimately enforce a Supposedly Current and Lawful Court Order That Order being the Court order of retired Magistrate Leslie Asimba which in turn supposedly endorsed and affirmed the Unverifiable Purported Original Local Land Court Orders claimed to have being issued by Late Magistrate Bruno Saiho in the 1997-1998 period.
    
11. In Making this Application, the Complainant /Applicant Mr. Kingsford Orere through his Counsel Mr. A. Rake of Rake Lawyers in Port Moresby and the Defendant Mr. Max Benny through his Counsel Mr. E. Yawisa of the Public Solicitors Office here in Popondetta resolved to proceed by way of Affidavit Trial and so on the 22/02/22 the Affidavit Trial was resolved to be run as follows;
    
    1. The Complainant would rely primarily on his three Affidavits filled as follows;
       1. Affidavit of Kingsford Orere filed on 06/08/21.
       2. Affidavit of Kingsford Orere filed on 21/04/21.
       3. Affidavit of Kingsford Orere filed on 22/09/21.
          
    2. The Defendant on the other had indicated that he would rely on the following Affidavits;
       1. Affidavit of Response of Max Benny filed on 08/07/21
       2. Affidavit of Support of Max Benny filed on 08/07/21
       3. Affidavit of Joyce Porusa Egimbari dated 08/07/21
       4. Affidavit of Roger Irurapa Amended. Dated 22/07/21
       5. Affidavit of Murray Egimbari dated 08/07/21
          

AFFIDAVIT HEARING-SUBMISSIONS 23/02/22

12. The matter was convened on the 23/02/22 and the Parties were requested via their Counsels to make their Submissions in respect of the issue before the Court.
    

Complainants Submissions.

13. Mr. Rake for the Complainants submitted in line with a Filed Submission generally as follows;
    1. The Complainants raised this complaint to seek the removal of the Defendant (from the Land in question) since the Defendant did not want to comply with the Orders of the Popondetta District Court dated 08/07/08 made by his Worship Leslie Asimba (As he then was.)
       
    2. The Complainant was basically seeking the eviction of the Defendants from said Kendatta Lands.
       
    3. The Complainant and his Hamaipa clan rely on the Affidavits of Kingsford Orere primarily filed on the 06/07/21.
       
    4. The issue identified by the Complainant was ‘Whether or not the Defendant and his Servants and Agents (Ought to) be evicted from the Kendatta Land?’
       
    5. In respect of the Issue raised, Counsel submitted as follows;
       1. The Defendant and his Servants and Agents ought to be evicted from the Complainants Clans Customary Land known as Kendatta.
          
       2. The Application was based on the matters alluded to in Paragraphs 12 to 37 of Kingsford Orere’s main Affidavit of 06/07/21.
          
       100. Paragraphs 12 to 37 of Kingsford Orere’s Affidavit Basically Lists the grounds on which this Application is sought and these are as follows;
            1. The Defendant moved onto the Land in the 1980’s from his Uhita village in Sohe District and had being since squatting on this Land on the basis that his wife Joy was from their area and therefore their sister!
               
            2. When he refused to remove himself from the Land, in 1997-1998 the Proceeding was Lodged against him before Magistrate Bruno Saiho for his Eviction with the Complainant Kingsford Orere Representing his Hamaipa Clan and one Max Mimari (Defendants brother in Law) represented the Defendant.
               
            3. The Court in 1997-1998 declared the Kendatta Land as Hamaipa Clan Land and the Defendant was only Awarded User Rights.
               
            4. The Court Orders cannot be presented before this Court as firstly, the Records were destroyed during a Fire which engulfed and burnt down the Court House and also ‘Cyclone Guba’ washed away the Complainants Copies of the Court records and Orders.
               
            5. When the defendants continued to squat on the Land as Land owners the matter was returned to the Court in Proceeding CI No: 387 of 2008 before Magistrate Leslie Asimba as he was then.
               
            6. Former Land Mediator Mr. Arinias Onjete who claimed to have been a Land Mediator in the 1997-1998 case wrote a letter affixed as Annexure “E” to this Affidavit to the Presiding Magistrate Local Land Court Magistrate on 01/10/08 that the Late Bruno Saiho did sit and issued such orders.
               
            7. In addition, Land Inspection was Ordered and land Mediator Mr. Jairus Sumbiri, Mr. Stewart Popota and Mr. Wallace Noble carried it out and the Report furnished back to the Learned Magistrate whereupon he finalized his decision.
               
            8. Mr. Asimba Ruled on the 08/07/08 that the 1997-1998 orders by Magistrate Saiho were still in effect and that Hamaipa Clan were the Landowners while the Defendant only had Land User Rights.
               
            9. On the 16/07/2008 the Defendant filed an appeal against the order of 08/07/08 on the basis that he was not allowed to present his case before the learned Magistrate Asimba, and also that the Previous Land Court Order was in relation to State or Alienated Land and not Customary Land.
               
            10. However, it is revealed by the Complainant in his Affidavit at Annexure “G” that the Learned Magistrate Asimba then Ordered that the defendants Appeal was out of time in relation to the 1997-1998 case by Saiho, despite the fact that the Appeal by the Defendant was in relation to his own ruling of 08/07/08 and not in relation to the So-Called 1997-1998 case.
                
            11. The Complainants therefore have since been trying to get the Defendant to self-Evacuate but to no avail hence this Application.
                
            12. Above is the Basis of the Complainants Application for the Defendants Eviction from the Land in question this time around.
                
            13. By way of Observation, at this Juncture let me ‘With Respect’ to the Former Magistrate Asimba, state as follows that If anything’ this Preemptive ruling by Learned Magistrate Asimba in relation to the Defendants Appeal to his ruling of 08/07/08 was Erroneous and a miscarriage of Justice against the defendant, in striking out his Appeal against the Learned Magistrates Decision on an unjustifiable ground that it was related to a supposed previous case in 1997-1998 about a decade earlier.
                
    6. The land dispute between the parties was submitted to have begun many years ago and two Courts made findings that the Land belongs to the Complainants Hamaipa clan.
       
    7. By this, the Counsel was alluding to the Alleged Court Order by Late Magistrate Saiho in 1997-1998 period, and subsequently former Magistrate Mr. Leslie Asimba’s Orders of 08/07/08 affirming Late Saiho’s Supposed Orders that;
       1. Previous ‘Local Land Court’ Decision of 1997-1998 still stands effective.
          
       2. The Defendant only has user rights through marriage connections and must adhere to communally customary Land tenure policy of the Sauhaha/Sauga area.
          
    8. The 1997 -1998 Court case resulted in an ordered to the effect by the Local Land Court that the Land in Question namely Kendatta Land belongs to Kingsford Orere and his Hamaipa Clan members. The Lead Complainant cannot produce a copy of this order due to it being lost during Cyclone Guba, the Courts Copies Were Lost in a fire that burnt down the Court house. The Defendant retains a copy but has failed to disclose it. (Dose the Defendant have the duty to assist the Complainant and disclose matters pertinent to the Complainants case in Law?)
       
    9. The Complainant further submitted that the History outlined, of the 1997-1998 Local Land Court orders by Late Land Court Magistrate Saiho and the follow up affirmation by District Court Magistrate Mr. Asimba was sufficient and conclusive evidence of the Complainants claim of right over the Land in question, and the Defendants continued disobedience to vacate the Land must be curtailed with an Eviction Order.
       
    10. Further, if the Defendant and his servants do not comply then appropriate warrants be issued for Police to enter and forcefully evict them.
        

Defendants Submissions.

14. The Defendant had filed a Notice of Motion in Response the Complainants Claims namely their Notice of Motion dated 16^th of March 2021 seeking to Dismiss the Complainants Complaint of CI No: 96 of 20 but this Notice of motion was abandoned in favor of Responding to the substantive matter in this Affidavit Trial and so that Notice of motion is not captured in this Judgement.
    
15. The Defendant Relied on the Affidavits listed in paragraph # 9. b. above and made the following Submissions via Counsel Mr. Yawisa;
    1. The Defendant denies being aware of any Proceeding in 1997-1998 period from which Certain Orders were purportedly issued against him.
       
    2. The Defendant doubts and questions that there was indeed any Local Land Court hearing in the 1997-1998 period between the Complainant and himself in which Late Magistrate Bruno Saiho issued orders which were later affirmed by Magistrate Leslie Asimba.
       
    100. In fact, in their affidavits, Joy Porusa Egimbari and Murray Egimbari said that the Defendant was only granted User Rights by their Clan and if any Land Court would have happened, it ought to have being with their Paru-Jangoropa Clan, but they state that no such Proceeding ever took place.
    4. The Defendant however, conceded to being aware of the Court orders by Former Magistrate Mr. Leslie Asimba on the 8/07/08 in which the following Orders were issued;
       1. Previous decision of the Local Land Court during 1997-1998 still stands effective.
          
       2. The Defendant only has user rights through marriage connections adhere to communally customary tenure policy of Sauhaha/Sauga area.
          
    5. The Defendant on the other hand raised the Pertinent Issue of “Whether the Complainant and his Hamaipa clansmen hold clear Traditional title to the Kendatta Land to exercise Eviction Against the Defendants?’
       
    6. The Defendant submitted that apart from the Land User Rights awarded him by Magistrate Asimba in 2008, his Wife’s Paru-Jangoropa Clan of Sauga also has Ownership claims over the said same Kendatta Land thereby further tarnishing the Complainants claim of clear Traditional Title to the Kendatta Lands.
       
    7. The Defendants Wife Joy Porusa Egimbari with her uncle Murray Egimbari also deposed and filed affidavits to this Court and disclosed their Paru-Jangoropa Clans Traditional Land Claims to the Land in question, Kendatta and its surrounds thereby openly Challenging the Complainants Claim of Traditional rights to the said Kendatta Lands.
       
    8. Murray Egimbari insisted that it was his clan that allowed his Niece Joy Porusa Egimbari and her Husband the Defendant to settle on the Land as an in-law and not by the Complainants.
       
    9. They further claim that the Complainants were themselves recent settlers to the area when the Complainants father Mr. Sextus Orere was allowed onto the Land on a Tuesday in September of 1976 by Murray Egimbari’s father.
       
    10. Additionally, The Oro Provincial Lands Advisor Mr. Roger Irurapa raises another issue spoken on by both Joy Porusa Egimbari and Murray Egimbari and that is the fact that the Land in Question is surrounded by Alienated Lands even though it is Customary Land and as far as he was concerned, Land Mediations and Land Court hearings ought to be carried out to establish Customary ownership of that Land, and that Process is yet to be done.
    11. It Seems the 1997-1998 case by Late Mr. Saiho is also Unknown to this witness who happens to be the Oro Provincial Lands Advisor and someone who ought to be in the know if a Land court was indeed heard into the Disputed Lands.
        
    50. In Paragraphs 6 and 7 of his Affidavit of 22/07/21 Mr. Irurapa Jr. insisted that a Local Land Court hearing ought to be conducted over the Disputed Kendatta Land to Verify and Authenticate the Customary Land Owner.
        
    13. The Defendant Questioned the Veracity of the Complainants claims that the Court Records for 1997-1998 period were burnt up in a fire and also coincidently that his own Records were washed away by the Flooding during the ‘Cyclone Guba Disaster’ when he actually lives a Kilometer away from the Destructive Sambogo River. It’s not as if his family homes were carried away by the flooding!
    14. He also questioned the Written statement of Supposed Land Mediator Arinias Onjete who claims to have being involved in the 1997-1998 case and also why he did not produce any verifiable records or Copies of the Supposed Court Order instead of fabricating and writing his testimonies in mere letter form as to what he witnessed or participated in.
        
    15. The Defendant via Counsel also questioned why Magistrate Leslie Asimba preside over the matter in a District Court setting and not a local Land Court Setting and returned Adjudication on Land Ownership which was outside the District Court Jurisdiction or Ultra-Vires.
        
    16. This issue raised by the Defendant is a valid Observation as even if this matter was an Application seeking merely to enforce a previously issued Local Land Court Order, it is clear the Learned Magistrate according to the statements of Land Mediators Jairus Sumbiri and other persons carried out Land Inspections and reported back to the Learned District Court Magistrate and he issued the Order of 08/07/08.
        
    17. Why carry out or Order Land inspections if it was a District Court case, and not a Local Land Court Case.
        
    18. The Defendant further referred to paragraph 14 of the Complainants main affidavit wherein it is clearly stated by the Complainant that ‘The Proceeding in 1997-1998’ was to seek the Eviction of the Defendants before the Late Magistrate Bruno Saiho, thereby there was no Land Court in 1997-1998.
    19. This Observation from the Defendant is also meritorious as a Land Court case is most often preceded by Land Mediations and then failing Agreements Been Reached, Referrals to the Local Land Court. One cannot go direct to the Court and seek Eviction as is hinted here!
16. After the various submissions made on the 23/02/22 and also after perusing the various Affidavits by the Parties, I make the following observations and Assessments;

Observations/Assessment.

17. The Starting Point of this whole Saga is the So-called Decision/Ruling in the case of 1997-1998 by Late Magistrate Bruno Saiho, however, the evidence presented to this court does not reveal much in terms of the Genesis and Progress and the conclusions of the 1997-1998 case as to enable this court to draw definitive conclusions and findings of its Existence or veracity.
    
18. The Complainant has not Revealed any Court Order or Files or Records Pertaining to any Local Land Court hearing into the Kendatta Lands claiming that it was burnt in a fire, and also Coincidently, His copies are claimed to have being lost in Flooding,
    
19. He claims the Defendant has a copy of the 1997 -1998 Court Order that he ought to produce, but that is denied by the Defendant and going back to the issue I raised in Paragraph #11. viii above, the Defendants is not obligated to help establish the Complainants case by providing evidentiary matters pertinent to the Complainants case such as copies of Court Orders. The One who alleged has the duty to produce the relevant evidence relied on!
    
20. The only instance in which the Defendant could be Compelled to Disclose or Reveal Documents or Evidentiary matters in his possession would be in relation to matters peculiarly within his control or custody which by Notice of Discovery as in a National Court Case, he can be compelled to Reveal. Not so in this case.
    
21. The Processes of a Lawfully Conducted Court and Existence and Import of a Lawfully Issue Court Order is of Paramount Concern to the Court and it is the business of Court to ensure and maintain the Respect and Integrity of Court Orders by ensuring that Lawful Court Orders are respected and Complied with.
    
22. However, the Fact that there is no Copy of the ‘Purported Local Land Court Order’ of 1997-1998 is not only Troubling but actually detrimental to the Complainants claims as was correctly submitted by Mr. Yawisa for the Defendant, I am not bound by any Order or Findings of another Magistrate NOT FOUND TO BE LAWFULLY ESTABLISHED as follows;
    1. I am not bound to honor any Adjudications purportedly made by Late Magistrate Mr. Bruno Saiho in 1997-1998, if there is no Proof or Evidence of his Adjudications and Orders presented before me.
       
    2. I am also not bound by former Magistrate Mr. Leslie Asimba’s adjudication and Orders of 08/07/08 as the Purported Original Order of 1997-1998 he Acted on and Affirmed is not in Evidence before me, NEITHER PROOF OF SUCH Orders presented to me except for Hearsay Claims by Land Mediator Mr. Onjete in his letter to Mr. Asimba which is the basis for Mr. Asimba’s order of 08/07/08.
       
23. Even though I am not sitting as an Appeal or Review Court for that matter, as I ruled in the case of Jessica Haera v. Nelson Damlap on the 31/08/21, I am not legally bound to follow or even Enforce Orders or Adjudications by other Magistrates that I do not find were properly grounded in Law and Practice.
    
24. Simply Stated, a Litigant Claiming that there was an Order/Adjudication or Judgment Issued/Entered in 1997-1998 without providing specifics such as Dates and times, Land Mediation Records, File Registration numbers let alone Actual copies of the said Order or Adjudication is the same as Providing Nothing before the Court. There is no Evidence before this Court that such an Order or Adjudication Exists.
    
25. Mr. Arinias Onjete’s letter Annexed to the Affidavit of the Complainant as Annexure “E” adds no probative value to the Complainants Arguments as he does not provide the ‘Missing link’ in terms of dates times, Land Mediation Records file numbers or even copies of anything pertaining to the 1997-1998 case that might substantiate his claims.