Isara v Ohoja [2022] PGDC 9; DC8007 (18 January 2022)

DC8007

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
CI NO: 98/2021.

IN THE MATTER BETWEEN:

1. MICHAEL ISARA
2. JASPER ISARA
3. GODWIN TAIMBARI

Complainants.

AND:

1. JOSHUA OHOJA
2. FREDA SEPIPI
3. BEN NEVILLE
4. NEVILLE OHOJA
5. DAMIEN ATO
6. HILDA OHOJA
7. MERGY ATO

Defendants

Popondetta: Michael W. Apie’e

2021: November 11^th, 2022: January 18^th.

CIVIL PROCEEDINGS.
-Action seeking Enforcement of Local Land Court Orders Pursuant to Section 64 of the Land Dispute Settlement Act.

-Claim for Restraining Orders against the Defendants from encroaching, tilling and building on the Land subjected to Previous Local Land Court Orders.

-Ejection of the Defendants from the said Kongohambo Lands subjected to previous Local Land Court orders.

Cases Cited:

Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72
References:
District Court Act.
Land Dispute Settlement Act.
Summary Ejectment Act

Representation:
Complainants each appear in person.
Joshua Ohoja and Freda Sepipi appear for the Defendants

JUDGEMENT ON TRIAL.
Background.

1. The Complainants who are from the Tengerepa Clan of Sohe in the Northern Province filed this action on the 23/06/21 against the Defendants all from Kanari Village in Sohe District, Northern Province seeking orders Against the defendants for Breaching Local Land Court Orders issued in respect of the Kongohambo Lands on 06/10/2006 under the hand of Local Land Court Magistrate Mr. Terra Dawai.
   
2. Consequential Orders from this case would obviously emanate from the facts of this case such as Orders for Restraint against the Defendants and or even orders for Ejection under section 6 of the Summary Ejectment Act over specified portions of the Lands known as Kongohambo.
   
3. Their Application is based on a Local Land Court award of Customary Land Ownership over the relevant Portions of the Kongohambo Lands in the Sohe District of the Northern Province on the 06/10/2006 by Local Land Court Magistrate Mr. Terra Dawai in LLC No: 17/06.
   
4. The Defendants filed an Appeal against the LLC Decision by Mr. Dawai, but that Provincial Land Court Appeal PLC No: 04/07 was presided over by Principal Magistrate Mr. Bill Noki and he summarily dismissed that Appeal as being filed 12 months after the LLC Decision on 06/10/06.
   
5. In other words, no appeal was filed and the LLC Orders of 06/10/06 remain in full force and effect.
   
6. The PLC in ruling to dismissing the Appeal PLC No: 04/07 affirmed the LLC Decision and orders on the 06/10/06 in these broad terms;
   
   1. Traditional Ownership of the Kongohambo land remains vested in Godwin Taimbari, Michael Isara and Jasper Isara of Tengerepa Clan.
      
   2. Freda and Elfrda Sepipi are allowed user rights only.
      
7. The Complainant had previously sought this same application before the District Court in CI No: 56 of 2016 complaining about the same infractions as in this matter but that case was struck out by Magistrate Mr. Vincent Linge on the 14/03/17 due to non-attendance by the Complainants.
   
8. This current action of CI No: 98/21 also seeks the same orders as follows;
   
   1. Defendants be restrained from encroaching on and carrying out various activities on the Kongohambo Lands.
      
   2. The Defendants be penalized for breaching Local Land Court Orders of 06/10/06.
      

Observations.

9. The Court makes the following observations of the Complainants claims;
   
   1. For all intents and purposes the Complainants have Traditional Title over the relevant Portions of the Kongohambo Lands subjected to and ordered by the Local Land Court on the 06/10/06.
      
   2. The Defendants Appeal PLC No: 04/07 was struck out for being out of time therefore they have no further recourse left to them.
      
   100. The Exception to that is the Usage Rights granted Specifically to Freda and Elfreda Sepipi by the Provincial Land Court Magistrate Mr. Bill Noki, echoing Local Land Court Magistrate Mr. Terra Dawai’s decision of 06/10/06.
        
   4. Whatever the Usage Rights was granted to Freda and Alfreda Sepipi by the Local Land Court and Affirmed by the Provincial Land Court has not being expounded before me, but assuredly this court is inclined to believe such rights ought not to be equal to or greater than the Traditional Ownership Tittle awarded to the Complainants.
      
   5. This Usage rights is also very specific to Freda and Alfreda Sepipi and logically therefore should not expand to cover the other Defendants.
      
   6. The Defendants actions of encroaching, trespassing, harvesting of Oil Palm and other related activities might not necessarily be labeled as usage rights as intended by the Local Land court on the 06/10/06.
   7. The involvement of all other Defendants in these activities on Kongohambo Lands, over and above whatever Usages rights was granted to Freda and Alfreda Sepipi by the Local Land Court is therefore in breach of the Local Land Court Orders and ought to be penalized.
      
   8. Even Freda and Elfreda Sepipi’s activities on the Land in excess of the Usage Rights granted them by the Local Land Court can also be deemed to be a breach of the Local Land Court orders.
      
   9. The Defendants all in one voice seem to support all their activities on the Kongohambo Lands without any equivocation or qualification as to what they can or cannot do.
      
   10. It is simple logic that the Traditional Ownership over Kongohambo Lands Awarded to the complainants is akin to the Concept of Indefeasible Title and so it is the Ultimate Status insofar as that Land is concern.
       
   11. User rights, are akin to Encumbrances and other caveats that are attached to title property, but do not equate to nor can they be deemed to be superior to the Indefeasible Title held by the Title Holder.
       
   50. When the Title holder changes the ‘Lay of the Land’ so to speak or reorders the purposes of the Land, Usage Rights can be altered or changed or even eliminated altogether along with such changes.
       
   13. According to the Complainants filings and annexures to his Affidavit and also that of the Defendants, the Local Land Court Orders and even the Provincial Land Court PLC No: 04/07 Orders are clear,
       
       1. The Kongohambo Land is vested traditionally in the Complainants.
          
       2. Freda and Alfreda Sepipi have user rights.
          
   14. Traditional Land Ownership is greater than and Superior to user rights, therefore Freda and Elfreda Sepipi cannot claim the same rights as the Complainants but only to the extent allowed them by the Local Land Court and no more.
       
   15. The Other defendants are total outsiders and their activities is therefore illegal and unlawful insofar as the Orders of Terra Dawai dated the 06/10/06 is concerned.
       
   16. 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.
       
   17. 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’
       
   18. In the case at hand, the Complainants Traditional Title to the Kongohambo Lands has being subjected to challenge before the Provincial Land Court in Land Court Appeal PLC No: 04/07 and has stood the test and so for all intents and purposes the Complainants have clear and Bona fide title to the Kongohambo Lands.
       
   19. The Defendants Freda and Alfreda’s user rights does not give them or the other Defendants the right to usurp and override the Complainants ownership and title over the Kongohambo Lands
       
10. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Claims by the Complainants are upheld.
       
    2. All the Defendants except for Freda Sepipi and her sister Alfreda Sepipi are hereby Ordered to Self-Evict and vacate the Portions of the Kongohambo Lands they are currently encroaching on and making gardens and occupying within 14 days from today by Tuesday the 01/02/22.
       
    3. After vacating the said portions of Kongohambo Lands, they are further restrained from ever re-entering or encroaching on these Lands again on pain of penalties that might befall them including imprisonment.
       
    4. The Defendant Freda Sepipi and her sister Alfreda Sepipi are however allowed to continue to use the Portions of the Kongohambo Lands they were granted User Rights over by the Local Land Court on the 06/10/06 and affirmed by the Provincial Land Court on the 11/11/10.
       
    5. Their use of the Relevant Portions of Kongohambo Lands must be to the extent and for the Purposes for which they were granted User rights only, and nothing more or less.
       
    6. Since the Parties are unrepresented by Legal Counsel, no orders will be made on costs.

Complainants each in Person.
Joshua Ohoja and Freda Sepipi for the Defendants.