Ogomei v Bill [2022] PGDC 94; DC9038 (5 May 2022)

DC9038

PAPUA NEW GUINEA.

CIVIL JURISDICTION.
DC NO: 151 /2021.

IN THE MATTER BETWEEN:

ESMIE OGOMEI
Complainant.

AND:

1. ESMIE BILL.
2. JOHN BILL.
Defendants

Popondetta: Michael W. Apie’e
2022: April 14^th to May 05^th.

CIVIL PROCEEDINGS.
-Application for Eviction Orders against the Defendants from Traditional Lands by Complainant against Defendants.
-Issue of traditional Land Ownership Arises as Third Party Claimant to the Land is introduced by the Defendant.
- Declaratory Orders under Section 22 of District Court Act for Eviction from Traditional Lands.
-Exception under Section 21(4) (f) of the District Courts Act.
-‘Bona Fide Dispute in title over customary Lands does not exist outside the auspices of the Land Disputes Settlement Act.’
EVIDENCE-
Parties rely on filings and oral testimonies given by witnesses called.
HELD:

1. Orders issued under Section 22 of District courts Act to Order Eviction of Defendant from traditional Land.
2. Defendant is allowed 60 days within which to Pull down, Dismantle and Remove and Ultimately Evict herself from the Said Portion of Land at Kakandeta and allow Vacant Possession to the Complainant.
3. No orders on Costs.
   

Cases Cited:
Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72
Theodore Mondia v. John Kapo SC1442
Ronny Wabia v. BP Operating Company Ltd. [1998] PNGLR 8
Victor Golpak v. Patrick Alongarea Kali and OR’s [1993] PNGLR 491

References:
District Court Act. Chapter 40
Summary Ejectment Act. Chapter 202
Constitution of PNG
Land Dispute Settlement Act chapter 45

Representation:
Complainant appears for herself.
Esmie Bill appears for the Defendants.

JUDGMENT ON TRIAL.

Background.

1. The Complainant Ms. Esmie Ogomei from Kakandetta Village ward 8 in the Popondetta Urban Local Level Government Council Area appears as Complainant and Surviving Daughter of Late Chief of Sesevopa Clan Holland Ogomei.
   
2. She seeks Eviction orders against the Defendants who were once Pastor and Pastors Wife in the PNG Revival Church, which Church was allowed to Occupy a piece of Traditional Land known as Ombareta at Kakandetta Village by Late Holland Ogomei in 2007.
   
3. The PNG Revival church in appreciation is said to have paid some money to Holland Ogomei totaling about K7,300.00 or so being K5000.00 from the Defendants and K2,300.00 from the Church itself, according to Esmie Bill.
   
4. It is apparent that No Land Use Agreements or Land Transfer Agreements were entered into and so for all intents and purposes the Land remains Traditional Land Still vested in Sesevopa Clan and the Holland Ogomei Family to this date.
   
5. After being on the land for a short duration, it is revealed that the Church relocated to another Location except for the Defendants who continued to live or reside on the Land.
   
6. Later, the Second defendant is said to have also left the Land whilst his wife and the First Defendant continues to live on the Land much to the chagrin of the Complainant and her family.
   
7. The Complainants who deem themselves as being Traditional have since taken out this action to have the Defendants, especially Esmie James Bill evicted from the said Ombareta Land at Kakandetta Village.
   
8. The Complainant apart from her filings gave her own Oral testimony and also called two witnesses namely Mr. Richard Uduga on the 22/02/22 and Mr. Roger Irurapa (Snr) on the 24/02/22.
   
9. The Complainant and her witnesses affirmed the following;
   
   1. That the Complainants claim to the said Ombareta Land as Sesevopa Clan Land and that the Complainants as the Daughter of Late Sesevopa Clan Chief Holland Ogomei was for all intents and purpose the Land Owner of the Ombareta Land at Kakandetta Village.
      
   2. Witness Richard Uduga from the Barepa Clan of Kakandetta maintained that since his childhood, he knew the Land was Late Sesevopa Clan’s Chief Holland Ogomei’s Land and that the Complainant as the Daughter of said Holland Ogomei is the Land owner.
      
   3. He added that he was not aware of any Land Disputes being pushed over this land by anyone against the late Holland Ogomei previously.
      
   4. Witness Roger Irurapa (Snr) is a Leading Chieftain in Kakandetta being a person that is counted as a leader by most of the Nine or so clans in Kakandetta.
      
   5. Roger Irurapa was very adamant is stating that the Ombareta Land, currently the subject of this suit is Sesevopa Clan Especially Late Chief Holland Ogomei’s Land and his surviving daughter and the Complainant in this case has the undeniable right to claim it.
      
   6. He further stated that the other interested person over this Land, one Pastor Kelly Sare, had no rights nor claim to this land as his Land Claims lie in the land known as Simboro and not this particular Land Ombareta.
      
   7. Mr. Irurapa also said that he was not aware of any court case being pushed by anyone over this Land against Late Holland Ogomei previously.
      

Defendants Case.

10. The Defendant Esmie Bill was the lone defendant responding to this case as her Co-defendant James Bill is no longer resident at the Ombareta Land or in Popondetta.
    
11. The Defendant called two witnesses namely Pastor Kelly Sare and Mr. Winches Dama the ILG Chairman of Sesevopa clan in Kakandetta village.
    1. Pastor Kelly Sare took the opportunity to register his own interest in the Ombareta Land as opposed to the Late Holland Ogomei’s claims over the said land.
       
    2. He claimed that after this deal between PNG Revival Church and Holland Ogomei, he had registered a village court Preventive/Temporary order against Holland Ogomei and was seeking to have the matter presented before the village Court but Holland walked away and never returned to the Case.
       
    3. He claimed to have issued these Temporary Orders but did not present such documents before this Court.
       
    4. He was asked by the Court why he did not initiate Land Mediations against Holland Ogomei, and he responded ‘I was not Aware of Land Mediations!’
       
    5. Witness Mr. Winches Dama is the Incorporated Land Group (ILG) Chairman of the Sesevopa Clan at Kakandeta village in Popondetta.
       
    6. He basically came in and gave evidence supporting Pastor Kelly Sare’s claim to the said Land which he claimed was known as Kakandera and not Ombareta, saying that the Ombareta Lands was at Popondetta Campus of Vudal University.
       
    7. He said that the Land was bequeathed to Pastor Kelly Sare and his Brother Hayward by the forefathers by his grandfather Benson Umota.
       
    8. The Defendants Positon was that since there was a Land Dispute between the Complainant and Pastor Kelly Sare, she should basically remain on the Land until the Land Dispute is Resolved before she is either evicted or otherwise.
       

Observations /Assessments.

12. Having heard the evidence in this trial I make the following observations and assessments;
    1. The Land in Issue is Traditional Land and is not Subjected to Alienation and so the Provision of the Summary Ejectment Act, especially Section 6 does not technically apply to this case as was the Ruling in Gawi v. PNG Ready Mix case as per the Adjudication of Late Kapi DCJ as he then was.
       
    2. DCJ Kapi in no uncertain terms Adjudges that Actions seeking redress under Section 6 of the Summary Ejectment Act only relates to Alienated Lands.
       
    3. However, the redress sought by the Complainant can be considered under Section 22 of the District Court Act as was held in Theodore Mondia v. John Kapo SC 1442 per Injia CJ, Batari and Hartshorn JJ. The Supreme Court held in that case ‘We are Satisfied that section 22 is sufficiently wide to permit a declaratory Order to be made. Section 21 (4) of the District Court Act provides that the District Court does not have Jurisdiction to deal with certain matters. The District Court Proceeding was not concerned with any of those matters.’
       
    4. Section 21 (4)(f) inter-Alia states that the ‘District Court has no Jurisdiction in matters ‘when the title to land is bona fide in dispute.’
       
    5. Pastor Kelly Sare’s contentions against the Complainant in respect of this land might be deemed as a ‘Bona Fide Dispute’ but reading the wording of this Provision carefully it says ‘Title to Land’ so again the exception in Section 21(4)(f) is related to Bona Fide Disputes of title in Lands.
       
    6. The Ombareta land as claimed by the Complainant is Customary Lands and the exception in Section 21(4) (f) of the District Court Act has no application to this case and the Supreme Court Ruling above in Theodore Mondia v. John Kapo about section 22 of the District Court Act has application here.
       
    7. In any case, the fact that there is no Proceeding currently mounted under the Land Disputes Settlement Act such as Land Mediation or Local Land Court challenges to the Complainant by anyone else means that there is no ‘Bona Fide Dispute over Traditional Title to this Land.’ The ruling of Late Sevua J in Ronny Wabia v. BP Operating Company Ltd has resonance here where the Late Justice stated that ‘all issues related to Traditional Land interests are vested only in the Local Land Court as per the Land Dispute Settlement Act and in no other court.’
       
    8. The Forgoing Observations are made because of the following;
       1. The Defendants and their Church were allowed onto the Land by none other than the Complainants Father Late Holland Ogomei.
          
       2. The PNG Revival Church has long since Relocated elsewhere, the Second Defendant has left the area and only the First Defendant Esmie Bill is holding out on this Land.
          
       100. There is no traditional Land Transfer Agreement or Land Use Agreement in place between the PNG Revival Church and the Defendants and the Traditional Land Owner who gave permission in the first place Holland Ogomei.
            
       4. It is therefore safe to presume ownership in this Land is still with the original Land Owner, in this case Holland Ogomei and his issue, Complainant in this case.
          
       5. Pastor Kelly Sare seeks to Litigate his Land interests over this Ombareta Land by presenting his Claim before this District Court as Evidence challenging the Complainants claims over this Land, but as was the Ruling in numerous cases such as Ronny Wabia v. BP Operating Company Ltd where Late Sevua J as he then was held that “The National Court (for that matter all other Courts including the District Court) has no jurisdiction to entertain issues relating to ownership and title to customary land. As a matter of Law, that Jurisdiction is vested in the Local Land Court established by the land disputes Settlement Act.”
          
       6. In the case of Victor Golpak v. Patrick Alongarea Kali and OR’s [1993] PNGLR 491, Doherty J, as she then was, also expressed the same sentiment as Late Sevua J, when she said that ‘...despite Section 155 (the National Judicial System) of and 166 (Inherent and unlimited Jurisdiction of the National Court) of the National Constitution, the Jurisdiction to determine issue of Ownership and title of customary land(s) is in the Local Land Court under the Land Dispute Settlement Act.’
          
       7. That being the case Pastor Kelly Sare’s claims and contentions over the Ombareta Lands will be disregarded by this Court as he is more or less seeking to Litigate his Customary Land interest over the Land that is in issue before this District Court. The District Court has no Jurisdiction to consider Customary Land Ownership Issues or contentions.
          
       8. Whatever issues Pastor Kelly Sare and Mr. Winches Dama have regarding Customary Ownership of the Ombareta Lands should rightly be pursued under the Auspices of the Land Disputes Settlement Act.
          
       9. From 2007 to current, Pastor Kelly Sare has not sought to pursue his claims against Ogomei in this vein and therefore there is no current or ongoing ‘Bona fide Dispute’ over Customary Title over the Ombareta Land for this Court to consider.
          
       10. This Court therefore choses to ignore Pastor Kelly Sare’s futile Protestations and go ahead to consider the Complainants claims against the Defendants.
           
13. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Defendant(s) continue to occupy the Traditional/Customary Ombareta Portion of Land at Kakandeta without proper Land Use Agreements or Land Transfer Agreements since 2007, after the PNG Revival church had Relocated elsewhere, against the wishes and interest of the Traditional Land Owner(s) from the Sesevopa Clan of Kakandeta, namely Late Holland Ogomei and his Issue.
       
    2. Without a ‘Bona fide Dispute to Traditional title to this Land being initiated, this Court will only recognize and Accept the Complainants claims of Traditional/customary Ownership of the said Lands ahead all other persons from the Kakandetta village, simply because Holland Ogomei was the one that permitted the Defendants onto the Land in the First place.
       
    3. The Defendants proposal to remain on the Land until the Land dispute is resolved is not feasible as there is no current Bona Fide dispute over this Land between whomever and the Complainant.
       
    4. The complainant concedes and the Defendant stated that K7,300.00 including K5000.00 from the Defendant and her husband was paid to Holland Ogomei, but without a Land Use Agreement or Land Transfer Document in sight, these monies can be deemed as payment for the use of the Land or rental payments and so for all intents and purposes can be deemed as exhausted at this point some 15 years later.
       
    5. The Court will therefore not make any orders in respect of those monies.
       
14. Accordingly, the Court Orders as follows;
    
    1. The Complainants Claims are upheld.
       
    2. The Defendant Esmie James Bill is allowed 60 days until Wednesday the 13/07/22 within which to Pull down, Dismantle and Remove and Ultimately Evict herself from the Said Portion of Land at Kakandeta called Ombareta by the Complainant and allow Vacant Possession to the Complainant.
       
    3. In Default, enforcement Proceedings will ensue against her to give Vacant Possession to the Complainant.
       
    4. Since parties are not represented by Counsels, there will be no orders on costs.

Complainant in Person.
Second Defendant appears in person for the Defendants