Ungajo v Tongoropa [2022] PGDC 96; DC9041 (25 May 2022)

DC9041

PAPUA NEW GUINEA.

CIVIL JURISDICTION.
DCC NO: 131/2021.

IN THE MATTER BETWEEN:

NICHOLAS UNGAJO
Complainant.

AND:

1. CHAMPION TONGOROPA
2. EDMAN GASINAPA
3. SIMON HAUNE
4. ROSE MARY MASURU
5. APOLAS TONGOROPA

Defendants

Popondetta: Michael W. Apie’e

2022: March 24^th to May 25^th.

CIVIL PROCEEDINGS.
-Action seeking Restraining Orders against the Defendants in regards to Lands Subjected to Mini-Estate Project with the New Britain Palm Oil Company Limited.

-Claim for Restraining Orders against the Defendants from encroaching, tilling and building on the Land subjected to Local Land Court Orders, and also ceded to the Complainant and his Clan via clan Land Use Agreements.

-Application founded on Section 22 of the District Court Act, Section 21 (4) (f) discussed.
-No Bona fide dispute currently mounted against Complainants claim of traditional title as per LLC orders or 18/02/21 and also by Virtue of Clan Land use Agreements endorsed by clan chiefs and fathers.

Held:

1. The Claims by the Complainants are upheld.
   
2. All the Defendants are hereby Ordered to Self-Evict and vacate the Portions of the Boruga Pusute Mini-Estate Lands they are currently encroaching on and making gardens and occupying within 30 days from today by Saturday the 25/06/22.
   
3. After vacating the said portions of Boruga Pusute Lands, The Defendants Are Further Restrained from Encroaching on, Disrupting, Disturbing, Arguing, Quarrelling and Threatening the Complainant and Barunapa Clan in their Free and Unimpeded Enjoyment Occupation and Operation of their Mini-estate Activities on the said Boruga Pusute Lands
   

Cases Cited:
Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72
Theodore Mondia v. John Kapo SC1442

References:
District Court Act.
Land Dispute Settlement Act.
Summary Ejectment Act

Representation:
Complainant appears in person.
Champion Tongoropa and Lyndsay Ponga appear for the Defendants

JUDGEMENT ON TRIAL.

Background.
Complainants Claims:

1. The Complainant/Informant Nicholas Ungajo is a member of the Barunapa Clan of New Warisota Village in Popondetta, Northern Province and he initiated this Action under CI No: 131 of 2021 to seek certain orders against the Defendants as follows;
   
   1. The Defendants, family members, associates and or agents be restrained from unlawfully trespassing and complaining over the said Land(s).
      
   2. The Defendants, family members, associates and or agents be restrained from hunting, gardening and further carrying out any activities on the said Land(s).
      
   3. The Defendants, family members, associates and or agents be restrained from fighting, quarrelling against the Barunapa Clan members over the said Lands.
      
   4. Any other orders the Said Court deems fit.
      
2. The Defendants are all members of the Hamunepa Clan of New Warisota village and the Lands in issue were listed on the Originating documents (Information and Summons) as Boruga, Eihe, Iviseta, Kongonata (corrected as Kongohu), Kigirata, Kendasusu and Pusute,
   
3. The informant initiated this Action because of the Fact that these named lands are all part of a Mini-estate Project taken out with the Higaturu Oil Palm Limited (HOPL) Company now New Britain Palm Oil Company (NBPOL) under the name of Boruga Pusute Mini-Estate
   
4. After these lands were included into this Mini-Estate Project by Barunapa Clan following on from what is believed to have being Land inspection by Land mediator Mr. Arinius Onjete and others, and the supposed Emanating Clan Land Use Agreements.

Complainants Case:

5. In Bringing this case, the Complainant filed Certain Affidavits and also gave oral testimony in support of his Claim as follows:
   
   1. He is the chairman of the Barunapa Clan and Barunapa Clan ILG which ILG this court is led to believe was recently Certified.
      
   2. On the 18^th of February 2021, a Local Land Court (LLC) Referral LLC No: 01/21 came before LLC between the Applicant /Complainant Nicholas Ungajo of the Barunapa clan and one Jerome Hohondako of the Erepa Clan both from New Warisota village in Popondetta Northern Province.
      
   3. In pursuit of that LLC case, the Parties and the responsible Mediators to this referral namely Messrs. Gibson Tinga, Jairus Sumbiri and Thimeus Sorari sought to have an agreement pursuant to Section 18, 19 and 20 of the Land Dispute Settlement Act (LDSA) endorsed between the Parties in a Form 10 Agreement.
      
   4. The LLC after considering the matter issued the Form 10 Agreement, and issued LLC Orders Accordingly on the 18^th of February 2021 between the said Nicholas Ungajo for the Barunapa Clan and Jerome Hohondako for the Erepa Clan both of New Warisota Village in Popondetta Northern Province.
      
   5. The Agreement and the Emanating Orders of 18/02/21 are as follows that;
      
      1. That Mr. Jerome Hohondako from Erepa clan withdrew himself from the Lands Boruga Pusute. The Lands Boruga Pusute are now given away to Barunapa clan.
         
      2. The Right hand part of the Boruga Pusute Land belongs to Nicholas Ungajo from Barunapa Clan.
         
      100. The Left Hand Part of the Boruga Pusute land Belongs to Erepa Clan, Ovu-Umbarite Harekohate and Hagonata Land belongs to Erepa clan.
           
   6. The Form 10 Agreement and the Orders of 18/02/21 relates to the Interests over the Lands known as Boruga Pusute, on the whole of which the Complainant and his Barunapa Clan had installed an Oil Palm Mini-Estate incidentally called the Boruga Pusute Mini-Estate operating with new Britain Palm Oil Company Limited.
      

Current Action.

6. After the Form 10 agreement and the LLC orders of 18/02/21 are issued the complainant returned to Court on the 13^th of August 2021 and filed this Action seeking Restraining Orders against the Defendants for their Encroachment, threats, Quarrelling and Disruptive Activities on the Boruga Pusute Mini-Estate Lands.
   
7. The basis of this action is that apart from the Form 10 Agreement and Resultant LLC Orders he and his Barunapa clan have over the Boruga Pusute Lands, the Complainant also has Land Use Agreements endorsed over the other Portions of Lands captured within the Boruga Pusute Mini-Estate Lands namely Eihe, Eviseta, Kongohu, Kigirata and Kendasusu.
   
8. The Complainant claims that the named Defendants are all encroaching on, arguing and quarrelling with his Barunapa clan over these Lands and Threatening and disrupting the Mini-Estate Activities, therefore he seeks Orders of Restrain Against the Defendants.
   
9. The Complainant deposed into evidence the LLC Order of 18/02/21 and also a Land Mediation Report compiled by Land mediators then Mr. Arinius Onjete and Thimeus Sorari and also various Clan Land Use Agreements under the auspices of the New Britain Palm Oil Ltd Company, supposedly entered into and endorsed by certain persons and Clan Chiefs of the Hamunepa or Haguna Senani Clan including the Defendants Parents like Defendant Champion Tongoropa’s Father Mr. Malchus Ongopa and one Mr. Simon Haune and others.
   
10. Because of these Clan Land Use Agreements, over the various Portions of Lands covered by the Boruga Pusute Mini-Estate operated by the Complainants Clan, the Complainant and his Barunapa Clan seek to operate their Minis-Estate in peace without unnecessary threats, disturbances and disruptions from others, including especially the Defendants.

Defendants case.

11. The defendants also gave oral testimony and also filed various Affidavits and their response to this claim is generally as follows;
    
    1. Defense witness Jacob Mone;
       1. He claims that the Land Boruga Pusute is not Jerome Hohondako’s Land to give away to anyone especially the Complainant.
          
       2. He claimed that the Boruga Pusute land was his and Champion Tongoropas land and particularly the Portion known as Eihe.
          

Cross Examination.

100. In cross examination he was asked on what basis he claims the Pusute and Eihe Portions and he admitted that he was claiming through his mother.
     

4. The Traditional Land tenure system in New Warisota is Patriarchal.
   

2. Champion Tongoropa; the main defendant.
   1. Claims That the Pusute Land is his traditional Lands and he would only share Land boundary with Jacob Mone’s mother.
      
   2. Boruga Land is owned by other clans.
      
   100. He further Claims that five (5) portions of his Lands are in the Boruga Pusute Mini-Estate.
        
   4. He further claimed that he had objected to the Barunapa Clan’s Incorporated Land Group (ILG) application, however it has been rumored that Barunapa Clan ILG had being Certified and is current to this date. However, that remains to be confirmed!
      
   5. He also further claimed that he was in the process of Requesting Land Mediations into these lands when this Summons was issued on him, hence he is yet to initiate Lands mediation into these Lands under the Boruga Pusute Mini-estate.
      
   6. He claimed all the Lands listed in this action as his.
      
3. The next Defense Witness is Steven Boniface and his Evidence was as follows;
   
   1. Pusute is Champion Tongoropa’s Land and Boruga is his (Steven Boniface) Land.
      

Cross Examination.

2. He was asked by the Complainant, ‘On the 22/11/2014, your father and my father (Ungajo) challenged Jerome Hohondako and your father was my father’s witness in that Land Case? And he answered ‘Yes, my father supported your father but you have not recognized my father/me and so I want the Land back!’
   

100. He was further asked ‘Why didn’t your father become a party/Claimant himself to the Land Against Jerome Hohondako instead of supporting my father’s and Barunapa Clans claim to this land? He answered ‘Your Father asked and my father became witness, however Boruga Pusute is my father’s Land and I want it back.’
     
4. The Various Affidavits Filed by and for the Defendants are noted and the gist of the Defendants case is as follows that;
   
   1. The Lands over which the Complainant seeks Orders of restraint against the Defendants are not the Complainants or Barunapa Clan Lands.
      
   2. The Complainant established the Boruga Pusute Mini-Estate in dubious circumstances.
      
   100. The Defendants opposed the Complainants Barunapa ILG, however this ILG has being rumored to be Certified and current to date.
        
   4. Land Mediation was sought over these Lands against the Complainants, but The Current Action 9CI No: 131/2021 has disrupted the Land Mediations requested.
      
5. The Parties made their Final Submission via their Submissions Filed on the 18/03/22 and final Rebuttals were taken on the 24/03/22 wherein the Parties relied on their filed submissions and closed and left their various cases to the Courts Consideration.
   
6. The Following is my assessment of the Parties various cases.

Observations.

12. The Court makes the following observations of this case;
    
    1. LLC 01/21 between Nicholas Ungajo of Barunapa clan and Jerome Hohondako of Erepa clan both of New Warisota village was processed through Lands Mediation and it was resolved during Land Mediation that that matter would result in Form 10 agreement and the said Jerome Hohondako and his Erepa Clan would relinquish Traditional Claim in these Lands to Nicholas Ungajo and Barunapa Clan.
       
    2. Why did the Defendants also not contest or Register their interest in this Land Mediation if these Lands was theirs and not the Complainants or Barunapa Clan Lands?
       
    3. Defendants Witness Steven Boniface gave an account of his father supporting Nicholas Ungajo and his Father in his/their case against Jerome Hohondako, but now seeks to reclaim this Land(s) after the Land had been bound by a Court order dated 18/02/21.
       
    4. It also seems that the Defendants Fore-bearers of Fathers especially Malchus Ongapa, Simon Haune and others ceded some of their interests in the various Land Portions within the Boruga Pusute Mini-Estate Lands via Clan Land Use Agreements to the Complainant and his Barunapa Clan.
       
    5. It seems the defendants are now seeking to reverse these decisions and actions taken by their various chiefs, father’s and fore bearers to reclaim and repossess the Land within the Boruga Pusute Mini-Estate Land that they deem as their Traditional Land interests.
       
    6. The fact that the Boruga Pusute Lands have being bound in a Court Order, namely the Form 10 Agreement and the Resulting LLC orders of 18/02/21 has two effects under Law;
       
       1. Under Section 19(6) of the LDSA, the Agreement of 18/02/21 has the effect of a Court Order.
          
       2. The said Jerome Hohondako is hereby estopped from seeking to re-litigate or restart his Land Claims against the Complainant in this case over the said Boruga Pusute Lands ever again.
          
    7. The Defendants on the Other hand were not Parties to the Proceeding that resulted in the Court Orders/Agreements of 18/02/22, However, it seems their fore-bearers and other from their various clans had agreed to cede these Lands and or support the Complainants and Barunapa Clans Claims over the Boruga Pusute Mini-Estate Lands and so the defendants are bound by their Fore-bearer’s decisions and Actions.
       
    8. The Defendants by virtue of the LDSA, are free to initiate new mediations against Barunapa Clan, but insofar as the Orders of 18/02/21 are concerned whatever activities in Encroaching, Disrupting, Disturbing, Arguing and Quarrelling and threatening the Complainant and Barunapa Clan in their Occupation and operation of their Mini-estate activities, must cease forthwith.
       
    9. 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 has relevance 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’
       
    10. In the case at hand, the Complainants Traditional Title to the Boruga Pusute Lands has being subjected to challenge by Jerome Hohondako either as Complainant or Defendant in the LLC in LLC No: 01 of 21 and thereafter the said Jerome Hohondako relented and surrendered these Lands formally to the Complainant, all the while the defendants and their Fore Bearers were aware of this fact, none of them sought or intervene or join in the issue.
        
    11. Without Officially (Bona Fide) Disputing the Complainants Title in the words of Late Kapi DCJ as he was in the Gawi Case above, but more specifically under Section 22 of the District Courts Act, this Court can grant and issue orders of Restrain against any person or persons including the Defendants in order to Protect the Local Land Court order of 18/02/21.
        
    12. Section 21 (4) (f) of the District Court Act could be deemed as a bar to this Court granting the Orders Sought by the Complainant, however, similar to the Ruling I delivered in the case of Esmie Ogomei v. Esmie Bill and James Bill DC No: 151 of 2022 on the 05/05/22, There is no Current Bona fide Land Dispute against the Complainants Traditional title or Otherwise to the Boruga Pusute Lands currently.
        
    13. The ruling in the case of Theodore Mondia v. John Kapo SC 1442 per Injia CJ, Batari and Hartshorn JJ has relevance in this current case.
        
    14. In the Mondia v. Kapo case above, 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.’
        
    15. In the Current case, there is no ‘Bona Fide Dispute’ to the Traditional Title claimed by the Complainant over the Boruga Pusute Lands and affirmed by the Local Land court on the 18/02/21, either by and Appeal or Judicial Review, let alone a pending new Land Mediation.
        
    16. Indeed, if a new Land Mediation is to emerge over the said Lands, then it must be held against the Backdrop of the Concessions and Agreements the Defendants Fore-Bearers made in favour of the Complainant and his Barunapa Clan over the Boruga Pusute Mini-Estate Lands.
        
    17. Therefore, given the Complainants Court Ordered Ownership over Boruga Pusute Mini-Estate Lands dated 18/02/21 and also without the properly invalidating of the Various Land Use Agreements granted to the Complainants over the various land Portions encompassed by the Boruga Pusute Mini-Estate, the Defendants have no rights in Encroaching on, Disrupting, Disturbing, Arguing, Quarrelling and Threatening the Complainant and Barunapa Clan in their Free and Unimpeded Enjoyment Occupation and Operation of their Mini-estate activities on the said Boruga Pusute Lands.
        
13. In considering this case, the District Court make the following declarations that under Section 22 of the District Courts Act;
    
    1. The Complainant and his Barunapa Clan for all intents and purposes has Traditional title or rights to the Boruga Pusute Lands by virtue of the LLC order of 18/02/21, Specifically as follows;
       
       1. That Mr. Jerome Hohondako from Erepa clan withdrew himself from the Lands Boruga Pusute. The Lands Boruga Pusute are now given away to Barunapa clan.
          
       2. The Right hand part of the Boruga Pusute Land belongs to Nicholas Ungajo from Barunapa Clan.
          
       100. The Left Hand Part of the Boruga Pusute land Belongs to Erepa Clan, Ovu-Umbarite Harekohate and Hagonata Land belongs to Erepa clan.
            
    2. Additionally, the Complainant and his Barunapa Clan for all intents and purposes has Traditional title or rights to the Boruga Pusute Lands by virtue of the various Clan Land Use Agreements endorsed by the concerned chiefs, Fathers and Leaders of Hamunepa and or Haguna Senani Clan, ceding whatever calims they might have over the various Land Portions within Boruga Pusute Mini-Estate to the Complainant and his clan.
       
    3. The Defendants currently have no Bona Fide Dispute against the Complainants use and occupation of the various Land Portions Encompassed by the Boruga Pusute Mini-Estate.
       
14. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Claims by the Complainants are upheld.
       
    2. The Findings and Orders of the District Court issued on the 18/02/21 are hereby affirmed and re-stated as follows;
       
       1. That Mr. Jerome Hohondako from Erepa clan withdrew himself from the Lands Boruga Pusute. The Lands Boruga Pusute are now given away to Barunapa clan.
          
       2. The Right hand part of the Boruga Pusute Land belongs to Nicholas Ungajo from Barunapa Clan.
          
       3. The Left Hand Part of the Boruga Pusute land Belongs to Erepa Clan, Ovu-Umbarite Harekohate and Hagonata Land belongs to Erepa clan.
          
    100. All the Lands known as, Eihe, Iviseta, Kongonata (corrected as Kongohu), Kigirata, Kendasusu all within Boruga Pusute and have being ceded to the Complainant by virtue of the various Clan Land Use Agreements signed and sealed between the Complainant and his Barunapa Clan and the Defendants Clans-chiefs and fore-fathers.
         
    4. All the Defendants are hereby Ordered to Self-Evict and vacate the Portions of the Boruga Pusute Mini-Estate Lands they are currently encroaching on and making gardens and occupying within 30 days from today by Saturday the 25/06/22.
       
    5. After vacating the said portions of Boruga Pusute Lands, The Defendants Are Further Restrained from Encroaching on, Disrupting, Disturbing, Arguing, Quarrelling and Threatening the Complainant and Barunapa Clan in their Free and Unimpeded Enjoyment Occupation and Operation of their Mini-estate Activities on the said Boruga Pusute Lands, on pain of penalties that might befall them including Imprisonment.
       
    6. Since the Parties are unrepresented by Legal Counsel, no orders will be made on costs.

Complainants in Person.
Champion Tongoropa and Lyndsay Ponga for the Defendants.