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Hopa v Bovoru [2021] PGDC 201; DC7057 (9 September 2021)

DC7057

PAPUA NEW GUINEA.

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 33/2021

IN THE MATTER BETWEEN:

HUNTY HOPA.
Complainant.
.
AND.

DANNY BOVORU
Defendant.

Popondetta: Michael W. Apie’e

2021: September 09^th.

CIVIL PROCEEDINGS. Enforcement of Local Land Court Orders pursuant to Section 64 of the Land dispute Settlement Act..

Cases Cited:

References:
District Court Act.
Land Disputes Settlement Act

Representation:
Complainant in person.
Defendant in Person.

JUDGMENT ON TRIAL.

Background.

1. The Complainant Hunty Hopa filed Information and Complaint pursuant to Section 64 of the Land Dispute Settlement Act against the Defendant Danny Bovoru of Isugapa Clan in the Sohe District of Northern Province, that the Defendant continues to encroach and interfere in the Complainants and his Tohahapa Clan Court Awarded Lands Known as Tamonesusu despite there being a Local Land Court Order by his Worship Late Max Haembo on the 04/09/2006.
   
2. This matter came before me on the 11^th of March 2021 and after various subsequent mentions, the matter of hearing commenced into this matter on Monday the 21^st of June 2021.
   

Trial:
Complainants case.

3. The Complainant gave his oral testimony then called his witness namely one Mr. Diverst Komatepa the Chief of Tohahapa Clan who also testified on oath.
   
4. The essence of their Evidence was that;
   

1. The Defendant and his Isugapa Clan were pestering them over the Tamonesusu Land so they (Defendant) initiated the case and they went to court over the Land until the Local Land Court on the 04/09/06 awarded this Land Tamonesusu to Hunty Hopa and his Tohahapa Clan.
   
2. Since that order was issued, the Defendant and his Clans-people do not recognize the Orders and continue to pester and disturb in and interfere in the Complainants and Tohahapa Clans free and unimpeded use and possession of the Court Awarded Tamonesusu Lands.
   
3. The Complainant being thus aggrieved brings this action to force the Defendants acceptance, and compliance to this Local Land Court order of 04/09/06 and or to impose appropriate penalties on the Defendant and his Isugapa Clan pursuant to Section 64 of the Land Dispute Settlement Act.
   

Section 64 of the Land Dispute Settlement Act reads;

FAILURE TO COMPLY WITH ORDERS. A person who refuses to comply with an order or direction lawfully given by a Provincial Land Court or Local Land Court is guilty of an offence. Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding six months.

4. The Complainant in full acceptance of being awarded the Tamonesusu Land by the Local Land Court in its order of 04/09/06 seeks to have the Defendant as chief of his Clan to be dealt with according to the above provision.
   
5. The Complainant and his witness Mr. Diverst Komatepa testified to the court about the various activities the Defendant and his clan carry on over the Court Awarded Land like disrupting Harvests or Replanting of Oil Palm, making gardens and erecting buildings on the Court Awarded Lands, and challenging the Complainants and his Tohahapa Clans use and possession and other activities on the said Tamonesusu Land.
   
6. The Complainant being aggrieved on behalf of his clan brought this action against the Defendant.
   

Defense case.

5. Defendant Danny Bovoru gave evidence in his defense and also called witnesses Bartimus Pavoja, George Suhiva and also called one John Javata to give evidence in his behalf
6. The essence of The defense case is as follows;
   
   1. The Defendant arranged for and actually initiated mediation for the land known as Akopema and this matter was processed up to Local Land Court where the Order of 04/09/06 was handed down over the same Land under the name of the Tamonesusu Lands.
      
   2. The Fact that the Local Land Court Order was for Tamonesusu Land instead of Akopema Land is a sticking point as far as the Defendant is concerned and so he more-or –less rejected the order of 04/09/06 as being illegal or unenforceable against him.
      
   3. Even further, the Defendant did not bother to challenge the Local Land Court order of 04/09/06 through an appeal to the Provincial Land Court.
      
7. Observations /Assessments. Having heard the evidence in this trial I make the following observations and assessments;
   
   1. With the Orders of 04/09/06 by his Worship Late Max Haembo presiding over a Local Land Court Order having not being subjected to an Appeal before the Provincial Land Court and varied or set aside means that this Order has Legal Effect today. This very Instant!
      
   2. The Land Mediation and the Local Land Court Proceeding in LLC No: 21 of 2006 was at the behest of the Defendant and so the contention of the Local Land Court Order being served on the Defendant by the Complainant a year later is rejected as if he initiated the whole thing, he should have taken it upon himself to be in court or at the Court Registry to find out what was happening to his case instead of passing the buck.
      
   3. The Complainants contention that the Mediation was for Akopema and so the Ruling and Order made by Max Haembo in the name of Tamonesusu is somehow indicative of corruption or dishonesty is a misconception from the Defendants perspective as the Local Land Court on the basis of Evidence before it is entitled to make declarations not only on Ownership and usage rights and other matters relating to Land but can on the basis of Evidence presented before it can Affirm and allocate appropriate names established by the evidence to Lands Subjected to disputes before it.
      
   4. So in this case the Allocation by the Local Land Court of the name Tamonesusu to a Land mediated through and Referred to the Local Land Court as Akopema is a reasonably expected result from Local Land Court hearings as the Local Land Court has the discretion and Jurisdiction to allocated suitable and appropriate names established by evidence before it.
      
   5. ‘To the victor goes the spoils’ as they as said and also the naming rights, so if Hunty Hopa and his Tohahapa Clan became victorious in the Local Land Court, obviously their name for the Land as Tamonesusu and their claim was accepted by the Local Land Court, and hence the Order of 04/09/06 in the name of Tamonesusu Land, and not Akopema.
      
   6. In this Order Max Haembo’s Local Land Court Panel made an order naming the Land Disputed before them as Tamonesusu and awarding such land to Tohahapa and Isemba clans, then striking out the Akopema Land Dispute as and then made a proviso that ‘Akopema Land dispute is struck out’ meaning it was not relevant or Applicable to the Dispute before it.
      
   7. If the Land rebranded as Tamonesusu was the same Land referred to as Akopema by the Defendant, he ought to have appealed to the Provincial Land Court but he did not.
      
   8. Despite all presented by the Defendant and his witnesses who were more-or-less seeking to Re-Litigate the Land Dispute, the fact of the mater remains that a Lawfully Binding Local Land Court Order exists!
      
   9. The Defendant and by extension, his Clans people have been accused of not complying with this Order or 04/09/06, and before this court, the Defendant has not denied this claim but rather sought to try and restart the Land Dispute from where they left off before his Worship Late Max Haembo in 2006.
      
   10. I will therefore not entertain any further issues relating to the Land dispute and in saying that I will refer to the case precedent cited by the Defendant himself of wherein their honors Hinchliffe, Jalina and Batari JJJ stated;
       

‘The Court Must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a Litigant having selected on mode of proceeding and having failed to obtain a remedy cannot generally be entitled to then intitute and alternative proceeding seeking the same remedy that was denied in the earlier proceeding.’

11. The Defendant in this case has not defended this case by responding to the claims of Disruptions and interferences and threats to the Complainants and his Tohahapa Clan over their use and Enjoyment of the Court Award Tamonesusu Lands, but rather has sought to Re- Litigate his Land Claims of Customary Ownership of the same lands which is contrary to the precedent he cited himself above.
    

8. In the final Analysis, the Court finds and Rules as follows that;
   
   1. On the basis of the Evidence presented the Defendant is found to have continually and persistently breach the Land Court Orders of LLC N: 21 of 2006 by his Worship Late Max Haembo on the 04/09/06.
      
   2. The Defendant is at liberty to seek legal advice to Re-litigate his land claims through proper means instead of issuing threats and being disruptive and threatening to the Complainant over the Local Land Court Awarded Tamonesusu Lands.
      
9. Accordingly, in respect of the Complainants claims against the Defendant, the Court will order as follows;
   
   1. The Defendant is ordered to pay K200.00 fine as a first penalty pursuant to section 64 of the Land Dispute Settlement Act.
      
   2. In Default 3 months in hard Labour at Biru CS Goal.
      
   3. Further, the Defendant and his Isugapa Clan is further Restrained from disrupting, threatening and encroaching on the Court Awarded Tamonesusu Lands from hereon.
      
   4. Any further Disruptions, threatening and interference in the Complainants vacant Possessing and enjoyment in the Court Awarded Tamonesus Lands will be subjected to penalties including imprisonment pursuant to section 64 of the Land Disputes Settlement Act against the Defendant and or members of his Isugapa Clan.
      

Complainant in person.
Defendant in Person.