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Gopa v Hara [2022] PGDC 70; DC8073 (5 May 2022)

DC8073

PAPUA NEW GUINEA

CIVIL JURISDICTION
DC NO: 153 /2021.

IN THE MATTER BETWEEN:

DULCIE GOPA
Complainant.

AND:

1. SAMSON HARA.
2. LANCEFORD HARA.
Defendant

Popondetta: Michael W. Apie’e

2022: April 14^th to May 05^th.

CIVIL PROCEEDINGS.
-Application for Eviction Orders over Village Oil Palm (VOP) Blocks by Complainant against Defendants.
-Issue of traditional Land Ownership Arises.

EVIDENCE-
Parties rely on filings and oral testimonies given by witnesses called.

Cases Cited:
Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72

References:
District Court Act.

Representation:
Complainant appears for herself.
Defendants appear for themselves.

JUDGEMENT ON TRIAL.
Background.

1. The Complainant was aggrieved by the Defendants action in assuming Possession and control over a Village Oil Palm Block namely, Block # 540061 established through the Village Oil Palm (VOP) Concept under her Late father in Law Rufus Gopa’s namely at Ongoho village in the Higaturu LLG area of Sohe District in the Northern Province.
2. Her grievance was that the Defendants claim that, that VOP block was established on their (Hara Family) Traditional Land Holdings at Ongoho village, therefore they were assuming control over it from the Complainant as no Land Compensation had being made for the Land to their family after it was Let to late Mr. Rufus Gopa to plant the VOP block, therefore Land ownership remains vested in their family.
   
3. It is revealed through Evidence that the Defendants elder brother Late Malcolm Hara, who was a peer of Rufus Gopa allowed the said Rufus Gopa to install this VOP Block on what was his(Malcolm’s) old Coffee Block, when the VOP Scheme took hold in early 1990’s as Rufus Gopa Obviously did not have Land of his own to participate in the VOP activities then and there.
   
4. The complainant in her action of 29/09/21 claimed that sometime prior to the 29/09/21, the Defendants had taken over possession and control of the VOP Block held under her Father in Laws name at Ongoho village after some disagreements and have so far deprived her and her husband Mr. Tom Gopa from accessing and harvesting and benefitting from this Block.
   
5. She filed her claim and the case was mention first before me on the 14/10/21 and upon preliminary enquiries the Defendants indicated that they would contest the Complainants claims given that the Land on which the VOP block was installed was their Traditional Family Land and still remains theirs to date.
   
6. The matter was promptly listed for hearing on the 27/10/21, but due to non-attendances by the Parties at various times and other intervening factors including the court list in Popondetta, this matter kept being put off until the 18^th of February 2022 when the Complainant was called upon to present her claim.
   

COMPLAINANTS CASE.

7. The complainant commenced her claim and gave her sworn oral testimony followed by her Second Witness namely one Mr. Fordy Seseho, a local from Ongoho village and a member of the dominant Ehuhu Clan himself.
   
8. The Essence of their evidence is as follows, that:
   
   1. Late Mr. Rufus Gopa is a member of the Dominant Ehuhu Clan of Ongoho village.
      
   2. When the VOP concept was rolled out in the early 1990’s and locals were being invited to participate, village and clan chiefs were asked to authorized their constituents to participate in the VOP Concept by Higaturu Oil Palm Company and so Ehuhu Clan Leader and Paramount Chief Thomas Gairi vouched for and authorized Ehuhu clans people from Ongoho village to participate.
      
   100. Because of this due to a personal relationship and arrangement between Malcolm Hara and Rufus Gopa the Latter was also given the old coffee block by Malcolm Hara and he too participated in the VOP Project and had this Block # 540061, planted in the early 1990’s, around 1992.
        
   4. When he fronted up to participate in the VOP Scheme, Paramount Chief Thomas Gairi had no issue which him as Rufus Gopa was recognized as an Ehuhu Clansman who could naturally participate in any activity on Ehuhu clan Land, and so he was recognized as Block # 540061 owner all the remainder of his life.
      
   5. At that time the Complainant had not yet married Tom Gopa, but by the time she got married to Tom Gopa this Block # 540061 was already established as Rufus Gopa’s VOP block and she and her husband and later children have all being living off it, up till the Defendants unceremoniously took possession of it off of her and her family.
      
   6. After the Passing of Rufus Gopa, Tom Gopa and his wife the Complainant maintained control and possession of this block until the Defendants decided to take up possession of the block from the Complainant and her family.
      
   7. The Complainant and her witness maintained that the Defendants had no cause to take over the block from the Complainant and that they ought to cede up possession back to the Complainant.
      
9. In cross examination of the Complainant and her witness, the Defendants Samson Hara suggested that the Late Rufus Gopa’s was not a member of Ehuhu clan but rather a member of another clan namely the Hoivopa clan, however this contention is strenuously denied and contested by both the Complainant and her witness Mr. Fordy Seseho a member of the Ehuhu clan himself.
   

DEFENDANTS CASE.

10. The Defendants called one witness namely a Mr. Ben Simboropa the village Court Clerk for Asegi Village Court covering Ward 20 and 21 of the Higaturu LLG in Sohe Northern Province on the 14/03/22, and his evidence was as follows;
    
    1. This witness testified of the Court of the village Court case involving certain Arson cases between the Parties that happened before this issue arose.
       
    2. He said that whilst the Complainant was living with her family at Embi Estate, in the Oro Bay LLG, her House at Block # 540061 was burnt down.
       
    3. The Complainant suspected certain members of the Hara Family namely Ross, Macklin Hara and also Adrian Jirari so she reported them to the Police and Police went to arrest them but they had left.
       
    4. At the time a member of the Hara Family, Possibly Malcolm Hara himself had passed and the Hara family were at mourning/’haus Krai’ but Police went up with the PPC and insisted on Police to burn down the Hara Family Houses.
       
    5. At this time this witness claims that the Complainant Dulcie Gopa got fire herself and torched the Hara Family houses and their houses were all burnt down.
       
    6. The Defendants being Ongoho Land owners were waiting and after Two weeks the Complainant sent her sons to harvest Palm Oil from Block # 540061 but they were prevented by the Defendants and so they went and brought their mother back, but she was also stopped.
       
    7. The Defendants were expecting the Complainant to say sorry for burning down their houses but she came from Embi and expected to harvest Palm Oil Fruits without saying sorry for her actions and so the Defendants as Land owners of the Land on which Block # 540061 stands stopped her from gaining excess to the block.
       
    8. He was also led by the Defendants into revealing that when Rufus Gopa took over Malcolm Hara’s coffee block to install VOP Block # 540061, it was expected by the Hara Family that he would pay compensation for the Land Later, but since 1992 up until his death, and even up to current, the Gopa Family have yet to pay for the Land and so for all intents and purposes Rufus Gopa’s VOP Block # 540061 is on Hara Family Land.
       

OBSERVATIONS:

11. Having heard and received Evidence and the Submissions from the Parties the court makes the following observations;
    
    1. The Defendants insist on being the Land owning family who through late Malcolm Hara own the Land on which Rufus Gopa’s Portion Block # 540061 stands.
       
    2. This Court has not been fully informed on the VOP blocks operating Systems as to how the Blocks are registered as to fully appreciate what the Block Numbering systems entail in respect to Block holders.
       
    100. Whether, Block holders in VOP Blocks have the same status as Block holders or Title Holders in LTC blocks.
         
    4. However, VOP Blocks being primarily conducted on Traditional Lands, this court is compelled to believe that VOP Project Lands would still be vested in the members of the Clan which owns the Land on which VOP blocks Stand.
       
    5. So in this case the Ehuhu clan members, either the Hara Family or Rufus Gopa Family owns this land.
       
    6. This case started from an application for Eviction, but the Law and Case Law in Papua New Guinea is clear that in order to evict someone from Land, ownership of the Land in question must be clear and determined in order for any action to Lie.
       
12. In the case of Gawi v. PNG Ready Mix, the court per Late Kapi DCJ as he then was in relation to Alienated Lands 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’
    
13. This Basis Tenet or Principal would apply for Traditional Lands in that when someone seeks to evict another from traditional Lands, then his or her ownership of the said Land must not be in doubt in order to invoke the Courts favour to Evict.
    
14. In this case the insistence that the Land on which Block # 540061 stands is Late Malcolm Hara’s land and that the Complainant and her family have not compensated or paid for it raises doubts about her family’s rights over this land.
    
15. By Law, especially Section 3 of the Land Disputes Settlement Act, determination of Traditional or Customary Land ownership remains in the Purview or Domain of the Local Land Court, and no other.
    
16. This District Court has no jurisdiction to make a determination on who owns the Land on which Block # 540061 stands at Ongoho village and so will not make any determination.
    
17. This matter ought to rightly go to Lands Mediation and up to the Local Land Court.
    
18. In the final Analysis, the Court finds and Rules as follows that;
    
    1. The Complainant Claim for Eviction of the Defendants is Refused.
       
    2. The Parties are referred to Lands Mediation with the Sohe District Lands Mediation Team.
       
    3. The parties are further Restrained from Harvesting Oil Palm or dealing in any many with Block # 540061 until the Land Mediations is complete and ownership of this Land at Ongoho village is established.
       
    4. Since the Parties are unrepresented by Legal Counsel, no orders will be made on costs.

Complainant for herself.
Defendants for themselves.