DC9044

PAPUA NEW GUINEA.

CIVIL JURISDICTION.
DC NO: 36 /2022.

IN THE MATTER BETWEEN:

ELTON GOWEP
Complainant.

AND:

MITIN SARIGARI.
Defendant.

Popondetta:	Michael W. Apie’e
2022: June 16th, July 12th.
CIVIL PROCEEDINGS. 
-Application for Eviction Orders against the Defendant from Traditional Lands by Complainant against Defendant.
- Claim of ‘Power of Attorney’ granted to the Complainant by Traditional Land Owner Late Holland Ogomei in a Statement Declared on the 16/06/17
-Issue of Traditional Land Transfer Agreement Arises as evidenced by Defendants filings.
Disputes Settlement Act.’ 

EVIDENCE-
Parties rely on filings and oral testimonies given by witnesses called. Complainant called one witness, Defendant gave Oral Testimony and also called two other witnesses

HELD:
i.	The Complainants Claim/Action is Refused in its entirety.

ii.	The Defendant is found to be Lawfully Justified in his Continued Occupation and Use and Enjoyment of the Property at Kakandetta village until and unless this Finding/Ruling/Order is Reversed, Varied or Vacated by a Court of Competent and Superior Jurisdiction.

iii.	No orders as to costs.

Cases Cited:
Gawi v. PNG Ready Mixed Concrete Pty Ltd [1984] PNGLR 72
Theodore Mondia v. John Kapo SC1442
Wenge v. Naru [No: 2] [2013] PGNC 3;0 N5123 (26th March 2013)

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

Representation:
Complainant Elton Gowep appears for himself.
Defendant Mitin Sarigari appears for himself.

JUDGMENT ON TRIAL.
Background.
1.	The Complainant Mr. Elton Gowep is from the East Sepik Province but Married to one Ms. Esmie Ogomei from Kakandetta Village ward 8 in the Popondetta Urban Local Level Government Council Area and he appears as Complainant in this matter on a Supposed Power of Attorney Granted him allegedly on 16/06/2017 by Late Holland Ogomei the Late Chief of Sesevopa Clan at Kakandetta village here in Popondetta, Northern Province.

2.	He seeks Eviction orders against the Defendant who has being living on a Portion of the Kakandetta village Lands on the outskirts of Popondetta Town since this Land was taken over by a World War Two (WW2) Veteran Japanese National long since deceased named Kokichi Nishimura in 1996.

3.	The Land in Question is roughly 70 to 100 meters adjacent to the road and about 50 to 60 meters wide and this land is situated opposite the Kak’s Corner Roadside Canteens and Tyre Service shops outside Popondettta town along the Popondetta to Huvivi Road.

4.	The Complainant seeks to have the Defendant evicted from the Land on which there are structures erected and also the Ashen remains of the said Late Kokichi Nishimura are interred/buried, on which the Defendant has continuously resided since 1996.

Complainants Witness.
5.	 The case commenced on the 26/05/22 and the Complainant called only one witness namely Clement Hans who is also from Angoram in the East Sepik Province and an Acquaintance and Fellow Worker of the Defendant under the said Kokichi Nishimura and his Evidence is briefly as follows;

i.	He was also there at the time of the Land Transfer Agreement and he took the Late Mr. Kokichi Nishimura to Late Holland Ogomei and they agreed to let him live on the Land.

ii.	After the late Mr. Nishimura died, he Clement Hans moved out of the Land and left the Land to Mitin Sarigari and the Land owner, Holland Ogomei.

iii.	Total of K2000.00, 1 pig and 2 x cartoons of beer was given to the Land owners.

iv.	The Land was let to the Late Nishimura to Live on and pursue his life work of recovering WW2 War Relics and remains of fallen Japanese Soldiers and Establish a Japanese Language School. 

6.	The complainant relies on the Purported Power of Attorney granted to him on the 16/06/2017 by the late Holland Ogomei to act on his behalf in relation to land Matters.

7.	He therefore brought this action against the Defendant to Seek his Eviction from the Land on the basis that there was no proper Land Transfer done and that the Defendant was thus illegally on the Land.

8.	Apart from Clement Hans, the Defendant called no other person especially Locals from Kakandetta village including especially his own brother In-Law Mr. Baldwin Ogomei who signed the Purported Land Transfer Agreement in 1996 between Late Holland Ogomei and Late Kokichi Nishimura, to verify his Claim of Power of Attorney and also that the ‘Purport Land Transfer to The Defendant and his Benefactor Late Kokichi Nishimura was invalid.’ 

9.	This Court Takes Judicial Notice that Baldwin Ogomei is still very much alive and this court was further reliably informed that this person Baldwin Ogomei was present all throughout the hearing but did not volunteer to take the witness stand to assist his brother in Law in this action.

Defendants Case.
10.	The Defendant Mitin Sarigari then on the 27/05/22 commenced his case and firstly called Mr. Winches Dama, a Local from Kakandetta and the Incorporated Land Croup (ILG) Chairman of the Kakandetta Incorporate Land Group, who testified that;

i.	The Late Holland Ogomei is his Maternal Uncle from the Sesevopa Clan of Kakandetta and he is the ILG Chairman of the Responsible ILG over the Land in question.

ii.	He was there in 1996 when the negotiations were entered into and the Land Transfer effected between Holland Ogomei and his son Baldwin Ogomei as Traditional Land Owners and Between Late Kokichi Nishimura and his worker and Benefactor and witness Mitin Sarigari.

iii.	He further said that as far as the Kakandetta Community was Concerned, Holland Ogomei had the authority to give away or Transfer this Land as Traditional Land Owner and so it was acknowledged by the Community that the land was therefore there and then Transferred to other persons.

iv.	He also noted that money and food and drinks were exchanged, formalizing this Land Transfer.

v.	On 04/06/1998, the Defendant produced a Statutory Declaration by the Late Nishimura appointing him (Defendant) as his Custodian /Beneficiary to this Land and Property at Kakandetta.

vi.	Later when the Late Kokichi Nishimura went back to Japan and died, he was cremated and his remains brought back to Popondetta by other Japanese People and interred or buried on this Land that he had Purchased and on Which he had authorized Defendant Mitin Sarigari to take over the said Land.

vii.	When this burial/funeral process was taking place the said Late Holland Ogomei and his family and clan as well as Baldwin Ogomei were present but no one objected to the burial of Nishimura’s remains on the said Land.

viii.	Therefore, as far as he (Winches Dama) was concerned this Land was Properly and Fully Transferred out and the Complainant cannot just reverse the Transactions that occurred before and reclaim the Land and seek to evict the Defendant.

11.	The Defendant next called Mr. George Ewago an acquaintance and fellow worker of the Defendant under the said Kokichi Nishimura, and his evidence is as follows that;

i.	The Kakandetta Land was purchased with K2,000.00, a pig and garden food and some cartons of beer and Agreement was signed in February 1996.

ii.	Old man Nishimura lived on the Land with Mitin Sarigari and when he was old, he shared his various properties between Clement Hans, Mitin Sarigari and myself (George Ewago) as follows;

a.	He gave his Front Load Lifter and Excavator to George Ewago.
b.	The Land at Huvivi to Clement Hans and, 
c.	The Land Kakandetta to Mitin Sarigari. 

iii.	The Land at Kakandetta was already sold by Holland Ogomei and his son Baldwin Ogomei and it was paid for by Late Kokichi Nishimura, and they all signed over it so there should be no more issues over this.

12.	The Defendant Mitin Sarigari himself gave Evidence next and summed up all his case in Defense as follows that;

i.	Late Kokichi Nishimura was a WW2 Veteran and he had come back to the Oro Province given the WW2 Activities in Oro to seek catalogue and repatriate Japanese War Relics and Remains.

ii.	Late Nishimura firstly settled at Ajamota, outside Popondetta but Later he negotiated and secured this Land at Kakandetta from the Sesevopa clan and Late Chief Holland Ogomei.

iii.	When they were set to take over and move onto the Land, a Transfer Process was initiated wherein the Land Owner Holland Ogomei and his Son Baldwin Ogomei as his witness signed whilst Nishimura signed and he (Defendant) signed as his witnesses.

iv.	Payments were made in cash (K2000.00) and kind (Pig and food and Cartons of beer) and such were accepted by the Land owners and the deal was finalized in 1996 before the Provincial Customary Lands Officer.

v.	In 1998, Nishimura put in a Statutory Declaration and more or less Willed or Appointed the Defendant as his ‘Custodian’ and or ‘Beneficiary’ to this Property at Kakandetta.

vi.	Later when Nishimura died in Japan, his body was cremated and his Ashen Remains brought back to Kakandetta to be buried at this Land and at the time the Complainant Elton Gowep was not there but Holland Ogomei and his Children Esmie Ogomei and Baldwin Ogomei as well as Sesevopa clans people and other Kakandetta Villagers witnessed this process of Ceremonial Burial of Nishimura’s ashen remains but none of them objected to such burial, further affirming the Transfer done in 1996.

vii.	The Defendant by virtue of the Land Transfer Agreement and also by virtue of the Will of the Late Purchaser Nishimura as validated by the Provincial Customary Lands Officers therefore claims a right to remain on this land. 
Observations /Assessments. 
13.	Having heard the evidence in this trial I make the following observations and assessments;
i.	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. 

ii.	DCJ Kapi in no uncertain terms Adjudges that Actions seeking redress under Section 6 of the Summary Ejectment Act only relates to Alienated Lands.

iii.	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.’

iv.	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.’

Complainants case:
v.	In their various Filings, the Complainant deposed into evidence a Document dated 16/06/17 written in Tok Pisin allegedly by Late Holland Ogomei which is claimed to render to the Complainant the Power of Attorney Claimed by the Complainant to bring this Action.  

vi.	However, this is an unverifiable claim as no other witness spoke in support of this Document to verify its Authenticity let alone even the Complainant when he chose not to give Oral testimony himself. He therefore could not and did not spoke further on the origins of this document of 16/06/17 to vouch for it before this court.

vii.	The Complainant called one Mr. Clement Hans from Angoram in East Sepik Province, and an acquaintance of the Defendant who merely reiterated the Land Transfer Process that took place in 1996 without testifying on anything of probative value to the Complainants quest to have the Defendant Evicted.

Defendants case:
viii.	The Defendant on the other hand filed and deposed into evidence various documents namely the Transfer Documents of 12/02/1996 and also the Statutory Declaration by Nishimura signed on 04/06/1998 in which he willed or appointed the Defendant as his Custodian/Heir or next of kin in respect of the Land in Question, and the properties on it.

Issues:
ix.	This Action was initiated to seek the Eviction of the Defendant from Land that he had being residing on since 1996 and which such an endeavor comes/arises issues such as 

a.	Equitable Interest owing to the length of occupation;

b.	Human rights issues on the devastation likely to be cause to lives and property.

c.	Regardless these rights can still become secondary to Legal Rights bestowed by Title to Land be it Legal under the Torrens system or Traditional under custom. Gawi v. PNG Ready mix.

Assessment:
x.	The Complainant seems to have come onto the Scene later than others as he is from the East Sepik Province and obviously married into the Ogomei family (Esmie Ogomei) after the Land Transfer had long taken Place in 1996.

xi.	The Only witness he could muster was another person from East Sepik Mr. Clement Hans to speak on Kakandetta Land issues whilst the Local Sesevopa Clan and Kakandetta villagers remain far from this case including especially Mr. Baldwin Ogomei, one of the signatories of the Land Transfer still living apart from the Defendant.

xii.	Even Mr. Roger Irurapa Senior, a Kakandetta Tribal Chief who was mentioned during questioning of the Defendant by the Complainant to have previously warned the Defendant to vacate the land in question was not called to verify why he told the Defendant to vacate the land if indeed he did Warn the Defendant as such.

xiii.	The Only Kakandetta person who did attend this case was the ILG Chairman for Kakandetta Mr. Winches Dama and he concluded in his Sworn Oral Testimony that as far as he was concerned the Land was Properly Transferred to the Late Nishimura and Mitin Sarigari and therefore the Defendant was Lawfully on the Land. 

xiv.	The Defendant is therefore residing on land that was ceded or released (Transferred) out from Seevopa clan Land Holdings (Payment made -Received and Accepted) between Late Nishimura and the Defendant and Late Holland Ogomei and Baldwin Ogomei on 12/02/1996.

xv.	Later on the 04/06/1998, Late Nishimura in his own peculiar way (Japanese script) more or less wrote out his Will and appointed the Defendant as his Custodian/Beneficiary in respect of this particular Land and properties on it.

14.	The Court Finds that;

i.	As per the Requirement to establish a “Right or Title” to land before seeking eviction of persons on Land as was mandated in Gawi v. PNG Ready mix case under Section 6 of the Summary Ejectment Act for Alienated Lands but more Specifically in this Instances as in the case of Theodore Mondia v. John Kapo SC 1442 for Traditional Land under Section 22 and Section 21 (4) of the District Court Act, the Complainants case is afflicted by the following factors;

a.	He has not established a Clear Right to seek the orders sought, as Apart from the Unverified Statement dated 16/06/17 supposedly giving him Power of Attorney to take this action, the fact remains that he is from the ESP and no other person from Kakandetta or Sesevopa Clan and his wife’s family especially the Signatory to land Transfer namely Baldwin Ogomei attended in court to verify and corroborate or substantiate the Complainants claim of right to take this action.

b.	The Court is mindful that with access to Typing Capabilities nowadays, it is easy for people to type up and present any manner of documentations in pursuit of any purpose or end they desire.

c.	Not to say that this courts thinks the Document relied on by the Complainant is an Un-Authentic Document but when Presenting Specific Documents in a Court of Law to seek a Specific Act/Reaction/Ruling on the Part of the Court, the one presenting and seeking to rely on such documents has the duty to prove that such Documents are Genuine through the Calling of witnesses or supporting Evidence for such documents 

Authenticity and Veracity.
d.	In the National Court case of Wenge v. Naru N5123 on 26/03/2013, Kirriwom J (Late) in his ruling in that Election Petition commenting on Un-Authentic Recently Fabricated Evidentiary Materials held that ‘Where Recent Fabrications are offered as evidence, the Court has to accept the other version of Facts Proposed’

e.	It is the ruling of this Court that without Verification and Authentication of the Document of 16/06/17, this court is not obligated to accept it on face value and so will not accept and should not accept it as it lacks Verifiability or Independent Corroboration of its Authenticity.

f.	Additionally, though the Land in issued is not Alienated it was however transfer out of his wife’s Sesevopa Clan Land Holdings and such Transferred was validated and documented by the Oro Provincial Customary Land Office on the 12/02/1996.  

g.	The Complainant has not convinced this Court of his right to take this action and also he had failed to establish a right sufficient to compel this court to seek to protect such rights by issuing relevant Orders.

h.	The Court IS NOT CONVINCED that the Complainant is Justified in seeking the Eviction of the Defendant from the Relevant Land Portion at Kakandetta village in Popondetta Opposite Kaks Kona along the Popondetta to Huvivi Highway.

i.	The Defendant on the other hand by sheer weight of the Evidence Adduced has established a right to be on the Land as emanating firstly from the Land Transfer of 12/02/1996, then subsequently his appointment as Custodian or Beneficiary to takeover this land by the Purchaser Late Nishimura in his Statutory Declaration of his Will on the 04/06/1998.

j.	The issued pertinent to this case are much deeper and can only be resolved if the manner of the Land Transfer Agreement are deliberated on and a finding made on the validity of otherwise of the Transfer of 12/02/1996 by an appropriate Tribunal.

k.	In the Interim the Defendants continued Occupation and Use and Enjoyment of this Land is in all the circumstances of the case, found to be justified according to Law and so is Affirmed by this Court.
15.	Accordingly, the Court having laid made out the foregoing Observations, makes the following Declarations pursuant to Section 22 of the District Courts Act;

i.	The Complainant Has Not Establish a Clear Title or Right to Claim over the said Portion of Land at Kakandetta for this court to act on to issue the Orders Sought.

ii.	Further that the Complainants Request cannot be entertained under Section 22 of the District Court Act as his claim of Traditional Title and Right to the said Land is very much in dispute pursuant to Section 21(4) (f) and as the Ruling in Mondia v. Kapo above.

iii.	Additionally, Section 22 is also not available to the Complainant in this instance as The Land in issue was Transferred out from his Wife’s Clans Traditional Land Holdings in 1996 as per the Land Transfer Agreement of 12/02/1996, therefore there is no more Traditional Title to ground his Eviction Claims on, even if he was properly sanctioned to act for the former Land Owners.

iv.	The Defendant has by weight of Evidence established and proven to this court that he is in occupation of the relevant portion of Land at Kakandetta by right conveyed by a Land Transfer done in 12/02/1996 and also by virtue of being ‘Favoured or Willed’ as the Custodian or Benefactor via a Statutory Declaration by the Land Purchaser Late Kokichi Nishimura on the 04/06/1998. 

v.	In this Instance the Defendants Rights to Occupy and live on and Enjoy the Land in Issue is far Superior to the No Longer Existent and Purported Traditional Land Title Claimed by the Defendant on behalf of his In-Laws

16.	Accordingly, the Court Orders as follows;
ORDERS.

i.	The Complainants Claim/Action is Refused in its entirety.

ii.	The Defendant is found to be Lawfully Justified in his Continued Occupation and Use and Enjoyment of the Property at Kakandetta village until and unless this Finding/Ruling/Order is Reversed, Varied or Vacated by a Court of Competent and Superior Jurisdiction.

iii.	No orders as to costs.
Complainant appears in Person.
Defendant appears in person.