N7673

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 120 & 121 OF 2018

THE STATE

V

IKI DOWAN & PAUL EMBA

Waigani: Miviri J
2019: 5th, 6th, 7th February

 CRIMINAL LAW – Practice and Procedure – s515conspiracy to commit crime –Trial – Purported Land owners – dealing with land without authority – K4 million – whether dishonest & with intent to defraud – independent government verification process followed – payment stopped – complainant claiming to be owner of land.

CRIMINAL LAW – Practice and Procedure – no case submission – prima facie no real weighing – question of law not fact – prima facie no evidence of title in law to land – no criminal intent to defraud – property also of accused – power of attorney to act – no conspiracy prima facie – no intent to commit a crime – no case to answer – acquitted &discharged – bail refunded x2.

Facts
One accused instructed the other to do paper work for compensation for customary land he was owner of that land upon which a Government Primary School was built. They lodged a claim verified valued by various responsible relating government departments. And were ready to collect payment when stopped by the complainant claiming ownership over it. He initiated police charged them with conspiracy to commit a crime.

Held
Prima facie
No conspiracy
No intent to commit a crime. 
Lawful process followed.
No case to answer

Cases Cited:
Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287; [1983] PNGLR 287 
State v. Paul Kundi Rape [1976] PNGLR 96 
Counsel:

H. Roalokona, for the State
N. Hukula, for the Defence
	
RULING ON NO CASE
08th February, 2019
1.	MIVIRI J: 	This is the ruling on a No Case Submission by defence in respect of the accused jointly and severely charged with conspiring to commit a crime pursuant to section 515 of the Criminal Code. 

Charge

2.	That section reads; “A person who conspires with another to commit a crime or to do any act in any part of the world that:

(a) If done in Papua New Guinea would be a crime; and
(b) is an offence under the laws in force in the place where it is proposed to be done is guilty of a crime.
Penalty: If no other penalty is provided- (a) imprisonment for a term no exceeding seven years; or (b) if the maximum penalty for the crime in question does not exceed imprisonment for a term of seven years-not exceeding that penalty.

3.	Both Iki Dowan of Maldaka village and Paul Emba of Yombikul village Tambul Western Highlands Province are charged that between the 30th day of September, 2013 and the 2nd September, 2014 at Mt Hagen and Port Moresby in Papua New Guinea they conspired with each other to defraud the State of Papua New Guinea by stating that they were genuine land owners of Yombikul Land Portion 1128C and 1130C Mt Hagen, Ramu, Western Highlands Province in order to receive the sum of four Million Kina (K4,000,000.00).

Brief Facts

4.	The accused Iki Dowan instructed Paul Emba to do all necessary paper work to get the compensation for Yombikul Land where the school was built and serving. Paul Emba registered a land owner association, Yombikul Development Link Incorporation with the Investment Promotion Authority. It was under his own name and there were no others named as land owners. He did so without the knowledge and approval of the legitimate land owners. The Department of Lands processed the claim of K 4, 000,000.00 to be paid to Yombikul Development Link Incorporation but stopped when one Mack Kepo made a complaint. The Legal officer of the lands Department did an investigation identifying that payment was to be made to an Incorporated Association not an Incorporated Land Group. It was alleged that the accused conspired with each other agreeing to submitting the claim without the knowledge and approval of the genuine land owners. And in so doing intended to defraud the State and to obtain K 4, 000,000.00.

Evidence

5.	Both denied the allegation. The State called and tendered the following evidence through three witnesses on oath. Firstly the evidence of Simon Hahory Senior Legal Officer Litigation with the Department of Lands who gave evidence that he was Acting Director Policy and Legal Services. It was his duty to provide advice to the Department and to attend court to give evidence and affidavits to assist the court. He stated that he was drawn to the dispute when he was alerted of a scuffle outside that office by security men. Then followed by one Mack Kepo who made representation to him by a letter alleging it was a fraudulent claim. He advised him to report the matter to the police. 

6.	As part of his evidence he identified Exhibit S1 brief to the Secretary for lands written by then Director Simon Malu. He confirmed it as official business record of the department of lands. In essence it was actually stating facts that the then director Simon Malu provided clear for the FF3 to be raised to make the payment. All documents were legitimately raised and were legal. 

7.	Perusal of Exhibit S1 done by Samson Malu Director Acquisition it comprised almost over 30 pages including a Certificate of Alienability dated the 14th October, 2014 issued under hand of Secretary for Lands Munare Uyassi. Importantly this certified that there was no dispute as to the ownership. The Customary owners on the land were willing to sell the land. The sale was not detrimental to the best interests of the customary owners now or in the future. The Secretary issued the certificate after Director Customary Lands acquisition Simon Malu made a submission dated the 14th January, 2014 attaching a copy of the land Investigation Report with the survey plan. And there was a valuation plan under hand of the valuer General dated the 27th January, 2014 valuing Yombikul at K4, 370,000.00. And then there was a letter subjected Land investigation report for the acquisition of Yombikul Primary School Land dated the 24th October, 2013 from the office of the Western Highlands Provincial Administration District Office Tambul under hand of Douglas Lingawa District Administrator instructing for proper valuation and acquisition of the subject land for the Yombikul Primary School. And then a letter dated the 05th November 2013 from the Division of Education Tambul Nebilyer District Education Service addressed to the director Customary Land Acquisition Division by Joseph Mangbil District Education Advisor situation report recommending payment of compensation for the school land because it was well established. Then the land Investigation Report itself by department of Lands and Physical Planning, which apart from a description of the land attached a schedule of owners and status and rights to the land. Both accused were set as owners. There were improvements on the land with the Agency agreement nominating the two accused and three others. Including a declaration of custom in relation to land tenure dated the 24th October, 2013. And this document was executed by one Paul Akel the District Officer Lands. There was a certification of agreement to sell certifying accused both as owners who were selling the land Yombikul. Paul Akel district Lands officer also certified that there was no dispute in respect of the boundaries and certified it as correct. In support of this there was recommendation for alienability issued in Mt Hagen dated the 24th October 2013 by Joseph Neng Acting Provincial Administrator. Which was coupled with Valuer General's measurements and then a deed of sale made by Paul Akel executed by the accused and one other Philip Emba. To complete off there were four photographs attached of the land school and surroundings. This was comprehensive and detailed work by departments of Government both Provincial Local Level and national in the matter all located individually at their respective locations and stations of duty to government. 

8.	Exhibit S2 (a) Certificate of Incorporation of an association Yombikul Development Link Incorporated. This document had the name of the applicant as Paul J Emba of Maltaka, Tambul, Mt Hagen Western Highlands Province. He has supported it coupled with a statutory declaration, copy of a publication, rules, Trust and Deed. A document not attained in isolation but supported to attain as evidenced here.

9.	Exhibit S2 (b) is the registration of the Yombikul Development Link Inc extract maintained by the Investment Promotion Authority. It sets out the person submitting the notice as Paul J Emba with his address details also set out.

10.	Exhibit S3 original Record of Interview of Paul Emba dated the 16th June, 2015 wherein at question 23 he says persons named Kepo Kawaine, Pora Bai, Sakias Opine, Win Opine and Iki Dowan have land there within the vicinity of the School and also outside its boundary. That he was given power of attorney by Iki Dowan to lodge the claim for compensation of K4million. And he registered the association authorized by Iki Dowan for the Tekep tribe and current traditional land owners where Yombikul Primary School is. The association members are the Tekep clan. He agrees that he is not the traditional land owner but was given power of attorney by Iki Dowan to act on behalf. He talked to Mack Kepo in the matter who assisted him with K500. At Question 45 he answers, “The association belongs to the Tekep tribe so the money belongs to Tekep tribe so which principle land owner get how much is the prerogative of all the traditional landowners. It is not me who will decide who gets how much.” He confirms that the lands department prepared all the documents consistent with Simon Hahory. By this and coupled with the other work by the Government Departments there was neither conspiracy nor intent to commit a criminal offence.

11.	Exhibit S4 (a) is original pidgin record of interview of Iki Dowan dated the 19th June 2015 wherein he stated that he was the land owner of Yombikul land with other brothers and their people. And confirms telling Paul Emba to prepare all paper work to get compensation for the land. He details where his land is and also where one Win’s is and then Sakias and also the complainant Mack Kepo. 

12.	Mack Kepo gave sworn evidence that he is the land owner of the Yombikul and not the accused. Iki Dowan is not an owner but a user of the land. Paul Emba is from Tekep who are not the land owners. But they have intermarriages and have a good relationship between his clan Yanaka and Tekep.

13.	The last witness was Detective Senior Constable Philip Otto arresting officer in the matter through him the records of interviews of both accused were tendered into evidence and marked as exhibits set out above. His evidence did not establish prima facie the intent to defraud by the accused. Intent being personal there was nothing overt in the record of interview to this end in both instances.

Tale of all evidence primae facie

14.	Prima Facie all these evidence led by the State established that a legitimate and lawful process was followed to acquire the land Yombikul from the local owners. That Provincial, local level and National departments of Government were independently involved in work to ensure that Yombikul was properly prepared before it was alienated and sold off. These could not be the actions nor could they be accomplices in the offence. There was no evidence of conspiracy with these various departments by the accused with them. Paul Emba was instructed to do so by Iki Dowan a land owner from that area by a power of attorney part of the exhibit tendered prepared by these government Departments. As he explained in his record of interview exhibit S4 (a) Question 24 in pidgin, "Mi no skul man olsem na mi tokim em long mekim pepa wok", interpreted, "I am not an educated man therefore I told him to do the paper works”. And it cannot be with criminal intent if various departments of government are asked to provide their input into that matter whose evidence individually are set out above. The intent of the accused is obviously not criminal verified by the independent government officers who have their respective inputs by the documents described in bulk as Exhibit S1 for the State. 

15.	The complaint by Mack Kepo over incorporation of an association according to the Legal officer at Lands and the Police Informant preparation is not by a lawyer but a layman accused Paul Emba. Could he have been corrected by the Legal officer Simon Hahory to begin and register an Integrated land Group and not an incorporated association. It would have simply cured the whole works in the matter and be not a matter in court now criminally against. It can still be done now to cure by that simple fact of registering an integrated local land group and simply paying that money to that group for all.

16.	There is prima facie no evidence of conspiracy to commit a crime. There is no intent to commit a crime. The title to the land is prima facie not set out that it is of the complainant and not the accused. There can be no intent to defraud where title is not settled in law prima facie at the close of the State case. What property in law can the accused be accused of conspiring to steal when the title to it here Yombikul is not settled prima facie as being of the complainant. Prima facie the word of the complainant is self serving it will not sway that he is the title holder in custom and therefore in law. That must be settled prima facie by he who asserts before there is call to answer the case a question of law not fact. By discretion and law the court must be swayed to call the accused to answer.

No case submission

17.	In this regard defence invoked and made a no case submission relying on State v Paul Kundi Rape [1976] PNGLR 96 and also Pep; Re Reservation of Points of Law under section 21 Supreme Courts Act (Ch.37), The State v [1983] PNGLR 287 (14 September 1983) contending that the discretion to stop the case and also in law. Arguing prima facie there is no conspiracy by the accused and no intent to commit a crime. That the elements of the charges have not been established prima facie by the evidence at the closure of the Prosecution case. 

18.	State counsel has invited that there is no real weighing it is a question of law that both accused can be called to answer the charge. It is the allegation of the State that the Accused intended to fraudulently appropriate the K4 million from the subject land but were stopped by the principle complainant Mack Kepo who has given evidence. It is his evidence that he conceded Iki Dowan did use a piece of that land and also lived there. He qualified and said he was a user rather than an owner. Further that Tekip was one of the clan there with his Yanaka clan who were owners customarily. And both accused had conspired to defraud and to get the compensation from the land not due in law to them.

19.	No further evidence was led by the State to verify and substantiate the assertions made by Mack Kepo that indeed he alone was the customary owner of the subject land Yombikul. State reasoned through the evidence of Philip Otto the Police Investigator that it could not fly the other witnesses across to cover because there were no funds to effect. It applied for adjournment which was refused because the matter was a special fixture set out from the previous year 2018. More than ample opportunity was accorded to prepare and to bring witnesses in the matter. Justice did not demand further adjournment given.

20.	In the finality prima facie Iki Dowan and Paul Emba have no case to answer that they between the 30th day of September, 2013 and the 2nd September, 2014 at Mt Hagen and Port Moresby in Papua New Guinea conspired with each other to defraud the State of Papua New Guinea by stating that they were genuine land owners of Yombikul land portion 1128C and 1130C Mt Hagen, Ramu, Western Highlands Province in order to receive the sum of four Million Kina (K4, 000,000.00). Their application is granted. 

21.	The Verdict is not Guilty of Conspiracy to commit a crime under Section 515 of the Criminal Code. 

22.	Both accused are acquitted and discharged. 

23.	Their Bail Moneys are refunded forthwith in each case.

Orders Accordingly,
__________________________________________________________
Public Prosecutor:  Lawyers for the State
Public Solicitor    : Lawyers for Defence