Koitaki Farms Limited v Kemoko Kenge and Other Squatters at Itikinumu (2001) N2143

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 09 November 2001
• Court: National Court
• Citation: (2001) N2143
• Year: 2001
• Judgement Number: N2143

Full Title: Koitaki Farms Limited v Kemoko Kenge and Other Squatters at Itikinumu (2001) N2143

National Court: Kandakasi J

Judgment Delivered: 9 November 2001

N2143

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO: 40 of 2000

BETWEEN:

KOITAKI FARMS LIMITED

Plaintiff

AND:

KEMOKO KENGE & OTHER

SQUATTERS AT ITIKINUMU

Defendants

WAIGANI: KANDAKASI J

2001: 9th July

PRACTICE & PROCEDURE — Mode of commencement of proceedings — Originating summons appropriate where facts are not seriously in issue — National Court Rules Order 4 Rule 3 & Order 16 Rule 3.

PRACTICE & PROCEDURE — Res judicata — Orders by District and National Courts effectively deciding issues raised in subsequent proceedings — Failure to comply with previous orders while another subject of appeal amount to contempt (possible) and abuse of process.

EVIDENCE — Evidence of previous orders and other documents filed in Court — Copies with Court seal on — No contest on the existence of such — Sufficient prove of — Evidence Act s.44.

LAND LAW — Former employees of previous owners of land continuing to occupy with new owners consent — Not illegal squatters but tenants or licencees at will of landlord — Rights of tenant at will of landlord limited to will of the landlord — Tenants or licencees at will entitled only to reasonable notice to vacate.

Cases Cited

Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors (unreported judgement 25/5/01) N2096 at page 8.

The Administration of the Territory of Papua and New Guinea -v- Doriga Guba [1973] PNGLR 603 at page 696

AGC (Pacific) Limited -v- Sir Albert Kipalan and Ors (24/02/00) N1944.

Tulom Abai and 765 others -v- The State (20/12/95) N1402.

Mesulam Tomalana -v- Bragus of PNG [1991] PNGLR 65 at p. 71.

PNG Ready Mixed Concrete Pty Ltd v. The Independent Sate of Papua New Guinea [1981] PNGLR 396.

Jivetuo v. The Independent State of Papua New Guinea [1984] PNGLR 174.

Bai v. Morobe Provincial Government [1992] PNGLR 150.

Counsels:

S. Ketan for the Plaintiff

D. Keta for the Defendants

9th November 2001

KANDAKASI J: On the 21st of January 2001, the respondents buried one of their dead relatives a Mr. Ani ("the deceased"), on land owned by the plaintiff at Sogeri described as Portion 200 Milinch Bulidobu, Fourmil Moresby, Central Province, commonly referred to as, "Itikinumu Plantation" ("plantation"). That was without the consent of the plaintiff. The plaintiff asked the respondents to exhume and remove the dead man's body but they refused. That resulted in the issue of these proceedings seeking orders that the respondent exhumes the deceased's body and removed from the plantation. It also seeks the following declaratory orders that:

1. The plantation is owned by the plaintiff, Koitaki Farms Limited;

2. The defendants and anyone else living on the premises without the plaintiff's expressed consent is an illegal squatter;

3. The defendants and the other Southern Highlanders living on the plantation are squatters and they do not have any property right in the plantation.

The plaintiff abandoned the claim for an order that the deceased body be exhumed and removed in exchange for the defendants agreeing not to bury anymore deaths. So it is no longer an issue between the parties. Similarly there is no issue on the ownership of the plantation.

The defendants do not dispute that the plaintiff is the legal owner of the land but they claim that they have been in continuos occupation of the land for over 25 years. That has been with the consent and knowledge of the plaintiff and its previous owners starting with the British New Guinea Development Corporation. They also claim that the matter has already been determined by two previous District and one National Court judgement and orders, with the National Court judgement being the subject of a pending appeal number SCA 90 of 1999. Given these, they argue that this proceedings amount to an abuse of process if not res judicata. Hence, they argue that the orders and declarations the plaintiff seeks should not be granted. Further, they argue that the plaintiff should have proceeded by way of judicial review under Order 16 of the National Court Rules ("Rules") and not by an Originating Summons.

What is in issue before me are the following:

1. Has the plaintiff used the correct mode of proceedings?

2. Are these proceedings an abuse of process by reason of:

(a) res judicata; and

(b) the issues raised are already before the Supreme Court with the effect that this Court is without jurisdiction?

3. Are the defendants illegal squatters on the plantation?

The Evidence

This was a trial by affidavit without any cross-examination of witness. The plaintiff's evidence comprises of an affidavit each by Jerry Vavasour, sworn 31st January 2000 (Exhibit P1), Awea Maeana, sworn 15th February 2000 (Exhibit P2), Senior Inspector Messo Awe, sworn 15th February 2000 (Exhibit P3) and Simon Ketan, sworn 11th July 2000 (Exhibit P4).

Mr. Vavasour gives evidence as to the ownership of the plantation by the plaintiff and that the defendants are squatters. Mr. Maeana gives evidence as to the burial of the deceased. Inspector Messor gives evidence on the burial. Mr. Ketan's evidence is twofold. First, it is a chronology of events relating to the court proceedings between 10th April 2000 and 11th July 2000 in particular as to the discussions between Counsel and between Counsel and the Court in an endeavour to resolve the matter. Secondly, Mr. Ketan annexes a copy of a published decision of Woods J (as he then was) in WS 1259 of 1997. That was between the plaintiff and Hebale Parayea and Ors, in which the plaintiff was sued for damages for destruction to trees and food gardens of the Defendants and the Court dismissed the claim. The Court found that plaintiff (now Defendants) were licensees or permissive occupants and amounted to a tenancy at will in law and could therefore occupy the land only at the mercy of the owner.

The defendants' evidence comprises an affidavit each from Kemoko Kenge, sworn 4th February 2000 (Exhibit D1), Toko Pimbi, sworn 25th February 2000 (Exhibit D2), Magaru Ambulu, sworn 25th February 2000 (Exhibit D3) and Ori Hou Kauvu, sworn 5th April 2000 (Exhibit D4).

Mr Kenge denies any personal involvement in the illegal burial. Mr. Pimbi says the plaintiff and its predecessors (without specifying them) never took any issue on the burial of the defendants' deaths during the period of their occupation of the plantation. He does acknowledge by inference that the plantation is owned by the plaintiff. Mr. Ambulu's evidence is similar to Mr Pimbi's evidence except that he expressly states that the plaintiff owns the plantation. Finally, Mr Kauvu in his evidence gives an historical account of how the defendants got onto the plantation and the developments to the present day including the moves of the plaintiff seeking to get the defendants evicted. He also confirms that the plaintiff is the owner of the plantation.

From these evidence, the facts are straightforward. The defendants and their parents were engaged as contract labourers to cut rubber on the plantation. That dates back to about 1951 during the colonial administration. Of course, their older ones died and their children took over as time went by. They were accommodated on the plantation in houses owned by the previous owners of the plantation, predecessors of the plaintiff. There is no dispute that the defendants or their parents were permitted to use part of the plantation to make gardens to supplement their incomes and even bury their dead. Ori Hou Kauvu, a witness for the defendants says in his affidavit sworn on the 5th of April 2000 that, has far as he knows, there has been 9 burials of the defendants people on the plantation without any objection or protest from the plaintiff and its predecessors.

In 1973 a mass termination of labourers was carried out. Most of them were repatriated to their home province in the Southern Highlands Province. Some of the labourers were however retained. The defendants say they are part of those that were retained and they have continued to so occupy and use the plantation until its ownership changed to the plaintiff. The new...