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Arija v Ohiuruta [2007] PGLLC 2; DC665 (20 July 2007)

DC665

PAPUA NEW GUINEA
[IN THE LOCAL LAND COURT OF JUSTICE]

LLC 51 of 2006

BETWEEN

CECIL ARIJA
Complainant

AND

PROUTE OHIURUTA
Defendant

Popondetta: L. Asimba
2007: July 20

Land Dispute Settlement Act ch 45 – claim ownership – proceeding under s 39 (1) – barred statue limitation s 54 (1) – laches – res judicata – acquiescene.

Cases Cited
No Cases Cited.

Counsel
Cecil Arija, the Complainant in person
Proute Ohiuruta, the Defendant in person

20 July, 2007

L. J. Asimba : This is ownership dispute over the customary land known as HORADA/UGUMBA brought before the Court by the complainant against defendant and registered on 9 February 2004.

2. The case was before Mr R Cherake who presided over, during the proceedings the defendant was convicted and sent to jail for six months for contempt of Court. The case had been delayed and transferred to me on 16 January 2007 with mediation records and other documents.

3. While during preliminary discussion both parties indicated to produce, previous documents, affidavit statements involving the same portions of HORANDA/UGUMBA land during 1980 and 1984.

4. ISSUES: The Court has to bear in mind the issue is whether or not the parties in present litigation be the same as those in the previous litigation and also subject matter must be the same involved in the previous cases.

5. The VOIR AIRE trial case proceeding conducted to allow both parties to present documents, affidavit statements and additional written submissions.

6. The complainant submitted record of mediation and record of proceedings (Local Land Court) to dispute over the customary land known as HORADA/ONGAUHUTE. The dispute was between complainant’s father namely PAUL SERERE of SIRAVAPA Clan and BRIAN ARUHA of PANGARIPA Clan. The agreement was reached during the mediation, referred to Local Land Court, approved and certified by the Court on the 14 November 1980.

7. The defendant has indicated and confirmed that there is no dispute over that portion of the land it was still stands since 14 November 1980.

8. Furthermore the complainant submitted additional written submission and his father’s statutory declaration statement of some portions of land, which are not included to this dispute.

9. The defendant also filed his affidavit statements indicating to the Court that his settlement is well away from the HORADA land. That is family home where he resides well over two decades, lot of improvements, village oil palm block and other concentrated activities.

10. The previous dispute between the complainant’s father namely PAUL SERERE and himself over the ownership claim of UGUMBA land now is the same subject matter brought by his son.

11. The case was presided over by Mr M Haembo, Local Land Court Magistrate conducted hearing and handed down decision in his favour and awarded the ownership to him of PANGARIP clan on 13 May 1984.

12. It is unfortunately the Court records were destroyed during 2003 with Magistrates office. He is prepared to call Mr M Haembo to give oral evidence before the Court to prove it.

13. The complainant objected oral evidence he wants documentary evidence of the decision to prove before the Court as to the case and that subject matter which was dealt with.

14. The Court made ruling for defendant advised him to arrange with Mr M Haembo to appear before the Court and give oral evidence. The case was adjourned and Mr M Haembo to be advised the next date of hearing.

15. Mr M. Haembo verbally summoned and appeared before the Court, affirmed and testified oral evidence. The same dispute between the Complainant’s father PAUL SERERE and the defendant over the same ownership claim of UGUMBA land.

16. When he had been Local Land Court Magistrate, presided over the case and conducted hearing. The decision was made for the defendant PROUTE OHIURUTA OF Pangaripa clan and awarded ownership of UGUMBA land to him on the 13 May 1984.

17. It is unfortunately the Court records cannot be traced back due to fire which destroyed Magistrates office and all Court records during 2003.

18. The both parties and members of Court panel had opportunity, cross examined and Mr M Haembo responded them.

19. The case was further adjourned for Court to conduct area inspection and review of the boundary mark of the previous case and confirm to the present concentration of activities after the decision over the two decades or more.

20. The Court team had visited the area, met both parties, observed the defendant’s family village settlement, improvements VOP block and other concentrated activities in the disputed UGUMBA area. Furthermore coconut palms, identified planted as boundary mark between HORANDA and UGUMBA as to the previous case of the same dispute. It appears the defendant and his family members have immediate possession of UGUMBA land, occupied over the two decades and over, while no activities on the portion of Horada both parties agreed on the previous case, its agreement and certification on the 14 November 1980.

21. Having received appropriate mediation records, documents as to previous case over the ownership of HORADA/ONGAUHUTE, additional written statements. Both parties all
agreed the agreement was reached during mediation referred to Local Land Court which approved and certified as Court Order on the 14 November 1980.

22. Now present dispute over the ownership of HORADA/UGUMBA land. The defendant submitted that this same dispute was brought by the complainant’s father against him. He produce affidavit statement, unfortunately statement Court records were destroyed by fire during 2003 with Magistrates office. His submission was supported by the presiding magistrate Mr M Haembo who appeared before the Court, testified oral evidence, cross examined by both parties oral and the Court.

23. The complainant insisted that both defendant and Mr M Haembo had to produce documents of the previous case and its decision. He could not believe them so the substantive matter should be proceeded with.

24. However this dispute is brought up again after 23 years, the complainant’s father is still alive and family members were reluctant to participate and support to his claim even though the adequate adjournments were granted several times.

25. Therefore the Court conducted VOIR DIRE trial to determine the issue is whether or not the parties or agents in the present litigation be the same as those in the previous litigation and dispute be the same involved in the previous case.

26. Having considered everything now before the Court is satisfied on the balance of probabilities that the parties or agents are the same to the litigation, same dispute involved in the previous case.

27. The Court applies the doctrine of laches. This is a doctrine of equity designed to bring all litigation to an end once and for all. It preludes the reopening of a matter considered by a Court of competent jurisdiction. There are two types.

28. RES JUDICATA

The latin maxim “Interest reipublicaut sit finis litium” sums up the doctrine cogently. The requirements for the application of the doctrine are:

1. The parties in the present litigation must be the same or their agents as those in the previous litigation.

2. The subject matter must be the same as the one involved in the previous case.

3. There must be a decision (final) of a Court of competent jurisdiction.

29. Therefore the principles is discussed in ROBINSON v. ROBINSON (1) the Court held (per Henn Collins) that the doctrine operates in two years;

30. “One is when a judgment has been pronounced between the parties and findings of fact are involved as basis for that judgment. All the parties affected by judgment are then precluded from disputing those facts, as facts in any subsequent litigation between them. The other aspects of the term arises where a party seeks to set up facts which, if they had been set up in the first suit, would or might have affected the decision. That is not strictly raising any issue which has already been adjudicated, but it is convenient to use the phrase res judicata as relating to that position.”

31. ACQUIESCENCE.

Where a person with an interest in land know or his reason to know that a stranger is doing something adverse to that interest, and nevertheless sits idly by, he or she will be estopped by equity from asserting that interest later.

In WYTCHERILEY V. ANDRENS 2 Lord Penzance observed: “If a person knowing what was passing, was content to stand by and see his battle fought by some one else in the same interest, he would be bound by the result and not be allowed to reopen the case. That principal is founded on justice and common sense.”

32. The provision of Section 54, Appeal against decision of Local Land Court is available but not complied or acted upon when decision was made to the previous litigation and on the same subject matter.

33. The Statue barred from Appeal against the decision of Local Land Court as stipulate –

(i) Subject to this section, a person aggrieved by a decision of Local Land Court may appeal within 3 months after the date of the decision to the Provincial Lance Court.
(ii) Where the Provincial Land Court is opinion that it is desirable in the interest of justice to do so it may whether or not the time fixed for appeal under subsection (1) has expired, extend the time fixed for appeal, but leave shall not be granted, after end of the period of 12 months after date of decision appeal against.

34. Having received the whole evidence of appropriate previous documents, affidavit statements, additional written submission, mediation reports and oral evidence of the presiding Magistrate, Mr M Haembo. The Court visit to dispute area of UGUMBA land observed and witnessed the previous boundary mark since 13 May 1984.

35. That Court unanimously determine and declare that the parties or agents in the present litigation must be the same as those in the previous litigation. And also appeared the subject matter must be the same as the one involved in the previous case.

36. There was a decision final of the Local Land Court of competent jurisdiction which was not appealed as stipulated under s 54 of the Land Disputed Settlement Act Ch No. 45.

37. Therefore the Court has no need to pursue with substantive dispute of ownership of HORAD/UGUMBA land as it is bound by the previous decisions on 14 November 1980 and 13 May 1984.

Complainant: In Person
Defendant: In Person