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Orosambo v Bangkok [2021] PGLLC 4; DC7062 (23 September 2021)

DC7062

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS LOCAL LAND COURT JURISDICTION]
LLC NO: 02 /2020.

In the matter of a Customary Land Dispute over Ownership of the Hegata Land at the Edge of Popondetta Town in Ijivitari District, Northern Province.

IN THE MATTER BETWEEN:

PAULUS GIL OROSAMBO
Complainant.

AND:

1. JOHN BANGKOK
2. GEORGE IEWAGO

Defendants.

Popondetta: Michael W. Apie’e Chairman
Ezekiel Haera-Mediator
John Haenare-Mediator

2021: March 10^th, May 07^th, 24^th July 06^th, 20^th, 22^nd, September 02^nd, 23^rd.

Real Property- Land Ownership Dispute following on from Transferred Traditional Lands still Un-Alienated. Whether Second Buyer acquires Traditional title with Purchase.

Cases Cited:
Re James Allan Sannga, Deceased; Timereke v. Ferrie and Johns [1983] PNGLR 143

References:
Land Disputes Settlement Act (LDSA)
Wills Probate and Administration Act.

Representation;
Mr. Paulus Gil Orosambo for himself
Mr. George Iewago for John Bangkok and also for himself.

JUDGMENT.

1. Decision of the Local Land Court in Respect of the Land Dispute between the Parties over the concerned Portion of the Hegata Lands.
   
2. The Disputed Land is located at ‘Ajimota to Resurrection Junctions at Popondetta town in the Northern Province and is located wholly within Paratapa Clan Land boundaries.
   
3. The Complainant Paulus Gil Orosambo is the son of one Gil Orosambo (deceased) who during his life had maintained a cordial relationship with certain named elders of the Paratapa Clan on the outskirts of Popondetta Town, therefore through that relationship managed to acquire and have the concerned portion of the Hegata Traditional Lands transferred to himself.
   
4. It is not revealed, and so it is assumed, that the Late Gil Orosambo never sought to alienate and convert the said Hegata lands into freehold titled property so for all intents and purposes this is still Traditional Land.
   
5. The Complainant claims lineage and decent from the Late Gil Orosambo, and George Iewago is the erstwhile partner of John Bangkok who appears singly, since John Bangkok is no longer resident in Popondetta, to defend this claim of ownership over Traditional Lands.
   
6. Besides, John Bangkok being a foreigner of South East Asian Origin would not have been allowed to lawfully participate in a Traditional Land Dispute before the Local Land Court in any case.
   
7. This matter was referred on the Local Land Court after failure of Land Mediation(s) between the Parties on the 27/11/2019 and it ultimately came before the Local Land Court on the 10/03/21, with myself as Chairman and Messrs. Ezekiel Haera and John Haenare, as Land Mediators.
   
8. We are satisfied that we have the jurisdiction under section 26 of the Land Dispute Settlement Act (LDSA) to hear and determine the issue of ownership over the concerned portion of Hegata Lands between the Parties.
   

Complainants case.

9. The Complainant gave oral testimony when hearing commenced on the 10/03/21, and also called one Dunstan Kimana who titled himself as the Chairman of Isuga Poimo Hegata Land Owners Association of Popondetta.
   
10. The Essence of their Individual evidences are as follows;
    

Paulus Gil Orosambo.

1. His late father, Godfried Gil Orosambo who was a Lae Based Businessman in the Morobe Province, had a cordial relationship with the Leaders and Elders of the Paratapa Clan of Popondetta.
   
2. He wanted to have land for his children to settle on in Popondetta and so intimated to his Paratapa Clan friends and especially one Alkin Bahera.
   
3. Alkin Bahera then agreed and had this portion of Traditional Land transferred to the Late Gil Orosambo for a price in 1989.
   
4. Because this Land became available the Complainants father and his brothers including one Late Jackson Baude Orosambo use the Land to base their Business Operations off from.
   
5. When their Business Activities in the Northern Province faced a down turn, Gil Orosambo left and went back to Lae, whilst his other brothers remained on the Land.
   
6. The Understanding was that the Land was to remain as a Family asset for Gil Orosambos family, however Jackson Orosambo went against this understanding and purported to sell off this land to other persons including the Defendants in this case.
   
7. After the Actual purchaser John Bangkok left and went back to Lae, George Iewao was left behind on the Land and he has possessed it till now.
   
8. The Complainant being the Son of the said Gil Orosambo is aggrieved and sought to have the Land ordered to be returned to him as Jackson Orosambo’s descendant and heir as the Land was and is still Traditional Paratapa Clan Land sold and transferred to his father and no one else for that matter by the Paratapa Clan.
   

Dunstan Kimana; Chairman Hegata Isuga Poimo Land Owners Association.

1. Appeared in his capacity as Chairman of the Hegata Isuga Poimo Land Owners Association.
   
2. He testified that the Land was purchased as customary Land by Godfried Gil Orosambo and none other.
   
3. He said that Godfried Gil Orosambo first came to his father and was referred to Alkin Bahera and he talked to Alkin Bahera and the said Alkin Bahera and with the assistance of one Kipling Evata, (Lands Officer at the time) Gil Orosambo purchased the Land from Alkin Bahera.
   
4. Later Gil Orosambo and his brothers moved in their Equipment and use the Land as a staging point for their business and it was during this time that Gil Orosambo completed payment for the Land.
   
5. Sometime later, when the Orosambo business activities with the Northern Provincial Government ceased, Gil Orosambo left for Lae while his brothers remained on the Land.
   
6. Whilst he is away in Lae he died and how his brothers got John Bangkok and his Associates onto the Land is unknown to this witness, but he said they were cutting and stockpiling wood in that land.
   
7. The Land was sold and paid for by Gil Orosambo himself personally, and his brothers have no part in this.
   
8. How this Land passed to George Ewago and John Bangkok is unknown to us and we as Land owners want it back as the Land is Un-Alienated and still Customary Land.
   
9. He further said ‘If the Land is awarded to John Bangkok and George Ewago we as Land owners will seek to repossess it as our traditional Land as no foreigner can hold customary Land, but if it goes to Gil Orosambo or his son Paulus Gil Orosambo, we will accept that decision as our elders sold and traditionally transferred this land to Godfried Gil Orosambo before.’
   

11. The Defense case was brief and George Ewago gave his Oral on the 24^th of May 2021 which was further stood over to 01/06/21 for his affidavit, then on the 06/07/21 he also called his witness Mr. Albert Homape. Their evidences are as follows;

George Ewago (Defendant)

1. Jackson Baude Orosambo approached him in 2005 and asked him to buy the Land off him.
   
2. He was at the time involved with John Bangkok in buying and selling Exotic Timber so they decided to buy the Land.
   
3. They purchased the Land and moved onto it.
   
4. After their timber operations ceased, John Bangkok Left for Lae and left George Ewago with the Yard.
   
5. They paid K40,000.00 for the Land.
   

Albert Homape. Security Firm Operator.

1. He was engaged as security Operator for George Ewago and his Business partner John Bangkok and he recall doing Escort Duties at various time in 2005 for them.
   
2. He recalled that at various times he escorted George Ewago to the Bank to take out money and return to their base at the Disputed land to pay off Jackson Baude Orosambo for the Land.
   
3. He recalls escorting George Ewago one time to take out K15,000.00, then K5000.00 another time totaling K20,000.00
   
4. The essence of his evidence is witnessing the payment of K20,000.00 to Jackson Baude Orosambo supposedly for the Disputed Land.
   
5. However, he admitted that this was done in the absence of Gil Orosambo or his children, let alone representatives of the Traditional Land Owners of Paratapa Clan in Popondetta.
   

12. OBSERVATIONS:
    1. Both the Complainant and Defendants do not qualify as persons with Traditional claims to the Land as;
       
       1. Paulus Gil Orosambo claims rights over the Land by virtue of his father Late Godfried Gil Orosambo’s initial purchase of this land from Alkin Bahera the original Paratapa clan Landowner,
          
       2. George Ewago claims rights over the Land as a purchaser for value of this Land from one Jackson Baude Orosambo.
          
    2. After the purchase of this Land from the Original Land Owning Paratapa Clansman Alkin Bahera via assistance from the Lands officer Mr. Kipling Evata, the Land has not been subjected to the provisions of the Land Tenure Conversion Act to convert it to a leasehold and so for all intents and purposes it remains Customary Land, that is Traditional Paratapa Clan Lands, as it remains in Paratapa Clan Land Boundaries.
       
    3. Therefore, the Ultimatum voiced by Dunstan Kimana as Chairman of the Hegata Isuga Poimo Land Owners Association under which the Paratapa Clan is included is worth Noting and Considering, as this Clan still has a say in where this clan land should go and what ought to happen to it as it is still Un-Alienated and is still within their clan land boundaries.
       
    4. The Evidence clearly shows that Jackson Baude Orosambo purportedly sold this Land to the Defendant and his Business Partner John Bangkok, but the issue is whether he had permission or leave from the Original Purchaser Gil Orosambo or his Survivors or next of kin, such as his children?
       
    5. Clearly, Jackson Baude Orosambo did not have permission from either Gil Orosambo or his Survivors or Children to sell this Land or deal with it in any way.
       
    6. This is because in the first place, the Land was sold to Gil Orosambo himself and not to his brothers and also further the Land was still Un-alienated and was therefore customary Paratapa Lands for all intents and purposes.
       
    7. Dunstan Kimana has voice his groups objection to this purported sale as he intimated that they do not recognize the second sale of this land to the Defendant and his Business partner after the first Clan Approved sale to Gil Orosambo, therefore they will oppose the Defendants but will accept an award made to the Complainant.
       
    8. Further to that, the Second Purported Purchase of this Land by the Defendants was business Orientated and so whether they should have stuck to Alienated lands or seek to Alienate this Land soon after purchase are issues that one can ask after the fact, but the fact remains that they purportedly gave money to a person without Rights for a piece of Customary Land that was first sold off to another person.
       
    9. This is a Land Court, the issues being Discussed here hinges on issues pertaining to Contract Law and validity of Agreements, but the General rule of thumb in Contract Law is that any Contract or Agreement that is based on Misrepresentations or mMiss-stated facts is Void-Ab-Initio (Void from the very beginning), therefore null and void and has no legal Effect.
       
    10. In this case, The Purport Second Sale of Traditional Un-Alienated Lands, traditionally Transferred to Godfried Gil Orosambo by Alkin Bahera or Paratapa Clan in Popondetta, to John Bangkok and George Ewago by Jackson Baude Orosambo who did not have permission from the said Godfried Gil Orosambo or his survivors let alone the Paratapa Clan, is based on just such Misrepresented facts. Thus this Second Sale is void-Ab-initio and is therefore disregarded as such by the Local Land Court.
        
    11. The Latin Maxim ‘Caveat Emptor’ or ‘Let the Buyer Be Aware’ has bearing in this case as the Defendant and his partner ought to have enquire behind the scenes as to the status of the Land before committing to purchase of a Traditional Land sold them by a person who had no authority and was clearly not a traditional Land owner. This is where the need for the presence of Traditional Land Owners during the Transaction between them and Jackson Baude Orosambo comes in.
        
    12. This Local Land Court therefore affirms the First Sale of this Land by Paratapa Clan to Godfried Gil Orosambo but will not endorse or Recognize the purported subsequent sale of the same land to the Defendants by one Jackson Baude Orosambo.
        
    13. As hinted in the case of Re James Allan Sannga in the absence of a last will and testament of a Deceased Estate, Customary Lands remains in the domain of Customary rules of Devolution.
        
    14. In other Word’s where there is not Will in existence by the ‘Land owner’ in this case Godfried Gil Orosambo, then Customary Law will apply to Devolve or deal with the Land in Question.
        
    15. In this case, Dunstan Kimana has spoken on the Paratapa Clan position and that stands.
        
    16. Besides all these, the Children of the Deceased are the obvious and natural beneficiaries of any estates of deceased persons.
        

Judgment.

13. Having consider the whole of the Evidence and the submissions made by and for the Parties the Local Land Court unanimously by absolute majority Rules as follows that;
    
    1. The Original sale of this Land to Godfried Gil Orosambo by the Paratapa Clan is affirmed as binding.
       
    2. The Second Purport sale of the same land to George Iewago and John Bangkok is deemed as Void-Ab-Initio- and therefore disregarded by this Court.
       
14. Accordingly, the Court will order as follows that;
    
    1. The Relevant Portions of the Hegata Lands Initially Sold and Transferred to Godfried Gil Orosambo under Custom are now award to the Surviving Children of the Said Godfried Gil Orosambo, especially Paulus Gil Orosambo.
       
    2. The Defendants are allowed 90 days to remove themselves and their personal effects from the Property and to give vacant possession of the relevant Portions of the Hegata Traditional Lands to the Survivors of Godfried Gil Orosambo, especially Paulus Gil Orosambo.
       
    3. The Defendants John Bangkok and George Iewago have 90 days within which to appeal this decision to the Provincial Land Court.
       

Complainant/Claimant for himself.
Defendant/Claimant George Ewago for himself and his co-defendant John Bangkok.

Dated this 23^rd of September 2021.