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State v Kenny (No 1) [2022] PGNC 124; N9532 (21 March 2022)

N9532

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 4 OF 2021

BETWEEN:
THE STATE

AND:
MAISON KENNY
(No1)

Maprik: Rei, AJ
2022: 2^nd, 15^th, 16^th, 17^th & 18^th & 21^st March

CRIMINAL LAW – forgery and uttering of documents – Form 7 and Form 10 – mediation of ownership of customary land – mediation not concluded – verdict of guilty.

Cases Cited:

Nil

Legislation:

Sec. 462(1) & 463 of the Criminal Code

Land Disputes Settlement Act

District Courts Act

Counsel:

Mr. George Korei, for the State
Mr. Nasson Katosingkalara, for the Defence

DECISION ON VERDICT

21^st March, 2022

1. REI AJ : An indictment for two (2) counts was presented on the 15^th March 2022 alleging that:-

COUNT ONE

KENNY MAISEN of KWATGU VILLAGE, MAPRIK in EAST SEPIK PROVINCE stands charged that he between 31^st day of July 2015 and the 28^th day of March 2018, in the East Sepik Province of Papua New Guinea forged a document purporting to be the Land Dispute Settlement Act “Form 7 – Record of Mediation” and “Form 10 – Application for approval of Agreement” issued under the hand of or by the Maprik Local Land Court.

COUNT TWO

KENNY MAISEN of KWATGU VILLAGE, MAPRIK in EAST SEPIK PROVINCE stands charged that he on the 28^th day of March 2018, in the East Sepik Province of Papua New Guinea knowingly and fraudulently uttered false documents purporting to the Land Dispute Settlement Act “Form 7 – Record of Mediation” and “Form 10 – Application for approval of Agreement” issued under the land hand of or by the Maprik Local Land Court.

2. These charges were laid under s.462(1) and s.463 of the Criminal Code. S.426(1) provisions read:

“OFFENCE OF FORGERY:

462. FORGERY IN GENERAL: PUNISHMENT IN SPECIAL CASES

“(1) A person who forges any document, writing or seal is guilty of an offence that, unless otherwise stated, is a crime.

Penalty: If no other punishment is provided–imprisonment for a term not exceeding three years....

(3) If the thing forged purports to be, or is intended by the offender to be understood to be or to be used as –

(e) a document that by the law of Papua New Guinea or of any other country, is evidence of the title to any land or estate in land in Papua New Guinea or that other country, or an entry in any register or book that is such evidence; or ...

the offender is liable to imprisonment for a term not exceeding 14 years.”

Sec. 463 provides:

“OFFENCE OF UTTERING FALSE DOCUMENTS

“463. UTTERING FALSE DOCUMENTS AND COUNTERFEIT SEALS.

“(1) In this section, “fraudulently” means with an intention-

(a) that the thing in question shall be used or acted on as genuine, whether in Papua New Guinea or elsewhere, to the prejudice of some person, whether a particular person or not; or

(b) that some person, whether a particular person or not, will, in the belief that the thing in question is genuine, be induced to do or refrain from doing some act, whether in Papua New Guinea or elsewhere.

(2) A person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.”

3. The brief facts were read to the accused. The accused was arraigned who then denied the charges. A plea of not guilty was entered, on both counts.

4. I do not need to recite the brief facts as a plea of not guilty was entered and the whole case is subject to evidence.

STATE WITNESSES

5. The State called four (4) witnesses while the defence only called the accused who did testify.

6. The first witness is Caspar Wangi who is the Provincial Lands Officer who has the responsibility to safe guard both State and Customary Land in Maprik of East Sepik Province.

7. He gave evidence that when a mediation is set up to determine ownership of Customary Land, Form 7 titled “Record of Mediation” is brought to him by the Mediators who facilitated the mediation. If he is satisfied on the outcome of the mediation; whether failed or successful, he fills in the details in Form 7 and the mediators endorse it for presentation to the Local Land Court Magistrate under Form 10 titled Application for Approval of Agreement.

8. These forms are provided for under the Land Disputes Settlement Act.

9. He stressed that these forms are not ordinarily prepared by persons other than himself as they must be endorsed in his presence as the Provincial Lands Officer at Maprik as evidence of mediation having taken place and are forwarded to the Local Land Court Magistrate in Maprik for his endorsement and the affixing of the Maprik Local Land Court seal.

10. These two (2) forms – Form 7 & Form 10 the subject of these charges were shown to the witness to verify whether he drew them up. These are Exhibit “B” & “C”.

11. This witness denied ever seeing them before and said he is not aware of their existence.

12. He also stated in evidence that it could not have been possible for him to have raised Form 7 and Form 10 then as there was no resident Magistrate in Maprik at that time and for at least 5 years to endorse them by affixing the seal of the Maprik Local Land Court.

13. He was indeed taken by surprise when these documents were shown to him in evidence.

14. The second witness is Leo Yalakum, the complainant in this matter and the complaint in the matter of the land dispute involving customary ownership of the customary land “Wangum Land”.

15. He stated that after laying the complaint, using the court forms of the District Court being a Summons to A Person upon a Complaint and a Complaint which is Exhibit “A”, a mediation was to have taken place. It did not take place.

16. He said he is aware that Form 7 & Form 10 are to be filled in to complete the mediation process which Form 7 & Form 10 must be prepared in the presence of the Provincial Lands Officer then taken to the Maprik Local Land Court for presentation to the resident Magistrate there to be endorsed affixing the seal of the Maprik Local Land Court.

17. He said he is not aware of any mediation having being held and concluded in this matter.

18. When shown Ex “B” & “C” being Form 7 & Form 10, he said that he had never before seen those documents.

19. He however said that the accused had used those forms as a veil to claim ownership of Wagum Customary Land in Maprik, ESP.

20. He said Form 7 & Form 10 bore the seal of the Wewak District Court which he said was irregular as the original jurisdiction of this complaint is vested in the Maprik Local Land Court and not the Wewak Local Land Court as Wangum Land is located in Maprik.

21. The third witness Timon Dutiki who is the gazetted land mediator in Maprik District of some 20 years experience gave evidence.

22. When he was shown Ex “B” & “C” been Form 7 & Form 10 and asked whether one of the signatures appearing thereon is his signature, he said he did not sign the documents.

23. He stated that he is still in physical possession of Form 7 & Form 10 involving the mediation on Wangum Land and he took no action to process them in 2015 and 2016 because there was no resident magistrate in Maprik to endorse the documents as consisting evidence of mediation.

24. The State called its fourth witness who is the Village Court Magistrate of Jerkis Nakira.

25. His evidence is that he was relaxing outside the Maprik Court house when the accused approached him and told him to sign a document which he identified in Court as Form 10 Ex ‘B’.

26. He was coerced by the accused or forced to affix his signature on that document.

27. He said he had never been a land mediator and had not even been a witness in any mediation process.

DEFENCE WITNESS

28. The accused gave evidence in which he produced a hand written note given to him by the Clerk of Court of Wewak District Court a Scholar, to take to the Provincial Lands Officer seeking to get Form 8 & Form 10 to take to the Clerk of Court at Wewak to take further steps. It is dated 17^th December 2017. It is Exhibit Defence “1”.
29. This witness evidence was entirely on that document dated 17^th December 2017. He did not give any evidence on the allegations contained in the indictment of forging documents and uttering them on 15^th March 2018 and 28^th August 2018 respectively.

30. It was pointed out to the accused by the Court that the allegations arose on the 31^st of July 2018 and 30^th August 2018 and not the 17^th of December 2017.

31. The accused kept on giving evidence on the merits of that note given to him by Scholar the Clerk of Court, Wewak, ESP which he took to the Provincial Lands Officer Mr. Yakob.

32. No evidence was given by the accused as to whether Form 7 and Form 10 were prepared by the Clerk of Court or Provincial Lands Officer at either Wewak or Maprik and given to the resident magistrate in Wewak to endorse as proof of mediation. He, however, said in evidence that he took those forms and got them signed without specifically stating in evidence who signed them.

33. No evidence was given by this witness as to the authenticity of the signatures appearing on From 7 and Form 10.

DECISION

34. Incidentally I note that no proper Court formats were filed to initiate proceedings in the Local Land Court at Maprik by way of a Complaint as provided for under the Land Disputes Settlement Act.

35. Instead a District Summons to a Person Upon a Complaint & Complainant were filed which raised issues of ownership of a customary piece or parcel of land commonly known in the local area by its people as “Wangum” Land.

36. The complainant in the Summons to a Person upon a Complainant and the Complainant is Leo Yalakum. The defendant is the accused Maison Kenny.

37. No issue was raised on the impropriety or relevance of this.

38. This approach is correct as the Land Dispute Settlement Act generally provides that strict rules of procedure and evidence do not apply to its proceedings.

39. I find that there is no evidence to rebut the entire evidence given by the State witnesses. The evidence of the accused given in Court is not convincing. He was evasive in his answers to questions asked of him in examination-in-chief and cross examination.

40. There is overwhelming evidence in this Court that the accused did forge and utter those documents because he had an interest in the “Wangum” customary land.

41. He said in evidence he sought the assistance of the Wewak Clerk of District Court a Schola who assisted by giving him a hand-written note to take to the Provincial Lands Officer to give him Form 8 (not Form 7) and Form 10. He agreed with the State witness Jerkis Nakira that he took Form 10 to that witness Jerkis Nakira in Maprik and got him to sign it. This is improper process and unusual as these documents are prepared by the Clerk of Court then given to the parties and/or the Local Land Court Magistrate for endorsement. Neither the complaint nor a defendant in any land court matter is to personally handle these documents as has happened in this instant.

42. He had no authority to do so under the Land Dispute Settlement Act as such authority is bestowed in the Provincial Lands Officer or Clerk of Court of the Local Land Court by operation of law who is to advise the Local Land Court Magistrate in Maprik to determine ownership of customary land or on the outcome of any mediation whether successful or otherwise.

43. The accused has used the forged and uttered Form 7 & Form 10 as purportedly forming the decision of the mediators thereby entitling himself to claim customary ownership of Wangum Land so that he becomes the owner in custom on the strength of the forged and uttered Form 7 & Form 10.

44. He has used those documents as forged and uttered to hold himself out as the customary owner of ‘Wagum’ land for which no determination was made by the Local Land Court or Provincial Land Court, Maprik.

45. His actions did not only mislead the complainant and the officers of the Local Land Court both in Wewak and Maprik. His actions also misled the people of Kwatgu Village in Maprik District.

46. His action in doing so shows that there is ‘land grabbing’ in the villages by even people who do not own that land and, because they come from the same village, they claim ownership resulting in tribal fighting and death of innocent people.

47. This attitude is prevalent in villages and must stop and must not be continued.

48. The forgery and uttering of government documents in the form of Form 7 and Form 10 or even court orders is a very serious matter and should be gleefully scorned upon by the Courts.

49. And because of the fact that this mediation did not take place, no recorded mediation exist and the customary land known as “Wangum” land is still subject to a land dispute under the Land Disputes Settlement Act.

50. The accused is therefore found guilty of the two counts.
________________________________________________________________

Public Prosecutor: Lawyer for The State

Public Solicitor: Lawyer for the Defendant