Momoto v Ketarobo Village [2011] PGDC 18; DC1078 (23 March 2011)

1078

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN IT’S LOCAL LAND COURT JURISDICTION]

LLC No. of 2009

BETWEEN

SOGAVO MOMOTO
BOBBY SOGAVO
Complainants

AND

KETAROBO VILLAGE
Defendant

Goroka: M. Ipang Chairperson
Lore Klepetamero
Donald Korofe
Aimon Morofa
Kila Jopu

2010: November 17, 18
2011: March 23

Spokespersons

Sogavo Momoto – In Person
Kaikazo Forotime – For Defendants

CIVIL

INTERSTS

Cases Cited

Legislation

23 March, 2011

REASONS FOR DECISION

M. IPANG Magistrate: This is one of the outstanding land disputes which took many years and which was finally referred to the Local Land Court on the 5th August, 2009. The two (2) portions of land Sunufagu and Fitokore are located in the Lower Bena Local Level Government of Unggai/ Bena District.

2. The complainants commenced their case on the 17th November, 2010. Complainant Sogavo Momoto gave evidence himself and call the following witnesses Gagiaizo Humeri, Naleho Ponowe and Sogga Ijasihe. On the 18th November 2010, the following gave evidence on the point of defendant, They were Karkago Forotime, Gihiso Galehe, Tai Kasane and Sipo Upeguto.

Complainant Sogavo Momoto

3. Sogavo said Lapilo village (hauslain) originated from the two (2) clans known as Safayufa Clan and Nupayufa Clan. He said Safayufa Clan is the true traditional landowners of the disputed land and that he is the sixth (6th )generation from Safayufa Clan. His generation are as follows:

1. I’ipe

2. Gomofesa

3. Loleto’e

4. Bizogotolehafo

5. Momoto &

6. Sogavo

4. Complainant Sogavo continued to say that the two (2) original persons o occupy that land we I’ipa and Glakepa. He said he is the descendant of I’ipa from Safayufa Clan. He said he has inherited some words in the Local dialect called ASEGALE and NUMUTAGA which means: “toilet hole bilong yu nap les tumbuna man ibin stap na wokabaut.” The name of the place is called “APIYAMETOKA” for Safayufa clan. For Nupayufa Clan (Lapilo) is Glakekepa and the place is called “LUIPLAGOSA.”

5. He said the descendants of Safayufa Clan were the only one authorised to enter a traditionally powerful and sacred place called “LUGEFA.” He said no other persons were allowed except the descendants of the Safayufa Clan of Lapilo.

6. Sogavo said Forotime Zasinahufa from Flen aga Clan, Ke6tarobo village during her time was a spokesman and a leader for the Ketarobo people. He held various positions in Luluai, Tutul, Councillor and a landmediator during colonial administration are within Gapogunagavo Community. Sogavo emphasised that Forotime was very ell versed wih the history of Gapogunagavo Community. He (Sagavo) said Forotime (practically) knew that the land (Fitokere and Sunufagu) rightfully belonged to SAFAYUFA Clan of Lapilo village. For obvious reason (s), Sogavo said he (Forotime) has claimed ownership over the disputed land.

7. Complainant Sogavo’s principal argument is that the forefathers (ancestors) of the Flenaga Clan of Ketarobo village at the dead body of a forefather of Safayufa Clan of Lapilo village by the name of UMERI GESAGE’E. Sogavo said not all Ketarobos ate the dead body but he Flenaga tribesmen.

8. He (Sogavo) said the person who was the lead person and who ate the dead body of UMERI GESAGE’E was IRAMA from Flenaga Clan, Ketarobo village. Complainant said the biological mother of IRAMA was LOLITOLISO from Safayufa Clan, Lapilo village. Sogavo continued on that Umeri Gesage’e has one daughter named GAGAZO who is alive and lives with him (Sogavo).

9. Sogavo said the above were the primary reason (s), Flenaga Clan of Ketarobo village have use (d) to claim ownership of Fitokere and Sunufagu Land. He (Sogavo) further argued that they (Flenaga Clan) even took Gagazo, daughter of Umeri Gesage’s in to adoption to further strengthen their claim of ownership,

10. Complainant said in 1976 he ventured in to a cattle project. He worked on the cattle fence which crossed Sunufagu creek in to the disputed land. He said he know the history that he is the rightful landowner however, he said Ketarobo tribesmen removed his fence posts the next day. From this incident, he said the dispute on Fitokere and Sunufagu land started.

11. There were number of talks on the disputed land. In one of the gatherings (meetings) held before Forotime passed away, was held beside the community school area in 1977. Present at the meeting were Ketarobo tribesmen, Lapilo tribesmen, Gosaroka tribesmen and others from the nearby villages. During this meeting, Forotime directed Lane Venevetopa from Ketarobo who had a truck to go and bring GAGAZO UMERI. Gagazo was married to a Kama villager and resides at Kama.

12. When Gagazo arrived, Forotime asked her to stand in front of the people who gathered there and he (Forotime) said to the public: “MI HOLIM PAS STRONG GRAUN NA MI NO LAIK GIVIM BIKOS MI KAIKAIM PAPA (UMERI) BILONG YU NA EM I STAP INSAIT LONG BEL BILONG MI. TASOL TUPELA MAN (SOGAVO MOMOTO NA GOHUSE MOMOTO) TOK STRONG LONG KISIM BEK GRAUN. NA TUPELA TOK TUPELA PAPA BILONG GRAUN. MI HOLIM YU STAP BIKOS MI LAIK KISIM GRAUN TASOL NAU MI SALIM YU (GAGAZO) WANTAIM GRAUN (FITOKERE NA SUNUFAGU) IGO LONG TUPELA MAN.”

13. Sogavo said after Forotime said the above words he turned to Ketarobo tribesmen and asked, “I GAT SAMPELA LONG YUPELA KETAROBO HUSAIT BAI BIHAINIM GAGAZO IGO DAUN OR NOGAT?” He (Sogavo) said no-one from Ketarobo put his hand-up. SOFA an elderly man told LOMUTOPA to go with Gagazo. Lomutopa said he was from different clan – SEMENAH end court follow Gagazo. He (Lomutopa) said she can go on her own. Gagazo felt humiliated and she cried and went over to Lapilo side.

14. Forotime then said his final words as stated by Sogavo that, he (Forotime) said, “Poroman bilong mi VIZALUKA em yupela planim long Fitokere, graun bilong yuplea Safayufa. Na mi bai yupela planim mi long Sunufagu, graun bilong yupela Safayufa yet.” After saying these words Sogavo said Forotime then told Ketarobos that, “you Ketarobos do not have traditionally inherited land so mark my word that you will face a lot of land problems in the future.”

15. Between the years of 1979 – 80 there was a mediation held at the Goroka District Office. This mediation was conducted by landmediators Lore Klepetamero, Hamakole, Nalehu Momimpe and Makara’e. After hearing from both parties, Landmediators told Forotime as stated by Sogavo that he (Forotime) can not claim ownership to Someone else’s land just because you ate a corpse (body) of a landowner.

16. Sogavo said his land boundary (Fitokere) is across the other side of the road to the Asaro River and to the Sunufagu River which has the main Okuk Highway passing through.

Witness Gagazo Humeri

17. She said she lived at Ketarobo for most of her life. When she got married Ketarobos received her bride price. She is the daughter of Humeri, whose father’s body was eaten up.

18. Gagazo said Sogavo and Ketarobos had a meeting. A Ketarobo man Lanezo got me down to Ketarobo but none looked at me properly. Ketarobos looked low at me. Forotime told public if anyone wish to stand at my back. Forotime told Lomutopa that Gagazo went down so you follow her but she refused as he belonged to another clan. Forotime said other land his friend Gizoluko was buried. On top of the mountain Safayufa land, Forotime was buried. She said Forotime told her to go down to the two (2) brothers Sogavo and Gohuse. He (Forotime) said your two (2) small brothers will “Wasim maus blong me.” She said she cried and left. She also said Sogavo also cried.

Naleho Ponowe (Witness)

19. This witness was previously a landmediator who was with other landmediators who mediated the dispute. He said initially he was at the Hauslain, he witnessed Forotime asking, Gagazo wanted to go to her land, anyone wants to go with her? Lamutopa was asked to stand beside her but Lomutopa said he is from another clan. At that gathering Forotime said he ate Humeri. At District Landmediation we (landmediators) told Sogavo and Forotime to go and settle the matter at hauslain.

Soga Nasihe (Witness)

20. This witness gave evidence of the boundary mark which he was told by his father. He said his father and grand father stayed with the disputants. He said his ancestor Noh’e told Kiosi (his son) that land boundaries from Kanayahiwe down to Asaro River (Krepagemia) up to the mountain Pari-gorohausi.”

Defendant’s Case - Kaikazo Forotime

21. This is the defendant’s main spokesman. He said he is from Ketarobo. He also said his father was a Luluai, Councillor and was a chief of Kapagunago Community. He said in 1960’s R. Giddings with his team wanted to draw up boundaries for Lapilo, Ketarobo, Kosaroka and Upeguto. They met Gregetaro and reviewed traditional land boundaries. He said the boundary from Gregetaro to Magahazano – Asaro River and over-lapped to the other river upwards to Bahutagu. (First boundary).

22. The second boundary was from the Sunufagu River. He said everyone witnessed this. Ubili from Lapilo was ther, Kasane from Kosaroka was there. He said Forotime and Kasane stood at Sunufagu and said that’s the mark. Both grabbed a pitpit and put it at the river and said that was the mark. He said Forotime marked the land from Sugie down to Asaro River and gave it to Lapilo Clan not to Sogavo.

23. Ketarobo Spokesman said Ketarobo did not over lap the boundary. They stayed where they are now. He said those of them that died were buried at Sunufagu. He said they have properties on their side of land.

24. He said previously his father lived at Fitokere. Humeri also lived there. He said they killed him and ate him. He is from Ketarobo and not from Lapilo. He said Ketarobos killed him and ate him during cannibalism days.

25. Spokesman Kailkazo said the boundary is already there separating Lapilo and Ketarobo. He said Complainants are putting up a new mark in to their (Ketarobo) area. He said their father did not tell them this new boundary.

Gihiso Galehe (Witness)

26. Gihiso said this dispute is not between Lapilo and Ketarobo. He said within Lapilo and Ketarobo there are family groups. Safayufa are talking about this land. Part of this group he said are at Lapilo and part of this group are at Ketarobo.
27. He said he is from Lapilo. He said this case has taken a long time. He said we are now trying o break up family group. He told this court that common boundary has been set by the fathers just to maintain peace.

Tai Kasane (Witness)

28. Tai said he is from Gosaroka Hauslain. Sogavo from Lapilo is a brother so as Kaikazo from Ketarobo. He said they all are from Kapogunagano Community or tribe. He said this tribe covers six (6) hauslains and they are all one.

29. He (Tai) told this court that Forotime was their Chief and a respected leader. They do make communal decisions. He was on authority. He said, they did a border mark at Kosaroka (1962). Kasane led the group with R. Giddings. He said he had a map but did not produce in court. He said they moved up to Lapilo and Ketarobo and made the border at Gregetaro. He said Forotime and Rick Giddings chopped a “pitpit” floated it Sunufagu River and said the river is the boundary.

Sipo Upeguto (Witness)

30. Sipo comes from Upegu. He said Mr. Paul Hick made new boundary commencing from New Tribes, small drain. All the fathers were present Sunufagu River is the border. That is Ketarobo land. Later R. Giddings followed the same boundary.

Issues:

1. Humeri

(a) where was Humeri Gesage’e from?

(b) who killed and ate Humeri?

(c) what’s the customary significance of (a) & (b)?

(d) where’s the customary boundary?

(e) where was Humeri Gesaage’e from?

31. Complainant Sogavo said Humeri Gesage’e was from Safayufa Clan of Lapilo village. Refer to paragraphs 7 – 9 of this judgment. However, on the converse defendants through their spokesman said Humeri Gesage’e was from Ketarobo and not Lapilo.

32. Sogavo said the bad person who killed and ate Humeri was Irama from Flenagga Clan of Ketarobo village and not all Ketarobos. Defendants generalised and said Ketarobos ate Humeri. So, Sogavo was more specific in this regard. Complainant went a step further and clarified that Flenaga Clan did that (killed & ate Humeri) just to claim Fitokere and Sunufagu land. Obviously, there need to be a or some reason (s) attached to killing and eating of Humeri. If Humeri was from Ketarobo then why was it that the Ketarobos killed their own hauslain person? Was there any reason? There were no justification from the Defendants. (Refer to paragraph 24 of this judgment).

33. Coupled with the returned of Gagaizo, the daughter of Humeri back to Lapilo and staying with Complainant and his brother Gohuse raised ye another issue. If Gagaizo if from Ketarobo, why would she left Ketarobo to live with Sogavo and Gohuse at Lapilo?

34. All the above (refer paragraphs 32, 33 and 34) led us to believe and we are satisfied Humeri Gesage’e was from Safayufa Clan of Lapilo and not from Ketarobo as claim by the defendants.

34. From what complainant has said and confirmed by landmediators Nalehu (previously) and landmediator Lore, both said at mediation at Goroka District officer they (Landmediators) referred the dispute back to the Hasulain for the customary practice whereby Complainant will “Wasim maus blong Forotime and his people” but did not eventuate till now. Forotime no question been the leader and his ancestor ate Humeri and claimed land were seen to have swollen strong “Kumu mosong” and it was fitting for this customary practice to take place so mediators directed the same to be done. Nalehu (former landmediator and Lore Klepetamero (current landmediator have confirmed this).

35. The issue of land boundary proves to be challenging. Defendants framed their argument around boundary and provide less argument on the issue of eating boy of Humeri Gasage’e. Both issues are significant and have implications. Defendants mentioned of Paul Hicks, Rick Giddings and Forotime’s marking of boundary without Tai Kasane not providing a map he claimed he has. No documentary evidence of map by Paul Hick and R. Giddings does not help this court at all. Both are government officers and at least there should b e records like disputes R. Giddings dealt with at Kami (Lufa) and Okapa areas.

36. Section 23 Land Disputes Settlement Act deals with Composition of the Local Land Court. Section 23 (3) Land Disputes Settlement Act stipulates how Local Land Court makes its decision, which shall be by majority vote. The Land Disputes Settlement Act makes it explicitly clears on this.

37. In this case, one (1) landmediator voted that disputed land be awarded to the defendants.However, three (3) landmediators voted that disputed land be awarded to the complainants. Applying Section 23 (3) of the Land Disputes Settlement Act, it is clear that the ownership of FITOKERE and SUNUFAGU is now awarded to SOGAVO MOMOTO. We grant orders under Section 39 of the Land Disputes Settlement for Sogavo Momoto to have EXCLUSIVE USE, POSSESSION AND OWNERSHIP of these land.

Complainant, In Person
Defendant, In Person