Negiya v Harokaqueh [2011] PGDC 19; DC1080 (23 March 2011)

1080

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

LLC No. 13 of 2009

BETWEEN

ALVIN NEGIYA
Complainant

AND

SIPITO HAROKAQVEH
Defendant

Goroka: M. Ipang

2009: January 27, 28, 29
2011: March 23

Landmediators/ Assessors

Lahone Hasu & Kesko Kasimo

Spokespersons

Complainant – In Person

Defendant – In Person

CIVIL: Land disputes Settlement Act – Interests in Ginitoka Customary Land – Interests based on custom of the disputants.

INTERSTS

Cases Cited

Legislation

Counsel

Complainant, In Person

Defendant, In Person

23 March, 2011

REASONS FOR DECISION

M. IPANG Magistrate: The Ginitoka land is located within Kama village, along the road to Bihute Correctional Institute (CIS). This land has been fenced and during the land inspection it was not difficult to locate the boundaries of this land. The nature of dispute is on ownership and not on its boundaries.

2. On the 27th of January, 2009 the complainant gave evidence himself and called Palaget Wanole and Kasup Anupahe as his witnesses. Complainant gave evidence on the migratory history of his ancestors and stated his generations and said he is the seventh generation. This respect of his evidence were not matter for contention by the defendant so we do not consider necessary to re-state them in detail.

3. A part of complainant’s history that worth re-stating here is when there was a big fight a Blind Centre, Complainant said his ancestors came to Faniufa. At Faniufa they separated in to two (2) groups. One group went to Sipiga and the other group went to Komegu. At Komegu they went to Mt. Ganaka (Purutuwe’s mountain). They spread out and lived there.

4. Complainant went on and said he knew the background history of the defendant. He mentioned ancestors of the defendant, Galakehe – Notosiye – Aiginahe – Harokaqveh – Sipito. Complainant said Galakehe did not come down to Komegu. Second generation Notosiye came down to Komegu. Complainant said the reason whey he came down to Komegu was that Notosiye and his brother Umai argued over land. Notosiye overlapped Umai’s boundary and so Umai got an axe and smashed Notosiye’s head. So Notosiye left for Komegu. Notosiye went and settled with Raveha (4th Generation). Gulaye was there when Notosiye went to Komegu.

5. Complainant gave account of how this current land was acquired. He said a big fight broke out between Kama and Kafegu. His ancestors were chased down to Fimito. He said Notosiye also lef for Fimito. After fight they returned to Komegu.

6. Complainant said Negiya was still at Fimito. A lady named Sulaye came back to Komegu. She saw Kaukau leaves grew at Negiya’s garden so she fenced the garden. Negiya came later and saw what sulaye did. Negiya said that’s OK, when Sulaye got married he will reclaim the land from her. However, Negiya died sooner and so complainant claimed the disputed land was passed on to wrong wrongs.

7. Complainant continued on and said his father Ozopawaha asked for the land back. He said his father was 6 – 7 years old when Negiya died. He said his father’s mother brought his father to the Red Corner. Later his father was told of the stories. They told him that most of his land were lost.

8. Complainant indicated that approaches were made by defendant to me to buy the land but he said let the court deal with the matter. Defendant could not confirm this piece of evidence.

Complainant’s Witness Palaget Wamole

9. Basically, this witness said his land is below and Alvin’s land is on the top. He said his father gave Alvin’s land back already. However, he said Harokaqveh is still holding onto Alvin’s land.

Complainant’s witness Kasup Anupahe

10. This witness told this court that he is from Yagamiufa Hasulain. He said Alvin was small and his father died. The witness said his father put him in to Hasuman, paid bride price for his wife and told him you have a big land, so go to your place and your land.

Defendant’s Case

11. Defendant gave evidence himself plus call the following witnesses George Notosiye and Koi Harokaqveh. Defendant gave both the oral and documentary evidence in the form of an affidavit. He gave account of his ancestors and how they had settled at which places.

12. Defendant mentioned that before Notosiye died, he planted a stick to tie a pig. Sipito said Notosiye buried the stick and shot his noise and became sore, The sore grew big and Notosiye died. Sipito said daughter of Litimuniye named Sulaye and her husband Maigoro made gardens on this land.

13. Sipito said Sulaye and her husband Maigoro left for her husband’s place at Yamazuha (Red Corner) then Atinaye took over and continued to make gardens on this land. When he died his children continued working on the land.

14. Sipito said he brought a dead body to bury on this land, Alvin did not stop him. However, Sipito said he came in the nigh and told Sipito to remove the body, Sipito said now he built the fence so the mater is in court.
Defendant’s Witness Koi Harokaqveh.

15. This witness gave account of this personal history. He said he was born in 1956. He said he was 9 years old and he went to school. He said he stayed with Harokaqveh’s wife Segima (F) and went o school in 1964. In 1969, he said he stayed with his father Harokaqveh. In 1971, he said he went to Asaroka High School. He said after school he went back home, got married and lived at Ginitoka land. From there he was recruited by CIS and he worked with them. He said in 1997, he retired and settled at Ginitoka land till now.

16. Koi gave a brief account of his ancestral migratory history. He said his ancestor left Lapilo and came up. They settled at where the current Faniufa Community School is located. He said Notosiye and Omaie came to West Goroika Community School is now then to Mununaka then to Zaronaroka and finally to Ginitoka (Lugeha). Koi said Omai’e resided on the top side and Notosiye lived on the land below.

Defendant’s Witness George Notosiye.

17. This witness said his grand father is Notosiye. He said Notosiye married Gomokuli (F) from Azinzuhai clan and gave birth to Atigina’e. George said they lived where currently Sipito live. A big fight broke out and they left for Zaronaroka village. After the fight they returned. He said Aiginae bought lady for Harokaqveh. He continued and said they stayed on the land and made gardens. He said from that time till now no one complained. He told this Court that Harokaqveh died and his sons Sipito and Koi still lived on the land.

Summary of Case Presented
Complainant’s Case:

18. Just short and brief, Complainant argued that his ancestors originally lived on the disputed land and left when fight broke out. Complainant’s father never came back and lived on this land but evidence was that Sulaye (F) saw the kaukau leaves and cultivated the disputed land. Refer to Complainant’s evidence contained in paragraphs 5 – 7 of this decision.

Defendant’s Case

19. Defendant’s evidence if we see from Koi told of how their ancestors left Lapilo and travelled-up some places and finally settled at Ginitoka (current disputed land). Then a further evidence by Sipito and George told of how their ancestors lived on the land before he fight and how they left and returned to the land after the fight.

20. Based on the above evidence we have to decide who should we award the ownership of Ginitoka Land to. As members of the court, we set down and did our own assessment. We do appreciate and acknowledged the fact defendant and his ancestors one way or the other had settled and occupied the disputed land and its surroundings. However, if one assess and refer complainant’s evidence, it still stood out that the current disputed land contained kaukau garden belonging to Complainant’s ancestor and after he fight Sulaye (F) returned and cultivated the land.

21. Applying section 23 Land Disputes Settlement Act and especially Sub-Section 3, we by majority vote are of he view that the Ginitoka Land be awarded to Alvin Negiya. Defendant Sipito Harokaqveh can remain on the current location where he is now. Accordingly and pursuant to section 39 of the Land Disputes Settlement Act, we (Local Land Court) grant ownership, exclusive use and possession of Ginitoka Land to Alvin Negiya.

Alvin Negiya – In Person
Sipito Harokaqveh – In Person