Nunu v Pose [2011] PGDC 20; DC1081 (23 March 2011)

DC1081

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

LLC No. 040 of 2009

BETWEEN

POLI NUNU
Complainant

AND

ANUMU POSE
First Defendant

AND

JAMES KOLILO
Second Defendant

AND

ALVIN DARUWE HESE
Third Defendant

Goroka: M. Ipang Chairperson
Danny Sisi
Lahone Haus

2010: July 07
2011: March 23

CIVIL –

Cases Cited

References

Counsel

Name Of Lawyer, Poli Numu, In Person
Name Of Lawyer, Anumu Pose, In Person
Name Of Lawyer, James Kolilo, In Person

Headnotes:

Land Disputes Settlement Act, Chapter 45- deals with solving disputes based on interests in custom – Interests as defined by interpretation section of the Land Disputes Settlement Act. Interests in this case would be based on custom of Lufa people – custom which survive time and is more probable.

23 March 2011

REASONS FOR DECISION.

M. Ipang Magistrate: The land dispute known as Korenue is located adjacent Lufa Highway and within Lufa District. The land dispute was referred to Local Land Court after mediations held by District officer and landmediators at Lufa District failed to reach consensus.

2. On the 29th of July, 2010 the Local Land Court commenced hearing in to KoremuLand dispute. The hearing commenced after Local Land Court had satisfied itself that it has jurisdiction to hear and determine the issue of customary land ownership. Complainant Poli Numu gave both the documentary and oral evidence. He also called the following witnesses namely Istapi Hogadi, Jacob Istapi and Aron Nikipa.

3. As usual, Complainant gave evidence by saying that he is the landowner of Koremu Land. He said Koremu Land belonged to Hibwe-Henegaru and it is inside the Kunai grass – and in the heart of the community.

4. He told this Court that ten (10) other hauslains sought assistance from him and now they are claim. The Koremu land is theirs. He named the hasulains such as Luha Hasulain, Kema Hauslain, Kamamo Hauslain, Kiporanaga Hauslain, Ageta Hauslain, Kami Hauslain, Fore Hauslain and Litipinaga. What exactly the type of assistance given was not clarified. Also, not all the hauslains named are parties to this dispute.

5. Poli said when he wanted build Koremu Cattle Project, he (Poli) said he asked Peguru, one of his hasulain man. He said Peguru asked him, which land? Poli said "Koremu Land?" Poli said Peguru gave him O.K so he stood – up the posts.

6. Poli further told this court that he got old man Numu and Pose. He said both men gave him green light to build Cattle Project. He (Poli) said he took Numu and Pose to Korefegu DPI station and both men signed the Clan Use Agreement Form. Poli said he obtained a bank loan in 1971 and has repaid the loan.

7. Complainant Poli argued that the First Defendant Anamu Pose is a foreigner. He said he (Anamu ) ws not an adopted son of Pose Ifanume. Poli continued that Anamu was to be a Fore man because his sister was married to Pose Ifanume. He said Aname are occupying Fore illegally and he said Anamu put a fence around one third 1/3 of the disputed land.

8. Poli also denied james Korilo to be a Fore man. He claimed that James Korilo to be a Haga Clan man of Okapa District. Poli claimed James and his sons had wrongfully occupied certain parts of Koremu Land.

9. In rebutting Alvin Hese's clain of ownership, Poli maintained that his early ancestors from Hibu-Henagaru originated and occupied all parts of the disputed land. Poli said Alvin was only trying his luck on the disputed land and questioned where was Alvin in 1971 – 1976 when he obtained a bank loan. He further questioned, if Alvin was trying to claim the land as Litipinaga or Fore land.

10. Poli had given both the oral and documentary evidence and we have taken note of both of them.

Anumu Pose and his Witnesses.

11. Anumu said the cattle fence is on the Foreland. He said Poli is regarded as first born son of Pose (deceased). Anumu said Poli asked Papa Pose permission to build a Cattle Project and Pose gave him permission and the cattle project was built.

12. Anumu continued on and said that Poli was a Fore child (man) and so the permission was given to him and he built a cattle project. He used to be known as Poli Pose. He said Poli built a cattle fence, brought in cattles and sold them. He said the land later was vacated or became vacant for some years and maintenance work was carried out. Anumu told the court that Poli then changed the Fore land to Hibu-Henagaru land and also changed his name from POLI POSE to POLI NUNU.

13. Anumu spoke out and said Papa Pose saw Poli made changes and he (Papa Pose) said this is FORE land and not Hib-Henagaru Land. So he (ANUMU) was stopped till now. Koremu Land is under Fore so Fore keeps disturbing Poli.

14. He (Anumu) told this court that Hibu-Henagaru Land did not share borders with Fore Land. Anumu and former Land Court Magistrate Rick Giddings witnessed the common boundary between KAMI and FORE by planting of tangets plant but later Poli went and up-rooted the tanget plants. He (Anumu) said Poli went and saw the Lands – Advisor who then advised him to appeal R. Giddings decision but he did not.

15. James Menilo gave evidence which is basically the same as Anumu Pose's evidence. He said Poli was initially under Fore so Fore allowed him to stay on the land. Now that he changed to Hibu-Henagaru so Fore are stopping him.

16. Rason Imorapa is from Kamamo. He told the court that Poli used to be at Fore, however he said Poli had left Fore and has settled at Rason's place. He said Koremu land belonged to Fore.

James Kolilo's Case:

17. James began by saying that the land is his ancestral land. No one was occupying this land. He said the land is known as "LUA". He revealed that Fore told him that the land is his and that he will be under Fore. He said his ancestors lived at Koremu. He (James) said he planted coffee trees. He said he lived near the river and when the land was disputed, he also laid his complaint to be a party.

18. James said he planted the coffee trees prior to Poli building the cattle project on this land. He said he was working with Air Niugini – Goroka and was never consulted when the Cattle project was built. He (James) said later Poli wanted to repair the cow fence and he (James) registered his objection with DPI Officer Rikipo and so the land was disputed.

19. James like other parties Anumu and Alvin said Poli is claiming that Koremu land is under HIBU-HENAGARU but the land is under FORE. Wabo Gregito gave evidence in support of James which I do not find necessary to re-state all his evidence. Eric Boia said Poli was a Fore man. He said Anumu and James are from one family and were under Froe. Yuka Hoga said Koremu land is LUA's land. He said they (LUA's) killed a pig and gave it ot Poli, Pose and Amero.

Alvin Daruwe Hese.

20. Alvin gave both the oral testimonial and documentary evidence. Those evidence were very much in detail. He told the court of the migratory history of his ancestors which was not contested by other disputants. Refer to Hese's statement (Short Traditional Family History Chapter 1 – 3). We would like to re-state chapter 1 and 3 of his documentary evidence given in court.

21. Alwin said when his father (Hese) was two to three (3) years old, his (Hese's) father Lunakeve died. So, Alvin's grandmother Saosao re-married to a man from Litipinaga and to his father (Hese) and lived with his step-father. Alvin continued that when Hese was old enough to get marry, Alvin's grandmother and her relatives arranged a wife for him to marry.

22. Alvin told the court of settler in the past trying to settled on unoccupied land IPI so his father and mother had to live Litipinaga on the advice of his grandmother and step father and came to occupy IPI Land and lived amongst Oliguti people. Later Oliguti people left for their land.

23. From his father's marriage, Alvin said four (4) male off-spring were born and that he is one of the four (4). He said in 1961 his father died and his father took them back to Litipinaga where they grew up. Later they came back to Fore Nunus their mother who was still at Litipinaga.

24. Alvin said when they returned to Fore they noticed all their land were occupied by other people and that they have no good land to fend for themselves. He said, therefore his brothers, their families and his families are living off the land considered useless (rocky land).

25. Alvin told this court of the land boundary KAMI – FORE as identified by Rick Giddings and also defection of Poli to HIbu-Henagaru and the signing of loan agreement to develop cattle project by Poli and Pose. Alvin's witness have given evidence in support of him and we do not find necessary to re-state them here as basically Alvin has covered all his stories well.

Factual and Legal (Custom) Analysis.

26. After having heard all the evidences each party to this KOREMU Land dispute have put forward lives us with the following issue (s) to resolve: KOREMU Land, whose land HIBU-HENAGARU or FORE land?

27. Apart from POLI NUNU and his witnesses all the other disputants and their witnesses spoke and told the court that the KOREMU Land is FORE, land or under FORE. EXCEPT James Kolilo said KOREMU land is KUAS.

28. Majority decision from this court is that KOREMU land belonged to FORE. Pursuant to section 39 of the Land Disputes Settlement Act, Chapter 45 we declare Koremu Land to Fore. We also resolve that disputing parties who are FORES to go and resolve yourselves over Koremu Land.

Poli Num –Complainant, In Person
Anumu Pose - Defendant, In Person
James Kolilo – Defendant,, In Person