Ray v Lupapatoe [2011] PGDC 24; DC1079 (25 March 2011)

1079

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS LOCAL LAND COURT JURISDICTION]

LLC No. 005 of 2009

BETWEEN

KIPAO MAHALE/ GALOE NAMAO - RAY
First Complainant

AND

SAMSON WALIZOPA
Second Complainant

AND

GULAIZOPA LUPAPATOE
Defendant

Goroka: M. Ipang

2010: June 07, 10, 11, 16
2011: March 25

Landmediators/ Assessors

Lore Klepetamero & Tovepa Atao

Spokespersons

Kipao & Galoe – In Person

Samson Walizopa – In Person

CIVIL:

INTERSTS

Cases Cited

Legislation

25 March, 2011

REASONS FOR DECISION

M. IPANG Magistrate: This customary land dispute known as “Sinipauka” is located at Kama village, just at the outskirt of the town of Goroka.

2. This dispute has been outstanding for same years and it took sometime to go through land mediation process at the District level and was finally referred to Local Land Court. The Local Land Court had to refer the matter back for re-mediation on one of the disputant’s claimed he was not been allowed to put his case properly at mediation level. After re-mediation the matter was referred and finally heard at the Local Land Court.

First Complainant’s Case.

3. The first complainant Kipao and Galoe were first to give evidence themselves and their witnesses. They called the following witnesses namely Gopisihe Warigi, Samau Narisoroh’e and John Olive.

4. Kipao told this court of the fence that his father Malahe built around the disputed land and cultivated this land. He said Gulaizo and his family built a house so he stopped them. He said they should have sought his permission firs before they build the house. He went on to tell this Court that Gulaizo’s children were adopted and so when Gulaizo dies, he will re-posses the land back. Kipao said the second Complainant Samson Walizopa should have stayed out of this case. Kipao said Samson talked about coffin and custom of hauslin but he will re-pay all that.

5. Galoe Namao – Ray, is the First Co-complainant with Kipao. She is the grand daughter of Namao. Namao had two (2) daughters. She is the daughter of Lavulavu. She admitted Gulaizo took care of Namau, she also said she stayed with Namao. During that time she and her mother made feast for Gulaizo for taking care of Namao.

6. First Complainants witness Gopisihe Warigi gave supporting evidence. His evidence is that his land is next to the disputed land. He said the land belonged to Namao and how belonged to Kipao and Garowe. Evidence given by witness Samau Narisorohe is no different to the one given by Gopishe.

7. First complainant final witness John Olive said the disputed land belong to Garowe and Kipao. He said Garowe’s father allowed his mother to cultivate a plot of garden on this land. He said his mother told him the land belong to Garowe and Namao. She said the witness (John Olive) has no right over this land. He said if his mother did not clarify the owner of the land, he could have disputed the land.

Second Complainant’s Case – SAMSON WALIZOPA.

8. On the 10th of June, 2010 the second Complainant Samson Walizopa and his witnesses gave their evidences. Samson told this court that in late 1975 and towards early 1958 he was around 12 years of age going towards 13 years, his father’s house was just at the end of the current disputed land. He said the main road separated the disputed land from his father’s house.

9. Samson continued on and said he saw Namao visited them (his family) regularly every morning. His family lived at Bihute Road at that time. He said Namao chopped pitpit at Sipiga Police Barracks. He said it took quite a while for him to build pitpit fence. He said when fence was completed, he (Namao) made gardens. He (Samson) said they were a family and they made gardens there too. He said Namao later occupied the land and built house and lived there.

10. However, Samson said in 1957, prior to Namao moved in to the present land, he said Namao went and asked his old aged father, Walizopa if he could fence the land. He (Samson) said his father agreed so Namao fenced the land and made gardens.

11. Samson said Namao died in late 1980’s. All the people gathered at Sipiga village, Kama. He (Samson) said Galoe Ray came with a coffin and Guhikoko Anahine, Gamakuli Mieh and Gozapaveha Malehe (elder brother of Kipao) refused her coffin.

12. Samson said the 3 men (as mentioned) went to see them and they bought a coffin and food stuff and went to buy Namao. He said all the disputing parties were there.

Samson Walizopa’s Witness

13. This is Samson’s witness Alijo Walizopa and she is Samson’s wife. She filed an affidavit dated 9th November, 2009. In paragraph 2 of her affidavit, she stated that when old man Namao died in late 1980’s, she was in her office at Gouna Centre when Gahikoko, Gamakul and Gozapaveha went to see her. She said Guhikoko told her that the old man who has looked after your husband’s land has died and we (Guhikoko & Ors) request your husband to buy his coffin. Alijo said, she told that she and her husband will go with a coffin.

14. Alijo said, she caught up with her husband and both bought a coffin, bought beddings and food stuff and went to Sipiga village and buried the old man. All the disputing parties were present at that time.

Samson Walizopa’s Witness Koni Aizo.

15. This is Samson’s witness and he is also Samson’s elder brother. The evidence give by this witness is of no difference to the evidence given by Samson Walizopa and Alizo Walizopa. This witness went further to state geneology of this family (ancestor’s down) but we do not find it necessary to state it here as genealogies are not very much a contentious issue in this case.

Defendant Gulaizopa Lupapatoe’s Case.

16. Gulaizopa gave evidence himself both orally and in a form of affidavit sworn on the 10th of November, 2009. He also called the following witnesses Pake Gulaizoopa, Tare Owaowae, Uweni Luma’e and Winis Namane.

17. Gulaizopa said Namao’s wife Menunauto died and he (Gulaizopa) buried her. He said he and Namau went and occupied the disputed land. He (Gulaizopa) said he looked after Namau and when Namau was old he (Gulaizopa) made feast for him.

18. Gulaizopa said, he looked after Namao for a long time. At one time Gehamuzieha clan cooked food for elders – Samson and he (Gulaizopa) killed pigs. He said Samson cooked pig for Malahe and he (Gulaizopa) cooked pig for Namao and gave food for Namao.

19. Gulaizopa said the next morning Malahe came and said we all see and I give land to Galaizopa. Gulaizopa said Malahe gave him the disputed land and the other portions of land he gave them to Olikuto, Samau and Anuwaya (Kipao’s son).

20. Gulaizopa’s next witness Pake Gulaizopa said she was small and stayed with Namao at Mononumtoka (Church Building Area). She said Galoe was also there. She said Namao’s one eye was blind. She said when Namao’s wife died, they moved to Sinipauka land in 1979.

21. Pake said Namao was a low-class old man. She said no-one came to visit him. Pake continued on and said in 1990 - 91 they sacrificed for him and made feast for him. She said Gulaizo cooked food for him. She said Namao died, Samson Walizopa and Gulaizopa went to Court and the case was delayed. She said Gulaizopa lived on this land for 29 years.

Witness Ale Ovavahe.

22. At the time of giving evidence Tale was a landmediator for Goroka District. He said Namao is from Gihayufa Clan of Kama and Gulaizopa is from Zagumazuha Clan of Kama. Now Tale said Gulaizopa looked after Namao. Gulaizopa cooked food and killed two (2) pigs for Namao. He said Gulaizopa is from other clan and not the landowner.

23. He (Tale) said during past years custom is very strong and Namao had made his decision already. Tale said Samson witnessed the feasts. Custom has been done and the land has given already, said Tale.

Witness Uweni Luma’e.

24. Uweni began by saying Zagumazuha Clan made feast. This witness said Gulaizo killed pig and he gave chicken. He said Gulaizo dressed-up Namao and gave him food-stuff. He said they brought food-staff down – no one assisted as they were busy with the opening of a house.

25. Uweni said the next morning Malahe shouted and said “they said we have no children” so the land was given to Gulaizopa.

Witness Winnis Namane.

26. This witness gave account of what happened after his parents left Aritiufa village in 1995-6 and settled at Mono, Kama. He said his father and mother made gardens at Sinipauka land when Gulaizopa gave them permission. In 2004 his parents went back to Aritiufa village.

Summaries of Parties Argument (s) as Presented.

27. Kipao Mahale and Galoe Namao-Ray joined strength and fought this case. Both argued that Sinipauka land is theirs because they are biological off-spring of Namao & Mahale. They also argued that Namao & Mahale never gave the land Sinipauka to Gulaizopa. Even though both had admitted that Gulaizopa did take care of the old man Namao.

28. Samson Walizopa argued that Namao sought permission from Walizopa to build pitpit fence around the Sinipauka land and later made gardens. Samson said because Walizopa is the landowner, Namao got permission from him to build fence and later settled at the disputed land. So when Namao died elders approached him and he brought the coffin which they used to burry Namau. The reason behind him (Samson) paying for the coffin was that Namao was looking after Sinipauka land for him.

29. Though not the original landowner Gulaizopa buried Namao’s wife when she died. Gulaizo continued to take care of Namao up to the time, Namao died. Gulaizo said he dressed-up Namao, killed pigs for Namao and gave him food stuff. The next morning, there was a declaration that Sinipauka land was given to him.

30. Kipao and Galoe admitted that Gulaizopa looked after Namao but denied knowledge of feasts hosted by Gulaizo. Both also denied k knowledge of Sinipauka land been given to Gulaizo by Mahale and Namao. On the converse, this court was not able to know whether Namau’s own off-springs and relatives did look after him when he was of old age.
31. Samson Walizopa came out clear that Malahe and Namao are his relatives. However, we are satisfied that the land “Sinipauka” belonged to Namao, and there is no question about that, We say this because though Samson Walizopa purchased coffin and buried Namao, We are of the view that this customary obligation performed fall short of the requirements for obtaining land.

32. The next issue is ownership presupposes control, Samson Walizopa gave evidence that his father gave permission to Namao to build fence around Sinipauka land. Samson’s evidence stopped and did not indicate whether Namao go permission from Walizopa to settle on this land. Even if Namao settled on this land, there was no evidence of Walizopa exercising his controlling rights over Namao on this land. Because of this we find his (Samson’s) interest is the disputed too remote.

33. Another notable factor is that Samason Walizopa called his wife and elder brother as his witnesses but failed to call witnesses from different family lineage or clans to support his case.

34. So, we are satisfied that Samson’s claim of ownership is too remote. We have heard and are satisfied Gulaizopa has taken care of Namao and had made traditional/ customary feasts for Namao. This has become obvious and clear before this court.

35. Pursuant to s. 39 of the Land Disputes Settlement Act, Chapter 45, we grant orders that the ownership of the Sinipauka land is vested in descendants of Namao who are Kipo Malahe and Galoe Namao Ray. The Usufructualy (User) Rights over Sinipauka land is vested in Gulaizopa Lupapatoe and family.

Kipao & Galoe – In Perosn
Samson Walizopa – In Person