Aveze v Amenite [2011] PGDC 27; DC1075 (31 March 2011)

1075

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

LLC No. 010 of 2007

BETWEEN

MUSAU AVEZE
Complainant

AND

GUSAMO AMENITE
Defendant

Goroka: M. Ipang

2011: March 02, 08, 31

Landmediators/ Assessors
Tovepa Atao, Lore Klepetamero

Spokespersons

Musau Aveze – In Person
Gusamo Amenito – In Person

CIVIL

INTERSTS

CONTEMPORARY PAPUA NEW GUINEA LIFE – Complainant recruited as a member of Royal Papua New Guinea Constabulary (RPNGC) – left Okiufa village for Police Training – stationed at Mt. Hagen – claimed that his land, the subject matter of this hearing was left to be taken care of by defendant’s grandfather Gizahupe Awo. Complainant further claimed that after retirement his land was not released to him thus, this was the reason he initiated the dispute. Defendant argued that what Complainant did with his father Amenite and grandfather Gizahupe he has no knowledge and maintained he owns ALATIGUKA Land.

LAND DISPUTES SETTLEMENT ACT – A person who claims to own land must demonstrates this by showing his interests based on custom. Interest as defined by Land Disputes Settlement Act. As in this case, it will be the interests based on custom of Okiufa people.

LAND DISPUTES SETTLEMENT ACT – Conduct of Landmediators questioned by defendant. Two (2) Landmediators Wesley and Noah who admitted taking a ride in Complainant son’s vehicle disqualified. Same allegation was raised against another two (2) landmediators Lore and Tovepa towards end of hearing both landmediators denied the allegation.

LAND DISPUTES SETTLEMENT ACT – PRACTICE AND PROCEDURE – Fair and Transparent to both disputing parties – Additional Affidavit dated 10th March, 2011 by defendant filed after case closed on 8th March, 2011 is an abuse of process and deemed unfair to complainant should Court take it to form part of defendant’s evidence. Affidavit dated 10th March, 2011 is refused on this basis. Affidavit of Late VAKO VEHOVE can not be accepted as he is a deceased and can not stand in Court to defend or verity contents of his affidavit and moreso, it will be totally unfair to the Complainant.

DEMARCATION COMMITTEE – Comprised of village elders with standing in the Community – like Landmediators today.

Cases Cited

Nil

Legislation

Land Disputes Settlement Act, Chapter 45
Counsel

Complainant, In Person
Defendant, In Person

31 March, 2011

REASONS FOR DECISION

M. IPANG Magistrate: This land disputes “ALATIGGUKA” is one of the several land disputes registered before the Local Land Court in Goroka, Eastern Highlands Province. This dispute has been for long time outstanding for want of hearing for almost 15 – 20 years. Defendant’s grand father Gizahupe was the initial defendant in this dispute died, defendant’s father Amenite also dies, leaving defendant now as the defendant in this case.

2. This land “Alatiguka” is located at Okiufa village just at the outskirt of Goroka Township. The dispute was referred to Local Land Court on the 23 May, 1994. Since its referred, nothing has been done until 2011 this court has come to relieve disputants of their burden of waiting. This would exactly be 17 years of waiting. We view this as totally unfair to both parties. This is a fine example of State Institutions letting our people down and in-directly asking people to take the law in to their own hands. We feel this is a valid point we need to raise up front.

3. On the 02nd March, 2011 prior to the commencement of Complainant’s hearing, defendant raised an issue questioning the conduct of two (2) members of the Local Land Court Panel. The initial Local Land Court Panel comprised of four (4) Landmediators who were Lore, Tovepa, Wesley and Noah. This arrangement is allowed by section 23 of the Land Disputes Settlement Act (Supra) on the composition of Local Land Court. Two (2) of the Landmediators Wesley and Noah were recently appointed and have no experience sitting as members of LLC Panel whereas Lore and Tovepa have sat on number of cases as members of Panel.

4. Defendant Gusamo claimed Landmediators Wesley and Noah were seen driven around in Complainant son’s vehicle from Mandarin Restaurant and drop-off in front of the Court House. Both Landmediators when questioned by the Chairman of this Court over this allegation admitted it so both were disqualified on the ground of likelihood of being bias. Land is a sensitive matter and in dealing with issues surrounding land like land disputes landmediators must by all means conduct themselves in a transparent manner and be fair to all parties. Landmediators conduct should not draw likelihood of bias.

5. Towards the end of defendant’s case prior to his final witness giving her evidence, defendant raised allegation that one of his supporters had sighted Landmediators Lore Klepetamero and Tovepa Atao inside Complainant son’s vehicle at the Rotary Park. Both Lore and Tovepa sternly denied this allegation. Since we are near completion of the case, chairman ruled that case proceed to its finality and should decision go against defendant he is at liberty to raise this allegation as a ground of appeal.

Complainant’s Case:
MUSAU AVEZE

6. The above named (Musau Aveze) is the Complainant in this ALATIGUKA land dispute. He gave evidence both orally and filed in support an affidavit sworn and filed on the 28th February, 2011. He also called another witness Auwo to support his case for ownership of he above stated land. Both Musau and his witness are of old age between late 60s and mid 70s.

7. Musau told this Court that “Alatiguka” land is his. He said his ancestors lived on this land and cultivated the land. He also said his mother and brothers lived on this land. He said he ate from this land.

8. Complainant Musau said when his brother died, he (Musau) asked Gizahupe who was occupying his land at that time to vacate the land but he (Gizahupe) resisted. Eventually, he said Gizahupe died and he (Musau) buried him. He (Musau) said he reached a consensus (agreement) with Amenite (Gizahupe’s son). He (Musau) said he took Amenite to Mt. Hagen and looked after Amenite for three (03) years. The consensus was for Musau to take he land, which we believe the land currently before this Court.

9. Musau continued that, he taught Amenite how to drive motor vehicle and assisted him to obtain a driving licence for him. He (Musau) said his son Levi gave Amenite K500.00 and K100.00 to him (Musau). Later he (Musau) said Amenite got sick and he died. Musau said Gusamo is Amenite’s son. He said when Gusamo got married he (Musau) killed a pig and chickens and gave Gusamo to assist him pay for his wife’s bride price.

10. “We lived happily,” said Musau and he said Gusamo told him (Musau) to go and clean the land. Musau said,” the law will decide but he (Musau) said Gusamo said “that’s your land.” Now, Musau said he changed his mind and words and they are in Court.

Complainant’s Witness Auwo Tate:

11. He told this Court that he gave the land to Gizahupe to build the house and live. He said the reason he gave the land to Gizahupe because Gizahupe is his brother. He also said Musau is talking about his land.

12. Auwo said Gizahupe is his twin brother who was given away in adoption. Because of Gizahupe the land was given to him because he (Gizahupe) was one of them. Otherwise, the land would not have been given. Basically, Auwo says Gizahupe originally belonged to Musau and Auwo as he is Auwo’s twin brother and the land was allocated to Gizahupe on that accord. Auwo said Musau was right as his land is below which is currently vacant. He (Auwo) said the land “Alatiguka” rightfully belong to the Complainant Musau Aveze. He (Auwo) said he was a member of Demarcation Committee and that’s what they (Demarcation Committee did and gave to Musau.

Defendant’s Case:
Mr. Gusamo Amenite

13. The above named (Gusamo Amenite) is now the defendant in this land. Initially it was Gizahupe and then Amenite. Amenite as mentioned earlier is Gusamo’s father. He gave both the oral and documentary evidence by way of an affidavit sworn and filed on the 25th February, 2011.

14. Basically, defendant Gusamo was using his affidavit (Supra) when giving evidence in Court. He said there were several land mediations and he estimated seven (7) were held but without any consensus. He said during these mediations his late grand father and father strongly opposed Musau’s claim to this land as he said, Musau was not the rightful landowner. Refer his paragraph 6, he (Musau) said the land was always used by his family beginning with his great grand father Zoppa. He said no-one has right to this land except his brothers and him.

15. Defendant said his right to claim the ownership of Alatiguka was solidified (strengthened) by the Demarcation Committee (DC) established by the then Colonial Administration under the leadership of Mr. Owen, District Commissioner and the land Landmediator Girupano from Seigu Hauslain (Refer paragraph 7). He said within Okiufa, the following members of Demarcation Committee members were appointed Gehae Gorohave, Ariti O’ozo, Papazo Ezegazuho, Vakao Tate and Asauwo Aveze. Gusamo said Asauwo being the elder brother of Musau did not object when the land was allocated to Gizahupe.

16. Gusamo also raised issue that Musau never opposed the Portion of the land towards South to Bari Ahupa. The sale was formalized and witnessed by clan leaders and relevant Government Officers. Defendant continued on that there was no evidence of crops, trees, tanget or any permanent buildings to prove that’s Musau’s land. He (Gusamo) concluded that when a two (2) story permanent building was built on the disputed land around 1966 there was no dispute.

Defendant’s Witness Akriwani Awozo.

17. This is defendant’s witness. She was short and brief when she gave evidence. She said she cultivated the land. She said that’s her land so her son Gusamo lived there.

Analysis.

18. From the evidence adduced so far on the part of complainant, we summed up the arguments as;

(a) the complainant based his argument that the land was belonged to him as Musau and Auwo from one family and Auwo’s twin brother Gizahupe was given away in adoption and so the land was given away as Gizahupe was Auwo’s brother. So the current land where Gizahupe occupied was Auwo’s land given to Gizahupe. So as Auwo’s said Musau’s land is on the bottom – side.

(b) Auwo Tate was a member of Demarcation Committee (DC) and he clearly told the court the land belonged to him where Gizahupe occupied and Musau’s land is at the bottom that alone override what Gusamo stated regarding Demarcation Committee in paragraphs 7 and 8 of this affidavit dated 25th February, 2011.

(c) Regarding Landmarks issue as raised by Gusamo, Masau stated there are some old trees planted on the land.

19. We find based on evidence presented before us that Musau Aveze’s interest on ALATIGUKA land is more outstanding then Gusamo. This was more inevitable as Ggusamo was lost when trying to question Auwo Tate. Gusamo was confused and had to admitted this in Court.

20. Based on the above analysis and findings (by majority) section 23 (3) of Land Disputes Settlement Act, we agreed and award the ownership of ALATIGUKA Land to MUSAU AVEZE. He shall have the exclusive use, possession, control and ownership of this land (s. 39 Land Disputes Settlement Act).

Complainant, In Person
Defendant, In Person