Goso v Gohanite [2011] PGDC 28; DC1076 (20 April 2011)

1076

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN IT’S LOCAL LAND COURT JURISDICTION]
LLC NO: 011 OF 2009

BETWEEN

APELE GOSO
Complainant

AND;

BEHO GOHANITE
Defendant

Goroka: M. IPANG

2009: March 22
June 21, 29
2011: April 20

Land mediators/Assessors
Lore Klepetamero, Tovepa Atao

Spokespersons:

Apele Goso, In person
Beho Gohanite, In person

LAND DISPUTES SETTLEMENT ACT, CHAPTER 45

Provides effective framework for solution of customary land disputes based on custom..

SALE AND PURCHASE OF CUSTOMARY LAND.

Not recognised by Custom but based fully on Commercial transaction. No Legislation to regulate Sale and purchase of Customary Land – Complicates the transaction and creates confusions.

20th April, 2011

REASONS FOR DECISION

M. IPANG Magistrate: The completion of the complainant and his witnesses giving evidence, it became apparent to us, the members of The Local Land Court that the complainant does not have an “interest” in the Lagakuka Land as recognised by custom and as stipulated under the Land Disputes Settlement Act, Chapter 45.

2. Complainant Apele Goso argued that he negotiated for the sale and purchase of “Lagakuka” Land from the defendant at a price of K5,000.00 but was reduced down to K4,000.00. Complainant told the court of different Payments he paid to the defendant and his son. He also argued that he has hired machinery to do landscaping at the cost of K16,500.00.

3. Because of various payments totalling up to K4,000.00 he has given to the defendant and the excavation and landscaping he did with the hiring of earth moving machines, he argued that the land should be given to him.

4. On the Contrary, defendant Beho argued that it took so long for the complainant to pay and so he has changed his mind. If the complainant still insisted to have the land, he said the complainant will have to pay him K16,000.00.

5. The application of Land Disputes Settlement Act, Chapter 45 provides for effective, and efficient settlement of Customary Land disputes based on the custom. The disputes are usually concern interests in customs. Major disputes normally connotes ownership or boundaries of the Land. This present case fall outside of the ambit of the Land Disputes Settlement Act. This case centred around the sale and purchase of “Lagakuka” Land. There is no dispute, the Beho is the customary Landowner.

6. The issue to be settled is did the complainant and defendant enter in to an agreement for sale and purchase of “Lagakuka” Land? If the answer to this question is in the affirmative, then did defendant breach the said agreement? The right forum to resolve the above issues is not through the Land mediation process and the Local Land Court but through the District Court or the National Court. But it should be the District Court as the initial agreed price is between K4,000.00 to K5,000.00.

Oath
Apele Goso States;
We promised that he sold this land to me. So I cleared this land. I hired a Grader.

He came to my house one morning (Saturday). He wanted K1000.00 deposit. I got him and we came to Land Mediator Lore. We went to my house and I gave him K1000.00. I gave K50.00 to Lore as bus fare.

When I cleared the land, he did not stop me. I did every work to clear and level this land. I gave him K3000.00 already and now he got the land back. I developed this land at a cost of K16,200.00.

Cross – Exam - (Beho)

1.d. He asked me for land and I refused?
A) We agreed and it cost me K5,000.00, but reduced to K4,000.00.

2.d Giving K1000.00 at the house not true. You gave me K30.00,
Next he gave me K1,000.00 through his son.
A) Lore witnessed me.

3.d. You did not give full K4,000.00.
A) first you gave me K1000.00, next K1000.00 + K1,000.00 = K2,000.00 and
Final K1,000.00 was witnessed by Lore.

4.d. You gave me in portions so I was not happy?
A) Your son gave me K1,000.00.

5.d. We agreed already.
A) You spoilt my land: you did not pay in full and spoilt my land. I repaid your monies.

6.d. I did not want my money back.
A) I repaid the money back.

Oaths
Beho Gohonite States;
Apele asked me for this land. I refused, next time he asked and I agreed to him, I charged him K5,000.00. He negotiated again with him to reduce to K4,000.00.

He did not pay me in full K4,000.00, but in instalments. One hire K1,000.00. It took a long time then his son gave me. I got K1,000.00, he got the machine and spoilt my land. He bought coffee.

I stopped contractors who wanted to construct cement. So I repaid all his monies back.

Now I built fences. He got police for me, I told the police that the land is mine. This is my land, he spoilt my land and now I want K20,000.00.

That’s all.

X -Exam

1.d. You agreed to sell this land to me?
A. Yes, I agree.

2.d. You came to my house one Saturday morning?
A. I went with Zuho.

3.d. Didn’t I give you K1,000.00?
A. No.
4.d. Was Lore there?
A Another time.

5.d. One time we got Lore
A. Yes

6.d. Skon red to you of your gaveo
A. Yes.

Oaths
Gumene States;
Apele gave K1,000.00 and within long intervals. The 2nd year, K1000.00 was given. Beho then refused Apele’s payments.

Myself and my husband brought him to repay K3,000.00 to Apele.

The other small brother went and collected another K1,000.00. We asked Apele for K10,000.00, but he refused. So we repaid his money. The land is now back with us.

X-Exam:

1.d. Beho’s son got the money?

A. Yes, K1,000.00

2.d. Behos permission not given?

7. The evidence before this Court is that after Apele and Beho entered into an agreement, defendant says complainant was too slow to complete the payment thus provoking the defendant to repay defendant’s money back. There was initial argument as to full-repayment but we are certain repayment has been made.

8. The matter issue before the Court was that upon complainant making the initial deposit payment, he hired an earth-moving machine to clear the land thus arguing hat he has spent money on developing the land. He in fact spent K10,005.00 as per invoice from E. Bowoku.

9. However we have found out that the customary landowner is Beho Gohanite and this has not been disputed by Apele Goso. Beho has also repaid almost if not all of monies paid to him by Apele Goso. The only issue is that Apele Goso acted on the premise that the land will eventually be his and so engaged in to developing the land. We believe he should be fairly compensated for this.

10. We make orders that Beho Gohanite is obligated and shall host a customary feast for Apele Goso. We order that Beho compensate Apele with the sum of K5000.00 for raising false alarm which saw Apele developed the land. This should take place before end of 2011. If either parties not happy they are at liberty to appeal this decision. We award K5000.00 and not K6000.00 as Apele while paying deposit, hired the machine to do earth works. The situation would be different if Apele Goso had completed the payment and then hiring out the machines.

11. We do also order that Beho not to make any improvements on the land until the compensation is paid to Apele Goso.

Apele Goso, In Person
Beho Gohanite, In Person