Lahis v Lesi [2015] PGDC 11; DC3002 (3 March 2015)

DC3002

PAPUA NEW GUINEA

[In the District Court of Justice sitting in its (Grade five) civil Jurisdiction]

DCCi no 09 of 2010

BETWEEN

APOLONIA LAHIS
ON BEHALF OF KUBU KUKUL WOMENS GROUP.
Complainant

AND

JACOB LESI
First Defendant

AND

EILEEN KIRAMA
Second Defendant

AND
AMBROS KOROATS PASSAM
Third Defendant

AND

PETER LESI
Fourth Defendant

Buka: B.TASIKUL
2015: 3^rd March

CIVIL LAW:

COUNSEL:
Appearing for Complainant: In person
Appearing for defendant: In person each

JUDGMENT

1. B.TASIKULa/PM: This matter came before me by way of Summon upon Complaint. The complainant is Kubu Kukul Women’s Group through their spoke woman Apolonia Lahis are seeking the following orders;
   1. That the defendants, agents and servants be restrained from further cultivating (planting bananas) the portion within the Japanese Government Shrine,
   2. That the defendants, agentsand servants be restrained from building and developments on the area within the shrine,
   3. That the defendants agents and servants retrained from erecting any form of houses whether permanent, bush material, toilet or otherwise,
   4. That the defendants, agents and servants be restrained from approaching the portion within the Japanese shrine within 100 meters on all angles.
      
2. The matter first came before me on the 26^th March, 2014 and since then nothing was done to dispose of the matter. The matter was refer for mediation but the parties never came up with an agreement. Therefore I decided to conduct a hearing.
   
3. The complainant called four witnesses who testified. They are Apolonia Lahis, Matani Juliana, Roselyn Levi, Joan Toroken and Aloysius Semi
   
4. The defendants on the other hand also gave evidence and called two witnesses namely; Francis Semoso and Channel Kapal.
   
5. The complainants testified that since 2005, a decision was made by the chiefs of Kubu Kukul for the Kubu Kukul Women Group to look after the Japanese shrine. This shrine is within the Kubu Kukul customary land.
   
6. In 2008 the Kubu Kukul Women group started clearing the portion of land where the shrine is situated. They planted flowers around it as it was for the purpose of tourism attraction.
   
7. Sometimes in 2014 the defendants started to settle and constructed buildings and planted bananas trees next to the shrine. This now lead to the complainants seeking restraining orders against them.
   
8. The defendants testified that there was an agreement made during a meeting between the parties after the matter was referred for mediation. The meeting was chair by Francis Semoso.
   
9. The agreement reach states that;
   
   1. No building shall be constructed within a 10 meters perimeter on all four corners of the shrine by any members of the clan
   2. The women group will start to develop and maintain this site on behalf of the clan
   3. This portion of land is customary land and therefore can be used by any member of the Nakaripa clan.
      
10. It was stated that all parties agreed, however, there was an objection by Apolonia Lahis during cross examination when she stated that they were not happy because during that meeting one of the defendant Eileen Kirama was not steady and was angry.
    
11. If this court is to uphold this agreement then the only issue now is whether this court should grant 100 meters or 10 meters apart from the four corners from the shrine.
    
12. If that decision was made and accepted by all the parties, then it would have been appropriate also in that meeting the reason why they agreed for the 10 meters perimeter. Even though the land is a customary land owned by the Nakaripa clan, there should be reasons where they agreed on the 10 meters.
    
13. The Kubu Kukul Women Group wanted a 100 meter perimeter on all four corners because they want the area to be free from buildings as they wanted to promote tourism in their area.
    
14. Without any valid reasons and evidence why they agreed on a 10 meters perimeter I would not accept that the agreement was a consensus that was reached by the parties.
    
15. Based on the evidence before me I am satisfied that the Kubu Kukul Women Group were the first to clear around the Japanese shrine and I find that they are part and partial of the Kubu Kukul customary land owners and therefore are entitle to participate in any development of the land.
    
16. The issue of whether the group is registered or not under the Land Group registration Act is not relevant as the proceeding is not about land ownership.
    
17. I therefore grant the following orders;
    
    1. That the defendants, their agents or servants be restrained from further cultivating(planting tree fruits such as bananas etc) the portion of land within the Japanese shrine,
    2. That the defendants,agents,and servants be restrained from building and developments on the area within the shrine,
    100. That the defendants, their agents or servants be restrained from constructing any buildings such as toilets, bush material house or permanent building,
    4. That the defendants, agents or servants be restrained from approaching the portion with the Japanese shrine with 50 meters on all angles,
    5. Any buildings or food crops such as banana trees that are within the 50 meters be remove within three weeks.