Rawali v Kema [2006] PGLLC 4; DC553 (29 December 2006)

DC553

PAPUA NEW GUINEA
[IN THE LOCAL LAND COURT OF JUSTICE]

LLC 21 OF 2005

BETWEEN

LAKA RAWALI & ORS OF POUGOLO CLAN
COMPLAINANTS

AND

RUPA KARO KEMA & ORS OF POUGOLO CLAN
DEFENDANTS

Port Moresby: Bingtau, LLM, Gima Kana, LM & Iamo Namana, LM.

2006: 06 & 13 February, 06 March,
25 April, 20 & 21 June, 22 August,
5 September, 23 October,
2, 9, 27, 28 & 29 November & 29 December

Local Land Court Practice & Procedure – Customary Land Mediation, Service of Notice, Principles of Natural Justice - Whether Local Land Court can hear the dispute ex parte – Whether Complainant had proved customary interest in the disputed land – Decision by majority vote.

Facts

This is a customary land dispute which arose between the Complainant and the Defendants over a small portion of the "Kirapu" customary land at Makerupu Village, Hood Point Ward, Rigo Coastal Local Level Government in Central Province. The dispute initially arose when the Defendant erected nine house posts into the Complainant’s portion of Kirapu land. Both disputing parties are descendants of the common ancestor namely Laua Ripi, male of Pougolo clan.

Held

1. That the customary ownership of the Kirapu land is awarded to Mr Laka Rawali and family of the Pouna Laua family of Pougolo clan.

2. That Mr Rupa Karo Kema of the Rupa Laua family of the Pougolo clan had trespassed into Mr Laka Rawali and family’s Kirapu land by erecting nine house posts into Kirapu land therefore he is hereby ordered to pull out all the house posts he erected and vacate the land forthwith.

3. All Rupa Laua families are to stay out of Kirapu land.

Appearances

Mr Laka Rawali in person
Mr Rupa Karo Kema in person

JUDGEMENT

29 December 2006

Bingtau LLM, Kana LM, Namana LM.

The Complainant commenced this Local Land Court proceeding by registering a dispute with the Hood Point Village Court, however, the dispute was transferred to the Local Land Court. The Local Land Court appointed four Ad-Hoc Land Mediators to carry out mediation. Mediation was done under s 17 of the Land Disputes Settlement Act however, the mediation failed. The dispute was than referred to Local Land Court for hearing under s 31 of the Land Disputes Settlement Act. The court heard the Complainant’s evidence ex parte when the Defendants failed to appear in court for three times.

Facts

2. The relevant facts from the evidence is that the Kirapu customary land dispute commenced when the Complainant alleged that the Defendant had trespassed into his Kirapu customary land by erecting nine house posts into his land. The disputing parties are both descendants of their common ancestor, Laua Ripi of Pougolo clan. There were three children born to Laua Ripi, namely Kema Laua, Pouna Laua and Rupa Laua. The Complainant is from Pouna Laua family. The disputed Kirapu land is owned by Pouna Laua family but the Rupa Laua family owns the Galukou and Palagolo land which are adjacent to the North and West of the disputed land.

Issues

3. There were two issues faced by the court and they are:

1. Whether the Local Land Court can proceed to hear the Complainant’s evidence ex parte?

2. Whether the Complainant had proven customary interest in the disputed Kirapu land?

Assessment of Evidence & Application of Law

4. The first issue posed by this case was whether the Local Land Court can proceed to hear the Complainant’s evidence ex parte? To determine the issue the court sought assistance from s 31 and 71 of the Land Disputes Settlement Act and s 59 of the Constitution. Section 31 of the Land Disputes Settlement Act provides that:-

"31. Applications.

(1) Subject to this Act, all proceedings in a Local Land Court shall be commenced by an application made t -

(a) a Magistrate of a Local Court, or

(b) a Local Land Magistrate

(2) An application may be made by-

(a) a Land Mediator

(3) An application-

(a) may be made orally or in writing, but if made orally it shall be reduced to writing by or on behalf of the applicant before the hearing commences, and

(b) shall be accompanied by a general description of the land in dispute.

(4) Where an application is made to a Magistrate of a Local Land Court under subsection (i), he shall, subject to s 30, forward it to a Local Land Magistrate apparently having jurisdiction over the dispute."

"(5) On the making of an application, the Local Land Court shall cause notice of the application to be given in accordance with s 71"

"71. Service of notices

(1) Subject to this Act, where a Local Land Court is required to give notice under this Act the notice shall be given by-

(a) giving it to the parties to a dispute or the representatives of the parties

(2) For the purposes of giving notice under this Section, a Local Land Court may require-

(a) a Local Government Council or

(b) the provincial authority, or

(c) a District officer, to act as agent.

(3) A notice referred to in subsection (1) may be given in any language or languages that the Local Land Court or a person or authority acting for the court under subsection (2) thinks appropriate.

(4) For the purposes of subsection (i)(a), where a party consists of more than one person it is sufficient if the notice be given-

(a) where a representative of the party has commenced acting on behalf of the party to that representative, or

(b) in any case – to a member of the party apparently over the age of 18 years provided that the person is informed that the notice is a notice that is required to be given to the party."

Subsection 59 of the Constitution provides that:-

"59. Principles of Natural Justice.

Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly, and, in principle, to be seen to act fairly."

5. The minutes of the court shows that the Kirapu land dispute was referred for hearing when the mediation failed on the 11 November 2005. First notice of hearing was issued from Kwikila on the 18 July 1996 for the dispute to be heard on Wednesday, 24 of July 1996, however, the dispute was never heard and completed. Then the second notice of hearing was issued on 6 January 2006 from Port Moresby Central Court for the case to be mentioned on the 6 February 2006 at 9:30 am. On the said date both parties appeared for mention. From then on the case had been adjourned several times till the 2 November 2006, the Complainant appeared but Defendant made no appearance. The case was adjourned to 9 November 2006, at 9:30 am. Notice of hearing was issued for both parties. On the 9 November 2006, only the Complainant appeared but the Defendant did not. The case was adjourned for the last time for two weeks to allow the Defendant to appear for the case. After two weeks on the 27 November 2006, at 9:30 am, only the Complainant appeared and not the Defendant. The court decided to proceed ex parte on the basis that on the 2 November 2006, 9 November 2006, and 27 November 2006 only the Complainant and the two Ad-Hoc Land Mediators have been appearing for the case. Only the Complainant paid the two Ad-Hoc Land Mediators’ bus fare and lunch money while the Defendant did not.

6. Therefore it can be seen that the court had complied with s 31 and 71 of the Land Disputes Settlement Act to serve notice on the two disputing parties and they have been appearing in court starting from 6 February 2006 to 5 September 2006. This case was scheduled for hearing when both parties agreed to pay K30.00 each for the two Ad-Hoc Land Mediators to attend court hearing each day due to insufficient funding from the Central Provincial Government for Land Court work. On the 5 September 2006 the court scheduled the case for trial between 23 October 2006 to the 27 October 2006 after both parties and their witnesses filed and served their Affidavits. However, the trial did not proceed as scheduled due to the Local Land Court Magistrate, Mr. Nasiling Bingtau stranded at Magarida Patrol Post while on court circuit to hear the Magarida Patrol Post land dispute. The Complainant had been enquiring with the court registry on the next hearing dates, on the 2 November 2006, 9 November 2006 and 27 November 2006 while the Defendant failed to enquire. If the court through the Complainant had not served notice of hearing on him, he had the duty to enquire at the court registry because he knew very well that the case was scheduled for trial but due to the Local Land Court Magistrate being stranded at Magarida Patrol Post, the case was not tried as scheduled between 23 October 2006 to 27 October 2006. It can be seen also that the court had observed s 59 of the Constitution by adjourning the case for trial for two weeks from 9 November 2006 to the 27 November 2006 to 1 December 2006. Defendant failed to enquire for this case either in person or through his representative. Therefore the first issue be answered as "yes", the court can hear the case ex parte due to the Defendant being aware of the pending land case and that the court had adjourned for two weeks which is sufficient and reasonable time to give opportunity to Defendant or his representative to enquire with the court registry for the next hearing date and appear for trial between 27 November 2006 to 1 December 2006. Therefore the court acted fairly as provided for under s 59 of the Constitution.

7. The second issue posed by this case was whether the Complainant had proven customary interest in the disputed Kirapu land? The court conducted ex parte hearing of the Complainant’s evidence by observing s 35 of the Land Disputes Settlement Act which provides that:-

"35. Practice and Procedure of Local Land Courts.

(1) A Local Land Court-

(a) is not bound by any law or rule of law, evidence, practice or procedure other than this Act, and

(b) may call and determine, or permit the parties to call and examine, such witnesses as it thinks fit, and

(c) may otherwise inform itself on any question before it in such manner as it thinks proper, and

(d) subject to s 40, shall endevour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom."

8. The sworn evidence for the Complainant were from Mr Laka Rawali, the Complainant himself, Mr Tau Rupa Kema and Mr Rawali Vavine. Though many things were said the court summarized and found the following to be the relevant facts:

1. From the Complainant’s evidence the court found that the Complainant and Defendant are both descendants of one common ancestor called Laua Ripi, male of Pougolo clan of Babaga Village. He had three male children called Keina Laua, Pouna Laua and Rupa Laua. The said three brothers were the first ones to move to the present Makerupu Village and started the village then others joined them.

2. When the three brothers lived at Makerupu Village, they divided the land amongst them and used them. Their children and descendants have used the land areas and they have used up to this day. The land areas owned and used by Keina Laua and his descendants are Aruagauna, Keinavele, Pate, Apena, Tau, Valigauna, Geno Kalalana and Veravegauna. The land areas owned and used by Pouna Laua and his descendants are Pana, Rama Kou, Kirapu, the disputed land, Kino, Galoakou and Kawala. The land areas owned and used by the Rupa Laua family are Palagolo, Kewarni, Galokou, Konegauna, Kupakupa and Valikalana, Palu, Gilimo, Ou and Verave Gauna.

3. The Complainant inherited the disputed Kirapu customary land through his grandfather called Rokona Vekoko, the son of Pouna Laua’s daughter, Raki Pouna because Wari Pouna, the son of Pouna Laua had adopted Rokona Vekoko his nephew to inherit all of Pouna Laua land because his own son called Geno Wari did not have a male son to inherit all his land around the 1880s.

4. There was a big tree called "Vatina" that was growing between the Complainant and families’ Kirapu land and Defendant and families’ Galokou land and it was used as land boundary marker separating the said two customary lands but unfortunately the said "vatina" tree was chopped down during the road construction in the mid 1980s.

5. This dispute began because the Defendant’s grandfather, Rupa Kila had misled him and his father on the ownership of the Kirapu land. Defendant’s grandfather with permission from the Complainant’s father, Rawali Rokona, after the death of his father, Rokona Vekoko around 1943 made garden in Kirapu land with condition that he was told not to plant any tree crops on the land. However, Rupa Kila in breach of the condition planted coconuts which Complainant’s father in anger uprooted most of them but Rupa Kila said Rawali do not destroy all the coconuts because I planted them for your children. As a result, some coconuts have been left growing and that misled Defendant to claim ownership of Kirapu land.

6. In 1977 the Defendant’s younger brother Kema Rupa chopped

down a canoe tree called "Kalamo", in language, which grew in the disputed portion of Kirapu land to make canoe without the permission of the Complainant’s elder brother, Pala Rawali, after their father had already passed away. Pala Rawali and cousin Tau Rupa Kema chopped into pieces the said Kalamo tree because Numa Rupa failed to seek permission from Pala Rawali to cut the canoe tree. On 5 August 1977, Pala Rawali and Numa Rupa went before the Hood Point Ward Land Mediation to mediate the Kirapu land dispute, however, the said dispute by Numa Rupa was dismissed in favour of Pala Rawali. Numa Rupa further summoned Pala Rawali and cousin Tau Rupa Kema seeking compensation for chopping the Kalamo tree before the Hood Point Village Court. However, that case too was dismissed in favour of Mr Rawali and Mr Kema.

Complainant’s first witness, Tau Rupa Kema, 72 years old is from the Defendant’s family. His sworn evidence basically shows he collaborated the Complainant’s evidence that Kirapu land is owned by the Complainant’s family. He confirms the Complainant’s evidence on the destroying of the Kalamo canoe tree and the land mediation and the compensation claim followed. He was involved in those cases with the late Pala Rawali.

Complainant’s second witness was 82 years old Rawali Vavine who is the descendant of a great great grandfather from another clan and village adopted into the Defendant’s Rupa Laua family. His sworn evidence is that the Rupa Laua family had given his family a piece of their land to work on and they have worked on it up to his day. Being part of the Rupa Laua family he knows very well all the portions of land owned by the Rupa Laua family therefore he supports the Complainant’s family claim that the disputed land is owned by the Complainant’s family and not the Defendant’s family. He also confirms that there was a tree named "Vatina" growing as land mark between the Complainant’s Kirapu land and Defendant’s Galokou land however, it had been chopped down during the road construction work in the 1980s.

Land Inspection

9. In accordance with s 36 of the Land Disputes Settlement Act, the court conducted inspection of the Kirapu land with the Complainant and his two witnesses plus his sons and others. During the inspection the court was shown the whole boundary of the Kirapu land, the site of the "Vatina" tree land boundary marker, the shifting of Kirapu land boundary further to the East into the Kirapu land by Complainant from the old Vatina tree boundary marker to allow for his cousins, the Defendant’s older brothers to build their houses and they have already built their houses within the land Complainant had shifted boundary and the disputed portion of the Kirapu land. The court was shown the disputed portion as starting from the new boundary set by the Complainant in Kirapu land, close to one of the Defendant’s brother’s house, Defendant erected a line of three (3) house posts in his Galokou land but erected three lines of twelve (12) house posts into the Complainant’s Kirapu land. The house was not completed as a result of the dispute. The disputed Kirapu land was shown to lay both sides of the Port Moresby-Hula Highway and the disputed portion is about 5 to 6 metres away from the highway. The Complainant had been very kind to the Defendant’s family to give fifteen (15) metres of Kirapu land to them and he cannot give more.

Conclusion

10. In accordance with s 68 and 69 of the Land Disputes Settlement Act, the court assessed all the above stated facts and found that the Complainant and his two witnesses are honest and truthful witnesses because they are old people whose ages ranges between 62, 72 and 82 years old. They have been born, raised and grew up in their village. They were taught of their family genealogy and family land. They lived most of their lives in the village though the Complainant had served as a teacher in Morobe Province for some time but returned home. The court did not doubt the Complainant’s two witnesses from the Defendant’s family but found them to be reliable and honest witnesses and there is no evidence to suggest that the two are supporting the Complainant out of hatred or evil intent against the Defendant, their family member. The court warned itself of the fact that Complainant and his two witnesses were not tested by cross-examination by the Defendant too the Defendant’s affidavits plus witness were filed and served but did not attend the court hearing to tender to court and cross-examined by the Complainant, under s 59 of the Constitution.

11. Therefore all the reasons stated above the court on the balance of probabilities found that the Complainant had proven that his Pouna Laua family have owned and used the Kirapu land for a long time and have customary interest in it than the Defendant’s Rupa Laua family therefore the second issue be answered as "yes."

Court Decision

12. After considering all the relevant facts under the two issue raised by this case under s23(3) of the Land Disputes Settlement Act, the court in a majority decision decided that the customary land ownership in the disputed Kirapu land be awarded to the Complainant of the Pouna Laua family of the Pougolo Clan. Therefore it follows that the Defendant of the Rupa Laua family of the Pougolo clan be ordered to pull out all his house posts erected on Kirapu land and vacate the land. Further all Rupa Laua Family to stay out of the Kirapu land, under s 39 of the Land Disputes Settlement Act.

Orders accordingly.

Mr Laka Rawali, in person
Mr Rupa Karo Kema, in person