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Papua New Guinea Local Land Court |
PAPUA NEW GUINEA
IN THE LOCAL LAND COURT
HELD AT GOROKA
EASTERN HIGHLANDS PROVINCE
LLC No. 002 of 2008
Land Disputes Settlement Act, Chapter 45
IN THE MATTER OF UTILIZA (ZAGOHAKA) CUSTOMARY LAND DISPUTE
BETWEEN
NEW LIFE LEAGUE MISSION (NLLM)
Complainant
AND
WINNIE NAMANE
Defendant
Goroka: M. IPANG
Local Land Court Magistrate
2007: July 08
October 16, 25, 26, 29
2008: January 16, 24
February 01, 05, 12
May 20
Land mediators/ Assessors
Lahone HASU
Tovepa ATAO
Lore Klepetamero (Sitting in as observer)
Spokesperson
Complainant: Pr. Wesley Ekesae
Defendant: Winnie Namane in person
20 May 2008
Land Disputes Settlement Act, Chapter 45 – Interests in customary land based on custom – foreign organization – acquiring customary land – whether such transaction can be facilitated by custom and the Land Disputes Settlement Act, Chapter 45 – (The case of Application of Rimbo Susu [1992] PNGLR 37 followed) – Foreign Organizaiton alien to our customs and traditions of owning and acquiring customary land.
Customary Land – Demacation Committee members – identified and confirmed ‘Utiliza’ Zagohaka Customary Land ownership and boundaries – a Demacation Committee member secretly and fraudulently sold customary land to foreign organization alien to PNG’s customs and traditions of land ownership.
Land Act, 1996 – Part III allows or provides for customary land to be acquired by state – forbids foreigners or foreign organizations to have direct dealings in purchasing or acquiring Customary Land from native Papua New Guineans.
Land Act, 1996 – do not accommodate disposal of customary land by custom – S. 73 cautioned traditional landowner with intention to sell, lease or dispose of customary land must do so in line with custom – there is no specific legislation regulating purchase by custom of customary land.
Practice and Procedure – Section 35 (1) (a) (b) (c) & (d) of Land Disputes Settlement Act, Chapter 45 on Practice and Procedure of Local Land Courts applied.
Words and Phrases – ‘Katim Nus na Pes’ – means doing good favours for the customary Landowner or Landowner’s uncles like kill pig(s), give money, give food stuffs, give feast(s), contributed cash and in kind towards funeral expenses of the above named. GULLG – means Goroka Urban Local Level Government. NLLM – means New Life League Mission.
Held:
Cases Cited
Application of Nango Pinzi [1988–89] PNGLR 464
Application of Rimbo Susu [1992] PNGLR 37
Blasius Vaniak, Tommy Robin & Others –v- Muvamastrum P/L, Bismark Industries P/L and The State, OS No. 30 of 1993, N 1223
Kojo II –v- Bonsie [1957] 1 WLR 1223
Re Hides Gas Project Land Case [1993] PNGLR 309
Wabia –v- BHP Exploration [1998] PNGLR 8
Legislation
Land Act, 1996
Land Disputes Settlement Act, Chapter 45
DECISION
M Ipang: This is a Customary Land dispute case over customary land known as “UTILIZA (ZAGOHAKA)” which is located just outside (on the outskirt) of Goroka Town. This is one of the impact land dispute cases as it is within the vicinity of this land that Goroka Urban Local Level Government (GULLG) extract water to supply to its residents and charge fees for providing this municipal service. GULLG has purchased the Komiufa side of water catchment area in the sum of K10, 000.00 which comprised the South portion of land. The North portion of land is now the subject matter of this dispute. GULLG has also intended to purchase this portion of land in the sum of K10, 000.00 from whoever is awarded the ownership of this land ‘Utiliza’ Zagohaka at the conclusion of this case. The Town Manager Mr. Yaungao Uyassi and PPA Lands Mr. Ralph Siove were summoned as Court Witnesses to give evidence on the State’s interests in the land in dispute. Mr. Yaungo Uyassi provided a short statement in written form dated 30 January 2008 to Court. Mr. R. Siove told this Court that he has no evidence to give to Court.
2. Delay in delivery of Decision
From the outset, I must apologise to the disputing parties for the delay in finalizing and announcing this decision. There are several causes to this delay:
3. As usual, the dispute went through Land Mediation process and then was referred to the Local Land Court. The referral of this matter has caused some curiosity and anxiety on the complainant. Complainant during the preliminary hearing submitted that during the mediation a decision was made in which the subject land now in dispute was awarded to the complainant. As a result of this, complainant said there was never an official referral of this land dispute to the Local Land Court
4. Application by Complainant on 16 October 2007
In support of Complainant’s argument, the spokesman Pr. Wesley Ekesae referred to a letter dated 17 December 2002 written by Andrew Kasu, the Land Mediation clerk and copies sent to PPA – Lands and SPM – Goroka District Court. This letter was written to the District Administrator, Goroka District Administrator. The content of this letter is self-explanatory and I quote:-
“The recent land dispute between Winnie Namane and the New Life Mission over land knows as “Zagohaka” was not referred to Local Land Court officially by this office.
The Land Mediators upheld the decision of the agreement made at the day of the mediation with the Land owners in favour of the New Life Mission and was honoured. They also informed Mr. Winnie Namane to lodge an appeal if he was not happy with the outcome.
Later on Mr. Namane asked me to obtain Form 8 (Dispute Referred to Local Land Court) and Form 7 (Record of Mediation) but I told him, I won’t let him have it but just made an example for him to see using the Form 8. He then took the Form 8 from me, attached it with his letter and put it through to the Court House as if referring the matter to the Local Land Court without my knowledge at his own accord.”
Mr. Andrew Kasu concluded that:
“We at this office did not refer the case to the Local Land Court. Any land dispute that is referred to Local Land Court by this office as you know is accompanied by Form 7s, a Form 8 and a sketch map of the disputed area and also most importantly a covering letter on official letter head. Thus, the dispute has never been referred to Local Land Court from our end at all.”
5. Upon receiving the letter from Mr. Andrew Kasu, the District Administrator Mr. David Kavanamur wrote a letter dated 10 December 2002 Ref. 34-1-1 to the Mayor, Goroka Urban Local Level Government (GULLG). Mr. Kavanamur said, “The dispute between Mr. Namane and New Life Mission Representatives was settled, through mediation process and mediators upheld the previous agreement dated 24 September 2001. The agreement was in favour of the New Life Mission.”
6. Mr. Kavanamur continued:
“The referrals of land disputes to Local Land Court is done officially after failure to amicably resolve the dispute by officers of District Service.
The attached Form 8 is not the only document for referral to LLC. It must be accompanied by a sketch map, a brief report and a covering letter on official letter head explaining why it is referred to the LLC.
The dispute between both parties was settled and this office did not refer the dispute to the Local Land Court. This office recognises the New Life Mission and its representatives as the legal rightful owners of the dispute land.
Please proceed with payment and disregard the content of Form 8 as it is illegally referred to the Local Land Court. Also this office did not receive a letter of their intention to appeal, etc.
Signed:
B.A PAISE
PPO for
District Administrator”
7. The letter by Andrew Kasu and Mr. Bill Kavanamur took another twist when the aggrieved Mr. Winnie Namane wrote a letter (10/12/02) to Mr. Mathias Kisokau, the former Local Lands Court Magistrate. In his letter Mr. Namane stated and I quote:-
“Sir, a biased decision was handed down at the District Service by Kiaps and mediators after mediation between myself (Winnie Namane) and the New Life League Mission over the land known as “UTILIZA” (ZAGOHAKA).
I as the respondent in the same, am not happy with the way the mediation was conducted. In that regard, I intent to have the matter be heard again in the District Land Court. Sir, I am of the view to have the matter registered in the District Lands Court which will enable me to make further application restraining the complainant from taking my further steps or actions.
The complainant (New Life League Mission) have fraudulently proceed to produce illegal documents relating to the District Service decision and which were self kept and un-served documents such as statutory declaration etc... either me or the District Lands Court before the Goroka Urban Local Level Government for compensation payment. The fraudulent exercise occurred whilst this particular disputed land matter was still pending.
Therefore, your Worship I humbly request your Honourable Court to consider my grievances regarding the above mentioned biased decision which was done in favour of the Complainant (New Life League Mission) and have the matter be registered in the District Lands Court and set a date for hearing.”
8. Three days after receipt of Mr. Namane’s letter of 10/12/02, Mr. M. Kisokau wrote a letter (13/12/02) to the Mayor on the 13 December 2002. Kisokau’s letter stated that his office having received such complaint by disputant Winnie Namane advised your good office not to do any payments to New Life League Mission at this point in time the ownership of ‘ZAGOHAKA’ is still pending and undecided (See attached Form of the Land Dispute Settlement Act) and also photocopy of Section 10 of the Land Act 1996 attached for your information. I will revert to discuss Section 10 of Land Act, 1996 when I dwell on the issue of purchase of customary land.
9. During the commencement of hearing in to this land dispute Pastor Wesley Ekesae for the complainant submitted to this court that since the referral of this land dispute was not done by the officers from the Goroka District Services, the referral is deemed illegal and should be declared ‘null & void’ and that the ownership of the subject land now in dispute be still vested in the New Life League Mission (NLLM).
10. On the other side of the argument, Mr. Namane (Defendant) argued that there was no agreement between him and the complainant during the mediation and that Land mediators have no right to make decision. He said because of this he approached Mr. M. Kisokau who accepted his referral Form.
11. Ruling on Preliminary Application by Pastor Wesley Ekesae – New Life League Mission (NLLM) Complainant
It is wrong for the Land Mediators to make decision during mediation. The Land Disputes Settlement Act, Chapter 45 does not empower land mediators to mediate land disputes and make decision. See Division 3 – Mediation and Agreement, Subdivision A – Mediation especially S. 17 Mediation.
12. The basic function of land mediators is to mediate or liase with both disputing parties and get the parties to come to a compromise or agreement. See Subdivision B – Agreements, especially S. 18 Agreements. As I have stated, land mediators do not have rights to make decisions. Section 15 states function of a land mediator is to assist in attainment of peace and harmony in the Land Mediation Division – by mediating in and endeavouring to obtain the just and amicable settlement of disputes.
13. In this present case should parties have reached an agreement due process under the Land Disputes Settlement Act, Chapter 45 has not been effected. Approval of Agreement Form has not been filled out by both disputants and the terms of Agreement has not been properly spelt out. Furthermore, the agreement has not been submitted to the Local Land Court for its approval or blessings (Section 19 Land Disputes Settlement Act). Without this due process been fulfilled, the complainant (NLLM) with the assistance from District Services seek payment of compensation to the complainant.
14. On the other end, I am satisfied that the Referral of a Dispute to Local Land Court was not officially done by the responsible authority but by the defendant Winnie Namane. The said Referral done by the defendant was accepted by the then Local Land Court Magistrate Mr. Kisokau.
15. What more can be expected of the defendant? Of course his hands and legs were tied. He has not come to compromise with the complainant, he has not agreed with the land mediators agreement, officials from District Services were not co-operative with him to see his plight so he did what he thought was best thing to do.
16. Since the then Local Land Court Magistrate has accepted the Referral Form it is now deemed proper and official. I, therefore refused the application by the complainant and order that this land dispute proceed to full hearing. I consider decision by Mr. Kisokau to be fair and do not wish to deviate from his ruling.
17. Local Land Court Practice & Procedure
First and the foremost, this Court is mindful of the practice and procedure of the Local Land Court that need to be observed as the hearing in to this land dispute commence and progress to its conclusion. Section 35 specifically spelt out the practice and procedure for the Local Land Courts.
“Section 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 examine, or permit 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 it thinks proper; and
(d) subject to Section 40, shall endeavour to do substantial justice between all persons interest in accordance with this Act and any relevant custom.”
18. Complainant’s Case (26/10/07 at 1:00 pm)
Complainant called four (4) witnesses. They were namely Pastor Wesley, Jack Opave Namane, Popolae and Rocky Pupune. Complainant’s witness Rocky Pupune works for Pacific Helicopters (Goroka) and a Summons to Give Evidence was issued to him to come and give evidence. He has complied and has given his evidence on the 29 of October 2007 at 1:00 pm.
19. Pastor Wesley Ekesae (Witness 1)
Pr. Wesley Ekesae is the spokesman for the complainant. He said he represented the church (NLLM) and has been with the church for 23 years. He gave both the oral and written evidence. He said he is from Aratiufa village (Hauslain), Gorohasua clan. He made himself clear to this court that his ancestors have no interest in the said land dispute and so he also has no interest in the land.
20. However, as a representative of the church (NLLM), he has attended land mediation on 4 – 5 occasions and his interest in the land is because of NLLM. Pastor Wesley gave a brief history that a missionary by name of Harp Parsons left America and came all the way to Goroka, PNG, in early 1960s. After Parsons left he was relieved by Hal Abner and Fred Pelpman. Missionary Parsons settled at Mehibaga, Bena which currently hosts NLLM church Headquarters. The said missionary did outreach work at Bena, Unggai, Asaro and Goroka areas. After a new church building was constructed, to hold Menepoka New Life Church, it was discovered that the land mass was too small to accommodate Pastor’s house, garden and other related church activities.
21. The principal evidence given by Pr. Wesley was that ULAKUSIE AWAZO (Land owner) gave the land ‘ZAGOHAKA’ to God to build the church. He confirmed this in his submission that Ulakusie offered ‘Zagohaka’ Land now in dispute to the LORD as offer to pursue the Lord’s work so the people of Nupaha, Aratiufa, Kameyufa and Samogoni could benefit spiritually and physically. He said if the church did not get this land then he would not talk about this land. He said NLLM gave K200.00 to ULAKUSIE AWAZO as ‘thanks giving money.’ So this land Zagohaka is now the church property.
22. Jack Opave Namane (Witness 2)
This was the complainant’s second witness. He is the brother of the Defendant in this land dispute case. He told this court on the 26 of October 2007 that he had previously signed a Statutory Declaration form that this land ‘Zagohaka’ belonged to other clan and not his clan. He said he was appearing in this court to witness this aspect of evidence in support of Mission (NLLM).
23. Popolae Ipakue (Witness 3)
Popolae Ipakue is the In-law of Ulakusie. He married Ulakusie’s daughter and has lived together with Ulakusie. He said he was around when Ulakusie gave land ‘Utiliza’ (Zagohaka) to the New Life League Mission (NLLM).
24. He said at the time when Ulakusie gave the land to NLLM there was no complain about this. He said the boundary of land given to NLLM commenced from the small creek ‘Zagohaka’ to the main road to Forestry and down to the Town Water Supply catchments area.
He told this Court that NLLM has properties like house and trees on this land. I will discuss this aspect of evidence in the latter part of this judgment. There is a need to draw distinction between NLLM’s property, and Ulakusies property. Ulakueis’s property like trees, land marks would have more impact on this case than NLLM.
25. Rocksy Pupune (Witness 4) 29 October 2007
This witness was sworn on oath. He produced before this Court his evidence in written form and also gave oral evidence. He said he was baptized with NLLM. He said they (members of NLLM) wanted to build a church building and started looking for land. He said the old man ULAKUSIE gave them (NLLM) a piece of land. They built fence, church building and stayed there. (emphasis mine).
26. Mr. Pupune said Ulakusie did not complain. He told this court that Ulakusie offered us this land. We (NLLM) said “sorry money” and when Popolae came, I gave him K200.00 and he gave the money to Ulakusie. He said there was no complain from family members of Ulakusie.
27. He identified the land boundary as commencing from the Zagohaka River up to the Road and to the drain and back to the River. The other witness Popolae Ipakue also described the alnd boundary. Refer to paragraph 24.
28. There are basically the evidence adduced or produced by the Complainant’s witnesses. I will dwell in more detail the evidence extracted during cross-examinations when I come to do analysis of evidences of complainant’s case and likewise for the defendant’s case. Then, I will apply the relevant laws to the factual analysis to draw a rational conclusion as to which of the disputing party has the most probably interests based on custom in regard to the ownership of the ‘UTILIZA’ (ZAGOHAKA) customary land.
29. Defendant’s Case
Defendant has submitted a list of witnesses that he intended to call. They are:
30. Winnie Namane (First Witness) 29 October 2007
He gave oral evidence also. He said the true land owner of ‘Utiliza’ (Zagohaka) customary land is IKISAULE NONO. He said Ikisaule and Ulakusie are from the same clan but are not blood brothers or born from the same parents. Mr. Namane tendered two separate affidavits before this Court. One is dated 19/10/07 and the other is dated 23/10/07. Both are similar in contents.
31. Mr. Namane said he paid for this land in the eyes of public and he further said he has signed a Statutory Declaration Form with the landowner Ikisaule Nono. Defendant declared on the 30 October 2002 that:
“On the month and year of June 1987 with cash money of K200.00 and in kidn with food stuffs including live pig worth K600.00 and frozen beef (cow) worth K300.00 and two (2) chicken cartons worth K174.00, I bought the land known as ‘Utiliza’. He further declared that “In addition to what I have contributed towards the buying of ‘Utiliza’ land, I do pay Ikisaule normal visits and buy him coffee, sugar, rice worth K150.00. Ikisaule was of an old age and just about to pass away. My last contribution was towards Ikisaule’s death.”
He said Ulakusie is a landowner too but not the owner of the land which is now in dispute. He told this court that Ulakusie has land within the same area close to the disputed land.
32. The defendant said he built houses, cleared the land, made gardens, constructed fish ponds, no one complained about him. He said it was only when he started collecting money for the water catchment Area that the New Life League Mission (NLLM) disputed him.
33. It is appropriate that I state some of Defendant’s evidence as stated in his affidavit of 18 October 2007. Defendant stated in paragraph 3 that sometimes in June 1987 he purchased the land ‘Utiliza’ Zagohaka from Ikisaule Nono infront of Ikisaule’s family and the Hauslain community with cash and ‘in kind’ totalling up to the value of K1, 424.00.
34. Defendant said that upon receipt of the money and food stuffs, Mr. Ikisaule Nono drew the land boundary commencing from his (defendant’s) house down to Goroka Town Water Catchment (Intake Area) up to the river bank and around where Defendant’s fish pond was constructed.
35. Mr. Namane said Ikisaule advised him that if he (Namane) sell any portion of land, he (Namane) should at least share any monies received from the sale with his daughter Meleketo Ikisaule and her family. (See paragraph 5). Namane said Ikisaule told him that a portion of land was illegally claimed and donated to New Life League Mission (NLLM) without the consent of Ikisaule as the customary landowner.
36. In his paragraph 7, Defendant said Ikisaule as the customary landowner was deprived of his land by Ipopolae Ipakue and Ulakusie. Defendant stated that both these persons have no rights over the said land (now in dispute) to have organized and sold the land to New Life League Mission (NLLM).
37. In paragraphs 8 and 9, Mr. Namane told this court that after 14 years Ikisaule Nono and his family learnt that Ipopolae Ipakue from Nupaha village and Ulakusie Awazo from Aratiufa village sold their (Ikisaule and his family) land to New Life League Mission (NLLM) in a cunning manner. Ikisaule complained and eagerly the New Life League Mission (NLLM) paid him K50.00 only and that they (NLLM) promised to pay some good money after the construction of the church building but have failed to do so up until this present time.
38. Paragraphs 10, 11 and 12 defendant attempted to demonstrate to court the activities and transaction he conducted on the said land now in dispute. Paragraph 10 he organized and sold portion of land to Lawrence Acanufa for K3, 000.00 in 1995. Paragraph 11 NLLM objected to the sale and “washed her hands off.” Paragraph 12 building of 4 x 100 metres fish pond with no obstacle or hindrance.
39. Paragraph 13 defendant lodged an official complaint to Provincial Manger – Lands and Physical Planning for none payment of compensation. Paragraph 14 NLLM resurrected dead issue and started disputing land ownership and extended the land boundaries.
40. Defendant concluded in paragraph 16 and said ‘the disputed land is a customary land the complainant (disputant) NLLM must produce documents etc...title to the land to substantiate that they (NLLM) are the rightful landowners of ‘UTILIZA’ ZAGOHAKA customary land. Furthermore, in paragraph 17 defendant stated that if NLLM fail to produce the documents then this Court should dismiss their (NLLM) complaint because New Life League Mission (NLLM) is a foreign agent and contradicts with the customary land issue.
41. Suspension of Hearing and Referral for further Land Mediation
On 29 October 2007, after Winnie Namane concluded giving his evidence before this Court, it has become clear that the Complainant New Life League Mission (NLLM) relied on ULAKUSIE AWAZO as the customary landowner who gave ownership rights to the NLLM. On the other end, the Defendant Winnie Namane relied on IKISAULE NONO as the customary landowner who transferred his ownership rights to the defendant.
42. New Life League Mission (NLLM) and Winnie Namane were the ones fighting the ownership of ‘Utiliza’ (Zagohaka) through land mediation and up in the current stage of Local Land Court. I was of the view that descendants of Ulakusie and Ikisaule were never given opportunity to resolve amongst themselves the issue of ownership of ‘Utiliza’ Zagohaka customary land.
43. Considering the above reasons, I have decided that before the Local Land Court concludes its proceeding, it is only fair that descendants of Ulakusie and Ikisaule be given the opportunity to resolve the ownership issue through mediation. I have therefore suspended the hearing indefinitely to allow the opportunity as described to materialised.
44. I referred the descendants of Ulakusie and Ikisaule to the Goroka District Administration with the assistance of District Officer – Benson Imara and the Land mediators to facilitate another land mediation. I invoke my jurisdiction to order re-mediation pursuant to Section 28 (1) (2) of the Land Disputes Settlement Act, Chapter 45. I quote this provision:
“Section 28 Land Disputes Settlement Act
(1) At any stage of a hearing before a Local Land Court, the Court may mediate between parties inorder to reach a just, efficient and amicable agreement between the parties to the dispute.
(2) The Local Land Court may adjourn a hearing; if it appears that by doing so an agreement may be arrived at between the parties.
45. A specific direction was issued that the New Life League Mission and Winnie Namane would not participate in the mediation but can sit in and observe. Only family of Ulakusie and family of Ikisaule were to actively participate during this Local Land Court sanctioned mediation.
46. The Court sanctioned mediation was held, however the family members of Ulakusie and Ikisaule could not comprise and so the District Lands Officer (DLO) Mr. B. Imara referred the matter back for the Local Land Court to continue hearing to its finality.
47. I have decided to take on this approach with a view that if a compromise was to have been reached and Ulakusie was found to be the owner of the disputed land then such ownership is passes on to New Life League Mission (NLLM) and likewise if Ikisaule was found to be the landowner the ownership would then be passed on to Winnie Namane.
48. Now that there was no compromise, no agreement, both disputants had to fight their ownership interests and this court will then had to come up with a decision.
49. Application by Defendant Winnie Namane
When the Local Land Court hearing re-commenced, the Defendant made an application to include two (2) additional witnesses namely Gitene Geyamole and Ulaizo Izeho. Defendant said these two (2) witnesses were involved in the Curt sanctioned mediation and he was of the view that these witnesses will be helpful to his case. He already has 8 witnesses lined up for his case and these additional two witnesses if included would total up to 10 witnesses.
50. Pastor Wesley Ekesae for NLLM objected on the grounds that the Court has requested list of witnesses from both parties and respective lists have been submitted. So that Court is aware of how many witnesses each party will call. Therefore, it would be unfair.
51. The Court has ruled that the application by Winnie Namane is going to be unfair on the NLLM as they have concluded their case already. Furthermore, if Defendant still wishes call Gitene and Ulaizo then he has to drop his two (2) originally appointed witnesses. Defendant agreed and dropped his other two witnesses in order to call Gitene and Ulaizo. Initial two (2) witnesses namely Douglas Namane and Pose Aupi were replaced with Gitene Geyamole and Ulaizo Izeho.
52. Meleketo Hasu Ikisaule (Witness 2 – 16 January, 2008)
Meleketo is the daughter of Ikisaule. She said her father Ikisaule from Zasinauka clan owns the customary land known as ‘Utiliza’ which is the subject matter of this Local Land Court hearing. She is one of the 3 daughters of Ikisaule Nono. Ikisuale has only daughters and no sons.
53. She said her father told her that the land ‘Utiliza’ is his land and showed her the land. She further said that her father said ‘he has all the daughters and told Winnie to look after the land.’
54. This witness also filed an affidavit dated 23 October 2007. In her affidavit, she deposed off the following facts. She said her father Ikisaule has only three (3) daughters, no sons. Two (2) of her sisters got married and left to live with their husbands. She said, she was the only one left to look after her father’s land and coffee garden.
55. She said when her father was still alive, Winnie Namane bought this land sometimes during month of June 1987. She told this Court that defendant purchased the land with K200.00 cash plus a big mumu (traditional kaikai), a large pig, a cow and store goods. She said the total value of goods plus money would amount to K1, 424.00.00.
56. She told the court that the boundary of the land in dispute that her father showed her, commenced from Winnie’s house down to water catchment area up to where Defendant constructed his fish pond, following the Zagohaka River and up to where defendant’s garden is located. She said this was the boundary of land where her father gave to the defendant.
57. Meleketo gave evidence in Court that the old man Ipopolae Ipakue from Nupaha village and Ulakusie Awazo from Aratiufa village illegally and secretly sold ‘UTILIZA’ (ZAGOHAKA) land to the New Life League Mission (NLLM).
58. She said her father Ikisaule and the family were not aware nor were consulted and did not give our consent for Ulakusie and Ipopolae to sell our land. Some years later my father found out about the sale of ‘Utiliza’ (Zagohaka) land and argument erupted between him, Ulakusie and Ipopolae. When Missionary Fred Pitpman heard of the quarrel he gave one K50.00 note to my father.
59. Missionary Fred Pelpman promised that NLLM would give some more money but it is over 30 years now and NLLM has not kept to their promise.
60. This witness concluded that because NLLM promised to give some more money to her father and since Winnie Namane has made a big feast and gave money to her father, here father gave the ‘Utiliza’ Zagohaka land to Winnie Namane. And that she would repay K50.00 given to her father by NLLM.
61. Pala Ikisaule (Witness 3 – 16 January, 2008)
This witness gave his evidence in affidavit form. He filed an affidavit dated 23 of October 2007 and tendered the said affidavit in Court on the 16 of January 2008. Copies of his affidavit were served to land mediators, the complainant and defendant.
62. In his affidavit, he deposed off the following facts. He said he is the son of Meleketo Zuho Ikisaule and Zuho Ikisaule is his grandfather. He said his grand father was the original landowner of the customary land of ‘Utiliza’ (Zagohaka) the subject matter of this land dispute now before this Land Court.
63. Pala said he was told by the old man Ikisaule that a small portion of that land where Winnie’s fish pond is located has been sold to New Life League Mission (NLLM) by Ulakusie and Ipopolae. He said Ikisaule told him these two people had no right over this piece of land and they sold his land.
64. Furthermore, witness Pala said both Ulakusie and Ipopolae did not bother to let Ikisaule know of the sale, nor Ikisaule’s consent was obtained. Both Ulakusie and Ipopolae secretly sold ‘Utiliza’ (Zagohaka) land to NLLM.
65. This witness said his mother Meleketo and his grand father Ikisaule told him that when his grand father learnt of the sale of ‘Utiliza’ land he was furious and complained. Witness said that was when Missionary Fred Pelpman paid K50.00 and promised to pay another K50.00 but to date no payment has been made. It is now well over 30 years since the promise was made without any commitment.
66. He (Pala) said sometime in June 1987, Defendant in from of Ikisaule and his family purchased ‘Utiliza’ (Zagohaka) with a K200.00 cash and in kind totalling up to K1, 424.00. He said when Ikisaule received the money and food stuffs he drew the land boundary from deendant’s hosue down to where the Water Supply Catchments (Intake) Area and follow the river up to where the defendant’s fish pond is.
67. Around September 2001 after NLLM found out that defendant was about to receive payment from Goroka Urban LLG, they (NLLM) started disputing the ownership of the said land with the defendant.
68. Pala said during mediation Ipopolae Ipakue showed the boundary of the land by tying a stunned fern grass around a yar tree. Then, during the next (following) mediation he extended the boundary further in to the other customary land.
69. He (Pala) said his family is willing to repay NLLM’s K50.00, since they (NLLM) have not kept to their promise. NLLM through Missionary Fred Pelpman promised to pay some more money to Ikisaule Nono for the land ‘Utiliza’ Zagohaka but NLLM have failed to fulfil their promise.
70. Govake Gahukugipo (Witness 4)
This witness is from Zasinauka sub-clan of Aratiufa village, Eastern Highlands Province.
71. He said the true customary landowner of ‘Utiliza’ Zagohaka is Ikisaule Nono a member of Zasinauka clan. He further said there are other members of the clan who own other land within that area.
72. He told the Court that he nor his father did not know, Ikisaule and Ipopolae sold the land ‘Utiliza’ Zagohaka to NLLM. He said when Ikisaule and family found out, they complained and NLLM (Fred Pelpman) gave K50.00 and promised to pay some more money. It has now been some 30 years and NLLM has not paid some money.
73. Some time around in June 1987 this witness said Defendant gave K200.00 cash money with large quantity of food stuffs to Ikisaule. Arafiufa village witnessed defendant paid the ‘Utiliza’ land.
74. Tera Aize (Witness 5)
This witness is from Aratiufa village and he is a Peace officer with Lowa No. 3 Village Court. He is from Golohazuha clan, one of the major clans of Aratiufa village. He is an adult male person with respectable standing in the community.
75. He said actually the name of the disputed land is ‘Utiliza’ however, he said NLLM named the land ‘Zagohaka’ because the land is located near Zagohaka river. He told the Court, this parcel of land is owned by Ikisaule Zuho Nono of Zasinauka clan. He said though Ulakusie is from Zasinauka clan, he does not own ‘Utiliza’ land.
76. After several years, he heard Ulakusie and Ipopolae fraudulently sold ‘Utiliza’ land to NLLM. NLLM paid them some money and both used the money.
77. Tera told the Local Land Court Bench that Ulakusie knew very well he did not own ‘Utiliza’ land and yet he sold the land to NLLM. He (Ulakusie) secretly and fraudulently sold the land to NLLM. This witness stated that the land was ‘secretly’ and ‘fraudulently’ sold to NLLM. Secretly in the sense that the sale of land was not made public and no members of the clan and Arafiufa Community witnessed the sale of ‘Utiliza’ Zagohaka land to NLLM
78. He said Ipopolae at first drew the land boundary by tying a fern grass on to the trunk of a yar tree on the side of an hill slope far from water catchment area. The witness said after a week, when mediation resumed Ipopolae extended the land boundary to include water intake area.
79. In 1995 Lawrence Acanufa wanted to buy a parcel of land in ‘Utiliza’ and that was when dispute started. However NLLM has since this incident washed off their hands on this land. Now Goroka Urban LLG wanted to pay compensation and the matter came to light again.
80. Witness said Winnie had made a big feast for Ikisaule and his family in 1987 (June) plus he gave K200.00 cash money to Ikisaule and Ikisaule gave him the land ‘Utiliza’ Zagohaka already.
81. Ulaizo Izeho (Witness 6)
Ulaizo told this Court on the 16 of January 2008, when giving evidence that the DEMACATION COMMITTEE had drawn a land boundary of ‘UTILIZA’ land. See paragraph 82 on members of the said Committee. He said the land ‘UTILIZA’ belonged to the old man Ikisaule. He further told the Court that he shared land boundary with Ikisaule. He said the land now in dispute belonged to Ikisaule. He concluded that the land on the top (mountain) belonged to Antonizara and the land below (mountain slope) towards Zagohaka River belonged to Ikisaule.
82. Gitene Geyamole (Witness 7)
Witness Gitene Geyamole told this Court that Ulakusie got the money from NLLM. He said his father (Ekesae) got angry when he learned (heard) that Ulakusie got money from NLLM. He said when Ulakusie got the money they did not know. They learnt afterwards.
83. This witness said Ipopolae and Ulakusie got the money. He (Gitene Geyamole) said Ulakusie came to his father (Ekesae). He said he was with his father at that time when Ulakusie went to see his father. Gitene told the Court that Ulakusie told his (Gitene’s) father that he had sold the land and got the money. He said Ikisaule told this father to sell his land to Danny Leahy.
84 Witness Gitene said upon hearing what Ulakusie said to his father, his father told Ulakusie that “you spoilt Ikisaule’s land and that was shameful for us.” Then this witness said, Ulakusie responded and said, “Ikisaule and his family do not feed them (Ulakusie and haus lain). Witness further testified that he heard Ulakusie said that, “Ikisaule does not talk and I got his land. Witness Gitene concluded that his father Ekesae and Ulakusie were members of Demacation Committee.
85 Gevame John (Witness 8)
Gevame got both the documentary evidence by way of affidavit and oral evidence on the 01 February 2008. She said sometimes in June 1987, she went to Aratiufa village. At that time she said she was Defendant’s girl-friend. She said she witnessed at Aratiufa Haus lain, defendant gave K200.00 cash money, one large pig, cooked mumu, garden food, associated store goods. All these worth well over K1, 400.00.
86 She said, later in 1994 she got married to the Defendant. She further said after her marriage, she and her husband constantly visited Ikisaule from time to time and assisted him with ‘cash and in kind.’ She also told the Court that Ikisaule drew the land boundary of the land in dispute as ‘commencing from defendants’ house to the water Catchment Area up to Sonomoka River and to Zauaka Creek and up to the Defendant’s garden area.
87 Gevame told this Court that Ikisaule complained that NLLM gave him only one K50.00 note. However, he (Ikisaule) said Defendant put up a big feast plus the money compared to NLLM. In other words, the value of food stuffs and money defendant spent on Ikisaule worth more than K1, 400.00 which was greater than what NLLM had given Ikisaule.
88 This witness also stated that at one stage (time) Lawyer Lawrence Acanufa expressed his interest to buy a parcel of land there and Defendant sold him a small portion of land. She said when L. Acanufa was about to deposit part-payment and pastor Wesley Ekesae of NLLM demanded that NLLM was the owner of the land and requested NLLM’s share of money.
89 Witness Gevame continued on to say that Defendant refused NLLM’s demand of their share of money from Lawrence Acanufa. Witness further said when Defendant refused NLLM’s share of money, Pupune and Pastor Wesley Ekesae withdrew from disputing the land. She said she witnessed Pupune and Pr. Wesley’s withdrawal. Both were said to make their withdrawal infront of Defendant’s house at Aratiufa village. Withdrawal was made before Defendant witnessed by witness Gevame. Gevame said after their withdrawal, there was no complaint for two (2) consecutive years.
90 In 1997 witness Gevame said Defendant built permanent fish pond, there was no complaint from NLLM. However, she said it was only in the year 2001 when Goroka Urban Local Level Government (GULLG) wanted to pay compensation for the Water Catchment Area (WCA) and all of a sudden NLLM resurrected the dead issue and disputed the ownership of the current land ‘UTILIZA’ ZAGOHAKA again.
91 This witness finally concluded the Defendant’s case in relation to ‘Utiliza’ Zagohaka customary land. The case was further adjourned for land boundary inspection.
92 Inspection of Land Dispute Area
After the hearing was concluded, the court arranged for physical inspection of the disputed land. Physical inspection on the land was basically to asses the boundary of the land, land marks (evidences) of the disputants, etc.... This was done in compliance with S. 36 of Land Disputes Settlement Act, Chapter 45.
93 Police personnels were also engaged to provide security as land dispute is a sensitive matter and problems are deemed to arise anytime during the inspection. Sgt. Gitene, Sgt. Yamuje and S/ Sgt J. Bonki provided the escort duty.
94 At the end of the boundary inspection, both parties (disputants) were advised to prepare and present written submissions to Court. The written submissions would finally conclude the hearing of ‘Utiliza’ Zagohaka Customary Land Dispute before the Local Land Court.
95 Legals Issue(s):
96. I am mindful of the texture, composition or wordings of issue so as the issue is framed in a way that it encapsulates broad base, wide ranging ‘interest’ recognized and based on ‘custom’ of the disputants. Custom and interest as defined by Land Disputes Settlement Act, Chapter No. 45.
ANALYSIS OF RELEVANT FACTS
97 Evidence given by Jack Opave Namane
Complainant’s second (2) witness Jack Opave Namane signed a Statutory Declaration Form dated 12 September 2002 that ‘Zagohaka’ Customary Land belonged to other clan and not his clan. The logical proposition or rational that Jack Opave Namane (attempted) to draw is that if ‘Zagohaka’ land does not belong to his clan than automatically Defendant Winnie Namane, the brother of Jack Namane does not have interest and right to dispute or claim ownership of ‘Zagohaka’ land.
98 Jack Namane’s argument (evidence) can be put to rest as Defendant made it very clear that he is not fighting over this land because of his clans interest. Defendant said he bought off the land through customary obligations and was given the land by owner Ikisaule.
99 Land mediation: New Life League Mission (NLLM) –v- Kelly Namane (29.09.91)
Previously, there was a dispute over the same portion of land ‘Utiliza’ Zagohaka between New Life League Mission and Defendant’s elder brother Kelly Namane. Again, I have trouble understanding For 7: Record of Mediation. On the space where it stated “Agreement reached: the following were written: “Decision was made in favour of New Life League Mission (NLLM).....” Land mediators Lore and Makalai from the start, do not have authority to make decision. Both land mediators acted ultra-vires (beyond their power). Their basic duty is to get disputing parties to come to a compromise to reach a solution by consent of disputing parties – themselves. Refer to paragraph II of this judgment. (Supra)
100. The dispute between NLLM and Kelly Namane ended after mediation held on the 24 September 1991. Even if the dispute proceeded to the next stage, Kelly Namane would face the argument as put up by his brother Jack Opave Namane as contained in clause 3 of his Statutory Declaration Form dated 12 September 2002 in which Jack stated:
“3. Ol papa graun bilong ‘Zagohaka’ ino tumbuna papa bilong mi (Jack Opave Namane) na Winnie Namane, olsem na mitupela Namane Family into gat rait long toktol long dispela graun bilong Mission.”
101. The Local Land Court has been mindful of the argument raised by NLLM that because Kelly Namane’s defeat in the land mediation on the 24 September 1991 over ownership of ‘Zagohaka’ land, the same should apply to the Defendant’s case as reasoned out in Clause 3 of Jack Opave Namane’s Statutory Declaration Form dated 12 September 2002.
102. The difference in defendant Winnie Namane’s argument as in regard to Kelly Namane’s case is that Defendant stood
on the premises that he has performed and fulfilled traditional customary obligations and as a result he was given the portion of
land “Utiliza” Zagohaka by the Customary Landowner Ikisaule. Defendant Winnie Namane
made it clear that he is not claiming ownership of ‘Utiliza’ Zagohaka land under Namane family. And this became obvious,
on how defendant argued his case during the Local Land Court hearing.
103. Whether New Life League Mission (NLLM) giving of K200.00 as “thanks giving money” or payment of land ‘Utiliza’ Zagohaka is a transaction recognized by Custom or say whether it can be accommodated by custom. One of the important issue revolving around this case involves resolving the dispute over the validity of the sale of ‘Utiliza’ Zagohaka land. In Rimbo Susu Case (Supra) Woods, J (as he then was) stated that the purpose of Land Disputes Settlement Act is to provide for the settlement of disputes interests in customary land that is to find who are traditional owners of land by applying custom but His Honour went further to say that the scope of this Act presumably could also extend to disputes where people have bought and sold customary land and there is now a dispute over the validity of that sale. Now, Woods J, decided to extend the scope of Land Disputes Settlement Act after been convinced that there is no specific legislation to assist in the purchase by custom of customary land.
104. As a result of this, in my view the Local Land Court need to exhaust the customary rules regulating to the sale, purchase and ownership of customary land practised in the Aratiufa Community (Haus lain).
105. Pr. Wesley Ekesae gave a very good summary of traditional custom of inheriting land. Landowner has no son(s). Pr. W. Ekesae said if a landowner has no son, he said his land can be inherited in the following ways:
That one of the above conditions ‘a’, ‘b’, or ‘c’ is accomplished based on these conditions. The above is one of the exceptions to cardinal customary of inheritance in patri-lineal society that male children inherit their father’s properties.
106. If one of the persons named above has taken good care of the landowner by cooked him good food, gave him money, or locally in pidgin language Goroka people say “Katim nus pes blong dispela man (landowner) which means killed him pig and gave him money and all this stuffs also to the landowner’s uncles.
107. If the persons disclosed in ‘a’, ‘b’ or ‘c’ spent money, killed pig(s) and buried the landowner.
108. The landowner’s Son In-law can also inherit land from the landowner (his father In-law). If the Son In-law has taken good care of his father in-law, gave him food, spent money, kill pig(s) during his father In-laws funeral feast or ‘katim nus pes bilong tambu papa.’
109. Ladies don’t inherit or posses land. Only men do inherit and/ or posses land.
110. Landowner has right to give his land to whoever he wants to give when he is still alive.
111. If a landowner gives his daughter in marriage to another person from different clan (Haus lain) and if he has a parcel of land from where his daughter got married to, the landowner can give that parcel of land to his daughter by publicly announcing that:
112. People who came first after the original owners and have respect for the original owners are usually given parcel of land outside the land where original owners own.
113. If an original landowner who settled on the untouched land first does not have a child (or children) and in the even settlers (migrators) who came after the original landowner take good care of him, feed him with food, collect his firewood, give him money, kill pig for him, and bury him when he dies, settlers have right to claim his land.
114. Adopted children have right to inherit land from their adopted father. However, there is exception to his. If the adopted child or children has not taken good care of the adopted father or ‘katim nus pes bilong adopted papa’ and also has not met the funeral expenses of the adopted father when the adopted father dies, the land can revert back to the relatives of the adopted father or whoever spends money or looks after the adopted father.
115. If a person from the landowner’s clan dies in a tribal war and if a person whether from same clan as the landowner or different clan pay back and kill one of the enemies he has the right to be given a parcel of land.
I will allude to various aspects of customary land inheritance a little later when I analyse each of the parties case.
116. NLLM was looking for a land in the 1970’s to build church (building) to carry church related activities. They approached Ulakusie Awazo. NLLM claimed Ulakusie was the customary landowner of ‘Utiliza’ Zagohaka land. So, Ulakusie Awazo gave the said ‘Utiliza’ Zagohaka land to NLLM and NLLM settled on the land.
117. Whether NLLM first to conclude land transaction and settlement sealed their right to remain on the disputed land.
The spokesman Pastor Wesley Ekesae for the Complainant submitted that in 1970’s the land ‘Zagohaka’ (Utiliza) was offered to NLLM by later landowner Ulakusie Auwazo from Zasinauka sub-clan; Arafiufa village. He said Ulakusie gave the land as tithe or offering to GOD. I have discussed the issue as to whether the land was sold to NLLM or given as ‘tithe’ and I do not wish to dwell into this issue again.
118. Pastor Wesley Ekesae further submitted that at the time when ‘Zagohaka’ land was offered to NLLM there has never been any of the complaint or dispute by any of the persons from the family, sub-clan or the village. NLLM acknowledged Ulakusie Auwazo as the sole owner of the land and so NLLM offered him K200.00 as a token of appreciation. He further stated that NLLM owned ‘Zagohaka’ land for 30 years.
119. The above evidence given by Pastor Wesley Ekesae clicked Section 67 of the Land Dispute Settlement Act, Chapter 45 to back up his argument. Thus, Section 67 states:
Section 67 Presumption as to Vesting Interest
(1) Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land the subject of the dispute of not less than twelve (12) years without the permission, agreement or approval of any other persons sets up a presumption that interest is vested in the first mention party.
(2) Where a presumption is set up under sub-section (1), it may be rebutted only be evidence leading to clear proof that the interest is vested in some other person.”
120. Section 67 in my view can not support Pastor Ekesae’s argument because of the fact that permission, agreement or approval was granted by Ulakusie, Auwazo for NLLM to settle on ‘Zagohaka’ land. Furthermore, Gitene Gayamole’s fathe rEkesae strongly opposed what Ulakusie did by selling Ikisaule’s land and also Ikisaule complained and received K50.00 and was promised some more money but has received none so far.
121. It was during this “waiting to be paid some more money” period that Ikisaule gave the land “Zagohaka” to the Defendant after Defendant fulfilled his customary obligations.
122. The court in the case of Application of Nango Pinzi [1988-89] PNGLR 464 at p. 470 held that Section 67 of Land Disputes Settlement Act, Chapter 45 is only an evidentiary and in determining ‘interests’ in land according to due legal process. In other words, the Court in Nango Pinzi Case (Supra) held that Section 67 should not be used as the only factor in decision – making process but should be considered as one of the other factors. One such other factors is custom.
123. Pastor Wesley Ekesae said Ulakusie Awazo gave NLLM, the ‘Utiliza’ Zagohaka Land as his ‘tithes’ and ‘offering’ to carry out Lord’s work. He said when giving evidence on 26 October 2007 that Ulakusie Awazo gave the land to GOD to build church. If NLLM did not get this land then he said he would not talk about this land. NLLM gave K200.00 to Ulakusie Awazo as a thank you money.
124. Winnie Namane questioned Jack Opave Namane. Q. 8: In your Statutory Declaration, you declared Mission (NLLM) bought the land? Jack answered: A: Missionary gave money for payment. Jack Namane said the NLLM paid for the land now in dispute.
125. When Defendant questioned Popolae Ipakue, Q.4: How much NLLM (Mission) want to pay? A: We sell and get money so they gave K200.00. Popolae was giving evidence that the ‘Utiliza’ Zagohaka was sold to New Life League Mission (NLLM).
126. Contradictory Facts
Pastor W. Ekesae’s evidence of Ulakusie Awazo offering “Utiliza” Zagohaka Customary land as ‘tithes’ to GOD through NLLM and in return NLLM gave K200.00 as a ‘thank you’ money is of course contradictory and inconsistent with what Jack Opave Namane and Popolae Ipakua told the Court. Both, Jack Namane and Popolae said ‘Utiliza’ Zagohaka land was sold to NLLM.
127. Court was told that when Ikisaule Nono learnt of the sale of ‘Utiliza’ Zagohaka land he was furious and complained. He was then paid K50.00 by Missionary Fred Pelpman and promised some money to be paid to him later. I am led to believe that the K50.00 was for payment of ‘Utiliza’ Zagohaka land. Because of the fact that if it was not for the payment then what else could that K50.00 be for? Court it be quite possible for Ikisaule to demand thank you money from NLLM? I do not think this will be logical anyway.
128. Conflict between Ekesae and Ulakusie
In the second leg of evidence given by Gitene Geyamole (see paragraph 81 of this judgment) Gitene testified that Ulakusie told his father (Ekesae) that he had sold the land (Utiliza/ Zagohaka) and got the money.
129. In the final analysis the evidence which revealed ‘Utiliza’ Zagohaka Customary Land was sold to New Life League Mission (NLLM) is much more stronger and outweighed the evidence produced by spokesman Pastor Wesley Ekesae that Ulakusie offered the land as an “offer of tithe”. The person (Ulakusie) who actually gave away the land said it clearly that he sold the land and got the money. This then, he be misinterpreted for his involvement in this transaction?
130. NLLM Properties on ‘Utiliza’ Zagohaka land
NLLM gave evidence that they have settled on the land and has properties like house and trees on the land. Refer to evidence given by Pastor Wesley Ekesae and Ipopolae Ipakue (paragraph 24 of this judgment). The Court in Blasius Vaniak, Tommy Robin and Others –v- Muvamastrum P/L, Bismark Industries P/L and the State, OS 30 of 1993, N 1244 stated: “The trees and cutting of it appear to me to come within the definition Section of the Land Disputes Settlement Act, Chapter 45, which at (c) things growing on the land, and the right to cut timber is an interest in the land.” NLLM’s interest and claim to the ‘Utiliza’ Zagohaka entirely depends (very much) on how Ulakusie Awazo and family prove their interests in Court. It is therefore the interests such as trees planted by Ulakusie Awazo, his bamboo trees, tanget plants, gardening and hunting sites which will be of much interest to this Court than that of the complainant, New Life League Mission (NLLM). Also see Wabia –v- BHP Exploration [1998] PNGLR 8 at p. 13 especially paragraph 4 where Sevua J discussed the ‘nature’ of interest encapsulated or comes under the ambit of Land Disputes Settlement Act, Chapter 45.
131. Whether or not New Life League Mission has ‘interest’ in ‘Zagohaka’ (Utiliza) land based on custom.
First and the foremost, Section 2 of the Land Disputes Settlement Act, Chapter 45 defines “interest” to include any interest in land of whatsoever nature that is recognized by custom of the people of the area in which the land is located.
132. By this definition, New Life League Mission (NLLM) being a foreign organization established in Papua New Guinea is put out of the equation or context. How could NLLM demonstrate its interest recognized by custom of the people of Aratiufa area in which ‘Utiliza’ Zagohaka land is located. The preamble to the Land Disputes Settlement Act states, “Being an Act to provide for the settlement of disputes in relation to interests in customary land, and for related purposes.” See also Section 1 purpose of this Act, which is to provide for a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land.
133. It is my humble view that the Land Disputes Settlement Act, Chapter 45 is not responsive to the type of transaction involving NLLM and the Local Customary Landowner(s). My view is confirmed by the case: Application of Rimbo Susu [1992] PNGLR 37. The brief facts of this case is that, in 1978 the applicants (Rimbo Susu and Other Finshafen Landowners) negotiated a lease of land for a period of 09 years from the members of the Jiga Melagamp clan for use and occupation of the subject land. In 1987, when the lease had expired, there were discussions for the sale of the land to the applications. Other members of the clan (Supra) objected to the negotiations by the signatories of the original lease.
134. The Local Land Court heard the matter and it was appealed to the District Land Court which found out that when the original lease was negotiated, the Finschafen Group had failed to consult with all the members of the Melagamp clan who had interest in the land. District Land Court ordered Finschafen Group to vacate the land.
135. Rimbo Susu Case is of great significance as it raised the question of how customary land may be bought and sold by custom. Defendant in his evidence produced before this Court clearly demonstrated the customary obligations he has performed and as a result the landowner Ikisaule Nono has given him the land now in dispute. Defendant’s other witnesses which also included daughter of Ikisuale Nono testified witnessing the customary obligations performed by the defendant. Read paragraph 31 of this judgment. Pastor Wesley claimed that Ikisaule Nono was blind and was not present during the customary feast. Defendant then tendered a photograph of the feast which tendered a photograph of the feast which clearly showed and proved that Ikisuale Nono was present at that time and he personally witnessed the customary obligations been performed. It was during this customary feast that Ikisaule publicly declared and awarded the ownership of “Utiliza” Zagohaka to the Defendant and marked the boundary of this land as commencing from defendant’s house down to the Water Catchment Area up to the Zagohaka River bank and to where Defendant’s fish pond was constructed.
136. Pastor Wesley Ekesae in paragraph 105-116 of this judgment gave a summary of how land is owned or inherited from the customary practices of Aratiufa Hauslain and Goroka as a whole. This Court is convinced and satisfied based on the presentation that Defendant has fulfilled the customary obligations (“katim nus n apes”) and as a result was awarded the ‘Utiliza’ Zagohaka Customary land. Hence, this Court is also satisfied Defendant has complied with requirements enunciated in Rimbo Susu [1992] PNGLR 37 of how customary land may be bought or sold by custom.
137. Findings
The following are my findings at the conclusion of this case:
In our quest to find a solution to this land dispute and apply the relevant law which Land Disputes Settlement Act, Chapter 45 problem has arose as to how NLLM can be able to demonstrate its ‘interests’ in customary land ‘Utiliza’ Zagohaka. Section 3 Application: Land Disputes Settlement Act states: “(1) Subject to subsection (2) and to Section 4, this Act applies to disputes as to interests in customary land, or as to the position of boundaries of any customary land. NLLM being a foreign organization does not have interest and can not be a party to the current land dispute, by virtue of Land Disputes Settlement Act, Chapter 45. Pr. Wesley Custom law of inheritance.
iii. Ekesae (Gitene Gayamole’s father) and Ulakusie Awazo were members of the Demacation Committee tasked with the job if identifying and drawing up land boundaries. Demaction Committee (which included Ekesae & Ulakusie) have drawn land boundary for ‘Utiliza’ Zagohaka and have identified that the land belonged to Ikisaule Nono. So, when Ekesae learnt from Ulakusie, that he (Ulakusie) sold the ‘Utiliza’ Zagohaka land to NLLM he was furious with Ulakusie. It became obvious to this Court that Ulakusie Awazo took advantage of Ikisaule saying that he (Ikisaule) does not talk (“quiet person”) and as a result fraudulently sold his (Ikisaule’s) land (Zagohaka) to NLLM.
138. Land matters in Goroka and Papua New Guinea are very sensitive matters. Therefore, any dealings with customary land are normally dealt in a more transparent and in the eyes of ‘hauslain’ or clan. The sale and purchase of ‘Utiliza’ Zagohaka by Ulakusie Awazo and NLLM was done in private (Secret) without eh knowledge of Aratiufa Hauslain. Further, it was done through fraud because the said as the evidence (over emphasises) is clear the land ‘Utiliza’ Zagohaka belonged to Ikisaule Nono and not Ulakusie Awazo. Though, both are from the same clan (Hauslain), ‘Utiliza’ Zagohaka land is owned by Ikisaule Nono.
139. In Re Hides Gas Project Land Case [1993] PNGLR 309, Amet, J (as he then was) held that genealogical ancestral history and supportive land mark descriptions by names are not conclusive evidence of title. His Honour (as then was) ruled that in determining ownership of customary land regard must be had to numerous other intervening factors between past and present time. These include – adverse possession. In Kojo II –v- Bonsie [1957] 1 WLR 1223 it was held that the best approach to such competing ownership claims is to test the traditional history by referral to recent facts and by seeing which of the two competing histories is more probable”.
140. Applying the principles enunciated in Re Hides Gas Project Land Case (Supra) and Kojo II –v- Bonsie Case (Supra) it clearly revealed Ikisaule Nono has strong attachment thus ownership of ‘Utiliza’ Zagohaka land long before the establishment of Demarcation Committee and after the said committee was established. The committee has declared the land boundary and ownership of the ‘Utiliza’ Zagohaka land as belonging to Ikisaule Nono. Ikisaule Nono has demonstrated ownership right and control by expressing his frustration over the sale of his land to NLLM. NLLM could have done the most honourable thing by calling Ulakusie Awazo, Ikisaule Nono and Aratiufa Hauslain to resolve the landownership issue rather than paying K50.00 to Ikiasule Nono and promised him some more money later.
141. Trees etc....planted by NLLM does not sealed NLLM’s interest or claim over ownership of ‘Utiliza’ Zagohaka land. This is because of the fact that New Life League Mission (NLLM) being a ‘foreign organisation’ can not provide evidence that it has customary roots in the said area and that included the land in dispute.
142. Having all the evidences placed on the “Judicial Scale” only reveal that complainant through IKISAULE NONO has better claim of ownership of “UTILIZA” ZAGOHAKA Customary land than the interests claimed by the Defendant New Life League Mission (NLLM) through ULAKUSIE AWAZO.
143. ORDERS:
The Local Land Court grants the following orders pursuant to Section 39 of the Land Disputes Settlement Act, Chapter 45:
144. RECOMMENDATIONS
It is true to say the machinery of our Land Court system in the Eastern Highlands Province needs oiling. There is non-existent of a very important committee, the Provincial Land Disputes Committee. I have witnessed Mr. Mekeo Gauli trying all his best to get this committee up and running but up until this decision this important Committee is still non-exists. It is hope the relevant officers in authority must realize the importance of land to the people of this province and Papua New Guinea as a whole and give land matters a priority.
Quality is a descriptive word which can not be attached to this Court decision without the aid of latest technology in the form of GPS Mapping Machine. I lingered for a GPS Mapping Machine to be used for mapping of the land boundary of this disputed land. Upon my persistent enquiry, I was finally informed by PPA – Lands that an officer of the Department who has gone finished helped himself by taking the GPS Mapping Machine with him. Can we have this important and expensive mapping machine back?
Local Land Court cannot operate smoothly without involvement of Land mediators. Land mediators are reluctantly participating in Local land Court as they have not been paid their sitting allowances so as for police personnel’s providing security during land boundary inspections.
Statistics that I have in my possession revealed that we have large number of backlog of land disputes cases yet to be disposed off. Yet fresh land disputes are registered before Local Land Court. Yet there are no logistic support in place to dispose off these case (See No. 3).
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