|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Papua New Guinea Local Land Court |
PAPUA NEW GUINEA
IN THE LOCAL LAND COURT
HELD AT GOROKA
EASTERN HIGHLANDS PROVINCE
LLC No. 023 of 2008
Land Disputes Settlement Act, Chapter 45
IN THE MATTER OF MEKENEKUKA
CUSTOMARY LAND DISPUTE
BETWEEN
LAWRENCE IJABIRO of Lavakajuha Clan - Nagamiufa Village
Complainant
AND
NIHUWO ISOI of Ozahazuha Clan of Nagamiufa Village
Defendant
Goroka: M. IPANG
Local Land Court Magistrate
2007: November 15, 21
2008: June 11, 17, 18, 19, 20, 26
September 09
Land Mediators/Assessors
Lahore Hasu
Kesko Kasimo
Spokesperson:
Complainant: Lawrence Ijabiro appears in person
Defendant: Nihuwo Isoi appears in person
Land Disputes Settlement Act, Chapter 45: Interests in “Mekenekuka” land based on custom of Nagamiufa people – Custom that was and is recognized and applied – “Het Pei” (Head Pay) – Blood of ancestors spilled on land – Can these two customs have impact on ownership rights? Custom that has stand its test of time – modified to suit changing circumstances.
Competing Customary Interests – Need to compare and resemble interests of two disputing parties together – To determine which one of the two has more probable interests (Re Hides Gas Case and Kojo II Case followed)
Practice and Procedure – Section 35 (1) (a) (b) (c) and (d) of Land Disputes Settlement Act, Chapter 45 – Practice and Procedure of Local Land Courts applied.
Words and phrases – “Head Pay” (Het Pei) – Customary obligations for those who have died and will die in future. The Customary Practice of “Het Pei” is just like “Katim nus na pes”.
Cases Cited:
1. Re Hides Gas Project Land Case [1993] PNGLR 310
2. Kojo II –v- Bonsie (1957) 1WLR 1223
3. Victor Golpak –v- Patrick Alongrea & Ors [1993] PNGLR 491
4. Wabia –v- BHP Exploration [1998] PNGLR 8
5. Blasius Vaniak & Ors –v- Muvamastrum P/L & Ors OS. 30 of 1993 N 1244
6. Ene Land Croup Inc –v- Fonsen Logging [1998] PNGLR 1
Legislation
1. Land Disputes Settlement Act, Chapter No. 45
09 September 2008
DECISION
M IPANG LLCM: This is a customary land dispute case over the land known as “Mekenekuka” which comprised of 16.532 hectares of land volume containing coffee trees. Mekenekuka land was previously leased to the Independent State of Papua New Guinea (State) for a term of seventy (70) years commencing 29th of January, 1982 for a total of K10.00 on demand under the Lease/Lease Back arrangement. Both disputants argued and claimed to be customary landowners of this customary land. So, their nature of interests in the disputed land involved the ownership and land boundaries.
2. At this juncture, I am of the view that it is highly necessary for me to give a background of this matter in chronological order so that parties can appreciate how this matter was referred for adjudication before the Local Land Court. Also, in the event this decision is appeal against, the Provincial Land Court would early follow the rationale behind Local Land Court’s Decision. The following statements hereunder are the background to this dispute.
3. The complainant Lawrence Ijabiro initially filed an Originating Summons (OS)) on the 29th of September 1997, before the National Court in Goroka and sought the following relieves:
The purported sale of Mekenekuka Coffee Plantation situated Portion 616 between Koang No. 23 Pty Ltd and Defendant be declared null and void.
(c) That the Complainant is the traditional landowner of Portion 616.
(d) That the Defendant Nihuwo Isoi is not the traditional landowner of Portion 616 C and has no customary rights or interests in the said land.
4. From skimming through court’s record, it became obvious that, the interim injunction was granted in favour of Lawrence Ijabiro on the 20th of February 1998, restraining the Nihuwo Isoi, his family and their servants from entering Portion 616, and picking coffee cherries until the substantive issues were to be determined.
5. There were three (3) substantive issues on foot at that time to be determined and there were:-
1. A declaration that the purported sale of Mekenekuka Coffee Plantation situated at Portion 616 between the Koang No. 23 Pty Ltd and Nihuwo Isoi be declared null and void.
2. A declaration that the Complainant Lawrance Ijabiro is the traditional landowner of Portion 616.
3. A declaration that the Defendant Nihuwo Isoi is not the traditional landowner of Portion 616 C and has no customary rights or interests in the said Mekenekuka land.
6. The Defendant has also filed a Notice of Motion in the National Court seeking orders to restrain complainant Lawrance Ijabiro, his servants or agents from entering and picking coffee cherries from Mekenekuka Coffee Plantation (Portion 616) until the ownership issue is resolved. Nihuwo Isoi also seek orders for an independent company to be appointed to manage the affairs of the said plantation for the meantime.
7. In support of his Motion filed, Defendant Nihuwo Isoi filed a supporting affidavit dated on the 18th of April 2000, sworn on the 13th of April 2000. The following facts deposed on this sworn affidavit will bring to light some fundamental background reasons as to how the case came out to be. Let me quote the facts, I consider to be of relevance:-
7.1 On the 30th day of January 1997, a Lease Purchase Agreement was signed by the Plaintiff and the Defendants for the purchase of a plantation Portion 169 Milinch, Fourmile of Karimui, Goroka, Eastern Highlands Province for K70, 000.00.
7.2 It was a term of the agreement that upon payment of K25, 000.00, the plaintiff was to have official possession of the transfer of the same was to be effected only after upon completion of the purchase price.
7.3 Thereafter, I was physically shown a plantation by the first Defendant who said “That is Portion 169 – Mekenekuka”. The plantation was one of the plantations previously owned by Alenupa Ltd which was sold to the Defendants under receivership.
7.4 When he showed me the plantation, I believed that it was Portion 169 the plantation which was the subject of the Lease Purchase Agreement.
7.5 On the 5th of February 1997, the Defendant wrote on behalf of himself and the second Defendant saying, I had successfully purchased the plantation “Mekenekuka” and could move on to the plantation.
7.6 I then took possession of the plantation. Shortly, after I took possession, I may served with a Restraining Order from the National Court by one Lawrence Ijabiro who claimed the plantation was one customary land and it was not Portion 169 but Portion 616 C. Furthermore that Portion 616 was known as Mekenekuka and not Portion 169. Also that the plantation which I was shown by the Defendants was Portion 616 and not Portion 169.
7.7 I had also applied for a bank loan from the Agriculture Bank at Goroka Branch who advised me that, they had conducted a title search which indicated that, the land was customary land Portion 616 C and not 169 and therefore refused the loan application on that basis.
7.8 I then realised that Defendants had tricked me and tried to make sense with the first Defendant but to no avail.
7.9 To this day, I have not received the refund of K25, 000.00 deposit from the Defendants and I do not want a refund but seek declaratory orders to enable me to move on to the plantation Portion 169 pursuant to the agreement of 30th of January 1997.
8. In her affidavit sworn on the 14th of April 2000 and filed on the 5th of May 2000 she deposed of the following facts, which I have extracted the necessary parts:-
8.1 I am the Principal of Dirua Lawyers and have carriage of this matter on behalf of the second Defendant and as such have authority to depose to this my affidavit.
8.2 I have conducted a search at the Land’s Office in port Moresby and have found that, there is no Title Deed issued on this particular land. From perusal of the land’s file it appears that the land was acquired for the purposes of lease/lease back.
8.3 It seems strange though that amongst the persons purporting to own the land and leasing it to the State, the plaintiff’s name does not appear.
8.4 It also seems strange that the documentation shows a whole lot of people who owned the land be it full rights or partial - yet the court awarded the full usage of the land to one individual, the plaintiff.
9. In Nihuwo Isoi’s affidavit of 13th of April 2000 (sworn 13.4.00 & filed 17th April 2000) paragraphs 12 and 13 made it explicitly clear of Nihuwo Isoi’s apart from his purported purchase of Portion 169 shifted his focus to claim Portion 616 C.
“12. The reason why I am interested in this land is, because I am a traditional landowner and the land was acquired from my father. His interest passes onto me. My name also appears as a landowner. Issue of ownership should be resolved properly.
13. The land purchase documents show a lot of people owned the land which was acquired by the State under a lease – lease back arrangement. Therefore, if it has to revert to its original owners then the plaintiff is not the only one to whom the land should revert to.”
10. JUSTICE N. Kirriwom, in his previous ruling clearly and unequivocally urged all the parties to get together and find a lasting solution. His Honour said, it seemed obvious the parties were all related and the land appeared o be communally owned. In this case OS No. 424 of 1997 and the subsequent application by Nihuwo Isoi that His Honour dealt with. His Honour was not convinced that the issue of customary ownership has been resolved.
11. The National Court made an order on the 20th of October 2000, ordering that the hearing on the substantive matter be stayed indefinitely and that all the parties to the disputes shall endeavour to adduce evidence either orally or by affidavit by presenting to the court reliable information identifying the true and correct status of Portion 616 Mekenekuka. While granting this order, the court had also restrained the plaintiff, his servants, agents and family members from entering and picking coffee cherries from the land Portion 616 C Mekenekuka until final substantive issue of ownership is determined.
12. On the 9th of February, 2001 the National Court had issued another order in the following term: (1) The issue of customary ownership of Portion 616 C is referred to the Local Land Court for adjudication.
13. Land Mediation.
The dispute was referred to mediation. Mr. M. Ijape who has no customary interest in the disputed land was not a party during land mediation. The dispute was mediated between Lawrence Ijabiro and Nihuwo Isoi. The Land Mediators who mediated the dispute were Lore Klepetamero and Tovepa Atao. On the 12th of June 2001, both Land Mediators filled in a Form 8 and referred the dispute to the Local Land Court. Both said, “ there is no likelihood of an agreement being reached and the Local Land Court should hear the dispute as soon as possible”.
14. Since the referral was made to the Local Land Court on the 12th of June 2001, no attempts had been made to hear this matter. I got transferred from Lae to Goroka in early April 2007 and was extra - tasked with Local Land Court matters. I have perused all Local Land Court files and was amazed with long list of land disputes cases. Notably, Mekenekuka’s file was quite a large one. I had then made up my mind to put my effort to dispose off this case. On the 15th of November 2007, I wrote a letter to all the disputants to attend a compulsory conference. It took sometime to finally get the dispute heard on the 17th of June, 2007 at 1:00 p.m.
15. Issue:
The mammoth issue before me to resolve would be which of the two (2) disputing parities has more probable interest in the Mekenekuka land? This is the principle issue I have to solve however, there are some subsidiary issues I will raise and address from time to time as I progress the decision of this court.
16. Let me make few comments about how I have framed the issue in this manner. I have limit the number of disputing parties to two (2) as no other parties had registered his interest, since the matter was referred from the National Court down to the Local Land Court. The term “probable interest” represent a broad base interest of both parties at the same time taking in to consideration which party’s interest is more active (alive), direct from the past and up till the present time. Which one of the two parties has been able to maintain his interest in the land from the past to the present time? In order to answer this question, we are guided by the Land Disputes Settlement Act, Chapter 45.
Section 35 Practice and Procedure of Local Land Court.
“(1) A Local Land Court-
We have considered s. 35 (1) (a) and (b) and in our quest to have this matter solved in accordance with the spirit and objective of the Land Disputes settlement Act, we have taken on ourselves and the need to do substantial justice between both disputants and their witnesses.
17. Complainant’s Case: Lawrence Ijabiro – Extract of Relevant Facts as Presented.
On the 17th of June 2008 at approximately 1:00 pm, Complainant Lawrence Ijabiro gave evidence before this court. In his opening evidence,
he told this court that, he will give both oral evidence and relied on his affidavit filed on the 3rd of June 2008. He has also filed
another supplementary on the 17th of June 2008. In summary, he said, all his evidences are contained in his two respective affidavits.
18. Lawrence Ijabiro argued that he is the legitimate landowner of “Mekenekuka” land and “Tamahuka” land. He gave evidence that Mekenekuka land was owned by Guminayufa clan. He told this court that, Guminayufa clan gave him the “Mekenekuka” land as “Head Price” (Het Pei). He explained that, when their ancestors dies, he was not given a “head price” so Guminayufa clan they gave him this land as “head price”. Michael Eka who is one of the complainant’s witnesses, filed a sworn affidavit dated 3rd of June 2008, and deposed of the following evidence in support of the complainant’s case. He said, he is the son of Arapusu Gehua from Guminaufa clan of Nagamiufa village. He told the court that, “Mekenekuka land was given to the complainant Lawrence Ijabiro by Guminaufa clan. He said, Guminaufa clan is where the complainant’s biological mother, Gomokuli Iveha originated from. Michael said, the “Mekenekuka” land was given to Lawrence Ijabiro as a means of “het pei” for respect to customary obligations for those who have died during tribal fights and for other causes and for years to come. Witness Michael said, Defendant Nihuwo Isoi comes from Ozahazuha clan of Nagamiufa village and does not have any customary rights or interests in the “Mekenekuka” land.
19. As in regards to “Tamahuka land,” the complainant said, this is his ancestor’s land and he has inherited this land from his father Ijabiro who is from Lavakajuha clan, of Nagamiufa village. The Complainant said that, he has worked this land, made improvements and has properties on this land also.
20. The complainant explained that, when Ijabiro wanted to lease Tamahuka land to the State for a term of seventy (70) years under the Lease/Lease Back arrangement, his tumbuna and uncles from Guminayufa clan, Nagamiufa village, gave “Mekenekuka” land to Lawrence Ijabiro as “head price” and that Guminayufa clan nor any of its members will ever re-posses this land back from Lawrence Ijabiro. The Complainant’s witnesses, Koki Iveha and Michael Eka both from Guminayufa clan gave this supporting evidence also. Lawrence Ijabiro’s mother from Guminayufa clan and the land “Mekenekuka” was given to him by his tumbunas and uncles (Kandres) from Guminayufa clan....as “het pei” (head price).
21. Koki Iveha, another of complainant’s witness who filed a sworn affidavit dated on the 3rd of June 2008 in support of the complainant’s claim of ownership of “Mekenekuka” land. He said, he is the small biological brother of Gomokuli Iveha, the biological mother of the complainant Lawrence Ijabiro. He said, he is from Guminaufa clan of Nagamiufa village.
22. He said, “Mekenekuka” land Portion 616 C was owned by his Guminaufa clan. He stated that, all Guminaufa clan leaders and members agreed and gave this land to him. When questioned by Nihuvo: Q. Which leaders in Nagamiufa village witnessed giving of this land? Koki Iveha anawered: Ans: Anihe Bihaihana, Eka Arakuso, Morumo Arakuso and Koki Iveha, himself. He said, it was day light ..... “we gave this land away.” He also said Namure witnessed this, also Isoi, Ijabiro, Utoro and Marabe witnessed the giving of this land to the complainant. Michael Eka told the court that, other neighbouring clans like Ozalajuwa clan, Meniarowe clan, Gumenekujua clan, Lavakazuwe witnessed Guminaufa clan gave “Mekenekuka” land to Lawrence Ijabiro.
23. The Complainant gave further evidence that, in 1970’s he planted half (½) hectare of coffee trees on Tamahuka land. He said, he was in school and was around 14 – 15 years old. He said, Nihuwo Isoi and his father Isoi did not stop him from planting coffee trees. Further analysis of this piece of evidence, please read paragraph 54 of this Decision.
24. He also emphasised further that, no one from Nagamiufa clan or other clans complained. He said,no-one complained because they all know, he was the landowner. He said, when he leased the land to the State, Nihuwo Isoi nor his father who were both around, did not object, or say they had landmarks. Lawrence questioned, “why did Nihuwo Isoi complain now?” He said, Isoi knew that this was not his land.
25. He also claimed that when his ancestors made gardens at Tamahuka land no body came and disputed the land or even stopped them. He said people did not come and stop them because they knew Tamahuka land belonged to Ijabiro and his family. He specifically mentioned that not even Isoi and his family objected when Lawrence’s father Sinarowe Ijabiro and Sopuro Olero made gardens on “Tamahuka” land.
26. Lawrence Ijabiro was critical when he told this court Nihuwo does not have any landmarks evidence within Mekenekuka land. He said, Nihuwo has no gardens, did not plant any food crops, no tanget, bamboo trees, marita etc... on Mekenekuka land. He said, how can he therefore claim ownership of the land in dispute. He told the court he is willing to show his landmarks during land boundary inspection.
27. In his supplementary affidavit filed dated on the 17th of June 2008, especially paragraphs 20 and 21 and his final submission, Complainant Lawrence Ijabiro in his Paragraph E (14) and F claimed Nihuwo Isoi to be the adopted son of Isoi. In paragraph E (14) he submitted that, during cross-examination, I questioned Nihuwo:- Question: who is your biological father? Answer: Defendant denied been adopted and said, his father is Isoi. In paragraph F (1) and (2) complainant gave clarification of Nihuwo Isoi’s family tree background. The Complainant submitted that, Nihuwo is an adopted son of Isoi. Nihuwo’s biological father is Merekenimo. He said, Merekenimo is from Gorohanaga clan of Kotuni and has left 38 years ago and settled on his birth right land at Kotuni. He also submitted that, Isoi is from Ozohazuha clan and has no birth right to “Mekenekuka” land. Lawrence Ijabiro submitted that, the children of Merekenimo are:-
1. Izame Merekenimo F/C
2. Ben Merekenimo M/C
3. Nihuwo Isoi – Merekenimo M/C
4. Hotoke Merekenimo M/C
5. Karuhe Merekenimo F/C
6. Huwejo Merekenimo M/C
28. The Complainant continued with his evidence and said that, Apele Goso met with the complainant’s family and came with a plan to lease their land to the State. He said, they then leased “Mekenekuka” and “Tamahuka” land to the State. In return, he said, Apela Goso paid them K10, 500.00 as “bel isi” money. He said, the amount of K10, 500.00 was paid to his tumbuna Ijabiro and him. Lawrence said, he distributed the money to those people who came and witnessed his land been leased to the State. The amount of money was distributed by Nihuwo. Nihuwo claimed amount of K30, 000.00 was paid and not K10, 500.00. I will revert to this issue when I analyse the facts.
29. Another complainant’s witness, Hunehune Opomeri, is a Village Leader from Nagamiufa village. He told this court that, Apele Goso purchased Portion 11 and Portion 169 under Alenupa Plantation. However, he said Apele realized there was land beside the plantation which he could acquire in order to expand the plantation. So, Apele Goso approached us the landowners and the land was leased to the State. He said, the “Mekenekuka “ land was given to Lawrence Ijabiro as “Het Prais” and all five (5) clans from Nagamiufa village know about this. He said, Ijabiro, Golelo, Opomari and Malae were the people who leased the land to the State. He also said, Nihuwo Isoi and his family were not present or involved as they were not the landowners.
30. Defendant Nihuwo Isoi’s Case – Extract of Relevant Facts as Presented.
Defendant gave evidence on the 19th of June 2008, at around 11.00 a.m. Defendant has three (3) witnesses to call. They were Hutono
Zuhave, Mathew Hative and Nahuvo Gihila.
31. Defendant Nihuwo relied on his affidavit sworn and filed on the 06th of December 2007. He gave a brief background history of his ancestors. He said, his first generation ancestor was Gasa. He said, Gasa migrated from the footage of Mt. Maniga which is opposite Asaro Coffee Estate. From footage of Mt. Maniga, Gasa walked down and settled at Napanuharoka Coffee Estate. At Napanuharoka, he permanently settled there and noticed no-one living there accept thick virgin forest. Also at Napanuharoka, Gasa got married and out of that marriage two sons were born namely Gave and Gahale.
32. Gave has four (4) sons namely Gisigisie, Homole, Gouroe and Sapuroe. Two of Gave’s sons were killed during tribal warfare. Gisigisie was killed on the spot at the entrance of the gate to Portion 11 and Homole was killed on the Southern end of “Mekenekuka” on land known as “Lupaloka”. The Defendant said, the reason why both were killed was they were protecting the family land including Mekenekuka.
33. Nihuwo said, Gouroe and Sapuroe were the two surviving sons of Gave. He said, Gouroe gave birth to Isoi and Iso has a son which is the complainant. Sapuroe has two sons, Okizae and Iveha. Gahale, the small brother of Gave has three (3) sons, Gihila, Goulo and Gelepenimo. Out of these three (3) brothers, Goulo and Gelepenimo were killed during tribal warfare on the “Mekenekuka” land. The Defendant said, these two (2) brothers died defending the land now in dispute. Gihila, the surviving brother (or son of Gave) has a son Nahuvo, who is one of the Defendant’s witnesses in this current land dispute.
34. Sub-summary of the above version of evidence given by the Defendant revealed his argument that, four (4) of his ancestors died defending “Mekenekuka” land. His ancestors had their blood spilled on the disputed land and so the Defendant claimed that, this has sealed his rights as legitimate landowner of “Mekenekuka” land. Nihuwo said, he has his food garden on the eastern half of the disputed land.
35. Hutono Zuhave: (Defendant’s First Witness); Affidavit sworn on the 6th of
January and filed on the 7th of January, 2008.
This witness is from Ozahazuha clan, Nagamiufa “Haus Lain”. He told this court that, no one lived at “Opaehauka” land. There were no gardens made on this land. This particular land, as the witness stated is situated on the far right-hand corner on the northern tip of Mekenekuka Plantation.
36. Hutono said, he was told by his father Gihigute that, our gardens were on the land that was owned by Gouroe (Nihuvo’s grandfather) and Gihilia (Nahuvo’s father). Because of this, Hutono said, his father told him, they were duty bound to give the biggest and the best of their harvest to the landowners as compliments for use of their land. This witness also said, his father advised him to give the land back if and when Nihuwo and Nahuvo asked for it.
37. Mathew Hativa (Defendant’s Second Witness)
This witness gave account (of evidence) of what actually transpired when he was employed by Alenumpa Coffee Ltd as Assistant Manager. One of his tasks as Assistant Manager was overseeing acquisition of Mekenekuka Portion 616 C for coffee plantation expansion. He said, the company first approached Ijabiro Sigovija and his brother Malae Alapuso, in order to get permission to acquire the said land - but could not do so. So, together with Ijabiro and Malae, they approached Isoi Gouroe for his approval to get Mekenekuka Portion 616 C. The Witness admitted that, without Isoi’s approval the company could not have acquired Mekenekuka Portion 616 C.
38. Nahuvo Gihila (Defendant’s third (3rd ) Witness
This witness relied on his affidavit sworn and filed on the 06th of December 2007. His affidavit is very short with one and half paragraph. He deposed that, he is the small father of Nihuvo Isoi. He said, when he was small, his father Gihila told him that, his grandfather Gahale weaved basket from pit pit leaves and used it to transport rich soil from near the river and top it between the parent rocks at Gumilihaka. He said, Gumilihaka is now covered by coffee plantation known as Mekenekuka Portion 616 C whilst the other part is use for gardening by Defendant Nihuwo Isoi.
39. Factual Analysis:- Facts which stood out –v- Facts which create doubts.
Defendant’s witness, Hutono Zuhave, based his evidence on “Opaehauka” land which as the witness said is located on the far-right end corner on the northern tip of Mekenekuka Plantation. Does this witness mentioning “Opaehauka” land to mean another name of “Mekenekuka”? If that is so, then how did he described “Opaehauka” to be located on the northern tip of Mekenekuka Plantation? Certainly, this clearly has shown that “Opaehauka” is not the same land as “Mekenekuka” land. Therefore, compliments given for the use of land does not bear significance in this present dispute case.
40. Hative’s evidence that of the difficulty by the company to get Ijabiro and his brother Malae to acquire the Mekenekuka land but they could not do so. This witness did not justify the reason(s) why they could not acquire the land at first instance when they approached Ijabiro and Malae. Hative stated that, Isoi disputed and they (company) left the idea of expanding the plantation. Hative stated that, Isoi said, “Kefamo, Kafavu were killed on this land”. Furthermore, Hative said, company got the top side of the land so they could not give the bottom side.
41. Hative told this court that, Ijabiro, Malae and Sinarowe convinced Isoi and they all agreed and the plantation was extended. Nihuwo questioned Hative as who else led the company to show the boundary? Answer. Isoi, Ijabiro Sinarowe and others. Question. Who let to show the boundary? Answer. Isoi. Question. Why did Isoi refused to show the boundary at the first place? Answer. Hative said, Isoi said that his people shared blood on this land. During Cross-examination by Lawrence Ijabiro. Question. You went deep into land issues – you witnessed, who showed the boundary? Answer. Ijabiro went first. When questioned by Nihuwo who led to show the boundary, Hative said, Isoi from the gate. However, when questioned by the complainant, he answered Ijabiro. This is not accurate and is contradictory.
42. Nahuvo’s mentioned of “Gumilihaka” land and that part of this land is now covered by Mekenekuka Plantation raises stern objection from Lawrence Ijabiro. Lawrence said, its Tamahuka and Mekenekuka only. Nihuwo said, Tamahuka is outside of Mekenekuka.
43. Ancestors’ Blood Spilled on Disputed Land.
The crux of Nihuwo’s interest in “Mekenekuka” land so far as the evidence he gave before this court and further supported by Hative (refer to paragraph 41) that, his ancestors blood have spilled on this disputed land during different tribal fights and because of this, he has claimed ownership rights to “Mekenekuka” land (refer to paragraph 32 of this Decision). The evidence of tribal fights have not been made very clear. Tribal fights are very common and memorable events and goes down in history. Nihuwo left this court in suspense when he did not tell Gisigisie was killed when his clan fought with who? Likewise, Homole was killed by which warring clan or tribe? This evidence is not complete. Furthermore, as stated in paragraph 32 on the place or location where both of Nihuwo’s ancestors were killed, it was obvious that both were killed outside of the current disputed land. Thus, their blood were spilled outside of the disputed land.
44. Gahale has three (3) sons. Two of his sons namely, Goulo and Gelepenimo were said to be killed during tribal warfare on the “Mekenekuka” land. These two (2) brothers had their blood spilled on this land. This in itself is evidence of greater significance. It has customary implications or bearing on the issue of land ownership. However, the shortfall as I have alluded to in paragraph 43 of this Decision. Who were the enemies that fought the tribal warfare? What was the reason or reasons for the warfare?
45. Receipt of K10, 500.00 or K30, 000.00.
It was much controversial wise both parties giving different amount of money receipt from Apele Goso as a token of “bel isi” money for the lease of “Mekenekuka” land to the State, who intend sub-leased the land to Alenumpa Plantation Pty Ltd. The Complainant Lawrence claimed he received K10, 500.00 and from that money, he shared with people who came and witnessed the “leasing of the land.” He said, he gave K1, 000.00 to the Defendant. However, the Defendant said, Apele Goso gave K30, 000.00. These two different versions of evidence can not be substantiated or verified. Apele Goso was not called as a witness to testify on this aspect of evidence and this has made the task of this court difficult. Mr. Goso’s evidence would have assisted the court as to why the money was paid to who and for whatever reason or reasons. Without this, this court can not do much with the issue of “bel isi” money. (Refer to paragraph 28 of this Decision)
46. Het Pei (Head Price) – Mekenekuka Land.
The Complainant told this court that, the “Mekenekuka” land was given to him as “Head Pay” (Het Pei) by his uncles and Tumbunas from his mother’s clan Guminayufa (refer to paragraphs 19, 20 and 22). This evidence is of course, is crucial but has not been actively and strongly rebutted by Defendant Nihuwo Isoi. Whilst there were every opportunities available to the Defendant when Koki Iveha and Michael Eka stood in the witness box, both were not grilled by the Defendant on payment of “Mekenekuka” land as “Het pei” (Head Price).
47. Tamahuka Land – within Mekenekuka Land Boundary or Outside.
The Complainant claimed Tamahuka as his birth-right land he inherited from his father. Defendant argued that, Tamahuka land is opposite and outside of Mekenekuka land. He said, Tamahuka land is where his garden is currently located. The Complainant seems to be saying one thing and Defendant the other. Maybe two pieces of land with inter-changeably two different names given by these two disputants? This has caused confusion to this court, but this can be clarified by seeing who share the land boundary with Mekenekuka and utilized their local knowledge. Koki Iveha whose clan (Guminayufa) gave Mekenekuka land to the complainant and also shared the land boundary with Mekenekuka said Tamahika land is within Mekenkuka. This was physically shown to the court during land inspection.
48. Local Land Court acknowledged the genealogical and ancestral history given by the Defendant. Also the names of places given by the Defendant’s ancestors such as; Napanuhaloka which means land covered by edible ferns, Gohuteka Goiha means swamp or mud covered by edible kumu grass. Goiha means mud or swamp. Mekenekuka means bowl – like place .... Etc. The issue is then, how much weight should this court place on the genealogical and ancestral history as alluded to by the Defendant?
49. Defendant Nihuvo Isoi – Natural son orBiological son of Isoi Gouroe.
The Complainant cross-examined the Defendant Nihuwo. He asked Nihuwo several questions but one surprised question was asked:
Question: Q. Who is your real father as Isoi is only your adopted father? Answer: I don’t know this. If we can refer back Nihuwo’s family tree; (Annexure “B” of Nahuvo Gihila sworn and filed on the 06th of December, 2007).
DC806%20Ijabiro%20v%20Isoi00.png" alt="08-09-09%20DC806%20Ijabiro%20v%20Isoi00.png" border="0" >
50. This Nihuwo family tree can be contrasted with complainant Lawrence’s claim of Nihuwo’s biological family tree (Refer
to paragraph 27 of this Decision).
DC806%20Ijabiro%20v%20Isoi01.png" alt="08-09-09%20DC806%20Ijabiro%20v%20Isoi01.png" border="0" >
51. Logic commonsense and science do not permit Defendant Nihuwo to be born from two (2) fathers Isoi and Merekenimo. One of these two (2) family trees could truly represents that of Defendant Nihuwo. And I commend the Land Disputes Settlement Act, chapter 45 for allowing Land Mediators/Assessors to be part of the Local Land Court Bench. Land Mediators/Assessors are local people, with local knowledge and in this present my two (2) Land Mediators have been of great assistance to resolve the above stated issue. The issue of whether Nihuwo is adopted son of Isoi can be put to rest. This Court is now satisfied defendant Nihuwo is an adopted son of Isoi.
52. What right does Defendant Nihuwo has over Properties of Isoi?
Going back to the family tree. Gasa has two sons, Gave and Gahale. Gave has four (4) sons namely, Gisigisie, Homole, Gouroe and Sapuloe. Gisigisie and Homole got killed outside of Mekenekuka land. Gouroe and Sapuloe survied. Now, Gahale has three (3) sons, Goulo, Gelepenimo and Gihila. Goulo and Gelepenimo were claimed to have killed at Mekenekuka land. The only Gahale’s son survived is Gihila and he has a son Nahuvo who has witnessed Defendant Nihuwo. We find Nahuvo would be the person who should be in a better position to fight for the land and other properties under Gahale than Nihuwo Isoi, instead of him being a mere witness to Nihuwo.
53. We also are aware of the right of an adopted son to inherit land from his adopted father. Like Nihuwo to inherit Isoi’s land. But there is exception to this. If the adopted son has not taken good care of his adopted father and has not met funeral expenses of the adopted father, when the adopted father dies, the land can revert back to the relatives of the adopted father. Nihuwo Isoi being the adopted son of Isoi has not justified this to us.
54. Complainant Planted Half (1/2) Hectares of Coffee Trees.
Complainant’s gave that he planted half (1/2) hectares of Coffee trees on Tamahuka land in 1970’s. Refer to paragraph 23 of this Decision. When this piece of evidence was produced before the Court, none of witnesses from either sides disputed this. Not even Defendant Nihuwo. This piece of evidence is very important as “growing crops”, making gardens, etc .... are examples of interests in the land. Whether permission is obtained or not. On the converse, if the Defendant claimed to own Mekenekuka land, at least he should have exercised some controlling rights. The right to stop others from using the land and the right to give permission for the use of land. In this case to stop Lawrence Ijabiro from planting half (1/2) hectares of coffee garden.
55. Legal Issue and the Application of the Law to the Facts as Analysed.
In paragraph 15 of this judgment, this Court has set out the main issue that would be resolved to determine which of the two disputants will have the ownership of the disputed land. The issue is; which of the two disputants has more probable interests based on custom in the “Mekenekuka” land?
56. Let us (the Court) solve this issue by looking at the Defendant’s case as presented before the Court. And, we (the Court) intend to do this by applying the results of our factual analysis to the Law (which include the custom and the Case Laws – Judge made Laws) to produce the relevant and appropriate conclusions. This is the filtering process we have decided to apply.
57. (a) Defendant’s Ancestra, Genealogical and Migratory History.
This Court has acknowledged defendant’s active reliance on ancestral, genealogical and migratory history of his ancestor Gasa, produced before the court. This is one of the factors that would be taken in to account in determining the ownership rights of the disputed. They are not the conclusive evidence of ownership. This is the established in Re-Hides Gas Land Case [1993] PNGLR 310 which we (the court) amply follow. Amet, J in this case at p.314 stated that, “whilst genealogy of ancestral origin might well have, in the past, been conclusive evidence of ownership, I am of the view that it is not the only evidence that is to be relied upon to confirm ownership at the present time.” His Honour further continued on and stated what other factors that courts ought to take note of. He said he believe that with fast development and considerable movement of tribes and clans and people from one region to anther, factors which ought to be taken in to account in determining ownership in the present context ought to be modified and more fluid than the traditional methods of determining ownership. Amet, J (as he then was) concluded that “it will be of little valid significance to rely solely on genealogical oral history that traces man’s origin back thousands of years.” Applying this principle on this present land dispute case, Nihuwo’s sole reliance on his genealogical history is of little valid significance.
58. (b) Significance of Ancestors’ Blood Spilled on the Disputed Land.
Factual analysis on this issue has been done on paragraphs 43 and 44 of this Decision. This court is satisfied Nihuwo’s ancestors, Goulo and Gelepenimo spilled their blood on this disputed land. This happened some thousands of years ago. Amet, J (as he then was) in Re Hides Gas Project Land Case (supra) held that, “In determining ownership of customary land regard must be had to numerous other intervening factors between the past and present time. These include adverse possession.” The evidence of blood spilled on the disputed land by two (2) of Nihuwo’s ancestors is obviously evidence of the past. There were no other concrete intervening factors from the time of spilled of blood up until the present time. Amet, J stated several principles taken from Professor R. D. Cooter, Institute of National Affairs (INA) discussion Paper No. 39, Issues in Customary Land Law [1988] in Re Hide Gas Project Land Case (supra) on p. 317 and we quote:-
“4. Maintenance of Interest in Land (or possessory acts):
An interest inland is maintained by building houses and settling on it and by
gardening, grazing or burning if off, collecting from it, or forbidding others to
occupy and use it.
5. No Unqualified Right of Return.
Once a group has abandoned its ancestral land by cutting all ties and associations with it, they can not return and claim it a much later date without the agreement of those who, prior to that date, have assumed controlling rights to it.
6. Ownership Presupposes Control.
Ownership implies the power, whether exercised or latent, to occupy and use land, and to stop others from doing so.
7. Preponderance of the Evidence.
In customary land disputes, the party shall prevail whose case is supported by the preponderance of the evidence.”
59. We have re-stated these principles and have made the following evaluations. So far as Principle 4 is concerned, Nihuwo Isoi have not come forward with evidence to prove his interest covered under that heading. We have been satisfied as Nihuwo did not prove to us he has made garden, grazed or burnt it off or collect firewood etc from this disputed land. It would have made a huge impact to Nihuwo’s Case if evidence proving interests in Principle 4 are established.
60. Now let us (Local Land Court Bench) make a few remark on Principle 5 Nihuwo’s ancestors Goulo and Gelepenimo spilled their blood on this disputed land and from discussing principle 4, we have come to note that Nihuwo and his relatives have not maintained their interests on this land. It became so obvious during land boundary inspection (s. 36 Land Disputes Settlement Act) that we were not able to see any landmarks evidence belonging to Nihuwo and his relatives on the disputed. Landmarks such as marita, yar trees, tangets, bamboos etc... The landmarks as stated all belonged to Lawrence Ijabiro. We have confirmed these landmarks during boundary inspection on the 26th of June 2008.
61. Complainant Lawrence Ijabiro’s Case - Half (½) Hectare of Coffee Garden.
Lawrence Ijabiro has planted half (½) hectare of coffee trees (garden) on the current disputed land, when he gave this piece of evidence before this Local Land Court, Defendant Nihuwo or any of his witnesses did not rebut this evidence. Planting coffee trees on the land by itself is a very crucial evidence, in relation to the issue of interest in land. Sevua, J discussed the “nature of customary interests” recognised by Land Disputes Settlement Act, Chapter 45 in Wabia –v- BHP Exploration [1998] PNGLR 8 at p. 13. her Honour Doherty, J (as she then was) in Blasius Vaniak, Tommy robin and others –v- Muvamastrum P/L, Bismark Industries P/L and the state. OS.30 of 1993, N1244 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 land, and the right to cut timber is an interest in the land.” Lawrence Ijabiro’s planting of half (1/2) hectare of coffee trees on the disputed land is an interest in this land. Unless it can be demonstrated to the contrary that, he was subjected to certain conditions when he planted coffee trees.
62. Head Pay (Het Pei)
Much of this above issue has been discussed and evaluated in paragraphs 19, 20, 22 and 46 of this Decision. This was a customary obligation performed or transacted over “Mekenekuka” land and was witnessed by neighbouring clans. The Complainant told this court that his uncles and bubus from Guminayufa clan gave him “Mekenekuka” land as “het pei” since Nihuwo Isoi and his witnesses did not rebut this evidence even when there was ample time and opportunity lives us to believe there is truth in this piece of evidence.
63. Lease/Lease Back Arrangement.
Who were the actual landowners who negotiated and had the Mekenekuka land given to state under the Lease/Lease back Arrangement is of great significance to determine the issue of ownership. Complainant in paragraph 21 of this Decision said his father Ijabiro was the one who leased Mekenekuka land to the State under Lease/Lease Back Arrangement. There were the train of events leading up to the actual leasing of this land in dispute. Nihuwo said, his father Isoi objected during the expanding of land boundary. It was not really clear, the reasons for his objection. But it was obvious as Nihuwo pointed that Isoi was upset as his ancestors’ blood has spilled on this disputed land. Refer paragraphs 43, 44, 58 of this Decision. In paragraph 58 we have ruled on the evidence of spilled of blood. We are satisfied that Ijabiro Sinarowe was the principal landowner who leased Mekenekuka land to the State. This appears to us (Local Land Court Bench) to be one of the fundamental issue in this case, because the right to make a contract over an interest in land is caught by section 2 Interpretation Section of the Land Disputes Settlement Act, Chapter 45, where land is defined to be customary land and includes an interest therein. We can not better expressed then adopted the words of Her Honour Doherty, J (as she then was) in Golpak –v- Kali [1993] PNGLR 491 at p. 492 in which Her Honour stated, “A contract for the use of land is “an interest” in land”. Ijabiro leased of Mekenekuka land was a demonstration of his interest in the said land.
64. Putting them altogether.
Justice Woods (as he then was) in Ene Land Group Inc. –v- Forsen Logging [1998] PNGLR 1 at p. 3 made this comment: “There are various ways (rights) to land are asserted and claimed under the law. There are various laws covering the ownership and settlement of disputes over the land and how people can exercise or apply those rights in their favour.” We have evaluated each disputing party’s evidence side by side and we wish to follow the approach in Kojo II –v- Bonsie (1957) 1WLR 1223 by putting together the competing interests on ownership claim and to test the traditional history by referral to recent facts and then we would see which of the two competing histories is more probable. This will be the best approach to solve the issue as stated in paragraph 15 of this decision.
65. When we apply the test in Kojo II case (supra) and the Principles established in Re Hides Gas Project Land Case (supra) it becomes OBVIOUS that, complainant Lawrence Ijabiro has more probable interests in the “Mekenekuka” land. Refer to the Factual Analysis and Legal Issue and application of the law to the Facts analysed.
66. Orders.
We by overwhelming majority (three members of the Local Land Court Bench) animostly agreed on consensus to award the ownership of Mekenekuka land Portion 616 c (which included Tamahuka land) to the complainant Lawrence Ijabiro and by doing so we grant the following orders pursuant to section 39 of the Land Disputes Settlement Act, Chapter 45.
Spokesperson:
Complainant: Lawrence Ijabiro appears in person
Defendant: Nihuwo Isoi appears in person
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGLLC/2008/3.html