Megusayufa Clan, In re [2012] PGLLC 1; DC4096 (16 November 2012)

DC 4096

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN IT’S LOCAL LAND COURT JURISDICTION]

LLC. 25 of 2007
BETWEEN

Megusayufa Clan
AND

Kefamo Clan

AND

Okesana Clan

AND

Okiufa clan

AND

Masilakayufa Clan
Disputants

Goroka: S Lavutul-Chairman

T Atau - Mediator

L Gerepetamero - Mediator

2010: 21^st October, 01^st, 02^nd, 03^rd, 04^th, 05^th, 22^nd, 23^rd, 24^th, 25^th November
      

Real Property- Customary Land Dispute – Customary Ownership- Present and Past Interest on Land or Present and Past Circumstances of Competing Parties -Patrilineal Society-Genealogy-Early Settlements –Ancestral Land Marks-Common/New Boundaries-Customary Practices.

Cases Cited
1. Hides Gas Project Land, Re [1991] PNGLR 309.
2. Application of Ambra Nii and Other Members of the Toisap Clan [1991] PNGLR 357.
References
Land Dispute Settlement Act

Representation

Mr. Veho Gohonite & Samson Akunaii for Megusayufa Clan

Mr. Tokero Bin for Kefamo Clan

Mr. Nelson Ipakio Auwo for Okiufa Clan

Mr. Segepi Sepe for Okesana Clan

Mr. Apele Goso for Masilakayufa Clan

DECISION

16^th November 2012

S Lavutul: This matter came before us after attempts at mediation failed to amicably settle the issue of ownership between the respective parties. According to records and upon confirmation by the respective parties their dispute has been outstanding for over 30 years and was referred to the Local Land Court in 2007; there were no reasons given for the long delay in this matter. The initial disputants are now deceased. We will refer to the land as “the land the subject of the dispute” as the name of the said land is also in dispute. The land the subject of the dispute is located on the southern side of the Highlands Highway between the Kefamo Catholic Mission Station and the Okiufa Primary School along the Highlands Highway towards Kundiawa. All parties were given the opportunity to be heard in court and during the combine land inspection of the said land and including other neighbouring clans’ land on the 06th day of December 2010.

2. The disputants are neighbouring clans from the Kefamo area, Goroka in the Eastern Highlands Province. The Okiufa clan, Okesana clan, Kefamo clan and Masilakayufa clan all come under the Kefamo Tribe; whilst the Megusayufa clan comes under the Kafuku Tribe.

3. First we wish to make clarifications in relation to the respective portions 265, 266 and 14. Portion 265 is now Okiufa Primary School land was locally known as Lagakuka at the time of the purchase, whilst Portion 266 is now Mr. John Akunaii’s Coffee Plantation which is also locally known as Lagakuka at the time of registration. Portion 14 is now the Kefamo Catholic Mission Land and locally referred to as Gizaholizaka (covering both sides of the main Highlands Highway). Portion 14 was initially under the claimant of George Greathead a former Colonial Kiap cum Planter after he purchased the land from the local land owners; then sold it to the Catholic Mission.

4. Mr. George Greathead bought the land from the elders of the Masilakayufa clan, Okesana clan, Okiufa Clan and Kefamo Clan. The respective elders were; Goso who was Apele Goso’s father of Masilakayufa clan, Ainaho of Okiufa clan, Ahuzale of the Kefamo clan and Apemori of the Okesana clan. Each respective elder did receive their share from the payments for the land now known as the Catholic Mission land or Gizaholizaka. They each collected their payments on behalf of their respective clans to the sum of seven pound and ten (10) shillings each except for Gasovoho from the Okesana clan which collected four pound and forty shillings.

5. We also wish to clarify from the start that the Kefamo Area like in all other highlands provinces is a patrilineal society; where by custom land is inherited through the father unless there are exceptional circumstances.

Local Land Court Practice and Procedure

6. In the best interest of the parties and their supporters we wish to clarify any uncertainties in relation to the practice and procedure in the Local Land Court pursuant to Section 35 (1) (a) (b) (c) (d) of the Land Dispute Settlement Act; “ a Local Land Court is not bound by any law or rule, evidence, practice or procedure other than the Land Dispute Settlement Act; and it may call and examine, or permit the parties to call and examine, such witnesses as it thinks fit; and may otherwise inform itself on any question before it in such manner as it thinks proper, and it shall endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom”.

7. We add despite the fact the Local Land Court does not follow strict rules of evidence it must at all times observed the Principles of Natural Justice and must give every opportunity to the respective parties and their witnesses to present themselves and be heard fully; whereby substantial justice must be done between all competing parties.
Facts Not In Issue

8. Firstly, except for the Megusayufa Clan; the Okiufa Clan, Okesana Clan, Kefamo Clan and Masilakayufa Clan all received payments through their fore fathers for the Gizaholizaka land now the Kefamo Catholic Mission Land or now referred to as portion 14. They all claim to be previous owners of the Gizaholizaka land. They all accept Apele Goso and his Masilakayufa clan as former owners of specifically the now portion 14 where the Catholic Church is today to the northern side of the Highlands Highway; prior to the sale it was customarily known as Heniatemaka land.

9. The Megusayufa Clan never received any payments from the sale of Gizaholizaka Land (now portion 14) as they did not have any claim of ownership within portion 14 since the days of their fore-fathers.
10. We findTokero Bin and his associates are currently in occupation of part of the land the subject of the dispute, thus his occupation once again prompted this proceedings.

11. We find the Megusayufa Clan to have occupied and currently occupy land around the vicinity of Okiufa Primary School and at Lagakuka. Whilst the Kefamo clan currently occupies land at Anufazua and Gitinuatoka hamlets and Okiufa Clan currently occupies land on the North at Aipos and at Ukalonumuto about 500 metres to a kilometre away from the land the subject of the dispute. The Okesana clan currently occupies Okesana land at 4 mile about a half to one kilometre away from the land the subject of the dispute.

12. We find there is no issue with the respective parties’ ancestral genealogies. We find all the clans’ are pursuing customary ownership of the said land through their respective fathers’ clans. We do not wish to elaborate further in relation to the respective clans’ genealogies as there are no contentions. We also acknowledge the prestige and standing of each of the elders of the respective clans in relation to their contribution to community service and public service in the Goroka area during and after the colonial era. These were leaders in the likes of Goso of Masilakayufa clan, Ahuzale and Bin Aravaki of the Kefamo clan, Gohonite of Megusayufa clan, Sepe Apemori and Gasovoho of Okesana clan; Ainaho and Gopave Oki of the Okiufa clan respectively.

13. We further find that all the disputing parties in this matter were not traditional tribal enemies since the days of their fore –fathers until today, there is no evidence to show they were enemies. Evidence shows they have lived side by side with each other over the years without a fight and have interacted with each other one way or another since their co- existence.

14. There is no issue in relation to the boundaries of the said land now the subject of the dispute, none of the parties raised any issues.

Facts in Issue

15. From the evidence all parties claim to have cultivated and resided on the said land now the subject of the dispute prior to and during the arrival of the first white man in Goroka. This particular issue is contentious in which it has prompted us to pay close attention to each parties claim in relation to actual cultivation and occupation of the land associated with their past and existing interest reasonably from the present to the past 30 years.

16. Secondly the other fact in issue is the name of the land the subject of the dispute is whether Gizaholizaka or Lagakuka?

17. In order to enable us to analyse the interest of each parties in relation to their claim for customary ownership to the “land the subject of the dispute” we seek the assistance of section 67 of the Land Dispute Settlement Act which allows for certain presumption as to the vesting of interests. Section 67 stipulates;

(1) Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land the subject of the dispute for not less than 12 years without the permission, agreement or approval of any other person sets up the presumption that that interest is vested in the first- mentioned party.
(2) Where a presumption is set up under Section (1), it maybe rebutted only by evidence leading to clear proof that the interest is vested in some other person.

18. We also sought the assistance of the view by Amet J as he was then sitting as Special Lands Titles Commissioner in the Hides Gas Project Land case in which he said it is not sufficient to rely upon genealogical ancestral history;

“If that oral history traces the origin of a particular tribe or people or tribe back thousands of years or hundreds of years without taking into account many other factors since that time to the time of the dispute it would make determination of ownership of land totally meaningless if there had been numerous other intervening factors between the origin of that group of people to what the present circumstances are. It is important to state what other factors ought to be taken into account in a changing developing nation and land tenure system such as is happening in our country at this time”

19. Now reading into His Honour’s view is in line with the intentions and spirit of Section 67 (1) of the Land Dispute Settlement Act; each competing parties’ interests must be given careful consideration from their respective present circumstances to their past circumstances. It also prompted the court to seek out, “what other factors that ought to be taken into account in a changing developing nation and land tenure system such as is happening in our country today”.

Analysis of Competing Interest; Past and Present

20. The evidence before the court shows the livelihood of the respective parties from the time of their elders was affected one way or another upon the arrival and invasion by the early European Settlers and colonizers into the Goroka area and specifically the Kefamo area; in that through the construction of the highlands highway new boundaries emerged and land were acquired resulting in vacation of land by locals to give way for development. These directly affected the common hunting grounds and once farm lands of the respective clans. This was firmly put by the remarks of Samson Akunaii in evidence in which he remarked; “the colonial administration’s decision to build infrastructure such as the highlands highway cuts through traditional land and as a result created new boundaries, including feeder roads”. Nelson Ipako in paragraph 16 of his affidavit similarly stated “the Okiufas were caught in the midst of the colonial administration’s move to settle on Okiufa Land to establish administrative headquarters for the now Goroka Township. So Gizaholizaka become an issue due to civilization”.

21. A classic example is the Okiufa Primary School land once Megusayufa clan land, the now Catholic Mission Land or portion 14 once Masilakaiyufa, Okesana, Kefamo and Okiufa clans’ land as claimed.

22. We now analyse the respective clans past and present circumstances in relation to interests over the portion of land now the subject of the dispute;

Okiufa Clan.

23. They are basically claiming ownership of the “land the subject of the dispute” as they claim the name of the land is Gizaholizaka Land. Their claim stems from the fact their elder Ainaho collected payments on behalf of their clan from the purchase of Gizaholizaka land now known as Portion 14 or the Catholic Conference centre to the southern side of the main Highlands Highway by George Greathead a former Kiap cum planter. They also claim the land the subject of the dispute is part of their Gizaholizaka land and claims their elders did reside and cultivated the land prior to the arrival of Colonizers including Jim Taylor.

24. The evidence shows Okiufa Clan are located at Aipos on the Northern side of the main highlands highway and are also located at Ukalonumuto about half a kilometre away from the subject land. There are some arguments in the evidence of the Okesana clan that the Okiufa Clan members who now reside at Ukalonumuto today are remnants of the Okuifans who took refuge there after their homes were destroyed by the Komiufa Tribesmen during a tribal conflict. It is argued they were taken in by one of their sister and member of their clan who was married to an Okesana man.

25. Witness Ovila’e Hahuzale of the Kefamo clan at Q4, revealed in cross examination when queried about the origins of the Okiufa clan he stated; “Komiufa tribe burnt the Okiufa homes and the Okesana took them down”. He further revealed at cross examination “the Okiufas had to returned to their land after the disagreement with their (Okesana) leader and the Okiufas were happy and appreciative of the way the Okesanas had looked after them and in returned the Okiufas then slaughtered a pig, sang and dance and brought and delivered the food stuff and pig to the Okesanas. There was no rebuttal of this piece of evidence by the Spokesman for the Okiufa clan.

26. A similar revelation by Gitene Negiah of Okesana clan shows that the following persons, Aito and Samanue were their uncles in whom their father was from Okesana and one namely Maluwaizo married one of their sisters. He also revealed Take Makarai now witness to Okiufa clan is the son of his father’s sister. We take this as an objection to the Okiufa clan’s standing to claim ownership over the land the subject of the dispute on the argument that they weren’t originally from Ukalonumuto. Although we accept this piece of evidence, we refuse to dwell on it.

27. Despite the above there is no dispute in relation to the Okiufa clans’ genealogical and ancestral history. However during the inspection of the land our expectation is for the respective parties to show and demonstrate to the court their respective clan’s significant landmarks such as rivers/creeks, caves, stones, burial sites, early settlement sites and trees including any other plants which may depict a clan or people in order to affirm their existing interest on the land the subject of the dispute. These land marks may assist the court greatly whilst analysing evidence to determine any current interest in relation to customary ownership.

28. Unfortunately, the Okiufa clan failed to demonstrate to the court any of their significant landmarks on the land the subject of the dispute as to affirm their current interest over the said land. We are of the view their claim to have been cultivating and residing on the land including the fact their elder Ainaho also received payments for the Catholic Mission land is not enough to be seen and accepted as a form of interest to substantiate their claim for customary ownership over the said land. We therefore find that the Okiufa Clan’s contention for customary ownership to the said land must fail. We refused to grant and award customary ownership over the said land to the Okiufa clan.

Okesana Clan

29. The Okesana Clan were recipients of payments for the Gizaholizaka land now the Catholic Mission land. Their elders Sepe Apemori and Gasovoho received £7.00 and 10 Shillings and £4.00 and 4 Shillings respectively. They also claimed their elders cultivated and resided on the land the subject of the dispute. They claim the Gizaholizaka land includes the land the subject of the dispute. The Okesana Clansmen and women are located at Naminamiroka and Gihegu villages these are Okesana land.

30. They gave a detail account of their genealogical and ancestral history in which none of the other competing parties disputed it. Their claim is similar to that of the Okiufa, Kefamo and Masilakayufa clans. During the joint inspection of the land they failed to demonstrate and show what their past and present interests including the clan’s significant landmarks if any which could be visibly found on the said land so as to affirm their claim for customary ownership of the said land.

31. As we stated earlier in relation to the Okiufa clan’s claim, we are of the view their claim that their elder Sepe Apemori also received payments on behalf of the clan for portion 14 and the claim of cultivation of the said land is not enough to substantiate their claim for customary ownership of the said land. We therefore find that the Okiufa Clan’s contention for customary ownership to the said land must fail. We refused to grant and award customary ownership over the said land to the Okesana clan.

Masilakayufa Clan

32. The Masilakayufa Clan are currently located on the Northern side of the Highlands Highway outside the perimeter of the Kefamo Catholic Mission. Their elder and land owner Goso Getoriha received payments to the sum of £7.00 and 10 Shillings for his land now portion 14 previously known as Heniatimeka land currently Kefamo Catholic Mission Church land on the Northern side of the Highlands Highway.

33. Spokesman Apele Goso gave account of how the land now portion 14 was acquired by George Greathead as he was a teenager at that time of the sale and purchase of the land. He claims his father owned the larger portion of Gizaholizaka land that is why apart from the monetary payments he was given as a token of goodwill and appreciation, his father was given seven (7) tamioks (axes) and seven (7) twisted tobaccos. He added that no one else apart from his father received such gifts. He claims his father presented him with one of the axes.

34. Apele Goso also gave account of how his clan were engaged by the kiaps to perform community work by cleaning and beautifying the road sides includes building toilets. He claims the very reason why they were engaged is because they were the land owners and it was a criteria used by the kiaps in engaging labour. Apele Goso is basically pleading with the court to understand that his father was the owner of a larger portion of Gizaholizaka land and that the land the subject of the dispute is part of his father’s land in which he is supposes to be an heir to it. He added the name Gizaholizaka is a name derived from a destructive weed which grew in the vicinity of the land.

35. We note there weren’t any objection to Apele Goso’s account of his genealogical and ancestral history and including the above events; however the only contention is the timing of Apele and Masilakayufa clan’s late inclusion as a party to the dispute well after 33 years since the duration of the dispute raised by the Megusayufa spokesman Samson Akunaii. Apele Goso gave the excuse that he was doing business outside of Goroka at Kainantu and Henganofi; and that he was a coffee buyer and ran a plantation.

36. Secondly, Samson Akunaii contended Nagisaro of the Mukiukazuha sub- clan who was an uncle to Apele Goso was a witness assisting the Megusayufa clan during the mediation process over the land. However Apele denied having any knowledge of it as he was not at home. This piece of evidence raises the issue over the reasons and motive of Apele Goso’s contention for ownership over the said land. It appears Nagisaro is an uncle and elder compared to Apele in time and age and would be in a better position to know who the real owner of the said land was. We have this uncertainty on the genuineness of Apele’s contention as to why would his elder and uncle be siding with Gohonite of Megusayufa clan whilst in contention for the said land those early years.

37. Apele Goso and his other clansmen were party to the joint land inspection conducted by the court on the 06th of December 2010. They were given every opportunity to show and demonstrate to the court their existing interest on the said land.

38. Despite having satisfied the court with their genealogical and ancestral history they failed to demonstrate to the court what existing interest there is on the said land prior to the dispute. They totally failed to demonstrate their existing interest to the court. It must be understood by claimants that it is not sufficient to rely solely upon genealogical ancestral history. We are of the view the contention by Masilakayufa clan that they own the larger share of Gizaholizaka land and they have received payments and gifts over the land when it was sold is not enough to establish such existing interest over the said land.

39. The court therefore finds that the Masilakayufa Clan’s contention for customary ownership to the said land must fail. The court refused to grant and award customary ownership over the said land to the Masilakayufa clan.

Kefamo Clan

40. Spokesman Tokero Bin is the son of Bin Aravaki now deceased and one of the original disputants. The evidence before the court indicates late Bin Aravaki had a colourful history and record as a policeman and later councillor and was also a member of some the important committees in Goroka after his retirement as a policeman. The evidence brought on behalf of the Kefamo clan by Tokero Bin detailed out the genealogical and ancestral history of the Kefamo clan; and specifically Bin Aravaki’s rise into colonial history including his encounter with Jim Taylor.

41. The Kefamo Clan were also involved in the sale and purchase of Gizaholizaka land now portion 14. Their clan leader at that time namely Ahuzale received £7.00 and 10 Shillings for their part in the sale. They contended the land the subject of the dispute belongs to Bin Aravaki as he was the one that objected to the sale of the land to George Greathead. They claimed if it had not been for Aravaki’s objection the land would have been sold. They claim Bin Aravaki specifically directed that the Gizaholizaka land be left alone for himself. Hence it was Bin Aravaki’s permission that was sought by Luluai Ahuzale in Kainantu in order for the sale to be executed. The evidence featured before the court in relation to the sale of Gizaholizaka does not have any record of Bin Aravaki’s involvement in the sale.

42. They contended Bin Aravaki and his parents cultivated the said land. He added Bin’s parents garden was fenced with yarra tree branches including “tanget” plants and one of the tanget plant remains to date on the said land; which is claim to be evidence of ownership and traditional rights over Gizaholizaka land.

43. Moreover evidence shows Bin Aravaki retired from the Police Force in the late 1950’s (1957-1959) and came back home and settled with his parents at his parent’s hamlet at Gitunuatoka, further down from Gizaholizaka. Bin then constructed a road across the said land leading to Gitunuatoka hamlet. Tokero claim none of the elders of the now competing clans objected to nor raised any issues in relation to the road construction.

44. During the joint land inspection we confirmed there is a road alongside the perimeter fence of portion 14 which leads to Gitunuatoka. We also found several huts made of bush materials with newly cultivated gardens belonging to persons which Tokero Bin had settled on the land which gave rise to the resurrection of this dispute.

45. Except for the road; Tokero Bin failed to show any of his significant land marks signifying his existing interests on the said land and in order to affirm his claim of ownership by custom. We were shown a tanget plant by Tokero Bin claiming it to be one of his father’s significant land mark and sign of ownership over the land. However the court refused to consider it as evidence to support his claim of ownership as it appeared to be a very young plant which could have been planted very recently. Its stem, roots and branches do not show it is an old plant which could appear to be regarded as an historical plant to indicate it was planted in the period prior to and after colonization; there was no sign of aging on the plant. If it had been from the past we doubt it would have survived bushfires as the whole area is grassland and prone to bush fires over the years.

46. In relation to the road; it was built during Bin Aravaki’s term as a councillor for the Kefamo area as claimed by the other competing parties. The court noted from Nelson Ipako’s reply to one of the questions put to him in examination by Tokero on why they did not stop his father Bin Aravaki from cutting the land and he answered it was because they had understanding and respected his father (Bin Aravaki) because he was a policeman.

47. Despite; the fact that the Kefamo clan through Tokero Binn’s contention that the road which his father built is an existing interest on land and to be read into his claim of ownership cannot stand; as in the court’s view due to Binn Aravaki’s popularity and standing as a leader and councillor he was not challenge over the construction of the road. The court is also of the view that everyone else including the clan leaders of the respective parties in this dispute saw the road as a necessity for everyone’s benefit to access and transports their goods to market in Goroka. And at the same time Bin Aravaki was in a position of influence and authority as a councillor and former policeman. The court believes in those days such persons were given prominence and there was total obedience to such persons in authority as Bin Aravaki; that is why it made it easier for him to construct the road through the land the subject of the dispute.

48. It also raises the issue on why Bin Aravaki shortly after he retired from active police duty did not make any immediate attempt to occupy the portion of land now the subject of the dispute. The court is of the view if the land belonged to Binn Aravaki there would not be any dispute as records shows George Greathead purchase Gizaholizaka now Portion 14 on the 30^th day of September 1952 as confirmed by Annexure # 7 of Skippy Pipi Gohonite’s affidavit. Annexure #7 is an official copy of Transfer of Land by a Native to the Administration; a record of the transfer of Gizaholizaka land now portion 14 after it was purchased from Okiufa, Kefamo, Okesana and Masilakayufa clans.

49. About six (6) years later Binn Aravaki retired as a policeman and returned home to Gitunuatoka to reside with his parents according to evidence by Tokero Binn. The court is of the view six (6) years is not a very long time and we believe all information regarding the sale and the knowledge about the actual owners of the neighbouring portions of land including the land the subject of the dispute will remain fresh in the minds of those elders who were disputants including Binn Aravaki’s father as evidence shows he was still alive after Binn’s retirement. The court also add; it would also be fresh in their minds who was there cultivating the said portion of land at the time of the sale and purchase of Gizaholizaka land including the six years after the purchase and Binn’s retirement.

50. The court noted another observation from the evidence of the Megusayufa clan in which they claim the following elders of the Kefamo clan who had standing in their respective communities which Binn Aravaki and son Tokero Binn who are members of namely; Mikaive Ahuzale, Lapun Aize, and Lovahe of Kefamo Hanufazuha including, councillor Ailai’e and Susuro ( still surviving) of Asaroyufa village, councillor Ainaho of Okiufa village, Nagisaro of Mukiufa village under Masilakayufa clan and Vivie of Waima village; were all witnesses for one of the original disputant Gohonite Eripeme of the Megusayufa clan. This particular piece evidence was not contested by the other parties and raised any issues in relation to it. We concluded it is possibly correct.

51. This then raises some doubts in the standing and motives of the Kefamo, Okesana, Okiufa, and Masilakayufa clans in relation to their respective claims. The evidence shows that the above mentioned elders were respectable men with high regard and standing in their communities during their time; no one disputed their standing or their motives in representing Gohonite as witnesses in the evidence before this court.

52. Finally, the court’s other observation from the evidence is why is it that Binn Aravaki’s father (Aravaki) did not feature in the contest for the said land; as the court understands the Kefamo area is a patrilineal society in relation to inheritance to land. Aravaki (senior) should have been at the fore front to protect his son’s claim to the said land; there are no explanations as to why he did not feature in the dispute or as to why himself and wife vacated the land the subject of the dispute and returned to his Gitunuatoka hamlet if they were actually residing and cultivating this particular portion of land now the subject of the dispute. There are no explanations in the evidence presented before the court by the Kefamo clan which now leaves this uncertainty in the mind of the court.

53. Now based on the above line of reasoning as supported by the evidence before us we find the claim by the Kefamo Clan for customary ownership of the land now the subject of the dispute must fail. We refused to declare customary ownership of the said land in their favour.

Megusayufa Clan

54. The Megusayufa Clan through their spokesperson Samson Akunaii gave a detailed genealogical and ancestral history of their clan. They claim the land the subject of the dispute is Lagakuka and not Gizaholizaka. The evidence of Samson Akunaii clarifies the creek on the Northern side of the Highway it has a different name whilst on the southern side has a different name; the creek is absorbed into a swamp there is no creek. He mentioned the name of the so called creek is Lagakuka in the local dialect referred to as “vioha” meaning swamp. He added those that referred to it as a creek or river are telling lies as there is no river. Witness Skippy Gohonite also confirmed the land the subject of the dispute in the local Gahuku dialect is known as “Lagakuka Goiha” meaning swamp in English. This piece of evidence was not rebutted and this piece of evidence also clearly demonstrates the Megusayufa clan are well versed with the piece of land.

55. In confirming this claim the court sought the assistance and clarification by using the topographic map of Goroka including the Kefamo area which was tendered by Mr. Nelson Ipako of Okiufa Clan in his evidence marked as Annexure #1. It clearly shows and confirm Mr. Akunaii’s claim there is no river plotted on the topographic map as opposed to the claim by the other parties. Further from the court’s independent observation the land the subject of the dispute appears to be a partially swampy area more towards the direction of the Okiufa School.

56. In his attempt to demonstrate their existing interests; Samson Akunaii clarified his father and the Okiufa Primary school built a fish pond on the said land and the access water which came out of the pond created a creek. We estimate the fish pond was built some time after 1963 as Annexure #3( A copy of the Transfer Of Land From A Native To The Administration) in Samson Akunaii’s affidavit confirms the Okiufa Primary School land was purchased by the Administration on the 19^th of February 1963 from Gohonite Eripeme.

57. During the joint land inspection Veho Gohonite showed us what use to be a water hole on the land the subject of the dispute which they once use to fetch water from for their domestic use. There was no objection from the other parties in relation to Veho and Samson Akunaii’s revelation. Nor there is evidence that the other clans’ elders during their time disputed Akunaii and the school when they built the fish pond on the said land.

58. Furthermore this now raises the question of who was the last and present in time to actually exercise an interest over the land the subject of the dispute without the permission, agreement or approval of the other parties for not less than 12 years in line with the requirements of Section 67 (1) of the Land Dispute Settlement Act Chapter No. 45.We are of the view as oppose to the other competing Clans we can safely say the Megusayufa clan through John Akunaii were the only clan that had physically exercise an interest over the said land by evident of building a fish pond and including the water hole which they alluded to in their evidence. We estimate this to be some time prior to the dispute, our calculation from the evidence if the dispute is about 30 years old then the dispute first arose in 1977 and resurrected in 2007, so from 1977 to 2007 when the matter was referred to the Local Land Court is about 30 years. Although the Megusayufa clan did not indicate for how long did clansman John Akunaii cultivated fish and maintained the fish pond for in our view the evidence is enough to be read into the requirements under Section 67 (1) of the Land Dispute Settlement Act.

59. We noted from the evidence of the other competing clans; they failed to disclose what specific interest they exercised over the said land as per the requirement under Section 67 (1) of the Land Dispute Settlement Act.

60. Moreover, we accept the evidence of the Megusayufa clan that Gohonite was a paramount chief of their clan and when the contest for ownership over the said land first arose he had witnesses from the wider community and with standing, they were; 1. Ailai’e a councillor of Asaroyufa village, 2. Councillor Ainaho of the Okiufa village and was recipient of monies from the purchase of Gizaholizaka land, 3. Nagisaro of Mukiufa village under the Masilakayufa clan, 4. Lapun Aize of Kefamo Gorohazua, 5. Mr.Vivie of Waima village, 6. Lovahe of Kefamo Hanufazuha, 7. Mikaive Hahuzale of Kefamo Gorohazuha, 8. Susuro of Asaroyufa a surviving witness from the original case. As we alluded to earlier these are persons with standing, elders and leaders in their own right and they had a far better understanding and first-hand knowledge of their communities including their knowledge about ownership of land in the Kefamo area.

61. We note four (4) of the elders during their time were leaders in their own right and were leaders of the respective four clans that are competing with the Megusayufa clan for ownership over the said land. There was no rebuttal by the other clans on this piece of circumstantial evidence. In addition in our view it also settled the issue on who actually initiated the dispute against Binn Aravaki; circumstances before us confirm it was Gohonite that disputed Binn Aravaki when he first attempted to occupy the said land and in doing so the other parties joined the dispute.

62. Having considered the respective clans oral history and ancestral genealogy and in deciding this matter we adopt the view by Woods J, in the matter Re Application of Ambra Nii and others (N1007) 1991 which states;

“The reality would be that if you go back long enough in oral history and ancestral genealogy you would find that many clans may have sat on the ground but it would be impractical to say that such occupation or passage over land at some time in the distant past by an ancestor gives a person some claim on the land today. The Land Dispute Settlement Act lays down that such vague past connection is not relevant and current incumbency is, according to its twelve years presumption”.

62. We wish to reaffirm that based on the evidence before us and in line with His Honour’s view we find the Megusayufa clan’s current incumbency discussed above is relevant as opposed to other clans’ vague past connections. Which they currently rely on even if there is some truth in it and if accurate it would serve no useful purpose as opposed to what the Megusayufa clan are relying on.
63. Now based on the above line of reasoning as supported by the evidence before us we find the claim by the Megusayufa Clan for customary ownership of the land now the subject of the dispute is successful. We therefore declare and award customary ownership of the said land in dispute to the Megusayufa clan

64. We also find and declare that the land now the subject of the dispute is Lagakuka and not Gizaholizaka.

Orders

(1) That all persons including Tokero Binn and his relatives, associates, agents and employees are to vacate and return vacant possession of the Lagakuka Land to Veho Gohonite and Mr. Samson Akunaii and their Megusayufa Clan within two (2) months commencing from the 17^th of November 2012 to the 17^th of January 2013.
(2) That all structures on the said land are to be dismantled and removed by the 17^th of January 2013.
(3) The other competing clans are restrained from obstructing the Megusayufa clan from accessing the said Lagakuka Land.

...........................................