Jujembo v Yayada [2021] PGLLC 3; DC7061 (21 September 2021)

DC7061

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS LOCAL LAND COURT JURISDICTION]
LLC NO: 03 /2021.
In the matter of a Customary Land Dispute over Ownership of the Gomberu Beach Front Lands at Kausada in the Oro Bay LLG of Ijivitari District, Northern Province.

IN THE MATTER BETWEEN:

RODNEY JUJEMBO of Gona Kausada Clan
Complainant/Claimant.

AND:

HAROLD YAYADA of Kurou Clan
Defendant/Claimant.

Popondetta: Michael W. Apie’e Chairman
Ezekiel Haera-Mediator
Prout Sehopa-Mediator

2021: August 23^rd, 30^th, September 02^nd and 21^st.

Land Disputes Settlement Act: Supplementary Land Court Hearing pertaining to –Land Court Decision by Magistrate Max Haembo delivered on 27^thMarch 2008.
Application for breach of Local Land Court Orders made to the District Court on 07/07/21.
Supplementary Local Land Court Hearing Conducted to determine the Description(s) and boundaries of the Land known as Gomberu Beach front forfeited/Awarded to Rodney Jujembo.
Site Inspection of Disputed Land to determine the Land Description

Cases Cited:

References:
Land Disputes Settlement Act (LDSA)

Representation;
Mr. Rodney Jujembo and Mr. Raphael Jujembo for themselves.
Mr. Harold Yayada and Mr. Ken Murray Yayada for themselves.

JUDGMENT.

Backgound.

1. Decision of the Local Land Court in Respect of the Land Dispute between the Parties over the concerned Portion of the Gomberu Beachfront Lands was delivered on the 27^th of March 2008 by Local Land Court Magistrate His Worship Late Mr. Max Haembo and he awarded by Forfeiture the Relevant Portions of Gomberu Beachfront Lands to Rodney Jujembo. Mediator who presided with him over this dispute were Messrs. Arinius Onjete and one H. Kerepa.
   
2. After this Decision is handed down, the Court notes that no appeal against this decision is lodged by the Defendant within the allowable time, and thereafter nor reviews are further pursued and so it was assumed that the Orders by the Local Land Court on the 27/03/08 was accepted by all concerned.
   
3. The Defendant Harold Yayada and his family and friends are however alleged to have encroached onto the selfsame Gomberu Beachfront land and so the Complainant filed his complaint of 07/07/21 CI No: 108 of 2021 seeking enforcement under section 64 of the Land Disputes Settlement Act.
   
4. The matter was mentioned initially in the ambit of the District Court but during the District Court mention(s) of this matter on the 27/07/21 it became apparent that the Description of the Gomberu Beach Front Lands was not adequately set out in the Orders of 27/03/08 and the question of whether or not the question of Encroachment by the Defendant could be sustained could not be adequately assessed.
   
5. Accordingly, supplementary Local Land Court (LLC) hearing into the Description of the Gomberu Beach Front Land was deemed to be essential to establish if indeed breaches and or encroachments have been committed by the Defendant in relation to Lands covered by Max Haembo’s Local Land Court Orders or 27/03/08.
   
6. On that basis, on the 03/08/21, in the exercise of my discretion under section 31 (1) (a) of the Land Disputes Settlement Act, I initiated this Supplementary Hearing, and also further to that in the exercise of my Discretion under Section 16, I made an appointment of Mediators Mr. Ezekiel Haera and Mr. Prout Sehopa both Serving Mediators in the Oro Province to sit in with me on this Supplementary LLC hearing into the Description of the Gomberu Beachfront Land to answer the questions raised in CI No: 108 of 2021.
   

Site Inspection:

7. Having thus Reconstituted the Local Land Court, we set site Visit to Kausada to inspect the Gomberu Beachfront Land on Wednesday the 11/08/21 and our site inspection was completed and the following is our observations;
   
   1. Going down to Gomberu Beach, Rodney Jujembo’s camp is situated on the Left and along the road when facing the beachfront, the Left side is not in dispute and is held traditionally by certain clans, groups and people including the Complainant Rodney Jujembo.
      
   2. The Right side of the Road leading down to Gomberu beach is the area that is under contention due to the following reasons that;
      
      1. There were claims made that the Main Kausada Trunk Road is the Land Boundary between the Complainants Ward 19 and Defendants Ward 20.
         
      2. The Road is the Demarcation between the Complainants Gomberu Beach Lands and the Defendants Clans Jinji Land.
         
   3. At the beach the LLC Party was led to a spot some 45 paces according to Mediator Mr. Prout Sehopa from the edge of the Road Leading down to the beach and at that distance the Complainant and his party established their Boundary Claims as the very edge of Gomberu Beachfront Lands giving way to Kurou and Jinji Land on the left side facing back inland.
      
   4. Given Mediator Prout Sehopa’s stature or build, 45 paces would roughly equate to between 20 and 25 meters.
      
   5. From the Beach back along the Kausada Road, Mr. Ken-Murray Yayada pointed out a young immature coconut tree on the Left side when facing the beach as the termination of the Gomberu Beachfront Lands clearly putting the newly constructed Arterial Track/road outside the Supposed Gomberu Beachfront Lands.
      
   6. However, Raphael Jujembo pointed instead to a Tall matured coconut tree 15 to 20 meters into the right side of the Kausada Road when facing the beach and 10 to 15 meters further up the road from the disputed new track as the boundary of the Gomberu Beachfront Land, therefore putting the newly constructed Arterial track within the Land awarded to Rodney Jujembo in 2008 by the Local Land Court.
      
8. The matter came back to court on the 23/08/21 and evidences were elicited for the parties and the following is a brief of the various witnesses called by the Parties.
   
9. Complainant Rodney Jujembo’s witnesses:
   

Albert Waijeba –Paramount Chief of Ward 19. The Essence of his Evidence is as follows that;

1. He became the Paramount chief of Ward 19in 2020 when the former Paramount Chief Max Tataki moved on.
   
2. He stated that the Road Leading down to Kausada and Gomberu Beach ran fully in Gona Kausada Land and was not Intended to be the boundary between ward 19 and 20.
   
3. He further stated that the actual Boundary is about 20 meters into the right side when going down to the beach.
   
4. He said because the Kausada people of Ward 19 built this road themselves on their own Lands, there were no complaints from anyone during the construction of this road in the 1980’s.
   
5. He further pointed out the Tall Matured Coconut Tree standing some 15 to 20 meters into the right side just before the newly constructed side road when facing the beach as the boundary marker between Gomberu Beach and Jinji Land and that sets the distance all the way to the beach according to this witness.
   

Mr. Taylor Kiki Gona Kausada village, Ward 19. The Essence of his Evidence is as follows that;

1. The Road leading down to Gomberu Beach at Kausada is wholly constructed in Ward 19 Kausada Lands and was so constructed by the Kausada people out of their own interest.
   
2. According to him, from the beach the extent of 100meters up and 20 meters into the right side when facing the beach is Ward 19 Kausada Lands and the road as far as he was concerned runs wholly in Kausada Lands therefore there were not disputes during its construction back then.
   
3. From the road about 20 meters into the right side when facing the beach is Ward 19 Kausada Lands and merging into Kurou and Jinji Lands in Ward 20 owned by the Defendant.
   
4. He also stated that the 100 meters up from the beach would terminate over where the new track was constructed.
   
5. At this juncture it is important to note that the Tall Coconut pointed out by Raphael Jujembo would be a further 10 to 20 meters heading up the Kausada Road.
   

10. Defendant Harold Yayada’s case:
    

Alban Gau (Mr.) Gona Kausada village and First Witness for Harold Yayada. He stated as follows;

1. He is a community leader who is currently a Community based Constable (CBC) and claimed to be appearing from a neutral standpoint.
   
2. He claimed that the actual Land Boundary was set as follows when several named leaders such as Paramount chief Max Tataki, Raphael Siriha, Kurou Leaders like Botiba, George King Nakoda of Bauga clan and others gathered together to resolve this issue in 2006.
   
3. He said that the Bearings for the Boundary between Kurou/Jinji and Kausada/Gomberu was set from the reef at sea just off the beach and that bearing set the boundary only 5 meters of the edge of the Road into the right side when facing the beach.
   
4. He claimed that a Cement peg was put to mark the boundary at the base of a Rosewood at the spot 5 meters of the side of the road’
   
5. He further claimed that in line with this 5 meter boundary mark, Mediator Mr. Arinius Onjete gave a Coconut seedling and so he (Alban Gau) dug a hole and Paramount Chief Max Tataki planted that coconut tree as the boundary marker.
   
6. This was all done in 2006, supposedly because of the dispute Leading to the Court Order by the Local Land Court on 27/03/21.
   
7. The Decision by LLC chaired by Late Max Haembo on the 27/03/21 was an award by Forfeiture when the matter was referred up to the LLC when no agreement was reached between the Parties.
   
8. It is therefore assumed that whatever efforts the Leaders might have undertaken to resolve this matter during mediation with Mediator Arinius Onjete and Chief Max Tataki and others never resulted in an agreement and so the Dispute was referred to the Local Land Court.
   
9. He however vouched for the Tall Matured Coconut tree mentioned earlier up the road as being planted by one Alred Ginonda signifying Dingasi Land Boundary with the Defendant Harold Yayada and his Kurou clan.
   
10. He stated that the 5 meter ran from the beach up to just before the newly constructed road/track then bends leftward to the tall coconut tree.
    
11. I note that during the LLC site visit on Wednesday the 11/08/21 no Cement peg, or Rosewood or Coconut Tree was shown to the LLC Party.
    

Lloyd Ginonda (Mr.) Dingasi Clan, Second Witness for Harold Yayada. He stated as follows;

1. He confirmed that there was Land Demarcation done on 1962, and further that these lands were subjected to mediations in 2006.
   
2. According to these, he is aware that the Demarcation between Gona Kausada Lands and Kurou/Jinji or Harold Yayadas Land is 5 meters of the Kausada Road to the Right when facing the Beach.
   
3. He also claimed that a portion of his Land was included in the dispute subjected to the Local Land Court decision of 27/03/08.
   
4. He claimed that from where the new arterial Road or Track was constructed by the Defendant up the road in line with and extending all the way to the tall coconut tree is his Traditional Lands which was included in the land Court Order.
   

Raphael Siriga (Mr.) Dingasi Clan, Second Witness for Harold Yayada. He stated as follows;

1. The Demarcation Boundary existed from ancestral times by original inhabitants followed up by the 1960’s demarcations.
   
2. The 1962 demarcations by the Australian Government was to set boundaries.
   
3. After Surveys were done on 12/12/62, before drawing up of maps the Demarcation Committee made Corporeal Oath(s) sending copies to Konedobu for safe keeping.
   
4. After all these, this dispute arose in August 2006 between the parties and one Mr. Arinius Onjete was earmarked to mediate this dispute between the Parties.
   
5. Mediation was initiated and the Kurou and Gona villagers were all there coconut trees planted to signify where three pickets were set down in 1962 as land Demarcation marks between Kurou and Gona villages.
   
6. He indicated that the Demarcation line runs 5 meters left from the main Kausada Trunk road when facing inland and runs parallel to the road up to where the Arterial track in constructed and then veers further left toward the Coconut tree.
   

OBSERVATIONS.

11. In respect of this matter the Local Land Court Observes as follows that;
    
    1. The Complainant Claims 20meters on the Right side of the Kausada Road facing the Beach and the Defendant Claims 5 meters as being the demarcation between Jinji and Gomberu Lands.
       
    2. No agreement was reached and so the matter was referred to the Local Land Court.
       
    3. When site visit was conducted, the Complainant led the LLC Party to a spot some 45 paces according to Mediator Prout Sehopa and given his Stature the distance would equate to between 20 to 25 meters.
       
    4. At this point, no one mentioned the Bearing taken from the reef resulting in only 5 meters from the edge of the Kausada road being set as the demarcation between Korou and Gona, nor were a rosewood tree or pegs shown the LLC Party.
       
    5. Rather, the Defendants Party conceded saying that area indicated by the Defendant was awarded him and they rather the LLC Party go up the road to see the area being disputed currently, namely the location of the Arterial Road/Track.
       
    6. Just before the Arterial Road, Ken Murray Yayada showed a young recently planted coconut tree on the left side facing the beach as the termination of Gomberu Beachfront Lands while Raphael Jujembo pointed the Tall coconut tree on the Right side as being the Terminating boundary marker for Gomberu Beach front.
       
    7. Raphael Also showed the banana crops on the right side of the Kausada Road facing the beach as his hand-marks right up to where the arterial road was with no opposition from the Defendants or others.
       
    8. Raphael Jujembo insisted that the Defendants constructed the Arterial Road within the Land Awarded in 2008 to his father.
       
    9. Upon the Forfeiture Award being made in favour of the Complainant, this court can safely hold that the terms of the Complainants claims were awarded to him in the whole and so that would mean 20 meters from the beach on the left side facing inland right up to the tall coconut.
       
    10. That would no doubt put the new road or track built by the Defendant within the Lands awarded to the Complainant in 2008 by the Local Land Court Chaired by Late Max Haembo.
        
    11. The Defendant and all his witnesses tried to convey to the Court that during the Lead up mediations in 2006 in the disputes leading up to the Court order of 27^th March 2008, it was established that the Land Boundary was 5meters to the side of the Kausada road as resolved unanimously between all concerned leaders and chiefs between Kurou and Gona villages.
        

8.

12. However, there was no agreement reached and the matter ended up in the Local Land Court so whatever demarcations the leaders and elders might have resolved on as pressed by the witnesses were not final and the matter was referred up to the Local Land Court for further deliberations.
    
13. When the matter is referred to the Local Land Court it is natural that the Complainant would have his version of how the Land Boundary would look and he has more-or-less reiterated that in this Supplementary Hearing, likewise the Defendant.
    
14. Bearing in mind that this Order of 27/03/08 was by forfeiture, the Local Land Court under the Chairmanship of Max Haembo would have adopted the Complainants version of the Land Demarcations/Descriptions when giving the order above.
    
15. Witness for the Defendant Lloyd Ginonda seem to substantiate this contention when he gave evidence in this hearing saying that part of his Land covering the Arterial road and leading up to the tall coconut tree was included in the Ruling thereby further establishing that the Order of 27/03/08 covered the 20meter wide stretch from the Gomberu beach right up to the Tall Coconut Tree.
    

Description of the Gomberu Beachfront Land:

16. Therefore, after 20 meters from the right side of the Kausada Road facing the beach would be Kurou/Jinji Land but the 20 meter stretch from the water from right up to the tall coconut would be Gomberu beach front land, as per the order of 27/03/08.
    
17. That being so established, it is therefore established that in constructing the new Arterial Road or Track from the Kausada Road across the Court awarded Land into Jinji Land goes against the Interests of the Complainant and his Local Land Court Awarded Land of 27/03/08.
    
18. The Defendant and his family and Agents have therefore breach an existing Court Order dated 27/03/08 contrary to Section 64 of the Land Disputes Settlement Act.
    

Judgment.

12. Having consider the whole of the Evidence and the submissions made by and for the Parties the Local Land Court unanimously by absolute majority Rules as follows that;
    
    1. The Gomberu Beach Front Lands awarded to the Complainant on the 27/03/08 by the Local Land Court is adjudged to extend 20 meters toward Kurou and Jinji Lands from the Edge of the Kausada Road facing inland and runs adjacent to the Kausada road at span of 20 meters all the way back to the Tall Coconut Tree further up the Kausada Road.
       
    2. The Lands on which the Defendant Construct the Arterial Road from the main Kausada Road towards his Jinji Lands and Kurou village to the extent of 20 meters are affirmed as part of the award made to the Complainant in the Local Land Court Order of 27/03/08.
       
    3. Therefore, this activity by the Defendant and his friends and Family amounts to a breach of an Existing Court order and is therefore a direct breach of Section 64 of the Land Disputes Settlement Act.
       
    4. Defendant has 90 days from today to lodge any applications and or Appeal relating to this proceeding only pursuant to section 54 of the Land Disputes Settlement Act.
       

Mr. Rodney Jujembo and Mr. Raphael Jujembo for themselves.
Mr. Harold Yayada and Mr. Ken Murray Yayada for themselves.

Dated this 21^st of September 2021