Masugu Land, re [1989] SBLC 2 (17 April 1989)

Resume 9.30 am on 17/4/89

JUDGEMENT OF MASUG LAND DISPUTE DELIVERED ON MONDAY 17TH APRIL 1989 AT NAMUGA.

JUDGEMENT:

This is a judgement on Customary land dispute known as Masugu land. The said land indisute has been dealed by the Star Harbour chiefs The Star Harbour chiefs fail to settle the dispute. Later the Santa Ana chiefs come without the request of the Star Harbour chiefs or both parties and gave final division on the disputed land. The Customary land indispute is generally name in custom Nafaboo land. It is a simple dispute that may have been settled by the chiefs but fail to play their part. However the plaintiff did not satisfied with the proceeding of the Star Harbour and Santa Ana chiefs on the disputed land which is now channel to court. In any law the plaintiff have the right to lodge his appeal to Local Court seeking for final decision on the land dispute. Now the Star Harbour Local Court has Jurisdiction to hear and make final decision to the disputed land.

The court now turn to evidences given in Court by the two parties. The Court may consider the evidences of both parties, and must bond by law to deal firstly with the plaintiffs evidences and second to the defendants evidences. In evidences submitted in court by the plaintiff, outline that the land indispute is generally call in custom Nafaboo land, but the plaintiff insist in court to disputed a small plot shaded on his map call Masugu land, as Nafaboo land has many small plots of land and were owned by other people. The plaintiff has given in Court his genealogical table of his ancesistors, who clan own the said land indisouted, The plaintiff claim the two (2) sisters who were from generation to generation own the disputed land. The two sisters were call KAMAFERENE and KATIKUKAWAIAU. This has been outline in court their family tree. The plaintiff claims that this are the generation who own Masugu land. The plaintiff stated in Court that Masugu land was the ownship of his generation. He admitted in court that Masugu land is a small plot shaded on his map. The boundry of the disputed land begins at the mouth of Masugu passage and right up and end at Qwanapupu. The court understand that Masugu is located in the Nafaboo land. The Plaintiff claims that there is a customary boundary have been exist and bounded by custom. The court believe tha excists custom bondary always bonding by the big river and not small streams. The court depend on survey before final decision can be made. The court then now turn to evidences submitted in court by the Pw1 Sosimo Magusu in his evidence he confirm that land indispute have been handed down by their generation and boundary of the dispute land is bounded Masugu river as customary boundary. He confirm in court that chief Qwarari own the disputed land. The plaintiff witness admitted in court that his father Murisigea advice him or given the knowledge that the land indispute belongs to the plaintiff.

The court then now turn to the Defendants evidences. Before the court may deal with the defendants evidences, it must be clear that the Defendant has five witness to give their evidences or to witness the evidences submitted in court by the defendant. The defendant outline in court that she is disputting Naruka land and not Nafaboo land. The defendant admitted in court that the land been awarded to her was from TARAMANU to FIRU. Whe claim why she own the land from Taramanu to Firu was because chief clan call Pitoro care of Nagonime when the enemy kill him. Defendant claim that her chief Pitoro collect the body of Nagonime and burried. Thus this is why they handed the land from Taramanu to Firu to her generation to generation. The defendant claim three (3) chiefs clans call Punanga, Wamea No 1 Wamea No 2 and Katara Kaiarona and Katororisi. This generation mention were Amea clan who own the land indispute. The generation end. The defendant admitted in court that Naruka land was handed or transfered to Atawa for some reason. The defendant did not clear to court why the land was transfered to the Atawa clans.

The defendant did not mention the husbands of Mamakini, Karaki, Karukea, Kafaruteona, Katara, Kamasu and Katora. Thus this court may not sure why this generation exists. The defendant witness one (1) was the defendants own brother. Therefore the court may not consider the evidences given in Court by the Dw1 on outlining his statement depend merely on properties, but not the land indispute. The court understand that what the Dw1 given in court may similar understanding of what the defendant submitted in court as the defendant and the Dw1 are real brother and sisters. The Dw1 argue in court he understand well the bondary of the disputed land the Start from Bilare and end at Wemeomeoga. This he conclude his evidences. In question submitted in court by the plaintiff to the Dw 1 said that during 19 years establish in the disputed land where did you stay? The Dw1 admitted in court that he knew that the disputed land was his ownership but he did not want to dispute. The court warn itself before making final decision. The court argue that the motor must be to prevent is better than to cure. Thus Dw1 and the defendant should speak out to stop the plaintiff at first time when saw that the plaintiff start clearing the land. No its too late. It is the matter that the court may consider in all evidence submitted in court by the defendant and all her witness and must convince the court to prove that the defendant own the disputed land.

The court then now turn to evidences given in court by the Dw2 Kiroto Banato. In court proceeding the court ordered the Dw2 to shown on oath but excuse to the court bound to allow him to explant himselft why he come to witness in court. He admitted in court that he come in court not to witness the defendant not to witness both parties. He claims in court that the two (2) parties dispute the land today, are same people. Later he accept to shown on oath and given his evidences. In evidences lodge in court by the Dw2 admitted that Murisigea advice him on the boundary of the disputed land.

Court understand that Murisigea was the father of Pw1. The Pw1 have been admitted in court that his father also advise him on his understanding on the disputed land. In question submitted in court by the plaintiff question the Dw2 to tell the court if he know any custom, in the land indispute. The Dw2 admitted that he come not to dispute custom, but he dispute the land. The court fully understand that the land is the root of the custom. Without the land no one will live until today. In considering the evidence given in court by the Dw2 has given similar evidence as the Pw 1's evidences. The court is satisfy on Dw2 evidences and bear in mind to move to consider the Dw2's evidences.

In evidences lodge in court by the Dw3 that she was sure that the land indispute was belongs to Defendant. The Dw3 claim in court that her father also teach her on the boundary of the disputed land. She also admitted in court that her father was the defendant's uncle. She claims that sometimes they made gardening in the land own by her father call Funaboa. The court then check the defendants man and could not locate the name Funaboa. The Dw3 also claim that the defendant owns sago palms and swarm taros in the disputed land. The court will not consider as final but to depend merely on survey. The court also turn to consider the Dw4's evidence.

In evidence given in court by the Dw4 claim that the land in dispute belongs to Qaoqaongo and Katora. He admitted that his father also owns swarm taro in the disputed land. The plaintiff argue in court that the swarm taro claiming the Dw4 was outside the disouted land. In considering this evidence the court has set aside the evidence given in court by the Dw4, because he was talking about the out side land and not in the disputed land. All in all the court may final in considering the Dw5 evidence. The Dw5 claim that the land in dispute was the ownership of the defendant. He argues in court that when he was small boy he went to cut sago palms leafs in the disputed land. That this is for sure he believe the land belongs to the defendant. In cross examination on evidence given in court by the Dw5 court found, the Dw5 evidences is too soft to convince the court to consider.

In cross examination on the evidences produce in court by both parties, the court then found that the reall land in dispute is generally call Nafaboo. The court is in doubt of the defendant who claim that the land indispute was in custom call Naruka land. However Dw2, 3, 5, admitted that the land dispute is generally call in custom Nafaboo, but the plaintiff is only claiming a small plot namely Masugu. In making final judgment court must turn to court survey before any final decision can be made.

The court then survey the land indispute and found that the real customary boundry in the disputed land starts at mouth of Masugu river went right up to Naoaunapupu dense up to Nagiriworo. The defendant claim that her boundary lies from Waimeomeoga and right up to Bware. Court proved that boundary lies from Wemeomeoga is not true boundary according to custom. The court also found sago palm, coconuts, swarm taro who own by the defendant in the disputed land. There is no doubt that both parties owns properties on the disputed land. Court proves all the properties own by the defendant was situated just close to the main boundary. There is some arguement arose during the court survey by both parties, but would not take note thus this court is only interested in proving what the parties may showed in court, such as properties memory, grave yards and tambu sites. Both parties did not show the court any grave yards and tambu sites in the disputed land. However they claims that the tambu sites and grave yards are outside the disputed land but in side land boundary. It is for making last decision.

All in all the court is satisfy on survey and all evidences lodged in court by both parties and their witness and the disputed customary land known as Masugu land, and Masugu land is awarded to the PLAINTIFF and the DEFENDANT has no right over the land, but the properties must be shared to the parties concern.

DECISION

All properties own by the defendant in the disputed land may own by the defendant and not the land. This includes coconuts sago palms, swarm taro, nali nuts, cut nuts, mangos and other eatable trees. All properties own by the plaintiff may own by the plaintiff. The plaintiff has fuul right over the Masugu land.

COURT

The Plaintiff is warn not to distroyed the defendants properties and the defendant also warn on the same condition.

RIGHT OF APPEAL EXPLAINED

MATHIAS TAROHA	ISAIAH TARO
COURT PRESIDENT	COURT CLERK