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Kaupa v Yomil [2010] PGLLC 2 (18 June 2010)

DC4055

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN IT’S LOCAL LAND COURT JURISDICTION]

LLC 01 of 2010
BETWEEN

Anton Kupe Kaupa

AND

Robin More Yomil

Kundiawa: SLavutul- Chairperson
T Bal- Mediator
WM Gul- Mediator

2010: 10^th, 21^st, 26^th, 28^th May

Procedure In Local Land Court- Customary Land Dispute – Ownership- Purchase of Customary Land.

Cases Cited
Nil

References
Customary Land Dispute Settlement Act

Appearance
Both Parties Appeared In Person

18^th June 2010.

The Local Land Court; The matter came before us after attempt at mediation failed to amicably settle the issue of customary ownership.

2. The land the subject of the dispute is a portion of land within the main Kogesuna land at Koge village, Kamtai District of the Simbu Province.

3. The land the subject of the dispute is about 20 metres by 5 metres in size which is about 50 square metres in its total perimeter.

4. The 1^st party namely Anton Kupe Kaupa is claiming the said portion of land through his father namely Kaupa an elder of the Ogelekane clan of Koge. Whilst the 02^nd party namely Robin More Yomil claims that he did purchase the said land from its customary owner namely Kaupa the father of Anton Kupe Kaupa in about 1974.

5. According to the local customary land tenure system of the Koge area including the entire Simbu Province land is inherited through the father. The entire Simbu Province is patrilineal society.

6. The only issue which this court was required to settle was whether Robin More Yomil did purchase the said land from Anton Kaupa’s father (Kaupa) and his other clans men and/or whether the purchase was accepted by other clan members.

7. Evidence revealed both Anton Kaupa and Robin More Yomil hail from the same Ogelekane clan of Koge village.

8. The land the subject of the dispute was originally owned by the Ogelekane clan directly under the custodian and claimant of one Kaupa Anton.

9. Evidence reveals the land the subject of the dispute was used and cultivated by members of the Waula Clan. The said land was returned to the Ogelekane clan on condition that they pay for the improvements and crops on the said land. This piece of evidence was affirmed by the evidence of both witness Lucas Kun, Paul Naure and Robin Yomil.

10. Witness Lucas Kun was the son of one of the elders (Kuipa Aure and Yani Kagai) of the Waula clan who actually cultivated the land, whilst witness Paul Naure is a member of the Ogelekane Clan and a brother to Anton Kupe Kaupa.

11. All witnesses affirmed in their evidence Robin did purchase the said land from Kaupa only after Kaupa had offered for Robin to purchase the land and at the same time pay for the improvements and crops planted by members of the Waula Clan.

12. Robin’s evidence shows that he did purchase the said land and pay for the improvements to the sum of K340.00 respectively. Robin paid in the following;

a. Kuipa Aure (Waula Clan) –K110.00 for crops

b. Yani Kagai (Waula Clan) – K90.00 for crops

c. Kaupa Kumul (Ogelekane) – K60.00 for land

d. Gungola (Anton’s elder brother) – K30.00 for land

e. Kaman Markus (Ogelekane) – K10.00 for land

f. Naure Kumul (Ogelekane) – K10.00 for land

g. Nibabe Petrus (Ogelekane) – K10. 00 for land

h. Waisime Koni (Ogelekane) – K 10.00 for land

i. Lapun Naure (Ogelekane) – K10.00 for land

13. Upon cross-examination Robin revealed Anton’s father and his relatives did ask him to pay off the crops from the Waula Clansmen as well as purchase the said portion of land from them.

14. Robin also revealed Anton’s father had asked him to look after him until his death. Robin honoured this and looked after Anton’s parents until their respective deaths, purchase their coffins and buried them. This piece of evidence was not rebutted by Anton Kaupa.

15. From the evidence there was no dispute over the said land after Robin acquired the land in about 1974, this dispute only arose in 2005, 31 years after the actual purchase.

16. From the evidence, there was no fraud or malice involved in the purchase it was a bona-fide purchase by Robin. The entire Ogelekane clansmen agreed to the sale, benefitted and shared the proceeds of the sale. Evidence does not indicate any objections or disagreements from clan members.

17. We therefore find that Robin More Yomil was a bona- fide purchaser of the said land. In our view the exchange of the land for money by Kaupa Kumul and his clansmen extinguished their customary right as to ownership of the said land. Similarly, Anton Kaupa’s right as to customary ownership was also affected and severed by the purchase.

18. In addition, Anton Kaupa’s right of ownership depended entirely on his father as by custom he can only inherit land and property through his father.

Declaration

1. We unanimously agreed and declare that the ownership of the said portion of land inside Kogesuna land is vested solely in Robin More Yomil.
2. That the boundary shall remain to be the common boundary.

Robin More Yomil for himself

Anton Kaupa for himself