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Bongaki v Kimana [2021] PGLLC 5; DC7092 (16 December 2021)

DC7092

PAPUA NEW GUINEA.

[IN THE DISTRICT COURTS OF JUSTICE

SITTING IN ITS LAND COURTS JURISDICTION]

LAND DISPUTES SETTLEMENT ACT
LLC NO: 12 /2021.


In the matter of a Customary Land Dispute over Ownership of the Hegata-Sima /Ururu Land at the Edge of Popondetta Town in Ijivitari District, Northern Province.


IN THE MATTER BETWEEN:


BEN OSBOURNE BONGAKI
Complainant/Claimant.


AND:


DUNSTAN KIMANA
Defendant/Claimant.


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


2021: May 14th and 17th, June 01st and 2nd July 06th, October 19th December 16th.


Land Disputes Settlement Act: Real Property- Land Ownership Dispute. Claim of Traditional Land Transfer Agreement.
Site Inspection of Disputed Land to determine the Land Description.
Evidence: Un Authentic Recently Fabricated evidentiary matters offered, alternate version to be accepted.


Cases Cited:
Michael Kuman and Steven Dama v. Digicel (PNG) Ltd [2019] PGSC 72; SC1851
Wenge v. Naru [No: 2] [2013] PGNC 30; N5123 (26th March 2013)


References:
Land Disputes Settlement Act (LDSA)
Evidence Act 1975 Chapter 48.


Representation;
Mr. Ben Osbourne Bongaki for himself
Mr. Dunstan Kimana for himself.

JUDGMENT.


  1. Decision of the Local Land Court in Respect of the Land Dispute between the Parties over the concerned Portion of the Hegata Lands namely Hegata-Sima/Ururru Lands on the outskirts of Popondetta Township.
  2. We are satisfied that we have the jurisdiction under section 26 of the Land Dispute Settlement Act (LDSA) to hear and determine the issue of ownership over the concerned portion of Hegata Lands between the Parties.
  3. The Disputed Land is located at ‘Hegata village’ outside Popondetta Township and measures roughly 100 to 150 meters along the Popondetta to Oro-Bay Highway by 150 to 200 meters towards the Ururu Creek and is covered in secondary growth where obvious gardening and farming activities had occurred in the past.
  4. On the opposite side of this Land is the land named as ‘Hegata Sima’ on which the Defendants late father Mr. Duncan Akute in Pre-Independence days established a cattle project.
  5. This matter was referred to the Local Land Court after failure of Land Mediation(s) between the Parties on the 06/08/2016 and it ultimately came before the Local Land Court on the 23/03/21, with myself as Chairman and Messrs. Ezekiel Haera and Prout Sehopa as Land Mediators for the endorsement of a Form 10 Agreement pursuant to section 19 and 20 of the Land Dispute Settlement Act between the Parties but no Agreement could be reached on the matter so it was further adjourned for mention and possible hearing on the 14/05/21.

Complainants case.

  1. The Complainant Ben Osbourne Bongaki is the son of one Osbourne Bongaki (deceased) who in turn was the son of one Silas Embi, who in turn was the son of one Embi Bongaki who is claimed by the Complainant to have being, the Fourth Generation forefather who traditionally acquired or took over this Land from the Paratapa Clan of Hegata in Popondetta when he first came onto the scene before others from his General Vevehupa clan arrived.
  2. He claimed Embi Bongaki to be Ikari Araha, and according to Land Mediators Ezekiel Haera and Prout Sehopa, in the Local Orokaiva Dialect, Ikari Araha- means ‘Openly given’ Land or other gifts denoting the Recipients primary ownership of such gifts according to common knowledge and understanding.
  3. Apart from materials and affidavit(s) filed, the Complainant gave sworn evidence in his claim on Friday the 14/05/21 and stated as follows that;
    1. His Great Grandfather Embi Bongaki was the first to arrive on the scene at Hegata Sima/Ururu Lands and he acquired/Ikari Ahara the Disputed Land and other Land Portions wherein he installed Hand-marks such as planting an Okari Tree to the South Western corner and also planting Sago groves at the Ururu corner of the Disputed Land basically setting the boundary between his Vevehupa clan and the Paratapa Clan.
    2. According to the Complainant and his witness Barthy Samuel, they are the Kendata -Vevehupa Clan and the Defendant is from the Vevehupa- Sumita Clan, but the Defendant has a tendency to associate himself to other clans easily like Poraripa Clan and even Represented Paratapa Clan to the point of denying Vevehupa Clan sometimes.
    3. Relying on his Affidavit of 12/04/21, the Complainant further stated that when fight erupted between Sauga Tribe and the Isuga/Hegata Tribe during their Grandfathers times, the Defendants forefathers fled and went and lived at Soputa village.
    4. Silas Embi-Bongaki later went to Soputa and brought the Defendants Grandfather Peruka up to Hegata to rejoin the Vevehupa clan.
    5. Peruka is the Defendants forefather, and after settling back in Vevehupa Clan lands from Colonial times up, he had children and Duncan Akute was his son.
    6. When Duncan Akute, wanted to establish the Cattle Project at Hegata, he came and asked the Complainants Grand-Father Silas Embi Bongaki and Silas gave him permission to establish cattle on that land with a caveat /Condition that when Osbourne came back from Rabaul, he (Duncan) was to release the land back to him.
    7. Duncan did not seek permission from Paratapa Clan leaders to establish the cattle project despite the Defendant still insisting that the Disputed Land is Paratapa Clan Land.
    8. The area of the cattle Project is covered by a Title taken out in the name of Late Duncan Akute over which the Complainant has no issue, but the issue he has is when the Defendant ventured out of the Titled area to claim areas outside, especially The Disputed Lands towards the Ururu Creek.
    9. The Action was brought by the Complainant basically to force the Defendant out of the Disputed lands.

Cross Examination of Complainant by the Defendant.


  1. In cross examination the following exchange took place with the Defendant questioning and the Complainant answering;

Q: ‘Are you sure that you Vevehupa Kendata Clan are the major Vevehupa Clan?’


A: ‘Yes, I am original Vevehupa Kendata clan, my ancestor Embi is the Chief of Vevehupa carrying the title ‘IKARI ARAHA”


Q: ‘Why did you used ‘Vevehupa Jega’ as your Incorporated Land Group name in your Mini-Estate instead of Vevehupa Kendata?


A: ‘Another member of the clan had used the name already so we had to settle with Vevehupa Jega!’


Q: When the elders were distributing Lands, what land did Silas claim for his son Osbourne?


A: When they cut the cattle Project area, they did not cut the blocks. My grandfather was approached by your father to establish the cattle project so he gave your father his land. There was no clan meeting involved.


Q: What year did Duncan Akute ask your grandfather for the land?


A: It was between 1965 to 1970, witnesses will confirm.


  1. There were other exchanges between the Defendant and the Complainant but for the purposes of this judgement the above were noted.
  1. The Complainants next witness called the same day of Friday 14/05/21 was one Mr. Barthy Samuel and his evidence is as follows;
    1. I will only talk about the untitled Portion of Land at Hegata toward Ururu Creek. That land belongs to Embi Bongaki, and during Colonial times, Four Brothers planted coffee on that land and the brothers were Silas, Dickson, Adam and Samuel. Samuel being this witnesses father.
    2. I grew up on that land and I know this land as belonging to the Complainant To-Ben, as my father told me. (To-Ben is an Alias of the Complainant)
    3. We are all from one Clan but the Defendant (Dunstan) uses other Clan names, and because of this Land he is now using Poraripa clan name
  2. The Complainant next called Ms. Selina Bongaki as his witness on the same 14/05/21 and the brief of her Evidence is as follows;
    1. She was born in 1951 at Hegata and was raised there and her father Silas planted Coffee and Coconut and Sago on that land and some are still there.
    2. When asked about the cattle Project she said ‘His Father (Defendants Father) came and asked my father when I was with my father and my father said the Land is Osbourne’s land so when he comes back you can give it back to he and then he allowed Duncan to install his cattle project.’
  3. The Complainant next called Mr. Jerome Hotota on Monday the 17/05/21 and the essence of his Evidence is as follows;
    1. I am here to witness Ben Osbourne Bongaki.
    2. Ben Osbourne is the direct Descendant of Embi Bongaki whose popularity and reputation is known by all for Four Generations.
    3. All 12 Clans of Isuga Tribe should acknowledge that during the Warring times with the Sauga Tribe Embi Bongaki was our Leader and that status remains up till now.
    4. In this time, Ben Osbourne Bongaki is his descendant living now.
    5. He raised the issue of a previous Land Court case he had with Gilchrist Kandari, which the Local Land Court Awarded the land known as Haera to Late Gilchrist Kandari.
    6. He however later admitted that the land he was in court with Gilchrist Kandari over is a different Land.
    7. This miss-naming of the disputed Land as Haera Land Instead of Hegata raised controversy and brought in one Napoleon Sirota-Kandari presenting the Court Order his Father Gillchrist Kandari was awarded by the Local Land Court previously over the Haera Land.
    8. Having gone through the Haera Land Dispute File between this Witness Jerome Hotota and Gilchrist Kandari, the Court Was satisfied that Haera Land was different from the Land now in Dispute Between the Parties and so this matter was allowed to Proceed.
    9. In Cross Examination by the Defendant, he admits that ‘Embi Bongaki was the first to be settled at Hegata by Paratapa Chief Polari Isemba before others came in.’
    10. During Land Court Panel Question by Land Mediator Mr. Prout Sehopa, he was asked to identify and Evidence or Hand-Marks that Embi Bongaki might have on the Land that could support the Complainants claims and he said ‘There are Okari tree(s) there and everyone knows it!’
    11. He was further asked about the Defendants forefathers migration in from Soputa and he replied ‘Dunstan Kimana’s ancestors came from Soputa Particularly Mr. Peruka and also possibly Mr. Tingasi, but Embi Bongaki was the first to settle here.
  4. The essence of the Complainants Claim as established in his presentation, in a nut-shell, is as follows;
    1. His Ancestor Embi Bongaki was the First man from the Vevehupa Clan to arrive in and settle at Hegata village and occupy the Lands in dispute by Ikari Araha before the other Vevehupa Clans people arrived.
    2. Because of that history, When the Defendants Father Duncan Akute sought to establish a cattle project, he had to seek permission from Embi Bongaki’s son Silas Embi Bongaki to be allowed onto the Land known as Hegata Sima to establish his cattle Project.
    3. No other Lands was awarded to the said Duncan Akute.
    4. Therefore, the Defendants insistence of rights over the other adjacent Lands especially the Disputed lands was wrong and therefore this action brought by the Complainant.
  5. The Complainant ended his case on that note and the Defendant was asked to present his case.

Defendants case.

  1. The Defendant took the witness Stand on the 17/05/21 after Jerome Hotota and following is brief transcript of his Oral Testimony (in the first person).
    1. My name is Dunstan Taravo Kimana born on the 10/12/1960 at Hegata.
    2. There are many people with interests over this Disputed Land.
    3. I will however rely on my Statutory Declaration of 06/03/2014 (wherein he made declaration claiming the Sima and Ururu Lands being granted to his father by Vevehupa Clan Chiefs.)
    4. This Lands, Sima and Ururu were given to Vevehupa Clan by a Mr. Polari Isemba in1913 before even my Father Duncan Akute was Born.
    5. Whatever the reasoning was between Paratapa and Vevehupa is not known, but we only know it was given to Vevehupa.
    6. I want to clarify that the same agreement was then given to my father.
    7. Before the Title Decision was made, agreement was made at Hegata village on Wednesday 22/04/1970.
    8. The Complainants claims are his, but according to the Agreement, I have occupied this lands for 53 years.
    9. Agreement was given to my father Duncan Akute and the lands bordering Paratapa was given to him, Land Boundary from Bangoho River up to Ururu Creek.
    10. The Cattle Project should have crossed the Oro-bay road but a Mr. George Clap (District Commissioner) told my father to put cattle on only one side of the road.
    11. The Complainant has an interest over this land but he should talk to me and not others.
    12. When his father Osbourne came back to Popondetta from Rabaul, his father Silas Bongaki was still living, but he still had to ask my father Duncan for a piece of land to settle on.
    13. When the Vevehupa Chiefs distributed the Lands, Silas Bongaki claimed the Huhuta portion of Land for his son Osbourne and likewise my father Duncan Akute took the disputed Land.
    14. After Duncan Akute Passed away, the Complainant is now claiming ownership of this Land.
    15. As Mediator Mr. Ezekiel Haera who is on the Local Land Court Panel is aware, this Land is Commonly known as Sima-Hegata Land and it is Principally owned by Paratapa Clan.
    16. All Tenants living at Hegata were allocated Land by Mr. Alkin Bahera.
    17. As Vevehupa Chief, I strongly talk and fight on behalf of Paratapa Clan because Paratapa Chief Isemba gave Land to Vevehupa.
    18. According to the Agreement made on the 22/04/1970 four (4) grandfathers agreed and awarded Land to my father.
    19. The Complainant should come and talk to me about whatever interest he has in the land.

  1. The Defendants case is simply this that;
    1. His father was allowed to establish cattle on the Hegata Sima Lands by all Vevehupa Clan elders and chief’s and not by Silas Embi Alone.
    2. He further relies one certain documents including a document titled ‘Declaration of Customary Land Ownership’ to include the Disputed Land as part of the Lands awarded to his father in 1970.
    3. On that basis he claims primacy over the Disputed Lands and further states that only he can grant permission to the Complainant onto the Dispute Land or a part of it.
  2. After Dunstan Kimana’s Evidence, a potential window of opportunity for out of court settlement between the parties was noted and the parties given time to try and resolve this matter and the matter adjourned to the 28/05/21 for them to explore potential settlement and mediators directed to try and mediate any possible settlement.
  3. However, on the 28/05/21 when the matter returned, no Settlement was reached and the matter was therefore adjourned to 01/06/21 for Site Visit and also Stock-Take of Evidentiary matters and possible Final Submissions.
  4. On the 01/06/21 however, site inspection was reset for the next day 02/06/21 with submissions to follow.
  5. Site inspection is done on the 02/06/21 and the following is noted;
    1. The Complainant and even his father also live on the titled Land called Hegata Sima on which the Defendants father once installed a cattle project.
    2. The Land Subjected to this Dispute is the vacant tract of land measuring roughly 100 to 150 meters from end to end along the Popondetta to Oro-Bay highway and running westerly towards Ururu creek some 150 to 200meters.
    3. The Land is largely covered in secondary growth of grass and shrubbery with a few trees, suggestive of previous Agricultural or Farming activities.
  6. After the Site inspection, it was brought to the attention of the Court by Land Mediators that other clans namely The Besupa and Ererepa clans of Hegata and others have request mediation over Lands that might overlap this current Land Dispute and so the matter is further adjourned to 06/07/21.
  7. On the 06/07/21, due to ongoing Land mediations potentially overlapping the Disputed Land Final Submissions matter is further Adjourned to 19/10/21.
  8. On the 19/10/21, the matter reconvened in Court after the Hegata-Ururu Water Bore Land Mediations were completed and Referral Made to the Local Land Court of that Dispute.
  9. The mediators and the Parties to this case Agreed that the Hegata-Ururu Water-Bore Project Referral had no connection to the Hegata Sima-Ururu Land Dispute between the parties and so Submissions were called for and received from the Parties.
  10. Before the Submissions were called for the Parties declared the documents they had filed that they would rely on as follows;
    1. Complainant: Affidavit dated 12/04/21.
    2. Defendant: Relies on the documents in a binder containing documents that he relies on.

OBSERVATIONS:

  1. Having therefore heard, received, read and gone through the Parties Submissions and Various relevant documents the Local Land Court makes the following observations regarding this case;
    1. Complainant and the Defendant are both members of the Vevehupa Clan of Hegata Village in Popondeta Northern Province.
    2. Other Land portions lying adjacent to the Disputed Land are the Haera Land which was awarded by the Local Land Court to Gilchrist Kandari of Angoropa Clan and such Lands is outside the current Dispute.
    3. The Hegata Ururu Water Bore Land Dispute, also relates to Lands situated outside this Dispute and are therefore not covered nor affected by this Dispute.
    4. Other lands to the South and West are Paratapa and other Clans Land holdings.
    5. To the East opposite the Popondetta to Oro-Bay Highway is The 20.5 hectare Hegata Sima Cattle Project Lands subjected previously to a Land Title under the name of Duncan Akute, and it is outside this Dispute according to the Complainant.
    6. However, the Defendant insists that the Disputed Land is also part of the same Hegata Sima to Ururu Land given to his father by Vevehupa Forefathers and so is part and partial of the Disputed Land.
    7. Defendant Dunstan Taravo Kimana relies on certain documents to claim that the Disputed Lands were given to his father as part of the same package from Bangoho River right up past the Popondetta to Oro-Bay highway up to the Uhuru Creek.
    8. This Claim is based on certain documents he is relying on namely as follows;
      1. His Statutory Declaration of 06/03/2014 wherein he declares that the Lands Sima and Ururu were given or declared to his father Duncan Akute by the clan chiefs of Vevehupa.
      2. He further declared that the Land is divided by the Popondetta to Oro-Bay Highway, the right side used for Cattle Farming and the left side for cash crops such as coffee and cocoa.
      1. He then sought reliance in that Statutory Declaration on the following documents;
        1. Certificate of title to Land
        2. An Agreement signed supposedly by Vevehupa Clan Elders.
        3. Rough Sketch map.
      1. I will speak on these documents later
    9. The Defendant did not explain neither did he call supporting Witnesses to explain The Reasons or rational behind why Vevehupa Chiefs would let/award all these Lands from Bangoho river to Ururu Creek to his father.
    10. The Question remains; What did he Duncan Akute do or offer to the Chiefs to warrant such a big award of Clan Land?
    11. The contention that all these lands from Bangoho River to Ururu Creek was given by agreement of the Chiefs to Duncan Akute is a monumental assertion and it required explanations to justify the claim. The Defendant has not done that.
    12. This Observation is made because of the following reasons;
      1. In a typical Melanesian Society, it is unusual for one individual to be awarded such a large Tract of Land for no apparent reason, so what did Duncan Akute do to be awarded all these lands as claimed by the Defendant?
      2. If the Land was indeed given to Duncan Akute, why didn’t he title the whole of it from Bangoho river right up to Ururu Creek?
      1. The Defendants claim that, District Commissioner George Clap told his father to keep his cattle project on the other side of the Road only, doesn’t answer this question, as that direction if indeed it was given by Commissioner Clap, did not and should not have prevent the surveying and titling of the rest of the Land from the Popondetta to Oro-Bay highway up to Ururu Creek along with the Cattle Project Land if indeed the land was given to Duncan Akute.
      1. Going back to the Documents relied on by the Defendant I will note as follows;
        1. The Defendants Statutory Declaration of 06/03/2014 is Declared by the Defendant himself on matters he is relying on. So there is no Probative and independent support there of his contentions.
        2. Secondly, The Certificate of title speaks for itself and on face value, Duncan Akute holds title over an Estate in fee simple over 20.5 hectares of Land known as Sima. This Land is the Cattle Project Lands and that does not cover the Disputed land.
        3. Even the Complainant accepts this saying that the titled land is not in issue.
        4. Thirdly, the Defendant relies on the document titled a Declaration of Customary Land Ownership supposedly signed by Chiefs Mr. Silas Embi, Mr. Dickson Gandari, Mr. Adam Suma and Mr. Samuel Javokopa on the 22/04/1970 at 10.00am, awarding the whole Land from Bangoho River up to Ururu Creek to Duncan Akute.
        5. This Documents Authenticity was questioned by the Complainant for instance, the ‘X’s’ marked next to the various Chiefs names is too similar therefore suggestive of the same person marking the ‘X’s’ and also Duncan Akute’s name being signed at the bottom is dubious when according to the Complainant, Duncan Akute was illiterate and could not write let alone possibly signed his name in that manner.
        6. When the Authenticity of the Documents relied on was question in Court, the Defendant carried the burden to prove the Authenticity of such documents by providing evidence to vouch for the Document relied on.
        7. On the question of Authenticity of Documents relied on in Court, Section 35 of the Land Dispute Settlement Act establishes the Practice and Procedures to follow in the Local Land Court and the strict Rules of Evidence do not apply in Proceedings in the Local Land Court.
        8. Pursuant Section 35(1) (a) and (c) ‘the Local Land Court is to inform itself on any question before it in such manner as it thinks proper’
        9. With that in mind we refer to the Supreme Court case of Michael Kuman and Steven Dama v. Digicel (PNG) Ltd [2019] PGSC 72 SC 1851 (6th September 2019). In that case the Supreme Court upheld a Trial Judges adjudication and decision NOT to accept a Form 10 Mediated Agreement as Authentic on the basis of the Learned Judges ruling that the offered Document titled Mediated Agreement was not Authentic and not proven to be so by those seeking to rely on it.
        10. In the Current case, apart from the Defendant seeking to Rely on this Declaration of Customary Land Ownership no one else can vouch for it or speak of its authenticity.
        11. This Court also notes that the Type Set and the Font Variations and Formats used in creating this Document is suggestive of a micro-soft windows Typing capability.
        12. This court Takes Judicial Notice that such typing capability was not available in 1970 as the earliest Versions of Micro-Soft Windows became available primarily in the United States some 13 years later on the 10th of November 1983 and available to the rest of the world much later (According to our web search on google).
        13. In 1970, they were still using manual Type Writer’s in Papua and New Guinea.
        14. Further to that, where this Declaration of Customary Land Ownership came from and what it was used for is not elaborated via Witnesses testimony from either Lands Department or Oro Provincial Lands Office.
        15. Besides, if a Traditional Land Transfer was made by Vevehupa Chiefs to Mr. Duncan Akute, the Oro Provincial Lands office or its pre-independence equivalent ought to be aware of this.
        16. This document Declaration of Customary Land Ownership has not been properly authenticated by the one relying on it and so is in the Adjudication of this court more likely a recent Fabrication created after 1970 using Microsoft Windows Applications after such applications became available widely in Papua New Guinea.
        17. In the National Court case of Wenge v. Naru N5123 on 26/03/2013, Kirriwom J (Late) in his ruling in that Election Petition commenting on Un-Authentic Recently Fabricated Evidentiary Materials held that ‘Where Recent Fabrications are offered as evidence, the Court has to accept the other version of Facts Proposed’
        18. In this case, the Court Having Rejected the Document titled Declaration of Customary Land Ownership proposed by the Defendant as an Un-Authentic Recent Fabrication, that means it must accept the Version offered by the Complainant that ‘Silas Embi unilaterally gave permission to Duncan Akute to establish his cattle project on the Hegata Sima Lands only, but did not permit him on the other portions of Lands, especially the Disputed Lands.
        19. Lastly, the Rough Sketch map relied on by the Defendant. This Document adds no Probative value to the Defense case as the Certificate of Title excludes the Disputed Land and the Declaration of Customary Land Ownership relied on by the Defendant is not accepted by this Court as authentic.
      2. The Complainant and his witnesses namely Ms. Selina Silas Bongaki insist that Mr. Duncan Akute came to Silas Embi Bongaki as he was chief of Vevehupa and Land owner and sought permission from him to use part of the Land to put cattle and permission was given him, hence the 20.5 Hectares title Land called Sima.
      3. The Fact that the Declaration of Customary Land Ownership lists Mr. Silas Embi as Chief of Vevehupa is also an unintentional but glaring confirmation of Silas Embi’s position in the Vevehupa community in respect of Land matters.
      4. Evidence reveals that the Disputed Land was utilized by Silas Embi and his family for Agricultural purposes like coffee and cocoa project and this point is supported by Witnesses Barthy Samuel and Selina Bongaki and even unwittingly by the Defendant himself when he admitted that this land was used for Coffee and Cocoa planting.
      5. This all leads back to the first question asked, ‘What did Duncan Akute offer to Vevehupa for them to award him all the lands from Bangoho River up to Ururu Creek? No one can say, not even the Defendant even when he is claiming all these!
      6. Another thing this court picked up from the submissions by the Parties is this, that;
        1. the Complainant stands firm on the fact that the Disputed Lands is Vevehupa Lands as already awarded/bequeathed/traditionally transferred IKARI ARAHA to Vevehupa Clan to his forefather Embi Bongaki by Paratapa Clan.
        2. The Defendant on the other hand even though claiming that his Father was allotted all the Land from Bangoho River right up to Ururu Creek by Vevehupa Chiefs, at certain times he opposed the Complainant by still saying the Disputed Land is all Paratapa Clan Lands.
        3. In trying to understand this inconsistency of claims from the Defendant, this court settled on the only logical explanation for this Inconsistent position from the Defendant in that when it came to his and his father’s claims to the disputed Lands, it was okay to concede the Lands as Vevehupa Lands, but when it came to the Complainants claims over the same lands, it is now Paratapa Clan Lands according to the Defendant.
        4. The court finds that this Inconsistency by the Defendant is calculated to minimize the Complainant claims and his Fore-Fathers prominent roles and position in respect of these Lands so as to neutralize the Complainant claim of right over the disputed Lands.
      7. Finally, but more importantly, having rejected the Defendants claims of Land Award from Bangoho river up to Ururu Creek on the basis of the dubious and obviously recently fabricated document called Declaration of Customary Land Ownership, and in spite of that document, the Disputed Land Remains Customary Land and so rightly, this Local Land Court retains the right under Section 26 of the Land Disputes Settlement Act to Adjudicate on this Dispute fully, and so we intend to do just that.
  2. In the final Analysis; the Local Land Court finds on the whole of the Evidence before it as follows that;
    1. The Complainant has convinced this Local Land Court Panel that his Great Grand Father Embi Bongaki was most probably the First person from Vevehupa Clan to settle on the Hegata Lands including the Bangoho River to Ururu Creek Land.
    2. On that note, Embi Bongaki would naturally have primacy over their clan lands, being the first on the scene, and following on from him, his issue like Silas Embi, Osbourne Bongaki and now Ben Osbourne Bongaki.
    3. The Local Land Court further finds that the Defendants Father Duncan Akute was allotted the Lands on which he installed the Cattle Project by Silas Embi and none other, given that this court has reject the proposed Agreement allegedly made on the 22/04/1970 at 10.00am as a non-authentic recent Fabrication.
    4. The Court further finds that since the Defendants claims over the Disputed lands from the main road to the Ururu Creek is not established, the Complainants claims and version of facts ascends to prominence and is accepted by the Local Land Court.

Judgment.

  1. 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 Complainants Claims over the Hegata /Ururu Lands is made out and approved by the Local Land Court.
    2. The Defendants claims over the same Hegata/Ururu Land is not made out and therefore rejected by the Local Land Court


  1. Accordingly, the Court will order as follows that;

ORDERS.


  1. The Relevant Portions of the Hegata Ururu Lands identified from the Popondetta to Oro-Bay highway extending for approximately 150 meters long the highway and reaching in approximately 150 to 200 meters to the Ururu creek subjected to this Land Dispute is hereby awarded in its entirety to the Complainant Ben Osbourne Bongaki and his family and issue after him as their Traditional Land Holdings.
  2. If aggrieved, The Defendants Dunstan Taravo Kimana is allowed 90 days from today within which to appeal this decision to the Provincial Land Court pursuant to Section 54(1) of the Land Dispute Settlement Act.

Complainant /Claimant Ben Osbourne Bongaki for himself.


Defendant/Claimant Dunstan Kimana for himself.


Dated 16th of December 2021

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