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Viambu v Euga [2022] PGLLC 2; DC9034 (22 March 2022)

DC9035
PAPUA NEW GUINEA.

LAND DISPUTES SETTLEMENT ACT.
LLC NO: 20 /2009.

In the matter of a Customary Land Dispute over Ownership of the Ahageta Land in the Ijivitari District, Northern Province.

IN THE MATTER BETWEEN:
JIMMY SMITH BUGOPA of Bugoha Clan from Toputuru/Huvivi village
Complainant/Claimant.

AND:

1. GRAYSON KAWASA from the Ererepa Clan of Isuga village.
   
2. LESTER KOGOROPA from Sokepa Clan from Toputuru/Huvivi Village

Defendant/Claimants.

Popondetta: Michael W. Apie’e Chairman
Tony Aneki-Land Mediator
Gibson Tinga-Land Mediator

2021: September 27^th, 28^th, October 13^th, December 22^nd, 2022: January 06^th, February 04^th, 22^nd, March: 03^rd.

Land Disputes Settlement Act: Real Property- Land Ownership Dispute. Claim of Traditional Land Ownership.
Site Inspection of Disputed Land to determine the Land Description.
Evidence: Parties all gave individual evidences, Complainant called and relied on additional supporting witnesses, various Affidavits and written submission relied on.

Cases Cited:

References:
Land Disputes Settlement Act (LDSA)

Representation;
Mr. Jimmy Smith Bugopa appeared for himself with his spokes-person Ms. Florie Asimba.
Mr. Grayson Kawasa appeared for himself.
Mr. Lester Kogoropa appeared for himself.

JUDGMENT.

1. Decision of the Local Land Court in Respect of the Land Dispute between the Parties over the Ahageta Land at Huvivi in the Ijivitari District of the Northern Province.
   
2. Mediation over the concerned Land between the Parties failed to resolve in any Agreement between the Parties and so the matter was referred to the Local Land Court on the 20/07/2009.
   
3. Hearing in the Ahageta Land Dispute Commenced in 2016 before Local Land Court Magistrate Mr. Vincent Linge, but that hearing never concluded as Mr. Linge Left the Northern Province without returning a Ruling on the matter.
   
4. I took up the Provincial Magistrates position in February of 2021 and this matter came before me for mention and noting that Mr. Linge having left the employ of the Magistracy couldn’t possibly be recalled on circuit to complete and return a ruling in the matter so I had this matter mentioned on the 06/08/21 and I declare a mistrial in respect of Mr. Linge’s handling of the matter and set the matter down for mention and relisting for hearing.
   
5. The matter was listed for hearing to commence again on Monday the 27/09/21.
   
6. 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 Ahageta Land between the Parties.
   
7. The Disputed Land is located at ‘Toputuru village’ outside Popondetta Township and measures roughly 100 to 150 meters along the Kokoda to Oro-Bay Highway from the Huvivi Junction by 150 to 200 meters from the highway in a generally Westerly Direction and is covered in secondary growth where obvious gardening and farming activities had occurred in the past.
   
8. On the South side of this Land is Mr. Ezekiel Asimba’s Oil Palm Block and on the North and North West Side the various family hamlets of Toputuru /Huvivi village and also Settlers who purchased Lands from the Locals.
   

Complainants case.

9. The Complainant Jimmy Smith Bogupa first called one Thomson Teonda on the 27/09/21 in the short time allotted to this case and then on the next day being the 28/09/21 he himself as well as on Mr. Stanley Hero gave their Oral testimony in respect of the Complainants claim over the Ahageta Land.
10. The Complainant testified over his claim over the Land on the 28/09/21 and staunchly maintained his claim over the Ahageta Lands.
    
11. In addition, his two witnesses also gave supporting testimonies to his calm and the essence of their testimonies are as follows;
    

1. Witness Thomson Teonda:
   1. The disputed Land is Bugoha Clan land and not Ererepa Clan Land, and Ererepa Clan Land is far from this Land.
   2. However, it is conceded that Grayson Kawasa’s father whose own father was killed and eaten by enemies during Tribal fighting was given sanctuary and adopted by Bugoha Clan’s man in the old days and allocated the Wuha Lands on the other side of the Kokoda to Oro Bay highway. (Presumably, the Highway came later.)
   3. He further stated that when his own (Teonda’s) grandfather was about to die, he cautioned his children not to complain about Grayson’s Father Occupation of the Wuha Lands as it had been gifted to him and so was for all intents and purposes his.
   4. So up to current no one complains about Grayson’s occupancy and ownership of the Wuha Lands.
   5. Also, regarding the Claims by Lester Kogoropa, he said that the Claims by Lester Kogoropa was unjustifiable as the Ahageta Land is not Sewa or Sokepa Clan Land and Lester Kogoropa had no claim to the Ahageta Lands.
      
2. Witness Stanley Hero (Paramount Chief of Ward 9 Popondetta):
   1. He testified on how the Bugoha clan Settled at Huvivi/Toputuru and Ahageta began with Forefather Uhembo.
   2. Uhembo bore sons and their names were Tiriembo, Sumbiro, Samuni and Purari.
   3. Tiriembo bore Bugoha and Bugoha bore Jimmy Smith, and they are the Bugoha Clan.
   4. Seva clan gave the Wuha Land to Grayson Kawasa’s grandfather.
   5. Grayson’s forefather was adopted during Tribal Fighting and given the Wuha land and that is fact, and there is no need to talk about it.
   6. However, the Ahageta Land is owned by Bugoha clan and Lester Kogoropa has no claim over it.
   7. The Mark of Ownership by Bugoha Clan over this Land is the Stone heap in the land that was established by Bugoha forefathers.
   8. As Paramount Chief of Ward 9, I declare the Ahageta Land as Bugoha Lands owned by Jimmy Smith.
      

12. Apart from that the Local Land Court also notes the materials and affidavit(s) filed for the Complainant.
    

Defendants case.

13. The Defendants each took the witness Stand on the 22/12/21 and also called one Mr. Tony Baruna of Siriundi hamlet of Huvivi to testify also on their behalf as follows;
    
    1. Grayson Kawasa of Ererepa Clan, Isuga Tribe:
    1. I live on Land settled on by my Grandfather namely Wuha.
    2. Lester’s forefathers Sokepa Siriripa Owena adopted and Settled my father on the Wuha Lands.
    3. My family and I share land boundaries with Lester Kogoropa Family since the times of our Fathers.
    4. Jimmy Smith just came in recently on the Ahageta Lands and is disputing me and Lester.
       
    2. Lester Kogoropa, Sokepa Clan Toputuru/Huvivi village:
    1. On Ahageta lands, only Grayson Kawasa and I since our grandfather’s times shared boundary up to our time.
    2. Boundary Sago and Marita and Pandanus are at Seiha creek.
    3. The stone heap on the Ahageta Lands is natural formations and not placed there by anyone forefathers.
    4. Jimmy Smith sold this Ahageta Land to Florie Asimba and used up the money and so is insisting on claiming the Land but it is mine and Grayson Kawasa’s

Land.

5. In examination by Grayson Kawasa, he was asked, ‘What is the mark of our boundary? And Lester answered, ‘There is a Breadfruit/Karpiak tree which had dried and has fallen down.’
6. During site visit to Ahageta, the location where the old Bread Fruit tree used to stand was indicated some 20 to 25 meters from the edge of the disputed Land and Ezekiel Asimba’s Block. This more or less was intended to eliminate Jimmy Smith all together from any part of the Ahageta Lands.
   
100. Mr. Tony Baruna, Siriunda clan of Huvivi:
1. He began by saying ‘I want to tell what my forefather Siripa knew on this Lands.’
2. ‘My ancestor Owena was close friend with Grayson’s Ancestor and took him in and settled him on this Land.’
3. ‘They all lived and dealt on these lands which Grayson lives on.’
4. ‘I heard that from our forefather’s times, Grayson and Lester only shared Land boundaries.’
5. In Cross examination he was asked ‘if he knew the Land story for a fact or was he only repeating hearsay stories?’ to which he replied ‘They told me Lester only share Boundary with Grayson.’
6. He was further asked ‘If he knew of a Cattle farm establish around that area in the 1970s to 1980’s? and he replied ‘I heard, but I never saw it.’

14. The Court also noted the various documents relied on by the Defendants which by and large was spoken through in their oral testimonies.
    
15. Trial was thus Concluded with Defendants testimonies on the 22/12/21 and Submissions was scheduled for the 04/02/22.
    
16. On the 04/02/22 the Court Reconvened and the various Submission were noted, that is, Jimmy Smiths Submissions filed on 05/01/22 and Various submissions by Grayson Kawasa and Lester Kogoropa each filed on the 12/01/22.
    
17. The Parties were asked to make final Oral submissions or Rebuttal of each other Submission if any and they all opted to rest their case on the basis of what had being filed.
    
18. So the matter was adjourned for Possible Ruling on the 22/02/22, but due to intervening factors the decision therefore is returned today.
    

OBSERVATIONS:

19. 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. Complainants called well place members of the Community especially the Paramount Chief of Ward 06 Popondetta Mr. Stanley Hero and Mr. hero was firm and assertive in his Evidence that the Complainant was the Customary owner of the Disputed Lands.
    2. The Complainant and his witnesses out-rightly denied and denounce Lester Kogoropa’s Claims to the Ahageta Land.
    3. However, when it came to Grayson Kawasa, the Complainant and his witnesses admitted that Grayson Kawasa’s fore-bearer’s had being allocated lands within the proximity of the disputed Land particularly the area called Wuha.
    4. However, they all insisted that the Dispute Land in its entirety belonged by custom to the Complainant.
    5. The Complainant and his witnesses insisted that the Stone Heap located on the western most fringe of the Disputed land was gathered and left there by his fore- fathers indicating their ownership or mark of ownership over the Land.
    6. During site visit the LLC panel did observe such a gathering of Stones at the location claimed.
    7. The Defendants on the other hand in their evidence vouched for each other as the only persons who had a claim over this Land.
    8. Grayson Kawasa set his mark from somewhere inside Ezekiel Asimba’s Oil Palm Block crossing into the undeveloped Ahageta Portion some 20 to 25 meters to where it is claimed and old Breadfruit tree used to stand.
    9. Even though other Claimants or Witnesses did not mention it, customary ownership over the Lands on which Mr. Ezekiel Asimba’s Oil Palm Block Stands could have had a lot of bearing in the Current Dispute as it is adjacent to the Disputed Land and any overlapping land claims would be helpful in determining ownership over the Disputed Land.
    10. Grayson Kawasa is the only claimant in this case who pointed out an overlapping Customary claim into Mr. Ezekiel Asimba’s Block staring from a point some 20 to 25 meters into the Disputed Land where an old breadfruit tree supposedly used to stand.
    11. He said that the old Breadfruit tree was the boundary between himself and Lester Kogoropa, thereby more or less allotting the rest of the Disputed Ahageta Land to Lester Kogoropa.
    12. From the site visit, the LLC Panel could clearly see the difference in the Vegetation, trees and leafy plants and old palm covering the area claimed by Grayson Kawasa and the other areas.
    13. It seems, there had being some activities on the area’s claimed by Grayson Kawasa, whilst the other area’s remain as mostly grassland.
    14. During the hearing Lester Kogoropa had claimed that he had Sago, Marita-Pandanus and other markers on the Land.
    15. However, during site visit, the Sago and Pandanus claimed were not in the Disputed Land but outside it alongside the Seiha Creek.
    16. The Witness they called Mr. Tony Baruna was not helpful to the Defendants case as all his recitations were hearsay evidence of things he was most probably told recently to come and recite to the court. He was an unreliable witness.
    17. The Complainant called two well placed members of their Huvivi/Toputuru Community who not only vouched for the Complainants claims but also appropriately made concessions when it came to Grayson Kawasa’s history on the Land. These were reliable witnesses.
        
20. In trying to arrive at a decision this LLC Panel had to weigh the whole of the Evidence’s as proposed by the Parties, for instance the claims made by the Complainant as opposed to the Claims made by the Defendants, and the Weight and Reliability or Witnesses relied by the Complainant in Mr. Thomson Teonda and Mr. Stanley Hero as opposed to the Weight and Reliability or otherwise of Defense Witness Mr. Tony Baruna.
    
21. In the Conduct of its Proceedings, the Local Land Court by virtue of Section 35(1) (a) of the Land Dispute Settlement Act is not bound by the Strict Rules of Evidence, and so in that vein, the Local Land Court Panel Comprising Myself as Chairman and the Land Mediators Messrs. Gibson Tinga and Tony Aneki have resolved and agreed unanimously in the following findings and Ruling(s).
    
22. In the final Analysis; the Local Land Court finds on the whole of the Evidence before it as follows that;
    1. The Complainant and his Witnesses have presented a compellable case that the Ahageta Land is Bugoha Clan lands and therefore Jimmy Smiths Traditional Lands.
    2. Mr. Grayson Kawasa through certain concessions made by the Complainants witnesses but largely by his own evidence has convinced this Local Land Court Panel that he too has a traditional Claim to the parts of the Ahageta Land he was claiming, which interest potentially extends into the ‘block of land ‘outside the Disputed area now owned by Mr. Ezekiel Asimba.
    3. On the other hand, Lester Kogoropa, misled the Local Land Court Panel in claiming that he had hand marks like Sago and Marita –Pandanus plants on the disputed Land which is later found to be plantings that were outside the Disputed Land along Seiha Creek.
    4. His claim to the Ahageta Land was soundly trounced and denounced by the Complainant and his witnesses and even the Support given him by Grayson Kawasa is not enough in the opinion of this LLC panel to salvage Lester’s claims over the Ahageta Land. Mr. Tony Baruna was of no help to him, having being found to be an unreliable witness by this court.

Judgment.

23. 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 Relevant Parts of the Ahageta Land is made out and approved by the Local Land Court.
       
    2. The Defendant Grayson Kawasa’s claims over relevant Parts of the same Ahageta Land is made out and therefore approved by the Local Land Court.
       
    3. The Defendant Lester Kogoropa’s claims over relevant Parts of the same Ahageta Land is not made out and therefore rejected by the Local Land Court
       
24. Accordingly, the Court will order as follows that;
    

ORDERS.

1. The Relevant Portions of the Ahageta Lands identified and claimed by Grayson Kawasa as his Traditional Land Holdings is awarded to him from the Kokoda to Oro-Bay Highway and extending to its Western most fringes.
   
2. The Relevant Portions of the Ahageta Lands remaining, identified from the Kokoda to Oro-Bay highway extending along the Seiha Creek up to the land Purchases owned by Settlers and extending back to Grayson Kawasa’s Land award is hereby Awarded in all their entirety to Mr. Jimmy Smith Bugopa.
   
3. The Land Mediators Mr. Tony Aneki and Mr. Gibson Tinga are further ordered to visit the Land within the next Seven (7) days and to install Land marks by Planting Coconuts or Tan ‘get Plants between the Court Awards to Grayson Kawasa and Jimmy Smith Bugopa.
   
4. If aggrieved, The Parties are 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 Jimmy Smith for himself.
Defendant/Claimant Grayson Kawasa for himself.
Defendant/Claimant Lester Kogoropa for himself.

Dated 03^rd March 2022.