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Bugopa v Kawasa [2022] PGLLC 3; DC9035 (3 March 2022)

DC9034
PAPUA NEW GUINEA.

LAND DISPUTES SETTLEMENT ACT.
LLC NO: 02 /2021.


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


IN THE MATTER BETWEEN:


REX VIAMBU
Complainant/Claimant.


AND:


SYLVANUS EUGA
Defendant/Claimant.


Popondetta: Michael W. Apie’e Chairman
Jairus Sumbiri-Land Mediator
Thimeas Sorari Ahopa-Land Mediator


2021: May 14th and 17th, June 01st and 2nd July 06th, October 19th 2022 March 22nd.


Land Disputes Settlement Act: Real Property- Land Ownership Dispute. Claim of Traditional Land Ownership.


Site Inspection of Disputed Land to determine the Land Description and Ownership.
Evidence: Inconclusive evidence of ‘Hand-and Land Marks’ offered by both sides –Evidence of Residential activities including ‘grave’ of deceased mother by defendant.


Held: (1). Complaint is upheld, and the whole of the Land declared o be Okaipa clan Land.
(2). The Whole of undeveloped areas of the Irihambo Lands are awarded to the Okaipa
Clan.
(3). The Defendant is awarded ‘Usage Rights’ to the Areas of the Land on which he and his

father had installed their houses and gardens and improvements like sago groves, coconut and Beetle-nut Trees and other Activities.

(4). The Proceeds from the Telecommunication Tower that stands on the Irihambo land is to

be shared between the Complainant and the on a 50% to 50% basis between the Defendant and the Complainant with Okaipa clan of Hohorita


Cases Cited:

Hides Gas Project Land, Re. [1993] PGLTC 1; [1993] PNGLR 309 (25 July 1991)
Dickson v Orere and Modigai [1976] PGSC 4; [1976] PNGLR 120 (Re: Goilanai No 2)


References:


RD Cooter, Issues in Customary Land Law (Port Moresby: INA, Discussion Paper No 39, 1989).


Land Disputes Settlement Act (LDSA)


Representation;
Mr. Rex Viambu from Besupa Clan for himself and also for the Okaipa Clan of Hohorita.
Mr. Sylvanus Euga of Ino-Hika Clan for himself.


JUDGMENT.


  1. This is a Decision of the Local Land Court in Respect of the Land Dispute between the Parties over the Irihambo Land at Hohorita village in the Higaturu LLG, Sohe in the Northern Province.
  2. The Disputed Land measures roughly 450 to 600 meters long towards Hohorita village by about 100 to 200 meters wide Due Westerly and tapering back to about 20 to 30 meters on the Higaturu Oil Palm fields side.
  3. This Land covers both rain forests on certain parts and secondary shrubbery indicative of prior farming or human activities on certain parts.
  4. The Complainant Mr. Rex Viambu is a member of the Besupa Clan of Hohorita and he initiated this claim on the basis of his mother Late Ms. Isabella Jamoto’s claim to the Irihambo Land, as a Land-owing Okaipa Clans-woman. He therefore Claims for himself and also the Okaipa Clan.
  5. According to the general Claim by the Complainant, his mother had been dealing with this land previously as Land owner by being involved in Cattle ranching and other activities and also that it was his mother that permitted the Defendants Father, Steward Euga, onto the Land when he asked her for space to rear his pig’s.
  6. The Defendant Mr. Sylvanus Euga is from the Ino-Hika Clan of Hohorita, and he on the other hand claims the Irihambo Land as Ino-Hika Clan Traditional Lands.
  7. This matter was referred to the Local Land Court after failure of Land Mediation(s) between the Parties on the 05/02/2021 and it ultimately came before the Local Land Court on the 23/02/21, with myself as Chairman and Mr. Thimeas Sorari Ahopa and Mr. Jairus Sumbiri as Land Mediators.
  8. The matter was promptly set for hearing of the Land Dispute by the 16/03/21, and I say promptly because there was no time really allowed for filing of paper work and affidavits as the Parties requested prompt hearing into the Dispute.
  9. At that point in time, this Local Land Court Panel was satisfied that we had the jurisdiction under section 26 of the Land Dispute Settlement Act (LDSA) to hear and determine the issue of ownership over the Irihambo Land between the Parties and so we began the Listing process.
  10. After having the matter listed for trial, however, actual hearing could not commence on the set dates due to one party or another not turning up, or either Land Mediators not turning up, until the 12/10/21 when all concerned persons attended and hearing commenced at 11am.

Complainants case.


  1. The Complainant called the following witnesses all from the Hohorita village,
    1. Mr. Paul Pineas from the Ino-Hika Clan of Hohorita Village same as the Defendant, is a Clan ‘Lawyer/Spokesman’ and he spoke on the Disputed Land being Okaipa Clan Land and not Ino-Hika clan Lands.
    2. He denounced the Defendant’s claims over the Irihambo Land and stated that the Irihambo Land was Okaipa Clan lands and the Defendant had no rights over it.
    3. Mr. Hennington Akepo the Chief of Ino-Hika Clan of Hohorita Village was called next and he too denounce the Defendants claims over the Irihambo Lands and specifically stated that he was aware that the Irihambo Land belongs to Okaipa Clan, especially the Complainants mother Isabella Jamoto and her family.
    4. Next the Complainant called Mr. Reginald Aura from Hatopa Clan also of Hohorita village who is a Clan father or Uncle to the Defendant and he said that his Father Aura’s father was a man called Hilta, and Hilta married an Okaipa woman named Goemba and bore his father.
    5. He stated unequivocally that the Irihambo Land is Okaipa Clan Land and not the Defendants nor is it Ino-Hika Clan Land.
    6. He further said that The Defendants Ancestor was adopted by his Hatopa Clan and Sylvanus Euga cannot claim Irihambo Land as it is not even Hatopa Clan Land which he might have a claim to by virtue of his Ancestors Adoption by Hatopa Clan.
    7. Mr. Samson Aura was the Fourth witness called and he is also from the Ino-Hika Clan of Hohorita Village and is an elder Clan brother to the Defendant.
    8. He claimed that he was at his house in the mid to late 1980’s when the Defendants Father Steward Euga came to his house, and when he asked Steward why he came, he responded that he came to see Ms. Isabella Jamoto (Complainants mother)
    9. So they both went and saw Isabella Jamoto and Steward Asked Samson Aura to speak on his behalf and ask Isabella for land to look after his pigs and Isabella agreed to give land to Steward to look after pigs.
    10. Steward promised to give Isabella some money as compensation or Land payments later but did not and Isabella died without getting these promised payments from Steward, the Defendants father.
    11. Therefore, Since Steward had never given any money for the Land to late Isabella Jamoto, the Land remains with Isabella’s Okaipa clan and her children and the Defendant Sylvanus Euga has no claim over it.

Defendants case.

  1. The Defendant commenced his case on the 29/10/21 and called his first and only witness one Mr. Robert Kavo, and elderly person from the Ino-Hika clan of Hohorita who testified as follows that;
    1. He said that he was born in 1933 therefore in 2021 he claimed that he was aged 89 years old.
    2. He said that before or after World War Two in 1942-1945, all prisoners at Buna cut and made clearance for the Road up to Irihambo.
    3. At the time, Rex Viambu’s (Maternal) grandfather from Okaipa named Jamoto was making gardens on that Land, Irihambo.
    4. The prisoners cut the Road clearance through and all members of the Hohorita community stood at their various land claim areas.
    5. Rex Viambu maternal Grandfather got a small 15 x 15 meters plot of Land and planted taro and other food staffs.
    6. After the harvest of these food crops on the Irihambo Land, there were no more activities on the Land and it became overgrown.
    7. Some 10 years later, Mt. Lamington (locally known as Sumburipa) erupted and destroyed everything.
    8. That time they all ran down to the coast and on to Oro-Bay.
    9. After some months, they were returned back to Biru and then on to Ohe-Ata by Late Anglican Bishop David Hand. Then Late Bishop Hand moved them to Irihambo Land on the 02/08/51.
    10. Robert Kavo claimed to have cut an area on the left side whilst Sylvanus Euga’s father Steward cut on the Right side. Robert Kavo cut land further in and Sylvanus’ father cut closer to the Hohorita Road.
    11. The whole of Irihambo was made into a big garden by everyone.
    12. At the time Sylvanuss Euga’s father and grandfather cut on their side and Robert Kavo cut on his side.
    13. At the time Sylvanus father settled and installed his dwelling house where the Telecommunication tower now Stands.
    14. He continued to live for three years there until after 1953 when Colonial Department of Health recruited him as an Aid Post Orderly (APO) and he was sent to the Afore Area at Umbiwara Aid Post where he worked for 11 years.
    15. Later he transferred to Jipoware for another 8 years then left his APO work and came back to the village and resided at the main Hohorita village between the Complainants father and Robert Kavo himself.
    16. He Later got an oil Palm block at Igora and moved there in the 1980’s and he was also into the rearing of pig’s so he went back to his In-Law Isabella (Complainants mother) and asked some land to be given him possibly his father’s 15 x 15 meters block and Isabella agreed to his request and so he put his pig pen there and remained there.
    17. Later when Isabella’s son Lincoln got married, for assistance, Sylvanus and his father provided Taro and Banana and a Bag of Ox-and Palm Canned meats in support of the Bride Price payment.
    18. One pig also was taken up to Hohorita and given to Isabella, Robert Kavo claimed that he himself was the supervising Village Court magistrate over this Bride Price ceremony.
    19. Robert Kavo claims that when giving these gifts during the Bride Price ceremony Sylvanus’s Father said to Isabella, ‘Tambu, this little land I am now paying for it!’
    20. Isabella got the taro and banana and bag of canned meat and gave to Lincolns in-laws.
    21. The Land on which the Tower now Stands, has accordingly being paid off from Isabella as far as Robert Kavo was Concerned.
    22. According to this witness therefore, the Defendant had been on the Land for 71 years and it is going to be difficult to remove him.
    23. However apart from the 2 to 3 years stay from 1951 to 1953 due to Volcanic Eruption and Displacement and from the mid to late 1980’s to 2021, the Defendant and his family cannot be said to have lived on the Disputed Land for 71 years, as claimed by this witness. The most would be closer to 40 year’s occupancy on the land and no more after being permitted in by the Complainants mother.
    24. It is also conveyed to this Court by the Complainant that during this 40 or so years occupation by the Defendant and his family of the Irihambo Lands the Defendants occupation was constantly being disputed and this Land Dispute is the culmination of this long drawn out contest between the Parties.
  2. During his testimony, it became apparent that Witness Robert Kavo was talking about a very specific area of the Irihambo Land and that was specifically about the Area on which the Telecommunication Tower now stands.
  3. According to Robert Kavo, Sylvanus Father asked for and obtained the 15 x 15 meter’s square area on which the Telecommunication tower stands in order to install an excess road to his lands at the back or alternately to look after pigs.
  4. Apart from Robert Kavo, the Defendant called no other witnesses nor did he himself give any Oral testimony in respect of his defense to the complainants claim and on the 10/11/21, the Defendant closed his case.

LAND INSPECTION Wednesday 08/12/21.

  1. During the Land /Site Inspection carried out by the LLC at Irihambo on Wednesday the 08/12/21, the LLC Party is led primarily by the Defendant as follows;
    1. Inspection started from the adjacent Landed Property toward the main Hohorita village and crossed from the main road down to a little creek some 100 to 150 meters from the main Kokoda highway.
    2. We then followed the creek right down to the forested part of the Irihambo approximately 200 to 300 meter running adjacent to the main Kokoda Highway back toward Higaturu Oil Palm Estate fields.
    3. After leaving the creek, the LLC Party ascended the small rise in the Land into the forested area of the Irihambo Lands and walked through that all the way back to the Defendants family homestead.
    4. Along the way, the Defendants late mother’s gravesite was shown to the LLC Party.
    5. Along the way the Defendant also pointed to Sago groves and other economic and ornamental trees as his and his family’s installments on the Land.
    6. The Defendant and his family have obviously been living on the Irihambo Land since his father got permission from the Complainants Mother in possibly the mid to late 1980’s to look after his pigs on a specific part of this land.
    7. The Complainant did not point out any land marks.
    8. Having received and heard all Submissions in respect of the IRIHAMBO Land dispute between the Parties on the 22/11/21 the Court now returns to make its observations and ruling in respect of the Land Dispute between the Parties.

OBSERVATIONS:

  1. Having therefore heard, received, read and gone through the Parties Submissions and the relevant documents, the Local Land Court observes as follows;
    1. First of all, the Complainant called over five witnesses including himself and 3 of these witnesses were the Clansmen of the Defendant from Ino-Hika Clan of Hohorita and they each corroborate each other in denouncing the Defendants claim to the disputed Land.
    2. The Defendant relied on only one Witnesses and did not even give evidence himself in respect of his claim to the Disputed Land.
    3. Complainant is from the Besupa Clan of Hohorita but his mother, Late Isabella Jamoto, was from the Okaipa Clan of Hohorita, which Clan supposedly owns the Irihambo Lands, thereby the Complainant Claims on that Basis.
    4. The Defendant is from the Ino-Hika Clan of Hohorita.
    5. The Complainant brought this action to claim against the Defendant ahead of Okaipa clan members who have remained silent in this dispute because of the admitted fact that it was the Complainants mother Isabella Jamoto who allowed the Defendants Father Steward Euga onto the Land and also because of the history that his mother and others installed a cattle project on the Irihambo Land in the 1970’s or so.
    6. It is obvious, any and all recent activities going back to about 30 or 40 years on the Irihambo Land is from the Defendant including the lead up negotiations and invitation for the Instalment of the Telecommunication tower on the land.
    7. This is because since the mid to late 1980’s, upon permission being granted to them by Isabella Jamoto, the Defendants family have more or less being exclusively using not only the Portion allowed them for the Pig Pen, as reported by Robert Kavo of 15 x15 meters where the tower now stands, but more or less the whole of Irihambo Lands for all these years.
    8. Therefore, the Complainant and his mother’s Okaipa Clan have no recent activities nor Land Marks on the Irihambo Land.
    9. The Defendants Land Marks however is restricted to Sago and Fruit or nut bearing trees and residential houses.
    10. The Telecommunication Tower situated on the Land was installed by a telecommunication company at the initiative and invitation largely of the Defendant.
    11. The Complainant called Four Witnesses to give evidence for him and three of them namely Mr. Paul Pineas Ino-Hika Clan, Mr. Hennington Akepo the Chief of Ino-Hika Clan and Mr. Samson Aura the Fourth witness called is also from the Ino-Hika Clan and is an elder Clan brother to the Defendant.
    12. These witnesses were all very assertive in their Evidence that the ‘Irihambo land is not Ino-Hika Lands but rather Okaipa Lands and they even told the Defendant that they give their evidences mindful of any damage it might do to their clan relationship’s as they rather tell the truth then tell lies.’
    13. Even the Fourth witness Mr. Reginald Aura from Hatopa Clan denounced the Defendants claims unequivocally saying not only was Irihambo not Ino-Hika Clan Land, but it was also not Hatopa Clan Land which had adopted the Defendants forefather. He also insisted that the Defendant was falsely making claims over Okaipa Clan Lands.
    14. In light of these Complainants witnesses evidence, the Defendants Sole Witness Robert Kavo’s evidence is very helpful to the Court in getting to the truth of the matter as follows;
      1. Robert Kavo, as old as he is at 89 years in 2021, admits Isabella’s father Jamoto was on the Irihambo Land previously and made gardens before and after the Second World War.
      2. He further admitted that Defendant’s father and grandfather from 1951 or thereabout did work only on a 15 x 15 meter’s portion of the Irihambo Land to plant a garden and not the whole of Irihambo Land as part of a resettlement Program or Care Center installed by the Anglican Bishop Late David Hand when settlers were allowed to garden on the Land after the Mt. Lamington Volcanic Eruptions in 1951.
      1. He stated that the 15 x 15meters portion they worked on is the same portion on which the Telecommunication Tower now Stands on.
      1. When commenting on the permission sought by the Defendants father from Isabella to look after Pigs, he said that ‘the Defendants father asked to regain this 15 x 15 meters plot of land to either look after pigs or to cut access route to his land at the back, and Isabella allowed him, thereby further confirming Isabella’s ownership rights over this Land.
      2. Robert Kavo confirms that the Defendant does not have Traditional/customary ownership rights or claim to the whole of Irihambo Lands and that he was more-or-Less given a permissive usage right to only a 15 x 15 meters Plot of Land and not the whole of Irihambo Land.
      3. This Contention is further strengthened by Robert Kavo’s evidence that when Isabella’s son Lincoln got married, the Defendant and his father gave taro and Banana and a ‘bilum’ bag of canned Ox and Palm Corned Beef in support of the Bride Price and also a pig was taken up to Hohorita and given to Isabella.
      4. He said that when these gifts were given, the Defendants father said to Isabella, ‘Tambu, liklik giraun ia me peim nau!’ or in English, ‘In-Law or Sister in Law, this Little plot of Land (15 x15 meters) I am paying for it now!’
      5. The Complainant has not countered this contention of contribution to Bride Price for Lincoln, so if anything it seems to be factual.
      6. However, fellow Ino-Hika Clans-men of the Defendant namely Mr. Paul Pineas, Mr. Hennington Akepo and Mr. Samson Aura in a word do not concede that Irihambo Land had been paid for or proper compensation given to Isabella Jamoto before she passed and therefore according to all of them, The Irihambo Land remains as Okaipa Clan land.
      7. Whatever permission or allowance given by Isabella to the Defendants Father for the 15 x15 meters Plot according to Robert Kavo has being extended by default to cover the whole of Irihambo Lands by the Defendant.
      8. If anything, it is the adjudication of this Court that the giving of Food for the Bride-Price Ceremony to Isabella Jamoto by the Defendants father as recounted by Robert Kavo, if indeed it took place, merely was confirmation of Usage Rights and did not amount to outright purchase of the relevant Portion of the Irihambo Land as this piece of Evidence has not being corroborated by other independent accounts by other witnesses.
      1. The Defendant choosing not to give evidence himself in this case did not help his cause as he would have most probably further enhanced this claim of ‘Gifts’ for the Bride Price made to Isabella Jamoto as his Witness claimed that the Defendant was with his father when the gifts were given.

Legal considerations:

  1. In the current case it seems that after Steward Euga the father of the Defendant was allowed onto the Land in the mid to late 1980’s, Isabella Jamoto and her Okaipa Clan more-or-less stayed away from this Irihambo Land and pretty much left the Defendants father and the Defendant to their own devices on this Land. (Hence the prominence of Defendants hand marks on the Land.)
  2. However, Land inspections on Wednesday 08/12/21 reveals that not all the land has been utilized by the defendant but only some parts of it.
  3. This Court is reliably informed that since the Defendants father and later the Defendant and his children began expanding their activities on the Land, the Complainant and his family began to complain and challenge the Defendant over the Irihambo Lands on account of the Complainants mothers claim to the Land.
  4. This Complaining culminated in 2020 in the seeking of Land Mediation over the Irihambo Lands between the Parties with actual Referral of the matter to the Land Court on the 05/02/21.
  5. The Case that comes to mind in respect of this case is the Hides Gas case, a Special Land Titles Commission deliberation by Amet J. as he then was in a special Land Titles Commission case he was appointed to oversee.
  6. In the Hides Gas Case, Amet J commenting on Land Claims in the hides Gas area in the Southern Highland /Hela Provinces referred to Parties returning to Lands, long Abandoned and on that issue he recited Professor RD Cooter’s 1989 discussion paper wherein the Professor discussed pertinent issues that I will also recite here as follows;
    1. Professor Cooter said in that Discussion paper, "The problem is not to declare what people know but to discover what is implicit in what they do. Melanesian legal principles are to be discovered while deciding cases in customary law, which can only be done by courts, not Parliament".
    2. Professor Cooter then listed the following factors in Land Tenure that were pertinent in Customary Land Law and they are;
      1. Adverse possession:

A group that resides upon or improves land for a sufficient time without the permission or active opposition from others thereby owns it. A group that uses land for a sufficiently long period of time without the permission or active opposition from others, but does not reside upon or improve it, thereby acquires a use right in it.


  1. Earmarks of ownership:

Land can only be said to "belong" to a group when it is shown that either neighboring groups acknowledge their claim by not challenging it or, by their ability to occupy and use the land, and to stop others from doing likewise, they show that they exercise controlling interests over it.


  1. Last is first:

If land is not used for successive generations, the claim of those furthest removed from those who vacated it becomes, as the years pass, of diminishing importance.


  1. Maintenance of interest in land (or possessory acts):

An interest in land is maintained by building houses and settling on it and by gardening, grazing or burning it off, collecting from it, or forbidding others to occupy and use it.


  1. No unqualified right of return:

Once a group has abandoned its ancestral land by cutting all ties and associations with it, they cannot return and claim it at a much later date without the agreement of those who, prior to that date, have assumed controlling rights to it.


  1. Ownership presupposes control:

Ownership implies the power, whether exercised or latent, to occupy and use land, and to stop others from doing so.


  1. Preponderance of the evidence:

In customary land disputes, the party shall prevail whose case is supported by the preponderance of the evidence.


  1. Right to resist attempt to return:
  1. In the case at hand, both the Complainants Mothers Okaipa Clan and the Defendants Ino Hika Clan and even the Complainants own Besupa Clan are all Hohorita Village clans and the issues and controversies experienced in the Hides Gas Case do not really emerge in this case nor can they be deemed as relevant to this case as no one has left the Hohorita locality and migrated elsewhere.
  2. It is not as if the Complainants mother’s clan ever really left the vicinity of the Disputed Land to go elsewhere far away.
  3. They were more or less standing back whilst the Defendant and his family occupied and used the Irihambo Land on the basis of a verbal Land Use Agreement given them by a member of their clan, Ms. Isabella Jamoto.
  4. The Okaipa Clan as a whole was too tentative in respect of the Defendants continued and expending use of the Disputed Lands thereby allowing him to gain a foothold on the land in terms of Hand-marks that was obvious during the Land Inspection of Wednesday 08/12/21.
  5. , The Concept of Adverse Possession comes to the fore here wherein it might be suggested that since the Defendant and his family had been in Adverse Possession of the Disputed Lands for close to 40 years or more, they would therefore have acquired Traditional title as posed by Professor Cooter in his Discussion.
  6. To that Proposition, this Court would observe that the Background of this case clearly revels that it is not a case of ‘Adverse Possession’ as the Defendant and his family were clearly permitted onto the Land by the Principal Okaipa Land Owning Clans-Person Isabella Jamoto, so they are on the Land clearly on permissive License granted them and not Possessing the Land in any Adverse manner to the interest of the Complainants Mothers clan.
  7. So in the opinion and adjudication of this court, ‘No matter the passage of time, the Concept of Adverse Possession cannot operate to convey traditional title over the Irihambo Lands to the Defendant. The Irihambo Lands remain the Property of Okaipa Clan.
  8. The Ino-Hika Clans-men that gave evidence of the Complainant and insisted on this fact were correct.
  9. Regarding the Insistence by the Defendant of Hand-Marks on the Land, during the case and also during the Land inspections we refer to The Supreme Court case Re Goilanai No 2 [1976] PNGLR 120 wherein it was held that, ‘..where traditional accounts of land ownership varied, they must be tested against the evidence of recent and past occupation.’
  10. Given the history of this case, after being given license to occupy a part of the Land, the Defendants family more or Less had unfettered and unrestricted access to the whole of the Irihambo Land maybe due to the Complacency or Laziness of the Okaipa Clan, they have by and large Installed land marks on a significant part of the Irihambo Lands.
  11. Does this then mean that according to the Supreme Court adjudications in Re: Golonai’s case, the Defendant herein therefore gain ascendency or prominence in this case?
  12. This court is reliably informed from the evidence presented by both the Complainant and the Defendants only witness Robert Kavo that;
    1. The Defendants father was only permitted to use a part of the Irihambo Land, and not the whole of it by Isabella Jamoto. (that being the 15 x 15 meter’s portion on which the Tower stands)
    2. In time the Defendant had expended that original license due to the Okaipa clan’s complacency to expend over all a large part of the Irihambo Lands.
    1. Even though the Defendant has installed a homestead and hand-marks on parts of the Irihambo Land, the Complainant and by and Large his mother’s Okaipa clan have always harbored the knowledge and interest that the whole of Irihambo Land was their property.
    1. Through that, it is clear the Irihambo Lands had never being abandoned at any time by the Okaipa clan and nor by the Complainants mother and by extension the Complainant.
    2. Therefore, even by virtue of the considerations in the Hides Gas Case and Re: Golonai’s case, the Complainants and by expansion, the Okaipa Clans interest and claim over the Irihambo Lands has not diminished by the passage of time let alone their inactivity on the land as opposed to the Defendants occupancy and expansive usage of the Land by virtue of the Permissive Usage Rights over specific parts of the Irihambo Lands granted them by Isabella Jamoto in the mid to Late 1980’s.
    3. However as regards other unspecified areas of the Irihambo Lands, the Defendant and more specifically his father was never given permission to live on, till on or build on, according to his own witness Robert Kavo.
  13. 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 by the weight of Evidence he adduced before this court that his late Mother Ms. Isabella Jamoto being a member of the Irihambo Land Owning Okaipa Clan was the person that permitted the Defendants Father Steward Euga of the Ino-Hika Clan onto the 15 x 15 meter’s portion of Irihambo Lands initially.
    2. The Defendant(s) thereafter expended onto other parts of the Irihambo Lands on which they were never permitted to occupy, till and build on by Isabella Jamoto.
    3. The Defendants reliance on Robert Kavo’s uncorroborated accounts fall short and accordingly the Defendants case is found Lacking in weight.
    4. The Concepts of Adverse Possession and other Limitations on returning Previous Land owners outlined in the Hides Gas Case and also in Re: Golonai’s Case do not have any bearing or relevance to this case as the Defendants occupation and Possession of the Irihambo Lands is by virtue of the Permissive Usage Rights granted them by the land owner.
    5. The Permissive Usage rights was only to a specific part of Irihambo Land and not to the whole of this Land Portion.

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 in representation of his late mother Isabella Jamoto and her IRIHAMBO Land owning Okaipa clan is made out on the basis of Witnesses Evidence and so approved by the Local Land Court.
    2. The Defendants claims of Traditional Ownership over the same IRIHAMBO Land is not made out and therefore rejected by the Local Land Court.
    3. However, this Court finds that the Defendant and his family had been granted Permissive Usage Rights to a portion of the said IRIHAMBO Lands, namely the 15 x 15 meters’ portion on a part of which the Telecommunication Tower now Stands by Isabella Jamoto herself.
    4. This Court sees no reason to vary the Permissive Usage Rights granted by Isabella Jamoto as due to the passage of time the Defendant has settled on and made a homestead on the Land that his eviction would not only be unjustified but harsh and oppressive and inhumane.
    5. However, the Court can issue further orders to curtail the Defendants further activities on unused portions of Irihambo Land in favor of the Complainant and Okaipa Clan of Hohorita.
  2. Accordingly, the Court will order as follows that;

ORDERS.


  1. The Whole of the Irihambo Land at Hohorita Village is declared as Okaipa Clan Lands and so Ownership rights over the Whole of the Irihambo Lands is Awarded to the Okaipa Clan and by Virtue of his Land Owner mother Isabella to the Complainant Rex Viambu on an equal basis with the said Okaipa Clan.
  2. The Defendant Sylvanus Euga and his family are awarded Usages Rights over the Parts of the Irihambo Lands on which their family activities are located and no more.
  3. The Land Mediators Mr. Jairus Sumbiri and Mr. Thimeas Sorari Ahopa will within the next 30 days visit the Irihambo Lands to demarcate the parts of Irihambo Land that are used, for the Defendants continued usages under Permissive User Rights granted them by Isabella Jamoto, and the unused parts for the Complainant and Okaipa Clan to gain control and possession over.
  4. Regarding Proceeds of the Telecommunication tower located on the Irihambo Land is from hereon to be shared between the Defendant and the Complainant and Okaipa clan on a Fifty by Fifty (50/50) Percent basis, between the Defendant on the one side and the Complainant and Okaipa clan on the other side.
  5. 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 Rex Viambu for himself and His mother Okaipa Clan.


Defendant/Claimant Sylvanus Euga for himself.


Dated 22nd of March 2022


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