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Sese v Pupuneso [2011] PGDC 21; DC1073 (25 March 2011)

1073

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN IT’S LOCAL LAND COURT JURISDICTION]

LLC No. 14 of 2007

BETWEEN

STEVEN SESE
Complainant

AND

OBED PUPUNESO
Defendant

Goroka: M. Ipang

2010: September 22, 23, 24
October 04
2011: March 25

Landmediators/ Assessors
Lore Klepetamero & Tovepa Atao

Spokespersons

Complainant – In Person
Defendant – In Person

CIVIL:

INTERSTS

Cases Cited

Legislation

Counsel

Complainant, In Person
Defendant, In Person

25 March, 2011

REASONS FOR DECISION

M. IPANG Magistrate: This land dispute came through normal referral process after mediation attempts failed. The land is located just at the outskirt of the town of Goroka and share land boundaries of Kami & Faniufa.

2. On the 23rd of September, 2010 the Complainant Steven Sese gave the opening evidence and called his witnesses Akuwae Aluafa, Apukas Holuafa and Paul Amino, Sese begin by saying that y Ufeka land is customary recognized. He said his 10th generations lived on this land. He said he has bamboos, mum hole, house, fence and gardens. Sese also said this land is under the control of Anupanaga sub-clan.

3. By giving the above evidence, complainant said Faniufa has 3 sub-clans. These are Gorohanaga, Sopiganafa and Anupanaga. He said people coming from these 3 sub-clans knew each others land boundaries and respect each other.

4. Sese said there was no dispute. In 25th august 1988, Obed came to Sese’s family and asked to do a project. Sese said his family refused based on reasons that they have families and gardens. Sese continued that Obed then went and got councilor Ade and pressured his fathers. He said one person punched Aole. Crowd put pressure for Obed to set-up project.

5. Following the above events, Sese said verbal agreement was reached with Obed for he following, to set-up project, transfer seedlings to another land. Sese said his fathers allowed him to build the project and further he did not provide alternative land for transfer of seedlings.

6. Sese said when he came home, his father told him what happened and he wrote a letter to Obed for the return of the land. Sese said Obed then take the matter into more like a land dispute matter.

7.Sese said landmediators witnessed the verbal agreement by way of land Use Agreement.

Complainant’s witness Paul Amino

8. This is complainant’s witness. He supported complainant by saying the Ufeka land belonged to Anupanaga sub-clan. He said Obed is from Holotazuha sub-clan and Steven is from Anupanaga sub-clan.

9. This witness said Steven’s father is married to the witness and they lived at Kami. Steven’s father then came back to cultivate his land. Paul said he was working with DPI and he surveyed the disputed land and gave loan to Seven’s father and they planted tobacco and sold them to Rothmans. The loan was re-paid already.

Complainant’s witness Akuwae Aluafa.

10. Akuwae gave the history of their ancestor Kapila and said this land is the memory of Kapila. He mentioned the boundaries commenced at Kovezare to Lupagato Ufeka (Memory land) where a small plant was up rooted and where there’s red sugar, red banana and red target.

11. This witness said Masave (from Kami) killed the pig. Gahisope killed and ate the pig. When he and others wanted to live, they gave the plant to Kai Isopa. Mesope (f), Kai, Isopa’s wife, she was pregnant at that time. She gave birth to a male son named Kapila.

12. Kapila has 2 sons namely Havile and Kapila. Kapila has Harikawe and Akuwae. Akuwae and Hulotove gave birth to a female name Sisihe. Akuwae said they settled on the land till now. He said there was a fight and their ancestors defended the land.

13. Akuwae continued and said the fence built is still there with other properties. He said Obed wanted to build a project. Akuwae said he questioned Obed, that he (Obed) will get benefits and what about the landowners? Obed said seedlings can be shifted to other land. Akuwae said the project did not eventuate. He said Obed based his claim on the land based on Demarcation Committee. Akuwae said Obed has no properties, no targets, no bamboo’s so he said land must be given back to Steven.

Complainants Witness Apukas Holuafa.

14. This witness gave evidence similar to other witnesses called by the Complainant. He mentioned that their ancestors lived there and their ancestor Gabisrope planted Nufani (a plant with spines). He said Kapila and others like Akuwae looked after this plant.

15. Apukas said Steven’s father and himself stayed with the Kami’s because Steven’s father is married to Kami.

16. Witness said Ufeka land belonged to Amupanaga Sub-Clan. He said Obed came and asked Steven’s father and himself to put project on this land. Steven’s father refused. This witness said Steven still argue with him. This witness continued on that the Demarcation Committee came to put boundary over this land. Hulofove said they did not cut the land.

17. Apkas said Demarcation Committee gave them the land. Kiap said we did not tell them to cut the Hauslain land. Apkas said he stopped the Demarcation Committee. He said his ancestors from here and migrated out.

Defendant’s Case-Obed Pupune

18. This is the defendant in this case. He said he is from Faniufa and he is the sixth (6th) generation. Defendant named his generations commencing from his ancestor Nini Kome.

19. Obed said in 1982 he was in Port Moresby. He said his father’s at Faniufa sent word to him that they will divide and allocate land at Christmas. So he said he left Moresby for Goroka. He told this Court that on the 26th of December, 1982, Demarcation committee comprised the likes of Gase, Heleke, Councilor Aole, Namaneho demarcated the land.

20. Obed said everyone witnessed the Demarcation Committee distributing the land. They (Demarcation Committee) arrived on the current disputed land, Obed said they allocated the current land to him. He said he moved in at 1989 and made gardens. He said he paid for the improvements for those settling on the land through the land mediators. Obed said the land is his and he has cultivated the land for 07 years. He did after 07 years, Steven came and took out case against him. He said two (2) different magistrates Kisokau and Manue heard this case.
    

Defendant’s Witness - Raymond Masuve.

21. Witness Masuve said he is from Faniufa Hauslain. He was born at Ufeka and he grew up at Ufeka. He was said he witnessed how the hauslain was there. He said his parents house was at Ufeka. Tete has his house there.

22. He said Ufeka name covered big area, but the real name is “Opo-gimuze”. He said he then moved up to the current location. He said he was a big boy in 1982 when Demarcation Committee comprised Girupano, Heleke Ume, who knew who owns or who does not own land. He said together with Councilor Aole and Government Representative Namanah Aizopa they cut this land out for the Complainant. Raymond said he witnessed this and also witnessed Obed’s father cultivated the land.
    

Defendant’s witness Albert Tupo.

23. This witness said he is a leader at Faniufa. He said Ufeka land housed main Faniufa Hauslain. He said in December 1982, Albert said Demarcation Committee comprised of senior elders Committee Namanah, Councilor Aole demarcated and allocated the current land to Obed. Demarcation Committee are people from Faniufa who know who owns what portion of land and allocated accordingly.

Defendants Witness Ken Geaderiso

24. Ken said he is 59 years old retired teacher. He said Heleke Ume brought his father to Faniufa and he has lived in Faniufa for 36 years. He said originally he is from Amayufa at Upper Asaro. He said 1982 he witnessed Demarcation Committee gave the Ufeka land to Obed.

Defendant’s Witness Martin Aole

25. Witness Martin Aole said he is from Faniufa Hauslain. He said the current disputed land is within Faniufa Hauslain and dose not share border with other clans.

Summary of Complainant’s Case.

26. Complainants Steven Sese’s main argument put forward before this court is that his father who is married to a Kami lady was residing on this land. The defendant Obed came and approached complainants fathers to put up a project on this land. Complainant and his witness centered their argument that pressure was bestowed on them especially by Councilor Aole.
Finally and with a bit of hesitation, they said they gave up their land to Obed to set up project. Obed was to provide an alternate land for them to transplant seedlings but this did not happen so as the project. So, the complainant commenced action to re-posses his land back from the defendant. That is the main trunk of complainant’s argument.

Summary of Defendant’s Case.

27. On the converse, defendant Obed and his witnesses argued that the current land dispute housed Faniufa Hauslain. See evidence given by Raymond Masuve, Martin Aole and Albert Tupo. Raymond witnessed Obed’s parents living on the disputed land. So Obed and his witnesses said when Demarcation Committee went through demarcating land they knew it’s Obed’s land so they gave him this land.

28. The above summaries are two main arguments presented by the two disputing parties. Some facts presented to this Court has not been made clear so arriving at an appropriate decision would not be so easy. For example, defendant said Faniufa Hauslain was at once upon a time on Ufeka Land. Complainant said his father lived on this land. If both parties had settled on this land, perhaps may be at a different timing however it was not made known to Court. Defendant witness said defendant’s father’s settlement is recent.

29. The issue of Ufeka Land belonged to which of the three (3) Sub-clans was not so vigorously argued and defended (contested.)

30. Complainant and especially his witness based their claim of ownership on the small plant traditionally known as “Nufane.” They say their ancestor Gabisrope planted it. Kapile looked after this plant, Akuwae and others also looked after this plant. When the Court visited the land, we were not able to see the plant. At the disputed land we were told, the plant was outside the disputed land and not on the disputed land.

31. There seem to be confusion as to Obed approaching Steven’s father to posses the land to set up a project and transfer of seedlings. Perhaps a letter written by District Administrator Mr. Bill Kavanamur dated 24 March, 1995 Ref: 34/1/1 should shed some light. The letter was addressed to the Local Land Court Magistrate. The subject of this letter:

Land Dispute Referred to Local Land Court, Land Ufeka, Faniufa Mr. Obed Pupuneso -V- Mr. Apukas.

32. This letter reads; “The two above parties dispute for the ownership of the land known as Ufeka near Faniufa Village, Gahuku Census Division Goroka.”

Both parties reached an agreement after the mediators mediate between Mr.Obed –V- Mr. Apukas on 25 August, 1989 and made the decision in favour of Mr.Obed Pupune and on 30 August, 1989, Mr. Obed made payment to those who have gardens or food crops on the same land “Ufeka” because the people who have gardens want payment for their food crops.

The mediators made decision infront of Mr.Apukas the Complainant, but his son Steven Sese was not there that time and he is appealing against mediators decision. Mr. Steven should appeal against the decision within 90 days but this is more than 90 days or 4 years and now we are referring to you for hearing.

33. The letter by District Administrator raised more questions than solution to the land dispute. Whether Landmediators were empowered by Land Disputes Settlement Act to made decision over a land dispute matter may be was the reason why Local Land Court Magistrate had to give a serious thought. Mr. R.Siove in a letter dated 4 July, 1995 to the Complainant stated, “This office wish to advice that after mediation and dispute is settled and that’s the end of our role. However, on the other token there is no longer and dispute. If the dispute is not settled then is referred to Local Land Court. The above land was mediated sometime in August1989 thus this office has nothing further to do.”

34. An opportunity was given to each of the two (2) Landmediators, who comprised members of Local Land Court Panel to comment on the evidence before this Court. Both Land mediators confirmed that the main Faniufa Hauslain was at Ufeka and that defendant Obed’s parents lived on Ufeka Land.

35. Section 23. Land Disputes Settlement Act spells out Composition of Local Land Court. S.23. (3) Land Disputes Settlement Act, states that, “ A decision of a Local Land Court shall be by majority vote; and where there is an equality of votes on any matter before the Court, the Local Land Court Magistrate has a casting as well as a deliberative vote.”

36. In this case, it is majority vote in favour that the land Ufeka be given to the defendant Obed Pupuneso. By upon this and pursuant to Section 39 Land Dispute Settlement Act, this Court grants the ownership, exclusive use and possession of Ufeka Land to Obed Pupuneso.

Steven Sese - In person

Obed Pupuneso - In person