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Gerato v Konnou [2007] PGLLC 1; DC602 (6 June 2007)

DC602

PAPUA NEW GUINEA
[LOCAL LAND COURT OF JUSTICE]

LLC NO 05 OF 2005

BETWEEN:

RAPHAEL GERATO
OVAKE CLAN
Complainant

AND:

JOHN KONNOU
TAGONI CLAN
Defendant

Arawa: D Maliku
2006: 10 October
2007: 6 June

Evidence of ownership of customary land and other relevant issues must come from and within members of the disputing parties - Evidence given by members of other clans should be given and accepted only to corroborate evidence of disputing parties of the issues of ownership - It is dangerous to accept evidence of other clan members [rather than disputing parties] given in court in deciding the issue of ownership of customary land.

Cases Cited
Nil

Reference
Land Dispute Settlement Act

Counsel
Raphael Gerato
John Konnou

Mediators
Peka Gagaina
Tony Soko

1. D MALIKU: This is a land dispute matter which arose between the Ovake Clan and Tagoni Clan. The dispute is over ownership of the land known as IRAKA however, during the hearing it was established that Iraka is a river where gravel was extracted from for use on the highway between Kieta to Buka.

2. It was established that according to the Ovake clan the land is known as Iruvera which stretches from Koneva River to Kokoreo creek. The Tagoni clan however, says the land is Tenaraha which stretches from Sineveve River to the boundaries of Arigoa and Kuruvina Plantation.

3. Nevertheless both parties agree that Iraka where the gravel was extracted is within the area of land disputed by both parties.

4. This court having analyzed the evidence has found that the land which is the subject of the dispute between the Ovake clan and Tagoni clan belongs to the Ovake clan. They are the owner of the land the subject of this dispute - Iruvera - Tenaraha (Iraka land) which stretches from the Koneva River to the Kokoreo creek.

5. Having concluded that Ovake clan is the owner of the land, we now give our reason for our decision.

REASON FOR DECISION

Land Disputed-Iruvera-Tenaraha [Iraka Land]]
1. The land was originally registered as Iraka land however during the hearing it was established that according to the Ovake clan it is Iruvera land and according to the Tagoni clan it is Tenaraha land [see sketch attached]. Both parties conceded that Iraka River where the gravels are extracted from is in the Iruvera land and Tenaraha land.

Nature of Dispute
2. The nature of dispute is ownership. This dispute has come about because of the gravels extracted from the Iraka River.

Parties to the Dispute
3. The parties to the dispute are the Ovake clan and Tagoni clan.

Place of Origin of the Disputing Parties

4. The Ovake clan did not lead evidence of their place of origin. The Tagoni clan too did not lead evidence to the same.

Mode of Acquisition of Disputed Land
5. The evidence by the Ovake clan shows that they acquired the land through first discovery of uninhabited and uncultivated land. Witnesses called by the Tagoni clan told the court that the Tagoni clan had acquired the land through conquest. Their evidence however did not tell the court who the Tagoni clan fought with and acquired the land from. This is a very vital piece of evidence that the witnesses did not reveal to the court.

First Settlements of Ovake Clan and Tagoni Clan.
6. Members of Ovake clan and supporting witnesses gave evidence that they have settled at Koneva and have been ever since. The evidence of witnesses called by Tagoni clan shows that after the land was acquired the Tagoni clan moved on to settled at Teperoi, hence John Kannou the spokesman of the Tagoni clan still lives at Teperoi village.

Genealogies of the Disputing Parties.
7. Both parties did not lead evidence to their respective genealogies. This should have been so to establish the first descendants that settled on the land disputed and from there after.

The Boundaries/Borders.
8. The Ovake clan claims its border is from the Koneva River to the Kokoreoa creek [see sketch attached]. They claim to share borders/boundaries with the Uvaio clan on one side and Biurau clan on the other side [see the sketch attached]. The Tagoni clan on the other hand claimed its borders to be from Sineneve river to the borders of Arigua and Kuruwina plantations [see sketch attached]. The Court walked the said disputed land to ascertain the borders as in the evidence by both parties on the 8th of June 2007.

Landmarks of the Disputing Parties
9. Members of Ovake clan gave evidence regarding their landmarks on the disputed land such as two (2) masalais namely the Kuritabara [stone masalai] and the Uooto [eel]. The other landmarks of the Ovake clan are the coconuts trees, breadfruit trees, the betel nuts trees, and galip trees, two (2) cemeteries and an old village called Sivoroi. This evidence was corroborated by evidence of Esther Rereteivi and Paul Revire of Uvaeio clan and John Buirau and Lucy Sirio of Ororo clan.

10. The landmarks such as the masalai- Kuritabara [stone masalai], the coconut trees and the two (2) cemeteries, one of which Motai was laid to rest when he died was seen by the court party. It was confirmed by the court after it heard the evidence of the Ovake clan that the Kuritabara [stone masalai] and the old cemetery are now in the sea thus destroyed by the sea. Members of the court party were not able to see the Uooto [eel masalai] and
the old village of Sivorio and the coconut trees, galip trees, breadfruit trees and the betel nuts trees. However, these landmarks were not disputed by the Tagoni clan.

11. The Tagoni clan on the other hand did not lead any evidence of its landmarks on the disputed land in order to strengthen its claim of ownership over the disputed land. The Tagoni clan did call Luke Wape of Basiri clan who gave evidence to the court about the masalai Urita [octopus] which he claimed to be his masalai and not for the Tagoni clan.

12. The Tagoni clan called a total of seven [7] witnesses to give evidence on its behalf and not one of them gave evidence to this very significant piece of evidence for the court to see when it walked the disputed land in order to strengthen their claim of ownership on the said land.

13. Luke Wape also told the court that Tagoni clan did not have any cemeteries but buried their deaths in the sea, however when asked by the court when members of the court walked the land to show which part of the sea Tagoni clan used as burial ground he appeared not to be sure but pointed to the ocean.

14. The other witness called by the Tagoni clan was Robert Aravaio again of Basiri clan. He told the court during cross-examination that there is a masalai called Binabinakia at the bottom of Tekanu. When asked the following questions: "Who owns the masalai called Binabinakia?’’ The witness answered: "It belongs to the Tagoni clan." He was further asked: "Which people used the masalai Binabinakia?" The witness answered: "Not just Tagoni clan used Binabinakia masalai but other clans used it to." He was further asked: "Who were those other clans that used Binabinakia masalai beside the Tagoni clan?" The witness answered: "I was only told of that by my mother." The answer by this witness shows that the Binabinakia was not the Tagoni clan’s masalai. If it were for the Tagoni clan then it was not to be used by other clans hence a masalai plays very significant role in a clan’s belief. Also if it were for the Tagoni clan then only the Tagoni clan leadership had the knowledge on when and how to approach that masalai for the purpose its assistance was required by the Tagoni clan. A masalai is regarded as one of the gods by any clan including the disputing parties before the court hence it is for the purpose of sacrifice offerings.

The Sources of Evidence of both Parties

[a] The Ovake Clan

15. The Ovake clan were able to call nine [9] witnesses. Four [4] were from the Ovake clan. These witnesses were: Dina Pola Revieta, Agatha Rarave, Anthony Bakira and Thomas Lutai. Their evidence was supported by two witnesses from the Uvaeio clan. These were: Esther Rereteivi and Paul Revira and two witnesses from the Ororo clan. These were: John Biura and Lucy Siroi. Luke Karabus of Tearaka was also called by the Ovake clan hence he attempted mediations on the land some years ago. The evidence of Luke Karabus was not of assistance to the claim by the Ovake clan except to note that the dispute was mediated by him but failed.

[b] The Tagoni Clan

16. The Tagoni clan called seven [7] witnesses. None of these witnesses were from the Tagoni clan. These were: Linus Wabe of the Basiri clan, Robert Aravaio of the Basiri clan, Tony Busu of the Basiri clan, Andrew Abea of the Naorara clan, Regina Matakao of the Ororo clan and John Areaovi of the Kabeapatova clan.

17. This court has carefully considered the evidence given by these witnesses and has concluded that their evidence were given as to corroborate any evidence to be given by members of the Tagoni clan on their claim of ownership over the disputed land. Furthermore in carefully analyzing the evidence by Tagoni clan there is no evidence of its claim of ownership of the disputed land from its clan members. The evidence of the seven [7] witnesses called by the Tagoni clan in our view should corroborate evidence of members of the Tagoni clan. There is no evidence from within the Tagoni clan showing the following:

[i] place of origin of the Tagoni clan.
[ii] mode of acquisition of the land by the Tagoni clan.
[iii] the boundaries of the Tagoni clan of the disputed land.
[iv] first settlements of the Tagoni clan on the disputed land.
[v] genealogy of the Tagoni clan.
[vi] land marks and masalais of the Tagoni clan.

[vii] any other features on the land that are of significant to the issue of ownership.

18. It is therefore in the opinion of this court that evidence of ownership of customary land and other relevant issues must come from and within the disputing parties. Such evidence must be given and tested for its credibility by the disputing parties. Evidence given in court by members of other clans [rather than the disputing parties] could be given and accepted only to corroborate evidence of the disputing parties on the issue of ownership of customary land.

19. It is unsafe in our view to accept evidence given in court by members of other clans [rather than the disputing parties] in deciding the issue of ownership of customary land where disputing parties did not adduce evidence in respect to ownership of customary land. We found such was/is the case here on the part of Tagoni clan.

Ovake Clansman
Tagoni Clansman