DC679

PAPUA NEW GUINEA
[IN THE LOCAL LAND COURT OF JUSTICE]

LLC 24 of 2007

BETWEEN

RABARI/KAIRE CLAN – OKENA TRIBE
Complainants

AND

VIRUMA/TOFUAMA CLAN – ARIFAMA TRIBE
Defendants

Popondetta: L. Asimba
2007: November 16

Land Dispute Settlement Act ch 45 – claim ownership – mediation failed s 27 (1) (e) (i) – proceedings s 39 (1). 

Cases Cited
No Cases Cited.

Counsel
Arthur Diri, for the Complainants.
Justin Gabarua, for the Defendants.

16 November 2007

L. J. Asimba: This is a dispute which was instigated by the Maritime Division, Department of transport. That is to identify the ownership of particular disputing parties of the portion of land known as Spear point, Daia where 0.0100 hectare (10m x 10m) the lighthouse beacon had been installed.

2. The main purpose is rehabilitation of maintenance Navigational Aids systems project, land lease agreement, Community maintenance and security contract agency agreement to be made for functional lights to avoid vandalism.

3. There had been number of attempts and mediation conducted between the parties concerned, failed to reach an agreement. The dispute was referred to Local Land Court to conduct hearing to determine the original customary land ownership where the lighthouse is located. 

4. LAW: The provisions stipulated under the s 41 exception of certain disputes. In pursuant to ss 2 (c) that there is no possibility of agreement being reached between the parties to the dispute (d) that it is national interest that the dispute be settled in some other manner.

5. In addition the provision of s 26, General jurisdiction of Local Land Court. Subject to s 3 and 4 and to this part a Local Land Court has jurisdiction over and in relation to – (d) other action or decision that it can be required to take under this Act. Furthermore s 39, orders generally – (1) On the completion of a hearing under this part, the Local Land Court shall make an order in accordance with this section. (2) In making an order under ss (1), a Court shall, subject to s 68, apply the customs of the area in so far as they relate to – (a) interest in the land that are recognized by custom; and (b) the process by which such interests are allocated or re-allocated by custom. (3) Subject to ss (21) the customary interests in relation to the land that a Court may take into consideration include customs as to- (a) the exclusive use or possession of land; and (b) the disposal or an interest in the land etc. As to other provisions provided applies to the circumstances of respective nature of the disputes to the land concern with.

6. ISSUE: The issue in this portion of customary SPEAR POINT – DAIA land where Lighthouse Beacon installed on the area of 0.0100 hectare (10m x 10m) is whether or not RABARI/KAIRE clans have exclusive ownership or by VIRUMA/TOFUAMA clans customary recognized generally in the area has ownership.

7. The first witness for the complainants was Mr Lindsay Jogioba of Mapuia village from KAIRE clan was sworn upon Oath and testified his evidence to the Court. That he was principal landowner to the dispute. It was given to the Okena tribe which owned the land ever since up until now. It was given to his grand father namely Jauda. Therefore they were principal landowners, have some documents to tender to the Court. He tendered colonial administration “PATROL REPORT, Ref 138/53 dated 3/1/1919, marked for identification “1”.

8. The witness was examined in chief by Mr Arthur Diri which clan did his great grand father acquired the land. It was responded that from Mokurua tribe. Further questioned was there any clan witnessed the hand over ceremony, it was responded the Gigia clan. Then last question asked is Gigia clan in dispute responded negative.

9. There were some questions raised in cross-examination, the Court noted take into considerations. The question of colonial administration Patrol report was raised what purpose, was it for boundary to administration area or the ownership of customary land. It was responded that the Patrol Report can explain itself. Then further questioned were Gigia clan existed before or brought in for hand over ceremony purposes and responded it existed there before the ceremony.

10. In re-examination questioned when great grand father acquired the land and responded in 18th Centuary. Where was Arifama tribe when colonial administration took control on 8 April 1900 responded negative.

11. The Court panel raised some questions, noted for considerations but few to be mentioned such as Gigia clan earlier settlement before they came to witness hand over ceremony, response was already discussed during mediation. Was Gigia clan members appointed to take care and control land on behalf of Okena tribe and responded that was done. Lastly questioned the witness had he had any knowledge which clan got involved with first installation project on the dispute land. That response was that he didn’t have any knowledge of such clan initially involved with.

12. The second witness is Mr MacDonald Diri of Kapuaruru village from Rabari Clan of Okena tribe, sworn upon Oath testified his evidence to the Court. The brief background history of his tribe that migrated out from Emo area after the tribal warfare with Pehua Tabe and Notu tribes to Ako then further travelled down from Spear point to Reaga, Collingwood bay. Were his tribe’s men returned back along the coast towards north stopped temporary few areas until established and settled at Orea village by his great, great grand father namely SAIVA. While they were living there, fought with such tribes as Arifama, Baruga and other tribes. Their great, great grand father found a man called RAFIA from Tofama clan of Arifama tribe and peace was restored. He was given authority by Rafia from Arifama tribe to look after spear point since then up until now present generations are following their history.

13. When questioned in examination in chief the status of his great, great grand father it was responded that he was great head-hunter. Whom he contacted first it was Mokurua tribe not Arifama tribe in and around at that time.

14. In cross-examination questioned if there was not Arifama tribe at spear point Daia then how is TOFUAMA and GIGIA clans exist. It was responded that two clans are from Arifama tribe but they were not actually in the spear point Daia. There were some questions in relation to the area and its access by both parties noted and considered.

15. Mr EDWARD KEGHANA questioned why his great, great grand father passed through other places, Berebuna, Tumani, and what sort of relationship had with Tofuama clan. It was responded that he didn’t know the reasons but he had first contact with Tofuama clan the authority was given to control the land on his behalf. There were other questions raised, noted for consideration.

16. Mr Arthur Diri intended to call third witness who was in the Court through out the proceeding therefore he was disqualified and the complainants case closed.

17. The defence case was opened and represented by Mr Justin Gabarura for Arifama tribe.

18. The first witness was Mr Jackson Kasi of Founa village comes from Tofuama clan sworn upon Oath testified his evidence to the Court.

19. There had been Junga Rafusi clan of Mokorua tribe existence in the area living at Mafuia while Orokakovani lived along towards north coast.

20. That Okena tribe migrated out from north coast, Borou, Waiva and Emo area due to tribal constant warfare. They entered into Arifama and Mokurawa tribal areas where they split into small groups and settled among them.

21. The fighting ended when the Australian Government took control of the administration during 1921. The peace ceremony was conducted and restored normalcy between Okena and Arifama tribes. Some of Okena tribes men returned to their original homes towards north coast.

22. However, Ravari clan settled at Orea lived under Junga Rafusa clan until 1970 left and moved out to Gobe. An old man who moved out from Orea village to Gobe namely Dirifa died at Gobe. His family started complaint about spear point Daia during 2000.

23. However, spear point belongs to Arifama tribe under which Tofuama clan owns the disputed portion of Daia land.

24. Tofuama clan has dispute with SIRISI clan not Okena tribe which has no right to claim ownership. That is because the word “DAIA” is Afarima language not Okena language.

25. There were some questions asked in examination in chief in relation to appointment of trustees or caretakers while Okena tribe moving away from Orea village, the response was negative. Further questioned the word Daia was Afarima language and it’s meaning to explain to the Court and it was responded positive and it’s meaning is “stone”. It was very scrad, spirit of an ancestor composed song “DAIA GIBONA RI RORIRO” from the stone. 

26. The cross-examination questions raised in relation to information given was before colonial administration arrive or after that and it was responded before the colonial administration arrived. When Okena tribe moved in and it was responded sometime over 100 years ago. Who was the leader of Arifama tribe it was responded his name was Mitbabadina.

27. Some question were asked by the Court panel in relation to the names of leaders who involved with peace ceremony with administration from both sides. From Arifama side their leader was Mitbabadina but he didn’t know the name from Okena side. Further questions about his age, which village has access to the lighthouse, the distance of villages involved to the dispute and any payments received earlier from the administration. It was responded that his age is 46 years old, Founa village has access to the lighthouse, the distance is about 4-5 hours to the complainant’s village no earlier payments received from the administration.

28. The second witness was Mr Palus Nunua of Founa village from Arifama tribe sworn upon oath testified to the Court. That he was the principal land owner of the portion of Spear point, Daia where the lighthouse had been erected. He was speaking on original ownership and occupations of the area and prepared to answer any questions but not colonial era land demarcation boundary.

29. There were number of notable events had taken place during early contact be relevant- (i) The name Spear island was given by Captain Moresby when his cruise arrived. The crews went out on shore to collect fire woods. People of Afarima tribe mobilised and attempted to kill them. The spears were thrown at the crews. The captain returned to Port Moresby then the name was given because of that incident. (ii) The stages of instalments of lighthouse first was during 1941-1950 the lighthouse was installed by MV Waruki and the local people of Tofuama/Viruma involved with project. The erection site was out on the reef out in the sea and the documents were signed. (iii) The stage 2 project was involved by people of Founa village in 1951-1966. (iv) The stage 3 project was involved by people of Arifama tribe on the main land in 1966-2005.

30. During those years no members of Rabare clan of Okena tribe involved with those earlier projects. Therefore the dispute over the portion of Spear point, “Daia land where 0.0100 hectare (10m x 10m) generally well known belong to us of Arifama tribe.
31. There were some questions raised, where original construction was erected, had any idea why Okena tribe involved and any such dispute of similar nature from Okena tribe during 3 stages earlier projects.

32. The original site has cement block still stands out in the sea, no idea of Okena tribe’s interest and there had been no dispute until now before the Court may be monetary interests.

33. In cross examination questioned the witness, was he aware RABARI/KAIRE gave custody over to VIRUAMA to involve with that lighthouse, does spear island still exist today, demarcation mark imposed by colonial administration and define origin of the area.

34. It was responded that he would not answer that his story based origin of local knowledge, Spear Island submerged, the lighthouse was moved onto the mainland in relation to demarcation mark earlier stated he would not say anything but he spoke origin of ownership and occupation of the area under Juna Rafusi tribe. 

35. That the Court panel questioned how he was there when construction took place, whether he had any documents for stage 1-3 projects and which group was he representing for in this dispute.

36. It was Arigama tribe which investigated and picked him got involved with the earlier projects, he has no documents to those projects and he was representing for Viruma and Founa clans of Arifama tribe.

37. The defence case was closed and Mr Arthur Diri submitted following documents. 1. Letter to Secretary – Department of Transport. (Maritime) Statutory Declaration, Certificate of recognition of ILG, Patrol Reports 21/12/1918 – MFI “1”. 2. Letter from Department of Lands Physical and Planning MFI “2”. 3. Special Agricultural and Business Lease MFI “3”. 4. Hand written no case submission MFI “4”. 5. PNG National Map Dyke Ackland Bay MFI “5”. 

38. The submission from defence the following documents submitted to the Court. 1. Letter from Mr Willington Kaboro, the President of Tufi Local Level Government to the Maritime Division, Department of Transport, copy MFI “1”. 2. Certificate of Recognition of incorporated Land Group, LG/Act ch 147, Registration No. ILG 8715 MFI “2”. 

39. And also Rehabilitation of Navigational Aids System Project – Mediation Report Tufi on 9/4-24/07 made available to the Court as reference to the mediation failed to reach any agreement or resolution to the dispute.

40. The Court having received the whole evidence from both sides, the submissions of various documents and area inspection visit made observed the surrounding areas of the lighthouse. Therefore the Court has to weigh and assess essential part of the evidence, documents produced to the Court and its own observation of the dispute area. 

41. The both parties contended and testified their evidence before the Court to establish the genuine ownership of the portion of spear point Daia customary land where 0.0100 hectare (10m x 10m) lighthouse beacon is situated. Their claim is based on inheritance handed down form generation to generation.

42. The essential characters of customary land is that its use and control is corporate or community and not individual affair. The land was an ancestral trust committed to the living for benefit of themselves and future generation unborn.

43. Generally acquisition of land or interest in land, under customary law, land may be acquired in number of ways. It may be acquired by way of first discovery and occupation of previous uncultivated vacant or unoccupied land. Sometimes by birth, by an agreement, by grant or by conquest.

44. In this dispute there is evidence. Okena tribe migrated out from Emo, Oro Bay area after tribal fighting between Sahua and Notu clans, travelled to east as far as Collingwood area. Then returned north coast, settled various places until settled at Orea and Mafuia originally Mokorua and Arifama territory. 

45. During colonial administration Patrol Report on Thursday 19 December 1918 precisely reported feud between Okena and Arifama tribe subject to intrusion. The administration attempted to restore peace and harmony through peace ceremony and marking administration boundary. Later Okena tribe left Orea and returned to Gobe village.

46. The second witness Mr MacDonald Diri testified the land was given to his great, great grand father found a man from Tofama clan, gave the land to him and witnessed by Gigia clan but failed to call any witnesses from those clans to corroborate his evidence as trustees. 

47. On the other hand the defence evidence is very constructive on Arifama tribe originally settled on tribal territory with other tribes such as Mokorua, Korafe, etc. They share common traditional boundaries, general welfare activities of fishing, collections, harvesting and hunting and burning grassland for common purpose before Okena tribe entered into their territory. They were never conquered or nomadic tribe lived there for generations.

48. The evidence of early stages of lighthouse projects on the disputed area proves itself, no participation or involvement by any members of Okena tribe. The location of the lighthouse is under Ward 16 but the Complainants are from Ward 18 of Ako village, Tufi Local Level Government, lower Musa area.

49. Therefore the Court having received the whole evidence, final submissions, fact findings of the are and mediators report, considered, scrutinized and weighed in order to determine and reach its decision.

50. Now the majority members of this Court find and declare the Ownership of portion of Spear Point Daia customary land where lighthouse is situated belongs to VIRUMA TOFUAMA Clan of Arifama tribe.

Complainant: In Person 
Defendant: In Person