drafted: Tue Jan 19, 2016
A CASE OF IN LAW WHO IS HITCHING A RIDE ON BENEFITS OF WIFES SHARE OF PROPERTY, YET CLAIM THE WHOLE OF THE LAND IS NOW HIS....
termed as TUMPANG GEMBIRA by the native court.....
PENAMPANG. The Native Court here set a kind of landmark
decision for cases where a relative arrange for a land title to be in his/her
name for the purpose of getting a loan, only to claim sole ownership of the
land later on.
The land dispute case was previously heard in chamber via
mediation between Joan Andrew Bai and her brother-in-Law Esi Sylvester Libasa
over a piece of land at Kg Tanaki, here where it was admitted by both parties
the land is an inherited property from the mother of the defendant Joan.
Joan maintained her claim on the part of the land where
the family home is built, where she had looked after her mother to the very
end. She informed that her elder sister Mary Felicity Andrew had requested her
mother through her that the whole piece of land be transferred to her for the
purpose of a loan for another house for the sister and husband Esi to live.
After the land was transferred to Mary she then transferred
the title to her husband for the purpose of getting a loan, where the
memorandum of transfer cited “love and affection” as the cost of the land.
Esi admitted that the defendant had only inherited the
house but the whole land now belongs to him.
The mediation on 29 Sept 2015 had ordered that the
defendant Joan be given the plot of land where the family home is built but the
plaintiff challenged the ruling resulting in a full hearing on 9 December 2015.
The panel of judges led by District Chief Bryan Matasing
and Native Chiefs Andrew S Lidaun and Woritus Paulus announced yesterday that
their verdict is made after a thorough investigations of the documents
submitted and statements of facts from both plaintiff and defendant coming to a
conclusion without prejudice or favouritism.
The court ordered that the result of the mediation shall
be maintained, defendant Joan shall inherit the family home but now the
inherited land shall be divided equally.
The decision was also justified with terse comments on
several statements made by the plaintiff as follows:
1. Plaintiff claimed he owned the land with a house. The
court said there are now two houses on the NT land and that one cannot own a
house without a land.
2. Plaintiff claimed his ownership is valid after being
transferred by his wife to him. The court commented that the land was not sold
to him but transferred for the purpose of a loan so still a heritage land of
the late mother.
3. Plaintiff claimed the Memorandum of Transfer proved
his ownership.
The court responded that transfer via “love and affection”
is through Section 21 of The Administration of Native and Small Estates
Ordinance 1941.
4. Plaintiff claimed that the land was passed down to his
wife Mary with the consent of her siblings. The court found the document as
invalid because it was incomplete. One of the siblings did not sign and the
Statutory Declaration was not signed or attested by anyone.
5. Plaintiff claimed that the land is no longer the
property the late mother after her death.
The court countered that under the laws of inherited
properties, in-laws are not heirs.
6. Plaintiff claimed the relatives have no more rights to
the land and request the court to evict them from the land.
The court rebutted the plaintiff has no rights as he is
simply “tumpang gembira” or hitching a ride on the inheritance of his wife,
instead he should be thankful to the relatives for their love and affection. He
has no rights to evict as that power remains with the Native Court.
7. The last statement of the plaintiff was to return the
title to his wife as the loan is already paid.
The court said he should so that the wife and her
relative can discuss further on the land.
The court concluded that any party who is not satisfied
with the verdict can appeal within 60 days to the District Native Court.
However District Chief Matasing reminded that after the verdict the parties
should reconcile to bring back peace to the family.
He strongly recommended that if there are family
arrangements especially regarding land matters, all verbal agreement should now
be put in writing to maintain the family harmony in future.
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