DC8099
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING ITS PROVINCIAL LAND COURT JUSRISDICTION]
   PLC   01 of 2019
BETWEEN

 NAISI KEPORI ON BEHALF OF
RAROGU MORU CLAN
 First Appellant 

AND
 FRANCIS KEIKEI ON BELHALF OF MOTOKONO CLAN
Second Appellant
AND 
PETER NABUAI ON BEHALF OF KUGENONIA CLAN

Respondent 

 BUIN:    BRUCE TASIKUL PLCM

  2022: 25/1/22,14/6/22,16/6/22, 23/6/22.
28/7/22
         

 CIVIL-   

Cases Cited

References

REASON FOR DECISION

1.	B. TASIKUL:  28th July, 2022: Naisi Kepori on behalf of the Rarogu Moru clan and Francis Keikei on behalf of Motokono clans are appealing the Buin Local Land Court decision dated 06th August, 2021 constituted by his worship Mr. Luke Keria and the two Land Mediators namely Cosmas Piruke and Andy Foster Naigari over the ownership of a portion of customary land refer to the parties as Loubai Gravel Pit. 

2.	I am satisfied that I have the jurisdiction to hear the appeal as the dispute arose wholly within the Autonomous Region of Bougainville Land mediation area. (s.53) 

3.	I am also satisfied that both appellants have filed their respective appeals with the three months’ period and paid their appeal fees. (s. 54) (s.57)

4.	The Buin Local Land Court decision dated 6th August, 2021 which was appeal against is couch in the following terms. 

i.	We declared that the customary ownership of Moropo Kurogoiru now rests in perpetuity with Peter Paiam Nabuai on behalf of Kugenonia Kagu clan.
ii.	We declared that Naisi Kepori shall continue to exercise his land users’ rights subject to a new arraignment with Peter Paiam.
iii.	In the right of the fact that all parties had been benefitting from Loubai Gravel pit for some years now. We order that the three disputing parties sit down under the leadership of Peter Paiam Nabuai and discuss a benefit sharing agreement just over the gravel pit area, and re-negotiate a new deal with Covec Limited.
iv.	We further order that the monies held in trust by Covec Limited be released to Peter Paiam Nabuai who will decide how that money will be shared or apportioned. 

5.	The appellants’ grounds of appeal are properly sought under s.58 (a) (b) (c) (d) of the Land Dispute Settlement Act. 

Back Ground

6.	The three parties are, Rarogu Moru clan led by Naisi Kepori, Kugenonia clan, led by Peter Nabuai and Motokono Clan led by Francis Keikei. All are claiming ownership to Loubai Gravel pit portion of customary land. The dispute arose only when one or two of the disputing parties started receiving compensation payment for the gravel extracted from the river bed by Covec Limited at Loubai river. 
7.	After the appeal was filed, I have to travel to Buin on the 24th January,2022 to commenced hearing the first appellant. I completed the hearing and then, adjourned the hearing for the second appellant to the 16th June, 2022, in which I completed hearing the matter. 

8.	The two appellants were not represented by any lawyers, however, I noted that their grounds of appeal were prepared by a lawyer.  

9.	I will proceed with the first appellant Naisi Kebori. 

Ground of Appeal.

10.	 The first appellant Nasi Kebori submitted two ground of appeal. They are:
i.	In the circumstance of the case no court doing justice between the parties would have made the decision appeal against.
ii.	In the case of an appeal against a decision given under section 40, the order for the return of interest or interest in land or grant of another equivalent interest or interest was not supported on the facts.

11.	I will discuss both of this two grounds together as his supporting affidavit covers both grounds. 

12.	In support of both grounds the appellant contented that- Moropo-Kurogoiru land is owned by his clan Rarogu-Moru clan. The Loubai gravel pit is within Moropo-Kurogoiru land. He contended that his first brother Taunai after passing away, he was the next to inherit the land.

13.	He further contented Peter Nabuai is his cousin brother from his maternal side. Peter, s father Rovinau is the first born and he (Nasi) mother is the second born. His mother then got married to Kebori who is the direct descendant of Togogolo.  

14.	Therefore, by Buin custom he is the rightful owner of the land Moropo-Kurogoiru in which the Loubai gravel pit is situated. He contended that the Local Land Court did not correctly applied the customary practice in their society, where customary lineages and obligation rests on the paternal side and not maternal side.

15.	He further testified that there are seven other clans who owns land that shared the common border with Moropo-Kurogoiru customary land, and chiefs from those seven clans acknowledge that, he is the paramount chief of Rarogu-Moru clan that owns the Moropo-Kurogoiru customary land.

16.	This was support through witness Joseph Karoki a chief from Siusiuna clan who shared the common border with the appellant. The same was also echoed by other chiefs from various clans who also shared the same common border with the appellant

Assessment of the Evidence Relating to both Grounds of Appeal. 

17.	I noted from the Local Land Court decision that Moropo-Kurogoiru customary land is owned by Chief Bakau of Muro clan. When he passes on there was no surviving male descendant to inherit his land. He only had a daughter namely, Paai. 

18.	Both the appellant Naisi Kebori and the respondent Peter Nabuai are not the original land owners. The Appellant Naisi Kebori is claiming ownership through a customary practice called Uuming Kasinomu/ Kuinke or cremation. That customary rites were done by his ancestor Togolo. 

19.	Whereas, the respondent Peter Nabuai is also claiming ownership of the Moropo-Kurogoiru land through a customary practice refer to as Kapu or Agoto or Napsak. The only daughter Paai got married to Takarau. The customary land Moropo-Kurogoiru was then transfer to Paai after her father died. 

20.	I noted from the Local Land Court decision, the respondent Peter Nabuai is a directed descendant of Chief Bakau through his daughter Paai. 

21.	Section 35 of Land Dispute Settlement Act provides for the practice and procedures of the Local Land Court. It primary role is to analysis all the evidence before it and make appropriate findings. It examines all the witness, and most importantly it must take into consideration the customary practice of society within the disputed area. 

22.	The Appellant Naisi Kebori is arguing that the Local Land Court did not consider the Buin custom where land is passes on the male descendant and not female. Yes, I agreed with the Appellant, however, there are some exception to that customary practice. One of the exception as the Local Land Court has discussed was through Kupu, or Agoto or Napsak. That is done when the original land owner has no male descendant. 

23.	That is exactly what happen when the original land owner Chief Bakau, daughter did when his father died. I noted from the Local Land Court decision at paragraph 156 & 157 which I quote: That when Bakau died, Paai and her husband Takarau made custom with two pigs, a parcel of galip (mai karuku) and 10 shell money or mimis (aputa kipuloi) That Paai and Takarau had two sons, Lopinau and Musei. Musei died without any issues while Lopinau had Peter Kerai, who is Peter Nabuai. 

24.	After careful examining the Local Land Court proceeding and the reasons for their decisions I find that the Local Land Court have properly considered and took into account the Buin customs in its decision. I find no fault with the Local Land Court decision. 

25.	I therefore find that both grounds of appeal failed. The appeal is dismissed. Surety or Appeal fee of K500.00 is forfeited to the State. 

26.	I will now proceed to the second appellant Francis Keikei.

Ground of Appeal.

27.	Francis Keikei submitted two grounds of appeal. They are:

i.	The local Land Court conducted its hearing in a manner contrary to natural justice in the following manner;
a.	It is noted that during the boundary walking, the parties to the dispute were not altogether included in a group so as to give the opportunity for other parties to raises questions.
b.	As for the boundary walking for Mr. Francis Keikei on behalf of Motokono clan, it boundary walking was incomplete especially when the chairman his worship Mr. Luke Keria stopped half way through the walk. Only the mediators and Mr. Francis Keikei s clan completed the walking. Hence, the learned Magistrate was not able to witness the boundary landmarks like stones or trees or creek 
c.	Furthermore, its walking of the boundary was done without the presence of the two parties and vice versa.
d.	It is also noted from the GPS, MAPS, that there are not so many land marks shown by the respondent Mr. Peter Nabuai whereas, Francis Keikei map indicates a lots of customary land marks.
e.	The Local Land Court in doing so has breach the fundamental principal of natural justice.

ii.	That, in the circumstance of the case no court doing justice between the parties would have made the decision appeal against.
a.	That the Local Land Court has erred in saying that Francis and his Motokono clan have not shown as to how they have acquired their land known as Toukai Komi;

b.	It is a known fact that Buin society is a patrilineal society where land passes through male unlike in other societies in the Autonomous Region of Bougainville, where land passes through female. 

c.	So, in essence what Francis Keikei is saying is that, he has the family tree depicting the inherence of the land through the male line which has had no problems like the one faced by Peter Nabuai

d.	The other two parties alleged that, they have done some customary obligations because, their ancestors never bore a male but only female. That is quite understandable but as for Francis Keikei and his Motokono clan do not have to do that as they have males’ inheritance the land since from earlier male ancestors, Kameri. Francis Keikei is the 6th generation.

e.	That the decision by the Buin Local Land Court regarding Francis Keikei land crossing over major rivers like Loubai river was not in order. There is customary land which cross over big rivers and Francis Keikei land is no exception. So the Buin Local Land Court may have erred in respect by giving more emphasis on this aspect or issue.

f.	In Buin custom, there are five of them, namely Upoiaro, Tukoono, Tuue Koogu, Tuginouro and Kosi Kuuku. 

g.	The Local Land Court stated that Francis Keikei had close relatives or family members giving evidence in support of him whereas in fact three government officers namely, Peter Kakata, John Itanu and Jacob Tooke were from different clans. This evidence may have influenced the outcome of the decision in favour of Peter Paiam Nabuai. 

h.	The documents presented to the Buin Local Land Court were never made available to Francis Keikei for viewing and verification

i.	The declaration of the agreement by the Buin Local Land Court as being null and void is also not proper. There is no evidence to suggest that, all these agreements were signed and executed during the crisis. The agreement was signed on or about the period 2016 and thereabout. The Bougainville peace agreement was signed in August 2001. Those agreement documents were important and Local Land Court should have taken judicial notice of them rather than declaring them as being null and void.
j.	From this documents, one could easily draw an inference that Francis Keikei GPS, MAP clearly shows that Loubai gravel pit is shared equally by both Francis Keikei and Peter Nabuai or Naisi Kebori.

k.	With respect to s.67 of the LDSA Francis Keikei alleged that there is no evidence supporting both Peter Nabuai and Naisi receiving payments since 1970. Oral evidence sometimes may be exaggerated without any factual evidence. 

l.	One factual error that may have been made by the Buin Local Land Court is where it stated that two witness namely Paul Nouno and Maria Nomonei were from Motokono clan and they told the court that Motokono clan do not have land in the Loubai area. In fact, this two witness are not from Motokono clan and they are not 
shown on the family tree.

28.	In support of his first ground of appeal, the appellant relied on his affidavit file and swore on the 23rd February, 2022. On point (a) he contended that: (a)It is noted that during the boundary walking, the parties to the dispute were not altogether included in a group so as to give the opportunity for other parties to raises questions.

I noted from the appellant nor his witnesses’ affidavit there are no evidences to support point (a) He has failed to deposed in his affidavit nor his witnesses who were with him when the court inspected the disputed land. There must be evidence to support this point raises. Raising it as ground of appeal is not part of the evidence. There must be swore evidence to support this ground. 

Furthermore, the Land Dispute Settlement Act is silent on how the disputing parties should walk or inspect the disputed land. There is no set procedure or guidelines on how parties should walk and inspect the disputed land. It is up to the Local Land Court to decide whether one party walk first and other parties later, that is up to the Magistrate discretion during the inspection of the disputed land. S. 36 of the Act is silent on that. However, s. 69 of the Act is crystal clear that the Local Land Court or Provincial Land Court is not bound to any technical rules of evidence. 

So, on this point raises by the appellant I rule that must fail.

29.	On point (b) the appellant contented that (b) As for the boundary walking for Mr. Francis Keikei on behalf of Motokono clan, it boundary walking was incomplete especially when the chairman his worship Mr. Luke Keria stopped half way through the walk. Only the mediators and Mr. Francis Keikei s clan completed the walking. Hence, the learned Magistrate was not able to witness the boundary landmarks like stones or trees or creek 

In support of this point(b) he deposed in paragraph 5 of his affidavit that as I quote: I raised two grounds in my notice of appeal. The boundary walking for my clan, his worship did not complete the rest of it as he did to other two parties. During the cross examination I asked the appellant if the point he raises is true and he confirm that the presiding Magistrate never completed the walk and only the two mediators did complete the land inspection.

30.	This is a very interesting point raises by the appellant which form part of his ground of appeal. I asked myself what does the Act says? Section 36 of Act states: 
(1) A Local Land Court to which an application has been made under this part, shall, before giving a decision on the matter, inspect, with the parties to the dispute, the land in dispute and shall satisfy itself as to- 
(a) the scope and extent of the land, where the dispute concerns interests in use or possession of the land; and
(b) the scope and nature of the produce of or improvement to the land, where the dispute concerns the produce or improvements; and

(c) the location of alleged boundaries, where the dispute concerns a boundary to land; and
(d) any other aspect of the land that will assist the court in reaching a just decision, as the case requires. 

(2) Subject to subsection (3) all members of the Court shall inspect the land in accordance with subsection (1) except where the land in dispute is situated in a place to which access is difficult, in which case it shall be a sufficient compliance with subsection (1) if one of the members of the court inspect the land.

(3) Subsection (2) does not apply to a member of the court suffering from any physical disability, and an inspection by all the other members shall be deem to be an inspection for the purpose of that subsection.

31.	Section 36 of Act give no discretion to the Magistrate or the court to decided who walks or not to walk the disputed land. The court is duty bound to carry out its judicial function to complete the land inspection before it handed down its decision. All members of the court must all inspect the disputed land and its boundary, (subsection (2) unless of course if it was difficult to accesses the land. In this cases the Magistrate had completed walking with the other two parties, and why then did he not completed the walk with the appellant party. 

32.	There is no reason in the Local Land Court judgment why the Magistrate didn’t complete the land inspection. The law required that all members of the Local Land Court shall complete the walk to a disputed land so, that proper decision is made. 

33.	I am satisfied that the Magistrate did not complete the land inspection which breach s.36 (1) (2) of the Act. I therefore up held his point(b) of the first ground of appeal. 

34.	On other points; that is: 

(c)	Furthermore, its walking of the boundary was done without the presence of the two parties and vice versa.

(d)	It is also noted from the GPS, MAPS, that there are not so many land marks shown by the respondent Mr. Peter Nabuai whereas, Francis Keikei map indicates a lots of customary land marks.

35.	I have already discussed that issues and I satisfied there were no supporting evidence on that. I dismissed both points (c) (d).

36.	As I have up held point (b) of the appellant first ground of appeal which I can rule otherwise, I will continue to the second ground of appeal.

37.	That, in the circumstance of the case no court doing justice between the parties would have made the decision appeal against.

In support of his second ground of appellant he raises the following points: I will discuss each points as I go into my judgment. 
(a)	That the Local Land Court has erred in saying that Francis and his Motokono clan have not shown as to how they have acquired their land known as Toukai Komi;
38.	On the above point I noted from the Local Land Court proceeding records, I find the court did not have proper minutes of the proceeding.  The evidence by the parties was not properly recorded and separated to give the appeal court clear indication which evidence belongs to which party. Minutes of proceedings are very important records. With that difficulty I only relied on the Judgment by the Local Land Court. 

39.	I noted from the judgment of the Local Land Court at paragraphs 172 to 180, found that there is no evidence how Francis Keikei(Appellant) acquired the land which he refers to as Toukai Komi. Most of the evidence the Local Land Court discussed were related to payments the Appellant received from the gravel pit some years back before the crisis and after the crises. I presumed that the Local Land Court did not enquired into Toukai Komi land because it was not disputed, that’s is why the focus was only on Moropo Kurogoiru. 

40.	I noted from Francis Keikei supporting affidavit at paragraph 10 deposed that the Local Land Court did not make a finding as to the different names to the customa land. His land is referred to as Toukai Kumi, whereas Peter Nabuai land is called Moropo Kurogoiru. He contended that the court should have make a determination as to the name and accept which one of them. 

41.	The Provincial Land Court in its appeal hearing confirms that there was no dispute over Toukai Kumi land which the Appellant Francis Keikei own. The same to Moropo Kurogoiru land which both Peter Paim Nabuai and Naisi Kebori are claiming ownership over it. The only issue is the boundary of this two portions of land. Keikei is claiming that the gravel pit is within his Toukai-Kumi land while the Peter Nabuai is also claiming that the gravel pit is within his Moropo-Kurogoiru land. 

42.	 I think the critical issue here is whether Loubai gravel pit is within Moropo Kurogoiru land or within Toukai Kumi land. The Provincial Land Court appreciate the findings by the Local Land Court in which they accepted the boundary of Moropo Kurogoiru and to say that the Loubai gravel pit is within the Moropo Kurogoiru land. However, the Local Land Court failed to identified and described in its orders where the Moropo Kurogoiru boundary lies and where the Toukai Kumi boundary end. Even though Toukai Kumi land has no ownership issues, there was a boundary dispute because the gravel pit was a subject to this dispute, so the Local Land Court should have considered that and make its determination on the boundary of Moropo Kurogoiru and Toukai Kumi.

43.	 I noted the Local Land Court failed to make a formal court order as to the boundaries of both Toukai Kumi and Moropo Kurogoiru land. Even though boundary issue was discussed in the reason for decision by the Local Land Court, it should have included in the formal court order. 

44.	For this reason, I will up hold this point on his second ground of appeal.

45.	On the other points raises by the appellant from (b) (c) (d) (e) (f) (g) (h) (I) (j) (k) and (l) I find that there is no evidence to support this points. The Local Land Court has discussed those issues through out and have considered all that in their decision. I find that those points raises to support the grounds of appeal must fail. 

46.	 Having upheld the appellant point (b) of his first grounds of appeal and point (a) of his second ground of appeal. I now make the following orders. 

47.	However, section 59 (1) of the Act empowers me to do either of the following; POWERS ON APPEAL;

(1)	In determining an appeal under this Division, a Provincial Land Court may –
(a)	Affirm the order; or
(b)	Quash the order and –
(i)	Make such order as, in the opinion of the court, will dispose of the appeal and the dispute. Or
(ii)	Where, in the opinion of the court, justice demands the matter of the appeal be remitted to the Local Land Court, remit the matter, or that part of the matter to the Local Land Court.

48.	Section 59 (2) further provides that in remitting a matter to a Local Land Court under subsection (1) (b) (ii), a Provincial Land Court may give such instructions, directions or guidance to the Court as to the manner in which the matter remitted is to be dealt with as it thinks proper.

49.	Because I have found that the only critical issue the Local Land Court should have included as part its orders. I am of the view that part of the matter be remitted back to the Local Land Court for determination with following directions.

50.	I therefore make the following orders:

i.	The appeal is upheld and part of Buin Local Land Court order dated 06th August, 2021. Quashed; 

ii.	That the matter is partly remitted back to the Local Land Court for re-hearing before a different Magistrate and Land Mediators with the following directions;

a.	The Local Land Court to hear and determine the boundary of Moropo-Kurogoiru land and also the boundary of Toukai Komi land;
b.	The Local Land Court will then determine whether the Loubai Gravel pit is within Moropo-Kurogoiru land or Toukai- Komi land.
c.	Once the boundary is identified it should be included as part of the court order;

iii.	The parties to this re-hearing will be between Peter Nabuai and his Kugenonia Clan and Francis Keikei with his Motokono Clan. 

iv.	Naisi Kebori and his Rarogu Moru clan shall continue to exercises their land users’ rights over Moropo-Kurogoiru land.

v.	In additional to the above orders and because of the important of the road project that is currently been carried out by Covec PNG Limited through the extraction of gravel at Loubai river, both parties i.e. Francis Keikei and Peter Nabuai can agreed and share whatever monies as royalties’ withheld by Covec PNG Limited at 50% each. This is to allow the work to continue without any disruption, until the matter is determine by the Local Land Court.

vi.	 In the event both parties [Francis Keikei & Peter Nabuai] don’t agreed then, part (v) of the order won’t be applicable. 

vii.	Appellant Francis Keikei appeal fee of K250.00 be refunded. 
viii.	Appellant Naisi Kebori appeal fee is forfeited to the State.