DC556

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

LLC 07 OF 2000

In the Matter of Magarida Patrol Post Land

BETWEEN

WARATANUMU CLAN OF LARUORO VILLAGE

AND

ORIMU CLAN OF ASIARO VILLAGE

AND

TETELE CLAN OF KURERE VILLAGE

AND

BOI CLAN OF LARUORO VILLAGE

AND

DIADUBU CLAN OF KURERE VILLAGE

AND

MOTO CLAN OF LARUORO VILLAGE
COMPLAINANTS

Magarida: Bingtau, LLM, Orai, LM, & Guba, LM
2006: October 02, 03, 04, 05, 06, 09, 10 & 23

Customary Land Case – Practice & Procedure – Referral from National Land Commission, Customary Land Mediation, Local Land Court

Hearings, Whether a clan has proved customary interest and possession of the disputed land – Customary Title to disputed land is distinguished by operation of the Law – Section 67 of the Land Disputes Settlement Act.

Facts

This is a Local Land Court hearing between seven (7) clans disputing over the customary ownership of the State alienated Magarida Patrol Post Land. This dispute was referred by the National Land Commission to settle a conflict of interest being created by four parties claiming compensation from the State for the said land.

Held

1.	That the Tetele & Diadubu clans of Kurere and Orimu & Labaroa clans of Asiaro Village jointly own the Magarida Patrol Post customary land by operation of the law under Section 67 of the Land Disputes Settlement Act.

2.	Any benefits or compensation payments for the said land be made equally to the said four clan members through their respective clan leaders.

Cases Cited
Re – Gobe Land Case [1993] PNGLR 309
Tawindi Clan – v – Kaimari Clan [1997] N1775
In Re-application of Nango Piuzi [1988-89] PNGLR 464.

Appearances

Mr Gedai Gabina, for Waratanumu Clan of Laruoro Village
Mr Inni Burau, for Orimu Clan of Asiaro Village
Mr Essau Frank, for Labaroa Clan of Asiaro Village
Mr Motto Magini, for Tetele lan of Kurere Village
Mr Todi Wainibo, Mr. Orai Asiloi for Boi Clan of Laruoro Village
Mr Mark Pau, for Diadubu Clan of Kurere Village
Mr Gedion Asiloi, for Moto Clan of Laruoro Village

JUDGEMENT

23 OCTOBER 2006

Bingtau, LLM, Orai, LM, Guba, LM:

This is a Local Land Court hearing over the Magarida Patrol Post State land to determine the customary ownership amongst the seven disputing parties. Preliminary hearings commenced on the 23, 25 and 30 August 2005. Due to no funding for court circuit, the actual trial of the case was delayed till the 2, 3, 4, 5, 6, 9 and 10 October 2006. The members of the court discussed and considered the evidence before the court and the two Ad-Hoc Land Mediators voted their decision on the 23 October 2006. The decision was not announced in court but hand delivered to the parties due to the financial and transport problems faced by both the court and the disputing parties due to the very remote location of the Magarida Court House.

Facts

2. The brief facts are that on the 14 May 1992 in the Gazette No. 38, the Magarida Patrol Post land was declared a National land. Four parties claiming to be customary land owners namely, Mr. Gedion Asiloi and others, Mr. Maniu Frank and others, Mr. Tei Lema and others and Mr. Kororo Verage and others lodged compensation claims under Section 39 of National Lands Registration Commission. However, the National Lands Commission found that the four claims were conflicting or inconsistent therefore referred the dispute to the Central Province Local Land Court under s43(a) National Lands Registration Act 1978 for the conflict or inconsistency to be settled under the Land Disputes Settlement Act, on the 8 of August 1993.

3. The dispute had been pending then till 2005 and 2006 when the Local Land Court attended to it. First mediation was conducted in an attempt to get parties to reach agreement but it failed therefore the case was referred for Local Land Court hearing. The Local Land Court then conducted trial, then land inspection and finally the decision was voted by the two Land Mediators after considering and assessing all the evidences and the physical inspection of the land.

Issue

4. The only issue posed by this case was whether has any clan proven customary interest and possession of the disputed Magarida Patrol Post Land?

Assessment for Evidences

5. The following sections of the Land Disputes Settlement Act were consulted in assessing the seven disputing parties’ evidence to answer the only said issue posed in this case. They are s 67, 68 and 69. It is necessary to quote them as:

"67. 	Presumption as to vesting of interests.
(1) 	Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land, the subject of the dispute for not less than 12 years without the permission, agreement or approval of any other person sets up a presumption that, that interest is vested in the first mentioned party.

"68.	Determination of custom.
(1)	Subject to this Section, in all matters before a Provincial Land Court or a Local Land Court, the court shall determine, on the evidence before it, the relevant customs of any group appearing or represented before it.

(2)	In applying custom the court shall have regard to any guidelines laid down in the regulations and may modify custom to give effect to the guidelines.

(3)	The customs (Recognition) Act does not apply to the determination or application of customs by a Provincial Land Court or a Local Land Court.

(4)	The power to make rules conferred on a Local Government Act, extends to the making of rules declaring what is to be taken to be the custom relating to any matter, and such a rule is evidence in any Provincial Land Court or a Local Land Court of the matters set out in the rule."

"69.	General Law to be applied.
In exercising its jurisdiction, under this Act, a Provincial Land Court or a Local Land Court is not bound by any law other than this Act, that is not expressly applied to it, but shall subject to s 68, decide all matters before it in accordance with substantial justice."

6. Although all the seven disputing parties provided a lot of verbal and documentary evidence to the court, the court read and examined and made the following findings of the relevant facts:

1.	That all the seven disputing parties all came from the Magi Language speaking people of the Amazon Bay Local Level Government Area and most of them are related through inter marriages in the ancestral days, colonial days and up to now too.

2.	That the Magi people are a patrilineal society therefore land and other properties belonging to a family or clan is inherited by the male descendants, therefore it is uncommon for a female to dispute land.

3.	That there is no evidence about tribal wars over land or over reef or any other matters from ancestral times up to now.

4.	That the first people to settle and use the disputed land were the Warata, Boi and Moto clans of Laruoro Village through their grandfathers Moto aware and Hisiu or Visiu who sold the adjoining Iruna. Mission land on 15 July 1893 and the Mogubo Plantation land on 17 November 1908. After the said two joined portions of land were sold the Crown, they have moved away to settle on the Laruoro Island which is about five to six kilometers away from the disputed land which is on the main land.

They had lived on the island and gardened either at Mogubo Point area or at the mouth of the Bailebo River area and not at the disputed land because the Kurere and Asiaro villagers lived and gardened there. Although the Warata clan’s spokesmen’s evidence show that their grandfather permitted the Kurere and Asiaro villagers to settle near the disputed land on the coast on the present two villages’ site, the court rejects that on the basis that, he does not give the exact boundaries of land that their grandfathers allotted to them to use while living on the land because in the normal case of life, when a person gives his land to someone to use then it is common sense that he would mark the boundary within which the person whom he is giving land to use so that, he will not risk losing his own land to the man he is giving land to. Furthermore, there is no evidence of consent checks made on the person who was given or permitted to use land to make sure that, he does not trespass into the owners’ land.

5.	That the second people to settle near the disputed land and use it are the Tetele and Diadubu clans of Kurere village. Their ancestor, Ogela, the first, migrated from Mailu Island due to the Spanish Sailors’ attach on the Mailu Island villages in the 1600 and others joined him to live near the mouth of the Kurere river then moved to the present site. A Kurere villager jointly with a Laruoro, Vovoro and Ainiuoro villagers have sold the adjoining Iruna Mission land and part of the Magarida land on the 22 April 1915. Again on the 27 August and 5 September 1962, a Kurere villager and Asiaro villager have jointly sold part of the Magarida land to the Crown. There is no evidence that the Asiaro villagers or the Laruoro villagers or the Wouoro Villagers have disputed with them and fought them to chase them out of the land. They have lived on the disputed land undisputed up to now. They have coconuts and mangoes grown on the land to this day. They also have a grave near the Magarida Airstrip.

6.	That the Labaroa and Orimu Clans of Asiaro Village were the third people to join the Kurere Villagers who were already living near and using the disputed land. They did not dispute with the Kurere villagers and chased them out nor the Kurere villagers too did not chase the Asiaro villagers out, they happily lived together and used the disputed land in common. The court rejects the evidence by the Orimu and Labaroa clans that their ancestors lived on the mountains and looked down to the coast on the disputed land. If they saw smoke coming up, they would come down and fight with these people and chase them off because there is no evidence of whom they fought with and chased them off. If it was true they would have come and chased off the Kurere villagers, then they would not be living there now.

Furthermore, there would be evidence of them chasing off the Laruoro villagers or others not involved in this land case. The exact dates when the Asiaro villagers have moved to the present site is not known but it could have been anytime between 1916 and 1962, as the patrol report of a Mr. E. N Bastard Acting A.R.M of 2 April 1916, produced in Tetele clan’s evidence shown and the purchase document of 27 August and 5 September 1962, produced in Diadubu and Labaroa Clans’ evidence show. On the 27 of August and 5 of September 1962, a Kurere villager and Asiaro villager have sold part of the Magarida land to the Crown.

7.	The land purchase document used by the Colonial Administration in Papua New Guinea to get purported customary land owners to sign and sell land to the Crown or State is not in itself a decision of the Provincial Land Court or a Local Land Court or the Land Titles Commission as specified under s 27(4)(a)(b) Land Disputes Settlement Act therefore this court will not automatically take juridical notice of them under s 70(a)(b) of the Land Disputes Settlement Act but are subject to prove by the vendors descendants that they have customary interest and live near the land or have physical possession of the land, because the purchase documents are not judicial decision but only the Colonial Government administrative land sales and Purchase Agreements executed under the Land Ordinance.

Having assessed and found the facts as set out above, the court found the principle of adverse possession as provided under s 67 of the Land Disputes Settlement Act which confers customary ownership right or title over the land by the operation of the law applies in this case. The said principle was stated in the case of Re- Hides Gas Project Land Case [1993] PNGLR 304 at p. 316-317 by Amet J. Then it was applied in many other cases including Injia J, in the unpublished National Court decision in Tawindi Clan – v – Kaimari Clan [1997] N1775, where he stated that:

"It is not merely an evidentially aid to the determination of title over land as suggested in Re – Application of Nango Piuzi [1988 – 89] PNGLR 464 at p. 170 but also the use of the land over a period of more than 12 years without opposition confers that right of title by operation of the Law. Upon the expiration of 12 years the person is the absolute owner of the land which includes all improvements on the land which they erected."

7. When applying the said principle of adverse possession the Diadubu and Tetele clans of Kurere village and the Labaroa and Orimu clans of Asiaro village have been living near the disputed land, used it and have physical possession of the land than the Warata, Moto and Boi clans of Laruoro village for more than 12 years since 1915 and 1964 as shown in the purchase documents of Magarida. The Laruoro villages have never disputed or opposed the Kurere and Asiaro villagers living near and using the disputed land up till now.

8. Even the Asiaro and Kurere villagers have lived near and used the disputed land and took physical possession of the land together in common use since 1915 or 1916 to 1964 and up to now without any arguments or opposing each other. They peacefully have used the land in common for more than 12 years up to now.

Conclusion

9. Therefore the final analysis of the case is that under s23(3) of the Land Disputes Settlement Act the majority vote of two Ad-Hoc Land Mediators decided that for all the findings set out above the disputed Magarida Patrol Post customary land interest is vested in common in the four clans namely the Tetele, Diadubu, clans of Kurere village and the Orimu and Labaroa clans of Asiaro village by the operation of the Law under s 67 of the Land Disputes Settlement Act. Then it follows that the former customary interest in the said disputed land from the Warata, Boi and Moto clans of Laruoro Island village are extinguished by the said same s 67 of the Land Disputes Settlement Act.

10. Therefore the disputed Magarida Patrol Post customary land ownership is jointly awarded to the Tetele, Diadubu, Orimu and Labaroa clans of Kurere and Asiaro villages. Further any benefits or compensation payments for the said land be made equally to the said four clan members through their respective clan leaders.

Court orders accordingly.

Mr Gedion Gabina, for Warata Clan
Mr Inni Burau, for Orimu Clan
Mr Essau Frank, for Labaroa Clan
Mr Motto Magini, for Tetele Clan
Mr Todi Wainibo/Mr Orai Asiloi, for Boi Clan
Mr Mark Pau, for Diadubu Clan
Mr Gedion Asiloi, for Moto Clan