DC1017

PAPUA NEW GUINEA
[In The Land Court of Justice]

LLCr: 03 of 2006

BETWEEN

MASNAWO CLAN

AND

NAYAL CLAN

LIHIR: LAVUTUL

MEDIATORS: AMU.H & S. RAPIS

2006: 31st MAY, 21st JUNE

THE LAND DISPUTE SETTLEMENT ACT – Section 68 Customary Ownership of Land. Lihir is A Matrilineal Soceity in Respect to Ownership of Land.

Both Parties Appeared In Person.

12th December 2008

THE Local Land Court; The matter came before this Court after all attempts at mediation failed to amicably settle the dispute between the disputing parties. The land the subject of the dispute is Taskulintabial situated at Huniho village, Lihir Island, New Ireland Province.

ISSUE:

1.	Whether either party has standing by custom to claim customary ownership of the said Taskullintabial Land.

2.	Whether the transactions for purchase of the said land was done properly in accordance with due process and whether the transaction was properly understood by both parties or not.

LAW

3. Section 68 of the Land Dispute Settlement Act - Determination of Custom.

(1)	Subject to this section, in all matters before a Provincial Land Court or a Local Land 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.

LOCAL CUSTOM

4. The following are instances how land is acquired, and/or inherited in Lihir under its customary land tenure system:

(a).Land Acquired by Birth

5. Prior to going into the evidence we wish to mention from the start that Lihir is a matrilineal society, where land rights are vested in women and their off springs. Land passes on within the clan by birth. All customary land rights and any manner of disposal of land either by sale, transfer of ownership to another clan group or individual and/or in exchange for their land for another piece of land is totally at the prerogative and consent of all the clan members and not any individual member, even if you are the clan leader. A clan leader is only a custodian of all the land that is own by the clan, he cannot dispose off land to his children or any other person(s), unless the clan consents to such. 

(b). Land Acquired by or After the Performance of a Customary Feast In Fulfillment of a Customary Obligation(s).

6. There are also instances where a person(s) or a clan may acquire land through the fulfillment of certain customary obligation(s) through the performance of customary funeral feastings, or play a part in a certain customary funeral feastings may qualify him or the clan to acquire land from the deceased person and his clan. According to Lihir custom a clan or a member of a clan may hosts the following category of feastings, ararum, papeke and tutunkanut in its preceding order.

7. According to Lihir custom any person or any clan wanting to acquire and inherit land belonging to a deceased person will have to perform all three categories of feastings in order to fully qualify him or the clan to claim customary ownership of the land. Such may occur when the deceased owner is the last surviving member of a certain clan. In the event that he dies his children or any other person closely associated to him may perform the above manner of feastings prior to and upon his death. Again the clan must give its absolute approval and recognition to such arrangement.

(c). Land acquired by the performance of Erkuetz (Hanging by the rope of the Wife of a Dying husband).

8. In this instance prior to colonization and Christianity in the event that a man dies his wife/widow will be hung in order that she’ll be buried together with her husband. Her own relatives will perform the hanging in order to cause her death. In return her husband’s clan members will give away to her clan members a portion of their land of their choice. The portion of land cannot be return to its original owners unless they perform Erkuetz. Land acquired by Erkuetz is never reclaimed.

(d). Land acquired by Payment of Cash, Shell money or in Kind.

9. There are instances where customary land is sold off to individuals or other clan groups by its original owners. The payment of cash or shell monies extinguishes their rights as to customary ownership to land. However the clan members must consent fully to such arrangement. 

(e) Significant Land Marks

10. Generally, there are important landmarks, which the clan(s) may rely on in their claim for customary ownership over land that is any remnant of early settlement, ceremonial huts (haus boi), old/ancient trees and burial grounds/cemeteries, sacred sites (masalai), clan’s genealogy (family tree), and other physical evidence available to either party.

11. We bear in mind that about nearly 100% of all customary ownership to land on Lihir is not documented, but are in the mind and heart of the clan members as passed down from generation to generation. (Hearsay). Fortunately strict rules of evidence do not apply in Land Court proceedings.

12. In the matter before us both parties here were given a fair opportunity to prepare and present their case and called witnesses of their choice. The Court also had the opportunity to walk and inspect the boundaries with the assistance and under the directions of both parties. Both clans were given the opportunity to indicate their boundaries based on their local knowledge. This map which the
court will use to support its findings is the map/plan which was done by the Lands Officer, Mr. Vance Gaoro.

EVIDENCE

MASNAWO CLAN

13. The Spokesman for the Masnawo Clan namely Nason Karabus comes form the Masnawo Clan of Kosmaihun village, Lihir Island, New Ireland Province. He claims to know the Spokesman for the Nayal Clan namely Mr. Noah Tawai. He further clarified they are in court over a dispute over ownership of the Taskullintabial Land at Huniho village.

14. He claimed the land in dispute is a customary land. Mr.Nason Karabus stated himself and his brothers are offsprings of Noah Tawai and his Nayal Clan. He further claimed they performed and took part in some of their elders’ customary feastings after they passed away. Nason claimed they supported them by contributing pigs, shell money and cash, including food stuff.

15. He added the chiefs/elders which had died are Deklam, Kiapsai and Seven Arau they recognized and gave us the land. He claimed Seven was the man that marked and allocated the piece of land to them. Nason stated that as a token of appreciation they gave some money to the sum of K250.00 and two (2) fathoms of traditional monies (mis). He claimed they had a very good understanding between them and the elders of the Nayal clan.

16. Nason Karabus recalled in about the month of September 1986 his young brother namely, Elias Karabus came to see Mr. Vance Gaoro in order to demarcate the said land and had the documents regarding the land signed by the elders. He claimed those that signed the documents regarding the said land were namely, Arus Vincent, Apelis Arau, Tawai and Steven Kiapsai.

17. Further he claimed they signed and agreed to the said land the subject of the dispute being given over to them as a token of appreciation for meeting some of their customary obligations to the elders and their clan. He stated the agreement was honored until Kapsai passed away. 

18. Nason Karabus stated they contributed a pig to the Haus Boi (ceremonial hut) worth K1, 000.00 together with fifteen (15) fathoms of traditional monies (mis). He claimed another pig costs twenty fathoms of shell money (mis) and K1, 000.00 in cash. The third pig costs five (5) fathoms of traditional shell money and five hundred Kina in cash whilst the fourth pig costs K300.00 and four (4) fathoms of traditional shell money.

19. He stated only until about the 28th of April 2004 they place a traditional GorGor on the Land as a signed that there was a dispute as to ownership. Upon cross-examination Tawai asked on when they agree to sell the said land, he stated they gave the monies to the elders as a token of appreciation to me and out of goodwill.

20. Elias Arus in evidence stated, the land the subject of the dispute is customary land belonging to their Masnawo clan. He claimed they acquired the land through the performance of some customary obligations to their father and his cousins’ clan (Nayal clan) through feastings. He added they started to assist their father’s clan since 1968 through their customary feastings through to 1975, 1984 and 1999 at Kosmaiun village.

21. In addition he stated they K250.00 in cash and four (4) fathoms of traditional shell monies/mis to the Nayal clan. He further they were promised to be given a portion of land as they were their off springs.

22. He further stated in 1985, he took the papers to Samo village in order for Noah Tawai to sign whilst he was with an old man namely Yioni Zipziple. He later proceeded to Kapit inorder to see Apelis Arau. Mr. Apelis Arau read the documents (Agreement) and endorsed it.

23. Elias stated Arau got up and asked him "why are you disputing the said land. I am now looking after the Nayal clans’ land at Kapit and the land you are disputing over will get you killed and people with poison will kill him over it." 

24. He then stated he found his father Nason Arus and he held his father’s hand and they signed the document containing the agreement. He later found Seven and he signed the documents as well, he added his cousin Seven told him "Cousin you are in my heart and I will not leave you."

25. In his evidence Elias Arau revealed after they all signed the documents they then decided to place the boundaries, he said his cousin Seven led them and divided the said land and placed the boundaries. He added there were two other persons from the Nawol Clan and Masi clan respectively namely, Pitimba and Rapis were present in order to witness the boundaries being divided as their respective portions of land is boundarying the land the subject of the dispute.

26. Elias stated his cousin Seven divided the boundaries and after they had plotted the boundaries he then saw the Lands Officer Vance Gaoro in order to survey and demarcate the land in about April 1996. In 2003 Noah Tawai left Samo village and came back to Hunioh village and settled on part of the said land whilst Nason settled on the portion which he claimed was given to him. 

27. In 2004, Elias stated they had some problems between his brother’s children and Abel Mannogut including Noah Tawai’s children. Nason claimed Noah Tawai send his son Ivan to destroy properties belonging to Abel Mannogut on the land the subject of this dispute. 

28. Upon examination in chief a copy of the record of purchase was tendered through Elias Arus in court without any objections from Noah Tawai, it was marked and label exibit #1A.

29. Finally, Nason Arus of the Nayal clan stated in his evidence that he recognized Noah Tawai to be his brother who is also a member of the Nayal Clan. Noah’s sub-clan is Kuribek. Nason stated his mother was Lisi and his mother was Tilmas they were cousin sisters.

30. Nason stated he knows the land Taskullintabial and he stated his brother Kiapsai led the elders and they performed some big feasts. They held those feasts at Kosmaihun, Hunioho including Taskullintabial land. He added they held a feast over his brother Kiapsai on Taskullintabial land and his children did assist him by contributing monies and pigs towards the feast. He claimed after what he saw his children partake in the feastings he decided to give them the said land. He claimed he told them the land was theirs. He stated it was his children and their mother who assisted him in the feastings and nobody else.

31. Nason added there wasn’t any lady left in their clan in order to take charge of the clan’s land. He said the others left are Seven, Arau and Tawai. He also said in his closing remarks that there wasn’t any other lady that’s why he sold the land to his children.

NAYAL CLAN

32. Mr. Noah Tawai on behalf of the Nayal clan stated himself and Arus hails from different sub- clans. He stated Arus hails from the Lala sub- clan and he hails from the Kuribek sub-clan clan. He claims Nason sold the land knowing the land was not his, he knows the land belongs to the Nayal clan and not the Lala clan. Noah claimed Nason sold the land to his children without his approval and knowledge. He claimed his children registered the land and he was not present when they divided the land and placed the boundaries.

33. Nason claimed there was no custom performed over his grandmother and uncles in order to give them the right to dispose off the land. He denied receiving any of the monies from the proceeds of the sale of the land. He did not know about the monies. He added Arus knew that he did not own the land yet he sold it to his children and placed the traditional taboo "a gorgor" over the said land show his disapproval over the sale of the land.

34. Noah stated had they sat down together and Arus would seek his opinion they would have come to a favorable compromise. H stated he only learnt from some other people that Arus had sold the land to his children. Further, Noah revealed when he moved from Samo village to Huniho village, he did not know that the land was sold to his children and they registered the land. The new boundaries that they placed runs through another piece of land altogether and not the piece of land which he gave to his (Nason Arus’) children and planted cocoa on it.

35. Noah claimed the new boundaries they had placed covered his clan’s sacred spirit place/masalai on the land. He added according to their local Lihirian custom it is forbidden to sell the clan’s sacred spirit place/masalai either to their children or any other clan.

36. Noah disputed the claim by Nason that he did perform custom over his grandmother and uncles, he denied it outright. Noah claimed his uncle Toirau his brother Toile performed custom over him at one of their old hamlets of Sipur in the inter-lands and not at Didimar as earlier mentioned by Nason.

36. Noah revealed there were some other people that assisted with the feastings and they took him to court in order to repay all their shell monies back to them at Samo village. He also claims Arus and his children went to Lihir Gold Limited and claim royalties as compensation for prospecting on the land. He claimed they told lies to him that Elias had picked up the cheque for compensation.

37. Noah emphasized that the elder of the clan must call all relatives and disclosed to them his intentions to dispose off land, if the clan agrees then land goes otherwise the land remains with the clan for the clan. He added the clan leader cannot solely make decisions over land that belongs to the clan.

38. In his supporting evidence, witness Kaminiel Zikzia and also of Kosmaiun village, Lihir hails from the Masnawo clan. He stated from his knowledge as a child, the land Taskullintabial belongs to his fathers of the Nayal clan. The land does not belong to any other person or clan it belongs to the Nayal clan from long ago till today.

39. He denied nobody performed any customary feastings on the said land in order to acquire it. He added all the customary feasts of the Nayal clan was performed by his father only and he claimed he did not see or heard of any other clan to perform custom in order to acquire the said land and take over from the Nayal clan.

40. Second witness, Aisoli Bengal and comes from Samo village and the elder brother of Tawai and he hails from the Masi clan whilst Tawai is from the Nayal clan. Tawai’s father married a lady from the Masi clan which bore Bengal. When the lady from the Masi clan died Tawai’s father remarried to a lady from the Nayal clan which then bore Noah Tawai. 

41. Bengal claimed the said land belongs to the Nayal clan and there aren’t any other Nayal clan members there at Huniho village only Noah Tawai. According to Aisoli Bengal, a lady by the name of Atumro gave birth to two (2) boys namely Toihile and Toihirau and an only female namely Lisi, the mother of Noah Tawai. 

42. According to Bengal, when Toihirau died his brother Toihile did custom and cut a pig over his funeral feast and when Toihile died Miltana cut a pig over his funeral feast and Sigiala did perform custom together with Miltana. Consequently, Tawai has to repay all the shell monies to Sigiala after Sigiala took Tawai to court.

43. Lastly, Aisoli Bengal claimed he performed custom over Tumro and Tawai’s mother, Lisi respectively after they passed away.

FINDINGS

44. Firstly, in dealing with issue No.1, with the evidence before this court it confirms that by custom Taskullintabial land belongs to Noah Tawai and his Nayal clan of Huniho village and not the Masnawo clan.

45. The children of Nason Arus are only off springs of the Nayal clan, they are by custom members of the Masnawo clan. Their father is a member of the Lala sub-clan whilst Noah Tawai is a member of the Kuribek sub-clan which are offshoots of the major Nayal clan of Huniho village, Lihir Island.

46. Lihir is entirely a matrilineal society where land is inherited through the mother and not the father and only under acceptable circumstances land may pass on from the father to his children. [with emphasis]

47. From the evidence, although Nason Arus and Noah Tawai were from two (2) different sub- clans under the major Nayal clan were inseparable since time immemorial. They lived, performed and fulfilled their customary obligations and feastings together under the Nayal clan banner.

48. It is clearer from the evidence that this particular dispute brought about the separation not by the clan but by the children of Nason Arus in their quest for customary ownership to the Taskullintabial Land.

49. Secondly, the second issue relates to whether the transaction for purchase was done properly in accordance with due process and whether all parties including Noah Tawai, Nason Arus and their relatives fully understood the effect and nature of the transaction for purchase or not.

50. From the evidence, there was a transaction done for the purchase of the said land by the children of Nason Arus to the sum of K250.00 in cash plus four (4) fathoms of traditional shell monies/mis paid to the Nayal clan. This purchase was followed by some documents signed as records of the alleged purchase in which Tawai was a signatory.

51. The other persons which signed the document as record of purchase were, Nason Arus, Apelis Arau, Tawai, Seven and Kiapsai. This document was tendered as evidence and was marked and labelled exhibit "1A". This document was accompanied by a map/plan done by the Lands Officer Vance Gaoro. However, there are no dates on the documents to indicate when and where the purchase and agreement were entered into.

52. From the evidence of Elias Arus of the Masnawo clan, the court identified that the purchase and agreement were not done properly with observations to the rules of natural justice. Prior to the alleged purchase and signing of the original agreement, there was lack of consultation between Nason Arus and his children with all members of the Nayal clan including Noah Tawai.

53. In our view, the reasonable man’s standard to any purchase would be for the seller to fully clarify what he was selling and that the purchaser must fully understand what he was buying. 

54. We found there was no collective consultation; Nason Arus failed to fully consult all members including Tawai of the Nayal clan of his intentions to sell the land to his children. Although the court appreciates the fact that his children had assisted him in all his clan’s customary feastings, it is important to have consultations directly with all clan members when dealing with customary land in order to avoid any misconceptions which may result in disputes.

55. The evidence of Elias Arus reveals that the signatures of the clan members were obtained on different intervals at different locations. According to evidence Tawai’s signature was obtained at Samo village whilst Apelis Arau’s signature was obtained at Kapit village and the other clan members including the father of Elias Arus were obtained at Huniho village.

56. It is obvious from the evidence, there is nothing on record to show that all members of the Nayal clan actually met to discuss issues in relation to the sale and purchase of the said land. There was no agreement reached between all parties in relation to the boundaries and actual identification of which portion of Taskullintabial land they were signing out for sale.

57. From the evidence of Noah Tawai, he revealed that the boundaries which they placed runs through another portion of land and goes beyond the piece of land which was given to them by their father (Nason Arus) and the clan, on which they planted cocoa seedlings.

58. The new boundaries also cover important historical land marks of Noah Tawai and his Nayal clan; that is the clan’s burial site, sacred spiritual sites/masalai including the clan’s customary ceremonial site (site where feasts and other customary rituals are held).

59. We found from the evidence of the Nayal clan, that the above forms the basis of their grounds for this current dispute. According to Noah Tawai in Lihirian custom a clan’s land which has on it its historical land marks cannot be sold off to another clan or any other private individual. Such remains the sole property of the clan and passes on from generation to generation.

60. Lastly with the evidence before us the purchase of the land was actually engineered by Nason Arus and his children without giving proper consideration to the views of other clan members. The "general requirement "is for the clan to be informed of their intentions by Nason Arus and his children to purchase the land. All Nayal clan members were supposed to have been given the opportunity to have their say in a duly constituted forum between them and Nason Arus in relation to the sale and purchase of the said land.

61. The clan has to fully understand which portion of land including its boundaries are they consenting to for sale and must fully understand the effect of such sale. In the matter before us the following should have taken place in its preceeding order, 1. Nason Arus and children should register their intention with the Nayal clan leadership and members, 2. Let the Nayal clan to independently discuss the issue amongst them, 3. If the Nayal clan agrees to the purchase, then the clan will determine which portion they will sell, at what price and the clan will demarcate the land and its boundaries, 4. If Nason Arus and the children agree then the value of the land is paid for, purchase agreement is endorsed by all parties before an independent witness which could be an officer of the government or a Lands Officer. Such was not observed and followed which resulted in this dispute.

62. We conclude members of the Nayal clan especially Noah Tawai had "mistaken believe" that he was agreeing to the purchase of the portion of land which the clan had initially given to the children of Nason Arus when he signed the Land Purchase Agreement. It is obvious he did not understand the nature of the purchase as he was not at Huniho village when Arus and his children intended to purchase the land.

DECLARATION OF OWNERSHIP

63. We unanimously agreed that the customary ownership of Taskullintabial Land shall remain with Noah Tawai and the Nayal clan of Huniho village. 

ORDERS

1.	That the sum paid by the children of Nason Arus for purchase of the land shall remain as it is and both parties are directed to meet within two (2) weeks in order for Noah Tawai and his Nayal clansmen to decide on a portion of land to the value of K250.00, plus four (4) fathoms of shell monies/mis to be awarded to the children of Nason Arus.

2.	The boundaries which were earlier demarcated is now revoked and the whole parcel of Taskullintabial land is to remain under the control of Noah Tawai and his Nayal clan.