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Same v Lunganga [2011] PGLLC 1 (26 October 2011)

PAPUA NEW GUINEA

IN THE LOCAL LAND COURT AT KONOS.

BETWEEN

GREGORY SAME
KAPARAK CLAN

AND

SAMUEL LUNGANGA
CHICHOM CLAN

KONOS : P. TIVESE LLCM
O. TURAVE Land Mediator
B. KOLOMES land Mediator

26^th October 2011

Civil Jurisdiction –Dispute over the ownership and boundary of the customary land known as Samat- Simberi Island- Tabar group of Islands.

No Case Law cited.

Legislations
S 26 ( a) of the Land Dispute Settlement Act
S 5 of the Customs Recognition Act
S59 (2) of the Constitution of Papua New Guinea

APPEARANCES:

Gregory Same- Kaparak clan,
Samuel Lunganga- Chichom clan

THE CLAIM

1. Kaparak clan and Chichom clan are both claiming ownership over a customary portion of land known as Samat land. This disputed land is situated within the mining lease area of the Simberi Gold mine, in the New Ireland Province of Papua New Guinea.
   
2. The parties to this dispute are “Grey Same appearing for and on behalf of the members of Kaparak clan and Samuel Lunganga appearing for and on behalf of the members of the Chichom clan.
   
3. The Tabar islanders have always live a happy and care free life. They spent most of their time doing gardening, fishing and hunting. When the mining company resumed its operation on the island, it completely changed their life style. Social problems are now on the rise because certain individuals and groups would like to benefit more from the mining royalties than others.
   
4. There are very clear customary processes in place for the people to use in order to determine who the genuine land owners are, but they choose to challenge each other before a introduced court system. In this day and age people should be documenting their history. This will assist greatly in reducing the number of land disputes going before the courts.
   

JURISDICTION

5. This court has jurisdiction under Section 26 (a) of the Land Dispute Settlement Act. This matter went through mediation

and was referred to the Local Land Court for hearing after the disputing parties failed to reach a agreement.

WHAT STANDARDS DO THE PARTIES HAVE IN THEIR COMMUNITY TO DETERMINE THE OWNERSHIP OF CUSTOMARY LAND?

6. Customary practices vary from places to places with regard to ownership of customary land. In the New Ireland Province, customary land is inherited through the matrilineal lineage. The parties and the two land mediators agreed that, the following is the customary process which the parties before the court used to establish the genuine land owner of a customary portion of land.
   
7. In determining the issue of ownership of the customary land, the court is bound by the Land Dispute Settlement Act, the customs that are applicable to both parties before the court .S5 of the Customs Recognition Act and the principle of natural justice under S59 of the Constitution of Papua New Guinea.
   
8. The ownership of customary land in the New Ireland Province, is identified closely with the following features:-
   1. Cemetary
   2. Haus boi (Ceremonial house)
   100. Masalai (spiritual site)
        

1. CEMETARY
   

9. Each individual clan owns a cemetery which is usually located on their respective customary land holding. There are two categories of cemeteries, which exist today. 1. Public cemetery and 2. Private cemetery. Anybody can be buried in a public

Cemetery. A private cemetery is restricted for burial of the members of a individual land owning clan only. The reason for this practice is to identify each clan’s ownership right to that specific portion of customary land.

10. There are exceptions to this practice .The clan leader from the land holding clan may grant permission to any individual who does not own any customary land and have developed a good relationship with his clan over the years to have his body buried on his customary portion of land .He may also grant permission to bury any of their clan’s siblings on his clan’s private cemetery.
    
    2. HAUS BOI (CEREMONIAL HOUSE)
       
11. Haus boi or (Ceremonial house) is usually built on a customary land belonging to each individual clan. For example, clan B can only build their ceremonial house on their own customary landholding.
    
12. There are exceptions to this rule, where an individual, has developed a good relationship with the members of a particular land holding clan, that land owner, or clan leader, may give him, the right to settle and build his ceremonial house on the clan’s customary landholding.
    
13. This user right comes with an obligation for the user to support the land owner with hosting of all his customary feasts. The land owner can evict the individual exercising his user right on the customary land at any time when he fails to discharge his customary obligation.
    
    100. SPIRITUAL SITES – MASALAI
         
14. Spiritual or Masalai sites are located within a customary land boundary of a portion of land. These sites are very special and unique to each land owning clan.
    
15. What I have discussed above is not exhaustive.
    

EVIDENCE FROM KEIS CLAN.

16. Samuel Lunganga is a member of Chichom clan .He told the court that he claimed ownership of the land Samat after a lady named Unais Maris. Unais Maris was married to Semi Borong. He was a member of Marantun clan. Borong and Unais Maris had no children of their own. She was the last surviving member from the clan Keis. The members of Keis clan are the original land owners of the customary land known as Samat .
    
17. This lady Unais Maris adopted Peni Moson a member of Chichom clan .Her husband Semi Borong died leaving her and Peni Moson. Peni Moson left school to take care of Unais Maris soon after the death of her husband and took care of Unais Maris until she died in 1991. When she died Peni Moson and his maternal brothers buried her and also hosted a mortuary feast on her behalf.
    
18. Before Unais Maris died, she transferred the ownership of the Samat customary portion of land to her adopted son Peni Moson. Peni Moson did not just accept the land freely. He paid for the land to Unais Maris and in return she transferred the land to him. When she died, Peni Moson and his family buried her and performed all the customary ritual in her honor.
    
19. The Keis clan owned spiritual sites on the disputed land; they also owned two old residential sites for their elders’. One at Sikuputaet with a cemetery and another old residential site at Puturaleong. They claimed to own the Gargarsabau trees. The bark of these trees swells up whenever a female member from the Keis clan is pregnant.
    
20. The land boundary to Samat Customary land was identified confirmed and accepted by Elias Lova from Vuturara clan, Stanis Pambil and George Taku from Rumerik clan, John Tolubang from Saramages clan, Wasirau from Barewin clan, Engelberth Taus and Engelbeth Ladi both from Kaparak. These are the clans sharing their customary land boundary with Samat customary land.
    

EVIDENCE FROM THE MEMEBERS OF KAPARAK CLAN.

21. Greg Same also claimed to own all spiritual sites within the disputed land as well as the Gargarseba trees. He said whenever, a female member of the Kaparak clan is pregnant, the skin of the Gargarseba trees would break open. He also claimed to own a cemetery located at Perturalego within the disputed land. He further contented that, the last man to be buried in this cemetery was Torobeli, a member of his clan.
    
22. He described the land boundary of Samat land and called three witnesses to support him identified his land boundary. His witnesses are from Berewin clan and Pakinmitris clan. These witnesses were not very helpful because they only head stories about the land boundary but were not actually

present ,when it was demarcated in the presence of Unais Maris and Engelbert Taus. Grey Same himself was not present, he was on the mainland of the Tabar group of islands.

23. He named Engelbert Taus as one of his clan elder. In reply to a question as to who should reside on Samat land he said Unais Maris. He also made a further statement that Unais Maris told Engelbert Taus to reclaimed Samat customary land after she died. This statement was said during cross examination only. He did not give any detail evidence on this issue when giving his evidence in chief.
    

FINDING OF FACTS

24. Both parties claimed to own the spiritual sites on the disputed land and the Gargarseba trees with the old residential sites and a private cemetery located on the disputed portion of land. This made our job very difficult.
    
25. We proceeded to consider the standard customary practice set out on paragraphs 8 to 14 of this judgment. We noted that spiritual sites are unique to each clan and Unais Maris of Keis clan cannot be a care taker of the spiritual sites owned by Kaparak clan as claimed. This assertion is not correct.
    
26. Moreover, there is evidence that Engelberth Taus and Engleberth Ladi from Kaparak clan confirmed and accepted the land boundary which they shared with Unais Maris of Keis clan. We are suspicious about the way Grey Same went about to start this dispute after the death of Unais Maris and Engleberth Taus.
    
27. Finally, there is no evidence from the members of Kaparak clan, to show any special relationship they had with

Unais Maris. She was the last survivor from Keis clan. At the time of her death, none of the members of the Kaparak clan were present to assist the members of Chichom clan and Peni Moson with all the preparations to host the mortuary feast in her honor.

28. In the event that, a last surviving member of a certain clan dies, the individual or the clan that, takes care of the burial of the decease person and hosted the mortuary feast in his or her honor , shall inherit all the deceased customary land holding with any other properties .
    
29. Peni Moso was the only person who took care of all the welfare of Unais Maris, the woman who adopted him. His family members assisted him to bury her and hosted a mortuary feast in her honor. If anybody should inherit the properties from the deceased, it would be Peni Moson.
    
30. Having considered all the above evidence, we therefore, conclude that the members of the Chichom clan have proved their case on the balance of probability. We find that the customary land known as Samat is owned by Keis clan and that the land Samat has been formally transferred to Peni Moso of Chichom land.
    
31. Orders made accordingly