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Dau, In re [2016] PGLLC 1 (28 June 2016)

LLC 6 /16

IN THE MATTER OF A CUSTOMARY LAND DISPUTE

Between

Blaise Dau and Baili Bambai for and on behalf of Kikilei clan

And

Raphael Gegelio and John Gidion for and on behalf of Kuruzekuvungu clan.

And

Roy Mangae for and on behalf of Magarugaru clan.

And Moses Gima and Anastasia Ino for and on behalf of Tsinedavui clan
Kimbe : P.M. Tivese Local Land Court Magistrate.
B. Kaikmata Land Mediator.
F.Tenge Ad Hoc mediator

ISSUE: Determination of the ownership right to the Land known as Magaroto Light House?

Legislation cited:
Land Dispute Settlement Act

Cases cited:
Re Hides Gas project land case [1913] PNGLR 303 at 316 and 317.
Tawindi Clan and Kaimari Clan [1997] N1775 pg 7

APPEARANCES: Blaise Dau appearing in person for Kikilei Clan.
: Raphael Gegelio appearing for Kuruzekuvungu clan
: Roy Mangae appearing for Magarugaru clan
: Anastasia Ino appearing for Tsinedavui clan
28^th June 2016

1. The Magarugaru clan, Kuruzekuvungu clan, Kikilei clan and Tsinedavui clan are all claiming ownership of the same customary land known as Magaroto Light House, where a marine light or beacon was erected by the Navigational Maritime Service Authority (NMSA) .The disputed land is situated on Bali Island, administered by the Bali /Vitu LLG, in the West New Britain Province.
   
2. The term land as stipulated under Section 2 of the Land Dispute Settlement Act ,means customary land and includes-
   1. a reef or a bank; and
   2. a house or other structure built on land or over water ; and
   100. things lying on the land or in the water over land, earth and minerals on or under ; and
   4. an interest in land.
      
3. The beacon or Light House is located on the edge of the reef and extends about 200 meters into the sea from Daman Kabakovu rock located on the land. The disputed land boundary starts at Kaiau creek and runs north up the hill to Vatusiana. It then runs easterly straight to the coast line to Nigani Waga creek. From there it runs south to the sea bordering the land on the Eastern side .Then along the beach back to Kaiau creek. The disputed portion of land is approximately three to four hectors. This portion of land is directly opposite the Light House.
   
4. The Bali islanders have always lived and enjoyed a happy life. They are a small community. Their elders have always shared their resources over the fifty to hundred years of their inhabitance of the Island.Vitu Island is another island located some kilometers away from Bali Island. The people from both islands have been traveling to and fro visiting relatives and friends.
   
5. This dispute aroused after the NMSA started investigation to identify the real land owners of the site of the light house in order to pay compensation monies for the usage of the land .The compensation issue have now destabilized this community.
   
6. These four clans have lived on Bali Island more than fifty to one hundred years ago. They know who the land owner was. They also know the history of each clan, how they migrated to Bali island .The land owner decides who resides or uses which portion of land. There have been intermarriages between the members of the four clans, which further cemented their relationships.
   

JURISDICTION.

7. This court has jurisdiction under Section 59 (2) of the Land Dispute Settlement Act. The matter before the court was referred back to the Local Land Court for rehearing after the Provincial Land Court quashed the decision of the Local Land Court on appeal.
   

WHAT STANDARDS DO THE PARTIES HAVE FOR DETERMINING CUSTOMARY LAND OWERSHIP?

8. Customs varies from places to places .The Bali Islanders in West New Britain Province are a Patrilineal society. In determining the ownership of the customary land, the court is bound by the Land Dispute Settlement Act, the customs of the parties to the dispute, and the Principle of Natural Justice.
   

Customary ownership of land on Bali Island in West New Britain Province is determined by the following features:-

a. spiritual sites like stones and trees.

b. ceremonial sites.

9. The Spiritual sites may be in a form of a stone or tree or a creek. These sites are usually located inside a specific customary Land boundary. Each clan would have a legend of how their clan originated and how they relate to their spiritual sites.
   
   10. Ceremonial sites are owned by each individual clan .A ceremonial site would usually be located within the land boundary. This is where their men and boys, women and girls gathered to perform their traditional ceremonies.
       
   11. Cemeteries were not named as a feature to assists in identifying a customary land owner. However, during the inspection of the land boundary, the court was shown a cemetery supposedly owned by the members of the Kuruzekuvungu clan.
       

SUMMARY OF THE EVIDENCE BEFORE THE COURT

12. Interestingly, during the hearing, all three claimants with the exceptions of the members of Tsinadavai clan claimed ownership over all spiritual sites, one of which is the Kurekukungu stone. They all say it is a rat without a tail. They also claimed two mirror stones .These stones are located opposite each other within the disputed land boundary. The only clan which referred to a ceremonial site was the Magrugaru clan.
    
13. Roy Magae told the court that, his clan elders used to have a ceremonial site on the disputed land. This is not being use today.
    
14. In addition to these, the claimants also gave detail evidence of their genealogy. We encounter a problem with genealogy. The names can be easily manufactured .we appreciate that ,names are important to each clan in determining their identity .Each clan did not give detailed evidence so as to explain why a certain elder was named with a certain name.
    
15. For an example, it was given in evidence by the members of Magarugaru clan that, Koroi was the son of Baleki from Kurekukuzi clan which migrated to Bali from Vitu. John Gidion and Roy Magae are his descendants .The members of the Kurekukuzi clan disputed this evidence saying that, there was a Koroi no 1 and Koroi 2.They tried as much as possible to avoid any suggestion that ,they migrated to Bali island.
    
16. Most of the parties to this dispute are members of the SDA church. Belief in spiritual sites and customary ritual was being discouraged by the church. We agreed with this contention because we find it difficult trying to get the witnesses to assist the court to identify a clear process where, the Bali Islanders used, to identify customary Land owners.
    
17. The court called three community elders to assist the court. These men are supposed to be learned men on customary practices on Bali Island. They also failed to assist the court like all other witnesses. We find the genealogy and traditional evidence was not sufficient to assist the court.
    

.

18. The Tsinedavui clan and the Kikilai clan were both claiming through a female linage. This contradicts the structure of inheritance for the Bali islanders, where the tribes claimed land through the male linage.
    
19. The meaning of Tsinedavui is “the mother of Davui”.The spoke woman for Tsinnedavui, told the court, that she shared a land boundary with the members of Kuruzekuvungu clan. She was the only witness during the court hearing. We conclude that, the evidence of the clan Tsinedavui did not disclose any rights to the disputed land.
    
20. After discharging the Tsinedavui clan claim from the dispute, we were left to determine the claims between the Kikilei, Kuruzekuvungu and Magarugaru clans.
    
21. Raphael Gegilio’s mother is a member of Kikilei clan. He told the court that, the land is owned by the Kuruzekuvungu clan and not his Kikilei clan. Raphael Gegilo shed a lot of light on the evidence from Blaise Dau. How could he claim though a woman when, there were men in the like of Raphael Gegilo still surviving?
    
22. We were reluctant to accept the evidence from the Kikilei clan because the Bali Islanders are a patrilineal society and any inheritance of properties must be traced through a patrilineal linage. If this court accepts the evidence from Robert Dau, our decision will have a drastic effect on the patrilineal structure of inheritance of land by the Bali Islanders.
    
23. We noted however that, some members of Kikilei clan were residing on the disputed land and are currently residing on the land today. This is because of the intermarriage between both Kuruzekuvungu clan and the Kikilei clan.
    
24. After we disallowed the evidence from the Kikilei clans claiming through a woman .We were left with the Kuruzekuvungu clan and the Magarugaru clan. Kuruzekuvungu clan told the court they originated from Bali island .They gave a genealogy and presented evidence of how they originated. They allege that, they originated from two generation of spirits.
    
25. This evidence is somewhat difficult to accept .When we considered both evidence from the Magarugaru clan and the Kuruzekuvungu clan we find that, the evidence from the Magaruragu clan was more detailed .Their evidence seem to cover a range of issues .
    
26. The Magarugaru clan disputed the land boundary marked commencing at Kaiau creek. They told the court that their land boundary extent right to Daman Kabakavu.The titled land was a portion from the whole customary land. This titled land boundary is shared with Pokotuna clan at Piñata village .Then it extends to the Kaiau creek. The disputed portion of customary land starts at Kaiau creek and extends to the Seven Day Adventist Church .It further extends to Daman Kabakavu. At Penatobotong, they shared the land boundary with the members of Panagulu clan. This evidence was disputed by the members of Kikilei clan during cross examination.
    
27. Secondly, all four clans did not dispute that, the Luluvai or the Chief Ulevuvu was selected from the Magarugaru clan. This man negotiated with the NMSA and permitted NMSA to build the first light house. Later the light house was removed and relocated to another site.
    
28. Roy Magae’s mother is a member of the Kuruzekuvungu clan. His father is a member of the Magarugaru clan. He said without any hesitation that, the Kuruzekuvungu clan descended from Baleki, who migrated from Vitu island .Baliki committed a wrong and escaped to Nigari Vanga beach. He settled at the Nigari Vanga beach and dug up a fresh water hole .This water hole was later named after him. It was called Kebikeli Kem Baleki, meaning, the water for Baleki.
    
29. The chief from Penatabotong named Ulevuvu met him and invited him and he became his fisherman. Chief Ulevuvu invited him and had him settled on a portion of the disputed land. He also gave him a lady named Tevulai .They got married and resided on that portion of the disputed land.
    
30. Magarugaru clan is the owner of the whole portion of the disputed land passed down through Chief Ulevuvu.
    
31. The members of the Kuruzekuvungu clan are the descendants of Baliki.This evidence was collaborated by Blaise Dau, the spoke man for the Kikilei clan.
    

THE APPLICABLE LAW.

32. We could not arrive at a decision with the evidence we received on the genealogy and the traditional evidence only. To assist us further ,we refer to Justice Amet in the case of Re –Hides Gas project Land case (1993) PNGLR 303 at 316 and 317 .Justice Amet found that genealogy and ancestral evidence were not conclusive of ownership in this modern times.
    
33. I find it true in regard to this matter before us. He went on further to adopt Professor R.D.Cooter ‘s publication titled “Issues in customary land Law” (INA discussion paper No 39) .On page 316 and 317 he adopted eight principles that Professor Cooter discusses in his paper.
    
34. The eight principles are –
    
    1. The adverse possession.

A group that resides upon or improves land for a sufficient time without the permission or active opposition from other thereby owns it. A group that uses land for a sufficiently long period of time without the permission or active opposition from other, but does not reside upon or improves it, thereby acquires a use right in it.

2. Earmarks of ownership.

Land can be only said to ‘belong “to a group when it is shown that either by not challenging it or, to stop others from doing likewise, they show that they exercise controlling interest over it.

3. Last is first.

If land is not used for successive generations, the claim of those further remove from those who vacate it becomes, as the years pass, of diminishing importance.

4. Maintenance of interest in land (or possessory acts)

An interest in land is maintained by building houses and settling on it and by gardening, gazing or burning it off, collecting from it, or forbidding other to occupy and used it.

5. No unqualified right of return.

Once a group has also adorned the ancestral land by cutting all ties and association with it, they cannot return and claimed it at a much later date without having assumed controlling rights to it.

6. Ownership presupposes control.

Ownership implies the power, whether exercised or latent, to occupy and use the land and to stop others doing so.

7. Preponderance of the evidence.

In customary land disputes, the party should prevail whose case is supported by the preponderance of the evidence.

8. Rights to resist.

The extent to which people attempt to return to the land of their ancestors are opposed largely depended upon the extent to which their land has been take over and used by other and the extent to which they have been able to forage a friendly relationship with more now in control of it.

35. We find this case before us is very similar to the Re- Hides Gas Project case supra and we adopt the Cooter’s principles .We agreed that, there are a lot of other circumstances which should be taken into consideration together with the traditional evidence and genealogy to guide the court to determine the owner of the customary land where the Light house is situated.
    
36. In addition, we also refer to Section 67 of the Land Dispute Settlement Act states, “Not withstanding any other law proof that a party to a dispute has exercised an interest over the land then subject of the dispute for not less than 12 years without permission, agreement, or approval of any other person set up a presumption that, interest is vested in the first mentioned party.”This principle of adverse possession is stated in the case Re Hides Gas Project case supra.

37. The court said in the case Tawindi clan and Kaiari clan supra that “The principle of adverse possession under s 67 confers customary ownership right or title over the land by operation of the Law. Re-Hides Gas Project Land case [1993] PNGLR 309 at 316 -317 .It is not merely an “evidentiary aid “to the determination of title over land as suggested in Re Application of Nango Pinzi,at Pg 470.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 have erected. This process of acquisition of title by operation of law extinguishes any existing supposed property rights of any other party.”
    
38. After considering all the evidence covering the traditional, the genealogy and the law we arrived at the following findings of facts-
    
    1. We find that Chief Ulevuvu a member of the Magargaru clan settled Baliki from Kurekukuzi clan on a Portion of land from the disputed portion of land at Penatapotong .
       
    2. Baliki escaped from Vitu Island and Chief Ulevuvu welcome him. He gave him a wife and they had children together.
       
    100. Baliki’s generation have settled on that portion of land for over 50 years.
         
    4. During their occupation of that portion of the disputed land they planted coconut trees, cocoa trees .They got married to members of the Kikilei clan and both clan members continued to reside on the land and carried out development on the disputed land until today.
       
    5. Magarugaru clan never disputed these two clans from the time of Chief Ulevuvu until today. This dispute arose today because of the compensation issue.
       
    6. Magarugaru clan members do not owned any crops or house on the portion of the disputed land, where the members of the Kurekukuzi clan and the Kikilei clans occupied and developed until today.
       
39. We therefore conclude that, the ownership right by the Magarugaru clan has been extinguished by the operation of the Law. Section 67 of the Land Dispute Settlement Act.
    
40. The members of the Magaugaru clan never registered any objection to the occupation and development of the land by the members of Kikilei clan and Kurekukuzi clan, after Chief Ulevuvu settled Baliki on that portion of the land.
    
41. However, we also considered that, the members of Magarugaru clan continued to use the sea and the reef around the light or beacon to fish and continue to do so today.
    
42. Orders made accordingly.