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Tinetalgo Clan v Tiengawom Clan [2020] PGLLC 1; DC4069 (27 August 2020)

DC4069

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING ITS LOCAL LAND COURT JUSRISDICTION]

LLC 01 of 2020
BETWEEN

KUMUKA FAMILY

AND

BAKIRI FAMILY

AND

LIMBAI FAMILY

BUIN: Bruce. Tasikul Chairperson
Andy Foster –Land mediator
Steven Tsiruru-Land Mediator

2020: 23^rd June,06^th July,07^th July,08^th July, 27^th August, 2020
    

Civil- Land Dispute Settlement Act-Application to determine customary ownership of customary land- Application of customs and

Cases Cited: Re-Hide Gas Project Land [1993] PNGLR 310

References; ss 26

REASON FOR DECISION

27^TH August, 2020

1. By the Court: This matter was referred to the Local Land Court for hearing after the mediation failed. We are satisfied that we have the jurisdiction under section 26 of the Land Dispute Settlement Act to hear and determine the issue of ownership.
   
2. The disputed land is situated at Kokopo village, Makis constituency, Buin District, South Bougainville in the Autonomous Region of Bougainville.
   
3. There are three disputing parties who are claiming ownership to this particular land. They are the Kumuka family who are represented by Justine Kaupa as their spokesman. The Bakiri Family who are also represented by Sylvester Pomai as their spokesman and the Limbai Family who are represented by Jelvin Dissing as their spokesman.
   
4. The disputed land is known by the parties as Pupuono while one party refer to it Bagari.
   
5. We do not intend to go through all the evidence presented in court, however, we will summarized them and if there is a need to refer to any of the evidence we will do so.
   

BAKIRI FAMILY EVIDENCE

6. The Bakiri Family lay claim to ownership by presenting their historical and genealogical accounts based on their history, genealogy, customs and landmarks. Sylvester Pomai gave evidence that the disputed land is owned by his ancestor namely, Bakiri. He told the court that Bakiri is from the Laitaro clan. He had a brother Kepuama. They were the only two brothers. His brother Kepuama got married to Uei. Bakiri went to a village called Topuauai and got married to a widow called Natokei.
   
7. Bakiri did not have any children of his own with Natokei but he looked after the four children from Natokei previous marriage with her deceased husband Ousi. His brother Kepuama was also married to a Uei whom they have six children.
   
8. He named them as Komee, Baubake, Uatei, Minra, Koiai and Kaire. Both Koiai and Kaire never got married until they died, whereas Minra went to Shortland and got married there and also died there. While Baubake didn’t have any children. However, Komee and Tapurui had a son call Kamuai.
   
9. Kamuai then had a daughter called Linta. She (Linta) gave birth to twelve children. Ten were male and two female. He named them as Kauai, Kongkoma, Limbai, Saveke, Nanei, Kone, Aroako, Karai, Maraka, Amuri, Munare and Itarua.
   
10. He further told the court that Kongkoma also had nine children, four male and five female. He concluded his genealogy by telling the court that Linta was the only female in his family tree and so Kamuai was the last person within the Laitaro clan and he gave all the authority and ownership to the Laitaro clan’s land to his only daughter Linta and not the Koripea Family or Limbai Family.
    
11. Sylvester further told the court that the disputed land Pupuono share the secondary border with the land Unui owned by a Dominic Mitori from the north. From the west he shared the border with Ninamo and from the east he share the common border with Lonraro owned by Siko and from the south he share it with the land known as Unin.
    
12. He further testified that they have various landmarks like tress such as tolas, galip nut, betel nuts and bamboos. He also told the court that they have special spot that his ancestors set animal traps.
    
    13. He further testified that the disputed land has been used by his ancestors for hunting. Even today they still used it for hunting. He further stated that there was a customary rites/feast [posmotem] conducted by Mainau and Amuri when Bakiri died. This involve a pig and mimis (aputa) traditional money. The same was done by Ukauka when Amuri and Mainau died. This also involves a pig and mimis. This was also done when Ukauka died Nunu and her sister Tuume did the same customary rite or feast called posmotem. This also involves a pig and two mimis.
        
    14. When Lausi died Nanei with his two brothers Morita and Maraka hosted a big feast as the final customary rites for these following elders, Bakiri, Mainau, Amuri, Ukauka, and Lausi. This was held at Bambamtu.
        
    15. Sylvester further gave evidence that before the Bougainville crises their family had been collecting fees or money from tourists that visited the site known as Japanese Admiral Yamamoto plane that crash on that particular land. He also tenered to court an agreement signed in 1988 between Admiral Yamamoto Association of Nagaoka, Japan and Luke Kangkana, Dr Joe Banakoiri and Christopher Kongkoma on behalf of the Landowners and witness by the National Minister for Culture and Tourism Hon. Albert Karo. The agreement was for the construction of the road to the crash site, erection of a sign board and a plaque at the entrance of the road.
        
    16. The agreement was also for the establishment of a trust fund for the land owners and the removal of a left wing of the crash Yamamoto plane to Japan. He stated that when this agreement was signed none of the Limbai Family, Laus Family or Koripeu Family disputed the agreement.
        
    17. He further stated that in 1989 the Bakiri Family signed a second agreement which he also tenered in court. The agreement was between the Admiral Yamamoto Association of Japan and the Land owners of Kokopo village, Buin. The people that signed on behalf of the land owners were Luke Kangkana, Christopher Kongkoma and Edward Okuau. It was also witness by Joesph Mokuma and Jan Tenevi on behalf of the Provincial Government and Hon Premier Joesph Kabui.
        
    18. Sylvester further told the court that during the shipment of the left wing of the wreckage they were taken to the National Court and none of the current disputing parties assist them. His Bakiri Family contributed K9500.00 for the shipment.
        
    19. He concluded that when all the development to the crash site of this Yamamoto plane wreckage were taking place such as construction of the road, erecting of sign board and collecting fees from tourist none of the other disputing parties were involve.
        
    20. He called three other witnesses who gave evidence to support his claim, namely; Edward Ninamo, Dominic Mitori and Raphael Siko. Most of their evidence were very brief and of not much of assistance. They basically confirm to the court that each of them share the common borders with the Bakiri Family.
        
    21. This is basically the summary of the Bakiri Family, evidence.
        

KUMUKA FAMILY EVIDENCE

22. On the other hand the Kumuka Family also laid claim to customary ownership of Pupuono land. However, they claim that this land is known to them as Bagari. They also presented their history, genealogy, land marks and called witnesses.
    
23. The first witness and spokesman Justine Kupau told the court that Bagari land where the Yamamoto plane crash lays is owned by the Kumuka Family. When Kumuka died the land was passed on to his son Lia. When Lia died the land was passed on to Koripeu. He further stated that Korepeu was already a grown up man when both Maraka and Poruporu show him the land. During that time Poruporu was looking after the land.
    
24. The witness stated that he is the descendant of Korepeu. He was still at school when Maraka was looking after the land. He was also shown the boundary to the land. All this was recorded by Toumai on paper and tape recorder.
    
25. He further told the court that when Maraka died, Kamou told his sister Onai to go and see Toumai to show them the land. In 1988 Kamou shows them the land and boundary. He told them that the land where Yamamoto plane crash site is owned by the Kumuka Family. He also told the court that at one time Kamou went to see Luke Kangkana to discuss about the land and Luke got angry with him.
    
26. He further stated that they shared the common border with Konou on the northern side, and then on the southern side they share the border with Limbai and on the eastern and western side with Aabe. The named Bagari means a small creek. It is a restricted area for the Kumuka Family only.
    
27. Robert Tokura was call as a witness who gave evidence regarding the boundary mark. He confirms that Bagari land is owned by the Kumuka Family under Toumai, Koripeu, Akonoi and Uketu. He shares the common border with Bagari land from the northern side.
    
28. Another witness Joseph Labon told the court that his Ave family shared the border with the Kumuka family on the western side of the land Bagari.
    
29. Witness Mathew Korimaka also gave brief evidence just to tell the court that he was told by Limu that the land Bagari is own by Kumuka Family.
    
30. This is basically the summary of the Kumuka Family, evidence.
    

LIMBAI FAMILY EVIDENCE

31. The third party which is the Limbai Family also claim ownership to Pupuono land through presenting their history, landmarks, geonology and also calling of witnesses. Jelvin Dissing gave evidence that his ancestor Bakiri from Laitaro clan owned the disputed land. Bakiri was married to Natokei from the Topouai clan. They had four children namely; Mainau Amuri, Kongkoma and Minou.
    
32. When Bakiri died his children took over the land. When his other children died, Mainau inherited the land form his father. When Mainau,s children died his uncle Lausi was given the ownership of the land. Mainau vested the authority and power to Lausi over the land. When Lausi died his son Limbai took over the land. The witness told the court he is Limbai from the fathers, s side and Bakiri.
    
33. He went on to say that at the end of WW2 a patrol officer named Mr Coll with a Francis Paupake came to Kangu and asked the village elders where the Yamamoto plane crash site was. The village chief’s namely Nanei, Poruporu, Koripen, Maraka and Toumo told them that the plane crash at the Limbai land.
    
34. That time Toumo was a Tultul and Nanei was Luluai. He continued to tell the court that the land is owned by Bakiri. They share the border with Uniu and on the western side they share it with Aape and Ninamo. On the eastern side they share it with Loloro and on the southern side the share it with Uniu again.
    
35. He also told the court that they owned properties and on the land such as bamboo, buai, and tree fruits.
    
36. The Limbai Family called Nick Topiru as their witness. His evidence was very brief. He told the court that Pupuono land has three blocks. First block is owned by Mannanu, from the Kaganamo clan, the second block by Paupeta from Tugiogu and last block is owned by Bakiri. He told the court that Bakiri is from Tarikei clan.
    
37. This is basically the evidence presented by the Limbai Family.
    

INSPECTION OF THE DISPUTED LAND AND BOUNDARIES

38. After the hearing was completed the Local Land Court had the opportunity to physically walked the boundaries and make general inspection of the disputed land. Each party as possible identified their boundaries, ancestral sites, land marks and other features on the land.
    
39. We observed from the parties that some of the landmarks identified to us seem, the same, which each party are claiming ownership over.
    

FINDING OF FACTS

40. After considering all of the evidences and physically walking the land , we found the following facts;
    
    1. The disputed land is around five (5) to six (6) kilometres from the main Buin to Siwai highway road,
    2. We found that there are no improvements or development, like cocoa and coconut plantations or food garden, on the disputed land, the nearest food gardens and plantations are some kilometres away from it;
    3. We found that there are no permanent structures like buildings on the land;
    4. We further found that the land is a mass jungle used by the parties themselves for hunting, collecting of wild nuts and other activities like harvesting timbers or bush materials for their houses;
    5. We also found that the Admiral Yamamoto plane crash lies on Pupuono/ Bagari land which is the only economic activity which is a tourist site.
       

LOCAL CUSTOMS AND THE LAW

41. Customary land disputes are not subject to any laws except the Land Dispute Settlement Act, 1975 and the relevant customs where the disputing parties comes from. However, customary laws are not usually found in written form. Accordingly they are often difficult to prove or discover. Before we further explore the evidence it is important that we understands the customary practice of this society in relation to customary land.
    

LOCAL CUSTOMS

42. Buin is a patrilineal society where land is inherited or passed on through ones father. However, there are some exception where customary land can be inherited or passes on through;
    
    1. By what is known as Kasinomu whereby the principal land owner gives a person(s) permission to settle on his land and when the principal landowner dies, then that person(s) must perform customary rites by killing pigs and contribute towards the landowner’s feast;
    2. Secondly, through what is called Agoto. This is where the father gives his daughter land. Normally, it is given in times of marriage. It is when the principal landowner clan head passes the land or anything above the land to a woman marrying to another clan. The son then cannot claim the land back;
    3. Land can also be inherited through fights, which is known as Kete. This is when a clan wins the tribal fights. But this is less common;
    4. Land can also be owned through purchase from customary land landowners.
       
43. Though not exhaustive, the above principles are basically relevant customary practice in the Buin society.
    
44. Apart from the local customs, the Land Dispute Settlement Act, 1975 is the only relevant legislation that governed customary land dispute.
    

LAW

45. Relevant provisions of the Land Dispute Settlement Act, 1975 are: Section 35 (1) (d) charge the Court to endeavour to do substantial justice between all parties’ interest with the Act and customs. Section 39 provides for orders to be made taking into consideration includes customs as to:-
    
    1. the exclusive use or possession of the land,
    2. the disposal of the land or an interest in it,
    100. the use or possession of land for limited purposes,
    4. the growing or harvesting of garden crops and trees crops,
    5. the exclusive use or possession of trees or improvements on land;
    6. and the use or possession of trees for limited purposes;
    7. the fishing, farming or grazing of animals; and
    8. the hunting or gathering of animals or vegetable matter; and
    9. the collecting or mining of earths and minerals permitted by law; and
    10. passages or landing places
        
46. Section 67, set up a rebut table presumption that most the dispute interest in a person who has exercise that interest for a period of not less than 12 years It provides :-
    
    1. not with standing any other laws, proof that a party to a dispute has exercise an interest over the land the subject to a dispute for not less than 12 years without the permission, agreement or approval for other person set up a presumption that the interest in rested in the first party.
       
    2. Where a presumption is set up under sub-section (1) it may be rebutted only by evidence leading to clear proof that the interest is rested in some other person.
       
47. Apart from the above provision under the Land Dispute Settlement Act, a number of cases have expounded to deal with these issues For instance in Re-Hide Gas Project Land [1993] PNGLR 310 Amet J espoused certain principle to assist the court in resolving customary land dispute. These principles are ;
    
    1. Adverse Possession- A group who resides upon or improves land for a sufficient time without the permission or active opposition from others thereby owns it. A group that uses land for a sufficiently long period of time without the permission or active opposition from others but does not reside upon or improve it there by acquire the use right in it.

2. Earmark of ownership:- Land can only be said to belong to a group when it is shown that either neighbouring groups acknowledge their claim by not challenging it, or by their ability to occupy and use that land and to stop others from doing likewise, they show that they exercise controlling interest over it.
   

100. Maintenance of interest in land:- An interest inland is maintained by building houses and settling on it and by gardening, grazing or burning it off, collecting from it or forbidding others to occupy and use it.
     

4. Ownership presupposes control:- Ownership implies the power, whether exercise or latent to occupy and to stop others from doing so.
   
5. Preponderance of evidence:- In customary land dispute the party shall prevail whose cases is support by the preponderance of the evidence.
   

48. This are some of the laws and principles governing customary land dispute which this court would relied on in determine each competing claims by the three disputing parties.
    

APPLICATION OF THE EVIDENCE AND FINDINGS TO THE CUSTOMARY PRINCPLES [CUSTOMS] AND THE LAWS

49. We now turn to consider the competing claims of each party. Firstly we must say at this juncture, that like in most customary land disputes, the parties have always placed a lot of emphasis on their respective oral histories and genealogy in their attempt to prove ownership.
    
50. For instance, in this present case the Bakiri Family and the Limbai Family are claiming the land Pupuono is owned by their ancestor Bakiri. Whereas the Kumuka Family are claiming this land as Bagari whom is owned by their family through Kumuka and then passes on to Lia and then to Koripeu.
    
51. Both the Bakiri Family and the Limbai Family are claiming ownership to the land through Bakiri, the principal land owner. Limbai Family claims they are from the father’s side while the Bakiri Family are from the mother’s side. The Limbai Family through witness Jelvin Dissing told the court that Bakiri had four children from his marriage with Natokei.
    
52. While the Bakiri Family through their witness Sylvester told the court that Bakiri did not have any children with Natokei, but adopted Natokei four children from her previous marriage with Ousi. [Deceased]. There seems to be inconsistencies to their evidence. So, which story we are to believe. The Limbai Family further told the court that when Bakiri died the land was passed on to his children, of which one is Mainau. And when Mainau died his uncle Lausi inherited the land, which the Limbai Family are currently from that side of the father and Bakiri.
    
53. The Bakiri Family further told the court naming all their descendent from Bakiri, s brother Kepuama to his six children to up to the time of Kamuai. He said Komee and Tapurui had a son Kamuai. Kamuai had daughter Linta which gave birth to twelve children. Sylvester Pomai told the court that Kamuai was the last of the Laitaro clan so he gave his only daughter Linta the land. If this piece of evidence is true, then yes it is consistent with the local custom as land can passes on to a daughter of one.
    
54. Witness Nick Topiru who gave evidence for the Limbai Family told the court conflicting evidence saying that Bakiri is from Tarikei clan, whereas, both the Bakiri Family and Limbai Family maintain that Bakiri is from Laitaro clan.
    
55. The Kumuka Family maintained that the Bagari land is owned by the Kumuka Family which was passed on from their ancestor to his son Lia, and then on to Koripeu.
    
56. However, the question to ask is how important are these historical event in today’s world where there are no proper records. How can this evidence be proven?
    
57. We totally agreed with what Justice Amet stated in the case of Re- Hide Gas Project Land [1993] PNGLR 30; whilst genealogy of ancestral origin might well have in the past been conclusive evidence of ownership; I am of the view that is not the evidence that is to be relied upon to confirm ownership at the present time.
    
58. He continues to say: If that oral history trace the origin of a particular tribe or people back thousands of years or hundreds of years without taking into account many other factors since that time to time of the dispute it would make determination of ownership of land totally meaningless if there had been numerous other intervening factors between the origin of that group of people to what the present circumstances are;
    
59. We agreed with what his honour alluded, that is because of various reasons. One very obvious one from our view is that oral history and ancestral genealogies are very easy to change. Some of the histories are just myth. Therefore we will not only depend on this evidence are lone, but we will accept them as being relatively important as they go.
    
60. The Court also physically inspected the disputed land. Each parties show the court their respective land marks and other features. We observed that some of this land marks like bamboo trees or galip trees may have been recently planted or they may be wild trees which are not owned by anyone or parties. This is because some of these landmarks don’t have names as indicated by the parties.
    
61. During the inspection of the land we noted that there are no improvements or developments on the disputed land. The disputed land is a large tract of land surrounded by thick forest. We observed that the land has been commonly used by the parties themselves for hunting, collecting of wild nuts, harvesting of bush materials for their house and other activities.
    
62. We also noted that the Admiral Yamamoto Japanese plane wreckage lies on the disputed land which now has brought about this dispute amongst the parties.
    
63. Because of this war relic or this Admiral Yamamoto plane crash site on this disputed land, the parties have been having an on-going disputed over this crash site.
    
64. The Kumuka Family told the court that in 1988 Kamou told them that where the Yamamoto plane crash site is belongs to them, the Kumuka Family. Evidence by Kumuka Family presented said that when Kamou went to see Luke Kangkana about this issue of the plane and he got angry with him.
    
65. The Limbai Family through their witness also told the court that at the end World War 2 a patrol officer by the name of Mr Coll and a Francis Paupake asked the village elders of where the Yamamoto crash site is and they were told that it was at the Limbai land.
    
66. The Bakiri Family on the other hand also told the court that in 1988 before the Bougainville crises, an agreement was signed between Admiral Yamamoto Association in Nagaoka, Japan and the Land owners for the construction of the of an access road to the crash site, erection of a sign board and a plaque at the entrance of the road. They further told the court that a second agreement was 1989. Both of this agreement was tenered in court as exhibit.
    
67. The Bakiri also told the court that during the signing of these two agreements none of the parties disputed them. They told the court that they have been collecting fees from the visiting tourist since then.
    
68. When cross examined by the parties why they didn’t dispute the two agreements, they told the court that they did not have any educated person at that time.
    
69. We consider the principle of adverse possession discus by Amet J which he states; a group of who reside upon or improves land for a sufficient time without the permission or active opposition from others there by owns it. A group that use land for sufficiently long period of time without permission or active opposition from others but does not reside upon or improve it thereby acquired the use right in it.
    
70. Applying this same principle on the present case, we consider that the Bakiri Family has been actively involved in the development of the land by building access road to the crash site, constructing of sign board and collecting fees from tourist, without any opposition from the other parties.
    
71. Let us make mention here that the agreements that were signed between the Yamamoto Association in Nagaoka and the Landowners at that time was never been challenged. We are 100% convinced that before any agreement is signed between the land owners and the State or any party, there is always a land investigation report from the Government. None of the parties presented any land investigation reports, apart from this two agreements tenered by the Bakiri Family. We consider this two agreements to be very important.
    
72. The two agreements were witness by the government representative which indicated to us that the landowners were identified before the agreement was signed.
    
73. However, having said that we noted that the Bakiri Family has not clarified to this Court under which clan or family the signatories to the two agreements represent. For instance in the first agreement signed on behalf of the Landowners were Christopher Kongkoma, Luke Kangkana and Dr Bana Koiri. Which clan or family group does this individuals representing when signing of the agreement? This also applies to the second agreement.
    
74. Despite, this vital clarification we consider that because the Bakiri Family had in their possession this two agreements therein represent their family.
    

BOUDARIES

75. There was no issue with the boundaries, as the parties understand and know where their respective boundaries lie.

CONCLUSION

76. We will therefore not reply on historical and genealogical evidence alone but take into consideration these factors we mentioned herein. We also consider their respective customs and we are convinced that both the Bakiri Family and the Limbai Family have a better claim of ownership through their ancestor Bakiri. The Bakiri Family through the female linage and the Limbai Family through the male.
    

ORDER

77. We therefore make the following orders;
    
    1. We declared that the customary ownership of the land Pupuono now rest with the Bakiri Family and the Limbai Family;
       
    2. The Kumuka Family shall continue to exercise their usage rights over Pupuono land;
       
    3. This order does not restrict all the parties coming together and forming one landowners association to further enhance the development of the land especially in relation to the Yamamoto plane crash site.
       

Dated this the 27^th August, 2020

Bruce Tasikul Local Land Court Magistrate {Chairman).
Andy Foster Land Mediator.
Steven Tsiruru Land Mediator.