N1007

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPLICATION OF AMBRA NII ON BEHALF OF HIMSELF

AND OTHER MEMBERS OF THE TOISAP CLAN

Mount Hagen
Woods J

18 July 1991
9 September 1991

REAL PROPERTY - Ownership of land - Disputed customary interest - Appeal - From District Land Court - Power of National Court - Where clear disregard of substantial justice - Land Disputes Settlement Act (Ch No 45).

REAL PROPERTY - Ownership of land - Disputed customary interest - Principles to be applied - Land mediators - Role of - Substantial justice in accordance with Act - Land Disputes Settlement Act (Ch No 45).

PREROGATIVE WRITS - Certiorari - Grounds for - Clear disregard of substantial justice - District Land Court on appeal from Local Land Court - Purpose of Act to be protected - Land Disputes Settlement Act (Ch No 45).

Held

In so far as the National Court has power to review decisions of district land courts and local land courts made under the Land Disputes Settlement Act (Ch No 45) in respect of ownership of customary land, the power is to be exercised with care in a manner which does not defeat the purpose of the Act "to do substantial justice between all persons interested, in accordance with this Act and any relevant custom"; accordingly, the National Court should interfere only where there is a clear disregard of substantial justice.

Discussion of the principles to be applied in determining the customary ownership of land under the Land Disputes Settlement Act and the role to be played by land mediators and the local land courts.

Certiorari

This was an application for a writ of certiorari directed to a decision of a District Land Court which had quashed orders made by a Local Land Court in respect of the ownership of certain land.

Counsel

D L O’Connor, for the applicant.
Respondent’s representative in person.
Cur adv vult

9 September 1991

WOODS J: This is an application for a writ of certiorari to remove into the National Court and quash orders made by the Mt Hagen District Land Court in its appellate jurisdiction made on 29 October 1987 and 9 January 1989. The District Land Court had quashed certain orders made by the local land court in connection with land called Baning near Kudjip in the Western Highlands and the District Land Court made further orders as to the vesting of blocks 1, 2 and 3 of Baning land to the Gupamp people. Certain orders covered the use and occupation of the land by the Toisaps. The names of the clans have been variously spelt as Toisap and Toisamp and Tosamp and Gupamg and Gupam and Gupamka. For the purposes of this decision I will use the spelling Toisap and Gupamp.

This matter first came before the Local Land Court at Minj which heard the claim between the Toisap Clan and the Gupamp Clan for the customary ownership of the Baning land and the hearing was between July and September 1986. The land comprises about 10 hectares and in the decision handed down on 2 September 1986 the Local Land Court divided the land and gave each party a portion. The uncultivated area towards the bottom was declared to belong to the Gupamp clan and cultivated area to the Toisap clan.

From the Local Land Court decision, the Toisap clan appealed; however following the hearing of the appeal before the District Land Court the District Land Court declared that all the land belonged to the Gupamp clan.

The matter came before the Local Land Court under the Land Disputes Settlement Act (Ch No 45). The purpose of this Act is to provide machinery to settle disputes in relation to interests in customary land. Local land courts are comprised of a local land magistrate and a number of land mediators, mediators being people from the area in which the land the subject of the dispute is located. So presumably the land courts are comprised of people who would have a closer feeling and relationship to the land in the area and therefore would be better at solving such disputes rather than having these disputes decided by outsiders who may not understand some of the ramifications of local customs and attitudes. The Act provides for an appeal from the local land court to a district land court but after the district land court there is no right of appeal. However under the Constitution, s 155, the National Court has an overriding power to make such orders as in the interest of justice are necessary and such orders would include reviewing matters that have come before the land courts set up under the Land Disputes Settlement Act. But whilst under its power set out in the Constitution the National Court can overview the decisions of the local and district land courts, because the whole intent of the Land Disputes Settlement Act was to try and have this dispute settled by people from the area who would have a better knowledge of people and customs in the area, the National Court, in so far as it has the power to review such decisions, must exercise this power very carefully and should not defeat the purpose of the Act. So whilst the Act specifically says in s 35(1)(d) that the local land court "shall endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom", this policy should of course be followed by the National Court and the National Court should only interfere if there is a clear disregard of substantial justice.

The evidence before the local land court from the Toisap clan was that originally they did not own this land but they testified that the Baning land was given to them by people from the Wakiam clan in connection with some bride price problem. Thus the evidence of the Toisap clan suggests that the Baning land was not originally theirs but belonged to the Wakiams. This apparently happened some time around 1960 or before. Therefore the Toisaps at no stage could give any history of genealogy to claim ownership of the land, they rely on the Wakiams claim to be the original landowners. On the other hand the Gupamp clan gave evidence with a genealogy going back a number of generations that their people had the land. However the Gupamps give no explanations as to how they allowed the Toisaps to use this land for many years between 1960 and 1985 apart from suggesting that they could not oppose their use because the law of the white man was very strong. There is no documentary or other evidence of this opposition over the twenty or more years and specifically during the 1970’s when around Independence land disputes came to the fore again.

There is reference to a demarcation of the land by a councillor in 1961 at which time the Toisaps were in possession of the subject land. There is no dispute in the evidence that the Toisaps were apparently in occupation of this land from 1960 up until recent times and apparently they made fences and gardens on this land. The suggestion is that it was not until 1985 when the Toisaps apparently commenced to do more substantial coffee projects on the land that this dispute arose. Of course one should also realise that between 1960 and 1985 with the development in the Highlands and the improvement in the road this land being next to the Highlands highway must have increased in value and one cannot help feeling that perhaps it was this increase in value which may have caused the Gupamps to challenge the Toisap’s occupation of this land.

To assist the land courts in determining ownership of land the Land Disputes Settlement Act, by s 67, allows for certain presumptions as to the vesting of interests. That section states:

"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."

So this matter was considered by the local land court and this was of course challenged by the Gupamp people who alleged that they had disputed the Toisap’s occupation of the land ever since after the 1960’s.

It is appropriate at this stage to note the remarks of the members of the local land court when making their decision on this land after hearing all the evidence. First of all, I note the chairman’s observations that: "It is not uncommon in Waghi areas that when a piece of land is left idle or occasionally used for subsistence farming no one seems to mind about it as though no body owned it. But as soon as someone or group started to develop it for economic use there is always someone to dispute it." The chairman then goes on the note that "because of the geographical feature of the land I would have allow the Toisap clan to have the whole disputed land". The chairman further observed that, "Gupamp clansmen were disputing the use of the land so that the Toisap clan could not go ahead with the group coffee project development which was progressing well" and thus suggests that there was no complaint about the land until the Toisap decided to go ahead with the coffee project.

I then look at the land mediators’ comments and one land mediator notes: "I would like the disputed land to be divided Toisap clan to keep the part already developed by them and Gupamp clan to have the uncultivated part." Now this surely suggests from the evidence that the only people who have been occupying and using the land for many years, obviously since 1960, were the Toisap clan. The same land mediator notes that "both sides have lived there side by side for too long and have worked and owned the land thereabouts. It would be against natural justice if one party is removed. Neither party has shown it had an exclusive right and ownership of the disputed land". Another mediator in the local land court made similar comments. Another mediator notes the following: "I have known this land for a long time and both parties are not new to the land in issue. Both have been known to be living there as neighbours, although they are different clans. Both have walked, marked and owned or used the disputed land and its surroundings." But the same mediator notes that: "It would appear that Gupamp clan was the traditional owner of the land in question but due to the constant use and interest shown in the land by the Toisap clan we cannot leave that out altogether."

So some of those words used by the land mediators clearly confirm that on the evidence the Toisap have been using the land for a period which is obviously in excess of twelve years from 1960 to 1985 and the mediators find that there was no opposition by the Gupamps to the use of this land and I note that when they divided the land up that there was some uncultivated area which suggests that the Gupamps had not been showing any interest in the land during all this time.

So why did the district land court go against the quite rational and logical and, can I say, just arguments of the mediators in the local land court. It is quite clear that the district land court magistrate said that even though the Toisaps may have been in occupation of this land for over twenty years this occupation was being disputed the whole of this time. However there does not seem to be any evidence of this. The evidence seems to suggest that some of the land was left unused so if the Gupamps were disputing it why did they not use the area that was not used by the Toisaps. I am not satisfied on perusing the evidence before the local land court that the Gupamps have been actively disputing the ownership of the land instea

d they have been accepting the occupation of the land by the Toisaps.

To consider the principles the court should apply in such customary land disputes I am greatly indebted to the decision and principles enunciated by Amet J when he was acting as a special commissioner of the Land Titles Commission in application N 90/101 in the matter of the Hydes Gas Project land. I wish to quote certain sections in his decision as I feel that they clearly express matters that should be considered as principles by the National Court. His Honour said it is not sufficient to rely upon genealogical ancestral history:

"If that oral history traces the origin of a particular tribe or a people back thousands of years or hundreds of years without taking into account many other factors since that time to the 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. It is important to state what other factors ought to be taken into account in a changing developing nation and land tenure system such as is happening in our country at this time."

His Honour goes on to emphasise that courts and tribunals and commissions dealing with disputes over the customary ownership of land:

"... ought to begin to develop a system of determining ownership of land which takes into account both the traditional values and methods of determining ownership as well as what the developmental aspirations and interests of a wider provincial and national community are to arrive at; principles which will be uniformly utilised and applied consistent with the Constitutional directive to develop a consistent and coherent system of indigenous jurisprudence."

This means that, not only the very traditional and ancestral methods and values are to be exclusively relied upon but, to take them into account together with what are required of the modern developmental interest of the local people as well as the Provincial and National governments on behalf of the people of the Nation as a whole.

His Honour found appropriate principles to consider in any investigation of customary land ownership in an Institute of National Affairs publication being a report by Professor D Cooter titled "Issues in Customary Land Law". I wish to quote his Honour’s restatements of the principles that are derived by Professor Cooter from the cases that he had studied:

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 sufficiently long period of time without the permission or active opposition from others, but does not reside upon or improve it thereby acquires a use right in it.

2. Earmarks 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 the land, and to stop others from doing likewise, they show that they exercise controlling interests over it.

3. Last is First:

If land is not used for successive generations, the claim of those furthest removed from those who vacated 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, grazing or burning it off, collecting from it or forbidding others to occupy and use it.

5. No Unqualified Right of Return:

Once a group has abandoned its ancestral land by cutting all ties and associations with it they cannot return and claim it at a much later date without the agreement of those who prior to that date have assumed controlling rights to it.

6. Ownership Presupposes Control:

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

7. Preponderance of the Evidence:

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

8. Right to Resist Attempt to Return:

The extent to which people attempting to return to the land of their ancestors are opposed is largely dependent upon the extent to which their land has been taken over and used by others and the extent to which they have been able to forge friendly relationships with those now in control of it.

I feel that these principles are relevant in the consideration of the dispute before me now and if one looks closely at the decision and reasons of the land mediators who were people much closer to the land concerned I cannot help feeling that they have unconsciously accepted all those principles without having had them stated in such a way. Whereas, on the other hand, the district land court magistrate has tried to infer that, in spite of the over twenty years occupation by the Toisaps, the genealogical history of the Gupamps was more important. The district land magistrate seems to ignore the realities of the last twenty years.

The reality would be that if you went back long enough in oral history and ancestral genealogy you would find that many different clans may have sat on the ground but it would be impractical to say that such occupation or passage over the land at some time in the distant past by an ancestor gives a person some claim on the land today. The Land Disputes Settlement Act lays down that such vague past connection is not relevant and current incumbency is, according to its twelve years presumption.

In conclusion therefore I feel that the local land court has grasped the principles that should be applied far better than the district land court magistrate and, in the circumstances therefore, the decision of the district land court magistrate is clearly in error and does not do justice to the parties whilst the decision of the local land court was quite clearly the most just decision that could be given.

I therefore order that the decision of the district land court be removed into the National Court the orders of the district land court be quashed and the orders of the local land court be restored.

So ordered

Lawyer for the plaintiff: D L O’Connor.
Respondent’s representative in person.