N2011

PAPUA NEW GUINEA

[In the National Court of Justice]

APP. NO. 734 of 1999

BETWEEN:

SANZE BAFENG
-Appellant-

AND:

KEBI MOSSANGAN
-Respondent-

LAE: INJIA, J.
1999: November 19
December 3, 6, 17

Land - Registered Customary land - Transfer of land under Kotte custom	
- Patrilineal system of land devolution - Validity of	

No cases are cited in the judgment

Counsel:
Appellant in person
Respondent in person

17 December 1999

INJIA, J.: This is an appeal against the decision of the District Court held at Finshafen on 28/10/98 whereby the Court awarded a block of land known as "Deko" to two females, Ms Rai and Ms Mala. Ms Rai and Ms Mala apparently were not parties to the dispute before the Court but the Court found they were the real owners of the Deko land and conferred on them ownership rights. In this appeal, the appellant challenged the decision on the grounds that the decision was against the weight of the evidence and contrary to local "Kotte" custom on land devolution. The respondent is content with the decision and defended the Court’s decision. Upon my request, local expert witnesses on "Kotte" custom were called by both parties to support their respective positions.

The Deko land is a piece of block of land measuring 6.07 acres. On 11 July 1969, the land was surveyed by the District Commissioner at Finschafen and certified by the Land Titles Commission under S.15 of the Land Titles Commission Ordinance 1963 - 1968 as having been duly transferred by its then customary owner one Zake Laukwako Heve, to one Kunec Baiangeng, for a purchase price of $36.00, in accordance with local customary land law. Upon request of the Court, the appellant provided a original copy of the Title Deed issued by the Land Titles Commission on 11 July 1969.

The appellant is the son of one Bofeng. Bofeng is the brother of Kunec. The appellant is therefore a paternal uncle of Kunec. The respondent is the son of one Mossangan whose cousin sister is the wife of Kunec. Therefore, the respondent is a distant cousin of Kunec’s wife. He is not a paternal relative of Kunec. Kunec had no children of his marriage to Mossangan’s cousin sister. But Kunec customarily adopted Ms Rai and Ms Mala as his own. Ms Rai and Ms Mala come from Kunec’s side. The appellant says he was also adopted by Kunec at some stage. The respondent says he too was adopted by Kunec. The respondent also says his father gave Kunec the money to pay for the land purchased from Zake.

Sometime ago, Kunec died. The appellant says, just before his death, Kunec called him over to his hospital bedside and gave him his last parting words and he gave him three things - the original of the owner’s copy of Land Transfer Certificate over "Deko" land, a Kotte-English Dictionary and a coat. These were presented to the District Court by the appellant. Upon my request, they were presented in Court for my viewing. I am satisfied that the Title Certificate is an original copy and that the Dictionary and the Coat appear to be quite used and old. The appellant submits that as the adopted son of Kunec, Kunec gave him the Deko Land by virtue of Kunec’s handover to him of the original Land Title deed in his possession. He also says it is the strict custom of the Kotte people that land always remain with the man’s side; in other words it is a patrilineal society. He says although Ms Rai and Ms Mala are related to Kunec, they have married into other clans and they cannot hold title to "Deko" land. He also says the respondent is a maternal relative of Kunec’s wife and he also cannot hold land belonging to Kunec and his paternal relatives. The appellant produced two expert witnesses on Kotte custom namely Ralai Sakai and Kosani Ebom. Both men are quite old and were former councillors. Ralai was the council president of Finschafen Local Government Council from 1966 - 1974 and had extensive experience in mediating and solving local land disputes in the area. They both said land always remains with the man’s side. In other words, Kotte society is a patrilineal society.

The respondent contends that the Magistrate was correct in vesting the title of the Deko land to Ms Rai and Ms Mala in accordance with the prevailing Kotte custom at that time. He says there is no evidence that Kunec made his last will giving Deko land to the appellant. He called Kotte custom expert witness one Matang Sepe. Mr. Sepe is the chairman of the Provincial Land Mediation Committee and has had extensive experience in land mediation. He said the Kotte custom on land devolution before 1976 was that land ownership remained with the man’s side. In 1976, the law was changed, by a committee of land mediators of which he was a member, to say that the land should be held by the women. In other words, Kotte custom over land was changed from a patrilineal to matrilineal system in 1976. The respondent submits the award of Deko land to Ms Rai and Ms Mala is in accordance with the changed Kotte custom since 1976.

I must first determine Kotte custom on land devolution because the law that should apply in relation to Deko land is Kotte customary land law. Whilst I agree that the Deko land is block land, the original transfer of Deko land from Zake Laukwaki Hene to Kunec was done in accordance with local custom, as evident in the reasons for decision of Senior LTC Commissioner M. Orken dated 11/7/69, who approved the transfer between two natives under S.15 of the Land LTC Ordinance 1963 - 68. 

I am satisfied on the evidence of Ralai Sakai and Kosani Ebom, in particular the clear statement of principles by Kosani Ebom which to some extent is supported by Matang Sepe, that Kotte land is governed by patrilineal system of land devolution and it is a very strong and strict custom which has existed from time immemorial, and survived to this present day. I do not see how a Committee of Mediators can change that customary system in 1976. My own understanding of local customary law is that they hardly undergo revolutionary change from within. Of course a rule of customary law may be altered or outlawed by statute or subordinate regulation. But there is no evidence before me to show that the patrilineal system of land devolution in Kotte society was changed in 1976 to matrilineal system. I am particularly impressed by the evidence of Kosani Ebom on the strong patrilineal system of land devolution among the Kotte. I accept his evidence and that of Ralai Sakai to some extent. Applying that custom, the respondent and clearly Ms Mala and Ms Rai are not entitled to inherit and own "Deko Land" from the late Kunec. The respondent is not a paternal relative of Kunec and Ms Rai and Ms Mala being woemn have both married out to other clans. Also, I am satisfied that the appellant was the sole beneficiary of Kunec’s valued possessions because when he passed away, he gave Deko land and other valued possessions to the appellant. Significant among these were the original copy of the LTC Title on Deko land. 

It is also significant to note the evidence of Ms Rai Bofoube placed before the Magistrate that "when father (Kunec) was alive he made promise with Mossangan and Kebi. Later when he was about to die he made promise to you Sanze." Also when Ms Rail was asked by the appellant "why was it that Kunec when he was about to die at Butaweng Health Centre, he called me and gave his last word and gave me the land paper?" she said "the late Kunec didn’t gave you the land papers, you yourself came and asked for it and so the mother gave it to you." I interpret "mother" to mean Kunec’s wife, who would be related to the respondent and closer to Ms Rai and Ms Mala as maternal relatives. If there was any intention to pass Deko land onto the respondent or Ms Rai and Ms Mala, then "the mother" would have given the Deko land title document to Ms Mala, Ms Rai or the respondent. 

Bearing in mind the method of land devolution at the village level is largely informal, I give due recognition and weight to the significance of Kunec’s handover of his valued possessions before his death to his paternal uncle, namely the appellant. I am satisfied that both Kunec and his wife gave the appellant Deko land to the appellant in accordance with the strict Kotte custom of devolving land under a patrilineal system. 

Finally, I do not see how the Magistrate can explain awarding the Deko land to persons not parties to the Court proceedings such as Ms Rai and Ms Mala in the present case. 

For these reasons, I find that the Magistrate erred in awarding Deko land to Ms Rai and Ms Mala and not the appellant. I quash the decision of the District Court and order that Deko land be given to the appellant. I further order that steps be taken by appropriate State agencies to effect the appellant the sole owner of "Deko" land forthwith. Each party shall bear their own costs.
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Appellant and Respondent in person