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Salub v Luedi [2016] PGNC 319; N6519 (11 November 2016)

N6519

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 115 OF 2013


GADOR SALUB FOR HIMSELF AND ON BEHALF OF
GORIBA CLAN OF RAI COAST, MADANG PROVINCE
Appellant


V


MAKURAI LUEDI AND URUS LUEDI AND
PUSEIR CLAN OF RAI COAST, MADANG PROVINCE
First Respondents


JOSEPH GABUT, BENEDICT BATATA & KUTT PAONGA, COMPRISING THE RAMU NICKEL/COBALT
SPECIAL LAND TITLES COMMISSION
Second Respondents


RAMU NICKEL/COBALT SPECIAL LAND TITLES COMMISSION
Third Respondent


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent


Madang: Cannings J

2015: 11 August

2016:11 November


APPEALS – appeal against decision of Special Land Titles Commission regarding ownership of customary land – Land Titles Commission Act 1962, Section 38 (right of appeal) – whether Commission’s decision was against the weight of the evidence.


The appellant appealed to the National Court against the decision of a Special Land Titles Commission declaring that four blocks of customary land were exclusively owned by the first respondents’ clan. The appeal was filed under Section 38 of the Land Titles Commission Act on the ground that the decision was against the weight of the evidence.


Held:


(1) To prove that the Commission’s decision was against the weight of the evidence it is necessary for an appellant to: put before the National Court the evidence that was before the Commission, show how the Commission misconstrued the probative value of the evidence or drew unjustified inferences or failed to draw reasonable inferences from the evidence, and show why the decision appealed against is wrong and cannot be supported by the evidence or by any proper inferences to be drawn therefrom or from the relevant law (Re Wangaramut (No 2) [1969-70] PNGLR 410).

(2) The appellant met those requirements. The decision was against the weight of the evidence, in that: too much weight was given to a 1995 Madang Local Land Court decision; too much weight was given to an October 2009 land mediation; insufficient weight was given to registration of the appellant’s incorporated land group; the Commission made strong and conclusive findings favouring the first respondents on the basis of conflicting evidence; and insufficient weight was given to evidence of the appellant’s clan’s recent possession of the land.

(3) The appeal was upheld. As the Court was apprised of the relevant facts and law, it was unnecessary to remit the case for further hearing before the Commission. The justice of the case required that the Court substitute its decision for the decision of the Commission.

(4) Decision: (a) the land is jointly owned on a 50/50 basis by the appellant’s clan and the first respondents’ clan; (b) benefits derived from the land shall be distributed as follows: (i) appellant’s clan, 50%, (ii) first respondents’ clan, 50%.

Cases cited:


The following cases are cited in the judgment:


Application of Ambra Nii on behalf of Toisap Clan [1991] PNGLR 357
Gima Raka v Philip Maimu (2013) N5200
John Anis v Nabura Morissa (2011) N4307
Re Hides Gas Project Land [1993] PNGLR 309
Re Wangaramut (No 2) [1969-70] PNGLR 410
Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163
Tawindi Clan v Kaimari Clan (1998) N1775


APPEAL


This was an appeal by persons aggrieved by a decision of a Special Land Titles Commission as to ownership of customary land.


Counsel:


G Pipike, for the Appellant
B Tabai, for the First Respondents
S Maliaki, for the second, third and fourth Respondents


11th November, 2016


  1. CANNINGS J: Gador Salub, for himself and on behalf of Goriba (also known as Ato) Clan, appeals against the decision of the Ramu Nickel-Cobalt Special Land Titles Commission of 31 August 2013 concerning customary ownership of an area of land at and around Ato village, Ileg Local-level Government area, Rai Coast District, Madang Province. The land is on the route of the slurry pipeline for the Ramu Nickel-Cobalt Project. The pipeline runs from the mine site at Kurumbukari in the mountainous area of Usino-Bundi District to the refinery and port at Basamuk Bay, Rai Coast District.
  2. The disputed land is known generally as “Ato land”. It is formally described as Blocks 650, 651, 652, 699 and 920, Mining Easement 75.

DECISION UNDER APPEAL


  1. The Commission decided on 31 August 2013 that:
  1. The full text of the decision, which was supported by a 13-page statement of reasons, reads:

The Commission:


  1. Declares and orders that Puseir Clan has exclusive land rights over Blocks 650, 651, 699 and 920 land in Mining Easement No 75 (Slurry Pipeline) of the Ramu Nickel/Cobalt Project;
  2. Declares and orders that Salub Family/Ato clan has exclusive land rights over Block 652 land in Mining Easement No 75 (Slurry Pipeline) of the Ramu Nickel/Cobalt Project.
  3. Directs that the benefit sharing arrangements agreed by the forefathers of the Ato village and endorsed by the Madang Local Land Court shall apply to the benefits paid by the Ramu Nickel/Cobalt Project in relation to the Blocks 650, 651, 652, 699 and 920 land in Mining Easement No. 75 (Slurry Pipeline).
  4. Directs that any disputes relating to sharing of benefits shall be referred to mediation or the relevant Village Court for resolution.
  5. In reaching that decision, the Commission preferred the evidence put before it by Urus Luedi of Pusier clan, the first respondents, over the evidence presented by the appellant, Mr Gador Salub.
  6. Mr Luedi’s evidence was that Pusier was the oldest known landowning clan for the Ato land and that their ancestry dates back many generations to a man called Tumu Pusier. Pusier Clan’s enemies put poison in the river and chased the clan members away to another area of land called Aluia, where they have lived for a long time. However, Ato land still belonged to Pusier Clan. According to Mr Luedi, the appellant, Mr Salub, only recently separated himself from Pusier Clan to get benefits from the Ramu Nickel/Cobalt project. Mr Luedi’s evidence was corroborated by another witness, Pendi Samabu, who said he was not a Pusier clan member but he lives at Ato village and was told the same story by his grandfather.
  7. The evidence of the appellant, Mr Salub, was opposite that of Mr Luedi. Mr Salub testified that his clan, Goriba, was not part of the Pusier Clan. The ancestry of the Goriba Clan went back at least seven generations to a man called Waloka. Goriba Clan was a brother clan in relation to Pusier Clan. They were separate. Mr Salub’s evidence was corroborated by the evidence of Malabok Natori, of Uwong Clan. Mr Salub gave evidence that when the Lae-Madang Highway was built in 1977, his father, Salub Bakuai, as representative of Goriba Clan, was the recipient of the compensation payments and that everyone knew he was the landowner.
  8. In preferring the evidence of the first respondents to the appellant’s evidence, the Commission took account of eight considerations:

(1) Madang Local Land Court decision. The Commission referred to a decision of the Madang Local Land Court, which appears to be a reference to a decision of that Court dated 22 June 1995. The Commission noted that:


The traditional benefit sharing agreements according to blocks earmarked by the ancestors for each clan or sub-clan were not questioned or challenged by both disputants.


(2) Mediation resolution. The Commission referred to a land mediation that took place in October 2009. According to the Commission the land mediators decided that Pusier is the landowner clan:


There is lack of clarity as to why Ato or Goriba was not mentioned in the mediation report but there is clear evidence that Gador Salub was present but he did not want to defend his rights because of fear of other Ato village people. This suggests that he was not confident of his rights as the landowner because if he was, he would have fought for his rights fearlessly.


(3) Ato (Goriba) Incorporated Land Group. The Commission noted that Mr Salub and Goriba Clan had arranged incorporation of an ILG but was of the view that that was of no relevance in determining the question of customary ownership of the land:


The incorporation of a land group does not confer land title nor does it pre-empt the decision of the Commission. ... The Commission is required to review all evidence to decide on land ownership of the disputed land even though the Registrar issued an ILG certificate to Ato Goriba Incorporated Land Group on the presumption that there was no land boundary dispute to prevent the issuing of the certificate. Such a presumption has now proved to be unfounded and the ILG certificate should not have been issued when there is a land dispute ongoing.


(4) The issue of Ato Clan and Goriba Clan. The Commission noted that Mr Salub appeared to be using the names “Ato Clan” and “Goriba Clan” interchangeably. It was noted that Mr Salub’s explanation in evidence was that Goriba was the previous name of the people and the place called Ato, but the name had been changed by the Germans in the colonial days. However, there was competing evidence by the Luedi family that there is no such clan as Ato, which is the name of a village only, and that Mr Salub’s family are only using Ato/Goriba as a clan name to get benefits from the Ramu Nickel/Cobalt project. The Commission observed:


It would ... seem that the use of Ato/Goriba for the incorporation of an ILG was for the ILG to own the whole disputed land because the names Goriba and Ato represent the old and new names for the same land.


(5) Whether the disputants are descendants of a common ancestor. The Commission resolved this issue in the affirmative. However, of the two competing family trees put to it, the Commission strongly preferred the evidence given in support of the first respondents’ family tree and rejected the appellant’s evidence on this issue:


There was no supporting evidence from neighbouring clans to confirm the family tree presented to the hearing by the Salub family. Therefore the Commission must accept the weight of the evidence in favours of the view that Salub family and Luedi family are descendants of a common ancestor in reference to the disputed land. The Salub family, in terms of their patrilineal lineage, are descendants of a different ancestor, namely Guiyeg’s father of the Awa clan of Ohura village and so that family tree applies to Awa Clan land at Ohura village and not Ato village.


(6) Land rights for the Salub family. The Commission took the view that the land rights of the Salub family were confined to a particular part of Ato land, known as Block 652, which had been given to one of Mr Salub’s ancestors:


The land rights for the Salub family are derived from their female ancestor, Bules, who was Touma’s sister. Normally under customary law and practice of PNG traditional societies a female returning to her father’s family because of the death of a husband can get land rights if so decided by her family and clan. The returning female relative is given certain land rights by her father, brother or uncle (if her father is dead). If the returning female remarries then she shares her [new] husband’s land rights. In the case of the Salub family, Bules remarried and Bakuai was adopted by Weipa (Bules’ aunty) and Natori. The evidence is clear that Weipa was given Block 652 land by her brother, Deura. And because Weipa and Natori were childless, the ownership of Block 652 passed to Bakuai. There was no evidence supporting any other Pusier land being given to Bakuai and his descendants, including Gador Salub.


(7) Who are the true landowners of the disputed land? According to the Commission, it was the Pusier Clan:


The evidence is heavily in favour of the Pusier Clan as being the true landowner of the disputed land. All other Ato clans are settlers who came to live there for marriage or sorcery or tribal fighting reasons or otherwise. The Salub family, as has been repeatedly stated by the witnesses, orally and through affidavit evidence, is from the female lineage as far as the disputed land is concerned.


(8) Beneficiaries of the disputed land. The Commission took the view that a significant factor to take into account in determining the question of land ownership was past arrangements for benefit-sharing from other major projects, and that these past arrangements showed that Pusier Clan was regarded as the traditional owner of the disputed land:


The Commission is assisted by the evidence presented at the hearing regarding traditional arrangements agreed by the Ato villagers for the sharing of benefits from the Madang-Lae Highway and the [Jant] Woodchip Mill project. Those traditional benefit-sharing arrangements were formalised and endorsed by the Madang Local Land Court. Those benefit-sharing arrangements were based on blocks of land allocated by the Pusier Clan to the clans that had settled on the Ato land. The Commission is compelled by the weight of the evidence in this regard to support the existing/traditional benefit-sharing arrangements agreed by the forefathers of the Ato clan and endorsed by the Madang Local Land Court.


APPEAL


  1. The appellant argues that the Commission should have decided that Goriba Clan is the exclusive owner of Blocks 650, 651, 699 and 920, as well as Block 652. He has appealed under Section 38(1) (right of appeal) of the Land Titles Commission Act, which allows a “person aggrieved by a decision of the Commission” to appeal to the National Court within 90 days after the decision.
  2. There is only one ground of appeal: that the decision was against the weight of the evidence. This is a proper ground of appeal under Section 38(2) of the Land Titles Commission Act, which states:

An appeal under Subsection (1) may be made only on the ground that—


(a) the Commission has exceeded its jurisdiction;

(aa) the decision was against the weight of the evidence;

(b) the hearings of the Commission were conducted in a manner contrary to natural justice; or

(c) the Commission was wrong in law.


  1. The ground is particularised in the notice of appeal, as follows:

WAS THE DECISION AGAINST THE WEIGHT OF THE EVIDENCE?


  1. To prove that the Commission’s decision was against the weight of the evidence it is necessary for the appellant to:
  1. I find that the appellant has met those requirements. He has:
  1. In particular I am persuaded by the submissions of Mr Pipike, for the appellant, that the Commission’s decision was against the weight of the evidence in the following respects.

1 Too much weight given to 1995 Madang Local Land court decision


  1. The Commission gave considerable weight to a 1995 decision of the Madang Local Land Court, implying that it favoured the first respondents, and stating that it supported “traditional benefit sharing agreements”, which were not questioned or challenged by both disputants. However, the Commission did not clearly state what the decision actually was or what were the terms of the “traditional benefit sharing agreements” it referred to5. Furthermore, there was little in the evidence before the Commission to warrant its finding that the “traditional benefit sharing agreements” were not questioned or challenged. The Commission, without justification, took no account of the evidence of Mr Salub that his clan was, in the 1970s, a direct recipient of two major development projects relating to the disputed land: the Madang-Lae Highway and the Jant Ltd timber project.

2 Too much weight given to October 2009 land mediation


  1. The Commission gave considerable weight to an October 2009 land mediation resolution, implying that it favoured the first respondents. But, as in the case of the 1995 Madang Local Land Court decision, the Commission did not clearly state what the terms of the mediation resolution were. Furthermore, there was little in the evidence before the Commission to warrant its finding that although Mr Salub was present at the mediation, he did not want to defend his rights because of fear of other Ato villagers.

3 Insufficient weight given to appellant’s incorporated land group


  1. The Commission placed no weight on the evidence that Mr Salub and Goriba Clan had arranged incorporation of an Incorporated Land Group. I agree that the incorporation of the ILG was not conclusive evidence of ownership. However I consider that the Commission erred by placing no weight on this evidence. In the absence of evidence to the contrary it should have been given been regarded as evidence of a genuine belief on the part of Goriba Clan as to their customary ownership of the land.

4 Making strong and conclusive findings favouring the first respondents on the basis of conflicting evidence


  1. The Commission found conclusively in favour of the first respondents on the question of whether the Pusier Clan and Goriba Clan were direct descendants of the original owner of the land. This was a complex issue of fact to determine. It depended on a consideration and weighing of evidence of living persons as to what they had been told by their ancestors of their respective clan’s genealogy going back multiple generations. I find that there was insufficient evidence before the Commission to enable it to make such a strong finding in favour of the first respondents and to so conclusively reject the appellant’s evidence.
  2. As to the Commission’s findings that “the evidence is heavily in favour of Pusier Clan as being the true landowner of the disputed land” and that other Ato clans, including the appellant’s clan, are only “settlers”, I consider that there was insufficient evidence to warrant such conclusive findings.

5 Insufficient weight given to evidence of recent possession of the land


  1. The Commission took little account of the evidence that members of the appellant’s clan had actually been in possession of the disputed land for a number of generations, while the first respondents’ clan had lived elsewhere. The Commission, by disregarding evidence of who was in actual possession of the land, failed to take account of one of the most important matters it was obliged to weigh in the balance when determining the question of customary ownership: who had been in actual possession of the land in recent times? The Commission failed to apply Section 67 of the Land Disputes Settlement Act, which states:

(1) 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.


(2) Where a presumption is set up under Subsection (1), it may be rebutted only by evidence leading to clear proof that the interest is vested in some other person.


  1. The Commission failed to apply the principle of adverse possession, ie the notion that if a person who does not actually own a piece of land occupies or takes possession of it for a long time without objection from the real owner, the person in possession can be regarded, with the passage of time, to be the owner (Re Hides Gas Project Land [1993] PNGLR 309, Gima Raka v Philip Maimu (2013) N5200). The principle of adverse possession means that ownership of customary land depends not only on the question of which disputing party had the earliest claim to the land, by reason of genealogical or ancestral evidence, but also which disputing party has actually possessed the land (without opposition) in recent years (Application of Ambra Nii on behalf of Toisap Clan [1991] PNGLR 357, Tawindi Clan v Kaimari Clan (1998) N1775, John Anis v Nabura Morissa (2011) N4307).
  2. I uphold Mr Pipike’s submission that the Commission was obliged to apply the Hides Gas principle in the course of determining ownership of the Ato land. It did not do that. The Commission was preoccupied with the question of which clan was the ‘historical’ or ‘true’ owner of the land and which persons were the direct descendants of that owner. With respect, the Commission disregarded, and failed to give appropriate weight to, crucial evidence about who was, and had been in recent times, in possession of the land.

Conclusion


  1. The Commission’s decision was against the weight of the evidence. The ground of appeal is upheld.

REMEDIES


  1. As the sole ground of appeal has been upheld, the appeal will be upheld. This raises the question of what order the Court should now make. This is a matter of discretion, to be exercised under Section 38A(2) (powers of National Court on appeal) of the Land Titles Commission Act, which states:

Upon the hearing of the appeal, the National Court shall inquire into the matter and may—


(a) adjourn the hearing from time to time;

(aa) receive fresh evidence if in the opinion of the Court that evidence is relevant and the party seeking to rely on it was not negligent in failing to adduce it before the Commission;

. . .

(c) if the justice of the case so requires, substitute for the decision any decision that might have been given by the Commission; or

(d) remit the case in whole or in part for hearing or for further hearing before the Commission.


  1. It is unnecessary to remit the case to the Commission. The Court is apprised of the relevant facts and law. The justice of the case requires, for the purposes of Section 38A (2) (c), that the Court substitute its decision for the decision of the Commission.
  2. I will not make the order sought by the appellant, which would declare that the appellant’s clan is the owner of the land to the exclusion of all other parties including the first respondents. I am not satisfied that that is the appropriate order to make. One of the features of this case is the conflicting evidence before the Commission about which clan had the most direct genealogical link to the original owner. While I have found error on the part of the Commission in making a decision against the weight of the evidence, I am not satisfied that the evidence so strongly favours the appellant’s clan that they should be regarded in genealogical terms as the direct and exclusive descendants of the original owner.
  3. Similarly, on the question of who has had in recent times, actual possession of the land, I have found error on the part of the Commission, as it largely ignored this evidence. However, the evidence was not detailed and did not warrant a finding that the appellant’s clan was in possession of all the disputed land or a finding that the first respondents did not possess any of the land.
  4. In these circumstances, the best and fairest thing to do is to make an order that takes into account all conflicting evidence and recognises that both the appellant’s clan and the first respondents’ clan have valid claims to ownership.
  5. I will declare and order that the appellant’s clan and the first respondents’ clan are the joint traditional owners of the land on a 50/50 basis and that they have joint rights to occupy and receive benefits emanating from ownership of the land.
  6. I will order the parties to bear their own costs as, though the appellant has succeeded in the sense that the appeal is upheld, he has not succeeded totally as the order that the order he was seeking (a declaration as to exclusive ownership of the land) has not been granted. All interim orders staying the Commission’s decision will be dissolved.

ORDER


  1. It is ordered that:
(1) The appeal is upheld.

(2) The decision under appeal, being the decision of the Special Land Titles Commission of 31 August 2013 in the matter of the dispute over Mining Easement No 75 (slurry pipeline), in particular the disputes over Blocks 650, 651, 652, 699 and 920, is quashed.

(3) As the justice of the case so requires, there is substituted for the decision under appeal, under Section 38A(2)(c) of the Land Titles Commission Act, the following decision, by which the National Court of Justice:

(A) Goriba Clan = 50%;

(B) Puseir Clan = 50%; and


(ii) in relation to Block 652 in Mining Easement 75 (slurry pipeline) of the Ramu Nickel-Cobalt Project:

(4) All interim orders staying the Commission’s decision are dissolved.

Judgment accordingly.
____________________________________________________________________


GP Lawyers : Lawyers for the Appellant
Tabai Lawyers : Lawyers for the 1st Respondents
Solicitor-General : Lawyer for the 2nd, 3rd & 4th Respondents

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