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Toga v Gabut [2019] PGNC 4; N7632 (10 January 2019)

N7632

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 138 OF 2013

JACOB TOGA & OTHERS OF WAMBUK CLAN
Appellant

V

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

THE RAMU NICKEL/COBALT
SPECIAL LAND TITLES COMMISSION
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

YAGAS AMANG OF WAMBUK (BOSA) CLAN
Fourth Respondent

BIRAG KAUS OF BOSA CLAN
Fifth Respondent

Madang: Cannings J
2018: 17 November,
2019: 10 January

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

The appellant was a disputing party in proceedings of a Special Land Titles Commission regarding ownership of customary land. Aggrieved by the Commission’s decision to reject his clan’s claim to ownership of the land, he appealed to the National Court. There were five grounds of appeal but two were abandoned and the remaining three were reduced to one: that the decision of the Commission was against the weight of the evidence.

Held:

(1) The decision was against the weight of the evidence in that the Commission misconstrued the probative value of the evidence given in support of the fourth and fifth respondents, which evidence appeared to relate to a piece of land that was the subject of a separate hearing and the appellant showed why the Commission’s decision that the fifth respondent has exclusive land ownership rights was wrong and could not be supported by the evidence.

(2) The appeal was upheld and the Court substituted its decision for that of the Commission: (a) the land is jointly owned on an equal one-third basis by the appellant’s clan, the fourth respondent’s clan and the fifth respondent’s clan; and (b) benefits derived from the land shall be distributed on that basis.

Cases cited
The following cases are cited in the judgment:

Re Wangaramut (No 2) [1969-70] PNGLR 410
Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163

APPEAL

This was an appeal by a person aggrieved by a decision of a Special Land Titles Commission as to ownership, land use rights and benefit entitlements in respect of a block of customary land.

Counsel

W Akuani, for the Appellant
S Maliaki, for the First, Second and Third Respondents
B Tabai, for the Fourth Respondent

10^th January, 2019

1. CANNINGS J: Jacob Toga, on behalf of Wambuk Clan, appeals against the decision of the Ramu Nickel-Cobalt Special Land Titles Commission of 22 August 2013 regarding customary ownership of an area of land known as “Wambuk”, 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. The disputed land is formally described as Mining Easement 75, Block 712.

DECISION UNDER APPEAL

2. The Commission decided that:

• Wambuk land is owned by Bosa Clan (the fifth respondent’s clan);
  
• Wambuk Clan (the appellant’s clan) and Wambuk (Bosa) Clan (the fourth respondent’s clan) have land use rights;
  
• benefits generated in respect of the Ramu Nickel-Cobalt project shall be shared amongst the three clans at the discretion of Bosa Clan.
  

3. The appellant and the fourth respondent and the fifth respondent were disputing parties at the hearings of the Commission, described as Application No 2001/32. They each argued that their clan was the exclusive owner of the land. They each presented several witnesses to support their positions.

4. The full text of the Commission’s decision, which was supported by a six-page statement of reasons, reads:

The Commission declares and orders that:

1. Wambuk land is owned by the Bosa Clan who are the descendants of Tamol.
   
2. Wambuk Clan, Bosa (Wambuk) Clan and the other clans have acquired some rights and interests as land users.
   
3. The benefits and interests accruing from the laying of the slurry pipeline over and along Wambuk land, the leaders of Bosa Clan shall decide and share fairly such benefits with the other clans.
   
4. If no decision is made on benefits sharing prior to the payments, it to be shared in the following manner: Wambuk Clan 10%, Bosa (Wambuk) 15%, and the remaining 75% to be retained by Bosa Clan and be distributed fairly, to its members and members of the other clans.
   

APPEAL

5. The appellant argues that the Commission should have decided that Wambuk land is exclusively owned by Wambuk Clan. 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.

6. The notice of appeal contained five grounds of appeal but two have been abandoned, leaving only three to be determined; and those three can be reduced to one: that the decision was against the weight of the evidence. This is a proper ground of appeal under Section 38(2)(aa) 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.

WAS THE DECISION AGAINST THE WEIGHT OF THE EVIDENCE?

7. To prove that the Commission’s decision was against the weight of the evidence it is necessary for the 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, Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163).
  

8. I find that the appellant has met those requirements. He has:

• put before the National Court the evidence that was before the Commission in respect of Application No 2001/32, including a detailed affidavit by the appellant, annexing a Wambuk Clan family tree, and affidavits by other Wambuk Clan members or other persons who deposed to genealogical knowledge of Wambuk Clan, Tigang Sange of Sangau Clan, Gamang Kamo of Gurendu Clan, Jang Pariwe of Taram Clan and Lew Abez of Wambuk Clan;
  
• shown how the Commission misconstrued the probative value of other evidence given in Application No 2001/32 by Yagas Amang (the fourth respondent), Sangis Yagim of Lumbuki Clan, John Saum of Asageng Clan, Kamai Gambou of Solik Clan, Sobu Waga of Yawar Clan, Birag Kaus (the fifth respondent), Mangie Yanden of Asageng Clan, Kamon Yanam of Bindagagu Clan, David Kumbo of Solik Clan, Hans Kurab of Jimjam Clan, Gerson Ubuk of Maraga Clan, all of which evidence appeared to relate to land variously described as “Bosa”, “Bosag” or “Bosak”, not to the land the subject of Application No 2001/32, which was “Wambuk” land;
  
• shown why the Commission’s decision that the fifth respondent has exclusive land ownership rights is wrong and cannot be supported by the evidence.
  

9. I find that the Commission’s decision was against the weight of the evidence. The ground of appeal is upheld.

REMEDIES

10. 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.

11. 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.

12. I will not make the order sought by the appellant, which would declare his clan to be the exclusive owner of the land. The best and fairest thing to do is to make an order that takes into account all conflicting evidence and recognises that the appellant’s clan and the fourth and fifth respondents’ clans, all of whom are based at Lalok village, have valid and equal claims to ownership.

13. I will declare and order that the three clans who were disputing parties before the Commission are the joint traditional owners of the land on an equal one-third basis and that they have joint rights to occupy and receive benefits emanating from ownership of the land.

14. I will order the parties to bear their own costs. All interim orders staying the Commission’s decision will be dissolved.

ORDER

15. It is ordered that:

(1) The appeal is upheld.

(2) The decision under appeal, being the decision of the Ramu Nickel-Cobalt Project Special Land Titles Commission of 22 August 2013 in the matter of the dispute over land known as “Wambuk”, Mining Easement 75, Block 712, 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) declares and orders that the Wambuk Clan and the Wambuk (Bosa) Clan and the Bosa Clan are the joint traditional landowners, on an equal one-third basis each, of “Wambuk” land in so far as it comprises Mining Easement 75, Block 712, in the Ramu Nickel-Cobalt Project area;
  
• (b) directs that the sharing of benefits in relation to the Ramu Nickel-Cobalt Project re “Wambuk” land in so far as it comprises Mining Easement 75, Block 712, in the Ramu Nickel-Cobalt Project area, will be as follows:
  

(i) Wambuk Clan = one-third;

(ii) Wambuk (Bosa) Clan = one-third; and

(iii) Bosa Clan = one-third.

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

(5) The parties will bear their own costs.

(6) The file is closed.

Judgment accordingly.
_______________________________________________________________
William Akuani Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyer for the First, Second & Third Respondents
Tabai Lawyers: Lawyers for the Fourth Respondent