N7788
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 98 OF 2013

GREG ANTON FOR AND ON BEHALF OF
MANGUSAI CLAN OF UPPER RAMU, MADANG PROVINCE
Appellants

V

TARARI PRINAWAI
AND MAKARI CLAN OF UPPER RAMU, MADANG PROVINCE
First Respondents

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

THE RAMU NICKEL/COBALT
SPECIAL LAND TITLES COMMISSION
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Madang: Cannings J
2019:11 March, 2 April

APPEALS – appeal against decision of Special Land Titles Commission regarding customary land ownership – Land Titles Commission Act 1962, Section 38 (right of appeal) – whether Commission exceeded its jurisdiction, made a decision against weight of the evidence, conducted its hearings contrary to natural justice, was wrong in law. 

The appellants’ clan was a disputing party in proceedings of a Special Land Titles Commission regarding ownership of customary land. They were aggrieved by the Commission’s decision to reject a claim by their clan for ownership of the land. They appealed to the National Court against the Commission’s decision to declare that the disputed land was exclusively owned by the first respondents’ clan. There were four grounds of appeal: (1) the Commission exceeded its jurisdiction by declaring ownership of only some of the blocks of land constituting the matter before it; (2) the decision was against the weight of the evidence; (3) the hearings of the Commission were conducted in a manner contrary to natural justice; and (4) the decision was wrong in law, in that the Commission failed to comply with Section 13A of the Land Titles Commission Act.  

Held:

(1)	The Commission did not exceed or fail to exercise its jurisdiction, as the alleged failure to make a decision on all the blocks of disputed land was due to a typographical error. Ground 1 was dismissed. 

(2)	The decision was against the weight of the evidence in that it failed to give sufficient weight to the substantial body of evidence presented by the appellants that their clan was the original owner of the land and placed too much weight on the first respondents’ clan’s later possession of the land. Ground 2 was upheld. 

(3)	The hearings of the Commission were not conducted contrary to natural justice as the Commission gave equal opportunity to be heard to both disputing parties and there was no apprehension of bias in favour of any party. Ground 3 was dismissed. 

(4)	The Commission was wrong in law in that by ignoring evidence given by the appellants at the hearings of the originally-constituted Commission (before a commissioner who died in office) the Commission failed to comply with its duty under Section 13A of the Land Titles Commission Act to recognise and consider that evidence. Ground 4 was upheld.  

(5)	The appeal was upheld and the Court substituted its decision for that of the Commission: (a) the land is jointly owned on a 50/50 basis by the appellants’ clan and the first respondents’ clan; (b) benefits derived from the land shall be distributed on that basis. 

Cases cited:

The following cases are cited in the judgment:

Eddie Itarai v Sevuru Nokoma (2016) N6176
Gador Salub v Makurai Luedi (2016) N6519
Jacob Toga v Special Land Titles Commission (2018) N7632
Mathew Denguo Tigavu v Gamo Koito (2016) N6170
Nicholas Garima v Special Land Titles Commission (2018) N7159
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 members of a clan aggrieved by a decision of a Special Land Titles Commission as to ownership of an area of customary land. 

Counsel

G Pipike, for the Appellants
J Lai, for the first Respondents

2nd April, 2019

1.	CANNINGS J: Greg Anton for himself and on behalf of Mangusai Clan (the appellants) appeal against the decision of the Ramu Nickel/Cobalt Special Land Titles Commission of 12 August 2013 regarding customary ownership of an area of land known as “Makari”. It comprises blocks 50 to 69 of Mining Easement 76, an area of 30.4 hectares, at Kurumbukari, Usino-Bundi District, Madang Province. 

DECISION UNDER APPEAL

2.	The Commission decided that the first respondents, Tarari Prinawai and Makari Clan, have exclusive ownership rights of Makari land. 

3.	The appellants were a disputing party at the hearings of the Commission. They argued that the Mangusai Clan should be awarded exclusive ownership of the land. The clan representative and primary appellant, Greg Anton (aka Greg Kutua), and Steven Kumbiai gave evidence in support of that argument, which the Commission rejected. The effect of the decision is that the appellants’ clan has no ownership or usage rights or benefit entitlements in respect of the land.

4.	The full text of the decision, which was supported by a 14-page statement of reasons, reads:

The Commission declares that Tarari Prinawai and his Makari Clan [first respondents] have exclusive customary land ownership of the Makari land, namely blocks 59-69 [sic] of Mining Easement No 76 of the Ramu Nickel/Cobalt Project. 

APPEAL 

5.	The appeal is 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. Section 38(2) provides the grounds on which an aggrieved person can appeal:

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.

6.	The notice of appeal contains four grounds of appeal, numbered (a) to (d), which are renumbered for this judgment as (1) to (4): 

i)	that the Commission exceeded its jurisdiction by declaring ownership of only some (Nos 59 to 69) of the blocks of land constituting the matter before it (Nos 50 to 69); 

ii)	that the decision was against the weight of the evidence; 

iii)	that the hearings of the Commission were conducted in a manner contrary to natural justice; and 

iv)	that the decision was wrong in law, in that the Commission failed to comply with Section 13A of the Land Titles Commission Act.  

GROUND 1: COMMISSION EXCEEDED ITS JURISDICTION 

7.	The appellants point to the error in the Commission’s formal decision, which purports to determine ownership of blocks “59-69” only, and not 50-69 as should have been the case. The appellants argue that this is an example of the Commission exceeding its jurisdiction or, as stated in the notice of appeal, ‘not acting within its jurisdiction’. 

8.	This is a trivial argument. It is clear from the formal description of the decision, expressed to be a dispute “over Special Mining Lease No 76 over a piece of land known as “Makari” over blocks 50-69 respectively, within Mining Easement No 76 of the Ramu Nickel/Cobalt Project” that the decision covered blocks 50 to 69 and not just 59 to 69. It is equally clear that the alleged failure to make a decision on all the blocks of disputed land was due to nothing more than an obvious but uncorrected typographical error. The Commission did not exceed or fail to exercise its jurisdiction. Ground 1 is dismissed. 

GROUND 2: DECISION WAS AGAINST THE WEIGHT OF THE EVIDENCE 

9.	To prove that the Commission’s decision was against the weight of the evidence it is necessary for the appellants 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).

10.	I find that the appellants have met those requirements. They have:

•	put before the National Court, the evidence that was before the Commission;

•	shown how the Commission misconstrued the probative value of the evidence that the appellants had well documented genealogical and socio-economic links to the land, which supported their argument that they were the original owners of the land, while the first respondents’ clan were properly regarded as caretakers (albeit in possession of the land over several generations) and placed too much weight on the first respondents’ clan’s later possession of the land; and 

•	shown why the Commission’s decision that the first respondents’ clan has land ownership rights to the exclusion of all other groups is wrong and cannot be supported by the evidence.  

Ground 2 is upheld. 
  
GROUND 3: HEARINGS CONDUCTED CONTRARY TO NATURAL JUSTICE 

11.	I am not persuaded that the hearings of the Commission were conducted contrary to natural justice. The Commission gave equal opportunity to be heard to both disputing parties and there was no apprehension of any bias in favour of any party on the part of the Commission. Ground 3 is dismissed. 

GROUND 4: COMMISSION WAS WRONG IN LAW 

12.	Mr Pipike, for the appellants, submitted that the Commission’s decision was wrong in law as the Commission, the members of which were appointed after the death of the original Commissioner, Mr Patrick Nasa, failed to comply with Section 13A of the Land Titles Commission Act by ignoring evidence given by the appellants at the hearings of the Commission conducted by Mr Nasa.

13.	Section 13A (transfer of cases) states:

(1)	The Chief Commissioner may, of his own motion or on the application of a party, and after consultation with the Commissioner dealing with the matter, transfer a matter, at any time before a decision has been given, from one Commissioner to another Commissioner or to three Commissioners appointed under Section 14A on the ground that—

(a)	the value of the land in dispute;
(b)	the complexity or importance of the issues involved;
(c)	the convenience of the parties and the Commission; or
(d)	any other sufficient cause,

justifies the transfer.

(2)	The Commissioner or Commissioners to whom a matter is transferred under Subsection (1) shall proceed to hear and determine the matter as though it had been commenced before him or them.

(3)	Where a matter is transferred from a Commissioner under Subsection (1), the evidence already taken before that Commissioner together with the results of any investigations or inquiries he may have made shall be deemed to be evidence before the Commissioner or Commissioners to whom the matter is referred.

14.	I  uphold this submission. The terms of the Commission’s decision reveal that it was in 2013 continuing to exercise jurisdiction pursuant to the order of the Acting Governor-General made on the advice of the National Executive Council under Section 4(3) of the Land Disputes Settlement Act on 21 February 2001, published in National Gazette No G169 of 27 December 2001. It was, as Mr Pipike submitted, the same “matter” being dealt with by the Commission in 2013 as the “matter” dealt with by Mr Nasa prior to his death. 

15.	It is apparent that the matter was, after the death of Mr Nasa, transferred under Section 13A(1) to the three Commissioners who came to constitute the Commission, Messrs Gabut, Batata and Paonga (the second respondents). Under Section 13A(2) they were  obliged to “proceed to hear and determine the matter as though it had been commenced before ... them”. I find that they were also obliged by Section 13A(3) to have regard to all evidence taken before Mr Nasa. I am persuaded by the submission of Mr Pipike that in fact they ignored the evidence given by the appellants at the hearings before Mr Nasa. They failed to have regard to a detailed affidavit of Mr Anton filed with Mr Nasa’s Commission on 7 May 2005 that set out a strong case that the appellants’ clan was the original owner of the land and had been recognised as such, including by the first respondents’ clan, over several generations. 

16.	I am satisfied that the Commission was wrong in law by failing to comply with its duty under Section 13A of the Land Titles Commission Act to recognise and consider that evidence. Ground 4 is upheld.  

CONCLUSION

17.	Two grounds of appeal (Nos 2 and 4) have been upheld. This raises the question of what order the Court should 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.

18.	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.

19.	I will not make the order sought by the appellants, which would declare that their clan is the exclusive owner of the land. That would not be a just order. 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 appellants’ clan that the first respondents’ possession of the land over a long period should be ignored. The appellants’ clan should be recognised as partly owning the land. 

20.	The best and fairest thing to do is to make an order that takes into account all conflicting evidence and recognises that the appellants’ clan and the first respondents’ clan have valid claims to joint ownership. I have applied the notion of joint ownership of customary land by two or more clans or groups in previous appeals against the Ramu Nickel/Cobalt Special Land Titles Commission (eg Gador Salub v Makurai Luedi (2016) N6519, Mathew Denguo Tigavu v Gamo Koito (2016) N6170, Eddie Itarai v Sevuru Nokoma (2016) N6176, Nicholas Garima v Special Land Titles Commission (2018) N7159, Jacob Toga v Special Land Titles Commission (2018) N7632). The approach I am taking in this case is consistent with the approach in those cases. 

21.	I will declare and order that: (a) the land is jointly owned on a 50/50 basis by the appellants’ clan and the first respondents’ clan; (b) benefits derived from the land shall be distributed on that basis. I will order the parties to bear their own costs as, though the appellants have succeeded in the sense that the appeal is upheld, they have not succeeded totally as the order that they were seeking (exclusive ownership) has not been granted. All interim orders staying the Commission’s decision will be dissolved.
ORDER

22.	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 12 August 2013 in the matter of the dispute over land known as “Makari”, blocks 50 to 69 of Mining Easement 76, Kurumbukari, 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 Mangusai Clan and the Makari Clan are the joint traditional landowners, on a 50/50 basis, of “Makari ” land in so far as it comprises blocks 50 to 69 of Mining Easement 76, Kurumbukari of the Ramu Nickel-Cobalt Project; 

(b)	directs that the sharing of benefits in relation to the Ramu Nickel-Cobalt Project re “Makari” land in so far as it comprises blocks 50 to 69 of Mining Easement 76, Kurumbukari of the Ramu Nickel/Cobalt Project, will be as follows:

(i) Mangusai Clan = 50%; and
(ii) Makari Clan = 50%.
.
(1)	All interim orders staying the Commission’s decision are dissolved.

(2)	The parties will bear their own costs. 

(3)	The file is closed. 

Judgment accordingly.
________________________________________________________________
GP Lawyers : Lawyers for the Appellants
Thomas More Ilaisa Lawyers : Lawyers for the First Respondents