DC1045

PAPUA NEW GUINEA
[In the New Ireland Provincial land Court]

PLC 01/2010

In the Matter of the Land Disputes Settlement Act Chapter 40

And

In the matter of an Appeal

BETWEEN:

TINETALGO CLAN [LIKENBA –SUB CLAN]
(Appellants)

AND:

BENARD AMNOL / SIMON PUPET / ROBERT MATSON
(Respondents)

BRUCE TASIKUL: LIHIR
4th JANUARY, 2011

REASON FOR DECISION

1.	TASIKUL BRUCE:( PROVINCIAL LAND COURT MAGISTRATE) This is an appeal from a decision of the Lihir Local Land Court dated the 25th of February 2009 over the customary ownership of the Latum land or Block 360.

2.	I am satisfied that I have the jurisdiction to hear the appeal as the dispute arose wholly within the New Ireland Land Mediation Area (see s. 53 of the Land Disputes Settlement Act Ch. 45 hereinafter called "the Act").

3.	The brief background of this case as follows; the matter came before Ms Patricia Tivese on the 3rd of December2009. During the hearing the appellant was represented by Kuman Lawyers while the respondent stood for himself and his clan. The matter was then adjourned to 2010 to allow the appellant to file their affidavits. However, after Ms Tivese appointment as an acting Principal Magistrate expired, I took over this matter. 

4.	When this matter came before me the appellant however, engaged Namani Lawyers and Associates. I also noted from the file that the grounds of appeal were draft by a different person or lawyer. The appellant have sought assistance from a different person in preparing their appeal. I make mention of this because of various documents filed on records.

5.	Nevertheless, the decision which was appeal against in the Local Land Court is couch in the following terms.

 "We unanimously agreed and declare that the customary ownership of the said Latum Block 360 land is vested in Francisca Nahuon and her children, Robert Matson, Bernard Amnol and Simon. Orders (1) the restraining orders made against LGL in relation to payments of royalties for the use of Block 360 is now discharged forthwith. (2) Payment be made to Francisca Nahuon and children, Robert Matson, Bernard Amnol and Simon."

6.	The appellant's grounds of appeal are properly sought under s. 58 (a) (c) of the Land Dispute Settlement Act. These are;

 (1) That the Local Land Court exceeded its jurisdiction or refused to exercise its jurisdiction.

 (2) That in the circumstances of this case no Court doing justice between the parties would have made the decision appealed against.

Ground 1. That the Local Land Court exceeded its jurisdiction or refused to exercise its jurisdiction

 In support of this ground it is the appellant's contention is that the Local Land Court refused to exercise its jurisdiction by refusing; to give due regards to genealogy or family tree history and instead focused only on other intervening factors between the origins of the disputing parties and their present circumstances. That the Local land Court adopted what Amet J (as he then was) said in the Application to the Land Title Commission N90/101 (Hide Gas Project). Based on this case the Local Land Court proceed to disregard genealogy as one of the factor of determining ownership and instead focused on the interest that each party had or had been exercising on the dispute. By doing so:

1.	It failed to comply and satisfied section 68 (1 ) of the Land Dispute Settlement Act

2.	 An important component of Lihir custom is the matrilineal system inheritance of land follows the mother bloodline. In determining the question of ownership especially where land is alleged to have been transferred to the father's bloodline on the basis that he was the last surviving member of his clan, the genealogy is a factor that must be determined and not be dismissed out right by lamely adopting what a certain judge said…in regard to land that was relatively dense jungle with no cultivation and human settlement on it and located in a totally different culturally distinct area.

3.	The Local Land Court also exceed its jurisdiction by going outside the ambit of s.68 and 69 and refuse to determine genealogy as a vital factor.

4.	 Local land Court did not investigate the genealogy of both parties but move to determine other intervening factors. Both parties are claiming ownership through what they separately referred to as inheritance by custom through the last surviving member of a sub clan has not been determined but instead proceeded to deal with secondary issues of asserting interests in the dispute.

5.	In dealing with intervening factors, the Local Land Court dealt with those interests that relates to the respondent's use and cultivation of the disputed land and failed to determine the relevant innerving factors that the appellants have.

7.	I will now proceed to deal with the first ground of appeal.

8.	On this ground the appellant is arguing that the Local Land Court has exceeded its jurisdiction by not considering the local customs and the genealogy. It did not properly determine the evidence according to section 68 of the Land Dispute settlement Act This ground was supported by the appellant by filing of fresh evidence from witnesses through the affidavits filed and swore before this Court. These include evidence from Fidelma Wennekul, Peter Teptep, Joe Rumuts, Augustine Kalayen, Ignatius Nuruo, Francisca Tuanakuas, Patrick Kokotiek and Tarcicus Minei.

9.	I noted from the Local Land Court records of proceeding that most of all of the witnesses who have affidavits filed as witnesses in this Court never gave evidence before the Local land Court, except for Francesca Tuankuas, Veronica Yembek and Augustine Kalayen.

10.	Before I proceed further I must ask myself whether I would accept evidence from this witnesses who never gave evidence in the Local Land Court or not.

11.	Section 50 of the Land Dispute Settlement Act set out the procedure and the jurisdiction of the Provincial Land Court. The Provincial Land Court may receive fresh evidence as provided under 50 (c) However, it is my view that any fresh evidence must only relate and support the grounds of appeal and not any other evidence.

12.	After having examined the evidence which the appellant alluded before this Court I find that these evidences are all fresh evidence and not related to the ground of appeal. They should have been presented in the Local Land Court. Most of this fresh evidence does not in any where support this ground of appeal. There is no evidence before this Court that the Local land Court exceeds or refused to exercise its jurisdiction.

13.	I have perused the materials and records on file in the Local Land Court proceeding and I am satisfied that the Local Land Court have properly exercise its jurisdiction. Therefore this ground of appeal must fail. 

14.	Ground 2. That in the circumstances of the case no Court doing justice between the parties would have made the decision appealed against.

15.	In support of this grounds the appellant contended that-

 The Local Land Court should have not deviated from these provisions to keep within its jurisdiction. Instead the Local Land Court in circumstances clearly set out below went outside its power under these provisions to make assumptions and make certain findings that resulted in injustice being done or reach a decision that no Court doing justice between the parties would have made. The following circumstances demonstrated this;

1.	The appellants restate paragraphs 1-6 referred to above under Annexure A here as circumstances where the Local Land Court deviated from doing justice in the matter and instead focus its attention on doing the respondent favour.

2.	In paragraph 96 of its decision, the Court concluded that the respondent had no evidence to demonstrate that they had maintained their interest on the disputed land by gardening, grazing, or burning it off, or collecting from it or by forbidding others from settling on it and stated that it failed from exercising a controlling interest on the land over the years. The Local land Court failed to take into account that the appellant;

•	Were living in Mdadowos and Mdabonbale hamlet on the beach which have old haus boi still standing. These hamlets are next to Lenanam

•	Were cultivating the land at Lemdemde, Latum, and Letombel. Gardening land next Lemdeme were always cultivated by the appellants along with Francisca Nahuon and her children. Their gardens were seen and visible during the tour of the boundary. 

•	Francesca Nahuon and her children did not have the exclusive possession or usage of the disputed land. In fact they were only cultivating certain gardening plots or boxes that they have always cultivate since Zakie was alive. The other 90% of the disputed land were always cultivated by the appellant.

•	Coconut plantation ought to be understood in Lihir context. Immediately before and after independence spurred by the Saving and Loan Societies and Cooperatives mania of the 1970s tultuls and luluais and later the kiapa and councils requested to everyone to plant coconut plantations to participate in the schemes referred to above so that they can have money for their families and also money to pay the head taxes applicable in those days. The appellant coconut plantation was located elsewhere in the head land of the disputed land which is the coconut plantation located between Kul and the Green House along the main road to town. Also some more coconut plantations were located on the coast next to Mdabonbale and Mdadowos.

•	The respondent was allowed to plant the coconut plantations referred to by the Local Land Court with consent of the appellants. The respondent had their own. Longar even had coconut trees next to the ones planted by Sawol at Lenanam. The appellant had no reason to protest against respondent because it was a corporative thing. Council wants everyone to have money. Those that have land were allowed to plant plantation on other clans land. Zakie was a daughter of our clan her children and grand children were allowed to plant the coconut with the consent of the clan

3.	The Local Land Court failed to understand the nature and manner of the repayment of pigs or customary feasts obligations. The respondents always know or should have known that under Lihir Custom that the pig was a liability/ obligation to them which the clan will repay when the feast for Zaki is done. This was at Mdarets when that feast was held. The Local Land Court has made an assumption that there was no consent obtained from the respondent to present that pig. The fact is that the pig was presented and accepted at Mdarets. It had nothing to do with Nahuon or her children who are not direct bloodline of the Putubun Lkatsietsiel sub-clan. That was a debt to be repaid and was repaid at the right time. Consent is not an issue here. The Court should have determined the applicable rules surrounding this customs instead of making irresponsible assumptions.

4.	Paragraph 96 and 97 of the decision demonstrate the willingness of the Local Land Court to go too far to la towards the respondent. While the Local Land Court was not prepared to go into the past and make a thorough investigation of the genealogy of the Putuun kaputsieliel and link it with both the appellant and the respondent apart from customary feast, it was on the other hand willing to go into the past and accept arrangements and exchanges done in the past as effectively binding on the present without even doubting or questioning its truth. This is unfair treatment.

5.	At the opening of the decision the Local land Court correctly stated how land can be acquired under customs in Lihir. The common point in all the forms of acquisition of land except Erkuets is that absolute approval and recognition of such arrangement must be made by the members of the clan. In making its decision the Local land Court simply refused to acknowledge this point and the fact that performing custom means the three feastings stages not a single pig.

6.	Accordingly, the Local Land Court's decision cannot be upheld it must be quash on the basis of the grounds of appeal.

7.	In paragraph 85 of the decision, the Local land Court correctly observed that both parties had a certain degree of standing under custom in order to claim customary ownership to the disputed land. However, the LLC then deviated by adopting what Amet J said and use that to disregard genealogy. This is the fatal mistake made by the Court because by doing that it has now thrown the matrilineal system out the window and attempted to impute ownership on a stranger to the disputed land who under the matrilineal system would not acquired ownership rights. By killing a pig she would only acquired an interest in the land and be allowed to cultivate certain gardening plots etc and access to certain pieces of clan's land. She cannot acquire the entire land of the clan. Land is owned by the clan not individual members of the clan.

8.	In the circumstance a decision doing justice would be that the land is owned by the Tinetalgo clan but the respondents have acquired an interest in the land that they cannot continued to enjoy until that interest is terminated by way of repayment of the pigs. All these had happen.

9.	Block 360 which form part of the run way of the airport was prior to the airport merely kunai grassland with padanus on it. It was waste land not used for gardening at all. It forms part of the clan land that the respondent was never interested in until development of the airport. The respondent had no interests in it unlike Lenanam, Letombel and Lemdemde. Accordingly, ownership of it is left with the clan not Zakie.

10.	The appellant believed that based on the circumstances discussed above, the LLC had placed itself in a position to make a decision that in the circumstances of the case no Court doing justice between the parties would have made. Accordingly, the decision must be quashed and replace with a decision as discussed I paragraph 8.

16.	As I have alluded earlier I will accept any fresh evidence only if those evidences support the ground of appeal. 

17.	The appellant is arguing under this ground is that; the Local Land Court misapplied customs in its finding and fail to consider the appellant genealogy. That the Local Land Court also over looks that the appellant also had an interest on the land by their presence at Mdadowos and Mdbonbale hamlet. The Local Land Court fails to consider their interest on the land as they have been cultivating and have gardens on the disputed land.

18.	This Court has carefully explored the decision of the Local Land Court and further examined the minutes of the proceeding that were presented in the Local Land Court. I have also considered all the evidences alluded by the appellant and her witnesses. These evidences are the same evidence that were present to the Local Land Court.

19.	 For instance in Veronica Yembek,s evidence she deposed in paragraph 13 that according to custom when Zaki killed pig for her father Kokots during his funeral feast she was given a small piece of land in Lenanam along the beach and not at Latum. Even Kokots was not the last man to die in his clan, his nephews were still alive. These evidences were extensively discussed in the Magistrate's judgment at the Local Land Court

20.	The two other witnesses namely Augustine Kalayen and Francisca Tuanakus deposed in the respective affidavits that Kokots was not the last person in the Putubulakazel sub- clan but have two of his nephew namely, Longar and Sanbong. Those evidences were also noted by the Magistrate in his decision.

21.	 The other witnesses in their evidences mainly focus on the customs and what transpired by their ancestors. These evidences are type of evidence that should have been presented to the Local Land Court and not in the Appeal Court.

22.	Yes, I agreed with the appellant argument that the Local Land Court did not considered the appellant genealogy. But I will agree with the Local Land Court as stated in its reason that genealogy is not only the factor to determine land ownership. May I add here that genealogy of a clan can always be manufactures by people to suit their own interest? It may be important to them but may have not significant relevancy in other matters. Other factors should also be considered. 

23.	The Local Land Court in its deliberation rule that the respondent have an interest on the land basically because of their presence for more than twelve (12) years. If the appellant is contending this issue why was this issue raise at the Local Land Court? Why come up and raises that in this Court. It should have been deliberate at the Local Land Court?

24.	After careful examining of the Courts proceeding and the reason for decision by, I find that the Local Land Court has properly considered customs and other factors before reaching its decision. There are no evidences to support this ground of appeal. What I find is that the appellant through its own incompetent failed to provide sufficient evidence at the Local Land Court and now wants this Court to reconsider these same evidences, which is totally wrong. The Local Land Court is a proper forum to raise those issues. The Provincial Land Court is only to review where the LLC went wrong.

25.	I therefore find that this second ground of appeal must fail. Therefore this proceeding is dismissed. I therefore confirm the decision of the Local Land Court.