DC4083
PAPUA NEW GUINEA
[In the Northern Provincial land Court]

PLC 03, 04, 05, 06, 07, 08, 09, 10 of 2013

In the Matter of the Land Disputes Settlement Act Chapter 40

And

In the matter of an Appeal

BETWEEN:

GAZAREPA CLAN, ANDIRIHA CLAN, HAMAIPA CLAN, UMOTAHA CLAN, JANGOROPA CLAN, TANDEAPA CLAN, HANGIRIPA CLAN
(Appellants)

AND:

Andiriha clan, Tandaepa clan, Hangiripa clan, Gazerepa clan, Hamaipa clan, Jangoropa clan, Umotaha clan, Endehipa clan, Haugapa clan, Houpa clan AND
Kinaripa clan

 (Respondents)

L. MESMIN:	POPONDETTA
27, 31 July 2020
6, 7 &14 August 2020
3rd September 2020

DECISION

L. MESMIN (PLM): This is an appeal from a decision of the Popondetta Local Land Court (LLC) dated the 3rd October 2013 over the customary ownership of the portion of land known as DA 1695 of which the Girua Airstrip and airport is located. 
2. That LLC was constituted by Bill Noki, and Messers Sorari, Asimba, Bohure and Simbiri. That portion of land was described in governmental notice G148 of 21st August 2008 as:
“All that piece of land containing in the area of 243.3 hectares or thereabouts and being whole of that land  locally known as Dobuduru-Inonda  entered as DA 1695 in the Register of Deed of Attestation in the Department of Lands and Physical Planning Port Moresby and demarcated and depicted on registered cadastral survey plan catalogue number 43/329 in the said Department of Lands  and Physical Planning Port Moresby, National Capital District Lands File No: 72/3529.”
3. I am satisfied that I have the jurisdiction to hear the appeal as the dispute arose wholly within the Northern Province Land Mediation Area (see s. 53 of the Land Disputes Settlement Act Ch. 45 hereinafter called “the Act”).  
Section 53 provides for the courts’ JURISDICTION and states that:
“Subject to this Part, a Provincial Land Court has jurisdiction to hear and determine appeals from a decision of a Local Land Court where the land in dispute is situated wholly or partly within the area of the Provincial Land Court.”
4. I am further satisfied that the appeal is competent in that it has been lodged within time (S. 54) and that the prescribed fee had been duly paid (S. 57). Section 54 of the Act provides that an appeal against an order of the Local Land Court shall be lodged within three months from the date of the decision. It states:  
“54. APPEAL AGAINST DECISION OF LOCAL LAND COURT.
(1) Subject to this section, a person aggrieved by a decision of a Local Land Court may appeal within three months after the date of the decision to the Provincial Land Court.
(2) Where the Provincial Land Court is of opinion that it is desirable in the interests of justice to do so, it may, whether or not the time fixed for appeal under Subsection (1) has expired, extend the time fixed for appeal, but leave shall not be granted after the end of the period of 12 months after the date of the decision appealed against.”
5. There is evidence on file of Section 57 being complied with by all Appellants. It states:
“57. DEPOSIT ON APPEAL.
(1) Subject to Subsection (2), a party appealing against a decision of a Local Land Court shall lodge with the Government a deposit in the prescribed amount or in accordance with the prescribed scale.
(2) A Local Land Magistrate or a Provincial Land Magistrate, may, for good cause, on application by the party lodging the appeal, waive or reduce the amount of the deposit.
(3) A Provincial Land Court shall not proceed to hear and determine an appeal unless it has first satisfied itself that the appellant has paid the required deposit (if any).
(4) A Provincial Land Court–
(a) shall, if the appeal is upheld; and
(b) may, in any other case,
order the return of the deposit in whole or in part to the appellant.”
I will therefore proceed to determine the appeal.
6. There were Seven clans of the original eleven clans who are recorded to have claimed ownership over portions of DC 1695 in the Local Land Court, who have appealed to the Provincial Land Court (PLC) against the decision of the Local Land Court dated 3rd October 2013. 
•	Andiriha clan 
•	Tandaepa clan
•	Hangiripa clan
•	Gazerepa clan
•	Hamaipa clan
•	Jangoropa clan
•	Umotaha clan
These remaning 4 clans did not appeal.
•	Endehipa clan
•	Haugapa clan  
•	Houpa clan                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 
•	Kinaripa clan
7. On the 27th July 2020, PLC chaired by the acting Principal Magistrate Leonard Mesmin declared a mistrial of the previous PLC proceedings that had not been concluded on the basis that the Principal Magistrate who had chaired the previous PLC, Mr Vincent Linge, has now since retired. 
8. Parties that were present on that day are:
Appellants and Respondents:
•	Andiriha clan 	- Steven Orari and Enek Orari
•	Tandaepa clan 	– Jaranton Epepa, Frank Egimbari and Sodias Avera
•	Hangiripa clan 	– Fordy Orari, Alpheus Hameno and Wayne Ken  
    Porusa
•	Gazerepa clan 	– Theophilis Ajariembo
•	Hamaipa clan 	– Kingsford Orere
•	Jangoropa clan 	– Barthy Kaepa
•	Umotaha clan 	– Lansford Umotaha
•	Endehipa clan 	– Edrik Emote and Albert Maclaren Homepa
•	Haugapa clan 	– Maxwell Opita
•	Houpa clan 		– Abraham Sirota                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                
•	Kinaripa clan 	– Jackson Suma
BACKGROUND
9. On the 27th December 1935, the Colonial Administration (Papua) acquired the land in dispute for aviation purposes. 
10. The National Government through the then, Minister for Lands and Physical Planning, Dr. Puka Temu gave its Notice of Intention on 6th February 2007 pursuant to Section 7 of the National Land Registration Act (NLRA) to declare that portion of land as National Land. That Notice of Intention was gazetted as G19 of 8th February 2007. 
11. The Minister for Lands and Physical Planning had proceeded to exercising his powers by virtue of the provisions of the NLRA and issued his notice under   Section 9.
The Girua Airport land – DA 1695 was declared as National Land in the National Gazette No. G148 of 21st August, 2008, in accordance with the National Land Registration Act Ch. 357. 
12. Upon declaration as National Land, eleven clans claimed ownership in respect of land referred to as DA 1695 – Girua Airport before the Land Titles Commission of the Department of Attorney General, PNG.
13. This dispute has quite a long history to it but for our present purpose, however, all that needs to be said is that there had been a previous Provincial Land Court proceedings that were not completed and were not entertained any further and kept in abeyance on the basis that the Principal Magistrate Mr. Linge, (as he then was) who was hearing the matter has since retired from the magisterial services in 2018 leaving the matter uncompleted and sits as a pending matter on the PLC master list. 
14. From that time till current, parties have communicated with and through the registry to the Deputy Chief Magistrate for Land Courts, office to secure a Principal Magistrate to circuit the province to specifically hear the appeal. That did not happen until the current Senior Provincial Magistrate was appointed as acting Principal Magistrate early this year and took carriage of this case. 
15. Now, with that PLC not completed, a decision was made by this court to declare a mistrial and to proceed to hear the appeal against the decision of the local land court dated 3rd October 2013.
16. The LLC decision was made and translated on 2 separate form 11’s – Record of Proceedings in the Local Land Court but both were signed by the LLC chairman and sealed by him and further sealed with the LLC seal. From here on I will make reference to the two decisions as Order 1 and Order 2. The LLC’s decision in Order 2 was worded in this way:
“5. Decision of the Court is as follows:
(a)	According to evidence presented in this case the court declares by majority that no one party has established exclusive ownership interests over entire DA1695 GIRUA AIRPORT LAND.
However, the court further finds that each clan had established some kind of interest akin to ownership of numerous portions claimed by parties of a limited nature, based on occupational, cultivation, gardening, hunting, gathering and usage rights;
(b)	Thus, the majority the court declare the following parties as owners of their respective portions in the eastern direction relating to size and area of land portions as principal owners of the following:-
(i)	We declare that land interests commonly known as JOMBOTA in the eastern direction  of the run way is jointly owned by JANGOROPA and ANDIRIHA clans, according to size and land area of each clan, we award twenty percent (24%) to JANGOROPA clan and sixteen percent (16%) to ANDIRIHA clan as principal land owning clans;
(ii)	All payments are to be processed and paid in the name of VELET EGIMBARI as leader of the JANGOROPA CLAN through their ILG or clan name account with BSP Popondetta; and similarly all payments of ANDIRIHA CLAN.
We also recognized BARTI KAEPA and JOHN SEHOPA & families who actually dwell on This Land at Hombiri Harmlet, a sizeable percentage of ten percent (10%) is allocated as co-owners of JOMBOTA LAND, during benefit sharing Agreement.
(iii)	In retrospect of the same land interests known as JOMBOTA we awarded user rights to the following clans:-
HAMAIPA CLAN, we awarded three percent (3%) to be paid to their leader STANFORD ORERE either through their ILG or Clan Account with BSP Popondetta Branch;
UMOTAHA CLAN, we reject their claim outright to be paid customary compensation by JANGOROPA & ANDIRIHA CLANS.
HOUGAPA CLAN, we allocated four percent (4%) to be paid to their leader ARNOLD ERUGA, either through their ILG or Clan Account with BSP Popondetta Branch.

(iv)	We further declare TANDAEPA/HANGIRIPA Clans as legitimate owners of land interests known as DOROPATA also located at the eastern end of the run way and we allocate eight percent (8%) to both clans.
(v)	We order that all payments are to be processed and paid in the name of FRANK EGIMBARI, either through their ILG or Clan Account with BSP Popondetta branch and we direct that equal  percentage of 4% be paid to HANGIRIPA Clan through their leader JARANTON EREPA, either through their ILG or Clan Account with BSP Popondetta Branch.
(vi)	We further declare the land interests commonly known as PARU HURUKARI along the western direction of the run way, as legitimately owned by ENDEHIPA CLAN, and we allocate twenty percent (20%) to them;
(vii)	We order that all payments are to be processed and paid in the name of EDRICK EMOTA their clan leather either through ILG or Clan Account with BSP Popondetta Branch. We further recognized MR. ALBERT McLAREN & FAMILY and MALCOLM and FAMILY who actually live and dwell and we direct that 10% be paid to him through the benefit sharing agreement as actual owner of the land other then the Clan at the Girua Wet Crossing;
(viii)	We also declare the land interests commonly known as  HAGUMA SAVATA, also located along the western direction of the run way, as legitimately owned by the HOUPA CLAN, and we locate ten percent (10%) to them;
(ix)	All payments is made under the name of ABRAHAM SIROTE, the leader of HOUPA CLAN Leader either through their ILG or Clan Account held with BSP Popondetta Branch.
(x)	Finally we also recognized and award user rights to the following:-
(a)	GAZEREPA CLAN award user right of the use of land known as Peromba Kohirita on the Western part of the run way and we allocated three percent (3%) all payments be made to Theopaulus Kajari the leader of the Clan either through the ILG or Clan Account held with BSP Popondetta Branch.
(b)	KINARIPA CLAN, we award user right of the use of Doropata Land on the Western part of the runway and we allocate two percent (2%); all payments to be made to Mr. Dupinipa (Jr); the leader of the Cland either through its ILG or Clan Account Held with BSP Popondetta Branch; and finally
(xi)	This honorable tribunal by majority is conscious to the existing  government structures, in particular the Provincial Government and all other organizations, individuals, the court, having conducted inspections without any assistance, and for any other purpose seen appropriately by the Girua Landowners Committee, who proposed a percent formula and consequently, we declare and award ten percent (10%) to be deducted from the principal amount, for payment as administrative costs.
All payments are to be disbursed by the Girua Landowners Committee after consultation with the Court Appointed Officer, Mr. Tony Sua, as to the break-up of percentages, to the Provincial Government consolidated revenue account, the police for covering security operations during the entire Court hearing and to the Court to cover costs of vehicle hire, drivers and others; and to other individuals who expanded costs of their own to pursue any activity associated with the hearing of the case.
(xii)	The Independent State of Papua New Guinea through the Department of Justice and Attorney General is ordered to pay all monies held in trust for this purpose as Compensation to the GIRUA LANDOWNERS ACCOUNT held with the BSP Branch at Popondetta;
That the Management of the BSP Branch at POPONDETTA is restraining from issuing any other cheque book, accept the one previously issue for this purpose.
	Given under my hand and Seal this 03rd October, 2013
									BY THE COURT “
17. On the 31st July 2020, the Appellants proceeded to submit on their separate grounds of appeal. For the record, it must be noted that the Assessors being Jarius Simbiri and Timius Sorari were present. 
18. I noted that most if not all appellants’ grounds of appeal were similar in nature and were properly sought under s. 58 (a)(b) & (c) of the Act.  These are:
(1)	That the Local Land Court exceeded or refused to exercise its jurisdiction; and 
(2)	That the Local Land Court conducted its hearing in a manner contrary to natural justice;
(3)	On the evidence before the Local Land Court and mediations and in the circumstances of this case no Court doing justice between the parties would have made the decision appealed against.
19. Given that the grounds put forward by all the appellants were common, to a certain extent, in nature, I will make reference to only one clans’ grounds of appeal that covers all those common contentions as to why the appellants were aggrieved by the decision of the LLC.
GROUND 1
20. That the Local Land Court exceeded or refused to exercise its jurisdiction.
“In support of this ground it is the appellants’ contention that –
a)	The Local Land Court exceeded its Jurisdiction by awarding or distributing percentages of the total amount of award without justifying and or explanations as to how it has reached such a decision, and more seriously the Local Land Court has made such a decision outside of the normal court processes. All parties were not present at the time the distribution was made.
b)	…………………………………………………………….. 
c)	The Local Land Court refused to exercise its Jurisdiction after the declaration of Potion DA 1695 and the Order of the Local Land Court dated 03rd October, 2013 by not satisfying Section 42 of the Land Dispute Settlement Act. The Local Land Court did not visit the subject land with the parties involved or representatives of the parties, after the Declaration and the Order thereby contravening Section 42 of the Act.
d)	The Local Land Court refused to exercise its Jurisdiction by failing to conduct proper cross-examinations on all parties involved. Most of the parties were not properly scrutinized in terms of oral evidences.
e)	The Local Land Court exceeded its Jurisdiction by declaring parts of the subject land and further awarding percentages of the total amount awarded, to individual persons and or clans who were not parties to the dispute. Furthermore, the Local Land Court exceeded its jurisdiction by including Umotaha Clan and Hangiripa Clan as parties to the case when they did not file proper application before the Court to be included as parties to the matter. The two mentioned clans were not parties in the earlier process of mediation. 
f)	…………………………………...
g)	…………………………………..”
21. Of the above contentions, only clause (a) and (c) can be taken to support this ground.  Clause (d) would more or less support the second ground and clause (e) would support the third ground and I would treat it as such.
ASSESSMENT OF THE EVIDENCE RELATING TO GROUND 1
22. On 31st July 2020, Kevin Oriri Hangopa, the son of Steven Oriri of Andiriha clan submitted that under the Land Dispute Settlement Act 1975, he understood that the Local Land Court did not have the power to award percentages relating to benefit sharing and because it did decide to do so, it exceeded its powers. These submissions were concurred to by Theophilus Ajarembo of Gazarepa clan and Wayne Ken Porusa of Hangaripa clan and Barty Kaepa of Jangoropa clan on 6th August 2020.
23. Witnesses from the Appellate clans, specifically, Anidirha and Hangirpa, in the likes of Kevin Oriri Hangopa and Wayne Ken Porusa led evidence on 7th August 2020 and 14th August 2020 that the Local Land Court does not have the power to declare percentages in relation to benefit sharing. 
24. Wayne Ken Porusa testified that the order given by the National Lands Commissioner was specific in so far as it was a referral to the LLC to deal with the matter as if it were a dispute under the LDSA over ownership to declare who the customary owners were of the State Land known as DA 1695. The LLC was only to make a declaration as to ownership and it had no authority to proceed to award benefit sharing percentages to the eleven parties. 
25. In evidence on file, a formal Order was given by the Commissioner of the National Lands Commission, Luke Konji Kwago, dated 16th June 2009, stating that more than one claim had been made to the National Lands Commission under s.39 of Land Registration Act for Settlement Payment in respect to the land known as DA 1695 and that those claims were conflicting and inconsistent. The order further directed that the matter in terms of the inconsistency be dealt with as a dispute as to ownership of an interest in customary land, under the Land Dispute Settlement Act 1975. Until the dispute relating to ownership over DA 1695 has been dealt with, any further proceedings in the National Lands Commission stood adjourned. 
26. The commissioner for LTC referred these eleven clans to register their land dispute with the Local Land Court to determine ownership upon which Settlement Payments would be made.  
27. This therefore is a referral from the National Lands Commission to the Local Land Court to register a dispute over the ownership of DA 1695 and hear the dispute to ascertain and declare who the customary land owners are, so that the NLC can make Settlement Payments to the declared customary land owners. 
28. I understand that Royalty payments as opposed to Settlement payments is the responsibility of the Department of Civil Aviation Authority as they are the user of that land which the office of the National Land Commission have no jurisdiction over.
29. Settlement Payment is done where the original land owners from whom the Pre-Independence Administration of Papua New Guinea had acquired the subject land, have yet to be properly, fairly and adequately compensated by settlement of their compensation monies. 
I refer to section 3 of the LDSA.
3. APPLICATION.
(1) Subject to Subsection (2) and to Section 4, this Act applies to disputes as to interests in customary land, or as to the position of boundaries of any customary land.
(2) Nothing in this Act applies to a dispute–
(a) as to whether land is or is not customary land; or
(b) to which Part IV. of the Land Groups Incorporation Act 1974 applies.
30. It is clear that the Local Land Court jurisdiction and its application only extends to disputes as to interests in customary land, or as to the position of boundaries of any customary land. It is clear that by awarding percentages the LLC has gone above and beyond its powers. 

31. It is further contended by all the witnesses that testified through their testimonies that it was mandatory that the LLC was to have visited the disputed land after a declaration and a formal order was made as to who the owners were and what were the boundaries, and that never happened. Albert Maclaren Homepa and Wayne Ken Porusa when examined in court, lead evidence that it was important that the court was to have visited the portion of land a second time for the purposes of making certain all parties understood the terms of the LLC order and further were clear as to what and where the boundaries were. 
32. By not conducting this second visit, all parties are still unclear as to where each and every boundary lie and because in the decision itself there is not clear description and demarcation of where the boundaries are, all the appellants were at a loss as to how the LLC assessed the percentages awarded to each clan for benefit sharing.  
33. Section 42 of the Act makes it mandatory for a LLC to visit the land with the parties or the representatives of the parties, as far as practicable:
•	walk the boundary, record the boundary in such a manner as it thinks will enable it to be readily identified:
•	include in the record of proceedings the fullest possible description of the land in dispute, having regard to the resources for describing land available to the Court; and 
•	the names of all witnesses who visited the land with the Court.
 	“42. VISIT TO LAND AFTER ORDER.
(1) On making an order under this Part, other than a temporary order under Section 30, a Local Land Court shall–
(a) visit the land with the parties or the representatives of the parties and not less than five witnesses from the same or an adjacent area; and
(b) satisfy itself that the parties and the witnesses understand–
(i) the nature of the order; and
(ii) the scope and extent of the land over which the interests as declared in the order may be exercised.
(2) Where the order includes provision as to the position of a boundary to the land in dispute, the Court shall–
(a) as far as practicable, walk the boundary with the parties; and
(b) unless it thinks it impracticable to do so, direct the parties to indicate the boundary on the ground by such natural features or such marks as it thinks appropriate; and
(c) record the boundary in such manner as it thinks will enable it to be readily identified; and
(d) record the names of not less than five witnesses who are prepared to testify to the position of the boundary.
(3) Section 36(2) and (3) apply to a visit under this section as though it were an inspection under that section.
(4) The Court shall include in the record of proceedings–
(a) the fullest possible description of the land in dispute, having regard to the resources for describing land available to the Court; and
(b) the names of all witnesses who visited the land with the Court.”
34. I find that there is no record on file that a second mandatory inspection was not conducted by the LLC thereby contravening this provision.
It further did not inspect by walking the land after an order was made in compliance with s.42 of LDSA.

35. I find that the LLC did indeed refuse to exercise its jurisdiction by not complying with s.42 of LDSC and I further find that the LLC did exceed its jurisdiction by awarding percentages for benefit sharing in contravention with s.3 of LDSA and for the above reasons I would uphold this ground of appeal.
36. At this juncture I would like to mention that in any other circumstances, after having allowed the appeal on the first ground, I would not venture in to considering the second ground of appeal or the third ground.  However, I feel compelled to consider these ground separately for reasons that will become clear later.
GROUND 2
37. THE LOCAL LAND COURT CONDUCTED ITS HEARING IN A MANNER CONTRARY TO NATURAL JUSTICE 
a)	“The Local Land Court failed to conduct proper and full Cross-examinations in the course of the proceedings as most of the written evidences provided by way of affidavits were not fully tested. Through complete cross-examinations land marks and ownership of certain land boundaries can be tested face-to-face and identified and the subject land Potion DA 1695 Girua Airport can be placed in light of the ownership. Most of the parties were not properly scrutinized in terms of oral evidences. Andiriha Clan was not given the opportunity to be cross-examined or examined-in-chief. The only four clans that were examined are Jangoropa Clan, Gazerepa Clan, Tandaepa Clan and Houpa Clan.
b)	……………………. 
c)	……………………..
d)	……………………..
e)	The Local Land Court overlooked most of the evidences provided in court. The decision of the Local Land Court was based on outside influences and or erroneous speculations. In the decision of judgments of the Local Land Court, the court at some stages did not explain in detail the reasons of its declaration in line with the cruel evidences provided in court. In general view the Local Land Court members must have had a compromising interest in the case which might have influenced their decision.”
ASSESSMENT OF THE EVIDENCE RELATING TO GROUND 2
38. The idea of natural justice stands on the two principles:
•	that an assessor or a judge or an adjudicator should have no interest in the matter before him so as not to be biased; 
•	and that the disputing parties be given adequate notice and opportunity to be heard.  
39. The National Constitution provides the minimum requirement for Natural justice as the duty to act fairly (s. 59 (2) of the Constitution).  To put it another way “justice must not only be done but be seem to be done”.
40. The appellants contend strenuously that they were denied a proper hearing.  
On 7th August 2020, the court summoned its witness, Albert Maclaren Homepa, to give evidence on the issue of:
•	whether or not all the parties were given an equal opportunity to produce evidence in relation to their understanding of customary land tenure laws in their area and also on how their respective clans came about becoming owners; and 
•	whether that evidence was tested through examination in court?
41. When asked the question if all parties were given an opportunity to produce evidence through their witnesses, this witness said, “only four clans did”. When asked the same question again, the witnessed clarified his earlier answer stating that all clans produced documentary evidence before the court but no witnesses were called to test that documentary evidence. 
 42. Wayne Ken Porusa also gave evidence that none of the clans were given the opportunity to produce witnesses to test their evidence relating to custom and ownership, as to how each clan came to claiming the land as owners. 
43. After perusing the file, I find that there are no written records of witnesses being called to give evidence on custom or how each clan has a better or higher claim to ownership over the other clans.
44. The only law under which the Local Land Court is bound is the Land Dispute Settlement Act (the Act) and the relevant customs of the disputing parties. The LLC has the major responsibility pursuant to sections 35(1)(d), 68 &69 of the Act of discharging substantial justice between the disputing parties. 
45. In resolving the dispute and determining what sought of orders the LLC can make, assistance is given under the Act through “evidentiary aids”.
 46. A form of evidentiary aid is the relevant custom of the disputing parties in-relation specifically to interests in the customary land and the process where those interests are transferred, moved, given, allocated or re-allocated by custom within a clan or from one clan to another. 
47. In customary land disputes the relevant law is Custom and the Act. As a matter of law the LLC is directed under s.39(2) to test the evidence before the court by enquiring into the customary land tenure system, principle and practices of the parties that have been raised and responding to the dispute. 

48. This necessarily means that the LLC must cause evidence to be called by all parties involved and/or any other parties that are knowledgeable and have some expertise in the area of customary land tenure to assist. 
Section 39(3) of the Act states:
“(3) Subject to Subsection (2), the customary interests in relation to land that a Court may take into consideration include customs as to–
(a) the exclusive use or possession of land; and
(b) the disposal of land or an interest in land; and
(c) the use or possession of land for limited purposes; and
(d) the growing or harvesting of garden crops or tree crops; and
(e) the exclusive use or possession of trees or improvements on land; and
(f) the use or possession of trees for limited purposes; and
(g) the fishing, farming or grazing of animals; and
(h) the hunting or gathering of animals or vegetable matter; and
(i) the collecting or mining of earths and minerals permitted by law; and
(j) passages or landing places.”
49. In some customs there are certain customary obligatory activities that need to take place and be performed, like mortuary feasting, or inter marriages by which interest in land is transferred, re-allocated, affirmed or re-affirmed.
50. The section gives a summation of the kind of interests the LLC may take into consideration but this is not an exhaustive nor is it a conclusive list of what the court may take into account as evidentiary aids. Customary interest in land is not always something that you can see and touch and can extend to the incorporeal like ancestral spirits. 
51. The point is that the process of enquiry through the questioning of witnesses, hearing out their evidence, assessing their testimonies against the written documentary evidence on file in regard to customary practices has always been the responsibility and duty of the court.  
52. How does a court of law determine customary land tenure laws?
The Customary (Recognition) Act Ch. 19 generally provides for the manner by which custom can be pleaded and proven in a court of law. The courts have the power to prove that a customary practice, rule or law is fact. 
53. Having said that though s.68(3) of the Act stipulates that the  Customary (Recognition) Act Ch. 19 does not apply in the LLC or Provincial Land Court (PLC). 
68. DETERMINATION OF CUSTOM.
(1) Subject to this section, in all matters before a Provincial Land Court or a Local Land Court the Court shall determine, on the evidence before it, the relevant customs of any group appearing or represented before it.
(2) In applying custom the Court shall have regard to any guidelines laid down in the regulations, and may modify custom to give effect to the guidelines.
(3) The Customs (Recognition) Act 1963 does not apply to the determination or application of custom by a Provincial Land Court or a Local Land Court.
(4) Insofar as the power to make laws conferred on a Local-level Government by the Organic Law on Provincial Governments and Local-level Governments extends to the making of laws declaring what is to be taken to be the custom relating to any matter, any such law is evidence in any Provincial Land Court or Local Land Court of the matters set out in the rule.”
54. This section clearly gives the LLC a guide as to how it should go about determining custom. My understanding of these guidelines are as follows:

•	Relevant evidence must be called regarding custom from disputing parties;
•	It is the courts duty to cause evidence to be produced by disputing parties;
•	Guidelines, if any, in the regulations have to be applied;
•	LLC have the power to modify custom to give effect to those guidelines;
•	In the absence of any guidelines the LLC is left to develop and adopt rules and guidelines from other similar cases or on case by cases basis; and
•	LLC can consider evidence of rules enacted and passed by the Local Level Government. 
55. This court agrees that evidence must necessarily be called from the parties or in other words the court must cause evidence to be produced by the conflicting parties. We find that there are no guidelines incorporated into the regulations, so it was for the LLC to develop and adopt guidelines as they proceed through the case. We further find that the Local Level Government of the electorate within which the dispute arose, has not passed any such laws pertaining to customary land tenure laws of the area so the LLC could have relied on that aspect. 
56. Having said that, this would mean the customary land tenure laws must be adduced by way of evidence produced and tested in court, meaning the LLC is to put to the disputing parties questions to draw from them evidence relating to customary practices attached to acquisition, disposal, transfer, allocation, re-allocation and usage of customary land. The LLC also has the benefit of the information it can source from its land mediators that form part of the bench who themselves are a source of knowledge relating to customary land tenure practices or laws. 
57. The object of testing witnesses through their testimonies is twofold:
•	To elicit information concerning facts in issue or relevant to the issue; and 
•	To cast doubt on the accuracy of an opposing witness. 
58. In other words, it is a means of testing the reliability of testimony and without testing it, how can the court know just how much weight it can place on that testimony. 
59. In evidence and on file it appears that, this was not done. The Court in its reasons does not give any reason whatsoever for its declaration.  Further, nothing in the evidence alludes to any local custom that regulates or governs the assumption of or conferment of the power of control by one sub-clan over other sub-clans or the major clan for that matter. Basically, meaning that there was no evidence lead by witnesses to confirm the documents filed relating to custom and ownership and even boundaries. It begs the question as to how the LLC arrived at its decision to make the declarations it did on ownership and awarding percentages for benefit sharing. 
60. I find that the Court below did not test the competing claims as regard this issue. Natural justice demands that due process must be complied with. I would like to think that given the circumstances of the case and particularly the observations that I’ve alluded to immediately above, any reasonable person would have come to the same conclusion.
For the above reasons I would also uphold this ground of appeal.

GROUND 3 
61. IN THE CIRCUMSTANCES OF THE CASE THE LOCAL LAND COURT SHOULD HAVE NOT MADE SUCH A DECISION WHERE JUSTICE IS PARAMOUNT
It is also contended as a ground under 1(e) that “Furthermore, the Local Land Court exceeded its jurisdiction by including Umotaha Clan and Hangiripa Clan as parties to the case when they did not file proper application before the Court to be included as parties to the matter. The two mentioned clans were not parties in the earlier process of mediation.”
62. I’ve indicated above when considering the first ground that clause (e) of ground one could be better argued in support of this third ground.  It is noted, however, that, that argument merely basically argues that certain parts of the decision are inconsistent with each other as there are not one but two Records of Proceedings stating the LLC’s Orders that are found to be conflicting and therefore causing much confusion for all parties who now had to decide on their own which order to rely on as the true order of the LLC.
63. In evidence, on file I noted that LLC made 2 different record of proceedings with varying terms in its decision and it was made on the same day. I referred to the two separate record of proceedings as Order 1 and Order 2 earlier.
64. Kevin Oriri Hangopa and Wayne Ken Porusa gave evidence that there were so many varying and conflicting terms that it brought about confusion when both orders were read together. 
65. I therefore direct my mind to examining  both orders to ascertain whether they are one and the same order or two totally different orders made on the 3rd October 2013. For our purposes I have focused on Order 2 but have highlighted the differences in bold and in brackets explained the difference between the two orders.
(i)	“We declare that land interests commonly known as JOMBOTA in the eastern direction  of the run way is jointly owned by JANGOROPA and ANDIRIHA clans, according to size and land area of each clan, we award twenty percent (24%) to JANGOROPA clan and sixteen percent (16%) to ANDIRIHA clan as principal land owning clans; (the wording is different from the numbering)
(ii)	All payments are to be processed and paid in the name of VELET EGIMBARI as leader of the JANGOROPA CLAN through their ILG or clan name account with BSP Popondetta; and similarly all payments of ANDIRIHA CLAN be processed and paid in the name of PAUL ENEK ORIRI as leader of the ANDIRIHA CLAN. (not in Order1)
We also recognized BARTI KAEPA and JOHN SEHOPA & families who actually dwell on This Land at Hombiri Harmlet, a sizeable percentage of ten percent (10%) is allocated as co-owners of JOMBOTA LAND, during benefit sharing Agreement. (With Jangoropa clan is removed in Order 2)
(iii)	In retrospect of the same land interests known as JOMBOTA we awarded user rights to the following clans:-
HAMAIPA CLAN, we awarded three percent (3%) to be paid to their leader STANFORD ORERE either through their ILG or Clan Account with BSP Popondetta Branch;
UMOTAHA CLAN, we reject their claim outright to be paid customary compensation by JANGOROPA & ANDIRIHA CLANS.
HOUGAPA CLAN, we allocated four percent (4%) to be paid to their leader ARNOLD ERUGA, either through their ILG or Clan Account with BSP Popondetta Branch. (this is order (v) in Order 1)
(iv)	We further declare TANDAEPA/HANGIRIPA Clans as legitimate owners of land interests known as DOROPATA also located at the eastern end of the run way and we allocate eight percent (8%) to both clans.(this is order (iii) in Order 1)
(v)	We order that all payments are to be processed and paid in the name of FRANK EGIMBARI, either through their ILG or Clan Account with BSP Popondetta branch and we direct that equal  percentage of 4% be paid to HANGIRIPA Clan through their leader JARANTON EREPA (not in Order 1 as there is a different person named – ANTON KENDI PORUSA in Order 1) , either through their ILG or Clan Account with BSP Popondetta Branch. .(this is order (iv) in first order)
(vi)	We further declare the land interests commonly known as PARU HURUKARI along the western direction of the run way, as legitimately owned by ENDEHIPA CLAN, and we allocate twenty percent (20%) to them; (this is order (vi) in Order 1)
(vii)	We order that all payments are to be processed and paid in the name of EDRICK EMOTA their clan leather either through ILG or Clan Account with BSP Popondetta Branch. We further recognized MR. ALBERT McLAREN & FAMILY and MALCOLM and FAMILY who actually live and dwell and we direct that 10% be paid to him through the benefit sharing agreement as actual owner of the land other then the Clan at the Girua Wet Crossing; . (this is order (vii) in Order 1 but in Order 2 the LLC included the name MALCOLM and not in Order 1)
(viii)	We also declare the land interests commonly known as  HAGUMA SAVATA, also located along the western direction of the run way, as legitimately owned by the HOUPA CLAN, and we locate ten percent (10%) to them; (this is order (viii) in Order 1)
(ix)	All payments is made under the name of ABRAHAM SIROTE, the leader of HOUPA CLAN Leader either through their ILG or Clan Account held with BSP Popondetta Branch. (this is order (ix) in Order 1)
(x)	Finally we also recognized and award user rights to the following:-
(a)	GAZEREPA CLAN award user right of the use of land known as Peromba Kohirita on the Western part of the run way and we allocated three percent (3%) all payments be made to Theopaulus Kajari the leader of the Clan either through the ILG or Clan Account held with BSP Popondetta Branch. (added in bold not in Order 1 and this is order (x) (a) in Order 1)
(b)	KINARIPA CLAN, we award user right of the use of Doropata Land on the Western part of the runway and we allocate two percent (2%); all payments to be made to Mr. Dupinipa (Jr); the leader of the Cland either through its ILG or Clan Account Held with BSP Popondetta Branch; and finally (added in bold not in Order 1 and this is order (x) (b) in Order 1)
(xi)	This honorable tribunal by majority is conscious to the existing  government structures, in particular the Provincial Government and all other organizations, individuals, the court, having conducted inspections without any assistance, and for any other purpose seen appropriately by the Girua Landowners Committee, who proposed a percent formula and consequently, we declare and award ten percent (10%) to be deducted from the principal amount, for payment as administrative costs. (added in bold not in Order 1 and this is order (xi) in Order 1)
All payments are to be disbursed by the Girua Landowners Committee after consultation with the Court Appointed Officer, Mr. Tony Sua, as to the break-up of percentages, to the Provincial Government consolidated revenue account, the police for covering security operations during the entire Court hearing and to the Court to cover costs of vehicle hire, drivers and others; and to other individuals who expanded costs of their own to pursue any activity associated with the hearing of the case. (added in bold not in Order 1)

(xii)	The Independent State of Papua New Guinea through the Department of Justice and Attorney General is ordered to pay all monies held in trust for this purpose as Compensation to the GIRUA LANDOWNERS ACCOUNT held with the BSP Branch at Popondetta; 
That the Management of the BSP Branch at POPONDETTA is restraining from issuing any other cheque book, accept the one previously issue for this purpose. (added in bold not in Order 1)”
66. I have perused the material on file and I noted certain correspondences on file from different authors, from the eleven clans alluding to “confusion and disagreements amongst clans named in the decision regarding the meaning of the two separate record of proceedings that reflect the LLC’s decision” and seeking the Provincial Land Court’s interpretation of that LLC decision.
67. To highlight a confusion raised, I note order (v) where it can be inferred that one Appellant clan is not entirely in agreement as to who should take the lead in the matter for their respective clans, it states:
We order that all payments are to be processed and paid in the name of FRANK EGIMBARI, either through their ILG or Clan Account with BSP Popondetta branch and we direct that equal  percentage of 4% be paid to HANGIRIPA Clan through their leader JARANTON EREPA (not in Order 1 as there is a different person named – ANTON KENDI PORUSA in Order 1) , either through their ILG or Clan Account with BSP Popondetta Branch. 
68. Clearly, on the two separate Record of Proceeding documents, each document has stated a different named person as the clan leader for Hangiripa clan – Jaranton Erepa and Anton Kendi Porusa. That fact in itself would cause confusion amongst that clan.
69. Therefore the decision as worded or termed in both separate Record of Proceedings is prima facie ambiguous and confusing in that whilst the Court declared Jaranton Erepa as the Hangiripa clan leader to receive 4% payout, it also declared Anton Kendi Porusa as the Hangiripa clan leader to receive the same 4% payout on behalf of that same clan. 
70. It is to be noted that a lot of money is expected to be paid out as compensation or settlement payment for the land and these parties are obviously not in agreement as to who among them has the controlling right in the land and ultimately to take charge in the distribution (if at all) of any such compensation.

71. The Court’s reasons for decision are silent as to how and why ownership was awarded the way it was – whatever those might be – let alone why no clan had more of a right to claim the whole portion of DA 1695 as the principal landholding clan over all the other clans.  I have tried to elicit from the parties the local custom as regard the exact nature of interests that major clans and their sub-clans have and exercise over communal land, the distribution of such land and the question of control of the land by the major clan and their the sub-clans but to no avail. I find no agreement on these matters.
72. I therefore, find fault in the both orders as they do not say, one and the same thing and a result of that is that the Appellants are directly affected by the alleged inconsistencies.
73. Without enquiring deeper into this matter due to lack of time, what is obvious to me is that the Local Land Court made its declaration in a vacuum and was not supported by evidence as regard the relevant custom.
74. I further find that the conduct of the proceedings in this LLC matter now appealed against, quite disturbing to say the least.
75. Therefore, confusing, ambiguous and unsupported as it is by evidence and local custom, the decision should not be allowed to stand. For the above reasons I would also uphold this ground of appeal.
POWERS OF PLC
76. Having upheld all grounds of the appeal what orders should I then make?  Section 59 (1) of the Act empowers me to do either of the following:
“59.	Powers on appeal.
(1)	In determining an appeal under this Division, a Provincial Land Court may—
(a)	…
(b)	quash the order and –
(i)	make such other order as, in the opinion of the Court will dispose of the appeal and the dispute; or
(ii)	where in the opinion of the Court, justice 
(iii)	demands that the matter or part of the matter of the appeal be remitted to the Local Land Court, remit the matter or that part of the matter to the Local Land Court.
77. Section 59 (2) further provides that “in remitting a matter to the Local Land Court, the Provincial Land Court may give such instructions, directions or guidelines to the Court as to the manner in which the matter remitted is to be dealt with.”
78. Now whilst I do have the power to quash the order appealed against and substitute it with an order of my own, I do not think that the circumstances of this case would allow me to take such an option.
79. It is obvious from what I have discussed above that there are serious matters to be tried and properly tested, such as the relevant custom as to the exact nature of interests and rights that major clans and their sub-clans have or exercise over the clans landholdings.
Having said that, it would be necessary for the Court to enquire fully into what the custom is, regarding the disposition or sale and purchase of customary land in the customary society of each respective clan.  
80. The only way these issues can be addressed is for the remittal of the whole matter to the Local Land Court with directions of course – for a rehearing.
I therefore make the following orders:

1.	The appeal be upheld and that the order of the Local Land Court of the 3rd October 2013 be quashed.
2.	That the matter be wholly remitted to the Local land Court in a properly Constituted Coram within the terms of Section 23 of   Land Dispute Settlement Act for rehearing with the following directions:
(i)	that the Court enquires specifically into the custom of the area in which the disputing clans live regarding –
(a)	the distribution of communal land between major clans and their various sub-clans;
(b)	the exact nature of interests and rights major clans and sub-clans enjoy or exercise in respect of communal land;
(c)	the exercise of control (if any) by the major clan over its sub-clans over dealings in communal land; whether sub-clans can exercise controlling rights over other sub-clans or the major clan for that matter and whether there is power in the major clan and its sub-clans to individually dispose of land within its custody or control;
(d)	the effects of customary disposition of land by purchase, particularly whether there remains in the vendor any residual interests, which he may exercise or insist upon or impose against the purchaser in the future.
(e)	The re-hearing in the Local Land Court may adopt all or part of the evidence already adduced in the previous proceedings for its consideration.
(f)	A full and thorough inspection of the disputed land be carried out with no interruptions from the disputing parties.
(g)	Any manner or form of disrespect and disrespectful behaviour by the disputing parties at the time of inspection be referred for Criminal Prosecution under Section 63 (3) of Land Dispute Settlement Act.
3.	That the rehearing of the matter be commenced within three (3) months.
4.	That the appellants appeal fee be refunded in full.

BY THE COURT.