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Lilumpat Land Owning Group v Clans [1974] PNGLR 235 (17 February 1972)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 235 - Lilumpat Land Owning Group v Ianu and Sausau Clans of Kranket

[1974] PNGLR 235

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

LILUMPAT LAND OWNING GROUP

WAIFUN LAND OWNING GROUP

MISIMU LAND OWNING GROUP

BADALON LAND OWNING GROUP

DIFUN LAND OWNING GROUP

AND

BENABLAU LAND OWNING GROUP OF SIAR

V

THE IANU AND SAUSAU CLANS OF KRANKET

(RE PIAWAI, PIG & MASAS ISLANDS)

Madang

Williams J

20 October 1971

17 February 1972

REAL PROPERTY - Land Titles Commission - Ownership of native land evidence - Competing claims based on traditional history - Importance of evidence of recent user.

When there is a dispute between two customary groups as to the ownership by native custom of certain land and there is a conflict between the two competing traditional histories concerning the land, in deciding the case the Land Titles Commission should give considerable weight to the evidence concerning the recent user of the land.

Twimahene Adjeibi Kojo II v. Opanin Kwadwo Bonsie & Anor., [1957] 1 W.L.R. 1223 applied.

Appeal From Land Titles Commission

In September 1968 representatives of the appellant land owning groups and the respondent clans lodged claims with the Land Titles Commission to be declared the owners of Piawai, Pig and Masas Islands by native custom.

The Chief Commissioner heard the evidence and gave the following reasons for his decision.

“On the evidence, I find that in the distant past these three Islands were owned by the forefathers of the ianu and sausau clans of kranket.

A long time ago, the forefathers of the ianu and sausau clans gave permission to the lilung clan to fish from the Islands.

The lilung clan, which appears to be synonymous with the siazagaz clan for the purposes of this case, used the Island for fishing and also planted some mango and breadfruit trees there many years ago.

All parties were aware, or ought to have been aware, of the situation on the three Islands.

Reference has been made to some ‘rulings’ of the German Government and an English Masta Mak. I find this evidence difficult to believe although administrative decisions concerning which people were to remain behind certain lines or boundaries were not unusual.

Mr. Ellis appears to have held a meeting during the time when the three Islands were regarded as Administration land. This meeting was not a Court and he appears to have decided, as the Administration’s representative, that since the Administration no longer required the three Islands, the people of siar could harvest the coconuts there.

I find that the two clans ianu and sausau of kranket own the three Islands. The people of siar have been given permission to fish from the three Islands but the ianu and sausau people can withdraw that permission if they wish.

A formal decision will issue declaring that the ianu and sausau clans own the three Islands....”

From this decision the appellant land owning groups appealed to the Supreme Court.

The facts and arguments of counsel appear sufficiently in the reasons for judgment.

Counsel

N. K. F. O’Neill, for the appellants.

R. K. Woods, for the respondents.

Cur. adv. vult.

17 February 1972

WILLIAMS J: This is an appeal from a decision given on 15th November, 1968 by the then Chief Commissioner of the Land Titles Commission. At the commencement of the hearing of this appeal two further appellants, namely the Difun land owning group and the Benablau land owning group, were added by consent.

This appeal concerns three islands near Madang. The islands lie off the north-eastern extremity of Kranket Island, and are shown on Department of Lands’ map “Milinch: Kranket S.E.” as Piawai Island, Pig Island and Masas Island. These islands have, in documents and in evidence before the Chief Commissioner, in some places been spelt differently whilst in other places names which are apparently alternative names have been used. However the proceedings have been conducted on the basis that the three islands shown on the map as Piawai Island, Pig Island and Masas Island comprise the land in dispute. I shall hereafter refer to them as “the three islands.”

There were before the Chief Commissioner three claims. One was by Blum-Mamui on behalf of the Difun clan, the second was by Gardip-Jas on behalf of the Ianu and Sausau clans and the third was by Ias-Led on behalf of the Siazagaz clan.

Oral evidence was given before the Chief Commissioner by Ias-led, Blum-Mamui, Phillipus Angwai, Gardip-Jas, Kais Kubai and Dadok Tamason.

After the conclusion of argument in this matter in Madang, I drew the attention of counsel to the fact that, having regard to the claim forms lodged and to the oral evidence given before the Chief Commissioner, it did not appear that some of the groups named as appellants in this proceeding had any interest in the matter. Subsequently affidavits were filed on behalf of the appellants, the effect of which was to show that the evidence by Blum-Mamui and Phillipus Angwai was intended to be given on behalf of all the appellant groups. No objection was raised on behalf of the respondents to the filing of these affidavits, nor have the contents been challenged, so that I have proceeded upon the basis that no issue arises concerning the standing of the appellants.

In effect, therefore, the evidence given before the Chief Commissioner by Blum-Mamui and Phillipus Angwai was given on behalf of the appellant groups and the evidence given by Gardip-Jas, Kais Kubai and Dadok Tamason, was given on behalf of the respondent groups. Ias-Led gave evidence in support of the claim made by him on behalf of the Siazagaz clan which appears to be an independent claim, although it seems that this clan is associated with the appellant group and in sympathy with that group’s claim.

At the conclusion of the evidence the Chief Commissioner ruled in favour of the respondent groups and published reasons for the decision, which are quoted above.

The decision of the Chief Commissioner is challenged on several grounds, namely:

“3.      The grounds of appeal and particulars thereof are:

The Commission exceeded its jurisdiction or alternatively was wrong in law or alternatively the decision was against the weight of the evidence or alternatively there was a denial of natural justice in that:

(a)      In finding that the two clans ianu and sausau of kranket own the three islands the subject of the appeal.

(b)      In that it failed to take into consideration the fact that the appellant clans had been occupying and gardening the said land for many years without hindrance or objection from the ianu and sausau clans.

(c)      In that it failed to give proper weight to the uncontested evidence of the appellants that in the 1950’s the then District Commissioner Mr. Tom Ellis investigated the ownership of these islands the subject of this appeal and decided that they were owned by the appellants.

(d)      In that it failed to give proper weight to the evidence of the appellants that they and not the respondents were the first settlers and occupiers of these islands the subject of the appeal.”

The first witness for the respondent clans was Gardip-Jas. According to him his forefathers lived on Yomba Island which broke up. Berma, and his wife Globa, survived and swam to Tab Island, one of the islands the subject of this proceeding. They found it not large enough to support them so they swam to Pejawai (Piawai) Island, another island the ownership of which is in dispute in this proceeding. From there they went to Kranket Island, which is not involved in this proceeding. He went on to relate how Berma and Globa had six children who had intermarried. Kranket Island had a volcanic eruption with the result that only a small area of Kranket Island remained above water. He further stated that his forefathers, whilst fishing, met people from the Lilung clan and gave them permission to fish around the three islands. At this time his forefathers were living on Kranket Island. He further related that people from Saisawan originally came from the bush but settled in Saisawan. Saisawan sank into the sea, whereupon the residents of that area moved to Siar, where more people from the bush joined them and their descendants are the present people of Siar. Gardip-Jas claimed that when the people from Saisawan moved to Siar his forefathers befriended them and allowed them to fish around the three islands. Cross-examined by Blum-Mamui, Gardip-Jas stated that he did not know whether there was a line of men at Saisawan before the people from the bush settled there.

Kais Kubai was also a witness for the respondents. His evidence in chief does not seem to throw any further light on the history of the occupation of the islands in dispute and is confined to the bald assertion that the islands belong to the respondent groups and not the appellant groups. He also asserted that the people of Siar had no claim as they are people brought together from three places in the bush. In his cross-examination he agreed that when, on a previous occasion the ownership of the three islands was in dispute, the respondent groups had not asserted ownership thereof.

Dadok Tamason also gave evidence for the respondent group. He supported the evidence of Gardip-Jas as being the truth and criticized the procedure at a “court” held by Mr. Ellis, a former District Commissioner in the area, which, sometime in the 1950s, investigated the question of ownership of the three islands and, apparently, had given a ruling in favour of the Siar group.

Evidence for the present appellants was given by Blum-Mamui and Phillipus Angwai. The former claimed that the three islands belong to the Siar people, that is, the appellant group in the present proceeding. He stated that his forefathers who lived at Saisawan owned the three islands. Before the white man came to Madang his forefathers owned the three islands and were still using them up to the time when the Germans came to the area. They used them for fishing and harvested the breadfruit and mango trees planted by his “forefathers’ forefathers”. He claimed that they still used the islands when the Germans left and the English came and that the German Government had ruled that the islands belonged to the Siar people. After the arrival of the English an “English Masta Mak” ruled that the three islands belonged to the Siar people. At this time the islands were being used by the Siar people and the Australian Government, which was looking for an area to establish a leprosarium, approached the luluai of Kranket and asked who owned Tab and Pejewai (Piawai) Islands. The luluai replied that the islands belonged to the Siar people. An Australian kiap asked the Siar luluai, named Walop, who owned the islands. Walop, after inquiry, stated that the islands belonged to the Lilung clan and he gave permission for the islands to be used as a leprosarium. A leprosarium was established and later disbanded. It might here be mentioned that the Papua New Guinea Gazette No. 29 of 26th May, 1966 contains a declaration under s. 84 of the Land Ordinance 1962-1965 of the land in the schedule (the three islands) insofar as it is Administration land, to be native land for the purposes of that Ordinance.

Questioned by the Chief Commissioner concerning Gardip-Jas’ claim that his forefathers had allowed Ias-Led’s forefathers to fish around the islands Blum replied that, “I don’t know anything about them being allowed to use the islands for fishing, all I know is that the islands always belonged to the Lilung group”. Cross-examined by Gardip-Jas, Blum-Mamui denied that his forefathers fished around the islands under permission given by Gardip-Jas’ forefathers, and claimed that his forefathers told him that there was a big fishing boundary and that the three islands were on the Siar side of the boundary.

Phillipus Angwai in evidence also asserted that the islands belong to the Lilung (Lilumpat) clan. He stated that after Saisawan went down into the sea his forefathers had settled at Siar and used the three islands. He claimed that the Siar people are still using the islands and harvesting fruit from the trees thereon. He agreed that the Kranket people had lived on Yomba Island and had eventually gone to the three islands, but, at the same time, his people were fishing around the islands.

According to Ias-Led he knew the two islands Pejewai (Piawai) and Tab. He is a member of the Siazagaz clan and stated that he had been told by his father that the mark of his clan’s land is the water Nisan, including the islands of Pejewai (Piawai) and Tab. He stated that Saisawan broke up and that some of his forefathers then went to Siar and formed the Lilung clan. In cross-examination by Gardip-Jas the following question and answer appear:

“Q.     Before my forefathers allowed your forefathers to fish on the island, is that true?

A.       I know that my forefathers were allowed to use the island for fishing but they used it for fishing and planted the breadfruit and mangoes and therefore it is our land.”

It was submitted by Mr. O’Neill, who appeared for the appellants, that the Chief Commissioner erred in reaching a conclusion in favour of the Kranket (respondent) group. Firstly, he contended that the Chief Commissioner misconceived the proper legal principles to be applied in the matter. The Chief Commissioner found himself faced with the position where there was a conflict in the evidence of the traditional history of the islands. In this situation he should have tested the evidence of traditional history by reference to the evidence of modern use of the land in dispute. In support of this proposition he cited      Twimahene Adjeibi Kojo II v. Opanin Kwadwo Bonsie & Anor.[cccv]¹, a decision of the Judicial Committee of the Privy Council on an appeal from the West African Court of Appeal, which was applied in this Court by Frost S.P.J. in Re Veakabu-Vanapa[cccvi]². In Mr. O’Neill’s submission, had the principle in Adjeibi Kojo’s case (supra) been applied in this case, then the Chief Commissioner must have found in favour of the appellant group as the only evidence of recent user of the land in dispute was the use and enjoyment of the Siar people; alternatively Mr. O’Neill contended that the Chief Commissioner had attached no weight, or at least insufficient weight, to the evidence of recent user by the Siar people.

Mr. Wood, for the respondents, contended that the evidence disclosed that the respondent group were the original owners of the islands. He further contended that the traditional history as related by the respondents’ witnesses should be preferred to that disclosed by the appellants’ evidence, in that the history of the Kranket people showed them to be island dwellers, whereas the appellant group were made up of people whose forefathers had originally come from “the bush” to collect salt and had eventually settled at Siar. As to the evidence of the use of the subject islands by the appellant group, Mr. Wood submitted that no weight should be attached to this in determining ownership of the land as the use was by the permission and authority of the respondents.

The Chief Commissioner, in his reasons for his decision, made a primary finding that “in the distant past these three islands were owned by the forefathers of the Ianu and Sausau clans of Kranket”. Unfortunately he gave no reason upon which that finding was based. It would seem however that this finding must have been based upon the evidence of Gardip-Jas (supported by Dadok Tamason) who said that his forefathers lived on the island of Yomba, but when that island broke up Berma and his wife Globa swam to Tab Island. Finding it insufficient to support them they swam to Pejewai (Piawai) Island and thence to Kranket Island. When his forefathers were living at Kranket they met people of the Lilung clan and gave them permission to fish around the three islands.

The matters to which I have adverted in the preceding paragraph give the only foundation disclosed by the evidence for the finding that “in the distant past these three islands were owned by the forefathers of the Ianu and Sausau clans of Kranket”. It might here be observed that in the account given by Gardip-Jas there was no evidence as to the use to which Tab and Pejewai (Piawai) Islands may have been put by Berma, Globa and their children. A strong inference, which I think may be drawn from Gardip-Jas’ evidence, is that the stay of Berma and Globa on Tab and Pejewai (Piawai) Islands was a somewhat transient one before moving on to Kranket Island, where they finally settled and founded the Kranket clan. Further, there is no evidence that at any time since the residence of Berma and Globa on Tab and Pejewai (Piawai) Islands have any of the three islands been occupied or used by any of the Kranket group. Standing alone it seems to me that this evidence forms an insecure basis for a finding of ownership in the Kranket group.

But this evidence does not stand alone. Both Blum-Mamui and Ias-Led gave evidence in which they claimed that the island belonged to the descendants of the original inhabitants of Saisawan. Blum-Mamui also related a long history of user by the Siar group of the three islands, extending from pre-German times to the time of giving his evidence in 1968, with the exception of a period of time during which, it appears, that the islands were used by the Government as a leprosarium. He said that breadfruit and mango trees had been planted on the islands by his forefathers and that his people gathered the fruit therefrom. The evidence of use of the land by the Siar group over a long period of time was uncontradicted.

It is necessary to examine the evidence concerning the permission said to have been given by the respondent group to the appellant group.

When the question of permission was put to Blum-Mamui by the Chief Commissioner, Blum-Mamui said, “I don’t know anything about them being allowed to use the islands for fishing, all I know is that the islands always belonged to the Lilung group.” In cross-examination by Gardip-Jas, Blum-Mamui denied that permission to fish around the islands had been given and asserted that, “My forefathers told me that there is a big fishing boundary and that the islands are on the Siar side of the boundary.”

It is thus apparent that there is a conflict in the evidence as to whether permission was given by the respondent group to the appellant group as asserted by Gardip-Jas. However, if the permission referred to by Gardip-Jas was, in fact, given then in its terms it was permission to fish the waters surrounding the islands and did not extend to the use of the islands themselves. There is uncontradicted evidence that the appellant group, in addition to fishing in the area, has also over the years planted trees on the islands, and gathered the fruit therefrom. The activities of the appellant group have thus clearly extended well beyond the terms of the permission said to have been granted to them. There is no evidence that the use of the islands beyond the terms of the alleged permission has been the subject of any protest or complaint by the respondent group. The absence of protest and complaint, extending, as it has, over a long period of time, appears to me to be quite inconsistent with the notion of ownership by the respondent group and with the proposition put forward on behalf of the respondent group that the use of the islands by the appellant group was pursuant to licence or permission granted by the respondent group. It appears that these factors were not taken into account by the Chief Commissioner.

It also seems that there are other matters of significance to which the Chief Commissioner, apparently, had no regard.

There is evidence by Blum-Mamui, which was not contradicted, that the Australian Government, when contemplating the establishment of a leprosarium, approached the luluai of Kranket concerning the question of ownership of the islands of Tab and Pejewai (Piawai). The luluai’s reply was that these islands belonged to the Siar people. This statement, attributed to the luluai of Kranket, is also quite inconsistent with the present claim by the Kranket people.

There are also references in the evidence to a “court” held by Mr. Ellis concerning the ownership of the three islands. It does not appear that the decision made by Mr. Ellis had any authority in law and, in consequence, no weight can be attached to the decision. But what is of significance, I think, is that it appears that at this hearing the Kranket people did not assert ownership of the islands; on the contrary there is evidence that Kais Kubai’s father and uncle said at the hearing conducted by Mr. Ellis that the islands belonged to the Siar people. Cross-examined by Blum-Mamui on this topic, Kais Kubai is attributed with the rather remarkable answer, “At that time we were not concerned with rationalising our land tenure system and therefore did not press our claim.”

There is also evidence concerning some rulings said to have been made by the German authorities and by an English “Masta Mak” in favour of the Siar group. However, in the absence of any knowledge of the authority and circumstances under which these rulings were made I do not consider that any reliance should be placed upon them.

To sum the matter up the appeal record discloses that the Chief Commissioner was faced with a conflict in the evidence concerning the traditional history of the occupation and use of the three islands. The Chief Commissioner apparently preferred the evidence given on behalf of the respondent group, although his reasons for so doing do not appear. In relating the traditional history the witnesses were recounting matters which had been handed down by word of mouth from generation to generation. As was said in the judgment of the Judicial Committee in Adjeibi Kojo v. Bonsie (supra), “Where there is a conflict of traditional history one side or the other must be mistaken but both may be honest in their belief. In such a case demeanour is of little guide to the truth, the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable.” It seems that the Chief Commissioner did not apply this test.

From an examination of the reasons for the decision of the Chief Commissioner it appears that he attached no weight to the evidence concerning the recent use of the three islands, although in the third paragraph of his reasons he states that the Lilung clan “used the islands for fishing and also planted some mango and breadfruit trees there many years ago”. Faced as he was with a conflict in the traditional history of the islands, this was a matter to which, on the authority of Adjeibi Kojo’s case (supra) considerable weight should have been given.

It also appears that the Chief Commissioner did not have regard to other matters of significance to which I have referred. These are the absence of any evidence of complaint or protest on the part of the respondent group to the use of the three islands by the appellant group and the apparent failure by the respondent group to assert ownership on occasions when opportunities to do so presented themselves.

In consequence, it seems to me, that the decision of the Chief Commissioner was clearly against the weight of evidence and cannot stand.

It appears that this matter was fully ventilated before the Chief Commissioner and there would be no point in my remitting this case for further hearing before the Commission.

Accordingly I quash the decision appealed from and declare the appellant clans to be the owners of the three islands by native customary right. I give liberty to apply as to the form of order.

Orders accordingly.

Solicitor for the appellants: W. A. Lalor, Public Solicitor.

Solicitor for the respondents: P. J. Clay, Crown Solicitor.

[cccvi][1969-70] P. & N.G.L.R. 234.

[cccvii]The relevant portions of s. 34 (2) of the Supreme Court (Full Court) Act 1968 provide:—

“Subject to Subsection (2) of this section, where a person convicted desires to appeal, or to obtain leave to appeal, to the Full Court, he shall give notice of appeal, or notice of his application for leave to appeal as the case may be, in the manner prescribed by the Rules of Court within forty days after the date of conviction.

(2) The time within which notice of appeal, or notice of an application for leave to appeal, may be given may be extended at any time by the Full Court or a Judge.”