DC554

PAPUA NEW GUINEA
[IN THE LOCAL LAND COURT OF JUSTICE]

NLC/LLC 005 OF 2005

BETWEEN

AGALU HILA OF APAU IDIBANA CLAN

AND

ROSEMARY KONIO RUMA OF APAU IDIBANA CLAN

AND

BOI ARUA OF APAU IDIBANA CLAN

AND

KEVIN ENO OF APAU IDIBANA CLAN

AND

MALA RUMA OF APAU IDIBANA CLAN
COMPLAINANTS

AND

DIA ENO OF APAU IDIBANA CLAN

AND

KEKE GAVERA OF APAU IDIBANA CLAN
DEFENDANTS

Port Moresby: N Bingtau, LLM, Morea, LM & Mahuta, LM.

2005: 10, 14 & 21 October & 07 November
2006: 27 February, 14, 24 & 31 March, 18 &
24 April, 27 & 28 June, 07, 14 &
16 August, 14 & 15 September, 13 &
16 November, 01 & 29 December

Local Land Court Practice & Procedure – Customary Land Mediation, Land Court Hearing, Land Inspection – Whether customary land ownership of Biriga land already decided by a court

Whether in the Motuan custom customary land rights to ownership and control are succeeded by the male or female – 
Decision by majority vote.

Facts

This is a dispute over the customary rights to be a land controller and distributor over the Birigan customary land in Hanuabada Village in the National Capital District. All the disputing parties are descendants of Hila Heni No. 1 and Hila Heni No. 2 of the Apau Idibana Clan of Hanuabada Village. On the 2 day of April 1963, the Native Land Title Commission awarded the customary ownership of the Biriga land to the descendants of Hila Heni No. 1 and Hila Heni No. 2 of the Apau Idibana clan of Hanuabada village. However, the power of control was vested in Sisia Hila.

Held:

1.	That as per the Decision of the Native Land Title Commission of 2 April 1963, the ownership of the Biriga customary land is still vested in the living descendants of Hila Heni No. 1 and Hila Heni No. 2 of the Apau Idibana clan of Hanuabada Village.

2.	That the customary right and power of control and distribution in the Biriga Central Claim 150 land formerly held by the Late Sisia Hila is hereby awarded to Mrs. Mala Ruma.

3.	All compensation or rental monies held in trust by Pacom Communications Ltd or another organization or persons be paid to Mrs Mala Ruma for and on behalf of the families of Hila Heni No. 1 and Hila Heni No. 2 of the Apau Idibana clan of Hanuabada Village and also the families of Sisia Hila for distribution in accordance with Motu-Koitabu custom.

Appearances

Mr. Agalu Hila in person
Mrs. Rosemary Konio Ruma in person
Mr. Boi Arua in person
Mr Gavera Eno for and on behalf of Kevin Eno
Mr Gamu Peter in person
Mrs Sisia Eno in person
Mr Dia Eno in person
Mr Keke Gavera in person

JUDGEMENT

29 December 2006

Bingtau, LLM, Morea, LM & Mahuta, LM. This dispute was referred by the National Court on the 31 August 2005 to the Local Land Court, after considering an Appeal against the decision of the Port Moresby District Court made on the 6 of October 2003. The said District Court Decision was that the Defendants, Peter Eno, Dia Eno, Sisia Eno and Dika Eno had "controlling and distribution rights" over the Biriga customary land. The said decision was quashed and remitted to the Local Land Court for hearing. The Local Land Court commenced hearing the dispute by the two land mediators conducting mediation. Mediation failed so the dispute was referred to the Local Land Court for hearing. After the Local Land Court hearing the decision was handed down by a majority of vote.

Facts:

2. This is a customary dispute over the customary right to be a Land Controller and Distributor over the Biriaga customary land. The said land is located on top of the Burns Peak Hills above the Hanuabada Village. On the 2 of April 1963, the Native Land Commission had awarded the customary ownership of the Biriaga land to the descendants of Hila Heni No. 1 and Hila Heni No. 2 of the Apau Idibana Clan of Hanuabada Village. However, the customary right and power of control over the Biriaga land was awarded to Sisia Hila then succeeded by her daughter, Buruka Vai and not her son Ruma Vai after her death. After the death of Buruka Vai and Ruma Vai, the dispute now is between the children of Buruka Vai and Ruma Vai as to who should be vested with the power of control and distribution over the Biriaga land. The parties come from Motu-Koitabu area which is predominately a patrineal society.

Issues

3. This Court was faced with the following issues:

1.	Whether the customary ownership of the Biriaga land has been decided by a court?

2.	Whether the right to succession of land ownership and power of control and distribution in Motu-Koitabu custom vested in the male or female descendants of a family or clan?

Evidence

4. The court composed of Magistrate Nasiling Bingtau and two Mediators, Asi Gebo Morea and Banige Mahuta who conducted hearing in accordance with s 23 and 35 of the Land Disputes Settlement Act and sworn evidence or affidavits received from the parties. Here is the summary of the relevant facts from the evidence in chief and answers to the cross-examination questions.

1.	Complainant’s Case

5. Rosemary Konio Ruma and Mala Ruma’s sworn evidence is basically that on the 2 April 1963, the Native Land Commission awarded the customary ownership of Biriaga land or Central Claim 150 to the living descendants of Hila Heni No. 1 and Hila Heni No. 2 of the Apau Idibana clan of Hanuabada Village. However, their grandmother, Sisia Hila was awarded the right of power of control over a piece of land known as Biriaga Tubua Portion 1636C No. 150 situated on Burns Peak Hills above Hanuabada Village. After the death of Sisia Hila, her daughter, Buruka Vai succeeded to her rights of power of control over the said land instead of their father, Ruma Vai.

6. In accordance with the Motu-Koitabu custom the succession of the land rights to ownership and control is vested in the male child or descendant and not the female. Therefore in this case they are disputing against their cousins, the children of their auntie Buruka Vai because they have no right of succession but then being children of Ruma Vai, the male son of Sisia Hila in accordance with Motu-Koitabu custom. Mrs. Kepena Boe Arua’s sworn evidence is that he is one of the members of the Hila Heni No. 2 descendants. His mother had marked out of the said portion of land called Portion 1636C Biriaga when Pacom Communications wanted to build their communications tower. He urged the leaders of the children of Ruma Vai, Michellin Mala Ruma and Dia Eno of Buruka Vai, to sort out the issue on who is to be the Biriaga land controller so that all the family can benefit from the rental monies held by Pacom Ltd.

7. On the other hand, the sworn evidence from Mr. Agalu Hila representing Hila Heni No. 1 family and Mr. Gavera Eno Oala representing Hila Heni No. 2 family say that in accordance with the Motuan custom or male descendants succession of land ownership and control rights over the Biriaga land and not the descendants of Sisia Hila a female because the Native Land Commission awarded the said land to Hila Heni No. 1 and No. 2 living descendants while Sisia Hila was only given the right and power of control. That was why Sisia Hila in her affirmation before the Native Land Commission stated that she was the "tano biaguna" or owner of Biriaga land and that she was the only oldest person alive at that time but after her death, the right of ownership and control be transferred to Agalu Tutuhi and Gavera Oala to share the responsibility together. Therefore if follows that Sisia Hila had not transferred her right of control to her daughter, Buruka Vai or son Ruma Vai but it passed on to Agalu Tutuhui the male descendant of Hila Heni No. 1 and Gavera Oala, descendant of Hila Heni No. 2 therefore the right to control Biriaga land be given to them and not to Rosemary Konio Ruma or Mala Ruma or Dia, Dika and Sisia Eno and others from the Sisia Hila Family.

2.	Descendant’s Case
 
8. The sworn evidence from Dika Eno on behalf of himself, Gamu Peter, Sisia and Dia Eno us basically that he is the descendant of Hila Heni No. 2 and his daughter Sisia Hila who were awarded customary land ownership of the Central Claim Biriaga land by the Native Land Commission in 1963 together with Hila Heni No. 1 families, Sisia Hila was named as the controller in the Native Land Commission Decision. Biriaga land Central Claim 150 was gardening land used by Sisia Hila, his grandmother and his mother, Buruka Vai. Sisia Hila had given the land to Buruka Vai because she had assisted her mother in her garden in the Biriaga land. Therefore in accordance with the Motu-Koitabu custom on the male descendant succession of land ownership and controller, he is entitled to succeed in becoming the owner and controller of Biriaga land Central Claim 150 because his older brother, Peter Eno is now deceased.

9. The next Defendant, Keke Gavera’s sworn evidence was that, she was one of the members of the Hila Heni No. 2 family of Apau Idibana clan of Hanuabada Village. He knows the Central Claim 150 Biriaga customary land. The said land is a garden land belonging to Sisia Hila then passed onto her daughter Buruka Vai. In 1963 she was a signatory to the agreement with Hila Agalu, Agalu Hila, Ranu Oala the witness Buruka Vai as the landlord of Biriaga, Central Claim 150 land. Therefore she affirms that support for Buruka Vai’s son Dika Eno be recognized as the controller of the Central Claim 150 Biriaga customary land also known as Portion 1636C No. 150.

Land Inspection

10. After the completion of the hearing of the evidence in the court room the court inspected the Biriaga land with the disputing parties in accordance with s 36 of the Land Disputes Settlement Act. Note that only two members of the court inspected the Biriaga land due to one attending to the Village Courts Workshop. During the land inspection, all the parties could not show the boundary of the Biriaga land though Mr. Uaki Nuana, a Koitabu man attempted to show the boundary but he could not show the exact boundary of Biriaga land. Mr. Agalu Hila asked the court for the surveyors to be engaged to identify the boundary of Biriaga land first then the court can inspect the land however, the family of Sisia Hila objected and asked the court to view the disputed portion only where the Pacom Communications Ltd communication tower is which is referred to as Portion 1636 C 150. After a long debate, the court ruled that only the disputed portion of the land be inspected not the whole of Biriaga land. The court went around the Portion 1636 C 150 land with Hila Agalu, Rosemary Konio Ruma and Mala Ruma first then later with Dika, Dia, Sisia Eno and Uaki Nuana and others. During the inspection Mr. Tony Griffith of Pacom Communications on request from the court briefed the court and disputing parties on how the disputed portion of Biriaga land was acquired for their use and showed the location of the boundaries of Portion 1636 C 150 and a map was given to the court.

Assessment of Evidence and the Law:

11. After having heard the evidence and inspected the disputed Biriaga land the court then assessed and determined the two issues posed in this case in accordance with s 68 and 69 of the Land Disputes Settlement Act. The first issue was whether the customary ownership of the Biriaga land has been decided by a court? Sworn evidence from Agalu Hila, Rosemary Konio Ruma, Gavera Eno Oala, Mala Ruma and Dika Eno showed that on the 2 of April 1963, the Native Land Commission had awarded the customary land ownership of the Biriaga land to the living descendants of Hila Heni No. 1 and Hila Heni No. 2 both brothers from the Apau Idibana clan of Hanuabada Village by Commissioner Brownell. Then the Commissioner gave the power of control over the Biriaga land to Sisia Hila, female of the Apau Idibana clan. The copy of the said Native Land Commission had been tendered to court as exhibit. It is not titled "Portion 1636 C 150" as named in the map of the portion of land occupied by Pacom Communications Ltd but as Biriaga claim 150, there is no portion indicated in there. That means the whole of Biriaga land was awarded to the living descendants of Hila Heni No. 1 and Hila Heni No. 2 of Apau Idibana clan and Sisia Hila was given power of control over the whole of Biriaga land Central Claim 150. Therefore it follows that the first issue be answered as yes and court namely the Native Land Commission on the 2 April 1963 had decided on the customary land ownership. 

12. The second issue was whether the right to succession of land ownership and power of control and distribution in Motu-Koitabu custom vested in the male or female descendant of a family or clan? Sworn evidence from Agalu Hila, Rosemary Konio Ruma, Gavera Eno Oala and Mala Ruma show that in the Motu-Koitabu custom where the disputing parties came from inherit landownership rights and controller and distributor rights through the first born male child or son from a father and not a female or daughter of course with the exception that where no first born male child or son is born to a man then the first born female child can inherit the said right of succession of land ownership and controller from her father. The land mediators Mr. Asi Gebo Morea and Mr. Banige Mahuta who come from the Motu-Koitabu villages of Barakau and Tubusereia confirmed that that is the Motu-Koitabu custom on the succession of land ownership, controller and distributor. 

13. Furthermore evidence from the Native Land Commissioner, Brownell’s decision on the Biriaga land Central Claim 150 tendered as evidence by Agalu Hila, Rosemary Konio Ruma and Dika Eno says at page 2 of his decision that and I quote:

"Inheritance to Koitabu owned land is determined bilaterally. Those who derive their inheritance, through the male take precedence over those years who gain it through the female but not at any time to the laters complete exclusion. The decisions of the original owner who share rights in an area are represented by a controller. The person who holds this position is the oldest male of the senior patrilinage but at times a woman may undertake this work. It is the privilege of the controller to assess the percentage of right each member has in the land. The amount of use made by a person or his family is a major factor in determining this right. Prescription, if unbroken, usually establishes a title for greater than that derived by a normal patrilineal inheritance.

The descendants of a woman who lived several generations ago and on her marriage vacated her land and to work that which belonged to her husband, cannot expect to retain their rights in her land. They could reinstate themselves however, by working the land if granted permission by the controller and those hr represents" end of quote.

14. That was the custom applied in the Biriaga Central Claim 150 land case by the Native Land Commission when it awarded the power of control over the Biriaga land Central Claim 150 when it appointed Sisia Hila to be the land controller. Therefore the second issue be answered as the Motu-Koitabu society is predominately patrinial and so land ownership, controller and distributor rights are succeeded by the male however, there are exception where a female can inherit land ownership, controller and distributor rights if there was no first born child in the family to succeed his father.

Court Decision

15. Considering all the reasons stated above against the present dispute, the court found that the Biriaga Central Claim 150 customary land had been awarded to the living descendants of Hila Heni No. 1 and Hila Heni No. who were brothers of the Apau Idibana clan of Hanuabada Village. Then Sisia Hila, a female was awarded the right of land controller and distributor on the 2 April 1963 by the Native Land Commission. The court found too that the Native Land Commission Decision does not state that in the event that Sisia Hila died the right to controller and distributor to Biriaga land will revert to the male descendants of Hila Heni No. 1 and Hila Heni No. 2 namely Agalu Tutuhui and Gavera Oala, though Sisia Hila had stated that in her affirmation. Therefore the court is of the view that the Native Land Commission Decision shows that the right to Biriaga land controller and distributor was vested only in Sisia Hila and her descendants. No one had appealed against that decision so the decision still stands and in force. Now looking at Sisia Hila’s family, from the evidence of Rosemary Konio Ruma, Mala Ruma and Dika Eno the court found that Sisia Hila married and bore three children namely first born Heni Vai, male, second born, Buruka Vai, female, third born, Konio Vai, female. After the death of Sisia Hila, her daughter Buruka Vai succeeded her mother to be the controller of Biriaga land because she was the oldest living person and too her brother Heni Ruma Vai was dead that time. The dispute now is between the children of Heni Ruma Vai and Buruka Via as to who should succeed the power of controller and distributor from their grandmother, Sisia Hila.

16. The court in applying the customary land in the Motu-Koitabu society on the right to land ownership, controller and distributor as stated in answer to the issue number two, the court by majority vote under s23(3) of the Land Disputes Settlement Act awards the power of controller and distributor in the said Biriaga Central Claim 150 or Portion 1636 C 150 land to Mrs. Mala Ruma, female as the first born child of Heni Ruma Vai.

Conclusion:

17. Therefore under s 39 of the Land Disputes Settlement Act, the court ordered first that the customary ownership of the Biriaga Central Claim 150 or Portion 1636 C 150 land is still vested in the living descendants of the Hila Heni No. 1 and Hila Heni No. 2 families of Apau Idibana clan as per the Native Land Commission decision of 2 April 1963. Second, that the customary right and power of controller and distributor over Biriaga customary land Central Claim 150, formerly held by the Late Sisia Hila is hereby awarded to Mrs. Mala Ruma. Third, all compensation or rental payments from the said Biriaga land held by Pacom Communications Ltd and others be paid to Mrs. Mala Ruma for and on behalf of the Hila Heni No. 1, Hila Heni No. 2 clan and families of Apau Idibana clan and also Sisia Hila families to be distributed in accordance with the Motu-Koitabu custom.

Court orders accordingly.

Mr Agalu Hila, in person
Mrs Rosemary Konio Ruma, in person
Mr Boe Arua, in person
Mr Kevin Eno Oala/Mr Gavera Eno Oala, in person
Mrs Mala Ruma, in person
Mr Gamu Peter, in person
Mrs Sisia Eno, in person
Mrs Dia Eno, in person
Mr Dika Eno, in person
Mrs Keke Gavera, in person