Kapuli v Doko [2008] PGLLC 2; DC705 (29 August 2008)

DC705

PAPUA NEW GUINEA
IN THE LOCAL LAND COURT AT VANIMO

LLC NO: 02/06

BETWEEN:

JULIE KAPULI & WOLOKLU CLAN OF PUARE VILLAGE

AND:

LANSA DOKO & NAP CLAN OF POKO VILLAGE

VANIMO: A. ARUA, FRANCIS ASI & PETER PANA

2008: 3, 4, 5, 16 & 23 June
7 & 29 August

DECISION

By the Court. This dispute was referred to the Local Land Court for determination after several attempts at mediation had failed. It was over ownership rights over a portion of land marked as Set Up No. 6 by Vanimo Forest Limited within Block 5 of its Vanimo Timber Rights Purchase (TRP) Permit No. 10/08. Both clans based their claim on customary ownership, naming several parcels of land within Set Up No. 6 in their own languages to assert their claim.

The disputing parties

The parties to the dispute are no strangers to each other. They are from the same area, but, from different tribal groups. The Woloklu clan is from Puare village, while the Nap clan is from Poko village. They agreed that though they spoke different languages, most of their customary practices were similar with very little differences and, some of the members were related to each other through marriage.

The disputed land

The portion of land and the corresponding boundaries which was disputed was identified as Set Up No. 6, located east of Pabile creek. It is part of Vanimo Timber Rights Purchase (TRP) logging operation carried out by Vanimo Forest Limited. The dispute arose as a result of payment of royalties for round logs harvested from the area by Vanimo Forest Limited.

The Woloklu clan claimed that the whole of Set Up No. 6 was owned by them. They claimed that the portions of land that made up Set Up No. 6 included Wosmo, Tiha, Waksa, Yuromo, Laka Yalka Halawolo, Kalpo and Wosmo Willi.

The Nap clan on the other hand claimed that Set Up No. 6 was owned by them. They claimed that their land boundary started at Nidu – Niou creek and extended to Wosmo and Nipi creek. They named the portions of land that make up Set Up No. 6 as Rimuikul, Kamaldap, Rulhumu, Salsu, Rinimu, Rimanso, Gindapup and Kup-ape.

Inspection of Land/Boundary

Inspection of the disputed portion of land and the boundaries with other neighbouring clans was done by the mediators who were members of the Land Court on foot. During that inspection the mediators walked the whole disputed portion and attempted to confirm certain land marks mentioned by the parties in support of their claims. They also walked other portions of land which were not in dispute basically to ascertain for themselves the geography and the terrain of the area.

The last inspection was done by all the members of the court on 7 August, 2008, with the spokespersons and members of both groups present. The main purpose of the last inspection was the Land Court Magistrate to reconfirm the parties’ land marks and to see the layout of the geography and the terrain of the area. It was also an opportunity for him to ascertain the distances between the disputing parties’ current village sites and their old village sites to the disputed land.

As to inspection of land after decision, we decided that it was not necessary to do so. Logistics and time, coupled with the risks involved did not warrant a visit to the disputed land after the decision.

Landmarks

Competing names of landmarks within the disputed portion of land and outside the dispute area were presented by the parties, evidenced with names of portions of land that make up Set Up No. 6. We placed equal importance on each of those names as far as they relate to each clan. Land marks outside the dispute area were considered for comparative purposes only, as they related to the dispute area and their proximity to it.

Genealogies

All the parties stated fully, in writing and then presenting them orally, their respective genealogies and ancestral history. They placed much emphasis on this aspect of evidence as the basis for each of their claims.

The Woloklu clan claimed that their first ancestor Wiyapa divided the land around the area, including the disputed portion from Pabile (Kuala) river between them and only Oro clan of Poko. Wiyapa had two camps at Hiliala where he planted sago and also roamed the area in dispute. That ownership has been passed down from generation to generation up to now, on the basis of patrilineal succession, which is the customary practice of the tribe.

The Woloklu clan also claimed that during the days of Wiyapa, he never met any Poko ancestor or anyone else from Poko. The only person to meet outsiders was their great grandfather, namely Guniyili, who was sixth generation after Wiyapa. He was the first man to meet the ancestors of the Laitre people and not Poko.

The Nap clan on the other hand claimed that the disputed area and other surrounding areas were roamed by four Poko ancestors. Kake, the ancestor for Nap clan owned and roamed the area that includes the disputed Set Up No. 6. He also roamed other areas known to them as Indap which has parts of it in Set Ups No. 2 and 6, Kamaldap, where he had two camps and Rimiukul. During the days of Kake there were no Puare people. Furthermore, Kake never met Wiyapa, the Puare ancestor or anyone else from Puare.

The other three Poko ancestors were Mesi, Kopuwa and Kompre. Kopuwa was the ancestor of Ome clan, and Kompre, the ancestor of Pha clan. Together, these three Poko ancestors roamed the land known to them as Rivarhunu (Set Up No. 12), Mandap (Set Up No. 8), Nialap (Set Up No. 7), Nipiyale (Set Up No. 7), Kupap (Set Up No. 7) and Riparu.

Again, all their ancestral and genealogical evidence were considered equally and given equal value. No one clan’s evidence regarding this aspect of evidence was given less attention or value than the other. In the end, we say that they are all good and have equal value and status, so far as they relate to the individual clans.

Relevance of custom

During the proceeding before us, and to give effect to the requirements of Section 68 of the Land Disputes Settlement Act, we considered the relevant customary practices of the disputing parties as they related to and affected land ownership in their area. Of notable similarity and importance was the practice of handing down ownership and control of land by both clans through patrilineal blood line.

We noted that there were no major disagreements or opposing views on this customary practice and other key issues of custom. This was due to the fact that all the parties are from the same area and they practice the same customary practices with very minor differences.

Principles of land ownership

Having considered the above issues, the evidence provided by the parties, and the importance they placed on their ancestral history and genealogies, we were also mindful that land disputes these days could not be decided solely on the basis of ancestral history and genealogical evidence. Land tribunals also consider other factors that affect the status of customary land.

Some of these were discussed by Professor R.D. Cooter, in his report titled "Issues in Customary Land Law" which was reported in Institute of National Affairs (INA) Discussion Paper No. 39 and restated by Amet J in Re Hides Gas Project Land Case [1993] PNGLR 309.

While the principles are not conclusive, and therefore do not in our view form a final list of principles that must be relied upon by land tribunals when deciding land cases, some of them provide some relevance in assisting land courts in arriving at decisions in land cases. Some of those that are of relevance in this dispute are:

"1. Adverse possession

A group that resides upon or improves land for a sufficient time without the permission or active opposition from others thereby owns it. A group that uses land for a sufficiently long period of time without the permission or active opposition from others, but does not reside upon or improve it, thereby acquires a use right in it.

2. Earmarks of ownership
   

Land can only be said to "belong" to a group when it is shown that either neighbouring groups acknowledge their claim by not challenging it or, by their ability to occupy and use the land, and stop others from doing likewise, they show that they exercise controlling interest over it.

3. Maintenance of interest in land (or possessory acts)
   

An interest in land is maintained by building houses and settling on it and by gardening, grazing or burning it off, collecting from it, or forbidding others to occupy and use it.

4. Ownership presupposes control
   

Ownership implies the power, whether exercised or latent, to occupy and use land, and to stop others from doing so."

Applying these principles to this dispute and by weighing them against the evidence provided by the parties, we noted the following:

Woloklu claim.

Woloklu clan’s claim of ownership of the disputed portion of land was based mainly on their ancestral ownership. They claimed that the first Puare village was Runape, where their ancestor "Wiyapa" lived. From Runape, Wiyapa owned, roamed and lived at the area now in dispute. While at the area Wiyapa never met any Poko ancestor. After Runape, Puare had three villages, Kiwolo, Woloyaka and Wulaskra. Kiwolo village was inhabited by the Sie clan, Woloyaka village was made up of Woloklu clan and Walaskra village was made up of Sposu clan.

The disputed portion of land now marked as Set Up No. 6, which contain portions of land known to them as Wosmo Wildi, Manthla Wildi, Yulomo, Tiapa, Uwaksa, Suhea, Undu and Miti, and other surrounding areas, were land owned by Woloklu ancestor Wiyapa. They had been passed down the generations through patrilineal blood line to their last grandfather Sanga, who then passed it on to Patrick Kapuli, his son, the father of current Woloklu spokesperson, Julie Kapuli.

To support their claim the Woloklu clan called a total of ten witnesses including Julie Kapuli herself. Amongst them were several elderly witnesses such as Francis Waka (60 yrs) and Mathias Kamasa (70 yrs).

There were also witnesses from the neighbouring village of Leitre, namely Peter Ropsy and Casper Samala who are from a different tribal group with different language and customary practices. They gave evidence that they had boundary with Puare at Opepagu, where large stones are located. Their clans had boundary with Woloklu clan of Puare and not Poko.

Also present to give evidence for Woloklu clan were Catherine Walape Palani, Cathy Kakuli Ponde and Peter Kasina. Catherine Walape Palani is from Poko village and married to Puare, Cathy Kakuli Ponde’s mother is from Poko and father from Puare. Her father and David’s mother are blood brother and sister and therefore, she is a first cousin to David Sasu, a key Nap witness. Witness Peter Kasina is the blood brother of Siwi, who is the natural mother of Nap spokesperson Lansa Doko. Peter Kasina is therefore the maternal uncle of Lansa Doko.

The evidence of Catherine Walape Palani was notable. She is from Poko village but married to Puare and is the elder sister of Samuel Yara Kondi and half sister to Vincent Yobo Palani of Poko.

She gave evidence that when she was a young girl growing up, she used to go camping at the disputed area and other surrounding areas with her step father Palani Nap and other family members. During those trips her father Palani Nap used to show her the land boundaries telling her that the land boundary between Poko and Puare was at Pabile creek. The land west of Pabile belonged to Poko and east of Pabile belonged to Sanga of Puare.

Peter Kasina, the maternal uncle of Poko spokesperson Lansa Doko also confirmed the main boundary between Poko and Puare to be Pabile creek and confirmed that the disputed land belonged to Woloklu clan. He also told the court that Vincent Yobo Palani was from his clan called Likulu of Puare and not from Lansa Doko’s clan or Poko. He said that he was coming forward to give evidence for Woloklu clan against Nap clan which is led by his nephew Lansa Doko because he wanted to clear the issue once and for all.

Nap claim.

The Nap clan of Poko also based their claim mainly on ancestral ownership. They claimed that the portions of land in the disputed area that belonged to them were Indap, Nimuwu, Kamaldap, Rimuikul, Salsu and Kup-ape. The name of creeks that were in the dispute area were Nidu, Nimiwu and Nipi.

They claimed that the disputed area of land was owned by their ancestor Kake and it had been passed down the generation up to now. As a mark of their ownership, they had landmarks such as bamboo, breadfruit trees and burial sites of their ancestors or grandfathers. They refuted that the land boundary between them and Puare village was at Pabile as claimed by Woloklu clan. They instead told the court that the boundary between Poko and Puare villages was at a creek known to them as Nidu and Undu in Puare language.

In support of their claim the Nap clan called five witnesses, Samuel Yara Kondi, Steven Samban, David Sasu, Lawrence Kake and Casper Iko.

Samuel Yara Kondi is the younger brother of Woloklu witness Catherine Walape Palani. He rebutted Catherine’s evidence saying that although she was the elder, she left their family and Poko village when she got married. Therefore, whatever she said in her evidence was not true.

He said that he used to go and camp at the disputed area and other surrounding areas called Kamaldap, Indap, Nidu, Rimuikul and Nimuwu with their mother and step father, Palani Nap. It was during those trips that he was told about the boundary with Puare and the ownership of the portions of land around there. During those trips he also saw another Nap witness, Steven Samban of Samararu village, together with Vincent Palani and others make a big garden at the land called Kamaldap and no one from Puare disputed them.

Steven Samban from Samararu village gave evidence that he used to go around the disputed area with his father in-law Palani Nap, who told him everything about the ownership of the area. He also confirmed making a big garden at Kamaldap and no one from Puare disputed him. He was told by his father in-law that the boundary between Poko and Puare was at Nidu creek.

David Sasu from Wase clan of Poko also gave evidence in support of Nap clan. He told the court that his Wase clan had boundary with Nap clan and together they had boundary with Puare village at the creek called Nidu by Poko and Undu by Puare. He told the court that since his childhood days he had been using the disputed land and other surrounding areas for gathering, hunting and fishing, and is still doing the same up to the present time. He was told that Sanga of Puare would also turn back from Nidu/Undu creek as that was the boundary between Puare and Poko. The Nap clan had land marks such as bamboo, burial sites and breadfruit tree growing there.

The fourth Nap witness was Lawrence Kake of Kasa clan of Poko village. He confirmed the evidence of the first three Nap witnesses by telling the court that the dispute area and other surrounding areas belonged to Nap clan. The main village boundary between Poko and Puare villages was at Nidu/Undu creek and not at Pabile creek.

The fifth Nap witness was Casper Iko. He was called to clarify the contents of the letter he wrote to Adam Oro of Woloklu clan of Puare regarding the land known as Nidu Pusin by Poko and Komdo-Asa by Puare. He confirmed that the portion of land mentioned in his letter was owned by Wase clan and it was not in the disputed area but further down near the Poko and Puare village boundary.

In the final analysis of the evidence of both parties, we noted the following.

Woloklu claim.

We noted that the disputed portion of land is closer to other Woloklu or Puare land and is also closer to Puare village than Poko. We also noted that the Woloklu clan had landmarks on other adjoining portions of land not in dispute, however were important as they showed the proximity of those other portions to the disputed area thus confirming the closeness of the disputed area to Puare than Poko.

During hearing, we also noted that Woloklu clan had witnesses who were elderly and members of other tribal group giving evidence in support of their claim, witnesses such as Mathias Kamasa (70 years), Francis Waka (60 years), and Peter Ropsy and Casper Samala of Leitre village, a different tribal group with different customary practices.

Mathias Kamasa gave evidence that he had walked, camped, hunted, fished and gathered from the disputed area and other surrounding areas since he was a young man until now. He is old man now and about seventy (70) years old. During his young days he never met nor sighted any Nap clansman or Poko villager occupying the area or living there. All he knew was that the land around there including the disputed portion was owned by Woloklu clan and other Puare clans.

It was until early seventies that he saw Palani Nap, together with Steven Samban and others camping and making garden at the disputed area and other nearby areas. On several occasions they had told Palani Nap to leave the area but he never complied. Other activities by other members of the Nap clan and the food crops they planted and are now growing at the area were recent.

There were also the evidence of Catherine Walape Palani and Peter Kasina.

Catherine Walape Palani is from Poko village and is the sister of Samuel Yara Kondi and half sister to Vincent Yopo Palani. Why should she ignore the claim of her brothers and support the claim of Woloklu clan and Puare in general, especially when an important item such as land was in dispute?

There was also the evidence of Peter Kasina, who is the maternal uncle of Lansa Doko, the Nap clan spokesperson. Why would he give evidence against his own nephew? In most situations, he should be the one supporting his uncle’s claim, but instead he supported the Woloklu claim saying that he wanted to clear the situation.

Nap claim.

For Nap clan we noted that the disputed portion of land is a fair distance from Poko village. While we gave equal importance to their genealogical history and evidence of other land marks in the disputed area, we noted that all of their five witnesses were young, compared to the Woloklu witnesses. Though this factor may not in itself affect the correctness of their evidence, it is important because in most tribal or clan groupings in this country, and especially in disputes to do with land, evidence from elderly people are important because they were born first and were the first to receive the history of their forefathers than the younger generation.

We also heard that the Nap clan and the Poko village in general had or were in dispute with other villages in the area such as Leitre, Samararu and Rawo, over land situated in other locations. While we noted that it is their right to pursue their claims over other portions of land against other clans or groups based on custom, we were also mindful that no one small clan or village can own large or vast tracts of land extending for miles in different directions without encroaching on other villages’ or tribal groups’ land. For a clan or a single village to own a vast area of land, it must be very powerful or an all conquering clan or village to conquer other clans or tribal groups in the area to lay claim to such a large area of land.

When analyzing Steven Samban’s evidence we noted the following.

1. He went to camp near the disputed area and make garden there with his father in law Palani Nap.

2. When asked by Julie Kapuli about a bamboo patch growing there, he confirmed seeing it but, said that he didn’t know who owned it? His answer raised doubts on his evidence because if he was there with Palani Nap, he could have known as Palani Nap would have told him.

3. When also asked by Julie Kapuli whether the dispute area was on the east or west of Pabile, his reply was "I won’t answer that. I don’t want to spoil both sides". His answer again raised doubts on his evidence. While all witnesses from both parties confirmed the dispute area to be on eastern side of Pabile, he refused to answer. In fact he as a witness for Nap clan had an obligation to give evidence truthfully as he knew it, to assist or support Nap case. His behaviour suggested that maybe he knew other information about the area which he didn’t want to disclose, as it may have disadvantaged Nap case.

4. Lastly, he also admitted hearing about Sanga being the owner of land around the area including the disputed portion but qualified his statement saying that the boundary was at Nidu/Undu creek. His statement in our view confirmed that Sanga might have owned land around the area including the disputed portion.

We also took particular note of Casper Iko’s evidence and his letter to Adam Oro of Woloklu clan regarding a portion of land called Nidu Pusin by Poko and Komdo Asa by Puare. While the portion of land mentioned in Casper Iko’s letter may not be within the disputed area, we noted that it confirmed the fact that Adam Oro and his Woloklu clan may own land mentioned in the letter and other surrounding areas including the disputed portion.

Why did Casper Iko in his letter also tell Adam Oro of Woloklu clan to dispute Vincent Palani and Raymond Kiekama if they tried to lay claim to the same portion? Again, it only confirms that Woloklu clan may own land in the area while Vincent Palani, Raymond Kiekama and other Poko people may have been using the land around there including the disputed portion for hunting, gathering, fishing or use rights only, and not ownership.

There was also the evidence by Lawrence Kake of Kasa clan of Poko, who told the court that some of the Nap clan land marks could not be confirmed or located by the inspection team because he took the machines into the sacred sites and destroyed them. When questioned why he destroyed them he replied that the company wanted trees growing there.

We doubt whether anyone in his right mind would do that. We are aware that the Forestry Act has rules and guidelines that provide for the preservation and protection of sacred or cultural sites of the land owning clans or groups, and companies are bound by law to respect them by leaving them out of their operation areas.

The actions of Lawrence Kake by taking the machines in and destroying them left us wondering. Either, he was out of his mind or; was blinded by the greed for money he was going to receive or; maybe the sites did not belong to him anyway. They may have belonged to some other person or group so, he had no concern for them as he was not going to lose anything by destroying them.

When considering all the evidence of both parties in totality against the principles mentioned earlier, we found that they seem to weigh in favour of the Woloklu clan of Puare than the Nap clan of Poko.

Due to the above findings and, in accordance with the votes taken by the members of the court pursuant to Section 23 (3) of the Land Disputes Settlement Act, whereby the members by absolute majority vote unanimously voted in favour of Woloklu clan’s claim of ownership of the disputed portion of land, the Local Land Court hereby declares that:

The Woloklu clan of Puare is the owner of all that portion of land described or marked as Set Up No. 6 in Block 5 of Vanimo Timber Rights Purchase (TRP).

Orders accordingly.