Tinetalgo [Likianba Sub-Clan] Clan v Nissal Clan [2008] PGLLC 4; DC1016 (29 September 2008)

DC1016

PAPUA NEW GUINEA
IN THE LOCAL LAND COURT OF JUSTICE

LLCr. O4 of 2008

BETWEEN

TINETALGO [Likianba Sub-Clan] CLAN

AND

NISSAL CLAN

Lihir: S.Lavutul

Mediators:
A. Bosle
T. Zakok

2008: 29th September

CUSTOMARY LAND DISPUTE – Land Dispute Settlement Act –Section 67, Section 68 – Customary Ownership of Land. Lihir as a Matrilineal Society in Respect to Land.

Cases Cited
Application of Ambra Nii on behalf of himself and other members of the Toisap clan [1991PNGLR 357/N1007

References
Land Dispute Settlement Act, s.67, s.68
Local Customs and practices of the Lihir people.

Representation

Ms.Francisca Tuanakuas –Spokesperson for Likianba sub-clan of the Tinetalgo Clan.
Mr. Robert Matson – Spokesman for the Lala sub-clan of the Nissal Clan.

DETERMINATION OF OWNERSHIP AS TO CUSTOMARY LAND

25th February 2009

The Local Land Court, This matter came before us after all attempts at mediation failed to amicably settle the dispute as to customary ownership over Latum Block 360. The Land the subject of the dispute is Latum Block 360 located within the vicinity of Kunaye- Airport road.
2. This dispute is basically between the Likianba sub-clan of the major Tinetalgo Clan and the Lala sub-clan of the major Nissal Clan of Kunaye No.1 village respectively.

ISSUES:

3. Whether either party has standing by custom to claim customary ownership of the said Latum Block 360.

4. What are the respective clan’s physical interests on the said land?

LAW

5. Section 67. Presumption of vesting of interests;

(1) Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land the subject of the dispute for not less than 12 years without the permission, agreement or approval of any other person sets up the presumption that that interest is vested in the first- mentioned party.

(2) Where a presumption is set up under Subsection (1), it may be rebutted only by evidence leading to clear proof that the interest is vested in some other person.

6. Section 68 of the Land Dispute Settlement Act - Determination of Custom

(1). Subject to this section, in all matters before a Provincial Land Court or a Local Land 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.

LOCAL CUSTOM

7. The following are instances how land is acquired, and/or inherited in Lihir under its customary land tenure system:

(a).Land Acquired by Birth

8. Prior to going into the evidence we wish to mention from the start that Lihir is a matrilineal society, where land rights are vested in women and their off springs. Land passes on within the clan by birth. All customary land rights and any manner of disposal of land either by sale, transfer of ownership to another clan group or individual and/or in exchange for their land for another piece of land is totally at the prerogative and consent of all the clan members and not any individual member, even if you are the clan leader. A clan leader is only a custodian of all the land that is own by the clan, he cannot dispose of land to his children or any other person(s), unless the clan consents to such.

(b). Land Acquired by or After the Performance of a Customary Feast In Fulfillment of a Customary Obligation(s).

9. There are also instances where a person(s) or a clan may acquire land through the fulfillment of certain customary obligation(s) through the performance of customary funeral feastings, or play a part in a certain customary funeral feastings may qualify him or the clan to acquire land from the deceased person and his clan. According to Lihir custom a clan or a member of a clan may hosts the following category of feastings, ararum, papeke and tutunkanut in its preceding order.

10. According to Lihir custom any person or any clan wanting to acquire and inherit land belonging to a deceased person will have to perform all three categories of feastings in order to fully qualify him or the clan to claim customary ownership of the land. Such may occur when the deceased owner is the last surviving member of a certain clan. In the event that he dies his children or any other person closely associated to him may perform the above manner of feastings prior to and upon his death. Again the clan must give its absolute approval and recognition to such arrangement.

(c). Land acquired by the performance of Erkuetz (Hanging by the rope of the Wife of a Dying husband).

11. In this instance prior to colonization and Christianity in the event that a man dies his wife/widow will be hung in order that she’ll be buried together with her husband. Her own relatives will perform the hanging in order to cause her death. In return her husband’s clan members will give away to her clan members a portion of their land of their choice. The portion of land cannot be return to its original owners unless they perform Erkuetz. Land acquired by Erkuetz is never reclaimed.

(d). Land acquired by Payment of Cash, Shell money or in Kind.

12. There are instances where customary land is sold off to individuals or other clan groups by its original owners. The payment of cash or shell monies extinguishes their rights as to customary ownership to land. However the clan members must consent fully to such arrangement.

(e) Significant Land Marks

13. Generally, there are important landmarks, which the clan(s) may rely on in their claim for customary ownership over land that is any remnant of early settlement, ceremonial huts (haus boi), old/ancient trees and burial grounds/cemeteries, sacred sites (masalai), clan’s genealogy (family tree), and other physical evidence available to either party.

14. We bear in mind that about nearly 100% of all customary ownership to land on Lihir is not documented, but are in the mind and heart of the clan members as passed down from generation to generation. (Hearsay). Fortunately strict rules of evidence do not apply in Land Court proceedings.

15. Both parties were given a fair opportunity to prepare and present their case and called witnesses of their choice. The Court also had the opportunity to walk and inspect the boundaries with the assistance and under the directions of both parties. We also had the opportunity to have the Lihir Gold Limited Company Surveyor to plot the boundaries for the parties in which proper maps were drawn up for their purposes and our purposes as well, based on GPS readings. Both clans were given the opportunity to indicate their boundaries based on their local knowledge. This map will now be used to support our findings and held as future references for the parties.

EVIDENCE

Lala Sub-Clan of the Nissal Clan

16. Spoke person Robert Matson stated he hails from Kunaye No.1 village Lihir Island and hail from the Nissal Clan.

17. He stated they regard the land as customary land as he does gardening on the said land and they claim it as theirs as they had planted coconuts on the said land including his grand fathers. H e added when his grandmother planted coconuts on the said land the other clan such as Likianba clan did not disputed it.

18 Matson stated he wishes to tell the court that all of the members of the Tinetalgo clan know the land is theirs [Nissal clan].

19. In his response as to why do the Likianba clan follow their clan for the land, he stated Toihile was their elder and they are following him.

20. First witness Bernard Amnol stated he wishes to tell the court about what his father and mother had told him about the said land. He claims to be the eldest of the family of Francisca Nahuon and he wishes to tell the court the land is customary at Latum Block 360.

21. He stated he wishes to tell the court every other pieces of land on Lihir is inherited by custom and not genealogy. Bernard claimed his grandmother Geralda Zakie told him that the land Latum Block 360 is her land and its boundaries starts from the beach at Liananam Hamlet, it was a plantation where there are coconut trees and up to Lemdemde where there also coconuts and a haus boi belonging to the following elders, Kokotz and Kulkalien, they were eldest of the Aputubu- Lkazielziel clan.

22. He added Kulkalien was the elder and his nephew Kokotz performed custom over him. He stated Kokotz was the father of his grandmother Geralda Zakie and his mother Francisca is still alive today. He added when Kokotz died his grandmother Zakie performed custom over him as he was the last surviving member of the Aputubu-Lkazielziel sub-clan and they were the owners of the said land.

23. Bernard stated when his grandmother Zakie died he and his mother performed custom over her. That is why he stated the land belongs to them through customary inheritance, including all the land from the coast where they have burial sites and ceremonial huts or haus boi.

24. Bernard reiterated the land covers Latum Block 360 to the plantation to Litombil where they planted coconut trees. He added the reason why Stanis Toihile [elder of Tinetalgo clan] had his name on the said Latum Block 360 was because of their mother [Francisca Nahuon] as their mother is the customary land owner of the Latum Block 360.

25. Bernard stated Stanis Toihile had told him that he will put his name against the said land in order to hold the said land and in the event that he comes back or if he [Toihile] dies the said land would revert back the three of them [Bernard, Robert and their mother]. He added he wish to clarify the court about the customary practices on how they inherit land in that, even if you are a clan or sub-clan and you do not perform custom on the land you will not inherit the land. He claimed in relation to the boundaries they have a common boundary with the Tiengawom clan on both sides.

26. Upon cross-examination on why he said the land does not belong to the Nissal clan but it belongs to his immediate family, he replied it is a customary land and it transferred to his grandmother through inheritance and it had been there for a long time up until today and even Stanis Toihile did not dispute it.

27. He further added nobody disputed them when they were planting coconuts on the said land and he claimed Stanis Toihile had held the said land on behalf of his mother.

28. Second witness, Francisca Nahuon revealed she is the mother of Bernard, Simon and Robert. And she wishes to tell the court about the pieces of land from Lemdemde up to Latum Block 360 including Letobel. She claims these pieces of land belong to two elders of the Aputubu-Lkazielziel clan. The two elders were Kalkalien and Kokotz.

29. Francisca claimed Kokotz was married to her grandmother namely; Alukou and they resided at Lemdemde hamlet. She added Alukou bore her mother namely Zakie and she bore Bernard, Simon and Robert.

30. She stated when Kalkalien died Kokotz did perform customary feasting over him. And she added when Kokotz died her mother Zakie performed customary feasting over him.

31. She stated the land the subject of the dispute is still theirs and nobody has ever removed it from them. And she claimed they have land marks at Letombil, there is a plantation of coconuts on it, whilst at Latum they have their gardens and at Lendemde they also have a plantation including a haus boi or ceremonial hut.

32. Furthermore, she stated they also have a plantation at the beachfront and whenever there is a customary feasting they would go down to the beach/sea for a ceremony referred to as Amok (sacred ground/taboo).

33. She claimed they resided together with elders Toihile and Longar, they work alongside each other and they never disputed them (Francisca and children) or try to get rid of them. She added the two elders; Toihile and Longar are from the Likianba sub-clan whilst her grandfather is from the Aputubu-Lkazielziel sub-clan of the major Tinetalgo clan.

34. Upon cross-examination, on who planted the coconuts, Francisca stated her mother and uncle planted the coconuts at Litombel for her son Bernard and Ledemde was planted by her father Tangir and her uncle Kuroh, whilst at the beach it was planted by one of her son namely Sawol and if e dies the plantation would return back to them (Francisca and her children).

35. Upon further examination on who the real land owners were, she replied it was the Aputubu-Lkazielziel sub clan.

36. Third witness Alois Yeruh of the Tiengawom clan of Kunaye No.1 village stated he wishes to tell the court they have a common boundary with the Aputubu- Lkazielziel sub-clan.

37. He added Augustine Kalayen had a daughter married to the Nissal Clan and agreed with his daughter’s husband namely Ignatius Nohuro, he gave Block 359 out of the land which he had a legal boundary.

38. Yeruh stated they followed the boundary, himself, and Stanis Toihile. He claimed Stanis Toihile told him that the boundary they followed belongs to the Aputubu-Lkazielziel clan’s land.

39. Yeruh stated he wishes to follow the landmarks on the land, a plantation at Letombil, an old hamlet at Ledemde and coconut trees and on the beach a plantation at Lienanam and a creek-Twiz at the beach.

40. Yeruh, upon examination on which particular clans did he followed the boundaries with; he replied Stanis Toihile and members of the Amuat, Nissal, Tinetalgo and Tiengawom clans.

41. Fourth witness, John Ulon of the Tiengawom clan of Kunaye No.1 village, stated he got the stories from his father Hugo Kopin that the Amuat sub-clan is under the Nissal clan. He further stated his father had told him about the boundaries that the Aputubu-Lkazielziel sub-clan and Tiengawom clan have a common boundary.

42. John Ulon stated when Kokotz of Aputubu –Lkazielziel sub-clan died his daughter namely Zakie did perform custom over her father and after Zakie did custom there weren’t any more members of the Aputubu-Lkazielziel left surviving. Ulon stated that is why Block 360 remains with Nahoun and her son Bernard Amnol today and there are land marks that Bernard and his mother rely on today, there is a plantation at Litombil at the beach and the other at Ledemde.

43. Upon cross examination John Ulon stated, the Aputubu-Lkazielziel sub-clan bore Zakie and Aputubu-Lkazielziel sub-clan is a sub-clan of the Tinetalgo clan and he claimed there were no surving members of the Aputubu-Lkazieziel sub-clan after Kokotz, he was the last person. He added the other sub-clan under the Tinetalgo clan was Likianba sub-clan.

44. Fifth witness Raphael Toihile from Kunaye village and comes from the Tiengawom clan, he claims to be the son of Stanis Toihile. Raphael stated his father was only looking after the Block 360 after his uncles were in Port Moresby.

45. Raphael stated his father use to tell them the he was only taking care of the Block on behalf of his uncles Bernard and Robert. He claimed his father told them if they come back he would hand over the land back to them.

46. Raphael added the two ladies (Francisca and Veronica) now in court are his father’s niece but they do not live with him and they are his enemies. Upon cross-examination, whether Raphael was in good terms with his father prior to his father’s death, he replied his differences with his father was a different thing and he claim he knew from his father the stories over the land prior to their differences.

LIKIANBA SUB-CLAN OF THE TINETALGO CLAN

47. Spoke person of the Likianba sub-clan of the Tinetalgo clan Francisca Tuanakuas claims in her affidavit to be representing the Aputubu-Lkazielziel sub-clan and Likianba sub-clan of the Tinetalgo clan.

48. She claims to be the first born daughter of Augustine Kalayen and Margaret Lusos Tubunato and her mother is from the Likianba sub-clan of the Tinetalgo clan. Her mother is from the Margaret is related as niece to Longar and Sabong who are members of the Aputubu-Lkazielziel sub-clan of the Tinetalgo clan whose extends from Mdadowos on the coast to Lemedemde and Latum (which is described as block 360 in the LGL Airport Lease) and Letombil Creek and further extends to Mdatousial and Letenmon, Leliamel (Green House) ending at the Mdatunmut (Landolam creek) which is the head land of the Lakunbut creek (The Disputed Land). This is the land that is the subject of this dispute.

49. She claims to be representing her immediate family-her children and grandchildren of Augustine Kalayen and Margaret Tubunato and the Likianba sub-clan who now inherited the land from the last surving members of the Aputubu-Lkazielziel sub-clan namely Longar and Sabong.

50. Francisca stated in her affidavit she wishes to show that Block 360 (Latum) in the LGL Airport Lease is owned by Aputubu-Lkazielziel sub-clan the last surviving were Longar and Sabong. And she claimed prior to their death they arranged through (certain directions) for the disputed land to be passed onto the Tubunato Family (Francisca Tuanakuas, Renta Ges and Sabong Zik and their children and members of the Likianba Sub-clan closely related to them). She claimed at no time did the Aputubu-Lkazielziel Sub-clan members intended or made any arrangement for the disputed land to be passed onto Zakie who is the daughter of Kokotz a member of the Aputubu-Lkazielziel sub-clan.

51. She added the land consisting of Block 360 which is land shown as owned by the Tinetalgo is owned by the Aputubu-Lkazielziel sub-clan of the Tinetalgo clan and not the Likianba sub-clan which she comes from.

52. She stated the Aputubu-Lkazielziel sub-clan has gone into extinction and every member of the sub-clan has died without any off springs to carry on the sub-clan and the last surviving members of the sub-clan were Longar and Sabong. She emphasis this sub-clan is the true and original land owners of Block 360 (Latum) and the disputed land.

53. She illustrated in her genealogy that Sasien was the uncle of Kalkelien (male), Luong (female) and Tsekmule (female). Luong bore Tsigil. Tsigil bore Rumut(male), Longar(male), Sabong(male), Wenle(meri) and bore Sapakie only son and died early all of these people are deceased. She added Tarcicius Minai met the costs of Wenle and Sapakie’s death and custom and herself and her family met the costs of Longar and Sabong who she claim to be the last surviving members of the Aputubu-Lkazielziel sub-clan and took over at Mdadowos and the disputed land. She claims herself and her family is repaying Minai’s costs for Wenle and her son Sapakie and has now taken over.

54. She added Tsekmule (female) bore Zakok (male) and Kokotz (male) who was married to Lukuo of Mdaretz, Nissal Clan and Zakie was their daughter.

55. She further stated the last three generations of this sub-clan lived at Ledemde hamlet and eventually at Mdadowos. She added Ledemde is where Toihile’s bush house is located up to his death and the last two generations of Aputubu-Lkazielziel sub-clan were Rumut, Longar, Sabong and Wenle, she got married at Lonabare and bore Sapakie and they died before Sabong the last surviving member.

56. Moreover, Francisca stated Wenle bore only one child a son named Sapakie who died living behind the last member Sabong who was then residing at Mdadowos and asked them to come and settled at Mdadowos and clear the place and haus boi so that Sabong Zik, Francisca’s younger brother now deceased can grow up to look after the place and the gardening land which extent beyond the Kunaye Airport and includes block 360 and the disputed area. She added after this invitation her parents relocated the family to Mdadowos where they resided and care for Sabong until he died and she claimed they inherited the land thereafter under custom.

57. Francisca in her recollection stated when Sabong was alive, his nephews at Lisel village conducted the first part of his ararum customary feasting and Tarcicius Minai of Lisel village is aligned with them on the feastings. In the second part of the feastings was at Lesolik another haus boi of theirs and they slaughtered three large pigs, valued at 15 fathoms of traditional shell monies/mis, 10 fathoms of mis and 5 fathoms of mis and two meri pig/sows whilst Toihile and family contributed nothing to this feast, they were involved in the feastings of their own family members.

58. Francisca went on to state; the third and final customary feast which now also included Longar –the second last surviving member of the Aputubu-Lkazielziel sub-clan was held at Lkapukiandom haus boi at Kunaye No.2 and they slaughtered three large pigs at the value of 25 fathoms of mis/shell monies and K200.00, 15 fathoms of mis/shell monies and 10 fathoms of mis/shell monies and four meri pigs/sows. This was the final customary feast of Sabong and Longar who were the last blood members of the Aputubu-Lkazielziel sub-clan who were the traditional land owners of block 360.

59. Francisca stated by virtue of customary law they have legally acquired ownership of all land belonging to the Aputubu-Lkazielziel sub-clan of Kunaye, as they are the ones who should own the disputed land.

60. Francisca stated further Mr. Amnol is claiming that Kokotz was the last surviving member of the Aputubu-Lkzielziel sub-clan and therefore after his death his daughter Zakie should take over all land including block 360. She added Zakie contributed one pig to her father’s customary feast and Kokotz and Zakok’s customary feast was done by the surviving members namely Rumut and Longar and relatives from the Likianba sub-clan. And Zakie contributed one pig was done on the basis that Kokotz was her father. She claimed under Lihir custom where customary feasting three distinct stages what is one pig? The fact is killing one pig in a feast being made by the clan where your father is from does not give one power and authority to inherit the entire interest and property including land that belongs to the sub-clan as collective property for everyone in the clan or sub-clan. The one strategy cannot hold under custom and claims raised pursuant to it must be refused outright.

61. She continued, there is another reason why the pig strategy of Bernard Amnol must not be entertained be during the customary feasting for Zakie held at Mdaretz, Mahasaet Island, her uncle the late Stanis Toihile repaid this one pig with another pig that he brought to the feast and therefore there is no debt to the sub-clan regarding the so called pig. Secondly, what happened now cancels out any claims or interests whatsoever in the disputed land including block 360.

62. Francisca stated she is aware that in 1996 at the second customary feast (Pkepke) of her grandmother Ms.Lipursie at Lesolik, Kiliahoun approached her uncle Stanis Toihile whilst they were all present in the little hut infront of our haus boi and said "you have repaid Zakie’s pig and what will your nephews referring to Bernard Amnol, Simon Pupet and Robert) do? On what land will they have and how will they survive without a piece of land. They are foreigners from Mahaset, they are not from here. So can you allow them to assist you with another pig so that they remain under you and have access to gardening land?" Francisca added, based on this request, her uncle Toihile allowed Kiliawon to bring another pig which then allowed them access to land under Tiohile’s control which includes the diluted land including block 360. Zakie’s contribution of one pig has been repaid. The second pig was intended to put him under the control of Stanis Toihile not to give them power to reassert your control over us but to be our guest on our land.

63. Francisca revealed that there is an allegation that Tsgil is a Toboro and not an Aputubu-Lkazielziel and that she had migrated from Liputiet to Lendemde. This allegation cannot be proven. However, Francisca reiterated if it can be proven that she indeed moved from Liputiet then that will only show that people living at Liputiet were the same sub-clan and had to move there to ensure continuity. Francisca stated this is because there were Likianba at Laibuoklak and Snaigang and Tobro at Unasro but she had to come from Leputiet which is where members of the same sub-clan were residing. Francisca emphasis Tsgil had to be an Aputubu-Lkazielziel in order to move to Lendemde.

64. Upon cross examination on where she got the genealogy from, Francisca stated she got the stories about their genealogy from Sobong, Lepursie and Stanis Toihile. She added Sobong was still alive and so as Toihile and Lepursie.

65. She was cross examined if she had told the mediation she didn’t have any stories to tell to the mediation and she replied she was not present at the mediation.

66. Co-spokesperson Ms. Veronica Yembek, from Kunaye No.1 village stated she is a member of the Likianba Sub-clan of the major Tinetalgo clan. She claims in relation to the land Block 360 as they were growing up they heard stories from their elders Longar and Sabong of the Aputubu-Lkazielziel sub –clan as she claim they were the last surviving members of Aputubu-Lkazielziel sub-clan.

67. Veronica claims they [Sabong and Longar] use to follow the Likianba sub-clan in customary feastings that is Stanis Toihile, Margaret Tubunato and her daughter Francisca Tuanakuas and herself.

68. She claims the elder of Aputubu-Lkazielziel sub-clan was Sasien and had three (3) nephews and a niece, Kakalien a male, the females were Luong and Tsekmule whilst the last two (2) males were Longar and Sabong. She added Sabong and Longar did custom with Zakie and after Sabong and Longar passed away Margaret Tubunato of Likianba sub- clan they did custom over Longar and Sobong.

69. She claims and until today the land was inherited by Likianba sub-clan because of the feasting through Likianba sub-clan through, Toihile, Joseph Rumut and Elizabeth Kotz, Teklabet and Fidelma they all witnessed the pig Stanis brought to Daretz on Mahaset Island.

70. Veronica stated Kilauwon found them Lisolik hamlet at Kunaye No.1 and she claimed he told them "regarding the pig, that Bernard Amnol and your uncles are from Mahaset Island and he asked if he could buy another pig in order to allow them [Bernard and his brothers] to enable them to do gardening on the said land as they not from Kunaye No.1 village. Veronica continued that Toihile whilst he was still alive he got up and said" it’s alright you bring a pig to us. It was totally a new pig and it was slaughtered over Zakie and she claimed they have refunded it.

71. Veronica continued to claim they know the land was theirs from long ago, the land starts at the beach; Hamlaka up to Latum Block 360, Lakambut creek, Aputubu-Lkazielziel sub-clan and Unawos clan have a common boundary.

72. She stated she wishes to tell the court that according to Lihir custom, one pig slaughtered is not enough to inherit land; you must do feastings three times and slaughter three pigs over it. She added according to their grandfather, Aputubu-Lkazielziel sub- clan and Likianba sub-clan they feasts together and inherited the land fromAputubu-Lkaziel sub –clan.

73. First witness, Augustine Kalayen of Kunaye No.2 village is from the Tiengawom clan told the court his family resided at Kunaye No.2 village; they took him to their land and resided with them [his family]. He claimed he resided with the elders of the Aputubu-Lkazielziel sub-clan namely Sabong and Longar. He added after the elders died he left Dandowos and they asked him to reside at Latum Block, they did custom over the two elders and they took over the land and after the Mining came they put their name against the block he claimed left them.

74. Second witness, Lucy Tukoli of Kunaye No.1 stated she comes from the Tiengawom clan and she is the offspring of Aputubu-Lkazielziel sub-clan and she is the daughter of Longar and last uncle was Sabong. Lucy claimed she performed custom over Longar and Sabong and she did not get the land as the land belongs to the clan, Aputubu-Lkazielziel of the Tinetalgo clan.

75. Upon cross examination she stated she does not know of any landmarks.

76. Third witness Henry Marum of the Tiengawom clan stated any person who performs three (3) customary feastings will get the land. Upon cross examinations he maintains Longar and Sabong are the last surviving members of the Aputubu-Lkazielziel sub-clan.

FINDINGS OF FACT

77. From the evidence we found the dispute is between brothers Robert Matson, Bernard Amnol and their mother Francisca Nahuon who are members of the Lala sub-clan of the major Nissal clan against Francisca Tuanakuas and her fellow Likianba sub-clan members of the major Tinetalgo clan. We found the dispute is directly between Francisca Nahoun and her immediate family against the Likianba sub-clan members and not against the Nissal clan.

78. The land the subject of this dispute is known as Latum land and being described and referred to as Block No.360 under the Lihir Gold Limited Mining Lease Area, which is located on part of the runway of the Kunaye Airport.

79. The Latum land or Block 360 was originally owned by the Aputubu-Lkazielziel sub-clan of the major Tinetalgo clan. It is believed from the evidence of both parties; the land was transferred to Geralda Zakie the mother of Francisca Nahuon and the grandmother of brothers Robert Matson and Bernard Amnol. The reason for the transfer was because she did perform customary feasting over her father namely Kokotz, who was then a member of the Aputubu-Lkazielziel sub- clan upon his death.

80. Since that time Geralda Zakie and her daughter Francisca Nahuon had held ownership over the said land until this dispute arose in about 2007.

DELIBERATIONS

81. Firstly, Robert Matson and his brother Bernard on behalf of themselves and their mother are contending that the land should remain with them and that they continue to hold the right of customary ownership over the said land.

82. Robert Matson and Bernard Amnol are relying very much on the facts that the land was inherited by their grandmother Geralda Zakie through the performance of customary feasting over her father Kokotz whom they claim to be the last surviving member of the Aputubu-Lkazielziel sub-clan and as a token she inherited the land from the Aputubu-Lkazielziel sub- clan.

83. They are also relying that since then their mother and grandmother including themselves, their uncles and their other relatives have been cultivating the said land including other Aputubu-Lkazielziel sub- clans’ pieces of land such as Ledemde and Letombil on which they had planted plantations of coconuts without any objections from other members of theTinetalgo clan including Stanis Toihile an elder and clan leader of the Likianba sub-clan and the Tinetalgo clan or any other clan.

84. Similarly, Francisca Tuanakuas and other members of the Likianba sub-clan are contending that the Latum Land or Block 360 should return to them as they claim they have repaid the pig which Geralda Zakie slaughtered over her father’s death, and in that they are members of the Likianba sub-clan under the Tinetalgo clan and they believed they have the right of ownership. In addition they also claim that Kokotz was not the last surviving member of the Aputubu-Lkazielziel sub-clan; however they believed Sabong and Longar were the last surviving members of the Aputubu-Lkazielziel sub-clan as they did perform custom over them and supported by their genealogy/family tree.

85. In relation to the first issue with the above facts, yes both parties have a certain degree of standing by custom in order to claim customary ownership to the said land; however we now look closely at their respective interests which they may have exercised over the said land which may then affirm that standing as to ownership.

86. Secondly, in relation to the second issue we now explore the interests of each party in line with the evidence before us in relation to Latum Block 360.

86. We explore the assistance of Section 67 of the Land Dispute Settlement Act which allows for certain presumptions as to the vesting of interests which stipulates, "Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land the subject of the dispute for not less than 12 years without the permission, agreement or approval of any other person sets up a presumption that that interest is vested in the first-mentioned party."

87. By reading Section 67 brings us to the next question as to what interests have each party had had over the land prior to and in the last twelve (12) years. It is clearer from the evidence of Robert Matson, Bernard Amnol and their mother, that she had continued to cultivate the said land after her mother without any objection from members of the disputing clan including their clan leader and elder namely, Stanis Toihile.

88. Similarly, the members of the disputing party did not object to Nahuon and her children planting coconuts on Ledemde and Litombil land, which are also Aputubu-Lkazielziel land.

89. Even if there were surviving members of the Aputubu-Lkazielziel sub-clan as claimed by Francisca Tuanakuas in her evidence there is nothing in their evidence to show that they had raised any concerns over the ownership of the said land during and after the time of Geralda Zakie. There is also no evidence to show that the acclaimed last surviving members of the Aputubu-Lkazielziel sub-clan namely Longar and Sabong have exercised any interests over the said land during their time. This dispute only arose in about 2007 according to the mediation records before us.

90. This court is also mindful of the fact that from the time of inheritance of the said land by Geralda Zakie until the time of her daughter Francisca Nahuon and her children the land the subject of the dispute did not have any economic value as compared to the period after 1996 to today after it became part of the Kunaye Airport Runway and under lease to LGL. Thus then raises the question as to the motive, genuineness and timing of this dispute, what would have been the state of affairs if there was no runway on the said land.

91. On the contrary, Francisca Tuankuas in her evidence wishes to rely mainly on the Aputubu-Lkazielziel sub- clan genealogy or family tree and the claim that they have repaid the pig which Geralda Zakie slaughtered upon the death of her father and that Bernard and Robert are to be their guest on their land after another pig was brought by Kiliahoun in order to pave their way and have user rights to land belonging to the clan.

92. We adopt the view of Amet .J sitting as Special Commissioner of the Lands Titles Commission in application N90/101 in the matter of Hides Gas Project Land as his Honour stated it is not sufficient to rely upon genealogical ancestral history: "If that oral history traces the origin of a particular tribe or a people back thousands of years or hundreds of years without taking into account many other factors since that time to the time of the dispute it would make determination of ownership of land totally meaningless if there had been numerous other intervening factors between the origin of that group of people to what the present circumstances are. It is important to state what other factors ought to be taken into account in a changing developing nation and land tenure system such as is happening in our country at this time."

93. His Honor’s view, affirms that when investigating into customary ownership of land it is not sufficient to rely solely on genealogical ancestral history when determining customary ownership to land, however we sitting as a Land Court should consider other intervening factors between the origins of the disputing parties to what their present circumstances are.

94. In this sense, we consider the genealogical ancestral history of the Aputubu-Lkazielziel sub-clan as per the evidence before us, however it is not sufficient as there is no evidence to demonstrate that they had maintained their interest on the said land by gardening, grazing or burning it off or collecting from it, forbidding others from settling on it or using it. They total failed to exercise a controlling interest on the land over the years.

95. Finally, Our view in relation to the repayment of the pig slaughtered by Zakie over the death of her father by the Likianba clan is improper and a sign of disrespect to her genuineness in honoring her father, Kokotz for being her father and the source of her existence. In order for such a thing to happen, it is our view total consent must be obtained from the party concern. As in this case, there is no evidence to show that total consent was obtained from Francisca Nahuon and her children in order for the pig to be repaid and the land return to the Likianba sub-clan.

96. We are also of the view that, any arrangement in relation to land of the past elders should and must be honor by the current generation and should be not misinterpreted out of deceit.

97. In addition, in relation to the argument in Francisca Tuanakuas’ affidavit stating that Zakie contributed one pig towards the death of her father and contended what is one pig to three distinct stages of customary feastings according to Lihir custom and one pig cannot give the authority and power to inherit the entire interest in land and property. In our view it is not the duty of this court to do a post mortem into any exchanges of the past and we cannot deny the fact that there is always a reason for someone doing something as we do not wish to be led into any assumptions.

DECLARATION

Based on the above deliberations, we unanimously declare that the customary ownership of Latum Block 360 is vested in Francisca Nahuon and Children Robert Matson, Bernard Amnol and Simon.

ORDERS

(1).The Restraining Orders made against LGL in relation to payments of royalties for the use of Block 360 is now discharged forthwith.

(2). Payments be made to Francisca Nahuon and children, Robert Matson, Bernard Amnol and Simon.