Tiengawom Clan v Dalavit Clan [2008] PGLLC 5; DC4060 (6 May 2008)

DC4060
PAPUA NEW GUINEA

[IN THE LOCAL LAND COURT OF JUSTICE]

LLC : 13 OF 2006

BETWEEN : TIENGAWOM CLAN

AND : DALAVIT CLAN

LIHIR : NEW IRELAND

2006 : 9^th, 25^th MAY

MAGISTRATE : LAVUTUL . S

MEDIATORS : AMU .H, & M. SITIA

THE LAND DISPUTE SETTLEMENT ACT – SECTION 68 CUSTOMARY OWNERSHIP OF LAND, SECTION 67, PRESUMPTION OF VESTING OF INTERESTS.

Both parties appeared in person

DECLARATION OF OWNERSHIP TO CUSTOMARY LAND

06^th May 2008

The Land Court, The matter came before us after all attempts at mediation failed to settle the issue of customary ownership over the Lapalok Land situated at Komat village, Lihir Island, Namatanai District, New Ireland Province.

ISSUES

(1) Whether either party has standing by custom to claim customary ownership of the said Lapalok Land.
(2) Whether there was an agreement for exchange of the Lapalok Land by Soroka of Dalavit Clan and the elder of Tiengawom clan with another piece of land.

LAW

3. 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 with out 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.

4. Section 68. Determination of Custom

(1) Subject to this section, in all matters before a Provincial Land Court or a Local Land Court the Court shall determine, on the evidence before it, the relevant customs of any group appearing or represented before it.
(2) In applying custom the Court shall have regard to any guidelines laid down in the regulations, and may modify custom to give effect to the guidelines.

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

(a).Land Acquired by Birth

6. 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 through 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 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 off 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).

7. There are also instances where a person(s) or a clan may acquire land through the fulfillment of a 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.

8. 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/deceased husband)

9. 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 by any other means except by Erkuetz or hanging.

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

10. 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.

IMPORTANT LAND MARKS

11. 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, clan’s genealogy (family tree), and other physical evidence available to either party.

12. We should also bear in mind that about nearly 100% of all customary ownership to land 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.

13. In the matter before us both parties were given a fair opportunity to prepare and present their case and call 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 the 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 reference for the parties.

EVIDENCE

TIENGAWOM CLAN

14. In evidence Mr. George Bulunamau the spokesman for the Tiengawom Clan claims he comes from Komat village and a member of the Tiengawom Clan.

15. He claims to have put the boundary on the Lapalok Land and claimed it to be his. He claimed to have got the stories surrounding the land from his grandmother namely Paii.

16. He further stated he is following three elders of the Tiengawom Clan namely, Zianly, Mat, Tangu and Galamo who resided at Pigimot but moved to reside with the other three. He claims Galamo came and resided with a member of the Nayal Clan because he did something wrong. He claimed his elder Galamo resided next to Lapalok Land at the point. He claimed they resided there until they all passed away.

17. He further claimed after the death of his elders the Lapalok land was left idle and shrubs and other plants grew and covered the land. He stated some other people tried to plant coconuts on the said land.

18. Moreover, George stated the clan leader of the Lamatlik clan namely Soroka did asked the following persons, the old lady namely Paii, Etenbil, Yanabual and Wasir if he could clear the Lapalok land in order to plant coconuts on it. He however claimed they did not agree to Soroka’s request and said no to him. But Soroka insisted and said he would clear the land and he would give a piece of land from his other pieces of land in exchange for the Lapalok land. He claimed they then agreed to Soroka’s undertaking.
George stated Yanabual insisted that Soroka must exchange the land with a piece of his land along the beach. However, Soroka failed to honor and fulfill his promise in order to give a piece of his land in place of the Lapalok land. He claims the said land to be his until today.

19. Upon examination, George agreed that Gesmon had lived or resided on the land for many years and the dispute over ownershp of the Lapalok land only arose in 2004.

20. The 1^st witness called namely John Etenbil a member of the Tiengawom Clan claims the spokesman George to be his uncle. He claimed the Lapalok Land was occupied by 4 people namely, Tangu, Galamo, Mat, and Zianly. He claimed they are following their uncle namely Mangalik Petro.

21. He further claimed that Mangalik had told them the land was theirs, and he had told them that in the event that he dies they should follow it and claim the said land back. He claimed the land was left untouched and shrubs and trees grew over the land.

22. He claimed, so when Soroka who is Gesmon’s brother saw it, he came and saw them at Patuk village and asked them if Gesmon could cut and clear it in order to plant coconuts. He claimed they agreed under the condition that the said land would then be exchanged with another piece of land by Soroka.

23. He claimed, until today they have not fulfilled Soroka’s undertaking in order to replace the said land with another piece of their land.

24. The second and final witness Julius Anor who is George’s cousin brother claimed they (Gesmon & Soroka) came and saw their grandmother and their uncles in order to clear the land and plant coconuts and would exchange it with another piece of land.

DALAVIT/LAMATLIK CLAN

25. On the contrary, Gesmon Andrew the spokesman for the Dalavit Clan stated he hails from the Dalavit Clan. He stated he used to reside at Lisel village whilst his brother Soroka, Buak, Lupe and their mother settled on Lapalok Land. He claimed they told him the land was theirs. He said they cut and cleared the bushes next to the road but he himself stopped them. He was assisted by a person by the name of Kondiak and they cut and cleared the land. Gesmon claimed they held some customary feastings on the land.

26. He revealed that Paii then disputed the ownership of the Lapalok Land and claimed Galamo, and Zianly to be their elders. He however stated that according to the elders from Tumbuapil village, Zianly is from Tumbuapil, as his headstone is located at Tumbuapil village.
In addition, Gesmon stated that Galamo was killed by his own clan members. Gesmon claimed when Galamo passed away his fathers took a pig and his body back to his own clan members. He claimed Puul and Tamal brought the pig to them (Galamo’s clan members). Puul did perform custom with them.

27. Gesmon stated Puul passed away and he and Soroka did perform custom over Puul. Upon cross-examination Gesmon affirmed Galamo was a member of the Tiengawom clan and he also stated that his own clansman Yanabual killed Galamo.

28. Furthermore, upon examination by the spokesman for the Tiengawom clan namely George Bulunamau on why Soroka had not told him (Gesmon) about his grandmother’s dispute over the said land but accorded him the right to the land. However, Gesmon replied saying she (Paii) disputed him (Gesmon) and they all came for the mediation in the present of the councilor and the tultul, they found out that there wasn’t any Tiengawom clan members on the land. Gesmon claimed it was their land and Soroka’s headstone is on the land and Soroka was still alive when Paii disputed them over the ownership of the Lapalok land.

29. In support of Gesmon’s evidence Roland Amoi of the Lamatlik clan stated Andrew Gesmon is his grandfather and the uncle of his mother. He claims from long ago the said Lapalok Land was theirs; Soroka was their last elder that resided on the said land. He denied Soroka having told them the land belongs to another clan but it belongs to them (Lamatlik clan).

30. He further claims they have a cemetery on Lapalok Land until today, as they knew the land belongs to them, and he claims after Soroka passed away there wasn’t any dispute only until very recently.

31. Second witness, Joseph Kondiak a member of the Lupitien clan whilst in support of the Dalavit /Lamatlik clan claims Gesmon to be his nephew his sister’s son namely Ipinetz. He claims his mother is from the Lubitien Clan whilst his father is from the Kumri clan.

32. Joseph stated he knows the land belongs to the Lamatlik clan; a man from the Tiengawom clan came and settled at Lapalok Land after he had been shot and injured with a spear. He lived there until he passed away; upon his death members of the Lamatlik clan returned his body back to his relatives together with a pig.

33. He added the Tiengawom Clan members are following Galamo in order to claim the land. The two ladies referred to as Mat and Tago came very recently, Mat was from the Tiengawom Clan whilst Tango was from the Lupitien clan, they were sisters of the same father.
Joseph Kondiak upon being cross-examined by the spokesman for the Tiengawom clan on how he happened to know that the land belongs to the Lamatlik clan, he responded saying, they have a “hausboi” and a “headstone/burial ground “on the land and their boundary is next to the river. He also replied saying Lapalok is where they resided and the cemetery is located at the point.

34. The third witness, Martin Kospi from the Masi clan of Komat village, Lihir Island affirmed that the Lapalok Land belongs to the Lamatlik clan. He further stated that Paii and Tule had a case over the land at Patu.

35. Moreover, he stated that Galamo is from the Tiengawom clan which Paii and Tule are basing their claim upon. He claimed Galamo had a problem and he ran away from his clan members and settled at Lapalok land, which belongs to the Lamatlik clan. Upon his death his body was return to his relatives together with a pig at Pikuot village. He also affirmed that the Dalavit (Lamatlik) clan have a cemetery on Lapalok Land and their elders which were buried there are, Sikau, Azar, Landau, and Parum.

36. Martin Kospi in his evidence affirmed the land is Lamatlik clan land as they were always here and they all know it’s their land and their elders were Buak, Tango and Soroka of Latavis hamlet. When queried where they had buried the dead as the place was rocky and it was impossible to dig a grave, he stated they would either placed the dead bodies on the rock until the bodies rot away gradually or at times they would burn them off.

DELIBERATION ON FINDINGS

37. Firstly the land the subject of the dispute is situated on the East Coast of Lihir Island at Komat village. The said piece of land starts from where the main road is and extends down to the shoreline and including the rocky point overlooking the sea.

38. Upon inspection and enquiry into the land by the court it was revealed by Andrew Gesmon and confirmed by the spokesman for the opposing clan that the elder of the Lamatlik/Dalavit clan namely Soroka had sold a portion of Lapalok land to one namely Wes of Pidel Clan for his children who are members of the Tiengawom clan. The children of Wes are now residing on that particular portion which their father has purchased. It was revealed during the inspection by Gesmon that nobody disputed the sale by Soroka. Either party did not reveal this piece of evidence regarding the sale during the actual hearing, until the day of inspection.

39. Now if nobody or any member of the Tiengawom clan did not dispute the sale of a portion of Lapalok Land to Wes of Pidel Clan by Soroka, then who else could be the rightful owner of the said land. In addition, it is common knowledge the land was sold by Soroka of the Dalavit clan to Wes of Pidel clan and married to a woman from the Tiengawom Clan, now a party to the dispute.

40. Further, the court found that the Spokesman for the Lamatlik/Dalavit clan Andrew Gesmon and his family and several members of his clan are also residing on the land, particularly at Latavis hamlet. However, the Spokesman (George) for the Tiengawom clan claims they are sitting outside the actual boundary of Lapalok Land and on another piece of land belonging to the Nayal Clan, unfortunately no further evidence was called to affirm this claim, nor the court was notified if ever there was an existing or likely dispute by the Nayal clan or any other clan over the portion where Latavis hamlet is located.

41. In addition it is quite obvious the spokesman for the Tiengawom clan Mr. George Bulunamau raised this issue in his evidence just to deter the mind of the court.

42. Moreover, we had the benefit of sighting the remnants of the ceremonial hut/haus boi and the burial site/cemetery of the Lamatlik/Dalavit clan situated on the cliff/rocky point overlooking the sea inside the portion which they claimed to be part of Lapalok Land. These are direct physical evidence of early settlement by members of the Dalavit clan and none other.

43. We also found on the said land overgrown coconut trees and other tree crops, it appears they are over 20 years old. We confirmed from Andrew Gesmon that he had lived and planted coconut trees there prior to Independence about 30 years ago.

44. In addition, Andrew Gesmon upon cross examination by the spokesman for the Tiengawom clan if his brother Soroka had told him about an earlier dispute by his grandmother Paii over the ownership of the land, he admitted there was a dispute and after the matter was brought to the councillor and the Tultul at that time they found out non of the Tiengawom clan members were on the land, the dispute arose whilst Soroka was still alive. From evidence the dispute resurfaced in about 2004 which resulted in this proceeding.

45. We found from evidence none of the elders of the Tiengawom clan including Galamo which they are following to claim ownership of the land was buried on the land. It is common knowledge Galamo’s body was returned by members of the Dalavit/Lamatlik clan namely Puul and Tamal together with a pig to his clan members for burial at his clans’ own cemetery at Pikuot Hamlet. It is common knowledge to both parties Galamo was forced to live at Lapalok after he had committed a wrong within and against his own clan and became an outcast until his death. According to Lihir custom no member of another clan can be buried on another clan’s burial sites/cemetery. That was the case with Galamo he had to be returned to his clan for proper burial.

46. The Tiengawom clan is basically basing their claim for ownership following their elders namely, Zianly, Mat, Tangu and Galamo which they claim had lived on the land. They claimed they did give away the land to Soroka upon the understanding that he exchanged it with another piece of land but he failed to do so.

47. The court found no physical evidence of any remnants of ceremonial huts/haus boi, sacred sites, burial sites and any ancient trees signifying early settlement by the Tiengawom clan and its early members. Their claim will remain a myth as opposed to the evidence of the Dalavit Clan.

DECLARATION OF CUSTOMARY OWNERSHIP

48. Based on the above finding of fact, this court unanimously agreed and declared that the customary ownership of Lapalok Land is vested in Andrew Gesmon and his Dalavit Clan, except for the portion which was purchased by Wes of Pidel Clan.

49. And that the existing boundaries shall remain to be the boundaries of Lapalok Land.

REASONS

50. Although the Tiengawom clan pleaded the said land was given away by their elders in return for another piece of land from Soroka, an elder from the Dalavit Clan appears to be a myth. The logic behind this is that why would Soroka knowing very well Lapalok Land was not his and sold a portion of it to Wes of Pidel Clan who is married to a woman from the Tiengawom clan now a party to this dispute?

51. From the evidence nobody including members of the Tiengawom Clan disputed the sale or disclosed it to the court during evidence in chief. It only came to light after the court enquired during the visit of the land boundaries. Wes of Pidel Clan not only bought a portion of the Lapalok land; however he bought the said portion for his children who are members of the Tiengawom Clan (disputing party). If the Tiengawom Clan including the children of Wes are the true land owners of Lapalok Land, why did they allow Wes to purchase the particular portion of Lapalok Land from Soroka? In the court’s view the purchase only affirms that Soroka and his clan since than were the rightful customary owners of the said Lapalok Land. That is why he used his authority on behalf of the clan and sold that portion to Wes of Pidel clan.

52. Finally, it is affirmed by the evidence that Andrew Gesmon and his clan have exercised an interest over the said Lapalok land for not less than 12 years, without the permission, agreement or approval of any other person, thus it sets up the presumption that that interest is vested in the first mentioned - party which the Dalavit /Lamatlik clan in line with the requirements under Section 67 of the Land Dispute Settlement Act.

53. However, the evidence brought by the Tiengawom clan is not sufficient enough to rebut the evidence of the Dalavit/Lamatlik clan in order that it will lead to clear proof that that interest is vested in them. In addition they do not have any physical interests on the land which will affirm their claim for ownership.

54. Above all the important and significant land marks mentioned in the findings are clear proof of early settlement and eventual ownership of Lapalok Land by the Dalavit/Lamatlik clan. It is by Lihir custom that no clan can built or erect their Haus Boi/Ceremonial hut or have their dead buried on another clans land.