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Joseph v Bagelo [2017] PGLLC 1; DC6000 (31 March 2017)

PAPUA NEW GUINEA
[IN THE LOCAL LAND COURT OF ALOTAU]
LLC 1 of 2015


IN THE MATTER OF THE LAND DISPUTE SETTLEMENTS ACT CH.45
AND
IN THE MATTER OF A DISPUTE OVER THE CUSTOMARY OWNERSHIP OF DULYA OF AHIOMA
BETWEEN:
DIGOETA JOSEPH & LEIHEIDI LASARO FOR AND ON BEHALF OF THE HIGOUHI CLAN
Disputants
AND
NELLY BAGELO OF TAGOLEWA CLAN
Respondents
2015:17th, 11th Dec, 27th, 13th Nov, 14th, 3rd July, 19thJune, 21st, 15th May
2016: 2nd Nov, 21st, 7thJuly, 24thJune, 25th Mar, 29th, 22nd, 15thApril
2017: 31st March
ALOTAU: Leonard Mesmin – LLC Magistrate
Peter Masolei – Land Mediator
John Baptist – Land Mediator


CUSTOMARY LAND DISPUTE – Land Dispute Settlement Act –Section 68, Section 39, Section 67 – dispute over ownership – Tawala customary law applied – land boundaries identified – parties from the same clan.


Cases Cited
Safe Lavao –v- Independent State of Papua New Guinea (Re Kerema Town and Airstrip Land) [1978] PNGLR 15
Re Hides Land Project [1993] PNGLR 309
Re Application of Ambra Nii [1991] PNGLR 357


References
Land Dispute Settlement Act
Constitution of PNG


Representation
Mrs Leheidi Lasaro and Ms Daiko Lasaro – Spokeswomen for the Higouhi Clan
Mr Rima Bagelo and Mr Madouna Side – Spokesmen for the Tagolewa Clan


DECISION ON DETERMINATION OF OWNERSHIP AS TO CUSTOMARY LAND

By the Court:
INTRODUCTION

  1. This is a dispute over the customary ownership of Dulya which is a portion of land situated at the highwater mark and extends inland at Ahioma, Huhu LLG area, Alotau, Milne Bay Province.
  2. This dispute was referred to the Local Land Court (LLC) for hearing after the parties failed to reach an agreement to their dispute by way of the customary mediation process.

BACKGROUND

  1. The Complainant Applicant, Leheidi Lasaro and her clan being the Higouhi Clan (Disputants) initiated this dispute resolution process in 2015 when the dispute was registered and a request was made for the appointment of Ad Hoc Land Mediators to conduct land mediation meetings of which Messrs Peter Masolei and John Baptist were duly appointed.
  2. The Disputants claim is that the land, Dulya was outrightly purchased by Leheidi Lasaro’s Grandfather Wedega Wanaia from the Dulya clan of Yalewa and because he purchased the land as a male, she claims on behalf of her clan that the matrilineal custom over Dulia Land does not apply.
  3. On that basis, she claims the Respondents Nelly Bagelo and her clan, Tagolewa, do not have any ownership rights to it.
  4. The Disputants claim that they also have an equal right to possess and own that land based on their occupation of it for a considerable period of time.
  5. In the alternative, she further states her family had made payments to occupy that portion of land during the mortuary feast they participated in and further claim that the mortuary feast occasions can also be used as an occasion for payment for customary land acquisition.
  6. After the third mediation attempt was completed and failed, the dispute was referred to the Local Land Court (LLC) by way of form 8 for registration at the District Court Registry in the Land Court Jurisdiction field.
  7. The Court insisted that parties and their witnesses produce evidence to support their claims of ownership and to clearly identify the boundaries. This evidence must be relevant and sufficient confirming and conforming to the customs and traditions of the disputing clans in assisting to determine the ownership.
  8. Each party was to provide evidence showing through their family trees, oral history and physical evidence like natural geographical features, settlement sites, cemeteries and other physical evidence, to the court.
  9. So basically parties were informed to file and serve on each other, all relevant documentary evidence they would be using and relying on in the hearing.
  10. A directions hearing was conducted at the very outset where parties were directed to produce the following for the courts consideration:
  11. At the opening of their cases, parties had to outline the following:
  12. Parties were informed by the court that apart from the main LLC decision determining the customary ownership of Dulya, the Court would deliberate and make finding first on the Tawala customary practices relating to land tenure and secondly on the boundary of the land.

ISSUES

  1. It is our opinion that the issue here is not ownership per se.
  2. This is because the land is vested in the Tagolewa clan being the clan under which Emma Wanaiya is affiliated to.
  3. It is agreed that Tagolewa is the Primary Landholding clan and it is not in dispute that both parties are members of that clan.
  4. Rather the two main issues to be determined by this court are –
    1. Which of them has a higher claim to the right to control the land?
    2. And to that end, what would the right of control entail?
  5. There were other more specific minor issues that needed to be addressed also before the main issues –
    1. Does the matrilineal system apply?
    2. Do the Higouhi clan have an equal claim to ownership over Dulya?
    3. Can a maternal member of a primary landholding clan lose her land rights if she leaves her clan land?
    4. Did there exist a Will?
    5. Can mortuary feast occasion’s also be used as an occasion for payment for customary land acquisition?

THE LAW

  1. The applicable law in the resolution of customary land disputes is the Land Dispute Settlement Act Ch. 45 itself (hereinafter called the Act) and local custom of the area in dispute.
  2. In exercising its jurisdiction the Court is directed by the Act to endeavour to do substantial justice between the disputing parties in accordance with the Act and custom (see ss. 35(3) (d), 68, 69).
  3. Section 39(2) of the Act provides that the Court shall apply local custom, particularly insofar as such custom relates to customary interests in land and the process by which such interests are allocated and reallocated.
  4. Without limiting the customary interests in land that the Court may take into account, s.39(3) lists the following:
  5. The above provision is clearly an evidentiary aid to assisting the Court in resolving disputes.
  6. The considerations enumerated there are, however, not exhaustive and are not the only things that must be considered. The devolution, acquisition, assignments or otherwise and incidents of customary land rights and interests sometimes transcend the tangible and physical considerations of s. 39(3).
  7. They also involve, for instance, incorporeal interests such as the “ownership” of ancestral spirits and the performance and discharge of customary social obligations.
  8. At the pre-trial conference with the clans, the LLC informed parties that before proceeding into hearing the trial proper:
  9. Section 68 of the Land Dispute Settlement Act (the Act) provides a legislative guide on how custom is to be determined in the Local Land Courts.
  10. Section 68 says –

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.

(3) The Customs (Recognition) Act 1963 does not apply to the determination or application of custom by a Provincial Land Court or a Local Land Court.

(4) Insofar as the power to make laws conferred on a Local-level Government by the Organic Law on Provincial Governments and Local-level Governments extends to the making of laws declaring what is to be taken to be the custom relating to any matter, any such law is evidence in any Provincial Land Court or Local Land Court of the matters set out in the rule.


  1. Basically the provisions say that it is incumbent upon the parties to give evidence and the Court to cause the parties to call or adduce evidence as regard the customary laws of land tenure in their society.
  2. Subsection 2 provides that regulations to the Act will provide guidelines for the Courts to determine relevant custom. Unfortunately, we do not have these guidelines or regulations so we are left with having to develop and adopt guidelines ourselves on a case by case basis.
  3. Subsection 4 further envisages that the Local Level Government authorities will enact rules pertaining to customary land tenure. The Huhu LLG has not passed any such rules and we do not know of any local authority which have done this and therefore this is of no help.
  4. In the absence of guidelines in the regulations and the local level government rules, evidence of the customary land tenure principles have to be adduced by way of general evidence.
  5. We accept that the disputing parties themselves are conversant with their rules and practices of customary land tenure hence they ought to give evidence themselves.
  6. Two members of the bench are customary land mediators who themselves are very well versed in custom and this gives us good standing.
  7. We decided that, even though there are some laws to guide this LLC on how custom is ascertained and enforced we would approach it by first explaining what evidence was produced to the court and assessing the differences between evidence that the disputants produced and what the respondents produced.
  8. In Melanesian land tenure systems the general conception is that land is communally owned by the clan. This principle applies equally to both matrilineal and patrilineal societies.
  9. Individual lineages and sub-clans, however, may have controlling interests over portions of clan or tribe owned land under their control
  10. Tawala society is matrilineal and land generally is held by the maternal clan with its several lineages having usage and to some extent controlling interest over certain portions.
  11. The Tawala speaking people are born into, live and die in a very strong matrilineal society where the man is a stranger to his wife and children in a clan.
  12. The basic family unit consists of a brother, his sister and her children and her daughter’s children but not her son’s children. Offspring from the male members of this family unit go out of it.
  13. A number of these family units all claiming a common ancestress and an unbroken line of descent from her through females, constitute a clan.
  14. Evidence was called on the Tawala custom relating to land tenure laws to assist the Court.
  15. The court inquired into their customary practices by examining evidence produced through these witnesses:
    1. Sipeima Washington of Houlana Wahuhuba Clan
    2. Rueben Pida the current headman of Tagolewa Clan
    3. Magilosi Lakulakum of the Houlana Koyebule Clan
    4. Jack Wedega of Garuboi Clan – his father is of Tagolewa Clan
    5. Madouna Sida of Houlana Hiagababana Clan
  16. We also rely, adopt and accept the two learned mediators knowledge on customary land tenure practices.
  17. From the evidence that was led in court through these witnesses, the LLC made a ruling based on its findings.
  18. We were tasked to find out the process by which the parties concerned had acquired the right to own customary land, being the right in question, whether by purchase, by matrilineal inheritance, by discovery, by marriage, by gift or by whatever means.

FINDINGS AND RULING ON CUSTOMARY LAND TENURE LAWS IN THE TAWALA CULTURE

  1. Every land tenure system contains some series of recognized processes whereby land rights may be acquired from or transferred to other parties.
  2. Messrs’ Peter Masolei and John Baptist (Land Mediators), explained in detail the concept of the different nature of rights being exercised and experienced in the Tawala culture in this way:
    1. Those that have the highest claim of ownership to a portion of customary land are Primary right holders by virtue of both descent and residence – they belong to the same bloodline and have been and are still residing on that land;
    2. The second lot are still primary right holders but because they have moved physically to their husband village, they are still of the same bloodline but their location has changed and therefore the nature of their right has changed and it is contingent on them moving to another location to reside. They are right holders by descent and previous residence;
    3. The third lot are the children of the primary right holders. They come under the umbrella of their mothers primary right holding clan but as in most cases in Milne Bay where the wife follows the husband to his land to reside, these children though considered as primary right holders under their mothers clan, their rights under their fathers clan become secondary and therefore they are right holders by descent but not residence; and
    4. The last lot are those that follow their spouse to his locality to reside so inorder for them to use the land belonging to their spouses clan they necessarily need to seek the permission of his primary right holding clan. They are right holders by residence but not descent.
  3. In a matrilineal society you can be a primary member of your mother’s descent group and a secondary member of your father’s descent group.
  4. If you are a woman and you marry out and follow your husband to his primary place of descent and residence, you become a contingent member of your mothers land that you are leaving but you become a permissive member of husband’s clan, and your children become secondary members of your husbands clan which is their father’s group.
  5. Ownership rights that primary right holders of a clan possess may be classified as such:
    1. Rights of direct use – including rights to plant, to gather, to build.
    2. Rights to control – a party with this right has the authority to restrain users from allowing the land to be used in a certain way, or to direct users of the land to use the land only in one particular way.
    3. Rights of Disposal – the effective power to transfer rights by will, sale, gift or otherwise.
  6. User rights that primary, secondary, contingent members and/or permissive members of a clan possess may be classified as such:
    1. Subsidiary rights – these rights are subsidiary to main rights like right of access or right to use water or land for making a garden.
    2. Residual rights – the right to acquire by reversion in the event of a death of a former right holder who has no descendants or of non-compliance with a specific condition like fulfilling a customary social obligation. Gratuitous grant – grant for use of the lifetime of the benefactor.

GENERAL PRINCIPALS OF SUCCESSION

  1. Clan property, like land, may not pass to person’s outside a deceased’s traditional clan group. Upon the death of a land owning person, land generally passes into the custody and name of mother clan.
  2. In considering who the next person is that inherits customary property and the rights attached to that property, there are two main factors that must be considered:
    1. The kind of property or rights to property inheritable; and
    2. The persons entitled to inherit the property or rights to property.
  3. It is generally understood that no individual member of a clan is absolutely free to pass their property to whomever they individually choose. Approval still must be sought first from the primary right holding members of the clan.
  4. The main properties being enjoyed by clans in the traditional setting are those that are tangible like land, water and resources on land and in water. There are some places though where the property extends to intangible things like songs, magic and even forms of rituals practiced.

MAIN WAYS TO ACQUIRE LAND CUSTOMARILY IN THE TAWALA CULTURE

  1. Customary Land Acquisition is done in several ways of which these are the most common:
  2. Every land tenure system contains some series of recognized processes where land rights may be acquired from or transferred to other parties.
  3. The process is determined by the circumstance within which that right maybe acquired. In the circumstance:
  4. There are various conditions whereby a clan retains a right and occupation is often a necessary one.
  5. The clans represented as parties in the dispute are from the Tawala Cultural Area.

Evidence was led on the issue of customary law in Tawala Society to establish the customary land law practices in this area.


  1. In the Tawala custom of people of Milne Bay area, Alotau District where, land inheritance and custody predominantly always follow the maternal ancestral lineage, except for some special cases where the matrilineal lineage ceases in a generation because there is no female offspring to carry on the maternal line.
  2. If a group has no surviving female member in the family to pass on the ownership and possessory rights, a female relative like a cousin of the generation having the current custody of the land or their female child (next generation) may be given those rights through adoption into the maternal family line but some form of customary obligation payments would have to be made to the landowning clan to maintain the right to occupy, possess and use the land from generation to generation.

OTHER CIRCUMSTANCES WHERE LAND CAN BE ACQUIRED CUSTOMARILY IN THE TAWALA CULTURE.


BURIAL FEASTING CEREMONY OR THE MORTUARY FEASTING

  1. Mortuary feasts play an important role in the social structure of Tawala society. These feasts serve the purpose of commemorating and remembering the dead and re-affirming the clan’s claim to it landholdings. Living members of the clan or lineage are therefore under a heavy obligation to host these feasts.
  2. In the matrilineal societies of Milne Bay, it must be clarified that mortuary feasts only serve to commemorate the dead, not for re-asserting and perpetuating a clan’s rights to its landholdings, and further, it should not be presumed that, interests and rights to the use and ownership of land are sometimes, allocated, reallocated or transferred at these mortuary feasts.
  3. The underlying principle that regulates this process is captured in an expression used quite commonly in the Tawala culture:

“You are not permitted to claim that a Mortuary feasting occasion is one and the same occasion as an occasion for purchasing land.”


  1. In evidence this general customary practice has one exception. Mr Wedega stated that in earlier times after the cannibalism era, their existed the practice of round hole burial or Wigunaguna. This process involves a Galiauna.
  2. The Gali’auna are a particular clan that are chosen to perform and execute tasks associated with the mortuary feasting such as cleaning of deceased body and burial arrangements for another chosen clan.
  3. This arrangement is exclusively for these two clans only and is recognised and passed down from generation to generation that these two clans will continually perform these specific tasks between themselves only and no other clan can come in and disturb this arrangement.
  4. The exception is where a Gali’auna goes into the burial hole and as they lower the dead body into the hole, the Gali’auna manoeuvre’s the deceased body and places it on a seat before pulling himself out.
  5. In the process of doing this and if the deceased body has already started decaying, then this exposure of a Gali’auna in dealing with that body directly may invoke the land acquisition process given to the person in particular who touched the body who out-rightly purchases land from the deceased clan.
  6. This is the only customary practice or instance where land can be purchased during a mortuary feast and it is quite clear that it does not apply in this case.

PURCHASING LAND OUTRIGHTLY AND MAKING PAYMENTS TO OCCUPY AND RESIDE ON CUSTOMARY LAND FOR THE LIFETIME OF AN INDIVIDUAL

  1. The “general requirement “is for the clan to be informed of their intentions by the purchasing party to purchase the land. All clan members are supposed to be given the opportunity to have their say in a duly constituted forum between them and purchasing party in relation to the sale and purchase of the land

FINDINGS RELATING TO TAWALA CUSTOMARY LAND TENURE LAWS

  1. The most common method by which a person becomes a member of a clan or a right owning group is – if they are related as descendants and/or if they actually live or have been living on the land.
  2. Ownership or Primary rights are accorded to primary members of that right holding group, who are qualified to be members by descent and residence – they were born into it and they live on it.
  3. Ownership rights to land are vested communally in the clan. Individual members of the clan have only a usufruct or proprietary right to the land. The only things on the land that they may lay any claim of ownership over are improvements such as structures (dwellings), crops and trees that they may have personally put up, planted or cultivated on the land.
  4. It is to be noted, however, that while clan members have individual usufructuary rights over their own land, these are more superior and permanent than the rights of those who are related to them by marriage i.e. their cross cousins, so to speak, and other invitees and outsiders.
  5. Outsiders may have usage rights to trees and gardening plots but it is only by permission. These rights, however, as we’ve seen remain subordinate to the rights of the landowners.
  6. We find that the Land is communally held by the clan as a general rule. However, individuals can own land which they may acquire through direct purchase or through the performance of customary obligations for definite period of time. Inheritance of individually held land may be by direct lineal descent, if the landowner so grants.
  7. Sipeima Washington, Magilosi Lakulakum, Jack Wedega and Madouna Sida generally agree that where the landowner does not confer ownership on his children, the land will devolve or pass to his matriline where the maternal descendants take priority. Those who are offspring of the paternal ancestors of the same principle landholding clan of the same family tree only enjoy user right benefits and privileges.
  8. We find that Tawala society is matrilineal. As such, land rights, particularly ownership rights, are passed down the matriline. The matrilineages of the Tawala people, permit women to own property in their own right, prior to consultation with the other women of that primary landholding clan who form the matriline.
  9. The mediators highlighted that although the Tawala people are Matrilineal, they are not Matriarchal, and although some women have considerable power, they do not hold exclusive power within their respective clans.
  10. We find that most leaders are male appointed by the matriline. The leader or head of a clan must hold a reputation that depends on his oratory skills, money resources, knowledge of custom and sorcery and genealogy, land matters and an amount of controlled land.
  11. Jack Wedega and Madouna Sida expressed in detail that the leader or headman must be approved and appointed by the matriline descendants of his clan.
  12. The better he is to take control of his clan members, the more his members will align with the clan and the greater control of land they will have. If you were to identify a particular clan you would refer to this man for direction. His actions must always be aligned with conduct that honours his aunties, mothers, and the controlling matriline.
  13. We find that if a woman leaves her home to marry, she is not incorporated into her husband’s clan. Throughout her life, she remains a member of her own local lineage, exercising her rights and enjoying the land that her clan claim as a joint estate. She is bound into a relationship with her clan that goes way back into the distant past and continues through to the future.
  14. By contrast, her relationship with her husband, upon his death, would end all ties with his kin and she would be free to return with her children to her own maternal kin, exemplifying how strong the matrilineages are amongst the Tawala people.
  15. We find as a general rule, children normally enjoy a usufruct to their father’s land and properties during his lifetime. Unless they perform certain customary obligations such as the slaughtering of pigs or pay traditional obligation payments to their father’s relatives or clan which is a separate occasion from mortuary feasts that follow after their father’s death, they, as a general rule, must relocate to their own matrilocality or land.
  16. It is, however, not uncommon for such ones to be allowed by their fathers primary landholding clan to continue to occupy their father’s land for the lifetime of their widow mother should their deceased fathers clan decide to do so. But in most occasions this decision is made only for the lifetime of the widow not the children.
  17. The mediators and Jack Wedega and Madouna Sida emphasised that in Tawala custom it is generally accepted and recognized that male members of the clan can transfer their usufructuary rights to their children and that the children of the man from the matrilineal line who marries outside the clan have their user rights automatically terminated upon the death of their father.
  18. Such rights automatically terminate and revert back to the clan upon the man’s death and they (the children) must return to the land of their biological mother, unless they meet and discharge certain customary obligation arrangements between them and their fathers original landowner clan.
  19. This is especially where the landowning group has allocated portions of land for the occupation and use of these paternal descendants.
  20. We find that in the Tawala culture, it is considered that their biological fathers are sacred. During their life, his children have the legitimate right to exercise their fathers’ rights to use and occupy land, that his primary landholding clan has demarcated and given to him for his use in his lifetime, like gardening, dwelling and even fishing and also that his children fall under his protection.
  21. So as long as he is alive, his children are free to enjoy exercising their fathers’ rights over that portion of land without fear of a dispute being raised from other clan members.
  22. We find that the moment he dies the nature of his children’s rights change, as the rights they once enjoyed under their deceased fathers custodianship automatically ceases upon his death.
  23. We find that clan members who belong to the paternal lines or the children of the male members of the clan only have usufruct or user-right interests by the permission of the members of the maternal lineage.
  24. We find that a mortuary feasting occasion cannot be treated as one and the same as an occasion for the purchasing, or reallocating of customary land to another clan.
  25. We accept and adopt this to be a true version of Tawala custom as it was confirmed by the mediators and we rule as such.

BOUNDARY INSPECTION RULING

  1. The court proceeded to the disputed land called Dulya for physical inspection on 5th August 2015. After the completion of the Land inspection exercise, a ruling was delivered out of the Courts findings on 6th November 2016 in relation to the boundaries.
  2. Section 36 of the Act makes it mandatory for a LLC to inspect the subject customary land.
    1. 36. Inspection of land in dispute.

(1) A Local Land Court to which an application has been made under this Part, shall, before giving a decision on the matter, inspect, with the parties to the dispute, the land in dispute and shall satisfy itself as to—

(a) the scope and extent of the land, where the dispute concerns interests in the use or possession of the land; and

(b) the scope and nature of the produce of or improvements to the land, where the dispute concerns the produce or improvements; and

(c) the location of alleged boundaries, where the dispute concerns a boundary to land; and

(d) any other aspect of the land that will assist the Court in reaching a just decision,

as the case requires.

(2) Subject to Subsection (3), all the members of the Court shall inspect the land in accordance with Subsection (1) except where the land in dispute is situated in a place to which access is difficult, in which case it shall be a sufficient compliance with Subsection (1) if one of the members of the Court inspects the land.

(3) Subsection (2) does not apply to a member of the Court suffering from any physical disability, and an inspection by all the other members shall be deemed to be an inspection for the purposes of that subsection.


  1. The Court walked the boundaries and made general inspections of the land with both parties separately.
  2. Each party as far as possible identified its boundaries and land marks.
  3. Prior to each inspection it was generally agreed between the parties that the Court would walk with each party separately with a representative from the other party present as each party walked their separate boundaries.
  4. It must be put on record that each party had a representative present from the opposing party when we walked with the other party on their respective boundaries.
  5. The Court commenced its inspection by first walking with the Higouhi clan with Mrs Lasaro taking the lead. Upon completion the court then walked with Nelly Bagelo and the Tagolewa Clan with her husband, Rima Bagelo and Madouna Sida of Houlana Hiagababana Clan taking the lead.
  6. Each party as much as is practically possible identified its landmarks and boundaries.
  7. It became apparent after completing the first inspection of the portion of land in dispute on the 5th August 2015 that it was only a small portion within the larger area known as Dulya.
  8. In evidence it was submitted that the portion of land actually walked and in dispute is known as Waiyopa.
  9. As a matter of fact the boundaries identified on the first inspection are for the portion of land called Waiyopa which is situation within the boundaries of Dulya.
  10. The ruling inrelation to identifying the boundaries is unanimous.
  11. This boundary inspection was witnessed by the following:

Higouhi Clan and its supporters

  1. Magisoli Lakulakum, Ruben Pida, Sipeima Washington, Dabule Gatuna, Dalton Luke, Aleta Luke, Sinatele Nailina, Soni Harry, Taliuna Weunei, Kuielo Tamati, Tamati Malailu, Nageibo Joseph, Leheidi Lasaro (Spokeswoman), Leheidi Malailu, Joshua Narea, Pamela Magilosi, Mary Magilosi, Lisa Inia, Leana Lasaro, Jenny Lasaro, Gebeti Malailu, Fabian Kevaru, Joe Magilosi, Dorothy Magilosi, Niko Magilosi, Gamahari Peter, Joseph Lasaro, Jonah Kuluga, Yepia and Faith Joe.

Tagolewa clan and the Hiagababana Clan and its supporters

  1. Madouna Sida, Jack Wedega, Sinigi Sida, Sinalouwa Sida, Gatele Pida, Modinai Sida, Maki Gapile, Aselika Nailina, Peni John, Moreni Ruben, Harrietta Sida, Yodi Muia, Enedi Bailasi, Lavia Nicodimus, Rima Bagelo, Nelly Bagelo, Nailina Sida, Muio Wiki, Daniel Mwasokwaka, Nigaboena Moleana and Leloiya Molena.

DESCRIPTION OF BOUNDARY

  1. We began the inspection in the morning and our starting point was at the beach from the Kokoilo tree nearest the point where Nubui Creek meets the sea or at the ‘Aena’.
  2. From that Kokoilo Tree to the culvert up at the main road it is approximately 138 steps and this now forms the common boundary with Nubui.
  3. From the culvert you then followed the main highway towards East Cape taking 232 steps toward the old war road entrance where a five corner tree and a Koliaga Tree stand. There was previously a mango tree that stood on the other side of the road opposite the Koliaga tree but has since been removed to widen the east Cape Highway road.
  4. From the entrance of the old war road we proceeded down toward a yellow coconut tree situated again at the beach front and it is approximately 300 steps.
  5. There was a mango tree that was removed by Digoeta Joseph that was in line with the yellow coconut tree at the beach and in line with the mango tree that was removed for the widening of the highway road.
  6. If you were to draw a line from the removed mango tree that once existed at the highway to the mango tree that was burnt down, and then directly to the yellow coconut tree it forms a straight line.
  7. On that basis we are satisfied that the yellow coconut tree forms a landmark boundary marker and that now forms a common boundary with the Himala Clan land situated near the main road and the Houlana Wahuhuba clan land towards the beach front.
  8. From the yellow coconut tree you then followed the highwater mark along the beachfront back toward where Nubui creek meets the sea, taking approximately 185 steps back to where we started at the Kokoila tree.
  9. We therefore declare that the land within this demarcated boundary as described in this decision is known as Dulya.

EVIDENCE ADDRESSING THE DISPUTE FACTS
UNDISPUTED FACTS

  1. The following are facts from evidence which are not contested:

DISPUTED FACTS

  1. The following is a summation of the facts in contention:
  2. From the disputed facts these issues arose for deliberation:

DISPUTANTS EVIDENCE


LEHIEDI LASARO’s CLAIM

  1. Leheidi Lasaro claimed that the land Dulya was outrightly purchased by her Grandfather Wedega Wanaia from the Dulya clan of Yalewa.
  2. Her clan is the Higouhi Clan.
  3. The ‘Higouhi’ which means Hornbill and is a Sub-Clan of, what has now become apparent, the Modewa clan of Garuwahi which has a Totem of a Kulokulo (White and Black Kookabarra).
  4. The Higouhi Clan was represented in these proceedings by Mrs Leheidi Lasaro herself as their spokeswoman.
  5. Rueben Pida (gave evidence on 13/11/15 & 27/11/15), Talapai Harry (gave evidence on 27/11/15), Magilosi Lakulakum (gave evidence on 11/12/15), Taliuna Weunai (gave evidence on 15/4/16), Sipeima Washington (gave evidence on 22/04/16) and Dalton Luke (gave evidence on 22/04/16) gave evidence in support of the Higouhi Clans claim.
  6. The Disputant’s claim to the land is based on the following:

In her affidavit of the 3rd July 2015, Leheidi Lasaro states in paragraph 2, “It is impossible to apply matrilineal custom over Dulia Land. According to Tawala custom matrilineal custom applies to those who inherit the land through women. Wedega is not a woman. He is a man who acquired Dulia Land from Dulia clan through customary agreement, payment and Will to the rightful land owners who are Daodao/Wagadidi and Talaboda. Therefore I Leheidi claims on payment and user rights.”

RUEBEN PIDA

  1. This witness stated in his affidavit of 29/06/15 that he is the current headman of Tagolewa Clan and the biological uncle of Nelly Bagelo, in that his older sister being Nelly’s mother, is Moreni Sida.
  2. He insisted that because of his relational connection to Nelly Bagelo, she should have consulted him first and got his permission before dealing with the disputed land in any way.
  3. He started by saying that he was witnessing for the Higouhi clan and says “we bought the land” called Dulya which he currently resides on. He indicates that land payments were made to three clans being the Himala Clan to acquire Numalome (Olotobodaboda), Dulyia from the Dulya Clan of Yalewa and Wayoupa from the Houlana Wahuhuba clan.
  4. He testifies that Nelly has no right on the portion of land called Dulya but does have a right to deal with Numalome, as she was apportioned a block there, following the terms stated in the purported Will.
  5. He gave evidence to show that Nelly had not on any occasion participated in any mortuary feasts relating to any of the deaths within their family and therefore does not know custom nor that payments were made to purchase land on those occasions.
  6. When asked whether Nelly has a right to deal with clan land under the matrilineal system, this witness boldly said that, “because it was bought by a man the matrilineal system does not apply”.
  7. Further, he goes on to say that Nelly buried her mother at Logea and is not buried in their family grave in Ahioma as she should have been.
  8. When asked whether Nelly could still claim her birth-right as a member of the Tagolewa clan, he never clearly stated in his response whether by the fact that Nelly followed her mother to Logea there existed a custom that by doing so, it extinguished her right to claim or deal with clan land as a member of the primary landholding clan called Tagolewa. Nor could he state a custom that existed that extinguished the right of a wife who had decided to move with her husband to reside on his customary land.
  9. He strongly argued that the reason the Joseph’s own Dulya, is based on them occupying the land for a very long period of time, exercising, as he states, “user rights” and not ownership rights.
  10. This is in itself an admission that he acknowledges that the Josephs only have userfructory rights to the disputed land.
  11. Mr Pida concluded examination in chief by saying that after the death of Joseph Wedega, he is the next in line to be the headman of the clan, Tagolewa.
  12. He stated he knew that Mr Wedega Wanaia had cut the land and apportioned it; that Dulya was given to Joseph Wedaga and Numalome was given to Mabel Wiki.
  13. When asked in cross examination who witnessed the cutting of the land he answered “I don’t know”. He says he knows that the land was cut and apportioned, yet, in the same breathe he cannot verify by identifying who was present at that time to witness the cutting to confirm that there is any truth in what he said.
  14. According to him the land Dulya was bought from the Dulya clan.

Mr Wedega Wanaia is his grandfather who he says, bought Dulya from Dulya Clan and not from Houlana Clan or Tagolewa Clan and Mr Wanaia is Nelly Bagelo’s great grandfather.


  1. When asked why Digoeta’s biological mother, Boilo, was buried at Rabe and not Dulia he answered, “they took the body to Rabe because she is from Rabe and not Dulya “.
  2. In cross examination, he was further questioned whether that was a practice in the matrilineal or patrilineal system and he responded “we are on the fatherland” which infers to the patrilineal system.
  3. This is a statement that conflicts with what he stated and understood earlier in custom that upon the death of a women the husbands clan and the women’s clan insist on her body returning to her clans land for burial.
  4. He further stated “We have cemetery only for mothers side but not for fathers side.”
  5. Is this not an element of a matrilineal system custom? We think it is, that upon her death, if she had followed her husband to his place of residence or on the death of a husband the wife necessarily must return to her primary land holding clan.
  6. The following question then asked was “does Tawala matrilineal system take effect on this ownership of land?” and his answer was “We are on user rights, so matrilineal system is not working, we are on user rights”.
  7. He continually re-emphasises in answer to the next number of questions that since the land was bought from Dulya Clan by Wedega Wanaia, his family is now exercising user rights over the land re-asserting the notion that the Josephs family only have userfructory rights to the land in dispute which in effect is a practice under the matrilineal system.

TALAPAI HARRY

  1. This witness started by saying he is from Dulya and that his ancestors migrated from Ahioma Pouna and they belong to Dulya which is the word used for the bird of paradise.
  2. He said that Wedega Wanaiya bought the land from his two grand bubus, Talaboda and Daudau.
  3. In cross examination it became clear that this witness was not Talapai Harry. It was revealed that he is really Ginenewa Harry.
  4. The evidence he had been giving on oath is actually not his evidence and that he purported to be Talapai Harry who is his mother and represent his mother on the witness stand.
    1. We therefore ruled that his evidence be rejected.

MAGILOSI LAKULAKUM

  1. This witness is of the Houlana Koyebule clan but represents the Himala Gomabodo clan and lives at Puto which is Himala Gomabodo clan land being the clan his father belongs to.
  2. His clan Totam is Magisubu which is the Eagle.
  3. He submited that he got his authorisation to speak as a witness for the Higouhi clan and Tagolewa clan from Joseph Wedega who was a Tagolewa clan elder.
  4. He testified that there was a Will and agreement made by Joseph Wedega, Ailomani, Dikolele and Alice Wedega, stating that the Joseph family would reside at Dulya because they were the ones that took care of Ailomani, Dikolele and Alice in their old age, and particularly because the Joseph’s as part of their customary obligation cleaned the waste of these three aging descendants’.
  5. He was unable to tell the court who was present at the time the Will was made.
  6. Further to that, according to this witness, it was the Josephs family that were the only one’s that did all the custom activities in mortuary feasts and headstone activities.
  7. He stated to reconfirm that the Mable family were only given a portion of land at Numalome.
  8. He states, that all the elders were present when the boundary for Dulya was cut but he cannot confirm at what time this Will was made nor if any other people had witnessed this transaction because when asked who they were he said, “I don’t know”.
  9. In cross examination this witness confirmed the following:

DALTON LUKE

  1. This witness is from Houlana Dabana Tepana Clan and is the great grandson of Wedega Wanaia and testified as a witness for Higouhi Clan and also as a witness for Tagolewa.
  2. He states that his great grandfather of Houlana Dabana Tepana bought the land Dulya from the Dulya clan by making payment for his children and his descendants and that the Joseph children have a right to live on Dulya.
  3. In cross examination when asked why he did not witness for Nelly Bagelo, the response he gave was “I do not know Nelly”.
  4. We find that to be highly unlikely, seeing that both Nelly and Dalton have the same great grandfather.
  5. This witness testified on the following:
  6. When asked, what law gives the right to the Josephs to claim ownership over Dulya, He stated “they, the children paid land to the father”.
  7. We thought he was not clearly a reliable witness, for these reasons:

SIPEIMA WASHINGTON

  1. This witness is of the Houlana Wahuhuba clan and he claims he still owns Waiyopa. The Houlana Wahuhuba clan own Waiyopa but Wedega acquired this portion of land from Houlana Wahuhuba clan from Lola and Ilu Hoda.
  2. When asked in cross examination, “when Wedega Wanaia bought Dulya did Houlana Wahuhuba still have rights to Dulya?” He stated, “he is sharing the boundary with Dulya and Waiyopa belongs to Houlana Wahuhuba”.
  3. He testified that Waiyopa was not in Dulya but upon him drawing a sketch, the actual portion out of which the dispute arose is called Waiyopa and it shows it is positioned within the bigger portion of land called Dulya and not on its own as a separate portion of land adjacent or adjoining the land called Dulya.

RESPONDENTS CASE
JACK WEDEGA

  1. Both parties agreed that this witness is a member of the Wedega family and is very familiar with the history of the Wedega family under Togolewa and Houlana clans.
  2. His father performed the function as Galiauna or Pall Bearer to the Tagolewa clan and as such has access to privileged information relating to the Wedega family.
  3. Jack Wedega is of the Garuboi clan but his father is of the Tagolewa clan and he is related to Wedega Wanaia through his father who is Ezekiel Wedega.
  4. He claims that Wedega Wanaia is the person who outrightly purchased the land called Dulya for his children and his descendants. This payment was made to Mr Dickson of Dulya clan.
  5. He states that he has seen Mr Dickson attend ceremonies and it is Mr Dickson that gave Dulya because “he is seen as a brother by clan to Wedega Wanaia. It was when Mr Wanaia was preaching in Lelehoa that he asked Dickson for land and Dickson then gave a portion of his land at Ahioma to Wedega Wanaia”.
  6. Dickson is from Dulya clan of the Totem – Bird of Paradise through his father and even though he gave land to his brother, Wedega still made payment for that portion of land to Dulya Clan.
  7. Dickson is also from Houlana Hiaga Babana through his mother who is from Houlana Hiaga Babana Clan,.
  8. This witness grew up in Dulya and he has not at any one time witnessed any customary obligation payments to Tagolewa or Houlana by the Higouhi clan.
  9. According to his knowledge, told to him by his father, Mr Joseph Wedega’s wife, son and daughter are buried at Rabe on a portion of land called Ipu Ipu. Mr Wedega Wanaia died in 1949 and it was his sister, Eliapa of Houlana Hiaga Babana clan, that recalled Wedega’s wife, Emma, back from Mutuyuwa after the death of her husband.
  10. He testified to the following:
  11. In cross exam this witnessed stated:
  12. When asked questions relating to why Nellys’ mother was buried at Logea, Jack Wedega said that Nellys father bought a piece of land at Logea and the only reason why she was buried there was because it was her father’s wish that her mother be buried next to his grave at Logea.
  13. This witness resides at Wanakiki Waona – he resides there on the authority that he had made customary obligation payments to members of the Togolewa clan because he descends from the paternal side of the family and he is also Galiauna to the Tagolewa clan.
  14. We noted that this witness knew a lot of information relating to Tawala customary practices and his evidence brought clarity to the Court understanding some of the traditional concepts relating to this matter.
  15. One specific pertinent piece of evidence he gave was in relation to customary obligation payments and the procedure followed in making payments.
  16. In Jack Wedega’s evidence he clearly stated that there is indeed a process that must be followed whenever customary land is being purchased.
  17. He stated that the general description in payments for land and for other occasions in Tawala is 4 pigs called Basiawa or Goigoi or Gisowa Esega (4 pigs) or in Suau it is 3 pigs.
  18. In Tawala 4 pigs or 3 good sized pigs is equal to one mango tree branch and the phrase used to indicate this is “Goigoi emosi hi talala”. These pigs must be of a good size with tusks that are quite long.
  19. When payments are being made the clan intending to purchase the land present themselves before the clan intending to sell the land.
  20. There will be chosen clan representatives made up of elders from different other clans that must be present and the primary land holding clan intending to transfer their land will choose a key witnessing clan that will also make their presence known at that time.
  21. The significance of this arrangement is that the food will be divided in such a way that the bigger portion will be given to the clan intending to purchase and a portion, like whole pigs and garden food and shell money (Bagi) will also be given to the chosen witnessing sister clan.
  22. A pig is slaughtered and divided amongst the chosen representatives from other clans, with Taro’s and Banana’s and each one is asked to come and get their portion which is they eat amongst themselves.
  23. The main witnessing clan has the responsibility to hold on to the pig tusks as evidence of the purchase lest a dispute arises in the future.
  24. The witnessing clans must not come empty handed. They are expected by the transferring clan to bring an item of customary value like a dog, to assist the selling clan.
  25. Today it has now been accepted that money is the main consideration for the selling of one’s birth-right attached to customary land.
  26. For purposes of customary obligation payments, this payment is made for compensation for the renewal of their right to occupy.
  27. On user rights, a payment is made to the principal landowners, called Une Fa’ene or Une Bosana (Description of the Bagi, and armlet called “Mohiwalo”)
  28. Gabadi or python bagi’s is always used for outright purchase with ‘Giniuba’ or a pearl attached to the bagi. During an outright purchase occasion two things must be considered:
    1. The value of the items brought in exchange for land or birth-rights must be equivalent in value;
    2. An announcement is made at this occasion that it is outright purchase.
  29. It is only when the value of the items brought is accepted by the primary land holding clan that:
  30. The announcement made must include the nature of the transaction as to whether it was for outright purchase or only for customary obligation payments to occupy.
  31. This transaction does not negate the purchasing clans’ responsibility to renew and maintain their relationship with the primary landholding clan by being present at occasions like mortuary feasts as a sign of respect.
  32. An example of when customary obligation payments are made is when the grandchildren (Natuleia) or the immediate children approach their biological father to make a representation before the matriline members of his clan, which would be his sisters or aunties or mother and speaks on behalf of his children and asks permission from his clan to allow his children to possess and occupy that land.
  33. The children would then be shown the boundary after which they would prepare e food for their father and not the matriline, on the basis that it is their father allowing them to occupy that land.
  34. When the food is prepared, it is given to their father who will not eat it but rather, will then present it to the matriline female heads of the clan who will then consume it.
  35. If a father has made an original customary obligation payment on behalf of his children to remain on a portion of land, it must be noted that this is only for the term of his lifetime and his children’s lifetime. The reason for this is that, the transaction for possession is only between him and his landowning clan.
  36. A father’s right to occupy land, belongs solely to him and does not extend to his children or grandchildren. In order to maintain the arrangement a father made with his matriline land owners, the first born or the chosen child must follow the same process by approaching the matriline primary land owners to make customary obligation payments for their lifetime as well. One cannot claim protection of the rights afforded to their father from a transaction their father made when he was alive to maintain occupancy rights.
  37. Jack Wedega states in evidence that he grew up in Dulya and that as long as he has lived at Wanakiki Waona, he has never witnessed, nor heard of the Josephs making any customary obligation payments for occupancy and possession of the land Dulya to the Tagolewa Clan at a mortuary feast or any other occassion.
  38. He submitted that generally it is accepted that the two occasions of mortuary feasting and customary land payments are separate.
  39. In mortuary feasts each clan has their own “Gali’auna’s” because an outsider from another clan cannot come in, to touch the deceased body or bury the body. In most cases this would have nothing to do with land purchasing.
  40. We thought this witness was generally a credible witness, for these reasons:

ADDRESSING THE ISSUES AND FINDINGS

  1. Having heard both parties and their witnesses we make the following findings.
  2. The parties recounted what their ancestors supposedly did in the distant past, four generations ago. Like genealogies these accounts were handed down orally through successive generations of clan leaders.
  3. We now turn to addressing the disputed facts.

GENEOLOGIES

  1. Geneologies are often a cause of much contention in land disputes and this case is no exception as both parties presented their genealogies that go back 3 generations to their common known ancestor, Wedega Wanaia.
  2. However, genealogies are orally passed down through lineage elders, and, therefore susceptible to corruption either through deliberate fraudulent manipulation or through mere human forgetfulness.
  3. It is therefore very difficult for this court to accept, let alone test the varasity or accuracy.
  4. We therefore accept both parties respective genealogies as submitted before us.

DOES THE MATRILINEAL SYSTEM APPLY?

  1. The answer is YES.
  2. Much of the disputed facts centred around whether the matrilineal system applied in the Tawala custom and whether the Disputants have an equal claim for ownership of the land called Dulya.
  3. Leheidi Lasaro in her affidavit of the 3rd July 2015, states in paragraph 2:

“It is impossible to apply matrilineal custom over Dulia Land. According to Tawala custom matrilineal custom applies to those who inherit the land through women. Wedega is not a woman. He is a man who acquired Dulia Land from Dulia clan through customary agreement, payment and Will to the rightful land owners who are Daodao/Wagadidi and Talaboda. Therefore I Leheidi claims on payment and user rights.”


  1. Her evidence is based on the premise that even though the process that Wedega Wanaia took to purchase the land, was governed under the Matrilineal System, the moment he acquired the land out-rightly as a man, from that point on, the nature of the governing customary system changed to that of a patrilineal system.
  2. She could not prove this in evidence though that there had been occasions where this has been practiced at all it the Tawala culture.
  3. Rubin Pida states emphatically in cross examination that Nelly has no right to apply for land under the matrilineal system because he says, “because it was bought by a man the matrilineal system does not apply”.
  4. But further on when asked why Digoeta’s biological mother, Boilo, was buried at Rabe and not Dulia he answered, “they took the body to Rabe because she is from Rabe and not Dulya (process). He was further questioned whether that was a practice in the matrilineal or patrilineal system and he responded “we are on the fatherland” which infers to the patrilineal system.
  5. Then he states “We have cemetery only for mothers side but not for fathers side.” Is this not a matrilineal system custom? We think it is, that upon the death of a husband the wife necessarily must return to her primary land holding clan.
  6. We are satisfied and find that indeed the Tawala speaking people are born into, live and die in a very strong matrilineal society where the man is a stranger to his wife and children and their clan.

DO THE HIGOUHI CLAN HAVE AN EQUAL CLAIM TO OWNERSHIP OVER DULYA?

  1. The answer is NO.
  2. The question of having an equal claim to ownership based on the years of occupancy and the caring of 3 of Wedega Wanaias children in their old age is contested.
  3. The Disputants claim they have been living on Dulya for a very long time and therefore have an equal claim to ownership.
  4. The Respondents, deny that the Disputants have any right to claim ownership because they descended from the paternal side of the family and also that there does not exist a custom in Tawala under the Matrilineal system that states that if you are not part of the matriline, even where you have lived on that portion of land for a considerable amount of time, that would automatically give you basis to claim for ownership.
  5. The parties recounted what their anscestors did in the past 3 generations and like genealogies these stories where handed down by word of mouth through successive generations of elders and are subject to corruption either through deliberate fraudulent manipulation or through mere human forgetfulness.
  6. Clearly, the legislative scheme under the Act favours current incumbency as seen in the case of Re Application of Ambra Nii [1991] PNGLR 357. However, it must be noted that the common law principle of adverse possession and the common law conception of land generally, are not compatible with the customary land tenure systems of Papua New Guinea.
  7. For instance, land in Papua New Guinea can be left to fallow or unoccupied for years on end. This does not mean that the landowner is deprived of his title. And even if someone squats on the land – which is not uncommon – the least that he has or can ever have is a possessory right to his crops and other improvements. But his continued presence on the land is always subject to the will and pleasure of the landowner and in some societies, to his faithful performance and discharge of customary social obligations as dictated by local custom as is the case in Tawala, in Milne Bay Province.
  8. There should not be any mechanical or arbitrary application of s. 67 without due regard to land tenure practices of the disputing parties.
  9. Section 67 states:

Presumption as to 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 a 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.


  1. The Courts should therefore tread with caution to avoid causing injustice. What Pritchard, J. said in Safe Lavao –v- Independent State of Papua New Guinea (Re Kerema Town and Airstrip Land) [1978] PNGLR 15, a case involving the purchase of customary land by the State, should have equal application in this regard. He said at p. 18 –

When a law in Papua New Guinea affects traditional or customary rights, especially in relation to land, which historically is of so much more significance to the people of Papua New Guinea than many other countries, that law will be strictly construed where it purports to deprive the people of their right to assert ownership or interest of any sort, in their mind.


  1. Section 67 of the Act provides for a rebuttable presumption, which vests the disputed interest on a party who has exercised that interest for a period of not less than 12 years.
  2. The disputants are literally saying that they have lived on that portion of land for more than 12 years without any opposition that has created the presumption in their favour to have an equal claim to it.
  3. This presumption can be rebutted only by clear proof that the interest is vested in some other party to the contrary.
  4. In the principles in Re Hides Land Project [1993] PNGLR 309, which has been approved and followed in other National Court cases relating to disputes on ownership of land, it is clear that effective occupation is the yardstick by which customary land disputes are to be resolved.
  5. Be that as it may, the Act specifically provides that customary land disputes are to be resolved not only in accordance with its provisions but more importantly in accordance with custom.
  6. We are reminded of Section 39(2) of the Act that provides that the Court shall apply local custom, particularly insofar as such custom relates to customary interests in land. It is important that this court should, in the first instance, find and apply find and apply customary land tenure laws that underlie the exercise and enjoyment of rights to land, to resolve this dispute before us.
  7. Recourse should only be had of section 67 and precedents where it appears manifestly unjust to apply custom and where those customary principles are inconsistent with a Constitutional law, or repugnant to the general principles of Humanity under Schedule 2.1 of the Constitution.
  8. In this case the matrilineal system does indeed apply and only members of the primary landholding clan being the matriline member can claim ownership for and on behalf of the clan.
  9. Insofar as custom is concerned the parties hail from one ethnically same clan ie the Tagolewa Clan and have the same custom in regard to land.
  10. According to custom, the fact that Joseph Wedega being a male member of the Tagolewa clan married outside of the clan, his children can only exercise user rights to land belonging to the Tagolewa clan. His children are those applying today as Disputants.
  11. The children could only enjoy possession and occupancy of the land they currently occupy, as long as their father was alive. But that right automatically terminated on the death of Joseph Wedega and those rights revert back to the Tagolewa clan matriline or living maternal members to decide on.
  12. Joseph Wedega’s children must return to their mothers clan land. Once again as stated earlier the exception to that rule is if the children had made any customary obligation payments to the primary landholding clan by discharging certain customary obligation arrangements between them.
  13. This is especially where the landowning group has allocated portions of land for the occupation and use for these paternal descendants.
  14. In the evidence of Ruben Pida, during examination in chief, the headman of Tagolewa Clan and witness to Nelly Joseph, emphasized that the Josephs during their occupation of the land known as Dulya were only exercising as he states, “user rights” and not ownership rights which is an admission acknowledging that the Joseph’s only have userfructory rights to the disputed land.
  15. We find therefore that there exists clear evidence that the principle of adverse possession as provided for in s.67 of the Act does not apply as the interest to ownership of land has always been vested in the matriline of the Tagolewa clan according to the customary land tenure laws of Tawala. Therefore we find that the defendants who are children from the paternal side of the clan have no basis under customary law to claim ownership.

CAN A MATERNAL MEMBER OF A PRIMARY LANDHOLDING CLAN LOSE HER LAND RIGHTS IF SHE LEAVES CLAN LAND?

  1. The answer is NO.
  2. Another contentious issue that arose during trial was whether or not Nelly, who had been away at Logea with her father and mother for a long period of time, could return back and claim her primary landholder rights to land belonging to her clan at a later date in time.
  3. Ruben Pida testified that Nelly has no right on the portion of land called Dulya according to the terms stated in the purported Will.
  4. He went on to say that Nelly buried her mother at Logea and not in their family grave at Ahioma as she should have. When examined on the issue of whether Nelly could still claim her birth-right, Mr Pida never clearly stated whether, by the fact that Nelly followed her mother to Logea, there existed a custom, that by doing so, that in itself extinguishes her right to claim land as a member of the primary landholding clan called Tagolewa.
  5. Jack Wedega stated that even though Nelly was born at Logea there is no customary law that terminates her birthright to claim land belonging to her matriline. Infact he says that Nelly Bagelo has more of a right to make a higher claim for Dulya, as she is a direct matriline descendant of Wedega Wanaia and since her mother has passed on, she steps up to become a decision maker for the clan known as Tagolewa.
  6. We find that there was no evidence to show that under Tawala Customary law once Nelly’s mother left her ancestral land with her daughter Nelly, she could not return and claim it at a much later date. We find that Nelly’s primary landholding rights still exist and have never been extinguished or terminated.
  7. We therefore accept that Nelly as a female member of the maternal side of the Tagolewa clan and since the death of her mother, is now acknowledged as a decision maker for the clan as well.
  8. On that basis, Nelly more of a right to make a higher claim and infact can claim and exercise her right to possess, occupy and use land according to the laws of their custom.

DID THERE EXIST A WILL?

  1. The answer is NO.
  2. We now move on to consider the competing claim that there existed a Will.
  3. Rubin Pida when asked in cross examination who witnessed the cutting of the land he answered “I don’t know”. He says he knows that the land was cut and apportioned yet in the same breathe he could not verify his statement to be true by telling the court who witnessed the cutting or who was actually there at the time of making the will and what the terms of that will were.
  4. In the evidence of Magilosi Lakulakum, testifies he had authority to speak as a witness for the Higouhi Clan and Tagolewa Clan from Joseph Wedega. He claims that there indeed was a Will made by Joseph Wedega, Ailomani, Dikolele and Alice Wedega that the Joseph family would reside at Dulya because they took care of Ailomani, Dikolele and Alice in their old age and that they clean the waste of their descendants.
  5. He further states that all the elders of the clan were present when the boundary was cut relating to the Will but when asked in cross examination, who these elders and witnesses were he said, “I don’t know”. So he was unable or not willing to tell the court those that were present at the time the Will was made.
  6. Jack Wedega emphatically states in evidence that as long as he has lived at Wanakiki Waona and he grew up in and around Dulya, he has never witnessed, nor heard of the Josephs making any customary obligation payments to the Tagolewa Clan for occupancy and possession of the land, Dulya.
  7. Furthermore, the Disputants witnesses could not answer as to why this Will was not communicated to all the other living siblings especially when it was to do with the apportioning of land?
  8. We are not convinces that the evidence produced before this court is enough to assert that there did indeed existed a Will.
  9. We find based on the evidence that there was no will made concerning the subject land being disputed over.

CAN MORTUARY FEAST OCCASIONS, ALSO BE USED AS AN OCCASION FOR PAYMENT FOR CUSTOMARY LAND ACQUISITION?

  1. The answer is NO.
  2. We accept that the Disputant family being the josephs have taken part in a number of mortuary feasts they referred to in their evidence.
  3. These were customary obligations they had no way of avoiding but their assertion that their participation in making payments at those feasts was proof of making payments to possess and occupy customary land, is a different matter.
  4. Rubin Pida further gave evidence to show that Nelly has not on any occasion participated in any mortuary feasts relating to any of the deaths within their family.
  5. In the affidavit of Digoeta Joseph he states that Payments were made at these occasions:
  6. He states that the children of Joseph Wedega did the above activities on behalf of their father and it goes towards land payment and must be seen as payment for land even though nothing of material value was used in exchange.
  7. So he claims that the mortuary feasts occasions can also be used as an occasion for payment for customary land acquisition.
  8. We adopt and confirm that in the matrilineal societies of Milne Bay, mortuary feasts only serve to commemorate the dead, not for re-asserting and perpetuating a clan’s rights to its landholdings, and further, it should not be presumed that, interests and rights to the use and ownership of land are sometimes, allocated, reallocated or transferred at these mortuary feasts.
  9. Once again as stated earlier, the underlying principle that regulates this process is captured in an expression used quite commonly in the Tawala culture:

“You are not permitted to claim that a Mortuary feasting occasion is one and the same occasion as an occasion for purchasing land.”


  1. Our answer to this question is in the negative.

CONCLUSION

  1. Having considered our findings in this matter we are unanimously moved to hold and declare that the controlling interest and customary ownership over Dulya is vested in the matriline of the Tagolewa clan.
  2. However, does this mean that they have the right to exclude other lineages of the Tagolewa Clan from the paternal side such as the Joseph’s?
  3. This dispute came to a head because the parties could not resolve their differences.
  4. This failure we find, is rooted in Lehiedi Lasaro’s persistent claim that the other party are not part of the Joseph family to the point of unilaterally aligning them with the Higouhi clan.
  5. We accept that any orders on our part should be geared towards helping the parties to quietly enjoy the land and live secure and peaceful lives.
  6. Whether or not they do is something that lies entirely within their powers and perhaps a good starting point is for them to accept the glaring fact that they are all members of the primary landholding clan called Tagolewa.
  7. We find that the matrilineal system applies in this case and therefore declare as such.
  8. We find that there is no evidence in place to show that Nelly Bagelo did not have a right to come back to her mother land and invoke her primary landholding rights to claim ownership as a female.
  9. We find that there is no supportive evidence to prove that there indeed existed a Will of any sought made by Joseph Wedega.
  10. We find that there is no supportive evidence to substantiate that Joseph Wedega had the authority of the Matriline members of the Tagolewa clan to create a Will over Dulya and even if he had the authority why weren’t the rest of Wedega Wanai’s living children included or notified of this purported Will.
  11. We find there exists, no evidence to prove that any customary obligation payments were made to the matriline of Tagolewa clan by the Josephs family.
  12. We find that according to Tawala customary law the mortuary feasting arrangements, are not one and the same thing as the procedure followed to customarily acquire land – they are two distinct and separate customary processes.
  13. We find both parties have the right to usage pursuant to s.67 of the Act but the Josephs have not established an exclusive right of ownership to the portion known as Dulya.
  14. Now the question is raised that, should the land be shared in common? We think not.
  15. Simply because if left to themselves, the parties will be in the same situation they are now in and there is a real likelihood that such an order will exacerbate the dispute rather than resolve it.
  16. We find that the Portion of land known as Waiyopa point is found within the portion of land in called Dulya.
  17. Based on the above deliberations and findings, we unanimously declare that the customary ownership of Dulya is vested in the matriline of the clan of the wife of Wedega Wanaia who is Emma Kobala, being a member of the Tagolewa clan.
  18. And that the matriline, being the living female generation that have direct bloodline ties to Emma Kobala have more of a right to ownership over any children that were born from the paternal side over the land known as Dulya, including Waiyopa point.
  19. We declare that Nelly Bagelo is a direct bloodline descendant of Emma and is therefore a primary landholding member of Tagolewa.
  20. We find that Nelly Bagelo of the Tagolewa clan has demonstrated and proven an exclusive right as a member of the matriline to claim ownership and controlling interest over the portion of land known as Dulya, subject to the approval of the other surviving matriline members of the Togolewa clan and we unanimously declare so.
  21. We therefore order accordingly.

ORDERS

  1. We make the following declarations and order, that:
    1. The customary land known as Dulya is owned by the Tagolewa clan of Ahioma;
    2. Nelly Bagelo of the Tagolewa clan has an exclusive right as a member of the matriline to claim ownership and controlling interest over the portion of land known as Dulya, subject to the approval of the other surviving matriline members of the Togolewa clan; and
    3. Nelly Bagello as a decision making matriline member of the Tagolewa clan has controlling ownership rights characterized under the rights of direct use, rights to control and rights of disposal, allocation, re-allocation or transfer of clan land, including Dulya.


Mrs Leheidi Lasaro and Ms Daiko Lasaro – Spokeswomen for the Higouhi Clan
Mr Rima Bagelo and Mr Madouna Side – Spokesmen for the Tagolewa Clan

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