Kandi v Bira [2020] PGLLC 3; DC5069 (17 June 2020)

DC5069
PAPUA NEW GUINEA
[IN THE LOCAL LAND COURT AT MAPRIK]

LLC NO: 02/2020

BETWEEN

STANLEY KANDI & NINDIMI CLAN OF BAINYIK VILLAGE
(Disputant/Complainant)

AND

GEORGE BIRA & TUATKUM CLAN OF BAINYIK
(Respondent/Defendant)

MAPRIK: B. FEHI, TIMON DUTIKI & WESTLEY URANAMINI

2020: 04^th, 05^th, 6^th, 09^th, 12^th, & 17^th June

CUSTOMARY LAND DISPUTE: Dispute over customary land described as ‘Mitu’ – Dispute over user rights over customary land parcel – Standing of each party – Relevant clans connected to the dispute – Relevant applicable practice considerations – Relevant applicable local customary law and practice – Parties peaceful co-existence post dispute resolution – Sharing of Benefits appropriate through apportionment shares in the majority to successful claimant – Miscellaneous issues

LOCAL LAND COURT PRACTICE AND PROCEDURE: Issuing of due notices pursuant to the Land Dispute Settlement Act – Hearing commenced by way of Application made pursuant to the provisions of the Land Dispute Settlement Act - Panel hearing pursuant to the Land Dispute Settlement Act – Participation of two land Mediators – Conduct of Pre-hearing Conference – Disclosure of witness lists and documentary evidences – Opportunity for inclusion of other interested parties – Dealing with preliminary issues – decision reached by way of vote with majority ruling accepted as this courts findings

Cases cited:

• Hides Gas Project Land, Re [1993] PNGLR 309
  

Legislation:

• Land Dispute Settlement Act 1975
  

Other Publications:

• Institute of National Affairs Discussion Paper No. 39 by Professor R.D. Cooter titled: ‘Issues in Customary Land Law’, August 1989; and
  
• Discussion Paper published by ACTNOW PNG, a Non-Governmental Organization on its Website www.actnowpng.org. Titled ‘A Critique of Incorporated Land Groups in Papua New Guinea’.
  

DECISION

17^th June 2020

1. FEHI. B LLCM: This is a referral matter from the Land Mediation Panel through an application made pursuant to Section 31 (c) (h) of the Land Dispute Settlement Act (hereafter LDS Act). The matter is now before me for determination after conclusion of hearing on respective parties claim of ownership and user rights over the customary land described as “MITU’ and located within the census boundary of Bainyik Village, Maprik Urban LLG, Maprik District. I am assisted by Land Mediators Mr. Timon Dutiki and Mr. Wesley Uranamini. The proceedings were conducted by way of a panel hearing as stipulated under Section 23 of the LDS Act.

BACKGROUND FACTS

2. We note from the official mediation records provided before us and confirm during the formal hearing that mediation over the disputed customary land dated back to the year 2000. Several informal mediations were conducted until 2007, when formal mediation took place, followed by the second mediation in 2008 and the final one in 2009.

3. Through and through, no formal agreement were reached by parties, thereafter, the matter remained dormant within the land mediation system until the date of referral on or about the month of May 2020. This came about when Maprik District Development Authority identified land within the disputed area as a potential site for the proposed construction of a new Police Barracks.

4. This prompted us to give due consideration to public interest and hear this dispute within a reasonable time through a special sitting pursuant to Section 25 of the LDS Act. In our view, this matter has been prolonged without proper cause and we intend to deal with it here and now. Through this, we promote progress by freeing up customary land for development and allow genuine landowners to meaningfully participate. We agree unreservedly that this proposed development project will benefit the entire Central Sepik population, and is a matter of public interest.

RECORD OF PROCEEDINGS

5. The Application pursuant to Section 31 (c) (h) of the LDS Act was lodged by Mr. Wangi, the Maprik District Lands Officer and the mediators, (who are sitting in with me as members of this panel) on 25^th May 2020. On record, it is hereby conclusive that this matter is before the panel by way of referral through the relevant form and practice. On the 29^th of May 2020, Notice pursuant to Section 71 of the LDS Act was issued to all parties. As per the Notice, Pre-hearing conference was conducted on 04^th June 2020, hearing proper commenced on 05^th June 2020 and concluded on 06^th June 2020. Physical Inspection pursuant to Section 31 (1) of the LDS Act was conducted on 09^th June 2020 and matter was set down for decision on 12^th June 2020, however, it was further adjourned to 17^th June 2020. I handed down our summary decision and this is now the full decision on this matter.

PRE-HEARING CONFERENCE

6. It is in our view appropriate to hold before the full hearing a pre-hearing conference purposely to allow and give opportunities for parties to raise preliminary issues as occurred to them on requirements provided under the provisions of LDS Act or any other relevant contentious issues. This approach is consistent with Section 35 of the LDS Act.

7. On 04^th June 2020, respective parties appeared before us and through the course of the pre-hearing conference; they were directed to disclose all documents to be used during the hearing and were also asked to provide their respective list of witnesses. Respective parties were each given the opportunity to challenge the documents’ authenticity and witnesses’ standing and capacity. The following were disclosed before us:

• Stanley Kandi and Nindimi Clan
  

Witnesses

1. Stanley Kandi;
2. Tiksy Tikawasa of Nindimi Clan;
3. Gilbert Visomi of Guawikum Clan;
4. Scott Tikawasa of Kuabalkum Clan;
5. Alwis Gambano of Waikakum Village; and
6. Florence Majam
   

Documents

1. Affidavit of Stanley Kandi dated 01^st June 2020 with annexures;
2. Written Statement of Gilbert Visomi dated 03^rd June 2020;

100. Written Statement of Scott Tikawasa; and

4. Written Statement of Florence Majam.
   

• George Bira and Tuatkum Clan
  

Witnesses

1. George Bira;
2. Vincent Yalikwen of Nindimi Tiandikum Clan;
3. Joel Glen of Numapati Clan;
4. Benson Awikiak (Ward Member, Bainyik Village) of Nindimi Tiandikum Clan;
5. Take Yalikwen of Kombalkum Clan;
6. Dominic Tuamambal of Guawikum Clan;
7. Gregory Ramukia of Alkikum Clan;
8. Gamba Yawiyapi of Waiknapati Clan; and
9. Gregory Kiole of Kitnaguikum Clan.
   

Documents

1. Written Statement of Vincent Yalikwen (undated); and
2. Written Statement of Benson Awikiak (undated).
   

8. In addition to the above, we put to the parties whether they would raise any objection to us accepting into evidence the entire mediation file containing witnesses’ statements, documents and sketches. Both parties elected to allow this into evidence, as such; we will refer to this compilation of evidences as and when necessary with respect to respective party’s position.

9. Several objections were raised, however, most were without basis and over-ruled. One which we consider requires some deliberation is the standing of witness Florence Majam, George Bira raised objection on the basis that she is not from Bainyik Village or any neighboring villages, and she is only a settler, therefore could not be called to give evidence. We uphold the objection and remove Florence Majam from the witness list of Stanley Kandi together with her statement.

10. All parties also agree that there are eight major clans of Bainyik Village and they are as follows:

➢ Kitnaguikum Clan;
➢ Guawikum Clan;
➢ Kwabelkum Clan;
➢ Alkikum Clan;
➢ Waiknapati Clan;
➢ Numapati Clan;
➢ Nindimi Clan; and
➢ Tuatkum Clan

11. They further agreed that the dispute is between Stanley Kandi a member of Nindimi Clan and George Bira a member of Tuatkum Clan of Bainyik Village. No other persons raised objection to their respective standings and we confirm both to be persons of clear standing having the capacity to appear before us. Through invitation, opportunities were opened to other interested parties who wished to make a separate claim and therefore be joined to these proceedings; however, there were no other parties present and we are satisfied that the two named parties are the only ones with competing interest. Furthermore, all parties agreed that the contentious issue relates not to the boundary but to the user rights to the disputed land known as “MITU”.

APPLICABLE PRACTICE GUIDELINES

12. It is important to avail myself of resource materials covering the sphere of customary land ownership generally accepted within Papua New Guinea. This begs the question of how do I achieve this. I deem it to be necessary to consult case laws and identify firstly an approach suitable to dealing with the complex nature of customary land issues. Secondly, use this approach to outline common practice considerations and thirdly but not the least, formulate a guideline to assist us the panel, in our determination of the respective party’s claim. It is in our view, counterproductive, fiddling around with issues centered on the premise of custom without first charting a course forward.

13. This task is made even harder due to the limited availability of resource materials, in particular, case precedents. The National Court through its inherent review jurisdiction (in a general sense) has only played an oversight role to the exercise of jurisdiction within the different levels of the Land Court structure. Subject to my research, I was unable to locate a case on point were principles of customary land law were discussed in detail to be used as precedent, that is, to develop into an underlying law for future references. With respect, this is a dilemma for the exercise of land court jurisdiction and the trickle-down effect can be attributed to the lack of uniformity in how principles of customary land law are dealt with by us Magistrates. For instance, I was unable to locate a land court decision were reference is made to prior heard cases within the different levels, that is, Local Land Court or Provincial Land Court.

14. Being that as it may, recourse is necessary to be made to other judicial authorities and I find appropriate for my consultation the decision of Amet J, (As he was then) sitting in his capacity as a Land Titles Commissioner in a Land Titles Commission hearing in the matter of Hides Gas Project Land, Re [1993] PNGLR 309. His Honor made the following observations in his ruling which I find relevant:

“STATEMENTS OF PRINCIPLES”

(at sentence number 4)........“But I found one small publication of some interest and relevance, which was the Institute of National Affairs (INA) Discussion Paper No. 39. This is a Report by Professor R.D Cooter, who was sponsored by the institute to investigate customary land ownership in Papua New Guinea in 1988. His report is entitled “Issues in Customary Land Law”. I found the essay on ownership to be quite interesting and informative, because, I of course, did not have the same amount of time to study or research my specific case studies. Professor Cooter analyses customary land and its implications for public policy, studying cases in local, district and provincial land courts and drawing principles of customary law, which can only be done by the Courts, not Parliament.”

15. In my humble view, His Honor Amet J. (as he was then), through his observations suggested an alternative approach to dealing with customary land issues without much reliance on case precedents. His Honor took into consideration and relied on non-judicial documented opinions to confront the customary law issues raised before him. I adopt this approach and apply it to assist me guide the panel in our deliberation. As such, in taking this approach, we will consult the research work of Professor R.D Cooter titled, “Issues in Customary Land Law” in some detail. Other such opinions will be consulted as and when there is a need to do so.

16. My reading of Professor Cooter’s paper prompted our discussion on several points common among different customary practices around the country. We capture the following common points and list them hereunder:

• Eviction from common land;
• Compensation for improvements;
• Loss by transfer;
• Ownership of uniquely defensible land;
• Adverse possession;
• Possessory acts;
• No unqualified right to return;
• Last is first;
• Ultra vires;
• Irrevocable gift;
• First possession;
• Ownership presupposes control; and
• Preponderance of evidences.
  

17. From the above considerations, we select the following as relevant for our application:

1. First Possession: The principle that the first group to possess land acquires ownership of it.
   
2. Possessory Acts: The principle that acts which constitute possession of land for purpose of asserting ownership include gardening, grazing or burning it off, planting permanent crops, collecting from it, building houses and settling on it, or forbidding others to do these things.
   

100. Preponderance of evidence: The principle that in customary land disputes, the party shall prevail whose case is supported by the preponderance of evidence.
     

4. Adverse Possession: The principle that a group who resides upon or improves land for a sufficient period of time without the permission or active opposition from others thereby owns it. A group that uses land for a sufficient long period of time without the permission or active opposition from others, but does not reside upon or improve it, thereby acquires a use right in it.
   
5. Loss by Transfer: The principle that transfers of an interest in disputed land diminishes the strength of the claim to it.
   
6. Eviction from Common Land: The principle that the clan or tribe acting as a whole, but not individual members of it, can order individuals off its common land.
   

18. The following common features of customary land law came to light during my reading and upon my suggestion the panel through our discussion agreed and hereunder list as important additional points to consider:

➢ Land is own by the Clan;
➢ Inheritance follow the Patrilineal and Matrilineal lines;
➢ Land can be given as compensation;
➢ One group can invite others to live on its land;
➢ Land can be obtained through warfare as a price for victory; and
➢ A family’s claim to a piece of land is strengthen by spilling blood on it, burying dead in it, planting permanent crop or building a permanent house on it.

19. The aforesaid considerations form a boundary and operate to narrow down our sphere of deliberation allowing us to focus only on specifics rather than employing a broad approach. It is in my learned opinion more proper to reduce all these into the form of a guideline, which we all agree and will now do.

20. We formulate the following guidelines to assist in our panel discussion:

1. Statues of the customary land in dispute. The physical description of the land including its name, location, developments on it, proximity to government service centers and its potential to host private or public development projects. The type of natural resources contained within its boundary and the potential for its development;
   
2. Status of parties contesting over the disputed customary land. The source of respective party’s claim including but not limited to the standing (recognized by an appropriate customary authority), their respective oral history and genealogical accounts and their respective associations to the land in dispute both historical and present;
   
3. Nature of the dispute. Whether to do with its ownership covering issues over its boundaries (regarding competing claims by different parties) contested by clans of different villages or user rights concerning respective parties claim to parcels of land within a village boundary concerning clans within the same village; and
   
4. The type of approaches employed by respective parties prior to and during the duration of the dispute to assert their respective claims (both formal and informal) and parties peaceful co-existence post dispute resolution.
   

21. By using the above guidelines, we hope to achieve clarity by coherently addressing the respective issues to arrive at our findings and do justice to all parties. But first it is important to discuss the customary practices of the parties to the dispute before us.

RELEVANT LOCAL CUSTOMARY LAW AND PRACTICE

22. We identified from the evidences that the people of Bainyik Village like all the people of Maprik District have ancestors who were part of different trail of migration, occurring during different time intervals. The main migration routes brought people from the grasslands (present day South Wosara LL) upwards towards what are now Maprik Waura LLG and Yamil Tamawi LLG. Some migrated downwards and settle at much lower elevations, what are now within the census boundry of Maprik Urban LLG and some parts of Maprik Waura LLG.

23. We gather from all the historical accounts presented the position that the clans with direct link to the individual or the persons who first discovered an area of land are usually the founding families or clans. Their oral history begins with the description of an activity undertaken by their founding ancestors, for instances, the hunting of game and gathering of nuts or fruits. Followed by an action out of curiosity, for example, by following a river, a mountain peak or tall tree, etc..., All these leads to the actual discovery and exploration of the surrounding area of land. If the land is not occupied and is suitable for habitation, re-settlement to it takes place. The original migrants consist of persons with close link to the founding member, thereafter by other distant relatives and other associated persons or families. The respective family units extend into clans and these clans share amongst themselves the total land area of the village with each clan exercising authority and control over their respective land areas.

24. The place in the village where families and clan members meet to discuss important issues is referred to as ‘Bikmak’. Each village may have one or more of these sites. All clans have their own unique identity symbols. From the evidence we identified them to include; Pisin, Tambaran, Masalai, and an animal description, for instance, George mentioned a Pig and Stanley a Dog. In our view, the declaration of these names on the Bikmak qualifies one to stand and participate in any meetings or discussions in relation to village issues.

25. All original clans of each respective villages in Maprik District, notably, those within Maprik Urban, Maprik Waura and Yamil Tamawi LLGs, recognize each other through the above customary identification system. Ownership and interest over customary land, for all intents and purposes applies the same system.

26. We also note from the evidences and identified that, persons who migrated at a later time to establish Villages are put through a different customary process for inclusion by the existing members or clans. From what we gather, this is done in two (2) forms, firstly, a process characterized as a type of Barter System were a person trades his special skills in exchange for inclusion and secondly, through the systems of marriage and customary adoption. Migrants who are subjected to these processes have differing rights and obligations.

27. The Barter System is commonly practiced by clans and families during the traditional migration periods. It is also common that most of these took place outside the formal “Bikmak” system, sometimes done in secret without the knowledge of the whole villagers. This system benefits individual family or clan interest rather than the community as a whole. It allows members of a clan or family to acquire services of migrants who possesses special skill sets, for instance, magic spells to lure game for hunting, sorcery spells to kill people, to name a few. This is usually done for individual family or clan interest as a means to gain status and prominence within the Village and before the “Bikmak”. As such, we agree that, any rights or ownership claims to customary land which traces its origins to this system are informal and of a temporary nature.

28. The customary systems of marriage and adoption are also commonly practiced by clans and families during the traditional migration periods. This system is more formal and in all cases, the “Bikmak” is the only place where these arrangements are formalize. In our view, marriage and adoption during those periods are considered matters of community interest. Arranged marriages serve different purposes from making of alliances to brokering of peace between villages. Such is the case for young unmarried females. The other special group captured under and subjected to this system concerns women who find themselves on the migration trail, having being forced out from their previous villages due to circumstances beyond their control. Most of these women find themselves forced out of their villages social structure, due to certain events, the most common are those whose husbands had passed on without anyone to take them in as their wife, those that have child/children to man outside of the arranged marriage system and those that have children without a father (mostly as a result of rape or incest). They are considered outcasts and fall outside of the Villages’ social support structure. These women on their arrival or upon discovery by members of other villages are brought before the Bikmak for processing. Most are married to men who had lost their wives during childbirth (it is reasonable to assume maternal mortality rate were high during those times) and if they had with them child or children, the system of adoption is invoked.

29. From the evidence, we accept the position that the man to whom the child’s or children’s mother is married to gets the first opportunity to decide on this. If all other clan members agree than the man gets the child with the mother, if not the other members of the respective clans stake their claim. Upon community consensus the child will be given to a clan and the leader of the clan will decide on how to raise him within their clan. At the “Bikmak”, the adopting clan will disclose to all to be their witness, the name of the child, if it’s a male child, the Pisin, Tambaran, Masalai and an animal description he will call his own. Also his rights to own and use the clans land will be formalized. This arrangement in our view is supplementary to the marriage of women on the migration trail. Other instances where customary adoptions apply exist but are not necessary to our discussion.

30. The above discussion constitutes what we discovered from the respective accounts as applicable local customary practice relevant for our application.

31. We will apply this local customary practice to assess the respective claim of both parties, starting with Disputant Stanley Kandi’s claim, followed after by George Bira’s position.

DISPUTANT’S CLAIM

a) Oral History and Genealogy

32. Stanley Kandi laid out his history and genealogy beginning with his 1^st generation ancestor right down to his current generation. According to his account, his first ancestor was a man named Gilimatu. He is originally from Gwelikum Village but left and migrated up to Bainyik Village. He came to the Bikmak namely “Inasaki Alkup” of Bainyik Village. He was a member of the Nindimi Clan of Gwelikum Village, upon his arrival he joined the Nindimi Clan of Bainyik and stayed with their leader named Kuanjinga.

33. At Bainyik he had a son named Kwimo and Kwimo had two (2) sons named Dusaki and Kimbimale. Kimbimale had a son namely Kamanjan and a daughter namely Wemia. Kamanjan had Kandi and Kandi had Ronny who is the father of Stanley. Wemia was married to a man from Waikakum Village and had a son named Nindikuat.

34. According to Stanley’s version, the land Mitu, as well as other customary area of lands namely, Nungegalmu, Supapu, Yanane, Goge and Yapiko were all vacant and unclaimed covered in forest and populated by wild animals during the period of Gilimatu’s migration up to Bainyik. Around the time of Kwimo, a fight erupted between Bainyik Village and Waikakum Village. Stanley claimed the fight was started by a man from Tuatkum Clan of Banyik village named Kanjinamini. He was jealous about his wife and killed a man from Waikakum village. It was during the course of the fighting that Kwimo’s sons Dusaki and Kimbimale used Mitu land area to hide and keep watch of the enemy (Waikakum villagers). Fighting continued to the time of his 4^th generation ancestor Kamanjan. It was during this period peace was restored. Stanley gave accounts of two (2) peace ceremonies, the 2^nd peace ceremony, according to him was organized by Kamanjan and his nephew Nindikuat (son of Kamanjan’s sister Wemia) through this ceremony lasting peace was achieved between Waikakum and Bainyik.

35. Stanley relied on this version and further state that because of his ancestors namely, Kwimo, Dusaki, Kimbimale and Kamanjan’s part during the fight and bringing about peace; they are the rightful owners of Mitu land. The land Mitu is located between the borders of Bainyik and Waikakum Villages and because of its location (as claimed by Stanley), his ancestors frequently used this land during the fighting and also to brokered peace. Because of this, Kamanjan laid claim to the respective land Mitu, Gilibanden and Membangua. He shared the land and sago palms and gave some to Waikakum Villagers who to this date are still using it.

36. According to his oral history, all other clans of Bainyik fled during the period of fighting leaving only a few behind to protect the village. His 3^rd generation ancestors with the ones from the few remaining clans namely Pussa, Huambai, Wasanda, Kimbimale, Dusaki and Wangatapu participated in the peace ceremony. They contributed 8 traditional shell rings which they gave to the Waikakums. They received in return 6 traditional shell rings and a female pig named Wamangu.

37. Giving evidence in support of Stanley, Scott Tikawasa through his oral history stated that Sipingu a man from Tuatkum clan, Bainyik became jealous of his wife and killed a man from Waikakum (upon incitement from Malba Villagers). Because of this, fighting erupted between the two (2) villages. Only four clans defended Bainyik namely Nindimi clan, Guawikum clan, Alkikum clan and mangikum clan. They were the ones who also brought peace between Waikakum and Bainyik. Tiksy Tikawasa gave evidence in support of Stanley and agreed with Scott that Tuatkum clan and Nindimi clan were brother clans; however, Tuatkum had no original members when all of them died out. Nindimi clan looked after all their lands and it was during that time when Gilimatu migrated to Bainyik from Gwelikum. The second person to migrate was Sipingu, who at the time of his migration from Jame Village was only a child. When he was all grown up, Nindimi clan gave him a space within the Tuatkum area of land. They also agree that Niambapi (George’s founding ancestor) was the third person to migrate, who also at the time of his migration was carried by his mother Ilimikwen from Lonem down to Bainyik. A man from Nindimi clan looked after him and gave him a space within the Tuatkum area of land. According to them, Sipingu and Niambapi are not original members of Tuatkum clan. They were migrants and only given space and user rights to look after Tuatkum clan’s land.

b) Recent Developments

38. Stanley in support of his claim provided records of recent developments that took place, at a much recent period of time, on the disputed land Mitu. He stated that Kamanjan gave permission to his sister namely Numbanjo who at that time was married to Nange, George’s Grandfather (from Tuatkum clan), to clear the forest and make gardens. In 1952 a tumbuna of his named Biliku planted a coconut palm at what is now the junction of the road leading down to Sepik Agriculture College. This coconut was removed during the construction of the road connecting Maprik Town in the year 1962. In 1969, Nange and Bira (George’s father) wanted to have the Electricity Generator House built on Mitu land but were disputed by Kamanjan and Kandi (Stanley’s grandfather).

39. The above is what Stanley Kandi together with his witnesses provided in support of his claim to Mitu customary land.

RESPONDENT’S POSITION

a) Oral History and Genealogy

40. George Bira laid out his genealogy beginning with his 1^st generation ancestor through to his generation. According to his historical and genealogical accounts, “Niambapi” his founding ancestor migrated to Bainyik village from Lonem Village. His Bikmak at Lonem village is called “Buningwapikiti”. He left the village of Lonem with his mother “Ilimikwen”. The story behind their migration goes like this, Niambapi was hungry and Ilimikwen got a banana and cooked it and gave him and he ate it. The owner of the banana came and saw this; he was angry and hit Niambapi with a tong (traditional tool used for cooking food on an open fire). Ilimikwen got Niambapi with the banana pill and left Lonem.

41. According to George’s oral history, Ilimikwen with Niambapi came passed Jame village and Kimbangua village to Bainyik village. They arrived at the Bikmak ‘Inasaki Alkup’. At the Bikmak, all 8 major clan of Bainyik gathered to deal with the mother and child. Numapati clan got both mother and child but the other 7 clans suggested for Ilimikwen to marry into Numapati and the child Niambapi to be put into a vacant space within Tuatkum clan. Agreement reached and what was suggested by the 7 clans took effect. During this period Nindimi clan and Tuatkum clan were brothere clans. Niambapi became a member of Nindimi Tuatkum clan (Brother Clans) and adopted as his own the Pisin ‘Guria’, Tambran, ‘Bira’, Masalai, “Tauruk”, and Pig, “Kolio”.

42. George continued to state that, while at Bainyik Niambapi had two (2) sons namely Sanglam and Suambunamini. Sanglam the 1^st born son had Kutambal, he had 3 sons namely Nange, Kaurapingie and Kuapra. Nange had Bira and he had George. Kaurapingie had one son named Bira Guaram and he had only daughters. Kuapra had no children of his own.

43. As for the 2^nd son of Niambapi, named Suambunamini, he had Mangetaku who had Akitauru. Akitauru had two sons namely Apendan and Mico. Apendan had no children and Mico had Samson Aki, Terence Aki, Liwai Aki and Butt Aki.

44. Niambapi took possession of an area of land within the boundary of Nindimi-Tuatkum clans. George in his account explained how the two brother clans received additional names. The story behind this follows that at the time of Niambapi, they had a custom and sent one man from their Tuatkum clan to get a young mustard leaf (kru daka lip). Every time he returned he brought along a wild mustard leaf (wel daka lip). Other clans made fun of him and gave the name Walikuasikum to his clan Tuatkum. Tuatkum clan from then on is referred to as Tuatkum Walikuasikum clan. Also around the same time, Nindimi clan members always fought and argued over sikau meat (wild marsupial). Members of the other clans made fun of them and gave them the name Tiandikum. From then on Nindimi clan is referred to as Nindimi Tiandikum clan.

45. George also stated that Niambapi, his two sons Sanglam and Suambunamini where there with the other seven major clans of Bainyik. All the land area including the forest on it, creeks and rivers flowing through it and sago ditches (baret) were already claimed by the respective clans. Gilimatu, Stanley’s ancestor came later after all the land and resources were claimed. He migrated from Kwelikum village with his ‘Bel Mambu’ (impliments of sorcery), his Pisin ‘Muruk’, his Tambran ‘Windu’ and his dog ‘Titbun’. Upon his arrival at Bainyik village all eight major clans saw that there was no vacant space so they agree that he would go and stay under Nundimi Tiandikum clan and only have user rights to their land. Not long he was chased away for using sorcery (Bel Mambu) towards members of the clans in Bainyik leading to several deaths. He escaped and was on his way back to Kwelikum village however, he was unable to do so because of the ongoing fighting that was raging around that period of time. Being stranded, he was taken in by three Tumbunas (ancestors) of Guawikum clan namely Kusainiamba, Uranamini and Yuatal. They hid him at a little place called ‘Kupinge’. While there, he had his children and through them are his current generation.

46. George further stated that at the time of his third generation ancestor Kuatabal and Mangitaku, they grew sago palms around three swamps ditches namely Kunjakut, Sumukukla and Saiekualu, all located within the boundry of Mitu land.

47. Furthermore, he stated that fighting was prevalent during that period, all major clans of Bainyik remained and defended their lands. According to him the fighting took place at only one location, referred by him as fighting ground or spear ground. The name of this place was called ‘Mindioga’. The peace ceremony referred to by Stanley was to do with an isolated incident concerning them and their nephew (Kandre) Nindikuat and a man named Komingin from Waiknapati clan of Bainyik. Nindikuat sent over six shell ring money and a pig from Waikakum. This was done for the trouble they both caused between Waikakum and Bainyik.

48. All other witnesses who appear agreed with or gave similar account of what George presented, therefore, it is unnecessary for me to re-state their respective testimonies.

b) Recent Developments

49. George affirmed that during his great grandfathers Kutambal and Mangitaku time, his grandfather Nange and his father Bira’s time, they all remained and used the land Mitu. There was no dispute also during those periods of time. There was no dispute also during his father’s time until just recently after his passing. The dispute picked up momentum during George’s adult years until this present time.

50. In the year 1999, George and his late father together with his other siblings gave permission to New Apostolic Church to build their establishment on an area within Mitu land boundry. They signed an agreement whereupon the church agreed to pay K2, 500.00 yearly for a period of five years. In 2000, they received the first payment, thereafter, Stanley’s late father together with his elder brother set fire to the church establishment burning it to the ground. The same year, first mediation was convened involving both parties together with members of the respective clans of Bainyik. All the major clans of Bainyik acknowledge and supported George’s claim over Mitu land.

51. When they wanted to rebuilt the church, Rodney, Stanley’s late father raised another dispute leading to a second mediation. The result was the same with all members of the major clans of Bainyik supporting George’s claim. In 2009, Rodney Kandi raised another dispute leading to a full mediation conducted by two land mediators from Wewak. The result was the same, however, Rodney Kandi refused to accept any proposed terms, upon his passing, Stanley Kandi now is here before the court with the same claim of his father.

52. Having outlined the above summary of the respective party’s case from the bulk of evidence presented before us and in all considerations, satisfied ourselves of their relevance to the customary practice as discussed earlier, we find it appropriate at this stage to introduce issues following through with their discussions.

RELEVANT ISSUES AND DISCUSSIONS

53. At this juncture, we introduce the following issues and embark on their discussion, the outcome of which, in our view will determine the claim more favorable, fitting in well with the guidelines and relevant customary practices referred to earlier.

54. We suggest the following issues to achieve the above statement:

A. What physical features of the parcel of customary land Mitu contributed to or gave rise to the current dispute between the Disputant (Stanley Kandi) and the Respondent (George Bira)?

B. What connection do Stanly Kandi and George Bira have respectively in relation to Mitu customary land?

C. Is the dispute over ownership or user rights or both over the parcel of customary land Mitu?

D. Whether respective parties have exhausted all avenues (both customary and formal) to attempt settlement before invoking the power of the Local Land Court and how would the outcome of this proceedings promote peaceful co-existence between parties?

55. The following are our discussions of the above mentioned issues:

A. What physical features of the parcel of customary land Mitu contributed to or gave rise to the current dispute between the Disputant (Stanley Kandi) and the Respondent (George Bira)?

56. On 06^th of June 2020, we conducted a physical inspection of the disputed parcel of land Mitu and made observations on its natural features, manmade developments and other locations of interest within its boundary. We noted the parcel of land to be located close to the border of Waikakum village within the census boundary of Bainyik village. The National Highway leading into Maprik Town runs through the entire width of the parcel of land and the junction of the road leading into PNG Power generator house and on to the site of the former Sepik Agriculture College also is located on it. The parcel of land is about 5 minutes’ drive from Maprik Town with easy excess to amenities like electricity and water supply. The whole parcel of land features predominantly flat landscape. No permanent structures such as buildings were visible on the parcel of land, only clearance for gardening with few gardens planted and are found scattered throughout the whole land area. Sago palms are visible with several sago ditches spread across the parcel of land. Much of the natural vegetation of the parcel of land remains intact.

57. From the above assessment and through the information gathered from parties’ accounts, we conclude and are of the joint view that the parcel of land Mitu is a prime parcel of land with great potential for development. As alluded to earlier, Maprik District Development Authority has identified land within the area for the construction of a proposed Police Barracks. Prior to this both government and private bodies have had keen interest in developing this parcel of land, due to its geographical landscape, its location within close proximity to Maprik Town, easy excess to amenities like electricity and water supply, this in our view are all features which make it a prime land for development. Therefore the potential to benefit from proceeds of any development on this parcel of land is in our view, the source of the current dispute under our determination.

B. What connection do Stanley Kandi and George Bira have respectively in relation to Mitu customary land?

58. The weight of evidence points to the fact that both Stanley’s and George’s ancestors migrated to Bainyik Village. Gilimatu, Stanley’s founding ancestor migrated up from Gwelikum village and Niambapi George’s founding ancestor migrated down from Lonem village. At this present time Stanley is the 07^th generation of his line and George is the 06^th Generation of his line. Rodney Stanley’s father is the same generation as George.

59. Both claim attachment to Mitu parcel of land through their first generation ancestors. Based on customary succession through the patrilineal lineage both raise competing claim over the parcel of land. The two clans which names appear regularly are Nindimi and Tuatkum clans. We accept from the evidence the two clans as brother clans with Nindimi now referred to as “Nindimi Tiandikum” and Tuatkum referred to as “Tuatkum Walikuasikum”. Weight of evidence suggests the parcel of land Mitu to be owned by the Tuatkum Walikuasikum Clan and we accept that having identified no other contrary views.

60. None of the parties provided evidence on whether blood was spilled by their respective families on this parcel of land or whether they had buried their dead on it. However, Stanley claimed his ancestor took possession because they used the land to keep watch on Waikakum villagers, thereafter, used it to broker peace between Bainyik and Waikakum. George claimed the land was given to his founding ancestor after he (as a child) was adopted at the Bikmak ‘Inasaki Alkup’ and given a space in a vacant area within Tuatkum clan boundry of land.

61. During the land inspection George showed us the location of the sago ditches he referred to in his evidence. We note the sago ditches to be located alone the land boundary of the entire Mitu parcel of land. Stanley showed us locations which in our view were of a more recent time period and confined to a particular segment of land close to where he currently resides. George also showed us the sites were the Church building stood before it was guttered by fire an allegation pointing to Stanley’s father Rodney. We also observed and took note of the parties current place of residence, George resides at the edge of the main Hamlet of Bainyik village close to the main road within close proximity to the boundary of the parcel of land Mitu from the direction of Maprik to Wewak. His sister and husband namely Norm reside right on the border of Bainyik and Waikakum at the edge of the parcel of land Mitu just beside the main road from the direct of Wewak to Maprik. Stanley’s residence is located outside the boundary of Mitu on the right side of the road leading to PNG Power generator house. He occupies that area with his family; none of them reside at other locations around the boundary of Mitu land.

62. We consider the above details as description of respective parties’ connection to the parcel of land Mitu both current and historical.

C. Is the dispute over ownership or user rights or both for the parcel of customary land Mitu?

63. As alluded to, the parcel of land is one of those within the entire Tuatkum Walikuasikum clan’s land boundary. Both competing arguments appear to cast no doubt on this fact. The respective historical accounts provided no basis upon which a claim for ownership can be maintained, as such, we find no hesitation in accepting the position that ownership to the parcel of land Mitu is vested with Tuatkum Walukuasikum clan.

64. What appears to be the issue before use is whether Stanley Kandi, subject to issue B as discussed have made out a genuine competing claim to George’s position (a member of Tuatkum Walikuasikum clan) and user rights over Mitu parcel of land. In our view the preponderance of evidence favors George Bira, also he has substantial evidence of possessory acts, a clear indication that his founding ancestor took first possession of Mitu parcel of land. Unfortunately, we are unable to find within Stanley’s account any concrete details to hold otherwise.

65. What about the principle of adverse possession, we ask. Has Stanley provided enough evidence to invoke this consideration? We again find from the evidence no clear description and physical action on his part over a reasonable period of time qualifying him to rest his claim on this. As such, we consider the claims posed by respective parties to only extend to their respective user rights over Mitu parcel of land and the weight of evidence as we see it, favors George Bira’s claim.

D. Whether respective parties have exhausted all avenues (both customary and formal) to attempt settlement before invoking the power of the Local Land Court and how would the outcome of this proceedings promote peaceful co-existence between parties?

66. We centered our discussion on attempts overtime by the respective parties, that is, the appropriate actions taken towards asserting their claim over the disputed parcel of land. Stanley through his account mentioned only one occasion where his great grandfather and grandfather disputed George’s father and grandfather in 1969, concerning the construction of the PNG Power generator house. Apart from this mere description of events, Stanley provided no other concrete evidence to establish attempts throughout his generations to lay claim to Mitu parcel of land.

67. George on the other hand has provided several descriptions of events organized by his family to reaffirm their user rights claim over Mitu parcel of land. The accounts of which have been discussed in the preceding part under the heading of ‘Respondent’s Position’, sub-heading ‘Recent Development’ and I need not re-state the same. It is obvious that George has taken more pro-active approaches both formal and customary to reaffirm his claim over Mitu parcel of land unlike Stanley who’s account of events gave us nothing to discuss to that effect in his favor.

68. Having made the following observations, we now pose this question of how best can this tribunal create an environment of peaceful co-existence post dispute resolution? We consider helpful to this effect, accounts of both parties and in doing so we identified a somewhat interesting fact founded on the premise of customary inter-marriage. This in our view played an important role in how parties are now at logger-head with each other over user-rights to Mitu parcel of land and can also be the bridge to secure a peaceful co-existence between parties post dispute resolution.

69. We identified facts which confirm inter-marriage between Stanley’s family and George’s family. George grandfather Nange married Kamanjan’s sister Numbanjo (Stanley’s 04^th generation ancestors). The significance of this can be attributed to the reason why Stanley and his now deceased father claimed a piece of the land within Mitu close to where his current residence is and why all his places of interest where within the same area. Also this was again the same piece of land on which the church building stood before being destroyed by the alleged act of arson. In our view this is the source of all the claims and resulting disputes orchestrated by Stanley and his family.

70. We however, have already discussed Stanley’s weight of evidence under the preceding issues and see no need to repeat same. For the purpose of this issue, we accept that even without established facts, Stanley and his family have some connections to Mitu Parcel of land, less than that to which full user rights can be awarded but rather one in which, some benefits can be apportioned from proceeds of potential developments on the land. We accept that view as appropriate to achieve peaceful co-existence post dispute resolution.

71. Upon all our discussion concerning the relevant identified issues, we are satisfied that all relevant points have been addressed and now proceed to hand down our findings.

FINDINGS

72. All our discussions culminates into this segment were we summarize the entirety of our deliberations regarding respective party’s claim.

73. We are satisfied that sufficient opportunities were given for persons or clans with other competing interest to join as parties to this proceeding, however, no such claims were registered during the pre-hearing conference. We also allow members within respective party’s clan to challenge the standing of Stanley and George; however, no such challenges were registered. We all collectively vote in favor and accept the dispute to be between Stanly Kandi family of Ninidimi Tiandikum clan and George Bira family of Tuatkum Walikuasikum clan, both from Bainyik village over the parcel of customary land Mitu.

74. We are also satisfied that the dispute concerns respective claims of user rights over the parcel of land and not its ownership. We find sufficient evidence to recognize ownership over Mitu parcel of land by Tuatkum Walikuasikum clan. Mitu is one of the parcels of land within the total land area of Tuatkum Walikuasikum clan.

75. We find sufficient evidence in accordance with the local customary law (as discussed) to accept George’ claim that he is a member of Tuatkum Walikuasikum clan. We all agree collectively and vote in favor of his historical accounts to be one that agrees with their local customary practices. We were unable to follow Stanley’s version and find no relevance to the local customary practices.

76. George’s position is further strengthened by the preponderance of evidence in his favor both historical and present. We have ourselves visited the parcel of land Mitu and agree that his physical markers illustrated acts constituting first possession, that is, the existence of sago ditches at different areas within Mitu parcel of land.

77. We find Mitu land to be a Prime land for development and accept this fact to be the trigger point of the current dispute. Through majority vote, we are satisfied that the dispute only came about around the time of Bira and Nange, more profoundly at the time of the agreement between Bira and the New Apostolic Church of PNG (signing of agreement and receiving of cash). Stanley is now doing the same in light of the current proposed development on Mitu parcel of land by the Maprik District Development Authority. Other than that, we find no direct link to this parcel of land both historical and present appropriate for him to exercise full or partial user rights over it. Their family’s only link to this parcel of land, which we find, has been exaggerated to push for recognizance, is the marriage of Nange to their 04^th generation female ancestor Nimbanjo.

78. However, we agree that this family link entitles the Kandi family to some form of benefits, to whatever proceeds coming out from any development of this parcel of land. We vote in favor of apportionment of benefit in the ratio of 20% to 80% as fair and necessary to achieve peaceful co-existence post dispute resolution.

79. The above findings bring to rest all issues under our deliberation. At this stage, we find it appropriate to address other issues pertinent to the entire proceedings and we consider them for our addressing as miscellaneous issues.

MISCELLANEOUS ISSUES

80. In order to do justice in this matter, we feel duty bond to address issues, for all intents and purposes arising out during the course of the entire proceedings. The issues cover supplementary points of relevance and the address of it will complement our findings. We set out the following issues for our deliberation:

1) Whether the registration of a customary land under an Incorporated Land Group (ILG) gives title over the land to the ILG or individual members of the ILG?

2) Is it proper for the panel to take into consideration documentary evidence filed after completion of trial?

3) What should the party aggrieve by the panel’s decision do, what is the next step available to him?

81. The following are what we discussed and find as per the respective issues.

1) Whether the registration of a customary land under an Incorporated Land Group (ILG) gives title over the land to the ILG or individual members of the ILG?

82. To address this issue, we adopt and re-state the views of Actnow PNG, a non-government organization (NGO), found in a paper compiled and published by it on its website www.actnowpng.org. The discussion paper is titled, ‘A Critique of Incorporated Land Groups in Papua New Guinea’. The relevant part for our adoption and application is covered under the heading, ‘Land boundaries must now be clearly identified’, at page 4 of the paper’s electronic copy. The following is what we consider relevant:

“Land boundaries must be clearly identified.

The ILG must also identify the land over which it claims ownership by providing a sketch of the boundaries of the land. The map must highlight any dispute (S. 5 (2) (e)). This is a significant improvement to the old ILG Act which did not require an ILG to identify its land boundaries, thus giving rise to many disputes. While boundaries must be generally identified in an application to register an ILG under the 2009 ILG Reforms, it is important to note that registration of an ILG does not provide evidence of who has rights over a particular piece of land and certainly does not provide any evidence of sole rights or ownership. Identification of who has ownership rights can only be achieved by taking the further voluntary step of registering the customary land under the Land Registration (Amendment) Act 2009.”(Underlining and emphasis mine)

83. We find the practice of registering customary land under an ILG and the use of this status to assert ownership rights over the subject customary land as a bad practice and an abuse of the whole process going against the intent and purposes of the Land Groups Incorporation (Amendment) Act 2009.

2) Is it proper for the Panel to take into consideration documentary evidence filed after the completion of trial?

84. To do justice to respective parties’ cases and to protect the land court process from undue influences, we will not take into consideration documentary evidences filed after close of trial and received from the registry. The law is clear on this and I need not emphasis the importance of this any further. In brief, to do such would prejudice the position of the other party.

3) What should the party aggrieve by the panel’s decision do, what is the next step available to him/her?

85. The party who is aggrieved has the right to appeal to the Provincial Land Court. Part V, Division 3 of the LDS Act, contains relevant practice requirements for compliance and the party invoking the appeal process must comply with its provisions. Some of which are found under Sections 53, 54, 55, 56, 57, and 58 of the Act. In brief, the appeal must be lodge within 3 months of the date of the decision and should that not be possible, lodge before 12 months, subject to application for leave, from the date of the decision. There is also the requirement to pay some amount of money as recognizance and the party appealing must be prepared to put up some money to this effect.

86. Having satisfied ourselves with the above, it is now only proper to conclude this matter by making our concluding statements and issue before our hands the appropriate orders.

CONCLUSION

87. In closing, we are satisfied that all the compliance requirements under the LDS Act 1975 were observed in dealing with this matter. All opportunities were accorded to persons or groups who might have other competing interest over Mitu parcel of customary land other than Stanley and George.

88. The relevant practice considerations generally applicable in Papua New Guinea were given due regards to, through the formulation of a guideline. Also all relevant accounts of local customary practices were considered with a summary provided as a guide in our dealing of the parties’ respective claims.

89. Our findings were made in accordance with the local customary practices and with due consideration to the guideline as formulated by us for this purpose. We vote in the majority and award full user rights over Mitu parcel of customary land to George Bira as the leader (spokesperson), his family and his entire extended patrilineal lineage of the Tuatkum Walikuasikum clan of Bainyik Village.

90. We make no award of any form of user rights to Stanley Kandi, his family and his entire extended patrilineal lineage. His standing within Nindimi Tuatkum clan is a matter for a separate challenge and to make any determination on this will result in further disputes. As such, we refrain from giving him any status but for our purpose we will refer to him as Stanley Kandi, his family and his entire extended patrilineal lineage of Bainyik village.

91. We however, make an award in Stanley’s favor on the benefits that will flow from the proposed construction of the Police Barracks on Mitu parcel of customary land by Maprik District Development Authority. This award is only for this proposed project and does not extend to apply in any other future developments on Mitu. We apportioned 20% of the total benefit to Stanley Kandi, his family and his entire extended patrilineal lineage of Bainyik village. This we hope will promote peaceful co-existence between parties post conflict resolution.

92. We also issue general orders to protect the development of Mitu parcel of customary from unscrupulous opportunists subject to the discussion of the miscellaneous issues. This would deter persons other than George Bira or his delegated authority to use ILG process and laying claim over this parcel of land or relying on their status as members of an existing ILG to disturb development of the land.

93. We now invoke Section 39 of the Land Dispute Settlement Act 1975 and make the following orders in accordance with its provisions:

THIS COURT SITTING AS A PANEL MAKES THE FOLLOWING ORDERS:

1. All requirements under Section 32 of the Land Dispute Settlement Act, 1975 complied with;

2. Notice pursuant to Section 71 of the Land Dispute Settlement Act 1975 satisfied with;

3. Pursuant to Section 39 of the Land Dispute Settlement Act 1975, this court in its majority finds and awards all interest in the customary land known as Mitu located at Bainyik Village, Maprik Urban LLG to George Bira as the leader (spokesman), his family and his entire patrilineal lineage of Tuatkum (Walikuasikum) clan;

4. Subject to Order 3 above, Mr. George Bira as being presented before this Court has the standing as per the Bainyik Village local custom to represent the Tuatkum (Walikuasikum) clan members;

5. This Court in its majority finds and awards benefit from the proposed construction of the new Police Barracks to be shared between Mr. George Bira of Tuatkum (Walikuasikum) clan and Mr. Stanley Kandi and his family and supporters of Bainyik Village;

6. Subject to Order 5, 80% benefit is awarded to Mr. George Bira of Tuatkum (Walikuasikum) clan and 20% is awarded to Stanley Kandi, his family and supporters of Bainyik Village;

7. Maprik District Development Authority with support from Maprik Urban LLG are directed to provide the necessary support both technical and financial to the parties to this proceedings to ensure they fully participate through formation of Incorporated Land Groups (ILGs) in the proposed development on Mitu customary land pursuant to Orders 3, 5 and 6 above;

8. All other parties not involved in this proceeding are restrained from interfering with this Court finding and Orders, any such interference will be prosecuted under Section 65 of the Land Dispute Settlement Act 1975;
9. Both parties are directed to allow the construction of the proposed barracks to continue without any interference; and

10. Police are directed to arrest and prosecute under the relevant laws any persons or groups who cause to interfere with the construction of the barracks either by obstructing agents, servants or associates of Maprik District Development Authority in the performance of their respective duties or by preventing any machineries or equipment to be brought onto the subject construction site on Mitu parcel of customary land.

This brings to conclusion the matter under our determination. Case closed.