Tawindi Clan v Kaimari Clan [1998] PGNC 96; N1775 (25 September 1998)

Unreported National Court Decisions

N1775

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 123 OF 1997
BETWEEN:
TAWINDI CLAN
APPLICANT
AND:
KAIMARI CLAN
RESPONDENT

Mount Hagen

Injia J
19 August 1998
25 September 1998

JUDICIAL REVIEW - Decision of District Land Court - Award of K10,000 compensation for customary land - Title over customary land extinguished by operation of law - whether compensation payable to party whose title extinguished - Land Dispute Settlement Act (Ch No. 45); s.67.

Cases Cited

The State -v- District Land Court; Ex parte Casper Nili [1981] PNGLR 192

Augustine Olei -v- The Provincial Land Court at Port Moresby [1987]

Re Application of Ambra Nii [1988-89] PNGLR 192

In re Application of Nango Pinzi [1988-89] PNGLR 464 PNGLR 359

Re Gobe Land Case [1993] PNGLR 309

Counsel

M Tamutai for the Applicant

T Bongere for Respondent

25 September 1998

INJIA J: This is an application to review the decision of the Ialibu District Court, sitting as an appellate Court, under Part V, Division 3 of the Land Dispute Settlement Act (Ch. No. 45) (“the Act”). Although un 60 of that Act, such a deca decision is final and not subject to appeal, this Court still has power of review under Order 16 of the National Court Rules, 1983: Augustine Olei -v- The Provincial Land Court at Port Moresby [1987] PNGLR 295; Application of Ambra Nii [1991] PNGLR 357. This Court also has power to review such decision under Constitution, s 155(2)(b), (3)&(4): In re Application of Nango Pinzi [1988-89] PNGLR 464, The State -v- District Land Court; Ex parte Casper Nili [1981] PNGLR 192. The principles under either leg of review are the same. The review jurisdiction is available to quash an error of law on the face of the record.

The decision for review concerns customary land known as “Kulumbura”. The Local Land Court had earlier dealt with the matter and decided that part of the land belonged to the Tawindi clan and not the Kaimari clan and divided up the land. This decision came up for review on appeal before the District Court. The District Court magistrate went through the evidence as contained in the Local Land Court file, heard submissions on the grounds of appeal and also visited the land. The Magistrate then awarded the part of the Kulumbura land to the Kaimari clan and further ordered the Tawindi clan to pay compensation in kind and cash to the total value of K10,000 for the part of the land awarded to the Tawindi clan. The relevant portion of his judgment reads:

“FINDING OF THE COURT

Having heard the grounds of appeal submitted, I also spent a considerable time going through the evidence of the parties upon which the decision now appealed against was made and coupled with a visit to the land in dispute, I have reached the following conclusions:

1. ҈ W60; Why did the Loaal Loud Court after satisfying itself that the KAIMARI clan did not own any part of tLUMBURA land go ahead and divide the land between the two disputing parties.

2.&#160 & That the TAWAlDI clan did did not refute claims hotly contested by the KAIMARI clan that the dispute between the same parties over the same land was setby thd Couack i6.

However, without the presence of any documentary evidence, such claims though vigorously contested, unopposed unfortunately, is of little value.

3. ;ټ T60; That that there was ample evidence before the Local Land Court adduced by the TAWINDI clan of the use and ocion o disputed land, which was disputed by TEPI PAREKA but unfortunately it appears hers he did did not substantiate his claims with facts from other independent witnesses as done by the TAWINDI clan. Therefore I find that the TAWINDIs have had adverse possessory rights over it. That is they have used the land for sufficient long period of time without permission or active opposition from others including the KAIMARIs. Thus acquiring usage right over it.

4. &##160; The only point that that both clans agreed to during mediation, and again during the Local Land Court hearing and confirmed during this appeal was that thndaryeen to claer what they called the Tamo Tamo land land was twas the Tahe Tamo creek, a natural boundary.

5. ; T60 diseute is over a pora portion of land on the Northern side of the same creek, which is known by a different name, “BURA&; by the ted ls also named. Why is this so when the eastern side side of thof the lane land divd divided ided by the same creek is undisputed. What is illogical for this court to accept is why was the boundary diverted from the natural boundary to cut across in a diagonal almost at 45% angle as claimed by the TAWINDI clan which was reduced by the Local Land Court to about

COURT ORDER:

That the boundary between the TAWINDI and KAIMARI clans, is the natural boundary created by the TAMO creek down to the point where it sinks, and then around the dry river bed where the river flows, in the event of flooding until it comes and reaches the source of KULUMBUR creek, then following down that creek until it reaches their boundary with the TAKURU clan.

However using my appellant jurisdiction, pursuant to section 59(1)(b)(i) of the Land Disputes Settlement Act, I am of the view that the following order I make will lead to a peaceful and effective settlement of the dispute once and for all. Though the KAIMARI clan is found to won the Kulumbura land, there is more than sufficient evidence before this court to show that the TAWINDI clan has had more unopposed occupational and usage rights over it. I therefore order that the TAWINDI clan be awarded portion of the KULUMBURA land that they have had possessory rights over.

That being so the boundary between the KAIMARI clan and the TAWINDI clan now will be as marked by the Local Land Court.

I further order that the TAWINDI clan pay to the KAIMARI clan some compensation for the deprivation of the ownership rights and other rights over the portion of land now awarded to the TAWINDIs. That is the loss of all interests associated with land. A total of K10,000,00 compensation be paid in the following proportions.

Two head pigs valued at K1,000.00 each	= K 2,000.00
Five mother pigs valued at K600.00 each	= K 3,000.00
A cash sum of five thousand kina	= K 5,000.00
	= K10,000.00

A total sum of K10,000.00 in cash and kind be payable withree months as from today’s date. Failure to pay the compensation will automatically rlly revert the customary ownership of the KULUMURA land to the KAIMARI clan, as per the findings of this court that the KULUMBURA creek being the natural boundary between the two clans”.

The applicant seeks a review of the portion of the decision relating to award of compensation of K10,000 only whilst accepting the decision on division of the land between the two clans by the District Court Magistrate. The applicant’s principal contention is based on s 67 of the Act which provides:

67. Presumption as to vesting of interests.

(1) &##160;; Notwithtwithstanditanding any other law, proof that a party to a dispas exed anrest the land the subject of the dispute for not less than 12 year years wits without hout the pthe permission, agreement or approval of any other person sets up a presumption that that interest is vested in the first-mentioned party.

Papua new guinea

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

It is submitted for the applicanlicant that the magistrate made an error in ordering the payment of compensation of K10,000 to the Kaimari clan for the land now given to the Tawindi clan, in addition to awarding part of the land to the Kaimari when the Kaimari clan had not registered any adverse interest over the Tawindi’s use of the land for a very long time. It is also submitted there was no evidence before the Magistrate to show that the Kaimari clan occupied this land for such period as 50-60 years before the Tawindi took over it for which the Kaimari should be compensated. The Tawindi now say they willingly gave away half of the land to the Kaimari to amicably settle the dispute and it is grossly unjust that they should pay another K10,000 for some fictional rights which the Kaimari might have over the land.

The principle of adverse possession under s. 67 confers customary ownership right or title over the land by operation of law: Re-Hides Gas Project Land Case [1993] PNGLR 309 at 316-317. It is not merely an “evidentiary aid” to the determination of title over land as suggested in Re Application of Nango Pinzi, ante, p. 470. The use of the land over a period of more than 12 years without opposition confers that right of title by operation of law. Upon the expiration of 12 years, the person is the absolute owner of the land which includes all improvements on the land which they have erected. This process of acquisition of title by operation of law extinguishes any existing supposed propriety rights of any other party. So for what conceivable reason should the owner by operation of law, be required to pay compensation to the “supposed owner” whose propriety rights have been effectively extinguished? I cannot think of any sound reason in law or equity.

The evidence in the present case was that the applicant had lived on this land for many years. The land originally belonged to the Kaimari but they had allowed the ancestors of the Tawindi to settle on this land many many years ago. Although there was no evidence before the Court to find whether the Tawindi had in fact lived on this land for over 12 years, there was evidence that they had developed the land, built houses and buried their ancestors there. Given the fact of burial of ancestors on the land and the vast improvements such as planting of trees, it could be safely inferred that the Tawindi had settled on this land for a period in excess of 12 years; say 50 - 60 years; without opposition from the Kaimari. In my view, the Tawindi had acquired propriety rights over the land, by operation of law, pursuant to s 67 of the Act. Whatever ownership rights the Kamari had over the land extinguished after 12 years. It appears that the Tawindi had known this land to be the land of their ancestors, given to them by the Kaimari initially, but due to operation of law, they had acquired propriety rights over it.

For these reasons, I consider that the District Court erred in ordering payment of compensation, failure to pay which would result in reversion of title to the Kaimari. The Kaimari had no reversionary title to begin with as their title had extinguished by operation of law. I quash the orders as to payment of compensation. Each party shall bear their own costs.

Lawyer for the Applicant: TAMUTAI Lawyers

Lawyer for the Respondent: BONGERE Lawyers