Simon v Omeljuye [2008] PGPLC 1; DC783 (1 July 2008)

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I.Geita : PLCM This is an appeal from the decision of the Local Court in Menyama made on 5th November 2001 in respect of the land known as Komalakaza in the Menyama District, Morobe Province.

3. An appeal deposit of K500 was duly paid with a copy of the official receipt No. 98154 attached.

4. This land dispute dates back to 1971 and in order to properly understand what has transpired over the years I will detail developments in some sort of chronological order for purposes of ease and clarity.

1	19/10/1971	Menyamya Local Land Court Magistrate Mr. G.C. Conner established Palalye clan to have traditional rights to Palalye/Kokaeke land now known as Komalakaza land. An agreement was made between Komalakaza clan and Palalye clan paving way for 3 families from Komalasa clan to occupy and use the land. Permissive occupancy rights were given to the Komalasa families.
2.	30/09/1981	Menyamaya Local Land Court Magistrate Luke Kakai made a finding in favour of the Palalye clan, confirming Palalye land right as determined in 1971 by Conner.
3	30/05/1982	Magistrate Stephen Awagasi sitting as District Land Court Magistrate upheld the Kakai Local Land Court decision.
4	11/02/2006	Morobe Provincial Administration attempted to evict the Hekwange Clan and families from Kaimba Land, Kulakulkwa Land, Koniase, Kotauyale Land, Uyana, Kailkwa, Kamunapli, Aitanakali, Hilolela, and Himakalpali Lands.
5	1981	Mobile Squad- Lae executed an eviction exercise and forced some Hekwange clans & families to flee to their villages away from Komalakaza land. They returned to the disputed land four (4) later hence this long outstanding dispute. More eviction exercise were carried out in 2003 and 2006 to no avail
6	27/10/2000	Palakye Clan successfully obtained National Court Order by consent to have another Local Land Court to determine the Komalakaza land boundary.
7	05/11/2001	Local Land Court Magistrate Mr.Roap Gemung (Menyamya) found / ruled that Komalakaza Land boundary was nothing more than 1.5 acres of land. “ It’s a piece of land located near to the top of the Kaimba mountains facing Menyamya Station.”

Within a period of 11 years from 1971-1982 two Local Land Courts and a Provincial Land Court made findings in favour of the Palalye clan over the same piece of land. The Palalye clan, although successful , filed another appeal to the Provincial Land Court for a determination on the actual Komalakaza land boundary. That is the issue

5. In their quest to claim ownership of the land in dispute, both parties have gone out of their way to establish the superiority of their traditional clan land boundaries. I take this approach to mean that should disputed land fall within the perimeters of ones clan boundary, than they have the right of claim over it. Both disputing parties have never really clearly set out their respective land boundaries in respect of the land in dispute. If anything the Local Land Court at the time has not been greatly assisted. I cannot say with great confidence if this appeal court has been properly assisted either.

6. The appellant clan are saying that the traditional boundary dividing them and the Hekwange’s runs between Yekwouse,Kaimba,Konekwaka,Walyokwa , Koplanili, Taikose, Hilominye, Hekyeli-Hekye and Kalkope which is the tip of Mount Kaimbe.

7. The respondents on the other hand are saying that their traditional land boundary has always been the Yalkwe River. In short the appellants are saying that the respondents have no right or claim over the disputed land. The land boundaries stops between mountain ranges Yelkwa and Kallepe and do not extend beyond. The respondent maintains that the land boundary extends beyond the Hakwose and Kalkopa mountains down to the plains and ends at the Yalkwei River. The disputed land is situated within their boundary, hence the land is theirs.

8. In trying to understand the situation further both parties were invited to produce evidence to support their claims during this appeal hearing. The appellants relied on evidence already put before earlier land courts together with earlier court orders made in their favour. The respondents advanced very convincing history of their clan and some brief history of land tenure system at the time. It is not clear if that same evidence was presented before the local land courts. Earlier court records do not show this new evidence. In any event they are good for all purposes and I have accepted them as they are. The appellants however rebutted that the issue now before this court is not to determine ownership but to determine the land boundary between the two parties.

9. I shall now go through the appeal grounds and address them separately. First is appeal given number four which is easily disposed off as it has no relevance in this appeal and is dismissed. Next is appeal ground number three. The only evidence advanced to support this ground of appeal is a bold statement asserting that His Worship Magistrate Gemungs’ decision on the boundary was not right. The appellant advanced that the boundary inspection did not complete the wakling of the traditional boundary. They said the parties walked up to Koplanili range but did not reach Tikolse, Hilominye, Hekyeli and Kalkopa. This assertion is contrary to the magistrate’s notation in his record of proceedings dated 18th January 2001. The magistrate said the boundary inspection party comprising party spokesmen, a patrol officer from Menyamya, 2 local mediators, 2 policemen, including him walked the boundary up to Mt. Kaimba / Konakwaga, Hekwause and to Kolkopa.

10. The magistrate recorded that those land marks were land boundaries claimed by the Palalye clans. I see no error or inconsistency in the notations even if the boundary inspection was short by 7 kms. The important thing was that the boundary walk was generally attempted and the magistrate satisfied himself that these were the land boundaries as claimed by the appellant clan. I see nothing wrong with his findings. If anything that finding is consistent with what is claimed here by the appellant in this appeal.

11. However in the light of Conner’s minutes and notations on the parties common boundaries it was improper in my view for His Worship Mr. Roap Gemung sitting as Local Land Court Magistrate to make findings that there were no records available at the time to assist it help identify the Komalakaza land boundary. The Connors’s minutes were available. As such his findings in my view were not done in the best interest of parties and erroneous and amount to circumstances which caused injustice to the appellants. Hence in the circumstances of the case no court doing justice between the parties would have made the decision appealed against. The end result is that this ground of appeal is upheld.

12. Next is appeal ground number two. There is no evidence presented before me to show breaches of natural justice. Both parties at the time were fairly represented and properly heard. This ground of appeal is easily dismissed.

13. Next is appeal ground number one. Again there is no evidence before me showing that the Local Land Court exceeded or refused to exercise its jurisdiction. If anything the traditional land boundaries claimed and disputed by both parties were generally the same during the local land court hearing and this appeal. At the time the magistrate noted and made findings that Komalakaza land was a small portion of land no bigger than 1-5 acres. The magistrate recorded at the time that the parties also agreed that the disputed land did not include the 2 to 3 thousand or so acres of land.

14. The only attempt made to identify the land boundary were those indicated by the Hekwange Clan with bamboo posts and plastic bags for ease of identification. The appellant raised no objection at the time. In the light of insufficient evidence and the absence of the original court file, the court was left with it’s own findings, hence the outcome reached in the following. ” The Komalakaza land in my view is a block of land not bigger then one and a half acres of land. No more. It’s a piece of land located first near to the top of the Kaimba Mountain facing Menyamya Station. I see no error in that finding with the end result that this ground of appeal is also dismissed.

Having dismissed all grounds of appeal except ground number three (3) I am inclined to make some comments before I make my ruling on this case.

16. Firstly this is a very unfortunate state of affairs in which it has taken more than 37 years for this land dispute to come before the courts again. I am not in a position to put blame on the parties or our system of land adjudication process and mechanism. That is not my job; save to say that the full cycle of the land adjudication mechanism has been tested and found wanting to the detriment of our citizens. Having said that, some of the blame must also go the litigants.

17. Section 50.Land Dispute Settlement Act Ch No.45 provides for practice, procedure and powers of Provincial Land Courts.

Subject to this Part, the practice and procedure of a Provincial Land Court are as prescribed.

(a) is not bound by any law or rule of law, evidence, practice or procedure other than this Act; and

(b) may call and examine, or permit the parties to call and examine, such witnesses as it thinks fit; and

(d) may otherwise inform itself on any question before it in such manner as it thinks proper; and

(e) subject to any guidelines laid down in the regulations, shall endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom. (all emphasis mine)

“In exercising its jurisdiction under this Act, a Provincial Land Court or a Local Land Court is not bound by any law other than this Act that is not expressly applied to it, but shall, subject to Section 68, decide all matters before it in accordance with substantial justice.”

19. The combined effect of sections 50, 68 and 69 of the Land Dispute Settlement Act is the observance and application of substantial justice by land courts on all matters before it. Bearing this principal in mind and with the view to putting this long outstanding land dispute to rest I have gone through all available evidence and documents presented before me, including, old court orders, administrative orders, correspondences from lawyers and other records. The record of mediation conducted by LLC Magistrate Mr. G.C. Conner’s of 19th October 1971 have also been produced and read. I have found G.C.Conners’s minutes of 19th October, 1971, very interesting and worth while. Having carefully canvassed his minutes I am convinced that the key to unravelling this long outstanding land dispute is contained in his minutes. He minuted that during that land usage dispute, the Palalye clan of Piewi village were allowed only 3 Komalakaza families to occupy and use the land known as Palalye/ Kokaeka. This agreement was ratified on 19/10/1971. Mr Conner’s recorded that there was no dispute as to actual ownership of the land as the Palalye appear to have traditional rights to it, but are prepared to give certain Komalakaza groups permissive occupancy but do not want too many to come for fear of mass takeover by the Komalakaza. The Komalakaza want more of their land number granted permission occupying as they fear eviction or violence by some to the Palalye. I quote Mr. Connor’s minutes:

20. Secondly Magistrate Conners in his minutes recorded the feelings expressed by the Hekwange at the time for them to move to new lands as their land was getting scarce. I quote “ some Komalasa now feel that their new land at Hekwange is no longer sufficient and hence wish to move over the range which separates Hekwange and Peiwi hence the Court today.” This in my mind is the key to unravelling this long outstanding land dispute. Magistrate Conners is reaffirming Palalye claim that the traditional boundary is the ranges, thus discounting Hekwange claim that the Yalkwe River is their traditional boundary. Be that it may it goes without saying that since the Komalakase Land is within Palalye Clan boundary they must be the owners of the dispute land. The Hekwange clans claims of the Yalkwe River to be the common border is of recent invention in my view and is disregarded. This version was not supported by Connors either at the time.

21. The Conner’s findings is somewhat similar to the Gemung’s findings, save for the fact that he generally ruled that Komalakaza land to be nothing more than 1-5 acres of land. True to their fears of a possible takeover of their land expressed in 1971 the Palalye fears have come true. This land dispute is testament to those fears in that the Hekwange’s are now claiming ownership of the Komalakase land which was originally offered to them to settle at the time by virtue of permissive occupation in 1971.

22. The Respondent’s assertion of their ancestors staying at Kokaiwa and splitting into two groups as a result of criminal activities and resulting on either sides of the Yalkwe River was not supported by any credible evidence. Nor was it supported by the Conners minutes. Conners made no mention of Yalkwe River being the Hekwange boundary.

23. Finally this Court is now left with the appellants version of their land boundary, the respondents version of their land boundary and the Conners minutes or version of both parties land boundaries. Only Hekwange Clan made some attempt to identify the Komalakaza land boundary to no avail . Having considered all the evidence before me I am more inclined to believe the appellants version of their land boundary. I am not convinced by the Komalakaza version of their land boundary. I am satisfied that the land in dispute was originally owned by the appellant clan but was offered for permissive occupation by the Hekwange Clan, with strict conditions for its use or occupation. Unfortunately those user conditions and privileges given at the time appear to have been forgotten and abused. In order to maintain status quo between the two parties at the time over a similar dispute, restraining orders against usage of the land to the Hekwange families were issued.

24. Section 59 of the Land Dispute, Settlement Act provides for the powers on appeals.

25. In the final upshot I rule that the Local Land Court decision of 5th November 2001 is quashed and substituted pursuant to Section 59 (1) (b) (i) of Land Dispute, Settlement Act and I make further orders that the Komalakaza land is situated within the Palalye clan boundary.

The common boundary between the Palalye and Hekwange clans is the mountain ridges extending from Mount Hyekouse, Keimbe all the way to Mount Kalkope.

Lawyer for the First Complainant Name of law firm : None
Lawyer for the Respondents Name of law firm: None

Provincial Land Court of Papua New Guinea

Simon v Omeljuye [2008] PGPLC 1; DC783 (1 July 2008)