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Provincial Land Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE PROVINCIAL LAND COURT OF JUSTICE]
PLC. No: 01 of 2016
BETWEEN
Roy Mangae for and on behalf of the Magarugaru Clan
01st Appellant
AND
Blaise Dau & Baili Bambai for and on behalf of the Kikilei Clan
02nd Appellant
AND
Raphael Gegelio & John Gideon for and on behalf of the Kuruzekuvungu Clan
Respondents
Kimbe: S.Lavutul
Mediators: Nil
2017: 24th, 25th, 26th April
PROVINCIAL LAND COURT PRACTICE & PROCEDURE- Section 50 Land Dispute Settlement Act – Provincial Land Court Appeal Process–Sections 54, 55, 56, 57, 58, 59 & 60- Allegation of Bias- Breach of Natural Justice- Appeal –Section 67 – Principle of Adverse Possession –Considerations for & Conditions of Monetary Benefits from the lease of Land – User Rights To Land
Cases Cited
1. Hides Gas Project Land, Re [1991] PNGLR 309.
2. Application of Ambra Nii and Other Members of the Toisap Clan [1991] PNGLR 357.
3. Gaigo on behalf of Laurina Clan & Ors v. The State [1979] PNGLR 202,
References
Land Dispute Settlement Act
Local Customs and practices of the Bali people of West New Britain Province
Counsel
Appellant No. 01 present in person
Appellant No. 02 failed to appear despite services of notices.
Respondents appeared in person
REASONS FOR DECISION
27th April 2017
SLavutul, Principal Magistrate; This matter came before me by way of two (2) separate Notices of Appeal; each filed by Mr. Roy Mangae for and on behalf of the Magarugaru Clan of Bali Island as Appellants No. 01 and Mr. Blaise Dau & Mr. Baili Bambai for and on behalf of the Kikilei Clan of Bali Island, West New Britain Province as Appellants No. 02. The respective Appellants were aggrieved by the Local Land Decision No: LLC. 06 of 26th of June 2016 over the customary ownership of Magaroto Light House Land on Bali Island, Talasea District, West New Britain Province. Whilst the Respondents in the matter are Mr. Raphael Gegelio and Mr. John Gideon for and on behalf of their Kuruzekuvungu clan of Bali Island, West New Britain Province in which the Local Land Court ruled in their favour on the 26th of June 2016.
Brief History of this Dispute
2. The dispute first arose between the same parties in about mid – 2006 and was then referred to the Local Land Court and was presided upon by His worship Tera Dawai. His worship then heard and ruled in favour of John Gideon, Raphael Gegelio and their Kuruzekuvungu Clan in September of 2009.
3. However, the Decision of September 2009 by His worship Tera Dawai was appealed by Mr. Roy Mangae for and on behalf of his Magarugaru Clan. His worship Regget Marum then heard the Appeal.
4. His worship then ruled on the 20th of September 2010 in that I will restate word for word his decision;
1. Appeal allowed
2. Decision of the LLC quashed
3. Matter referred back to the LLC for hearing before another magistrate with the following directions;
a. Before the substantive dispute is heard, the LLC magistrate must first hear and determine the genealogy clan of the parties over the claim of interest in Mogoroto Land Dispute
b. Secondly, the court must decide the NMSA lease document and to decide if such NMSA lease document is proof of conclusive ownership of the disputed land. If the court decides that the NMSA lease document is conclusive evidence of ownership to those who signed the NMSA document, then there is no need to continue with the dispute. If not then the court can continue to hear the dispute.
4. Appeal fees, if paid to be refunded in full.
5. All parties bear their own cost.
5. The above Provincial Land Court decision then gave rise to the Local Land Court proceeding registered as LLC 6/16, which was then heard and determine by Her worship, Ms. Patricia Tivese on the 28th of June 2016. Thus then gave rise to this Appeal No # 01 of 2016.
6. Her worship sitting as the Local Land Court on the 28th of June 2016 and ruled in the following;
1. Kuruzekuvungu Clan is the owner of Portion of land known as the Magoroto Light House.
2. The Kikilei Clan members have the usage right to sea and the reef opposite the disputed land for fishing.
3. The Magarugaru Clan members have the usage right to sea and the reef opposite the disputed land for fishing
Grounds of Appeal
6. Mr. Roy Mangae as 1st Appellant for and on behalf of his Magarugaru Clan did filed and gave a Notice of Appeal registered before the Kimbe Provincial Land Court on the 08th of July 2016 accompanied by a deposit of K500 in cash paid on OR No # COI - 0065 based on the following grounds;
1. That the Local Land Court exceeded or refused to exercise its jurisdiction on the basis that it failed to properly consider that the Crown or State process of Compulsory acquisition of the of the subject land had prior to independence being followed in the determining ownership and therefore the Local Land Court exceeded its jurisdiction to declare our clans as the principal land owners having been the recipients of royalties since.
2. That the Local Land Court conducted its hearing in a manner contrary to natural justice on the basis the Learned Magistrate erred by allowing herself to preside as the Local Land Court Magistrate and also in her capacity as the Senior Provincial Magistrate of the Kimbe District Court when the First Respondent, John Gideon is the Clerk of the Kimbe District Court and therefore the presumption of bias exists when the decision was made in the First Respondent’s favour.
3. That in the circumstances of the case no court doing justice between parties would have made the decision appealed against.
7. And seeks the court for the following orders in lieu of this Appeal;
1. That the Orders of the Local Land Court dated the 28th of June 2016 be quashed
2. That the Provincial Land Court presides over and determines the matter wholly, or in the alternative.
3. A Local Land Court Magistrate from outside West New Britain Province be appointed to rehear the matter
4. Costs of these proceedings be paid by the Respondents
5. Any others orders the honorable Court deems appropriate
8. Similarly, Mr. Blaise Dau and Mr. Baili Bambai as 02nd Appellants for and on behalf of the Kikilei Clan did filed and gave a Notice of Appeal registered before the Kimbe Provincial Land Court on the 26th of July 2016 accompanied by a deposit of K500 in cash paid on OR No # COI - 006757 based on the following grounds;
1. The Learned Magistrate conducted the hearing in manner contrary to natural justice; and
2. That in the circumstances of the case no Court doing justice between the parties would have made the decision appealed against
And sought the following orders;
9. Despite sufficient notices by the Court to the 02nd Appellants they totally failed to appear in person in order to prosecute their Appeal as per the two (2) Affidavits of Service filed by District Court Clerks namely Ms. Helen Waluka and Julius Amon on the 24th of April 2017. The Court proceeded in their absence.
Evidence and Submissions By Parties
10. The 01st Appellant and Respondents filed affidavits in support of their grounds of Appeal. The 01st Appellant was given the opportunity to address the court on oath in order to substantiate on behalf of his Magarugaru Clan their respective grounds of Appeal on the 26th of April 2017. The Respondents were also given the opportunity to exercise their right to cross- examine the 01st Appellant. Similarly the 01st Appellant was also given the opportunity to cross- examine the Respondents and their only witness.
11. The 01st Appellant stated in his affidavit that Kavulio Mataio is the only signatory to the said agreement over Magaroto Light House and they were the recipients of royalties the subject of ownership.
12. He added the Local Land Court refused to exercise its jurisdiction on the grounds that it failed to properly consider that there was no evidence that the state process of acquisition of the land prior to the determination of ownership and therefore the Local Land Court exceeded its jurisdiction again, and reheard the matter exempt the decision.
13. He also argued that John Gideon is the Clerk of Court of Kimbe District Court and therefore the decision read on the Tuesday 28th of June 2016 was confirmed twice in English and in pidgin that Magarugaru Clan is the principal customary land owner of the portion of land where Magaroto Light House is on, The Kuruzekuvungu clan are intruders who thwarted the decision to the ownership of the land the subject of the dispute as per the printed decision dated 28th of June 2016 as a bias information.
14. He further argued the first and second respondents be considered null and void and of no effect as he is a persona non grata living and enjoying the benefits of their land without appreciation and this court to ensure justice prevail.
15. He argued after the court had recognized them as the principal land owners the court did only accord them a user right to the sea. He also made reference and referred the court to paragraph 30 of the Local Land Court decision of the 26th of June 2016 in which the court states;
“Magarugaru Clan is the owner of the whole portion of land passed down from and through Chief Ulevuvu”.
16. Roy Mangae also made reference to paragraphs 25, 27 and 41 of the Local Land Court Decision of the 26th of June 2016 for the court to consider. Paragraph 25 reads;
“This evidence is somewhat difficult to accept. When we considered both evidence from the Magarugaru Clan and the Kuruzekuvungu Clan we find that, the evidence from the Magarugaru Clan was more detailed. Their evidence seems to cover a range of issues”.
Paragraph 27states, “Secondly, all four clans did not dispute that, the Luluai or Chief Ulevuvu was selected from the Magarugaru Clan. This man negotiated with NMSA and permitted and NMSA to build the first light house. Later the light house was removed and relocated to another site”.
Paragraph 41reads; “However, we also considered that, the members of the Magarugaru Clan continued to use the sea and the reef around the light or beacon to fish and continued to do so today”
17. In his concluding remarks he reiterated that his clan is the principal land owner to the said land based on what he had alluded to earlier and that he found that the Record of Proceedings does not come in line with the decision.
18. The Respondent John Gideon in his rebuttal to the first grounds of appeal stated;
a. there was no prove of ownership that Magarugaru Clan were the principal land owners of Magoroto Light House. During the previous Provincial Land Court hearing, His worship Mr. Regget Marum made directions that they (the Magarugaru Clan) have to produce a copy of any agreement made or signed by the Appellant’s grandfather the Luluai, Ulevuvu, but during the Local Land Court hearing he failed to produce a copy of the purported agreement.
b. Respondent John Gideon added that he denied the 01st Appellant’s claim that they are the recipients of royalty payments. He further claimed that there was only one payment to the sum of K2, 010.00 in around 2006 purposely for the village community and he claims the 01st Appellant and they forced themselves to collect the payment. And when he reported the matter to the police, they instructed them to repay that money in which they did but not fully repaid as per the attached BSP deposit butt dated 03rd of November 2006 for the sum of K1050.00 to Account no # 1001224922 under account name Magaroto Community Committee.
c. Respondent John Gideon therefore submitted that their grounds of appeal is misleading and it should be dismissed.
19. Respondent John Gideon’s rebuttal to the Appellant’s second grounds of Appeal stated;
a. In around the month of April 2016 in Court No. 04 the presiding magistrate mention the case in the presence of all parties. Her worship knew very well that this could be a possible ground for appeal if she presides over the matter, therefore she asked openly and said; “Because John Gideon is the Clerk of Court in this Court house and a party to this proceeding and if I continue to hear the matter is it and issue to any of you?”
b. Mr. Blaise Dau of the Kikilei Clan now Appellant stood up and said in English; “Your worship it’s not an issue to us Kikilei Clan, we want this case to finalize quickly”.
c. Then Roy Mangae of the Magarugaru Clan now Appellant did likewise he stood up in court and replied in pidgin and said, “Mipela laik yu harim kwik”
d. Then Anastasia Ino of Tsinedavui also stood up in court and said in pidgin, “Mipela laik bai yu harim kwik”.
e. Mr. John Gideon added and with the consent of the Appellants for Her worship Tivese to hear the matter, she adjourned the matter to the 23rd of May 2016, where they travelled to Bali Island and proceeded with the Land Court hearing.
f. Therefore John Gideon submits that this ground of appeal should be dismissed as the court they consented for Her worship Ms. Tivese to proceed to hear the matter.
20. Finally Mr. John Gideon’s rebuttal to the Appellants’ third ground of appeal states;
a. He strongly believed that justice has prevailed in the Local Land Court with this order being appealed against the presiding magistrate has complied with the Land Dispute Settlement Act and conducted its hearing and also conducted to land inspection prior to handing down its decision.
b. And this matter has two (2) Court Orders which were in his favour where two (2) appeals were filed against him and must not be allowed to continue as they are only abusing the process of the Land Court, and also delaying the Land Owners from getting their compensation payment
c. John Gideon reiterated with the above responses and on behalf of his Kuruzekuvungu Clan sought orders that this entire appeal should be dismissed and the appellants meet the Respondents costs.
Deliberations and Findings
21. Firstly I will deal with Appellant’s second ground of appeal in which he alleges that the Local Land Court conducted its hearing in a manner contrary to natural justice on the basis the Learned Magistrate erred by allowing herself to preside as the Local Land Court Magistrate and also in her capacity as the Senior Provincial Magistrate of the Kimbe District Court when the First Respondent, John Gideon is the Clerk of the Kimbe District Court and therefore the presumption of bias exists when the decision was made in the First Respondent’s favour.
22. Now based on the evidence before me I am satisfied the Local Land Court despite the fact it does not follow strict rules of evidence it must at all times observed the principles of natural justice.
23. Now basically natural justice is about fairness and being accorded the right to be heard or call evidence through witnesses or documentary evidence if any. The parties to the dispute must be accorded the opportunity to be heard including their witnesses. It is a Constitutional requirement pursuant to Section 59 of the Constitution of Papua New Guinea in that the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.
24. His Honor Wilson J. in the matter Gaigo on behalf of Laurina Clan & Ors v. The State [1979] PNGLR 202, in that any discussion of what is meant by natural justice in the context of the conduct of a judicial hearing is not merely some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
21. In the matter before me I am satisfied the presiding magistrate due to the fact John Gideon the spokesman of the Kuruzekuvungu Clan is an employee of the court and Her worship as the Senior Provincial Magistrate in Kimbe; and in order to erase any suspicion of bias, feeling of uneasiness and uncertainty in the minds of all the parties out of her own initiative did in about April 2016 during its call over and pretrial conference with the parties including the Appellants did pose to the parties if they have any issue with her presiding over their dispute.
22. The evidence before me indicates that the Appellants, Roy Mangae, Blaise Dau and Anastasia Ino who are all spokespersons representing their respective clans were all present in court and consented to Her Worship Tivese and the two Land Mediators to preside over their dispute. They openly expressed in open court that it was not an issue to them and that they wanted the matter to be dealt with quickly.
23. I am of the view their consent demonstrated that they were comfortable with Her Worship Tivese presiding over their dispute and it was also an indication they were ready to accept the end result of the proceeding.
24. Appellant Roy Mangae despite raising the above as his second grounds of appeal failed to substantiate his claim and he also failed to attest the rebuttal by Respondent John Gideon given the opportunity in cross- examination during the hearing of this appeal.
25. In addition I also find from the recordings of the Local Land Court, it acted fairly and gave every opportunity to all the parties to call evidence through their respective spokespersons and witnesses. The Local Land Court also conducted two inspections over the disputed land. The Local Land Court accorded every party the opportunity by presiding on their dispute in their locality on Bali Island giving them the comfort to express themselves as opposed to a normal court room environment.
26. I therefore conclude that all the parties were accorded the right to be heard including their witnesses and that they consented to Her Worship Tivese to preside over their dispute and as demonstrated by their actions they were prepared to accept the consequences of their decision. I am also satisfied there was no breach of Section 59 of the Constitution or natural justice by the Local Land Court. I therefore ruled that the second ground of appeal must fail. The second ground of appeal is dismissed.
27. Now prior to dealing with the first ground of appeal I wish to restate the finding of facts by the Local Land Court on the 28th of June 2016. Basically the issue that came before the Local Land Court was to determine ownership of the portion of land where the Magaroto Light House is located offshore of Bali Island. The sketch map tendered as evidence indicates the Light House is located offshore and not on the main Bali Island and the issue is over the second location and evidence shows the light house was moved from a previous location to the current location. Secondly the determination of customary ownership of Magaroto will then enable the owners to receive royalties for the use of their land by the National Maritime Safety Authority or NMSA.
28. The evidence from the Local Land Court proceedings shows the land the subject of the dispute was original owned by the Magarugaru Clan in which Roy Mangae is a descendant of Chief Ulevuvu of the Magarugaru Clan.
29. I find from the evidence all the land was owned by Magarugaru Clan until Baliki a descendant of Respondents John Gideon and Raphael Gegelio arrived on Bali Island from Vitu Island. It appears from the evidence Chief Ulevuvu of the Magarugaru Clan then be-friend and accepted Baliki and made him his fisherman. He not only made him his fisherman but he also settled him on a portion of land inside the disputed area and he also gave him a woman to get married to. I understood out of this marriage by Baliki to the Bali woman namely Tevulai; Baliki then established his own Kuruzekuvungu clan and descendants as in the case of John Gideon and Raphael Gegelio including their other relatives.
30. I note what Chief Ulevuvu did to Baliki was done out of good will and without conditions. He did it basically on humanitarian grounds due to Baliki’s immediate need at that time. I also note and accept the fact Chiefs during their time were law unto themselves; meaning any decisions or instructions they give is final based on their own judgment and authority.
31. Thus the decision by Chief Ulevuvu then gave the opportunity to the Kuruzekuvungu Clan to establish themselves by cultivating the land and planted plantations of coconuts and cocoa. The members of the Kuruzekuvungu clan then intermarry into the other clans on Bali Island such as the Kikilei clan, Magarugaru Clan and Tsinedavui Clan. The evidence shows the Kuruzekuvungu clan have resided and occupied the disputed land without objection from the time of Chief Ulevuvu and prior to the dispute. They have lived as Bali Islanders and have accounted themselves as Bali Islanders for over 50 years.
32. Unfortunately it is not the duty of the court to explore and do a post-mortem into how and why Chief Ulevuvu had given land to Baliki in the first instant or when should the land be return to its owners. I am of the view what Chief Ulevuvu did was out of goodwill and he showed a genuine concern for his new found friend, Baliki. I am also of the view it would be unjust to the Kuruzekuvungu Clan should the court decide otherwise.
33. I therefore find no error in the Local Land Court applying Section 67 of the Land Dispute Settlement Act adopting the principle of adverse possession to award ownership of Magaroto Light House Land to the Kuruzekuvungu Clan.
34. Section 67 of the Land Dispute Settlement Act which allows for certain presumption as to the vesting of interests. Section 67 stipulates;
(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 the presumption that that interest is vested in the first- mentioned party.
(2) Where a presumption is set up under Section (1), it maybe rebutted only by evidence leading to clear proof that the interest is vested in some other person.
35. Amet J as he was then sitting as Special Lands Titles Commissioner in the Hides Gas Project Land case in which he said it is not sufficient to rely upon genealogical ancestral history;
“If that oral history traces the origin of a particular tribe or people or tribe back thousands of years or hundreds of years without taking into account many other factors since that time to the time of the dispute it would make determination of ownership of land totally meaningless if there had been numerous other intervening factors between the origin of that group of people to what the present circumstances are. It is important to state what other factors ought to be taken into account in a changing developing nation and land tenure system such as is happening in our country at this time”
36. Now reading into His Honor’s view is in line with the intentions and spirit of Section 67 (1) of the Land Dispute Settlement Act; each competing parties’ interests must be given careful consideration from their respective present circumstances to their past circumstances.
37. I also adopted the view by Woods J, in the matter Re Application of Ambra Nii and others (N1007) 1991 which states;
“The reality would be that if you go back long enough in oral history and ancestral genealogy you would find that many clans may have sat on the ground but it would be impractical to say that such occupation or passage over land at some time in the distant past by an ancestor gives a person some claim on the land today. The Land Dispute Settlement Act lays down that such vague past connection is not relevant and current incumbency is, according to its twelve years presumption”.
38. I am of the view the Local Land Court has given careful consideration to the competing parties’ interest from their respective present circumstances to their past circumstances in its decision of the 28th of June 2016. That is basically why the Local Land Court opted to allow the Magarugaru Clan to continue to enjoy its user rights to the use of the sea and reef around the light house for fishing and for other related purposes.
39. Now despite the declaration of ownership of the land to the Kuruzekuvungu Clan by the Local Land Court and with the view that the light house is not located on land but in the sea. Unless the Light House was located on the mainland the Kuruzekuvungu Clan would have attain exclusive rights over it. I am of the view the Magarugaru Clan have continued to use the sea for fishing and maybe harvesting of other sea food since the time of their Chief Ulevuvu up till the dispute arose in 2006.
40. I am of the view the court should give prominence to the generosity of Chief Ulevuvu on behalf of his Magarugaru Clan and that recognition should also be accorded by Respondents John Gideon and Raphael Gegelio on behalf of their clan through the sharing of monetary benefits from the lease of their land by National Maritime Safety Authority with the Magarugaru Clan; rather than dwell on user rights status over generations from here on.
41. I therefore affirmed the customary ownership of Magaroto Light House to the Kuruzekuvungu Clan and upheld the first ground of appeal in part and I invoked my powers under Section 59 (1) (b) (i) of the Land Dispute Settlement Act which stipulates;
“(1) In determining an appeal under this Division, a Provincial Land Court may-
(a) affirm the order; or
(b) quash the order and–
(i) make such other order as, in the opinion of the Court, will dispose of the appeal and the dispute; or
(ii)...
(2) ....
42. Therefore in all fairness I am the view and in conclusion the Magarugaru Clan are also entitled to a fair distribution to the proceeds of the lease of the reef on which the Magaroto Light House is situated on Bali Island. Any award by the court to the Magarugaru Clan should be seen and accepted by the Kuruzekuvungu Clan including the community on Bali Island as a token of appreciation to late Chief Ulevuvu and his surviving clansmen under the leadership of Roy Mangae.
Orders
I enter the following orders;
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