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Naime v Sariman [2006] PGLLC 2; DC555 (11 December 2006)

DC555

PAPUA NEW GUINEA
[IN THE LOCAL LAND COURT OF JUSTICE]

LLC 16 OF 2005

BETWEEN

VINCENT UME NAIME
COMPLAINANT

AND

DOUGLAS SARIMAN
DEFENDANT

Port Moresby: Bingtau, LLM, Paul Aika, LM, Ovia Bue, LM.
2006: 13 February, 14 March, 4 June, 5, 6 & 14 July,
28, 29, August, 10 October, 3 November & 11 December

Local Land Court – Practice and Procedure,
Customary Land Mediation, Local Land Court Hearing, Land Inspection - Whether one of the parties have proved customary interest in the disputed land,
Decision by majority vote.

Facts

This is a customary land dispute that arose between the Complainant and the Defendant over the Akuani/Ibubaga customary land of Keveona Village in the Gabadi area of Kairuku District, Central Province. The dispute commenced when the Defendant entered into an agreement with the Demetra Limited, a logging company and harvested logs from the said two portions of customary land.

Held

1. That the customary ownership of the Akuani and Ibubaga land is awarded to Mr Vincent Ume Naime of the Navaraega Clan.

2. That Mrs Arua Naime and her children only hold user right interest in the said Ibubaga and Akuani customary land therefore are subject to the control and permission of the landowner, Mr Vincent Ume Naime.

Appearances

Mr Vincent Ume Naime, in person
Mr Douglas Sariman, in person

JUDGEMENT

11 December 2006

Bingtau, LLM, Aika Paul, LM, Bue, LM

The Complainant commenced this Local Land Court proceeding by registering a customary land dispute over the Akuani and Ibubaga customary lands against the Defendant, the son of his blood first born sister, Arua Naime. Two Land Mediators were appointed to do mediation between the two parties under s 17 of the Land Disputes Settlement Act, however, the mediation failed without any agreement being reached. Therefore the dispute was referred to the Local Land Court for hearing under s 31 of the Land Disputes Settlement Act. The Local Land Court composed of one Land Court Magistrate and two Ad Hoc Land Mediators commenced hearing under s 23 of the Land Disputes Settlement Act than inspected the disputed lands with the disputing parties under s 36 of the Land Disputes Settlement Act. This is the judgment of the decision handed down by the Local Land Court under s23(3) of the Land Disputes Settlement Act.

Facts

2. The relevant facts as found by the Court is that this is a customary land disputed over lands known as Akuani and Ibubaga located at Keveona Village in the Gabadi area of the Kairuku District The dispute was between Complainant and the Defendant who is the son of the blood first-born sister of the Complainant. The Complainant being the only son of their father, Naime Mairi and owner and controller of the said two portions of customary land was not consulted before the Defendant and his mother, Arua Naime of their Gubana Badina Land Group Incorporated entered into a logging agreement with a firm namely Demetra Ltd and harvested five hundred cubic metres of round logs against the objection and agreement from the Complainant. The said logging firm paid K10,000.00 for the logs harvested as royalty payment.

3. The Defendant’s mother, Arua Naime being the first born daughter of Naime Mairi, the Complainant’s father, under the Gabadi custom does not own and control the disputed Akuani and Ibubaga customary land. The ownership and controlling rights of the said customary lands are vested in the Complainant who is the male descendant of their father. However, Arua Naime and her children only have user right in the said two disputed land under the ownership and controller of the Complainant, Vincent Ume Naime.

Issue

4. The only issue posed by this case is whether any of the disputing parties have proven customary interest in the disputed Akuani and Ibubaga customary lands?

Assessment of Evidence

5. The Local Land Court conducted the hearing by observing s 35 of the Land Disputes and Settlement Act. The said section provides that:

"35. Practice and Procedure of Local Land Courts.

(1) A Local Land Court:-

(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 parties to call and examine such witnesses as it thinks fit, and

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

(d) subject to s 40, shall endeavor to do substantial justice between all persons interested in accordance with this Act and any relevant custom.

(2) Where a Local Land Court informs itself of any questions in accordance with subsection (1)(c), it shall:-

(a) make the information available to the parties, and

(b) call for and hear arguments on the information.

(3) Notwithstanding subsections (1) and (2) where a Local Land Court proceeds to hear and determine a dispute under s 29(1)(a)(ii) it is bound, as far as practicable, by the same rules of Law, evidence, practice and procedure as those by which the village court or Local Court having jurisdiction in the matter would be bound."

In order to determine the only issue posed by this case the evidence adduced from the parties and their witnesses were assessed in the light of s 68 and 69 of the Land Disputes Settlement Act. Section 68 provides that:-

"68. Determination of custom.

(1) Subject to this Section, in all matters before a Provincial Land Court or a Local Land Court shall determine, on the evidence before it, the relevant customs of any group appearing or represented before it.

(2) In applying custom the court shall have regard to any guidelines laid down in the regulations, and may modify custom to give effect to the guidelines.

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

(4) The power to make rules conferred on a Local Government Council by the making of rules declaring what is to be taken to be the custom relating to any matter, and such a rule is evidence in any Provincial Land Court or Local Land Court of the matter set out in the rule." and

"69. General Law to be applied.

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

Evidence

6. The sworn evidence from the Complainant were from himself and witnesses, Mr Naime Ume No. 2 and Mr Liven Ure Naime. Witness, Mr Gaudi Bugo failed to turn up therefore Complainant did not call him to give evidence. The sworn evidence from the Defendant were from Mrs Arua Naime and Mr Joseph Haraima. Witnesses, Mr Naime Ovia and Mrs Maureen Sariman were unable to come to court to give evidence due to old age however, the court accepted their affidavit as evidence for the Defendant under s35(1)(a)(b) and s 69 of the Land Disputes Settlement Act. All the witnesses who gave evidence were tested by cross-examination.

7. Although many things were presented by the oral and documentary evidence from all the witnesses, the court assessed and summarized the relevant facts as follows:-

1. From the Complainant and his three (3) witnesses’ evidence the court found that Mr Vincent Ume Naime is the fifth born in their family but he is the only son of the customary landowner of the disputed Akuani and Ibubaga lands, the late Mr Naime Mairi of Navaraega Clan of Keveona Village, Gabadi area of Kairuku District, Central Province. Mrs Arua Naime is the Complainant’s blood sister and she is the third born in the family. The first, second and fourth born daughters of the family have all died except for the Complainant and Mrs Arua Naime who still survive. The Defendant, Mr Douglas Sariman is Mrs Arua Naime’s son.

In accordance with the Gabadi custom relating to customary land use and ownership rights, the male or son of a family inherits all properties including land and not the female or daughter even though the daughter may be first born. Therefore the Complainant submitted, the disputed Ibubaga and Akuani lands are customary owned by him after the death of their father, the late Naime Mairi and not his sister, Mrs Arua Naime and her children.

The Complainant denies his sister, Mrs Arua Naime’s evidence that their father the late Naime Mairi had given her the Gabuna Badina customary land which includes the disputed portions of the Ibubaga and Akuani customary lands through a Will he signed in the presence of the Assistant District Officer for Kairuku District at Bereina in 1963, when he was small and still attending school.

Further, the Defendant and his mother, Mrs. Arua Naime and the other members of their family do not have any customary right to engage any developer or company to do anything in the disputed Akuani and Ibubaga lands unless authorized by the Complainant. The Complainant had not authorize the Defendant and their Gabuna Badina Land Group Incorporated to engage the Demetra Ltd Logging Company to harvest logs from the Akuani and Ibubaga customary lands. Therefore he registered the dispute against the Defendant for the court to determine who was the customary landowner.

2. From the Defendant’s four witnesses’ evidence, the court found that Mr Vincent Ume Naime and Mrs Arua Naime are the only surviving children of the customary landowner of the disputed Ibubaga and Akuani customary lands, the late Mr Naime Mairi, the paramount Chief of the Navaraega Clan of Keveona Village of the Gabadi area, Kairuku District, Central Province. The said two disputed portions of land are part of the Gabuna Badina customary lands that the land owner and chief, the said late Naime Mairi gave to Mrs Arua Naime, his first born daughter in 1963 by signing a Will.

The said Will was prepared by the Kairuku District Assistant District Officer (A.D.O) sometime in 1963 and filled out by Maureen Sariman on behalf of the late Naime Mairi who signed it by appointing Mrs Arua Naime to be the rightful inheritor and heir to his customary lands known as Gabuna Badina. The boundary of the Gabuna Badina land starts from Naibuba to Bosiro towards the sea side. Then from Naibuba right up to Bavarabadina or the Aroa riverside. The disputed Ibubaga and Akuani lands are within the boundary of the Gubuna Badina customary lands. The signing of the said Will was witnessed by four persons namely, Mr Vaea Naime for the Nara Clan, Mr Sai Ovia of Doura Clan, Mr Naime Ovia of the Keveonagana clan and Mr Rauka Ovia of Maobadi Clan. Three witnesses of the said Will are all dead except for Mr Naime Ovia who had been the Village Councillor at that time. Unfortunately, Mrs Arua Naime could not produce the said Will to the court as part of her documentary evidence, because it was lost through the Lands Officer in 1974 when she left it with the officer to photocopy it however, the next day she was told it had been misplaced or lost.

Finally from the above relevant facts the court analyzed and found that Complainant Vincent Ume Naime and the Defendant, Douglas Sariman’s mother, Mrs Arua Naime are blood brother and sister, the children of the Navaraega Clan, Paramount Chief the late Mr Naime Mairi who is the customary owner of the disputed Ibubaga and Akuani customary land. While Mr Vincent Ume Naime was still small, his father permitted his older sister, Mrs Arua Naime and her husband Gerard Sariman to live on the land. Mrs Arua Naime and her husband Gerard Sariman lived permanently on the land, bore children including the Defendant and raised them on the land.

8. The Defendant following the direction from his mother, Arua Naime registered the Gubuna Badina Land Group Incorporated, then entered into a logging agreement with the Demetra Ltd Logging Company and harvested logs from the disputed lands against the protest and objection from his uncle, Mr Vincent Ume Naime. The dispute is really between the Complainant and his sister.

9. Mr Vincent Ume Naime claims ownership of the disputed lands through the Gabadi custom of land inheritance through the male or son of a family and his sister Mrs Arua Naime claims ownership through a purported Will signed by their father the late Naime Mairi authorizing her to own the Gubuna Badina customary lands including the two disputed portions of lands in 1963. The court in considering the two conflicting proportions decided to accept the claim from Mr. Vicent Ume Naime than his sister Mrs Arua Naime on the basis that first the said Will was not tendered to court as evidence. Though excuse was given that, the Lands Officer misplaced it or lost it, in 1974, the court does not believe it because a Will is a very important document and Arua Naime should have photocopied it herself and kept the original and just give photocopy to the Lands Officer, therefore the excuse is not accepted by the court. Alternatively, even if the said Will was tendered to the court, the court would still reject it on the basis that it was made contrary to the Nara Gabadi custom on land inheritance and denying the right of Mr Vincent Ume Naime to object due to him being still young and not informed of what was going on in those times between his father and his older sister.

10. Secondly, Mr Vincent Ume Naime’s proposition is accepted on the basis that there is evidence, that customary land ownership rights in Gabadi custom is inherited through the male or son child and it was confirmed by the two Assessors, Mr Paul Aika and Mr Ovia Bue that it was true that the said custom was practiced by the Nara-Gabadi people where the two disputing parties came from. Although Mrs Arua Naime tried to contradict that proposition by asking one of Mr Vincent Ume Naime’s witnesses namely Mr Naime Ume No. Two (2) in cross-examination of his evidence in question number three (3) by asking him whether his older sister Koroko was bestowed chieftainship rather than himself, he had replied that it is true Koroko was made chief while he was still young and in school but when he returned home, his sister transferred the status to him and so he is now the chief. Furthermore, Arua Naime had not shown any evidence that she was bestowed the chieftainship by her father the late Naime Mairi because he was the paramount chief of the Navaraega Clan. Therefore the court had accepted Mr Vincent Ume Naime’s proposition rather than Mrs Arua Naime’s.

Conclusion

11. Therefore all the reasons given above, under s23(3) of the Land Dispute Settlement Act, the court by the majority vote of two Ad Hoc Land Mediators, decided that the customary land ownership interest in the disputed Ibubaga and Akuani customary land be awarded to Mr. Vincent Naime of Navaraega Clan.

12. However, Mrs Arua Naime and her children only hold user right interest in the said disputed land therefore are subject to the control and permission from the landowner, Mr Vincent Ume Naime.

Court orders accordingly.

Mr Vincent Ume Naime, in person
Mr Douglas Sariman, in person