Abiera Clan, In re [2020] PGLLC 2; DC4090 (30 January 2020)

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In the Matter of Referral by the Lands Commissioner of Settlement Payment Claims to being Conflictory and Inconsistent as to the Various Claims s well as to the number of the Original Former Customary Land Owner Clan Groups’ Settlement Claims and for Hearing and Determination as if it were a Dispute as to interests in Customary Land Ownership under the provisions of the Land Disputes Settlement Act, 1975

In the Matter of Settlement Payment Claims by several interested Former Customary Land Owner Clan Groups of the Aiyura Valley for and over Portions 200 & 201 (SIL Land)

In the matter of Applications for Inclusion in the Settlement Payment Claims for the Subject (SIL Land) Portions 200 & 201

Land Disputes Settlement Act, 1975 (LDSA); - Referral for Settlement Payment Claims for being Conflictory and Inconsistent as to the original former Customary Land Ownership by several interested Clan Groups over SIL Land, (Portions 200 and 201) – referral to be dealt with under the Dispute Settlement mechanisms & provisions of the LDSA as if it were a Dispute as to interests in Customary Land Ownership -

National Land Registration Act, 1977– Commissioner’s referral of former customary owners’ Settlement Payment Claims for being Conflictory and Inconsistent - such for Hearing and Determination by the Local Land Court under the provisions of the Land Dispute Settlement Act, 1975 –

C Inkisopo: This matter is a referral from a National Lands Commission hearing presided over by a Lands Commissioner looking into the matter of Settlement Payment Claims lodged in by several purported former original Customary Land Owner Clan Groups of what we now know as the Ukarumpa SIL Land; more specifically described as Portions 200 and 201, Summer Institute of Linguistics (SIL) Land, Milinch Okapa, Formil Markham, Kainantu District, Eastern Highlands Province.

2: The Lands Commissioner looking into the Claims for Settlement Payments under s 39 of the National Land Registration Act, 1977(1977 (the 1977 Act) noted in his wisdom to being more than one Claim and observed the said claims to being conflictory and inconsistent with such not having been amended or removed, as several Claimant Clan Groups from the Aiyura Valley have each individually staked separate individual claims and pressing them; such conflicts and inconsistencies being unavoidable for as long as the several parties are sticking to their guns and adamant with their respective individualized claims and interests in the subject SIL Land (Portions 200 and 201).

3: Against that backdrop, it became conspicuously clear and obvious to the Commissioner dealing with the claims that he couldn’t go further as the circumstances envisaged by s 43 of the1977 Act had arisen and for him then to take the next step lawfully open to him under the law; s 43(1) of the 1977 Act. Hence this referral under s 43 (1) of the 1977 Act which is couched in these terms;

“Where more than one claim is made under s 39 in respect of any land and the claims are conflictory and inconsistent, then unless the claims are amended or remove the conflict or inconsistency, the Commission shall;

5: The cause or reason why and how the Lands Commissioner perceived the SIL Land Settlement Payment Claims to being Conflictory and Inconsistent would most likely have been due to the fact that several named Claimant Clan Groups have staked separate individualized claims as opposed to joinders by way of applications under the relevant Joinder provisions provided for and envisaged under and by s 42 of the 1977 Act; thereby creating the subject conflictory and inconsistency situation to arise and exist by virtue of the several various Settlement Payment Claims lodged by each of the several Claimant Clan Groups.

6: It would seem from what transpired so far; that initially it seemed that only one Claimant Group may have been acting alone and became prominent and lodged a single Claim under s 39 of the 1977 Act; but sooner or later, it seems, several others flooded in and lodged concurrent claims separately staking each of their own separate claims independently as opposed to Joinder Applications as envisaged and provided for under s 42 of the 1977 Act. As each of the nine (9) separate Claimant Clan Groups are staking separate individualized claims and sticking by them thereby giving rise to these situations of conflictory or inconsistent claims to come about which were simply unavoidable unless of course they are amended or removed and so cannot therefore be consistent; thus furnishing the basis for the Commissioner to find the various Claims to being conflictory and inconsistent; hence the referral!

7: Because of this perception, the Commissioner referred these various Settlement Payment Claims and the Claimants to this Court to be dealt with as if they were disputes as to ownership interests in customary land. We take this referral to be requiring us as a duly convened body of competence; the Local Land Court; to deal with the various Claimants’ settlement Claims including their various respective claims, their locus standi (or legal standings) as well as their supporting evidence and reach an outcome that we h ope will assist the Commissioner complete his part of the process of the SIL Land Settlement Payment Claims to the former customary owners of Portions 200 and 201 (SIL Land).

8: There are nine (9) separate purported former Customary Land Owner Clan Groups to deal with in this referral that this Court will endeavour to hear, receive evidence and ultimately make determinations based on the evidentiary materials the Claimants will each have presented before this Court.

9: It should be made absolutely clear that; unlike most customary Land ownership dispute cases, this matter is not so much a customary land ownership dispute in its strict sense where one of the disputing parties most often than not is declared the owner and awarded the ownership rights to the subject disputed land to the exclusion of all others. Rather, the subject (SIL Land) Portions 200 and 201 in our present case is State land through and through; purchased by the Colonial Administration during the pre-Independence era at lesser values and subsequently later declared (State) National Land through notice published in the National Gazette No G42 of 25^th April, 1991. Recognising the fact that - in contemporary PNG communities, pre- Independence customary land acquisitions by compulsory acquisitions and/or purchased at very meagre prices with former customary owners with their posterity and descendants raising concerns and resentments all around the Country with actual violence and destructions threatened or actual violence and destructions exerted or exacted on and to established institutions of State and developments thereby presenting enormous problems for the State; the State in its own wisdom realizing and acknowledging this fact enacted and passed the National Land Registration Act of 1977 to provide for and settle grievances by the original former customary land owners affected by such pre-independence and other compulsory acquisitions of customary owned lands by the State.

10: The Commissioner’s referral in our humble view gives a meaningful effect to that which the Preamble to the National Land Registration Act, 1977 envisages and provides for – as in our instant case -by way of making allowances for considerations of Settlement Payment Claims to posterity and/or descendants of the ancestors in our instant case who sold the SIL Land (Portions 200 & 201) to the then pre Independence Colonial Administration.

11: After the Commissioner’s referral Order on Form 5 of 3^rd August, 2018, this Court took it upon itself and commenced its Sittings at Kainantu on 6^th March, 2019 (during the course of this Court’s Chairman Mr Cosmos Inkisopo’s District Court Grade 5 Court Circuit to Kainantu) to also deal with this referral).

12: Before taking further steps to progressing the hearing of this referral, the Chairman foresaw a potential conflict of interest arising in dealing with this referral as a Local Land Court hearing; considering his position as the Senior Provincial Magistrate for the Eastern Highlands Province and also being the Chairman of the Provincial Land Court (PLC)to deal with Appeals from the decisions and determinations of land issues by the Local Land Court for the Province which scenario was fully and clearly explained to the parties in open Court. The feedback from all the Parties involved was unanimous; the Parties through their spokespersons each were all unanimous in preferring Mr Inkisopo to continue to Chair this Local Land Court Hearing in his primary role as another District Court Magistrate and to deal with this referral matter sitting as a Local Land Court. And for potential appeals, all of the Parties were unanimous on the point that potential Appellants can wait for another PLC Magistrate.

13: Our referral is where the Lands Commissioner noted the various Claimants for the Settlement Payment Claims for the SIL Lands Portions 200 and 201 to being conflictory and inconsistent; so an Order was issued for the Local Land Court hearing to be convened to inquire into the various claims by the Parties and make determinations and transmit the same to the Commissioner for his purposes as to him deemed appropriate in the circumstance under the relevant provisions of the 1977 Act.

14: The Abiera Clan is the first in alphabetical order as being one of the named Settlement Payment Claimants which is on record as having have staked its Claim. When this Court commenced dealing with this matter initially commencing at Kainantu, Abiera Clan was represented in Court by Mr Heni Amata Babonao. After the matter went through several mentions and preliminary hearings both at Kainantu and Goroka when the several named Claimants were heard of their respective case presentations and when final Submissions were called for, Abiera Clan duly filed its Submissions which is now before the Court.

15: The evidence presented for the Abiera Clan backed with its Final Submissions filed dated 12^th July, 2019 show the following;-

16: In its Submissions, Abiera Clan laments that the State in dealing with the SIL Land (Portions 200 and 201) has set a concrete precedent in paying K6.104m to another Claimant Clan group Tonkera Land Owners Association and that the State is bound by and committed to the precedent it has already set by itself . Abiera Clan says that the State in paying K6.104m to a customary Land Owner Clan Group that has only five (5) signatures is something that the State will have to come to terms with, accept responsibility and apply the same formulae to Abiera Clan’s Settlement Payment Claim.

17: Abiera Clan argues and submits that if Tonkera Land Owners Association which has to its name in the 1950 Vendor’s listing only five (5) names and being paid K6. 104m is a precedent the State has already set for itself and is bound by and committed to it! Whilst the Abiera Clan on the 1950s listing has ten (10) names and signatures, the rate should be upped; and accordingly Abiera Clan submits to be paid K9.98m which it arrives at by the under mentioned method of its own calculations based on the precedent so set by the State.

18: The Abiera Spokesman Mr Heni Amata Babonao argues and submits strongly that he has the rights to receive JUST PAYMENTS for and on behalf of his Abiera Clan in the same manner of calculations applied for Tonkera Land Owners Association that received K6.104m. The Abiera Clan Spokesman takes swipe at the Chief Executive Officer of the Department of Lands and his officials and lawyers and executives who would have been fully aware of the Department protocols, processes and policies to safeguard the interests of the Department and the State; but they saw it fitting to make the K6.104m payment to a group that has only five (5) signatures in the 1950s record; and this is a precedent already set and fixed so the State is bound by and committed to the precedent it has already set through its Department of Lands and Physical Planning; so it is so bound by and committed to it.

The Abiera Clan therefore submits that: We expect as our Just Payment K10m

19: Mr Freddy Orami, the lead Spokesman for the Aiyura Village as one of the Claimants duly filed his bound volume Affidavit evidence dated 11^th July followed by his final Submissions filed dated 12^th July, 2019. In his Affidavit, Freddy Orami annexed inter alia the original copy of the 1950 Land Transfer Document (LTD) dated 30^th October 1950 as Annexure “B”.

20: In it, whilst acknowledging that the majority of the other Claimants have names and signatures as vendors showing on the 1950 Land Transfer Document, he said none of them then existed or do exist in the Aiyura Valley except his. He also pointed to other evidence to show that his was the sole customary owner of SIL Land Portions 200 and 201. He therefore argued and also pointed out two (2) perceived errors in the 1950 Land Transfer Document as being errors that he submits for this Court to correct and set the records right!

21: He points out as being errors the following that show on the 1950 Land Transfer Document;-

22: Mr Orami strongly submits for this Court to correct these errors but does not tell us how and where to correct;-

23: Mr Orami in his submission on behalf of his Aiyura Village is saying not only the 1950s Land Transfer document should be the evidence alone to help establish his Aiyura Village to being the only Claimant out of the Aiyura Valley but by references to his other physical placements and evidence of his Village’s location and proximity to the SIL perimeter fence line; thus lending more weight to his case as Aiyura Village being the only one out of the valley as opposed to the others who are situated far out of the Valley.

As we understand Mr Orami, he is not attempting to exclude the other Claimants but acknowledges the genuineness of the other Claimants whose ancestors were signatories to the 1950 Land Transfer Document and rightly entitled to just payments on just terms. But as we understand him; his claim is for this Court to recognize and declare his Aiyura Village to being the sole principal owner of Portions 200 and 201 SIL Lands and just payments be made accordingly on just terms.

25: He therefore submits that his Aiyura Village is entitled to be paid similar amounts of K6.104m made to the Tonkera Land Owners Association which is a precedent the State has set for itself to which it should be held fully committed.

26: Mr Andy Marobe is the lead spokesperson for his Clan Aviantum. His Clan staked its claim amongst the other Groups claiming as one being entitled to a just compensation on just terms for Portions 200 & 201, SIL Land. Mr Marobe filed an application to be included as a party which should be entitled to receive Settlement Payments for the subject SIL Land. His Application comprises chiefly of documentations made up primarily of letters and documentations from several State Offices and Agencies all consolidated and bound up in a bound volume and filed in Court as his originating process entitled “Application Pursuant to S 43 of the Lands Dispute Settlement Act, 1975”.

27: Noteworthy is that; the Aviantum Clan is not shown as one of the signatories to the 1950 Colonial era Land Transfer Document, but it has through its lead spokesman staked its claim to being considered for just payment as one of the original former customary owners in its own rights over Portions 200 and 201, SIL Land.

28: The full texts of Andy Marobe’s case in entering the fray on behalf of his Aviantum Clan is as follows in what seems principally to being a letter of sort addressed to the Kainantu based Senior Local Land Court Magistrate, Mr Felix Terra dated 17^th March 2019.

“With due respect, I Mr Andy Marobe, the son of Andrew Marobe would like to inform you that on the 28^th day of July, 1992, the SIL Ukarumpa Land Owner Group Chairman Mr Andrew Marobe brought the matter before the National Lands Commission Hearing in Goroka, Eastern Highlands Province headed then by Commissioner Iova S Geita regarding the said 200 hectares of land Portions 200 and 201 UAL 51 declared National Land by Notice in the National Gazette No G42 of April, 1991.

The National Government has already paid only one hundred thousand kina (K100, 000.00) for Portion 201 consisting of 25.7 hectares of land in 1995 while Portion 200 comprises of 174.5 hectares is yet to be settled.

Therefore, in 2012 the Kainantu District Land Mediation Team Leader Mr Ufito Unero and his team went into Mediate the Land between Andrew Marobe and Manis Yanki -vs- Divas Wameneso and Samongke. The Mediation Team found out that the SIL Land rightfully belong to Andrew Marobe of the Aviantum Clan of Aiyura.

Therefore, the Government Agencies in the District and Province have assessed and negotiated with me to lodge in a claim for Portions 200 and 201 for proper compensation once and for all.

2: Application for Settlement Payment No 617/91 declared National Land by National Gazette No G42 of 25^th April, 1991,

3: Commission Hearing by Iova S Geita on Portion 200 and 201 in 1992 documents,

5: A/Deputy Chief Commissioner’s referral over Portion 200 and 201 SIL Land to Kainantu District Land Court,

29: This seems to us to being the basis upon which Mr Andy Marobe and his Aviantum Clan are staking their Claim on for Settlement Payment; purely out and away from the 1950s Land Transfer Document. They went through an independent Land Titles Commission Hearing process and were paid K100, 000.00 only for what they say Portion 201 SIL Land in a Commission award dated 18^th August, 1992.

30: The Aviantum Clan through their lead spokesperson has provided a Submission of their Claim in a text form as follows;-

Aviantum Clan’s Submission: “Therefore, I am pursing my Claim compared to the previous payment made to my father (Andrew Marobe) by the State was very low according to the size of the land. The size of the land was bigger than the payment which was only K100, 000.00. This amount paid was not figured and directed by the Court. The State made the payment at its own interest.

Therefore, I am lodging or pursuing my Claim to the State for proper payment (in) according (ance) to the size of the Land.” (Sic)

31: Pr Paru Tukundo, the lead spokesman for Ba’e Clan had several bound volumes of documents filed before this Court, which are as follows;

3: Affidavit Refraining Thomas Mama’a Kamari from Representing Ba’e Clan, Kamanakera Village filed dated 11/07/2019;

32: Ba’e Clan devoted a good part of its efforts and resources in this matter strenuously addressing its objections to Kamanakera Clan Lead Spokesman Thomas Mama’a from representing the Ba’e Clan of Kamanakera Village. It also devoted its time, resource and effort in raising objection to the Land Commissioner’s referral of this matter to the Kainantu Local Land Court for hearing as if it is a dispute as to interests in customary land ownership to be resolved under the provisions of the Land Disputes Settlement Act, 1975.

33: Ba’e Clan’s both objections were fully heard and the Court delivered a written Ruling on both objections dismissing them both as being baseless and without merit; chiefly running in the face of recorded evidence. Despite these Rulings, Ba’e Clan seemingly premises its Submissions in this proceeding as if Ba’e Clan and Kamanakera Clan are one and the same.

34: The Court Ruling is very clear: Ba’e Clan on the 1950 Land Transfer Document explicitly shows that it is a separate Clan identified of its own; Ba’e Clan stands out on its own as a separate former land owner Vendor Clan and received the land payment accordingly, whilst Kamanakera Clan stands out on its own as separate from Ba’e Clan and received its own payment for the land sold as a completely separate customary land owner Vendor Clan group. Ba’e Clan is seemingly confusing and misconceiving itself in such a pursuit which seems to run contrary to Official written records on the very subject.

35: However, it seems to us that Ba’e Clan’s submission is premised on the basis that Ba’e Clan of Kamanakera Village is the genuine principal land owner Clan and has the most signatures on the 1950 Land Transfer Document receiving the most amount of money; 180 Pounds, bigger than all the rest! By percentage-wise 58%, and it submits that Ba’e Clan of Kamanakera Village is the former sole owner of Portions 200 & 201, SIL Land.

36: The Ba’e Clan of Kamanakera Village further emphatically submits that; whilst acknowledging the other Clans of Abiera, Tairora, Tonkera and Aiyura recorded as having have received payments for the Land back then, Ba’e clan is emphatic and adamant in its Submissions that those other recipient Clans were simply paid for witnessing the event of Ba’e Clan transferring its land to the then Colonial Administration; they were paid not because they were landowners but because of their presence as witnesses to their land transfer transaction with the then Colonial Administration.

37: Because of its majority ownership of the land sold back then, it got the biggest amount of the payment back then; about 58% whilst the others got the lesser percentages. It therefore submits as follows;-

“Ba’e Clan Kamanakera, the principal Land Owner is seeking the following Orders;-

2: Seeking Order that those people’s names and clans and villages must be used,

4: We, Ba’e Clan, Kamanakera seeking Court to use 1950 and using the new rate as the following;-

6: Ba’e Clan Kamanakera seeking following amount for the 5 groups who were paid in 1950. So that we could split the amount according to the percentage our groups received;-

38: This amount will be divided among the 5 clans according to the 1950 payment percentage.

39: We swear that everything we stated is true and correct to the best of our knowledge.

For payment to it of K1, 730,000.00 as just payment on just terms for Portions 200 & 201 SIL Land not for itself alone but to share with the other 1950 co-signatories according to the percentage payment received back then; 1950.

40: Mr Anis Ka’Abu is on record as being the Spokesman for Hapaira Ontavura Clan and is one of the Applicants in this proceeding. However, this Clan nor its representatives have taken any further serious steps to advance and progress its interests when written and oral Submissions were invited from all the interested Parties. Hapaira Ontavura Clan has nothing filed before this Court so there is nothing for Hapaira Ontavura Clan for this Court to deal with.

41: Hapaira Ontavura Clan has no Submission to advance her cause and promote her interests in this proceeding!

41: Mr Thomas Mama’a Kamari is the Spokesperson for Kamanakera Clan. Thomas Mama’a resisted strenuously serious Court attempts by the Ba’e Clan to have Kamanakera Clan subsumed into Ba’e Clan sub-nom Ba’e Clan of Kamanakera Village. Despite Ba’e Clan’s claim and actual Court application to have Kamanakera Clan; so subsumed into it as Ba’e Clan of Kamanakera Village says they are the same and one people which application was refused outright by this Court as being outside and against the weight of available evidentiary written material record? Mr Thomas Mama’a speaking briefly himself and through his appointed agent/consultant Mr Dekoy Obu made the following presentations by way of Submissions:

“Despite attempts by Ba’e Clan to have Kamanakera join it, Kamanakera Clan still stands alone. “Ba’e Clan invited us to go to them to discuss with Vincent Batau who wanted us to fully explain and we did, but half way through my talk, he stopped us not to go further; we accepted that and went back. Our advisor told us that the record still stands. Our advisor advised against changes; not that easy to change records as payments were made already and on record. We did that and for this reason, Kamanakera Clan stands on its own in its own right as one of the original former customary land owner Vendor Clan Group of the SIL Land Portions 200 and 201”.

“He further says; the name Kamanakera is there in the 1950s Land Transfer Document so whatever the State offered Tonkera Clan, Kamanakera Clan should be extended the same courtesy. Every Clan who has names on the 1950 list as being land owners and received their payments back then has a right to receive their just payments on just terms. There is no point in going out one Clan against another Clan. Kamanakera Clan has its rights to receive its just Settlement Payments on just terms”.

42: It will be noted that Kamanakera Clan has on the 1950s Land Transfer Document to its name 23 co-signatories but Kamanakera Clan does not say how much in just payments on just terms should it be paid but generally says it has the right to be paid its just Settlement Payments on just terms.

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43: Mr Mason Abito Bobara is the Lead Spokesperson for the Tairora Clan. This Clan is the lead Clan that set the pace and tempo to get this Local Land Court hearing to commence when it filed formal application for a formal LLC Hearing to convene following the Land Commissioner’s referral. No one of the other Clans knew exactly what to do and how to do it on the Commissioner’s referral until Tairora Clan made the break through and all of the other interested Party Clans clambered and got on the bandwagon.

44: Tairora Clan filed the initial application to get the proceeding rolling by way of an Application under s 31 of the Land Disputes Settlement Act, 1975. It filed supporting Affidavits as well including filing written and oral Submissions when such were called for. Tairora Clan says it is one of the original Land Owner Vendor Clan Groups on the 1950 Land Transfer Document that has to its name 28 signatures; being the single most biggest majority of the several Vendor Clans on the 1950 Land Transfer Document.

45: As the single most majority former landowner Clan Group, it submits that it should be paid as just compensation on just terms or if not the same amount paid to Tonkera Landowners Association of K6.104m.

47: Tairora Clan therefore submits that the State pays the same amount of K6.104m previously paid to Tonkera Landowners Association.

48: Tonkera Landowners Association is Claimant No 8 in this proceeding represented by Mr Ruba Arihu, its lead Spokesperson. They, however took no further part in the proceeding by filing supporting Affidavits and Submissions. Mr Arihu further did not make any oral presentations in Court promoting and protecting his Group’s interests whilst the rest of all the Parties did.

49: Tonkera Landowners Association therefore does not have any evidence or submissions regarding its interests in this proceeding before this Court.

50: However in a bizarre turn of events, I as the Chairman of this Court was surprised and taken aback to find a bound volume of a ‘Submission’ in my pigeonhole entitled:

“Submission for Land Compensation Claim for ‘Ba’e, Lohunka, Kuara’ Land Portion 200 and 201 Summer Institute of Linguistic (SIL) Ukarumpa, Eastern Highlands Province”

51: That particular document was not formally filed with a Court Seal Impression impressed to it and dated; if such was duly filed. The Court considers this act as a serious affront to the Administration of Land Court Justice where interested Parties can short circuit the due processes to have direct access to the Court in such dubious manner. We reject this outright from whatever purpose it was initially there in my pigeonhole in the first place.

52: Sadly so; Tonkera Landowners Association thereby effectively has no formal documentations filed before this Court for this Court to give consideration to on whatever may be the Claim of its interests that Tonkera Landowners Association may or might have pending before this Court.

Tonkera Landowners Association: No Evidence and No Submissions before this Court!

53: Mr Divas Wameneso, the lead Spokesman for Sawam Clan was assisted in Court by one Mr Bosaka Philip. Sawam Clan is unfortunately not one of the former Landowner Clan Groups on the 1950 Land Transfer Document. It has however filed in an Application for inclusion in the Settlement Payment Claims over Portions 200 and 201 SIL Land.

54: Sawam Clan seemingly noting that its name nor those of its ancestors are not on the 1950s Land Transfer Document took it upon itself and presented evidence to argue that they were the true and only principal Customary Landowners of Portions 200 and 201. In their efforts to pressing that claim; Sawam Clan went back on the 1950 Land Transfer Document and started reviewing it and proposing possible changes that they thought should be made to correct errors they say exists to give completely an erroneous picture from what it really should be and look like!

55: For an example, Sawam Clan made its Presentation in its Application filed dated 08^th April 2019, wherein it says; -

“Furthermore, on page three of the 1950 payment document attached states clearly that the officer Gerald William Toogood declared that “I Gerald William Toogood certify that I have enquired of the sole owners of the land described in this document and am certified that the natives whose names are stated hereon are part Owners of the land.”

When SIL moved into Potion (sic) 200 and 201 after the signing of the papers, ONLY Ukarumpa villager’s gardens, pig houses and houses were removed.

“In closing, Gerald William Toogood and Ronald Spencer Carn knew who pulled the chain marking the boundaries and who was the principle land owner (sic) and so he wrote that those that signed were “part owners”

“It is true that the Tairoras signed for the first initial payment of the SIL land in 1950 and Wameneso Yamarefa did not because of circumstances explained above.

“The Tairoras signed, yes. But firstly, if they were the sole landowners, why were they there as WITNESSES during the time when Wameneso pulled the chain with the two officers to mark the land?

“Secondly, why were they standing behind Wameneso along with the other Aiyura’s who came to witness?

“Thirdly, why did they not take lead with the two officers and Wameneso during the pulling of the chain?

“The answer to these questions clearly indicate that they all knew and is indeed a fact that the land belonged to Wameneso Yamarefa and he took the lead without any serious opposition from the Tairora’s or the Aiyura’s.

“When the second payment of K100, 000 was made for the same land, Portion 200 and 201, in 1995, why were the Tairoras and all those that had signed the first initial payment in 1950 come forward to claim their share if they were part owners or the sole land owners? To date until now, I Divas Wameneso did not receive any complaints or arguments from the Tairora’s or any other Aiyuras to claim their share if they were truly claiming to be part owners or sole owners of the land. I also did not make any payments to the Tairoras or other Aiyuras to signify that they were part owners of the land and NO complaints were made.

“The Transfer of Land by a Native to the Administration documents states “The said piece of Land is situated at AIYURA VALLEY in District in the said Territory.”

“Does the name Aiyura come from any Tairora word if indeed the Tairoras own the land? How can Tairoras claim to be land owners of a land name that comes from Gadsup language? The name Aiyura is derived from the Gadsup word ‘Aiyugam’ and it means ‘tok tru’ in Pidgin.

“Also, I would like to point out that the heading of the document that was signed in 1950 does not indeed indicate that it was prepared for a group of people to sign. It very clearly states at the heading, Transfer of Land by a Native (singular) to the Administration. NOT, Transfer of Land by the Natives (plural) to the Administration.

“Furthermore, I would like to point out that the Transfer of Land by a Native to the Administration document is clearly seen on page one that it was written and prepared for a single individual, namely Wameneso because he was the only one that was with the two officers taking lead at the time of the pulling of the chain. All the singular words ‘I’, ‘Me’, and ‘My’ etc. were visibly changed (by crossing out) to plural, ‘We’, ‘Us’ or ‘Ours’ etc. to cater for the many signatures that signed in the absence of Wameneso, the rightful land owner.

“More on, the two officers Gerald William Toogood and Ronald Spencer Carne were native English speakers and English was their first language and they were well versed and equipped to overlook an important heading like this. Thus saying that this document was written and prepared for a single person to sign, Wameneso Yamarefa, which due to the human nature of monetary greed and gain was left out of the initial signing ceremony which led to a group of people who were not even the sole land owners AND someone totally different who did not even originate from the Sawam clan, to sign”.

56: In summary, the Sawan Clan in concluding its presentation does not spell out what it really wants this Court to do by way of its Submission. As we glean from its presentation, we seem to make out that Sawam Clan is seeking to be declared the sole former original customary Land Owner of Portions 200 and 201, SIL Land and presses to be recognized as the sole principal former customary owners of the subject Land.

57: Sawam Clan says it has been paid K100, 000.00 by the State already for the said Portions 200 & 201 SIL Land and none of these other Claimant Parties raised issue of it if they are owners and entitled to it. Swam Clan says that the other Parties’ silence meant that they knew very well that Sawam Clan is the sole principal former customary owners of Portions 200 & 201, SIL Land; so it argues.

Sawan Clan’s Submissions: Not clearly spelt out; but seemingly to being declared the principal sole former customary owners of Portions 200 and 201 (SIL Land).

58: Having have gone through the Parties’ respective presentations three (3) groups of interested Parties emerge in this proceeding;-

(A) Parties in these proceedings that are named and identified as being descendants of ancestors and ancestral Clan Groups whose names and signatures appear and shown on the 1950 Land Transfer Document;

(B)Those Parties whose names and signatures do appear on the 1950 Land Transfer Document BUT demonstrating lack of interest to progress, promote and further their interests in these Proceedings;

(C)Those Parties whose ancestors’ names, signatures and Clan names do not feature in anyway, manner or form in the 1950 Land Transfer Document listing BUT presenting evidence and material to prove, enhance and support their Claims as principal sole original former customary owners of Portions 200 and 201 SIL Land.

59: We consider it more convenient and expeditious to assess the Parties’ respective cases by categorizing them into three main identified categories in this Proceeding as per the following;-

No	Category No 1	Category No 2	Category No 3
01	Abiera Clan	Tonkera L/O Association	Aviantum Clan
02	Aiyura Village		Hapaira Ontavura Clan
03	Ba’e Clan		Sawam Clan
04	Kamanakera Clan
05	Tairora Clan

60: We consider it convenient to commence with the Category that has the least number of the interested registered Parties; that being Category 2 and work our way through considering and assessing the merits of the Applicant (s) in that category and so on. To that end, Tonkera Land Owners Association is the only Party alone featuring in that Category No 2.

61: Tonkera is one of the names listed on the 1950 Land Transfer Document as one of the named original former customary owners of Portions 200 and 201 and was expected to come heavy in this proceeding with its evidence or case presentation and file final Submissions. However, Tonkera did not do so as expected resulting in Tonkera showing no cause or interest in this proceeding over the subject matter of Portions 200 and 201 SIL, Land. There are reports by several of the other interested parties in this Proceeding of this Group Tonkera Landowners Association having been paid K6,.104m as compensation for the same Portions 200 and 201, SIL Land. Every other interested Party herein all insinuate such a payment has so been made to Tonkera Land Owners Association, but we do not have specific evidence before us proving such an amount in compensation having been made already to Tonkera Land Owners Association. On hind sight, we would like to speculate or surmise that Tonkera Land owners Association may have already been paid out for and over Portions 200 and 201, SIL Land and so as a result, it did not see any need to enter the contest in these Proceedings.

62: Therefore there being no case or evidence or material before this Court, for Tonkera Landowners Association, we do not consider it (Tonkera Landowners Association) having any legs to stand on in this Proceeding to meaningfully progress further its interests before this Court.

Dismiss outright Tonkera Landowners Association as an Interested Party from this and further Proceedings.

64: Our next category to consider is Category No 3 where it has Aviantum Clan, Hapaira Ontavura Clan and Sawam Clan. The Aviantum Clan is the first in this Category as the first interested Party Clans in the Claim for Settlement Payments over Portions 200 and 201 SIL Land which clan Group does not have its name nor any of its forebears and ancestors nor Clans that it can identify with in the 1950 Land Transfer Document. Mr Andy Marobe as the Lead Spokesperson filed documents made up primarily of letters and endorsements and documents from Government Offices and agencies that basically operated towards having his father late Andrew Marobe being paid K100, 000.00 for what he claims to being payment by the State in Compensation for Portions 200 and 201 SIL Land. In our humble view, the documentary evidence Mr Andy Marobe presented before this Court are recent contemporary documents that do not parallel the 1950 Land Transfer Documents record. Mr Andy Marobe’s evidence filed in support of Aviantum’s Claim consists in part of a Land Commission hearing and determination per Commissioner Iova S Geita awarding him (Andrew Marobe) a sum of K100, 000.00 compensation albeit for the subject land.

65: In the current Application, Andy Marobe claims that the payment made in 1995 was much lower compared to the size of the land so he seeks further payments according to the size of the land and proper payment be done. Whilst we consider this to being the crux of Aviantum Clan’s claim through Andy Marobe, this claim is somewhat, in our humble view, markedly vitiated and curtailed in these Proceedings by the operation of two very crucial provisos;-

66: The net or residual effect of this, in our humble view is; that this Clan’s Claim has no substance and legal basis to proceed for inclusion in the Land Commission Hearing for Settlements Payment for and over Portions 200 and 201 SIL Land and;

WE THEREFORE DISMISS AVIANTUM CLAN FROM PROCEEDING FURTHER FOR SETTLEMENT PAYMENT CLAIM HEARING BEFORE THE LANDS COMMISSIONER!

67: The next Interested Party in this Category is Hapaira Ontavura Clan. This Applicant nor through its representatives or official Spokesperson Mr Anis Ka’Abu filed any supporting documentations in support and furtherance of its application to be included in the Settlement Payment Claims under s 43 of the National Land Registration Act, 1977 before the Lands Commission Hearing.

68: Since this Applicant has virtually nothing before this Court to warrant a further progression of its Application for inclusion in the Settlement Payment Claims;

WE ALSO THEREFORE DISMISS OUTRIGHT HAPAIRA ONTAVURA CLAN’S APPLICATION FOR INCLUSION IN THE SETTLEMENT PAYMENT CLAIMS BEFORE THE LANDS COMMISSION HEARING.

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69: The other interested Party in this Category is Sawam Clan which was represented chiefly in Court by a well-spoken Mr Bosaka Philip as the Second Lead Spokesperson standing in for the most part in Court for the Lead Spokesperson Mr Divas Wameneso being the Chairman for Sawam Clan.

70: This Applicant Clan does not feature in the 1850 Land Transfer Document nor does it have any ancestors or Clans who signed the 1950 Land Transfer Document with which Sawam Clan can identify itself with and in this Proceeding as the posterity or descendant of ones who signed the 1950 Land Transfer Document.

71: But Sawam Clan through Divas Wameneso presents logical and convincing statements as evidence to present its Claim claiming that his immediate forebear, Wameneso Yamarefa was the principal Land Owner who had all improvements of gardens and dwelling huts and pig houses on the subject portions of land, now Portions 200 and 201. The statement continues to say that in recognition for his ownership rights, the Colonial Government Officers at the time Messrs Gerald William Toogood and Ronald Spencer Carne engaged him as the Chainman to pull the chain to mark out the preferred Land and Boundary. But along the way of the Chain marking, a disagreement arose over a certain portion of the surveyed land that changed the whole complexion of the Colonial Land Transfer transaction at the time; leaving the principal land owner Wameneso Yamarefa completely out from the face of the 1950s Land Transfer Document Records; thus explaining why the true sole principal owner of the Land was missing on the 1950 Land Transfer Document Record!

72: We notice these explanatory statements to being sensible and quite appealing but not weighty enough of itself without independent extraneous corroborative evidence such as from the 1950 Land Transfer Document itself as the two Colonial Admin Officers Mr Toogood and Mr Carne would have made some remarks of this event; which would have been of greater significance because it could have happened right in their very presence. For instance; if Wameneso Yamarefa abruptly deserted his Chainman job, the two Colonial Admin Officers, would have caught this event as being significant and the two expatriate Colonial Admin Officers who knew very well the importance of proper record keeping for posterity would obviously have caused some records of this nature and fact kept somewhere on the 1950 Land Transfer Document record. Our reading and studying of the 1850 Land Transfer Document record does not disclose anything nor any iota or hint of this sort.

73: Hence, we consider this statement to being merely a recent contemporary concoction to help explain the absence of the Sawam Clan on the 1950s original contemporaneous written record.

74: Sawam Clan also through its Spokesperson addressed this Court going back on the 1950s record to pick out apparent flaws and perceived errors on the 1950 Land Transfer Document Record. It says, the 1950 Land Transfer Document was meant and prepared for only one singular person to sign; that single person being the sole principal Land Owner Wameneso Yamarefa; but as human persons as we are and have always been, monetary greed took the better of people involved in this transaction who intentionally left Wameneso out of the 1950 Land Transaction Document recorded transaction.

75: Whilst we consider this presentation to being sensible and logical and somewhat convincing, we are seriously cautious not to stray out and away from the 1950s Land Transfer Document record but to work around this black-and-white written record which clearly leaves no room for tales, conjectures, and surmises, howsoever logical, sensible and convincing they may be. Sawam Clan’s stories unfortunately do not get any iota of confirmation, corroboration and support or hints from the1950 Land Transfer Document record.

76: Sawam Clan next presents another lovely tale that the 1950 Land Transfer Document record was prepared and done for one single person to sign as the owner of the subject land and the then Colonial Government would originally have had the subject sales/purchase done up for only one single Vendor. And that one single principal Land Owner Vendor meant to sign was none other than Wameneso Yamarefa. Our closer reading and the perusal of the 1850 Land Transfer Document record head seem to us to being a standard pro-forma Australian Government national crested letter head upon which official government businesses would have been conducted and the insertion of specific details on such formal documents being quite normal, Also, Sawam Clan’s taking issue as to personal pronouns of I, Me and mine as against the we, us and ours are in our view not significant enough to turn the tide against the whole contents, context and meaning of a concrete black-and-white record.

77: We have considered and do have a sound appreciation of all that the Sawam Clan has put before us for our consideration; however we struggle to wander off outside the written record as the 1950 Land Transfer Document record; as it is, is a proven contemporaneous written record of this very important transaction in the Aiyura Valley back then. If anything such as what Sawam Clan is presenting before us in this Proceeding did occur, the two (2) Colonial expat Admin Officers in Mr Toogood and Mr Carne would have recorded those significant events highlighted by Sawan Clan in its presentations as these Officers were white expatriate men who were neutral and most impartial and had no allegiances with any one of those individual natives or Clans in order to cast questions on the 1950 Land Transfer Document document’s overall integrity.

78: We have given due consideration and appropriate weight to Sawam Clan’s present Applications and their Submissions but we remain unfazed and unconvinced to move away from the 1950s contemporaneous written record where the author of this document Mr Toogood made his declaration and certification as to his carrying out enquiries as to this subject land’s ownership back then before pen was put to paper. Mr Toogood also certified that: “The Land was unoccupied by Natives at the time of Sale” Here was a white expatriate man taking and recording contemporaneous records of the status quo and significant events then happening and occurring that day. As they were recorded by usually highly principled white impartial expatriate Colonial Government Officers, we feel it safer to accept the 1950 Land Transfer Document’s contemporaneous records than Sawam Clan’s recently cooked-up tales.

79: For two base reasons; we reject and dismiss Sawam Clan’s Application for inclusion in the pending Land Title Commission hearing into the Settlement Payment Claims by former customary owners of Portions 200 and 201, SIL Land;-

80: On the bases of the immediate above discussions, we reject Sawam Clan’s Application for inclusion in the Settlement Payment Claims hearing over Portion 200 and 201 presently pending before the Land Titles Commission.

No	*Clan Name*	*No of Signatures on LTD*	*Total Payment Received*
01	Abiera Clan	Ten (10) signatures
02	Aiyura Village	Single One (1)
03	Ba’e Clan	Three (3) Signatures
04	Kamanakera Clan	Twenty-three Signatures
05	Tairora Clan	Twenty-eight Signatures

81: The above Table lists the various former Landowner Clan Groups of Portions 200 and 201 SIL Land that are listed as such in the 1950s Land Transfer Document (LTD). Here we are asked to look at and determine the number and the various former Land Owner Clan Groups who are on proven written records as being the original parties who sold or transferred the subject portion of Land to the then Colonial Administration under the watchful eyes and auspices of Officer Gerald William Toogood with the able assistance of another Colonial Admin Officer, Mr Ronald Spencer Carne. Unlike most other Colonial Admin acquired or purchased properties around the Country that we know of, nothing is never more concrete and comprehensive then in the instant one where we have a concrete written proof of this Native Land transfer Transaction to the then Colonial Administration back then.

82: Unless concrete proof to the contrary is shown that the current 1950s Lands Transfer Document is tainted with such errors and mistakes as to its correctness, veracity and authenticity resulting in the loss of integrity by the 1950s Land Transfer Documents, we have no reason or cause to shy away from accepting it as the only proven contemporaneous written record of the Native Land Transfer to the then Colonial Administration. This written record of former native Clan Group owners transferring their Land to the then Colonial Administration is the correct written record of; whom were the then customary owners who voluntarily sold and transferred the subject Portions of Land, the price each native received as payment for the transfer and the number of former individual and former Customary Land Owners who signed the Transfer Agreement.

83: This record is our best evidence and yardstick with which to arrive at an acceptable outcome that will pave the way for the Lands Title Commissioner to resume its pending Commission hearing.

84: We agree with most of the interested Applicant Parties in this Category of the Land Transfer Document is the correct written recorded proof of this important colonial era land transaction. This Court therefore should not stray from it to make its final determination of the matter of the referral now before it.

85: To that end, we’d wish to reflect on what each Applicant in this Category is saying before we wrap up and conclude.

A; Abiera Clan: Says it is one of the original former Landowner Clan Groups that has ten (10) signatures on the 1950s Land Transfer Document for which it says to be paid its just payment on just terms which it says to be an equivalent of that given to Tonkera Land Owners Association which it claims was paid K6.104m for having only five signatures on the 1950 Land Transfer Document. Abiera claims that it has ten (10) signatures in it so the rate to apply to Abiera Clan should accordingly be upped to reach K10m as being it’s just compensation on just terms.

RULING: Abiera Clan is qualified and entitled to be included in the Settlement Payment Claims hearing now pending before the Land Titles Commission

B: Aiyura Village: This Applicant is saying that it is the sole Applicant shown on the 1950s Land Transfer Document who alone hails from the Aiyura Valley whilst the others are located from outside the Valley. Being the sole former owner, Aiyura Village claims to be declared the principal original former customary owners of Portions 200 and 201 and be paid just compensation on just terms. However, the 1950s Land Transfer Document discloses the Aiyura Village representation to being only one single person signatory whilst the others are multiples in numbers.

RULING: Aiyura Village is qualified and entitled to be included in the Settlement Payment Claims hearing now pending before the Land Titles Commission.

C: Ba’e Clan: This Applicant has only three (3) signatories on the 1950 Land Transfer Document. It claims that it is the sole former principal Landowner Clan of the subject SIL Land; Portions 200 and 201. This Clan says that because the other named Clans were really not owners of the subject lands but received their recorded payments only for attending the event and only witnessing Ba’e Clan transferring its customary ownership rights in the subject Land to the then Colonial Administration back then they were only given token payments and not as subject Land Owners.

Ba’e Clan is on record as unsuccessfully attempting to have another competing Clan Kamanakera subsumed into it (Ba’e Clan) that this Court has ruled against; and that for the purpose of this judgment, Ba’e Clan with only three (3) signatures will have to contend with that as the written records do not lend any assistance to its cause any otherwise. Having have considered all materials placed before us, we refuse to buy Ba’e Clan’s assertion that it is the sole principal former customary owner of the subject portions of the SIL Land and got paid accordingly whilst the other named Clans on the 1950 Land Transfer Document got paid for merely witnessing the transfer of the subject land to the then Colonial Administration; simply because the black-and-white written records of the 1950s Land Transfer Document does not disclose nor suggests that to being the case. The record is crystal clear; everyone who signed the 1950 Land Transaction Document was paid as owners or part-owners by Mr Toogood as to him deemed proper and appropriate such being achieved from and through his own enquiries. Reference: Mr Toogood’s certification printed on page #5 of the 1950 Land Transfer Document which is couched in the following terms;-

“I, Gerald William Toogood certify that I have enquired of the sole owners of the land described in this document and am satisfied that the natives whose names are stated hereon are part owners of that land and are the sole owners of the land”.

87: In the face of this certification, we just cannot accept Ba’e Clan’s assertion that the other Parties got paid for just witnessing the transfer of its land to the Colonial Administration event. It seems acutely clear that every one of the Clans on the 1950 Land Transfer Document was paid as land owners in their own rights and on their own merits and not as witnesses as Ba’e Clan asserts! We therefore reject Ba’e Clan’s assertion and instead declare that Ba’e Clan is a part owner of Portions 200 and 201 SIL Land represented by the number of ancestors whose signatures appear on the 1950 Land Transfer Document of 30/10/1950 as being only three (3) signatories.

RULING: Ba’e Clan accordingly is qualified and entitled to be included in the Land Titles Commission hearing for Settlement Payment Claim they have lodged for the subject Portions 200 and 201, SIL Land.

D: Kamanakera Clan: This Clan has 23 names and corresponding signatures on the 1950s Land Transfer Document and is entitled to receive just compensation as such on just terms. This group whose ancestors and forebears have names and signatures on the 1950s Land Transfer Document for Portions 200 and 201, SIL Land and desires to be paid just compensation for Portions 200 and 201 on just terms.

RULING: Accordingly Kamanakera Clan is qualified and entitled to be included in the Land Titles Commission hearing for their Settlement Payment Claims.

89: This Clan is one of the original former customary owners of the subject land whose forebears and ancestors’ names and signature are shown on the 1950 Land Transfer Documents with almost 27-8 signatories; seemingly the single biggest number for any one claimant Clan in this category.

Tairora Clan presses for payment to it of just compensation on just terms similar or in line with the Tonkera Landowners Association but upped considering the number of its forebears who signed the initial 1950 Land Transfer Document of 28 compared to Tonkera Landowners Association who had only five (5) names and signatures and paid K6.104m.

RULING: Also accordingly, Tairora Clan is qualified and entitled to proceed to be included in the Settlement Payment Claims pending before the Land Titles Commission.

89: In this part of our decision, we believe it is not for us to talk about how much to pay as being just compensation on just terms but we wish to present some leads to assist the Commission arrive at a decision that it will in its own wisdom consider appropriate under each individual circumstance. For instance, the 7 pounds payment received by Ba’e Clan and a part of Kamanakera Clan (which was higher than the others received) may be of some significance that the Commission hearing might take into account when conducting its own hearing.

90: Some or most of these Clans who have been passed to proceed to the Commission Hearing stage refer to some alleged payment of K6.104m for the subject portion of land to Tonkera Landowners Association. Being that as it may, during our enquiries this talk about Tonkera Landowners Association being paid this much is not a proven fact to this Court; it remains purely a speculation only so we do not recommend either.

91: One other factor the Land Titles Commission will be asked to consider and ponder over when setting its mind on to is the fact of varying degrees of payments received by each of the former customary owners of Portions 200 and 201 as the higher amounts paid (like Ba’e Clan and a part of Kamanakera Clan might fare significantly to reflect proximate ownership than the other recorded Clan Groups; something for the Commission hearing to look at and think about...

92: Our mathematical calculations may not be accurate; but as it is, we think it only appropriate at this stage of the proceeding to just make mention of it; as we believe it is with this lead as a pointer, the Lands Titles Commission hearing may be better placed to start and be assisted right through by the Parties themselves who may have better access to up-to-date resource material to assist it deal with this issue when the time shall become right and due.

1: The Abiera Clan, Aiyura Clan, Ba’e Clan, Kamanakera Clan and Tairora Clan are all qualified and entitled to be included as rightful interested Parties to proceed to the Land Titles Commission hearing that now stands pending awaiting the result of its own referral to this Court.

2: The Aviantum Clan, Hapaira Ontavura Clan, Tonkera Landowners Association and Sawam Clan are all disqualified and dismissed from being included in the Land Titles Commission hearing as being out of official records and without concrete evidentiary basis in the face of concrete contemporaneous written record.

Papua New Guinea Local Land Court

Abiera Clan, In re [2020] PGLLC 2; DC4090 (30 January 2020)