Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Itarai v Nokomo [2016] PGNC 25; N6176 (5 February 2016)

N6176

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 94 OF 2013

EDDIE ITARAI FOR HIMSELF & ON BEHALF OF
ARINI KORONGU PAGAIZI CLAN OF UPPER RAMU, MADANG
Appellant

V

SEVURU NOKOMA & FAMILY OF
PAGAIZI CLAN OF UPPER RAMU, MADANG
First Respondent

JOSEPH GABUT, BENEDICT BATATA & KUTT PAONGA, COMPRISING THE RAMU NICKEL/COBALT
SPECIAL LAND TITLES COMMISSION
Second Respondents

RAMU NICKEL/COBALT SPECIAL LAND TITLES COMMISSION
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Madang: Cannings J
2015: 20, 21 July
2016: 5 February

APPEALS – appeal against decision of Special Land Titles Commission regarding ownership of customary land – Land Titles Commission Act 1962, Section 38 (right of appeal) – whether Commission exceeded its jurisdiction – whether proper consideration given to question of who had actual possession of land – whether hearings conducted contrary to natural justice.

The appellant appealed to the National Court against the decision of a Special Land Titles Commission declaring that an area of customary land was exclusively owned by the first respondent's family. The appeal was made under Section 38 of the Land Titles Commission Act, on four grounds: (a) the Commission exceeded its jurisdiction by failing to arrange preparation of a demarcation plan under Section 21 of the Land Titles Commission Act; (b) the decision was against the weight of the evidence as the appellant's family was clearly the owner according to the principles of adverse possession; (c) the hearings of the Commission were conducted in a manner contrary to natural justice; (d) the Commission was wrong in law as it failed to disregard the evidence of a witness who was biased against the appellant.

Held:

(1) The Commission was under no obligation to arrange preparation of, or consider, a demarcation plan. Such plans are only prepared by a Demarcation Committee if such a Committee is appointed at the discretion of the Commission. Here no such Committee was appointed. There was no excess of jurisdiction. Ground (a) was dismissed.

(2) Determination of ownership of customary land depends not only on which disputing party has the earliest claim to the land, by reason of genealogical or ancestral evidence, but also which disputing party has actually possessed the land (without opposition) in recent years (Re Hides Gas Project Land [1993] PNGLR 309 applied). The Commission failed to apply that principle. The Commission's decision was against the weight of the evidence. Ground (b) was upheld.

(3) The minimum requirement of natural justice is, under Section 59(2) of the Constitution, the duty to act fairly and, in principle, to be seen to act fairly. The Commission met that requirement and cannot reasonably be said to have conducted its hearings in a manner contrary to natural justice. Ground (c) was dismissed.

(4) The Commission made no error of law by placing considerable weight on the evidence of a witness whose evidence did not favour the appellant's claim. There was no evidence that that witness was biased against the appellant. Ground (d) was dismissed.

(5) Though only one ground of appeal was upheld, the decision was against the weight of the evidence and should be quashed. As the Court was apprised of the relevant facts and law, it was unnecessary to remit the case for further hearing before the Commission. The justice of the case required that the Court substitute its decision for the decision of the Commission.

(6) Decision: the parts of the Commission's decision as to ownership and possession of the land and distribution of benefits were substituted by a decision that: (a) the land is jointly owned on a 50/50 basis by the appellant's family and the first respondent's family; (b) benefits derived from the land shall be distributed as follows: (i) appellant, 23.125%, (ii) first respondent, 23.125%, (iii) other parties, as decided by the Commission, 53.75%.

Cases cited

The following cases are cited in the judgment:

Application of Ambra Nii on behalf of Toisap Clan [1991] PNGLR 357
First Assistant Secretary, Department of Prime Minister v Michael James Leahy and Highlands Products Pty Ltd (1981) N311 (L)
Gima Raka v Philip Maimu (2013) N5200
John Anis v Nabura Morissa (2011) N4307
Lelete Plantation Ltd v Paul Rame (2007) N5020
Mathew Denguo Tigavu v Gamo Koito & Special Land Titles Commission (2016) N6170
Re Hides Gas Project Land [1993] PNGLR
Re Wangaramut (No 2) [1969-70] PNGLR 410
Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163
Tawindi Clan v Kaimari Clan (1998) N1775

APPEAL

This was an appeal by a person aggrieved by a decision of a Special Land Titles Commission as to ownership of customary land.

Counsel:

G Pipike, for the appellant
S Nokoma, the First Respondent, in person

5 February, 2016

1. CANNINGS J: Eddie Itarai, for and on behalf of the Arini Korongu Pagaizi Clan of Upper Ramu, appeals against the decision of the Ramu Nickel-Cobalt Special Land Titles Commission ("the Commission") concerning customary ownership of an area of land at Kurumbukari, Usino-Bundi District, Madang Province. The land forms part of the site of the mine for the Ramu Nickel-Cobalt Project. It is formally described as "Blocks 5, 6, 7 & 8, SML [Special Mining Lease] 8". It is commonly known as "Pagaizi" land.

THE COMMISSION

2. The Ramu Nickel-Cobalt Special Land Titles Commission was established by a declaration and order of the Governor-General, on the advice of the National Executive Council, made under Section 4 (exception of certain disputes) of the Land Disputes Settlement Act. The declaration and order were published in National Gazette No G169 of 27 December 2001. It was declared that the Land Disputes Settlement Act does not apply to the land dispute concerning Pagaizi land. It was ordered amongst other things that a Commissioner (later changed to Commissioners, after the death of the inaugural Commissioner, Mr Patrick Nasa) be appointed to determine ownership of the land and that the provisions of Part V (appeals etc) of the Land Titles Commission Act will apply to all determinations made under the order.

DECISION UNDER APPEAL

3. The Commission decided on 12 August 2013 that:

• the first respondent, Sevuru Nokoma, and members of his family, are the traditional owners of the land and have exclusive ownership rights to it;
  
• the appellant's family, and four other family groups, have land use rights over the land;
  
• benefits from the project relating to the land should be shared as follows: first respondent's family, 35%; Abraham Tatagu family, 20%; Kikimbe & Mende group, 11.25%; Riwo & Kurame group, 11.25%; Moses Kumura group, 11.25%; and appellant's group, 11.25%.
  

4. The full text of the decision, which was supported by a 21-page statement of reasons, is:

The Ramu Nickel/Cobalt Project Special Land Titles Commission:

1. Declares and orders that Sevuru Nokoma family are the only living descendants of the male line of Pagaizi clan ancestor Korongu and have landownership right over all Pagaizi land.
   
2. Declares that Abraham Tatagu family are the only clear female line descendants of the Pagaizi clan and they have substantial land use rights over all Pagaizi land.
   
3. Declares that Kikimbe and Mende families, Riwo and Kurame families, Kumura family and Itarai family have land use rights over the Pagaizi land.
   
4. Directs that the benefits from Ramu Nickel/Cobalt Project for the Pagaizi land will be shared through a Benefits Sharing Agreement between Sevuru family and Abraham Tatagu family, Mende and Kikimbe group, Riwo and Kurame group, Kumura family group and Itarai group before MCC pays the land use money now held in trust accounts; and failing that the sharing of benefits will be as follows:
   

5. Declares that the agreement signed between Sevuru Nokoma and his creditors is not a land ownership issue and therefore outside the mandate of the Commission.
   
6. Orders that all Pagaizi land remains with Sevuru Nokoma family after the Ramu Nickel/Cobalt Project is closed and the project benefits cease to be paid to the recipients under this decision.
   

REPRESENTATION

5. Mr Pipike of GP Lawyers represented the appellant. The first respondent Sevuru Nokoma represented himself and made submissions at the hearing of the appeal. The three Commissioners, the Commission itself and the State were named as second, third and fourth respondents. They were represented by the Solicitor-General, whose lawyers actively participated in the pre-hearing process. However there was no appearance for those parties at the hearing of the appeal.

APPELLANT'S GRIEVANCE

6. The appellant is aggrieved by the Commission's decision of 12 August 2013. He argues that the Commission should have declared that his clan was the exclusive owner of the land. The appeal is made under Section 38 of the Land Titles Commission Act, which allows a "person aggrieved by a decision of the Commission" to appeal to the National Court within 90 days after the decision.

7. A notice of appeal was filed on 27 September 2013, within the 90-day period. The grounds of appeal are compliant with Section 38(2) of the Land Titles Commission Act. I am satisfied that the National Court has jurisdiction and that I am obliged to determine the appeal.

GROUNDS OF APPEAL

8. Four grounds of appeal are set out in the notice of appeal. They have been erroneously marked as (a), (b), (d) and (e), so I have re-marked the last two as (c) and (d) respectively. The grounds of appeal are:

(a) the Commission exceeded its jurisdiction by failing to arrange preparation of a demarcation plan under Section 21 of the Land Titles Commission Act;

(b) the decision was against the weight of the evidence as the appellant's family was clearly the owner according to the principles of adverse possession;

(c) the hearings of the Commission were conducted in a manner contrary to natural justice;

(d) the Commission was wrong in law as it failed to disregard the evidence of a witness who was clearly biased against the appellant.

GROUND (a): EXCESS OF JURISDICTION

9. This ground states:

The Commission has exceeded or did not act within its jurisdiction when declaring the first respondents as the only living descendants of the male line of the Pagaizi Clan and having landownership right over all Pagaizi land when the appellants and others are also living descendants of Pagaizi Clan and have equal rights to their own land.

10. Mr Pipike, for the appellant, submitted that the Commission exceeded its jurisdiction by making a decision on ownership of all of blocks 5, 6, 7 and 8, as the division of the land into those blocks was made under the Mining Act and did not reflect traditional land boundaries. Mr Pipike submitted that the Commission should have arranged preparation of a demarcation plan under Section 21 of the Land Titles Commission Act and exceeded its jurisdiction by not doing so.

11. This argument might have been sustainable if the Commission was obliged to arrange preparation of such a plan but it was under no such obligation. Indeed it had no power to arrange or order preparation of such a plan. Demarcation plans are prepared by Demarcation Committees under Section 21 of the Land Titles Commission Act for the purpose of showing the boundaries of customary land that are the subject of a claim before the Commission. However, there was no necessity to appoint a Demarcation Committee in this case. Such committees are appointed by the Chief Land Titles Commissioner under Section 20 of the Act, not by a Special Land Titles Commission.

12. This Commission obtained its jurisdiction from the declaration and order of the Governor-General that was published in the National Gazette. In making the decision the subject of this appeal, it appears to have acted within its jurisdiction. The appellant has fallen well short of proving that it exceeded its jurisdiction in the manner alleged. Ground (a) is misconceived and is dismissed.

GROUND (b): DECISION WAS AGAINST THE WEIGHT OF THE EVIDENCE

13. This ground states:

The decision was against the weight of the evidence in that:

1. the appellants produced sufficient evidence through testimonies, opinions and records showing that they are also the living descendants of the male line of the Pagaizi Clan and have equal landownership right over Pagaizi land just as the first respondents;
   
2. the appellants were clearly the owners of the land (Blocks 5, 7 & undisputed Block 8) by virtue of the principle of adverse possession and other relevant principles enunciated in the case of Re Hides Gas Project Land [1993] PNGLR 309;
   
3. the Commission failed to take into consideration that the first respondent had never challenged or controlled others who moved onto the land, even before the exploration period of the project, had never disputed Blocks 5, 7 and 8 of the SML 8 which he was surprisingly given exclusive ownership rights over;
   
4. the Commission had failed to take into consideration that the appellants had produced sufficient evidence of having control over Blocks 5, 7 and undisputed Block 8 of SML 8 of the Ramu Nickel/Cobalt Project land.
   

14. The critical findings of the Commission that led to its decision in favour of the first respondent were that:

1. all of blocks 5, 6, 7 and 8 belonged traditionally to the Pagaizi Clan;
2. the first respondent and his family are the only living descendants of the male line of Pagaizi Clan and therefore they are the traditional owners;

100. the principle of adverse possession cannot be applied to defeat the right of the traditional owners.
     

15. The appellant does not dispute finding (A) but takes issue with findings (B) and (C). As to (B), it is argued, by sub-ground of appeal (b)(i), that there was sufficient evidence before the Commission to show that the appellant's family, like the first respondent's family, are also living descendants of the male line of Pagaizi Clan. I am unconvinced by this argument.

16. The Commission carefully considered the evidence of the disputing parties in the context of independent evidence. Such evidence was produced in the form of reports on land ownership prepared over a period of 40 years by both government and company officials, anthropologist Dr Laura Zimmer-Tamakoshi and social scientist John Tovue. It placed great weight on the independent evidence, which consistently showed that the appellant's group, amongst others, was not from the male line of Pagaizi Clan. I reject the argument that finding (B) was against the weight of the evidence.

17. Finding (C) deserves closer consideration. The Commission expressed strong views about the principle of adverse possession. This is the notion that if a person who does not actually own a piece of land occupies or takes possession of it for a long time without objection from the real owner, the person in possession can be regarded, with the passage of time, to be the owner (Gima Raka v Philip Maimu (2013) N5200). It is a principle that is often applied for the purposes of determining ownership of customary land.

18. Its importance was emphasised in the landmark decision of Amet J, as he then was, sitting in the Land Titles Commission in Re Hides Gas Project Land [1993] PNGLR 309. It is a principle that applies whenever an authorised authority such as a Local Land Court or the Land Titles Commission – or in this case, a Special Land Titles Commission – is determining ownership of customary land. (However, it does not apply to Government land: First Assistant Secretary, Department of Prime Minister v Michael James Leahy and Highlands Products Pty Ltd (1981) N311 (L), Lelete Plantation Ltd v Paul Rame (2007) N5020).

19. The principle of adverse possession means that ownership of customary land depends not only on the question of which disputing party had the earliest claim to the land, by reason of genealogical or ancestral evidence, but also which disputing party has actually possessed the land (without opposition) in recent years. The National Court has in a number of cases endorsed and applied the principle, also known as 'the Hides Gas principle', in the course of determining judicial reviews of decisions of a Provincial Land Court. See, for example, Application of Ambra Nii on behalf of Toisap Clan [1991] PNGLR 357, Tawindi Clan v Kaimari Clan (1998) N1775 and John Anis v Nabura Morissa (2011) N4307.

20. The Commission's view on the principle of adverse possession is encapsulated in the following three paragraphs of its reasons for decision:

The principle of adverse possession must be applied cautiously in the context of traditional/customary land, especially where the "waspapas" concept is applicable in almost all – if not all clan land in Kurumbukari Project area (SML 8). The "waspapas" cannot take over this land, they cannot give the land away and they must get authority from living descendants of the land, even if only one of such persons is alive.

And the principle is not applicable where the original landowners have maintained [an] interest in their land however small such interest might be through some form of presence in their land.

In the case of Pagaizi land there is at least one true Pagaizi landowner family namely Sevuru, his father, grandfather and great grandfather who had always lived on Pagaizi land. This family should have been consulted and they should have consented to the distribution of Pagaizi land by Kiap Page, clearly with advice from Dore and Makau.

21. That view is reflected in the following seven findings of the Commission, which were set out immediately before its formal decision:

1. The land might have been called Korongo Miringua or Komoi Iawai or just Pagaizi land.
   
2. That the original name of block 7 land was not Gavu Pagaizi. The disputed land might have been called Arini Korongu or Korongu Miringua or just Pagaizi.
   
3. The pieces of land now known as Tawai Pagaizi and Gavu Pagaizi were most likely uninhabited for a very long time, at least some time before World War II. The claimants moved on the land more recently. Dore and Makau were "waspapas" for the land for a long time until they allowed the claimants to live on the land.
   
4. That Kumura group, Eddie Itarai group, Mende and Kikimbe group and Riwo and Kurame group did not present sufficient evidence to prove that the disputed land belonged to anyone of them.
   
5. That the process used by Dore and Makau and other elders of Kurumbukari in transferring the disputed land to the Kikimbe and Mende group and Kumura group was flawed, highly suspicious and probably conspiracy to defraud the Pagaizi Clan and people of their land. The normal customary practice in PNG is for the whole Pagaizi Clan to decide to transfer land because land in PNG is owned by clans. Dore, Makau and other elders of Kurumbukari were "waspapas" (custodians) only for the land and they had no authority to transfer the disputed land to these groups.
   
6. The Mende and Kikimbe group, the Kumura group, the Itarai group and the Riwo and Kurame group cannot rely on the principle of adverse possession for living on the Pagaizi land for a while in recent times. Their presence alone on the land cannot extinguish the rights of Pagaizi Clan which owns the disputed land and their evidence is insufficient to confirm them as Pagaizi people or as owners of the disputed land. On the other hand their evidence suggests that they had been living on Pagaizi land in recent times so they should be entitled to land use rights. Therefore all the Pagaizi land remains Pagaizi Clan land because there is no adequate evidence from any of the groups now living on the Pagaizi land to persuade the Commission to grant landownership to any one of them. It is a very serious matter for the Commission to deprive land from existing landowners and give the land to another group which claims the same land and not prove landownership with overwhelming evidence. The Commission therefore cannot take a high risk and grant land ownership to one of the said groups when there is clear evidence that the Sevuru family is the true landowners of Pagaizi land.
   
7. That Abraham Tatagu has substantial land use rights in Pagaizi land and because he is a descendent of a Pagaizi woman his ownership of land must be determined by the Sevuru family who are the descendants of the male line from ancestor of Pagaizi, Korongu.
   

22. The Commission was of the view that the principle of adverse possession should not be applied to defeat or qualify the right of the traditional owners of the land – the first respondent and his family – to be declared the exclusive owners of Pagaizi land. According to the Commission the principle was only relevant to the issues of user (usufructuary) rights and distribution of benefits connected to the mining project. It is that process of reasoning that the appellant challenges through sub-grounds of appeal (b) (ii), (iii) and (iv).

23. I uphold the submissions of Mr Pipike on those sub-grounds. I recently decided in Mathew Denguo Tigavu v Gamo Koito & Special Land Titles Commission (2016) N6170, that the Commission was obliged as a matter of law to apply the principle of adverse possession (also known as the Hides Gas principle), not only to the issues of user rights and distribution of benefits, but also, and more fundamentally, to the issue of ownership of land. It did not do that. It was preoccupied with the question of which clan was the 'historical' or 'true' owner of the land and which persons were the living descendants of that owner.

24. There was ample evidence before the Commission that the appellant's family and his ancestors had, without opposition from the first respondent's family or ancestors, lived on the land for multiple generations. The Commission accepted that evidence and took it into account in deciding that the appellant's family has user rights, together with the first respondent and four other groups, over Pagaizi land and is entitled to 11.25% of the benefits from the Ramu Nickel-Cobalt Project. However the Commission did not take that evidence into account in determining the question of ownership of the land. This was an error.

25. Does this mean that the Commission made a decision that was against the weight of the evidence (that being the argument at the centre of ground (b))? To answer this question it is necessary, as I recently held in Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163, to apply the principles from the leading case on the requirements for proving that a decision is against the weight of the evidence. In Re Wangaramut (No 2) [1969-70] PNGLR 410 the pre-Independence Supreme Court held that if an appellant wishes to argue that a decision of the Land Titles Commission was against the weight of the evidence, the appellant is obliged to:

• put before the appellate court the evidence that was before the Commission,
• show how the Commission misconstrued the probative value of the evidence or drew unjustified inferences or failed to draw reasonable inferences from the evidence; and
• show why the decision appealed against is wrong and cannot be supported by the evidence or by any proper inferences to be drawn therefrom or from the relevant law.
  

26. The appellant has met those requirements. He has:

• put before the National Court the evidence, including transcripts of hearings, which was before the Commission;
• shown how the Commission misconstrued the probative value of the evidence about the appellant's family having possession of the land for multiple generations and failed to draw reasonable inferences from that evidence, by showing how the Commission disregarded that evidence for the purpose of its decision as to ownership, as distinct from rights of possession and use, of the land;
• shown why the Commission's decision that the first respondent's family has exclusive land ownership rights is wrong and cannot be supported by the evidence.
  

I am therefore satisfied that, with respect, the Commission made a decision that was against the weight of the evidence. Sub-grounds (b)(ii), (iii) and (iv) are upheld, and this means that ground (b) of the appeal is substantially upheld.

GROUND (c): HEARINGS CONDUCTED CONTRARY TO NATURAL JUSTICE

27. This ground states:

The hearing of the Commission was conducted in a manner contrary to natural justice in that:

(i) the Commission failed to consider and give relevant consideration to the evidence and submissions made by the appellants when making its declarations including evidence and submissions presented before the late Commissioner Patrick Nasa;

(ii) the appellant was not given an opportunity to cross-examine the witnesses Abraham Tatagu or first respondent whose evidence on which the final decision to award landownership to the First Respondent was heavily relied on;

(iii) the failure to thoroughly investigate into the Pagaizi Clan land tenure structure.

This ground consists of three separate arguments, none of which I find convincing. First, the Commission was under no obligation to consider the evidence presented to the late Mr Nasa.

Secondly, I am not satisfied that the appellant was not given an opportunity to cross-examine Mr Tatagau or Mr Nokoma. In any event the Commission was under no obligation to, as a matter of course, allow cross-examination, as its procedures did not have to comply with the rules of evidence. This is made clear by Section 29 (technical rules of evidence not to apply) of the Land Titles Commission Act, which states:

(1) In the investigation, hearing and determination of any matter before the Commission, the Commission is not bound to observe strict legal procedure or apply technical rules of evidence, but shall admit and consider such information as is available.

(2) The Commission may accept evidence by statutory declaration in the case of a person whose attendance before it the Commission considers unnecessary, or whose attendance the Commission considers would occasion undue hardship.

The third argument is vague and meaningless. It is a general criticism of the Commission's decision. It is not an argument about denial of natural justice.

28. The Commission was obliged to conduct its hearings in accordance with the principles of natural justice, the minimum requirement of which is, under Section 59(2) of the Constitution, the duty to act fairly and, in principle, to be seen to act fairly. I am satisfied that the manner in which the Commission conducted its many public hearings, in particular the hearings it conducted regarding Pagaizi land, met that requirement. It cannot reasonably be said to have conducted its hearings in a manner contrary to natural justice. Ground (c) is dismissed.

GROUND (d): DECISION WRONG IN LAW

29. This ground states:

The Commission was wrong in law in that it failed to disregard evidence given by Abraham Tatagu against the appellants and for the first respondents when there was or is clear indication of bias on his part when he challenged the lead appellant on several occasions to "fight and get his land back".

30. I find no merit in this ground. I discern from the evidence and the Commission's reasons for decision no good reason to believe that Mr Tatagu was biased against the appellant. The Commission properly placed considerable weight on his evidence because the independent evidence (in the form of various reports by independent officials and researchers prepared over a period of 40 years) showed that Mr Tatagu was a reputable and reliable witness to the history of ownership and use of the land. Ground (d) is dismissed.

CONCLUSION

31. Though only one ground of appeal has been upheld, I am satisfied that the Commission's decision was against the weight of the evidence and should not stand. This raises the question of what order the Court should now make. This is a matter of discretion, to be exercised under Section 38A(2) (powers of National Court on appeal) of the Land Titles Commission Act, which states:

Upon the hearing of the appeal, the National Court shall inquire into the matter and may—

(a) adjourn the hearing from time to time;

(aa) receive fresh evidence if in the opinion of the Court that evidence is relevant and the party seeking to rely on it was not negligent in failing to adduce it before the Commission;

. . .

(c) if the justice of the case so requires, substitute for the decision any decision that might have been given by the Commission; or

(d) remit the case in whole or in part for hearing or for further hearing before the Commission.

It is unnecessary to remit the case to the Commission. The Court is apprised of the relevant facts and law. The justice of the case requires, for the purposes of Section 38A(2)(c), that the Court substitute its decision for the decision of the Commission.

32. I will not make the order sought by the appellant, which would declare that his family is the owner of blocks 5, 7 and 8, to the exclusion of all other parties including the first respondent. The best and fairest thing to do is to make an order that takes into account and respects both (a) the appellant's family's claim to ownership deriving from their occupation of Pagaizi land by multiple generations, and (b) the clear 'chain of title' going back to time immemorial enjoyed by the first respondent's ancestors. I will declare and order that the appellant's family and the first respondent's family are the joint traditional owners of the land on a 50/50 basis and that they have joint rights to occupy the land, subject to other rights of possession as determined by the Commission.

33. I will vary the distribution of benefits to reflect the changes in ownership, so that benefits derived from the land will be distributed as follows: (i) appellant, 23.125%, (ii) first respondent, 23.125%, (iii) other parties, as decided by the Commission, 53.75%.

34. I will order the parties to bear their own costs as there has been no clear winner of the appeal. All interim orders staying the Commission's decision will be dissolved.

ORDER

It is ordered that:

(1) The appeal is upheld.

(2) As the justice of the case so requires, there is substituted for the decision under appeal, under Section 38A(2)(c) of the Land Titles Commission Act, the following decision, the underlined portions of which show the primary respects in which the decision under appeal has been altered. Accordingly the National Court of Justice:

1. Declares and orders that (a) Sevuru Nokoma and family, being the only living descendants of the male line of Pagaizi Clan ancestor Korongu and (b) Eddie Itarai and family, having acquired the right of ownership by virtue of the principle of adverse possession, are the joint traditional landowners of Pagaizi land on a 50/50 basis, and they have joint rights to occupy the land, subject to other rights of possession as are declared by this Decision, the description of which land is as follows: "Blocks 5, 6, 7 & 8, SML [Special Mining Lease] 8".
   
2. Declares that Abraham Tatagu family are the only clear female line descendants of the Pagaizi Clan and they have substantial land use rights over all Pagaizi land.
   
3. Declares that Kikimbe and Mende families, Riwo and Kurame families and Kumura family have land use rights over the Pagaizi land.
   
4. Directs that the sharing of benefits in relation to the Ramu Nickel-Cobalt Project will be as follows:
   

• (i) Sevuru Nokoma & family: 23.125%
• (ii) Eddie Itarai & family: 23.125%
• (iii) Abraham Tatagu family: 20%
• (iv) Kikimbe & Mende group: 11.25%
• (v) Riwo & Kurame group: 11.25%
• (vi) Moses Kumura group: 11.25%.
  

5. Declares that the agreement signed between Sevuru Nokoma and his creditors is not a land ownership issue and therefore outside the mandate of the Commission.
   
6. Orders that all Pagaizi land remains with (a) Sevuru Nokoma and family, and (b) Eddie Itarai and family, after the Ramu Nickel/Cobalt Project is closed and the project benefits cease to be paid to the recipients under this decision.
   

(3) All interim orders staying the Commission's decision are dissolved.

• (4) The parties will bear their own costs.
  
• (5) The file is closed.
  

Judgment accordingly,
_________________________________________________________________
GP Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyer for the Second, Third & Fourth Respondents