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

Garima v Gabut [2018] PGNC 86; N7159 (21 March 2018)

N7159

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 114 OF 2013

NICHOLAS GARIMA ON BEHALF OF
MAURE DUAKAI NARAWA CLAN OF GAIZIBAN VILLAGE,
USINO-BUNDI DISTRICT, MADANG PROVINCE
Appellant

V

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

BARE DIRI OF MAURE CLAN OF WIANIVI VILLAGE,
USINO-BUNDI DISTRICT, MADANG PROVINCE
Second Respondent

WASKAP UNUA OF MAURE WEIWEI CLAN OF BANU VILLAGE,
USINO-BUNDI DISTRICT, MADANG PROVINCE
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Madang: Cannings J
2017: 23 October,

2018: 21 March

APPEALS – appeal against decision of Special Land Titles Commission regarding customary land ownership, land use rights, benefits – Land Titles Commission Act 1962, Section 38 (right of appeal) – whether Commission’s decision was: against the weight of the evidence; contrary to natural justice; wrong in law.

The appellant was a disputing party in proceedings of a Special Land Titles Commission (the first respondent) regarding ownership of customary land. He was aggrieved by the Commission’s decision to reject a claim by his clan for ownership of the land. He appealed to the National Court against the Commission’s decision to declare that the disputed land was exclusively owned by the second respondent’s clan and that four other persons, including the third respondent, who gave evidence at the hearings of the Commission, had land use rights and were entitled to prescribed shares of benefits from a mining project on the land. There were three grounds of appeal: (1) that the hearings of the Commission were conducted in a manner contrary to natural justice and that the decision was wrong in law; (2) that the decision was wrong in law in that it was ambiguous and contradictory; (3) that the decision was against the weight of the evidence.

Held:

(1) The hearings of the Commission were conducted contrary to natural justice as the Commission gave no express indication that it was proposing to award land use rights and benefit entitlements to persons who were witnesses, as distinct from disputing parties, and the decision to award such rights and benefits to persons who were not parties was contrary to Section 15 of the Land Titles Commission Act. Ground 1 was upheld.

(2) The decision was further wrong in law as it was ambiguous and contradictory. Ground 2 was upheld.

(3) The decision was against the weight of the evidence in that it failed to give sufficient weight to the substantial body of evidence presented by the appellant that his clan was the original owner of the land and maintained close socio-cultural links to the land and used it for agricultural purposes and placed too much weight on the second respondent’s clan’s later possession of the land. Ground 3 was upheld.

(4) The appeal was upheld and the Court substituted its decision for that of the Commission: (a) the land is jointly owned on a 50%: 25%: 25% basis by the second respondent’s clan, the third respondents’ clan and the appellant’s clan respectively; (b) benefits derived from the land shall be distributed on that basis.

Cases cited
The following cases are cited in the judgment:

Eddie Itarai v Sevuru Nokoma (2016) N6176
Gador Salub v Makurai Luedi (2016) N6519
Mathew Denguo Tigavu v Gamo Koito (2016) N6170
Re Wangaramut (No 2) [1969-70] PNGLR 410
Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163

APPEAL

This was an appeal by a person aggrieved by a decision of a Special Land Titles Commission as to ownership, land use rights and benefit entitlements in respect of a block of customary land.

Counsel:

G Pipike, for the Appellant
B B Wak, for the first and fourth Respondents

21^st March, 2018

1. CANNINGS J: Nicholas Garima, for himself and on behalf of Maure Duakai Narawa Clan, appeals against the decision of the Ramu Nickel-Cobalt Special Land Titles Commission of 12 August 2013 regarding customary ownership of an area of land known as “Maure”. It comprises the area of Special Mining Lease 8, Block 2, at Kurumbukari, Usino-Bundi District, Madang Province.

DECISION UNDER APPEAL

2. The Commission decided that:

• the second respondent, Bare Diri (and Maure Clan), has exclusive ownership rights over Maure land;
  
• four other persons, including the third respondent, Waskap Unua, have land use rights over Maure land;
  
• failing the signing of a benefits sharing agreement, benefits generated in respect of the Ramu Nickel-Cobalt project shall be shared between the second respondent and the four persons granted land use rights.
  

3. The appellant was a disputing party at the hearings of the Commission. He argued that his clan, Maure Duakai Narawa Clan, should be awarded exclusive ownership of the land. He and three other witnesses gave evidence in support of that argument. The Commission rejected his argument. The effect of the decision is that the appellant and his clan have no ownership or usage rights or benefit entitlements in respect of the land.

4. The full text of the decision, which was supported by a 17-page statement of reasons, reads:

The Commission:

1. Declares and orders that Bare Diri [the second respondent] and his Maure Clan has exclusive land ownership rights over Maure land.
   
2. Declares that Ruaija Bonou, Waskap Unua [the third respondent], Diri Movikai and Max Duguma have priority in terms of land use rights and must consent to decisions by Bare Diri affecting Maure land.
   
3. Directs that an equitable and fair benefits sharing agreement relating to Ramu Nickel/Cobalt Project benefits must be signed by Bare Diri, Diri Movikai, Ruaija Bonou, Waskap Unua and Max Duguma and others they wish to include in this agreement before the land use monies are paid by Ramu Nickel/Cobalt Project (or MCC); and failing that the Commission orders that the sharing of benefits will be as follows:
   
   1. Bare Diri 50%
   2. Ruaija Bonou and Waskap Unua 30%
   100. Diri Movikai 15%
   4. Max Duguma 5%.
      

5. The Commission, in the introduction to its decision, recognised four disputing parties. Three of them were designated as “applicants”:

• Maure Miringua, represented by Joseph Donguru;
  
• Maure Duakai Narawa, represented by Nicholas Garima (the appellant in this appeal);
  
• Maure Weiwei, represented by Waskap Unua (the third respondent in this appeal).
  

6. The other disputing party was designated as “the respondent”:

• Maure Clan, represented by Bare Diri (the second respondent in this appeal).
  

7. Each party claimed exclusive ownership of the land. The personal representative of each group gave evidence in support of their group’s claim and each group presented at least one other witness to support their claim to ownership. Each personal representative was permitted to cross-examine each witness for the other parties.

8. The Commission summarised the evidence of each party:

• the claim of Maure Miringua was supported by the evidence of Joseph Donguru and their other witness Bun Gogen Baiyom;
  
• the claim of Maure Duakai Narawa was supported by the evidence of Nicholas Garima and their other witnesses Tobias Bare Uri, Rudolph Marawa and Raphael Biom Marawa;
  
• the claim of Maure Weiwei was supported by the evidence of Waskap Unua and their other witnesses Daman Sigab and Gamo Koito;
  
• the claim of Maure was supported by the evidence of Bare Diri and their other witnesses Diri Movikai and Max Duguma.
  

9. The Commission rejected the claim of Maure Miringua as there was insufficient evidence that this was actually a sub-clan. Their evidence only went as far as showing that their ancestors were friends or trading partners with the Maure ancestors. The Commission rejected the claim of Maure Duakai Narawa as there was inadequate evidence that such a sub-clan existed and that it had an interest in Maure land. Its real interest was more likely to be in land in and around Emegari, which is some distance from the subject land. The Commission accepted the evidence of Waskap Unua and other witnesses for Maure Weiwei that it is likely that there is, in fact, such a sub-clan, though the evidence in that regard was not conclusive. There is evidence of their link to the subject land, though not to the extent necessary to be recognised as owners of the land. As to the claim by Maure clan, the Commission was strongly of the view that this clan was the traditional owner and that there was strong evidence that certain persons, viz Bare Diri, Diri Movikai, Ruaija Bonou, Waskap Unua and Diri Unua, are “true Maure people”.

APPEAL

10. The appellant has appealed under Section 38(1) (right of appeal) 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. Section 38(2) provides the grounds on which an aggrieved person can appeal:

An appeal under Subsection (1) may be made only on the ground that—

(a) the Commission has exceeded its jurisdiction;

(aa) the decision was against the weight of the evidence;

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

(c) the Commission was wrong in law.

11. The notice of appeal contained eight grounds of appeal. Five were abandoned. Three have been argued: numbers 2, 4 and 5, which I have renumbered for this judgment as 1, 2 and 3. They are:

(1) that the hearings of the Commission were conducted in a manner contrary to natural justice and that the decision was wrong in law in that land use rights and benefit entitlements were awarded to individual persons who were only witnesses, not parties, to the proceedings:

(2) that the decision was wrong in law in that it was ambiguous and contradictory;

(3) that the decision was against the weight of the evidence.

GROUND 1: AWARDING LAND USE RIGHTS AND BENEFIT ENTITLEMENTS TO PERSONS WHO WERE WITNESSES, NOT PARTIES

12. The appellant argues that the Commission’s decision conferred land use rights and benefits entitlements on four persons who were not parties to the proceedings: Ruaija Bonou and Waskap Unua of Maure Weiwei (who were jointly granted 30% of benefit entitlements) and Diri Movikai and Max Duguma of Maure clan (who were granted 15% and 5% respectively of benefits entitlements). Mr Pipike, for the appellant, submitted that this was both contrary to the principles of natural justice and wrong in law.

13. Mr Wak, for the Commission and the State, responded that there was nothing in the Land Titles Commission Act to prevent the Commission declaring ownership in favour of any person or group of persons; and it was not a precondition to an declaration of ownership that the person or group declared as the owner was a party to the proceedings of the Commission.

Wrong in law

14. Mr Wak’s submission, with respect, fails to pay regard to Section 15 (determination of disputes) of the Act, which provides:

(1) The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.

(2) After the period limited by Part VI for review of or appeal against a decision of the Commission has expired, and any proceedings on review have been completed and any appeals have been decided—

(a) a determination of the Commission under this or any other Act is, subject to Section 16, for all purposes and as against all persons conclusive evidence of the ownership as at the date of the decision, of the land the subject of the decision and of rights, titles, estates and interests in the land as set out in the decision; and

(b) the Commission shall forward a copy of its decision to the Registrar of Titles, who shall make such entries in Registers kept by him and issue such documents as are necessary, or as are directed by the Commission, to give effect to the decision of the Commission.

15. The key provision is Section 15(1), which is both a conferral of, and a constraint on, jurisdiction. The Commision has “exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of ... any land, water or reef”. I uphold Mr Pipike’s submission that in hearing and determining disputes and claims regarding ownership by custom of land, the Commission can only determine disputes and claims in respect of persons, clans or other groups who are parties to the dispute or who have made claims of ownership. In the present case the four persons on whom the Commission conferred land use rights and benefit entitlements – Ruaija Bonou and Waskap Unua of Maure Weiwei, and Diri Movikai and Max Duguma of Maure clan – were neither parties to the dispute nor claimants to the land. They were, except for Ruaija Bonou, witnesses. Ruaija Bonou was not even a witness. The Commission lacked jurisdiction to confer land use rights and benefit entitlements on them. To that extent, the Commission’s decision was wrong in law.

Natural justice

16. As to the other limb of this ground of appeal, I find that the hearings of the Commission were conducted contrary to natural justice. The Commission gave no express indication that it was proposing to award land use rights and benefit entitlements to persons who were only witnesses, as distinct from disputing parties. The decision to award land use rights and benefit entitlements to persons who were not parties was unexpected. It was incumbent on the Commission to notify the parties, particularly those such the appellant’s clan who received nothing under the Commission’s final decision, that it was contemplating such a decision. This is akin to the rule of procedural fairness developed by the Privy Council in Mahon v Air New Zealand Ltd [1984] AC 808: an inquisitorial body such as a commission of inquiry must inform parties to the proceedings if an adverse finding against a party is within the contemplation of the body, in order to give the party an opportunity to respond and adduce evidence that may deter the body from making such findings.

17. I find that it was procedurally unfair of the Commission to make a decision that favoured certain individuals without telling the parties that that sort of decision was within its contemplation. Ground 1 is therefore upheld.

GROUND 2: DECISION WAS AMBIGUOUS AND CONTRADICTORY

18. It is argued that the Commission’s decision was wrong in law as it was ambiguous and contradictory in that the Commission awarded land use rights to members of a clan that was awarded exclusive ownership of the land. I find merit in this argument. Diri Movikai was awarded land use rights and 15% of benefit entitlements. Max Duguma was awarded land use rights and 5% of benefit entitlements. Both men were found to be members of Maure clan, which was awarded exclusive ownership of the land.

19. I uphold Mr Pipike’s submission that there was no need for them to be accorded land use rights or benefit entitlements. Such rights and entitlements came to them by virtue of their membership of Maure clan. I agree that this aspect of the Commission’s decision should, at best, be labelled ambiguous. However, it is better described, with respect, as contradictory and illogical. It is properly regarded as wrong in law. Ground 2 is upheld.

GROUND 3: DECISION WAS AGAINST THE WEIGHT OF THE EVIDENCE

20. To prove that the Commission’s decision was against the weight of the evidence it is necessary for the appellant to:

• put before the National 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 (Re Wangaramut (No 2) [1969-70] PNGLR 410, Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163).
  

21. I find that the appellant has met those requirements. He has:

• put, as best as he could reasonably be expected to have done in the circumstances (due to difficulties in obtaining transcripts of the proceedings), before the National Court, the evidence that was before the Commission;
  
• shown how the Commission misconstrued the probative value of the evidence of the appellant and the substantial body of evidence from four witnesses that the Maure Duakai Narawa sub-clan had a close and continuing connection with the land; and
  
• shown why the Commission’s decision that the second respondents’ clan has land ownership rights to the exclusion of all other groups is wrong and cannot be supported by the evidence.
  

22. I am persuaded by the submissions of Mr Pipike that the Commission’s decision was against the weight of the evidence, in that it failed to give sufficient weight to the substantial body of evidence presented by the appellant that his clan was the original owner of the land and maintained close socio-cultural links to the land and used it for agricultural purposes and placed too much weight on the second respondent’s clan’s more recent possession of the land. Ground 3 is upheld.

CONCLUSION

23. All grounds of appeal have been upheld. 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.

24. 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.

25. I will not make the order sought by the appellant, which would declare that the appellant’s clan is the owner of the land to the exclusion of all other parties including the second respondent. That would not be a just order. One of the features of this case is the conflicting evidence before the Commission about which clan had the most direct genealogical link to the original owners. While I have found error on the part of the Commission in making a decision against the weight of the evidence, I am not satisfied that the evidence so strongly favours the appellant’s clan that they should be regarded in genealogical or other terms as the direct and exclusive descendants of the original owner. The appellant’s clan should only be recognised as partly owning the land. And the same goes for the Maure Weiwei clan represented by third respondent Waskap Unua: they should be regarded as partly owning the land. Furthermore the dominant position of the second respondent’s clan, Maure clan, should continue to be recognised.

26. The best and fairest thing to do is to make an order that takes into account all conflicting evidence and recognises that the appellant’s clan and the second and third respondents’ clans have valid claims to joint ownership. I have applied the notion of joint ownership of customary land by two or more clans or groups in previous appeals against the Ramu Nickel-Cobalt Special Land Titles Commission (eg Gador Salub v Makurai Luedi (2016) N6519, Mathew Denguo Tigavu v Gamo Koito (2016) N6170, Eddie Itarai v Sevuru Nokoma (2016) N6176). The approach I am taking in this case is consistent with the approach in those cases.

27. I will declare and order that: (a) the land is jointly owned on a 50%: 25%: 25% basis by the second respondent’s clan, the third respondents’ clan and the appellant’s clan respectively; and (b) benefits derived from the land shall be distributed on that basis.

28. I will order the parties to bear their own costs as, though the appellant has succeeded in the sense that the appeal is upheld, he has not succeeded totally as the order that the order he was seeking (a declaration as to exclusive ownership of the land) has not been granted. All interim orders staying the Commission’s decision will be dissolved.

ORDER

29. It is ordered that:

(1) The appeal is upheld.

(2) The decision under appeal, being the decision of the Ramu Nickel-Cobalt Project Special Land Titles Commission of 12 August 2013 in the matter of the dispute over land known as “Maure”, Special Mining Lease 8, Block 2, Kurumbukari, is quashed.

(3) 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, by which the National Court of Justice:

• (a) declares and orders that the Maure Clan and the Weiwei Maure Clan and the Maure Duakai Narawa Clan are the joint traditional landowners, on a 50/25/25 basis, of “Maure” land in so far as it comprises Special Mining Purpose Lease, Block 2, Kurumbukari of the Ramu Nickel-Cobalt Project;
  
• (b) directs that the sharing of benefits in relation to the Ramu Nickel-Cobalt Project re “Maure” land in so far as it comprises Special Mining Purpose Lease, Block 2, Kurumbukari, will be as follows:
  

(i) Maure Clan = 50%;

(ii) Weiwei Maure Clan = 25%; and

(iii) Maure Duakai Narawa Clan = 25%.

(4) All interim orders staying the Commission’s decision are dissolved.

(5) The parties will bear their own costs.

(6) The file is closed.

Judgment accordingly,

________________________________________________________________
GP Lawyers: Lawyers for the Appellant
Solicitor-General: Lawyer for the First & Fourth Respondents