The State v Bruno Tanfa Chilong (2009) N3578

• Jurisdiction: Papua New Guinea
• Judge: Sevua, J
• Judgment Date: 23 October 2008
• Citation: (2009) N3578
• Docket Number: CR 1836 OF 2005
• Court: National Court
• Year: 2009
• Judgement Number: N3578

Full Title: CR 1836 OF 2005; The State v Bruno Tanfa Chilong (2009) N3578

National Court: Sevua, J

Judgment Delivered: 23 October 2008

N3578

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1836 OF 2005

THE STATE

-v-

BRUNO TANFA CHILONG

Vanimo: Sevua, J

2008: 15, 16, 17 & 23 October

CRIMINAL LAW – Misappropriation – Plea of not guilty - Accused employed as Lands Officer with Lands Office, Vanimo – Accused facilitated preparation of documents including Deeds of Releases for payment for three portions of customary land at Wutung – Payment made to his brother – Accused claimed his father is the customary land owner therefore entitled to payment.

CRIMINAL LAW – Misappropriation - Payment made to accused’s brother on basis that land in question belonged to their father - Honest claim of right – Whether issue of honest claim of right arises - Whether the customary land the subject of the payment relating to this charge is owned by accused’s father and his clan – Whether accused misappropriated the money.

Criminal Code Act, ss 383A (1) and (2) (b) and (d), 23.

Held.

1. The three portions of land the subject of payment by BSP cheque

No. 102713 are owned by Stanis Tanfa Chilong the father of the accused and his Hlongchin clan by customary law therefore payment made to the accused was based on that ownership by custom.

2. The defence of honest claim of right is available to the accused and

his father in respect of the customary ownership of the portions of land in question therefore the accused claiming under his father had the right to the money as payment of the portions of land, the subject of the money in question.

3. The accused is not guilty of misappropriating the sum of

K45, 000.00 and is therefore acquitted of the charge.

Cases cited in the judgment.

Rokpa v. The State [1994] PNGLR 535

Lawi v. The State [1987] PNGLR 183

R v. Magalu [1974] PNGLR 188

Counsel

J. Wala, for State

M. Mwawesi, for Accused

23 October, 2008

1. SEVUA, J : The accused is charged with the misappropriation of the sum of K45, 000.00 contrary to s. 383A (1) and (2) (b) and (d) of the Criminal Code Act.

2. The allegations against the accused are these. The accused was employed as a Lands Officer in the Sandaun Provincial Lands Office in Vanimo. In 2003, he abused his position by manipulating certain land documents in favour of his brother Robby Tanfa and his father Chilong Tanfa so that payment of certain portions of land between Wutung village and the Border Post near Wutung were paid to his brother Robby Tanfa, which land, the State alleges belonged to the Hlongthu clan headed by Paramount Chief Alois Waho.

3. The portions of land are Portion 103 called Paleh Hlungmihyang valued at

K10, 000.00; Portion 104 called Hlongchung valued at K15, 000.00, and Portion 105 called Paleh Hlungmihyang Whaelakhu valued at K20, 000.00.

4. The State further alleges that on 16th December 2003 the accused raised a claim for payment of the K45, 000.00, but did not have the chiefs of Hlongthu clan execute the Deeds of Release. These were executed by the accused’s brother Robby Tanfa and his father Chilong Tanfa.

5. On 17th December 2003, the accused with another lands Officer from Port Moresby, Rogakila together with Robby Tanfa went to BSP Vanimo where the cheque was cashed and the proceeds given to his brother Robby Tanfa without the authority of Alois Waho and other chiefs from the land owning clan.

6. It is also alleged that in the documents prepared by the accused, he had his brother Robby Tanfa as a representative or signatory to the Deeds of Release for the payment of the sum of K45, 000.00.

7. Therefore the State alleges that the accused misappropriated the sum of

K45, 000.00, the property of the State.

8. On arraignment, the accused pleaded not guilty to the charge and therefore put the State to proof.

9. A number of documents were tendered by consent as part of the State’s case. These were admitted and marked as follows:-

1. Record of Interview Exh. “A”

2. Special Land Investigation Report Exh. “B”

3. Native Land Dealings No 6241 Exh. “C”

4. Native Land Dealing No 6240 Exh. “D”

5. Native Land Dealing No 6242 Exh. “E”

6. Schedule of Owners, Status and Rights Exh. “F”

7. Deed of Release Portion 103 Exh. “G”

8. Deed of Release Portion 104 Exh. “H”

9. Deed of Release Portion 105 Exh. “I”

10. Certificate by Officer Executing Document Exh. “J”

11. General Expenses Form Exh. “K”

12. Requisition for Expenditure Exh. “K1”

13. Original BSP Cheque #102713 Exh. “L”

14. Statement of Audry Kilalang Exh. “M”

15. Statement of Dennis Lamus Exh. “N”

16. Statement of Bernard Poya Exh. “O”

17. Certificate of Alienability Exh. “P”

18. Certificate of Alienability Exh. “P1”

19. Certificate of Alienability Exh. “P2”

10. Prosecution witnesses who gave evidence on oath were Alois Waho, Martin Naugere, Patrick Ante, Thomas Nara and Steven Yigrin. Apart from the last witness who was the former District Administrator for Vanimo Green, the first four witnesses are from Wutung village.

11. The State called these four Wutung villagers to give evidence of customary ownership of land; how land was inherited, who were the persons who should have received the payment the subject of this charge against the accused, and whether the accused’s father is a landowner and therefore entitled to the payment.

12. Without canvassing the evidence of each of the four witnesses separately, I consider it sufficient to summarise the four witness’ testimony because their evidence is basically the same in nature.

13. The first witness, Alois Waho is said to be the Paramount Chief of Hlongthu Clan of Wutung village. Under his chieftainship are three sub-clans Ningmie, Tingwua and Yingmie. It should be said here that the words Sub-clans and Clans were used interchangeably in the testimony of these four witnesses therefore the Court is not sure as to whether these three entities were actually clans or sub-clans.

14. It should also be stated that the Hlongthu Clan was also referred to as Hlongthu Tribe. And again the Court is not sure whether it is a Tribe or a Clan. The prosecution has not clarified these two aspects of the witnesses’ evidence. I consider that this is relevant because in order to understand the inheritance of customary land, we need to understand whether land was being inherited from a Tribe or a Clan and whether there is more than one owner of a particular parcel of land.

15. Another matter left unresolved by the State in so far as the evidence of Alois Waho is concerned is that the witness said his name is Alois Waho. However in the documents admitted into evidence and marked respectively as Exhibits “C”, “D” and “E” which are identified in the evidence as Native Land Dealings Numbered 6241, 6240 and 6242; and which the State sought to rely on, the name Alois Waho is not in those documents, but there is a person named Alois Whahong. Again it is not clear if Alois Waho and Alois Whahong are the one and same person as the first witness.

16. Another issue is whether there was only one ancestor or more than one ancestor of these four witnesses who migrated to Waramo then to Wutung. Once again the words ancestor and ancestors were used interchangeably.

17. The State has not clarified these issues therefore the Court is left guessing as to the true and correct status of Hlongthu, whether it is a Tribe or a Clan and whether the tree customary groups are clans or sub-clans together with whether Alois Waho is the same person as Alois Wahong.

18. The lack of clarification or explanation is the first matter that needs to be raised at this juncture. I need not restate the law that this is a criminal trial and matters of fact which the prosecution seeks to rely on must be proven on the criminal standard of proof, which is, proof beyond reasonable doubt. There is no place for guess work, assumption and speculation in a criminal trial. That is trite law.

19. In essence the evidence of the first four witnesses, that is, Alois Waho, Martin Naugere, Patrick Ante and Thomas Nara are this. Their ancestors descended from the bush or inland area and settled at Waramo village, which is the second village West of Vanimo Township if one is travelling to the border of Papua New Guinea and Indonesia. After settling at Waramo village the ancestor or ancestors migrated to Wutung village. No time frame was given except that the witnesses referred to them as the 10th or 12th generations of Wutung.

20. When the ancestor migrated to Wutung village, he married a woman from Hlongchin Clan of Wutung. Hlongchin Clan belongs to the accused’s father, Stanis Tanfa Chilong although the witnesses said that clan is now extinct, which evidence is directly in contradiction to the evidence of the accused and his father Stanis Tanfa Chilong. From that marriage, there were three sons who established the three clans or sub-clans Ningmie, Tingwua and Yingmie. There is no evidence of the names of those three sons and there is no evidence that the three clans or sub-clans derived their names from those three sons.

21. The heads of the three clans or sub-clans are Alois Waho, Chief of Ningmie; Alois Blebong, Chief of Tingwua and Stanis Tanfa Chilong Chief of Yingmie.

22. Also from the marriage of that migrant from Waramo to Wutung, land ownership rights were given to the three...