Greg Anton for and on behalf of Mangusai Clan of Upper Ramu, Madang Province (Appellants) v Tarari Prinawai and Makari Clan of Upper Ramu, Madang Province (First Respondents) and Joseph Gabut, Benedict Batata & Kutt Paonga, Comprising the Ramu Nickel/Cobalt Special Land Titles Commission (Second Respondents) and the Ramu Nickel/Cobalt Special Land Titles Commission (Third Respondent) and The Independent State of Papua New Guinea (Fourth Respondent ) (2019) N7788

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 02 April 2019
• Court: National Court
• Citation: (2019) N7788
• Docket Number: CIA NO 98 OF 2013
• Year: 2019
• Judgement Number: N7788

Full Title: CIA NO 98 OF 2013; Greg Anton for and on behalf of Mangusai Clan of Upper Ramu, Madang Province (Appellants) v Tarari Prinawai and Makari Clan of Upper Ramu, Madang Province (First Respondents) and Joseph Gabut, Benedict Batata & Kutt Paonga, Comprising the Ramu Nickel/Cobalt Special Land Titles Commission (Second Respondents) and the Ramu Nickel/Cobalt Special Land Titles Commission (Third Respondent) and The Independent State of Papua New Guinea (Fourth Respondent ) (2019) N7788

National Court: Cannings J

Judgment Delivered: 2 April 2019

N7788

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 98 OF 2013

GREG ANTON FOR AND ON BEHALF OF

MANGUSAI CLAN OF UPPER RAMU, MADANG PROVINCE

Appellants

V

TARARI PRINAWAI

AND MAKARI CLAN OF UPPER RAMU, MADANG PROVINCE

First Respondents

JOSEPH GABUT, BENEDICT BATATA & KUTT PAONGA, COMPRISING THE RAMU NICKEL/COBALT

SPECIAL LAND TITLES COMMISSION

Second Respondents

THE RAMU NICKEL/COBALT

SPECIAL LAND TITLES COMMISSION

Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Madang: Cannings J

2019:11 March, 2 April

APPEALS – appeal against decision of Special Land Titles Commission regarding customary land ownership – Land Titles Commission Act 1962, Section 38 (right of appeal) – whether Commission exceeded its jurisdiction, made a decision against weight of the evidence, conducted its hearings contrary to natural justice, was wrong in law.

The appellants’ clan was a disputing party in proceedings of a Special Land Titles Commission regarding ownership of customary land. They were aggrieved by the Commission’s decision to reject a claim by their clan for ownership of the land. They appealed to the National Court against the Commission’s decision to declare that the disputed land was exclusively owned by the first respondents’ clan. There were four grounds of appeal: (1) the Commission exceeded its jurisdiction by declaring ownership of only some of the blocks of land constituting the matter before it; (2) the decision was against the weight of the evidence; (3) the hearings of the Commission were conducted in a manner contrary to natural justice; and (4) the decision was wrong in law, in that the Commission failed to comply with Section 13A of the Land Titles Commission Act.

Held:

(1) The Commission did not exceed or fail to exercise its jurisdiction, as the alleged failure to make a decision on all the blocks of disputed land was due to a typographical error. Ground 1 was dismissed.

(2) 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 appellants that their clan was the original owner of the land and placed too much weight on the first respondents’ clan’s later possession of the land. Ground 2 was upheld.

(3) The hearings of the Commission were not conducted contrary to natural justice as the Commission gave equal opportunity to be heard to both disputing parties and there was no apprehension of bias in favour of any party. Ground 3 was dismissed.

(4) The Commission was wrong in law in that by ignoring evidence given by the appellants at the hearings of the originally-constituted Commission (before a commissioner who died in office) the Commission failed to comply with its duty under Section 13A of the Land Titles Commission Act to recognise and consider that evidence. Ground 4 was upheld.

(5) The appeal was upheld and the Court substituted its decision for that of the Commission: (a) the land is jointly owned on a 50/50 basis by the appellants’ clan and the first respondents’ clan; (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

Jacob Toga v Special Land Titles Commission (2018) N7632

Mathew Denguo Tigavu v Gamo Koito (2016) N6170

Nicholas Garima v Special Land Titles Commission (2018) N7159

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 members of a clan aggrieved by a decision of a Special Land Titles Commission as to ownership of an area of customary land.

Counsel

G Pipike, for the Appellants

J Lai, for the first Respondents

2nd April, 2019

1. CANNINGS J: Greg Anton for himself and on behalf of Mangusai Clan (the appellants) appeal 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 “Makari”. It comprises blocks 50 to 69 of Mining Easement 76, an area of 30.4 hectares, at Kurumbukari, Usino-Bundi District, Madang Province.

DECISION UNDER APPEAL

2. The Commission decided that the first respondents, Tarari Prinawai and Makari Clan, have exclusive ownership rights of Makari land.

3. The appellants were a disputing party at the hearings of the Commission. They argued that the Mangusai Clan should be awarded exclusive ownership of the land. The clan representative and primary appellant, Greg Anton (aka Greg Kutua), and Steven Kumbiai gave evidence in support of that argument, which the Commission rejected. The effect of the decision is that the appellants’ clan has 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 14-page statement of reasons, reads:

The Commission declares that Tarari Prinawai and his Makari Clan [first respondents] have exclusive customary land ownership of the Makari land, namely blocks 59-69 [sic] of Mining Easement No 76 of the Ramu Nickel/Cobalt Project.

APPEAL

5. The appeal is 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.

6. The notice of appeal contains four grounds of appeal, numbered (a) to (d), which are renumbered for this judgment as (1) to (4):

i) that the Commission exceeded its jurisdiction by declaring ownership of only some (Nos 59 to 69) of the blocks of land constituting the matter before it (Nos 50 to 69);

ii) that the decision was against the weight of the evidence;

iii) that the hearings of the Commission were conducted in a manner contrary to natural justice; and

iv) that the decision was wrong in law, in that the Commission failed to comply with Section 13A of the Land Titles Commission Act.

GROUND 1: COMMISSION EXCEEDED ITS JURISDICTION

7. The appellants point to the error in the Commission’s formal decision, which purports to determine ownership of blocks “59-69” only, and not 50-69 as should have been the case. The appellants argue that this is an example of the Commission exceeding its jurisdiction or, as stated in the notice of appeal, ‘not acting within its jurisdiction’.

8. This is a trivial argument. It is clear from the formal description of the decision, expressed to be a dispute “over Special Mining Lease No 76 over a piece of land known as “Makari” over blocks 50-69 respectively, within Mining Easement No 76 of the Ramu Nickel/Cobalt Project” that the decision covered blocks 50 to 69 and not just 59 to 69. It is equally clear that the alleged failure to make a decision on all the blocks of disputed land was due to nothing more than an obvious but uncorrected typographical error. The Commission did not exceed or fail to exercise its jurisdiction. Ground 1 is dismissed.

GROUND 2: DECISION WAS AGAINST THE WEIGHT OF THE EVIDENCE

9. To prove that the Commission’s decision was against the weight of the evidence it is necessary for the appellants 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).

10. I find that the appellants have met those requirements. They have:

· put before the National Court, the evidence that was before the Commission;

· shown how the Commission misconstrued the probative value of the evidence that the appellants had well documented genealogical and socio-economic links to the land, which supported their argument that they were the original owners of the land, while the first respondents’ clan were...