Nicholas Garima v Joseph Gabut

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 March 2018
• Citation: (2018) N7159
• Court: National Court
• Year: 2018
• Judgement Number: N7159

Full : CIA No 114 of 2013; Nicholas Garima on behalf of Maure Duakai Narawa Clan of Gaiziban Village, Usino-Bundi District, Madang Province v Joseph Gabut, Benedict Batata & Kutt Paonga, comprising the Ramu Nickel/Cobalt Special Land Titles Commission and Bare Diri of Maure Clan of Wianivi Village, Usino-Bundi District, Madang Province and Waskap Unua of Maure Weiwei Clan of Banu Village, Usino-Bundi District, Madang Province and the Independent State of Papua New Guinea (2018) N7159

National Court: Cannings J

Judgment Delivered: 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

21st 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:

a) Bare Diri 50%

b) Ruaija Bonou and Waskap Unua 30%

c) Diri Movikai 15%

d) 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,...