Madaha Resena, Raho Gaigo and Igo Oala (on behalf of themselves and all other members of the Iduhus (clans) of Tatana Village) v The Independent State of Papua New Guinea (Re Fisherman's Island) [1991] PNGLR 174

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Amet J, Los J
• Judgment Date: 28 June 1991
• Citation: [1991] PNGLR 174
• Court: Supreme Court
• Year: 1991
• Judgement Number: SC409

Full Title: Madaha Resena, Raho Gaigo and Igo Oala (on behalf of themselves and all other members of the Iduhus (clans) of Tatana Village) v The Independent State of Papua New Guinea (Re Fisherman's Island) [1991] PNGLR 174

Supreme Court: Kapi DCJ, Amet J, Los J

Judgment Delivered: 28 June 1991

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MADAHA RESENA, RAHO GAIGO AND IGO OALA (ON BEHALF OF THEMSELVES AND ALL OTHER MEMBERS OF THE IDUHUS (CLANS) OF TATANA VILLAGE)

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Kapi DCJ Amet Los JJ

31 October 1990

28 June 1991

CONSTITUTIONAL LAW — Underlying law — Formulation of — Pre-requisites to — Evidential inquiry into custom — Determination of consistency with particular matter — Constitution, Schs 2.1, 2.2 (1), 2.3.

REAL PROPERTY — Compensation claim — Claim to native title established — Compensation for wrongful occupation — Whether claim to be based on common law or custom — Discussions of — Constitution, Schs 2.1, 2.2 (1).

CONSTITUTIONAL LAW — Underlying law — Common law — Custom — Whether dual system — Whether custom superior to common law — Discussion of — Constitution, Schs 2.1, 2.2 (1).

Under the Land Titles Commission Act 1963, the Land Titles Commission had jurisdiction to determine the ownership of land by native custom. The Commission determined that Fisherman's Island was not waste and vacant land but was occupied, cultivated, used and owned by the natives of Tatana Village.

In subsequent proceedings for damages for wrongful occupation of the Island for 100 years, the villagers claimed, under five headings of common law damages, namely, occupation fees, removal of fixtures, damages for re-instatement, consequential loss and exemplary damages, together with statutory interest.

The trial judge determined that because the claim to ownership of Fisherman's Island was based on custom, the claims for compensation were relevantly matters which should be regulated wholly by custom and not by the common law pursuant to s 5 (g) of the Customs Recognition Act (Ch No 9); he then formulated and applied rules pursuant to Sch 2.3 of the Constitution.

On appeal,

Held

(1) The pre-requisites to formulation of an appropriate rule of law as part of the underlying law under Sch 2.3 of the Constitution are:

(a) an inquiry into and proof by evidence of the existence of and application of any relevant principle of customary law; and

(b) whether the particular matter is inconsistent with the principles of customary law as found in accordance with Sch 2.2 (1) of the Constitution.

(2) The matter should be remitted for rehearing before another judge of the National Court to determine whether there is any relevant custom by which damages might be assessed.

(Per Kapi Dep CJ; Los J reserving his opinion) There is a dual system of law applicable to the indigenous inhabitants of Papua New Guinea as to which, where both are applicable, indigenous litigants have a right of election, namely, custom as applied under Sch 2.1 of the Constitution and common law applied under Sch 2.2 of the Constitution.

(Per Amet J; Los J reserving his opinion) The adoption, application and enforcement of appropriate custom under Sch 2.1 of the Constitution is superior to any principle of common law or equity.

(Per Los J) Until such time as the Supreme Court decides otherwise, in cases where there is no relevant statutory law, parties have a right to choose whether to apply common law or custom.

Decision of Bredmeyer J in Madaha Resena v Independent State of Papua New Guinea [1990] PNGLR 22, reversed in part.

Cases Cited

Arthur Agevu v Government of Papua New Guinea [1977] PNGLR 99.

Aundak Kupil and Kauke Kensi v Independent State of Papua New Guinea [1983] PNGLR 350.

Fisherman's Island, Re [1979] PNGLR 202.

Iambakey Okuk v Fallscheer [1980] PNGLR 274.

Madaha Resena v Independent State of Papua New Guinea [1990] PNGLR 22.

Mwaura s/o Kamau v Gatoto s/o Mwangi (1962) EA 528.

Nyokabu v Public Trustee (1965) EA 530.

Sannga, Deceased, Re [1983] PNGLR 142.

State, The v Paul Pokalo [1983] No N 404.

SCR No 4 of 1980; Re Constitution and Somare [1981] PNGLR 265.

Ume More v University of Papua New Guinea [1985] PNGLR 401.

Appeal

This was an appeal from a decision in Bredmeyer J, namely, Madaha Resena v Independent State of Papua New Guinea [1990] PNGLR 22, in which he determined a claim to compensation for wrongful occupation of native lands.

Counsel

I Shephard, for the appellants.

I Mesulam, for the respondent.

28 June 1991

KAPI DCJ: This is an appeal from a decision of the National Court.

The appellants/plaintiffs are the customary owners of the island known as "Fisherman's Island". In a writ of summons they sued the State of Papua New Guinea for damages under five heads of claim under the principles of common law — occupational fees, damages for destruction and removal of fixtures, damages for reinstatement of land to original condition, consequential loss and exemplary damages.

In brief, the trial judge concluded that the appellants made the wrong choice of remedy in basing their cause of action in common law. He concluded that the cause of action should be brought in accordance with the principles of custom. The trial judge reached this conclusion on the basis that the claim to the ownership of "Fisherman's Island" was based on customary law: see Madaha Resena v Independent State of Papua New Guinea [1990] PNGLR 22.

Based on this conclusion, the trial judge proceeded to examine the custom. He concluded that there was no evidence of any custom. Having reached the conclusion that the principles of common law were the wrong choice and that there was no evidence of custom, he proceeded to create a new principle of underlying law under Sch 2.3 of the Constitution. The trial judge then proceeded to create the new underlying law in relation to the cause of action and principles relating to the assessment of damages. He assessed the damages in favour of the appellants for K47,604.10.

The appellants have appealed against the whole of the decision.

OWNERSHIP OF "FISHERMAN'S ISLAND"

The appellants' cause of action is based on their claim of ownership of "Fisherman's Island". There has been a long-standing dispute as to the ownership of the island. It is helpful to outline the litigation regarding the ownership of the island.

Formal claims for the ownership of the island were commenced in 1964. Several clans made claims to the customary ownership of the island. On 13 December 1965, the Land Titles Commission made a ruling that none of the customary claimants owned the land. There was an appeal to the pre-Independence Supreme Court against this decision. On 6 October 1969, by consent of the parties, the decision was quashed and the matter was sent back to the Land Titles Commission for rehearing.

The matter came before the Land Titles Commission again and, on 16 December 1974, the Chief Commissioner of the Land Titles Commission stated a case to the pre-Independence Supreme Court on the following questions:

1. Was any prerogative, or other authority, vested in the Administration of British New Guinea prior to June 1890 "to take possession of, on behalf of the Crown, as being waste and vacant", land within the Possession?

2. If such authority existed and was exercised has the Land Titles Commission jurisdiction to hear and determine claims under s 15 of the Land Titles Commission Act in respect of such land?

These two questions were answered by O'Meally A-J and are reported in Arthur Agevu v Government of Papua New Guinea [1977] PNGLR 99. He answered these questions as follows (at 106):

"1. Yes.

2. No. However, the Commission has jurisdiction to ascertain whether land is waste and vacant where also there is a question of native ownership or the right by native custom to use it."

His Honour (at 101) said:

"It is important to note at the outset that in the form in which these questions are presented they do not relate specifically to any matter in issue between the parties. The answers will relate to capacity; they will be of general application and will not in any way affect the rights of parties inter se. No matter of fact is decided by me and subject to any appeal from the Land Titles Commission the ownership of and interests in the land the subject of the dispute are decided by it."

The Land Titles Commission then proceeded to hear the claims of the various parties and decided that "Fisherman's Island" is government land and not native land. This decision was appealed to the National Court and the decision of the Land Titles Commission was quashed and the matter was sent back to the Commission for rehearing: see Re Fisherman's Island [1979] PNGLR 202. This matter then came before the Chief Commissioner, Mr Theodore Miriung. The Chief Commissioner handed down his decision on 18 April 1985. Following on from the decision of O'Meally A-J to the effect that the Administration of British New Guinea prior to June 1890 had authority to...