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) [1990] PNGLR 22

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J
• Judgment Date: 09 January 1990
• Citation: [1990] PNGLR 22
• Court: National Court
• Year: 1990
• Judgement Number: N793

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) [1990] PNGLR 22

National Court: Bredmeyer J

Judgment Delivered: 9 January 1990

N793

PAPUA NEW GUINEA

[NATIONAL 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 (RE FISHERMAN'S ISLAND)

Waigani

Bredmeyer J

22 November 1989

9 January 1990

CONSTITUTIONAL LAW — Underlying law — Choice of law — Custom as prime source of law — Customary title to land — Compensation for wrongful occupation by government — Claims to be based on custom — Development of underlying law — Constitution, Sch 2 — Customs Recognition Act (Ch No 19), s 5 (g).

REAL PROPERTY — Land titles — Claim established — Compensation claim for wrongful occupation by government — Claim to be based on custom — Relevant principles developed — Compensation to be fair and reasonable to both parties — Calculation of — Interest on — Constitution, Sch 2 — Customs Recognition Act (Ch No 19), s 5 (g) — Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52), s 1.

TRESPASS — Trespass to land — Compensation for — Wrongful occupation of customary land by government — Claim to be based on custom — Relevant principles developed — Compensation to be fair and reasonable to both parties — Calculation of — Interest on — Constitution, Sch 2 — Customs Recognition Act (Ch No 19), s 5 (g) — Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52), s 1.

In 1985, a Chief Commissioner of the Land Titles Commission determined in proceedings under the Land Titles Commission Act 1963 to determine a claim in respect of native ownership or the right by native custom to the use of land, that "Fisherman's Island prior to June 1980" was not waste and vacant land but land occupied, cultivated, used and owned by the natives of Tatana Village.

The members of the clans of Tatana Village claimed damages for wrongful occupation of the Island for 100 years. The claim related to occupation of parts of the Island by the Government over that time for various purposes including a State coconut plantation, a quarantine station, a licence to settle and a Government airstrip.

The claim was made under five headings of common law damages, namely, occupation fees, removal of fixtures, damages for reinstatement, consequential loss and exemplary damages, together with interest under the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52).

Under the Constitution, Sch 2, custom is adopted and applied as part of the underlying law and the principles and rules of common law and equity cannot be applied or enforced if they are inconsistent with custom.

The Customs Recognition Act (Ch No 19), s 5 (g), relevantly provides that custom may be taken into account in civil cases where:

"A transaction that —

(g)

(i) the parties intended should be; or

(ii) justice requires should be,

regulated wholly or partly by custom and not by law; or

(h) ...

or where the court thinks that by not taking the custom into account injustices will or may be done to a person."

Held:

(1) Under Sch 2 of the Constitution, custom is the prime source of the underlying law and the common law of England is the secondary source.

(2) Because the claim to ownership of Fisherman's Island was based on custom, the claims for compensation were relevantly transactions which justice required should be regulated wholly by custom and not by the common law, pursuant to s 5 (g) of the Customs Recognition Act.

(3) In the absence of a relevant customary law on trespass by the Government on customary land, it was appropriate to apply Sch 2.3 of the Constitution and to formulate appropriate rules.

(4) Compensation for wrongful occupation by the Government of customary land should be fair and reasonable to both parties.

(5) In the circumstances, no compensation should be awarded in respect of the State coconut plantation from which the clans of Tatana Village had benefited, but compensation should be awarded for the quarantine station, the licensed settlement and the Government airstrip.

(6) Compensation should be calculated on the basis of an economic rent for the relevant part of the Island fixed at a percentage of the unimproved capital value of that part, reappraised every five years allowing for inflation of 5 per cent.

(7) Because the Government acted in good faith in taking possession of parts of the Island and in erecting thereon buildings for use in connection with the airstrip, no compensation should be awarded for removal of those improvements.

(8) Because the Government had acted in good faith in 1889 in taking possession of the Island and in using it for three different kinds of public purposes and until 1985 had good title at law to the land, no customary damages equivalent to common law exemplary damages should be awarded and no analogous rule of custom formulated.

(9) Interest on compensation should be awarded under s 1 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52).

Cases Cited

The following cases are cited in the judgment:

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

Arthur Ageva v Bobby Gaigo [1986] PNGLR 160.

Arthur Ageva v Gaigo [1987] PNGLR 12.

Jefford v Gee [1970] 2 QB 130.

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Re Fisherman's Island [1979] PNGLR 202.

Rookes v Barnard [1964] AC 1129.

Statement of claim

These were proceedings claiming damages for wrongful occupation of land.

Counsel:

I Shepherd, for the plaintiffs.

Z Gelu, for the defendant.

Cur adv vult

9 January 1990

BREDMEYER J.: This is a claim by the plaintiffs for damages for the Government's wrongful occupation of Daugo or Fisherman's Island for 100 years. The claim is made under five common law heads of damages, which I will mention later, totalling K341,069, plus interest under the Judicial Proceedings (Interest on Debts and Damages Act) (Ch No 52) of K206,509, total K547,578.

The plaintiffs are the owners of Fisherman's Island, having gained a decision in their favour from Chief Commissioner Miriung of the Land Titles Commission on 18 April 1985, a decision which came at the end of protracted litigation. In 1964, four claims to the ownership of Fisherman's Island were lodged by four groups from nearby villages. One of the claims was lodged by a group from Tatana Village representing the present applicants. Those claims came on for hearing before Chief Commissioner Kelliher in 1964 and at that hearing they were opposed by the then Administration. I appeared as a young counsel for the Administration. I mentioned this to counsel for the plaintiffs at the outset of this trial but he said that he was instructed that his clients had no objection to my hearing this case despite my earlier involvement in it. On 20 December 1965, the Chief Commissioner decided that none of the claimant groups owned the island, but that all had the right to use it for fishing purposes and vested ownership o the island in a committee composed of one representative from each group, and subject to an encumbrance that the national people using it for fishing purposes were not to interfere with the operation and maintenance of the airstrip and wharf. An appeal was lodged to the then Supreme Court against that decision and on 6 October 1969, by consent, the case was remitted to the Land Titles Commission for rehearing. That rehearing occurred in 1977 and in the course of that rehearing some legal questions were referred to the National Court in a case stated. Those questions were decided by O'Meally AJ in Arthur Agevu v The Government of Papua New Guinea [1977] PNGLR 99. The Judge decided, among other things, that the Administration of British New Guinea prior to June 1890 had power to take possession of waste and vacant land on behalf of the Crown. The case was then reheard by Mr Acting Commissioner Oliver in August 1977. Mr Oliver's decision was taken on appeal in Re Fisherman's Island [1979] PNGLR 202, before Wilsn J who, on 3 August 1979, ordered a rehearing of the claims.

That rehearing commenced in March 1982 before Chief Commissioner Lucas and later, on 26 March 1984, before Chief Commissioner Miriung. The rehearing occupied 20 days and resulted in a 28-page decision which was handed down on 18 April 1985. A copy of that decision has been handed to me but not the order made under it. The Chief Commissioner had before him claims by Madaha Resena, the present plaintiff, on behalf of four named clans of Tatana Village, Arthur Ageva on behalf of three named clans of Roku Village, Gadiki Sanai on behalf of a clan from Gorohu and Kido Villages, Jack Mase on behalf of a clan of Vabukori Village, one from a clan of Porebada Village and a claim from Ruga Ara of Fisherman's...