Osineru Dickson on behalf of the Hiwoirere Family of the Hiai Clan v Luka Orere and Modigai Igeauri on behalf of the Bebesige Family of the Waiwai or Baiobaio (Garuboi) Clain and Others (Re Goilanai No 2) [1976] PNGLR 120

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ, Prentice DCJ, Saldanha J
• Judgment Date: 09 April 1976
• Court: Supreme Court
• Citation: [1976] PNGLR 120
• Year: 1976
• Judgement Number: SC93

Full Title: Osineru Dickson on behalf of the Hiwoirere Family of the Hiai Clan v Luka Orere and Modigai Igeauri on behalf of the Bebesige Family of the Waiwai or Baiobaio (Garuboi) Clain and Others (Re Goilanai No 2) [1976] PNGLR 120

Supreme Court: Frost CJ, Prentice DCJ, Saldanha J

Judgment Delivered: 9 April 1976

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

OSINERU DICKSON

ON BEHALF OF THE HIWOIRERE FAMILY OF THE HIAI CLAN

V

LUKA ORERE AND MODIGAI IGEAURI

ON BEHALF OF THE BEBESIGE FAMILY OF THE WAIWAI OR BAIOBAIO (GARUBOI) CLAN AND OTHERS. (RE GOILANAI NO. 2)

Waigani

Frost CJ Prentice DCJ Saldanha J

2 April 1976

9 April 1976

APPEAL — Ownership of land under native custom — Appeal from primary judge's order confirming decision of Land Titles Commission — Whether evidence insufficient to justify original finding — Test to be applied by Supreme Court.

On appeal to the Supreme Court of Justice from a primary judge's order confirming a decision of the Land Titles Commission as to the ownership of land under native custom, and where the only ground relied upon is that there was insufficient evidence to justify the finding of the primary judge that he should confirm the decision of the Land Titles Commission, the task of the Supreme Court of Justice is not to seek to substitute its own opinion for that of the Land Titles Commission or that of the primary judge but merely to examine the evidence already given and to ascertain whether there was sufficient evidence to support the original findings.

Appeal

This was an appeal, from an order of Williams J. confirming a decision made by the Land Titles Commission in 1972, as to the ownership of a block of land adjoining the township of Alotau. The only ground of appeal which involved any proposition of law, and the only ground on which argument was permitted was that "There was insufficient evidence which would have entitled the judge to confirm the finding of the Commission ..."

Counsel

Osineru Dickson (in person) for the appellant

Luka Orere (in person) for the respondent

Cur. adv. vult.

9 April 1976

FROST CJ PRENTICE DCJ SALDANHA J: This appeal concerns the ownership of land, a block adjoining the township of Alotau on its east, land which is required to be purchased, it seems, for Government purposes. The claim has a chequered history.

The land was claimed by a number of lineages of the Hiai, Garuboi and Gomela clans of the Tavara-speaking people of the Milne Bay district. The original claim was made in 1968 by the Garuboi clan. This and a subsequent claim by the Government were heard by Land Titles Commissioner Kimmorley at Alotau over eight days commencing on the 28th November, 1968. The above-mentioned lineages were all represented and gave evidence.

On the 29th January, 1969 a decision was given declaring sole beneficial ownership of the disputed land to lie in the Bebesige family of the Garuboi clan represented by Luka Orere; subject only to usufructuary and occupancy rights then accruing to the Negidaha family of the Garuboi clan represented by Gilbert Torigawa, and the Baige family of the Tunogo (Gomela) clan represented by Nikole Kiwiwi. The present appellant, Mr. Osineru Dickson, whose family of the Hiai clan had failed to establish its claim to the land though adducing evidence on the hearing, sought a review of this decision.

On 29th May, 1969 Mr. Senior Commissioner Orken and Messrs. Commissioners Neilsen and Jones undertook a review of Mr. Kimmorley's decision. Mr. Dickson was the only party to appear at this hearing at which further evidence was given. This review resulted in a confirmation of the single Commissioner's decision.

Being aggrieved by the manner in which the reviewing Commissioners had dealt with his claim, the appellant appealed to the Supreme Court against their decision. Kelly J. on 30th June, 1971 allowed this appeal and ordered that the case be remitted to the Land Titles...