The Independent State of Papua New Guinea and Boyamo Sali v Lohia Sisia as representative of the Varimana Clan [1987] PNGLR 102

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J, Cory J, Barnett J
• Judgment Date: 04 June 1987
• Court: Supreme Court
• Citation: [1987] PNGLR 102
• Year: 1987
• Judgement Number: SC333

Full Title: The Independent State of Papua New Guinea and Boyamo Sali v Lohia Sisia as representative of the Varimana Clan [1987] PNGLR 102

Supreme Court: Bredmeyer J, Cory J, Barnett J

Judgment Delivered: 4 June 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND BOYAMO SALI

V

LOHIA SISIA AS REPRESENTATIVE OF THE VARIMANA CLAN

Waigani

Bredmeyer Cory Barnett JJ

27-28 November 1986

4 June 1987

ADMINISTRATIVE LAW — Judicial review — Unreasonable delay as bar to relief — Exceptional circumstances to be shown — Constitution, ss 23 (2), 155 (4).

PRACTICE — Declaratory orders — By way of judicial review — Unreasonable delay as bar to relief — Exceptional circumstances to be shown — Constitution, ss 23 (2), 155 (4).

CONSTITUTIONAL LAW — Fundamental rights — Protection and enforcement of — Harsh and oppressive act — Decision of Land Titles Commission — Decision not harsh and oppressive — Constitution, s 41.

REAL PROPERTY — Ownership of land — Determination of — Whether land native land — Exclusive jurisdiction in Land Titles Commission — No power to determine on judicial review — Land Titles Commission Ordinance 1962, s 15.

In 1956 the government purported to purchase land known as "Hagara" and registered a Deed of Attestation in respect thereof. In 1979, the then Minister for Lands gave notice under s 6 of the National Land Registration Act 1977 of his intention to declare the land to be National Land and the land was so declared in December 1979. A claim for further compensation made by Lohia Sisia was dismissed in 1983 by the National Land Commissioner. In proceedings commenced in 1984 Lohia Sisia sought and obtained a declaration that the declaration of December 1979 was invalid on the grounds, inter alia, that it was harsh and oppressive under s 41 of the Constitution.

On appeal:

Held

(1) The powers to review administrative acts and to grant declaratory orders deriving from s 23 (2) and s 155 (4) of the Constitution should not be exercised where there has been unreasonable delay in seeking relief.

(2) Where a statute provides that a decision made thereunder is not appealable or reviewable and/or that declarations made thereunder are conclusive evidence of matters contained therein, the court should only review such decisions or declarations in special cases or exceptional circumstances.

Avia Aihi v The State (No 2) [1982] PNGLR 44, applied.

(3) In the circumstances, the delay of five and a half years between the Minister's decision and the application to the court was unreasonable, no special circumstances had been shown and the claim for declaratory relief should be refused.

The State v District Land Court; Ex parte Caspar Nuli [1981] PNGLR 192, The State v Giddings [1981] PNGLR 423, NTN Pty Ltd v Board of Post and Telecommunication Corporation [1987] PNGLR 70 and Arthur Ageva v Bobby Gaigo [1987] PNGLR 12, considered.

(4) In the circumstances the Minister's decision and declaration of December 1979 was not harsh and oppressive within the meaning of s 41 of the Constitution.

Held Further

(5) Because s 15 of the Land Titles Commission Ordinance 1962 confers "exclusive jurisdiction" on the Land Titles Commission "to hear and determine all disputes concerning the ownership by native custom of ... any land,... including a dispute as to whether any land is or is not native land", neither the National Court nor the Supreme Court can determine whether land is or is not native land in the exercise of its powers by way of judicial review.

Safe Lavao v The State [1978] PNGLR 15, considered.

Cases Cited

Arthur Ageva v Bobby Gaigo [1987] PNGLR 12.

Avia Aihi v The State (No 2) [1982] PNGLR 44.

Dent v Kavali [1981] PNGLR 488.

Hogg v Scott [1947] KB 759; [1947] 1 All ER 788.

NTN Pty Ltd v Board of Post and Telecommunication Corporation [1987] PNGLR 70.

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314.

SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329.

Safe Lavao v The State [1978] PNGLR 15.

State, The v District Land Court; Ex parte Caspar Nuli [1981] PNGLR 192.

State, The v Giddings [1981] PNGLR 423.

Appeal

This was an appeal from a decision of Los J declaring (inter alia) that a purchase of land made at Hagara near Port Moresby by the government in 1956 was invalid and granting orders for related relief.

Counsel

E O'Sullivan, for the appellants.

J Shepherd, for the respondent.

Cur adv vult

4 June 1987

BREDMEYER J: This is a land dispute with a long history. In January 1954 Ivan Champion, the Chief Commissioner of the Native Land Commission, determined the ownership of 11.25 acres of land known as Hagara close to Hanuabada, Port Moresby. He said the land belonged to the Varimana Iduhu and he listed 90 owners of the land. That decision is not disputed before us. The respondent in this appeal, Lohia Sisia, is one of the named owners in that decision.

On 18 June 1956 the government purported to purchase the same land from Heni-Keni, Sale-Gari, Kevau Dabada, Lohia Sisia, Kevau-Igua and Gomara-Auta of Elevala for the sum of £562-10-0 plus £8-10-0 for certain specified trees on the land. The £562-10-0 was based on £50 per acre. Each of the six vendors received a sum for the land and five of them a sum for trees. Lohia Sisia, for example, got £17-8-9 for the land and £2 for three mango trees. The purchase was made on behalf of the government by a patrol officer named Burge. He signed a certificate that prior to signing the certificate he walked the boundaries with the vendors and the interpreter, that the vendors pointed out the boundaries and that they were identical with the boundaries set out in the document. He also certified that the moneys paid out alongside each name were paid over in his presence, that he was certain they knew what land they were selling, and that they were satisfied with the price they got. He also said that, as far as he could tell, he interpreter interpreted the document properly. He also stated that the land was unoccupied at the time of sale.

The interpreter Boge-Nau also signed a certificate on the document which read:

"I, BOGE-NAU of ELEVALA Village in the Territory of Papua do hereby certify that I acted as Interpreter in the above sale of Land. That I understood the language spoken by the Vendors and the language spoken by BRUCE WILLIAM PETER BURGE an Officer in the Service of the Territory. That I truly interpreted the contents of the above paper as they were given to me by the said Officer in the English language into the Motu language, which is understood by the Vendors, and pointed out to them the boundaries of the Land sold as shown in the above plan. That I am certain the Vendors understood me. That previously to my so interpreting I and the said Officer walked round the said land in company with the said Vendors, and that the boundaries of the said Land were then pointed out by the said Vendors, and that the said boundaries were identical with the boundaries set out in writing in the above transfer. That the Moneys which are specified opposite to each Vendor's signature were in my presence paid over to such Vendor That I am certain that the Vendors when they signed the above transfer knew what Land they were selling, and knew that they were selling it out and out to the Government. That I am also certain that the Vendors were satisfied with the price they got and that it was the price they asked.

Witness my hand this l8th day of June, 1956.

(Sgd) Boge Nao [sic] Interpreter — "

On 23 July 1956 the document was registered by the Registrar of Titles as 2171 Volume VI and is known as DA (for Deed of Attestation) 2171.

The land was used for the construction of the Hagara Community School. The number of buildings on the land increased over the years until it is now the biggest primary school in Papua New Guinea.

An Elevala landowner named Lohia Tolana said that his brother Gari Tolana, now dead, was a teacher at the school and he first complained about the encroachment of buildings onto customary land in 1959. He complained to the headmistress, a Miss Walker.

Lohia Sisia gave evidence that in 1962 he complained to the headmistress, Miss Walker, that the buildings were encroaching on land that has not been sold. He complained to her the next year and then to various other teachers and to kiaps over the years. His complaints were to no avail. The school buildings continued to multiply on the land.

On 29 March 1979 Boyamo Sali, the Minister for Lands, gave notice of his intention under s 6 of the National Land Registration Act 1977 (now Ch No 357) to declare the land to be National Land. The notice was published in the National Gazette G18 of 29 March 1979.

On 2 May 1979 Lohia Sisia, also known as Lohia Sisia Gari, wrote a letter to the Minister for Lands, Mr Sali. Sisia referred to the gazettal mentioned and claimed that only a small portion of the land had been bought. He said he sold to the government a small block for the erection of three...