Papua New Guinea Law Reports - 1986
[1986] PNGLR 186
N556
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
TOARE KARAKARA AS LEADER OF THE LUIPI CLAN
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Waigani
Wilson J
24 July 1986
27 August 1986
REAL PROPERTY - Land Titles - National Land Registration claim - Appeal from National Land Commission - Appeal from exercise of discretion - National Land Registration Act (Ch No 357), s 41(2).
REAL PROPERTY - Land Titles - National Land Registration claim - Application for settlement payment - Onus of proof - Rules of natural justice - Rules of evidence on - No duty to obtain independent valuations - National Land Registration Act (Ch No 357), ss 40, 41.
The National Land Registration Act (Ch No 357), Pt VI, provides for the criteria and procedure to be followed in claiming a settlement payment in respect of land the subject of a declaration under s 9 of the Act.
Section 40(2) provides that such a claim is “admissible only if” a previous claim was made prior to Independence “and (b) ... no payment ... for the land ... was made”. Section 40(4) provides that for the purposes of s 40(2)(b):
“(a)    it is irrelevant whether or not payment was made in cash; and
(b)      no account shall be taken of any payment the amount or value of which was, in the opinion of the Commissioner, insignificant when compared with the value of the land at the time when the payment was made, whether or not the value can be precisely estimated”.
On appeal from a finding under s 41 of the Act that a claim in respect of 35 acres in Kerema township was inadmissible because no previous claim had been made (s 40(2)(a)) and that a payment of 16 tomahawks, four pouches, nine belts, 15 knives, 18”, 24 zinc mirrors and 81b of tobacco had been made to a lineal descendant of one of the applicants and was not insignificant (s 40(2)(b) and s 40(4)).
Held
(1)      As the onus is on the applicant to prove his claim and as the Commission is not bound by technical rules of procedure there could be no breach of natural justice in the State failing to produce a previous claim alleged to have been made, in the failure of the Commission to adjourn the hearing for further inquiry after having questioned the applicant at length and in detail on his assertions to a previous claim, or in the Commissioner not requiring evidence of the value of the subject land in 1906.
(2)      In the circumstances, there was nothing in the evidence or reasons to justify interference with the findings of the Commissioner.
Appeal
This was an appeal from a decision of the National Land Commission brought pursuant to the National Land Registration Act (Ch No 375), s 41(2).
Counsel
I Nwokolo, for the appellant.
Z Golu, for the respondent.
Cur adv vult
27 August 1986
WILSON J: This is an appeal against a preliminary decision made by the National Land Commission at Kerema on 15 November 1983. The appeal relates to that part of the decision which concerns a portion of land described as DA696.
The National Land Registration Act (Ch No 357), Pt VI, sets out the criteria and procedure to be followed where a person aggrieved by a declaration under s 9 of the Act may claim a settlement payment in respect of the land the subject of the declaration.
Section 40 deals with admissibility of claims and it is convenient to here set out its terms:
“Section 40.   Admissibility of Claims
(1)      In this section, “prescribed person” in relation to a claim under Section 39, means:
(a)      the claimant; or
(b)      a customary group which the claimant represents or by virtue of his membership of which he makes the claim; or
(c)      a person or customary group who or which is the predecessor in title of the claimant or of the group referred to in Paragraph (b), as the case may be; or
(d)      a person or group acting on behalf of, or claiming as co-owner or a right with, any such person or group referred to in Paragraphs (a), (b) or (c).
(2)      A claim under Section 39 is admissible only if:
(a)      subject to Subsection (3), a prescribed person had made, before Independence Day, a previous claim to the land or to the right the subject of the claim, under a law by virtue of which a claim to the land might have been made; and
(b)      subject to Subsection (4), no payment (including ex gratia payment) for the land or for the right was made to the prescribed person in respect of a purported acquisition by a pre-Independence Administration in Papua New Guinea
(3)      Where, in the opinion of the Commission:
(a)      there were special reasons which made it reasonable that no previous claim referred to in Subsection (2)(a) was made; and
(b)      in the circumstances of the particular case it would not be just to enforce the provisions of that paragraph,
the commission may admit a claim which is otherwise admissible under Subsection (2).
(4)      For the purposes of Subsection (2)(b):
(a)      it is irrelevant whether or not a payment was made in cash; and
(b)      no account shall be taken of any payment the amount or value of which was, in the opinion of the Commission, insignificant when compared with the value of the land at the time when the payment was made, whether or not the value can be precisely estimated.”
Section 41 of the Act is in the following terms:
“Section 41.   Preliminary decision as to admissibility of claims.
(1)      Before proceeding further in the matter of a claim under Section 39, the Commission shall decide whether the claim is admissible in accordance with Section 40.
(2)      A person by whom a claim was made under Section 39 and who is aggrieved by a decision of the Commission under Subsection (1) may appeal to the National Court.”
THE DECISION OF THE NATIONAL LAND COMMISSION
The National Land Commission conducted a hearing which covered this application in Kerema. The appellant, and other applicants for separate parcels of land, gave oral evidence before the Commission. A full transcript of the evidence taken has been made available.
In a reasoned decision the Commissioner decided that the claim of the appellant was inadmissible. The decision was based on the Commissioner’s finding that there was no previous claim to the land under the law by virtue of which a claim to the land might have been made before Independence (see s 40(2)(a)). The Commission also found that a payment made in 1906 pursuant to Transfer of Land 696 was made to persons amongst whom was a lineal descendent of the appellant, one Fari, and that the payment was not insignificant when compared with the value of the land at the time when the payment was made. (See s 40(2)(b) and s 40(4)(b).)
THE TRANSFER OF LAND 1906
The payment made in 1906 was for 35 acres described as grass land and consisted of the following items:
16 tomahawks
4 pouches
9 belts
15 knives, 18”
24 zinc mirrors
8lb tobacco.
All these goods were distributed amongst the thirty persons named in the transfer in the manner set out in the deed. The transfer also contained a reservation which stated: “land unoccupied by Natives at the time of sale a few sago trees to remain the property of their owners until cut down by them for food.”
The transfer is dated 29 November 1906 and was registered on 9 February 1907.
GROUNDS OF APPEAL
The grounds of appeal were amended at the commencement of the hearing and as amended read as follows:
1.       That the Commissioner failed to exercise or properly exercise his discretion under section 40(2)(3) and (4) of the National Land Registration Act, 1977.
2.       That the Commissioner failed to act in accordance with the principles of natural justice.
Further particulars of ground 2 were advanced orally at the hearing by the appellant’s counsel as follows:
(a)      The Commissioner found that the appellant had not made a claim where there is evidence that the appellant requested the District Office in Kerema for assistance in respect of portion DA696.
(b)      The Commissioner was wrong in finding that the payment consisting of trade goods was sufficient to enable him to reach a conclusion under section 40(4)(b) that the payment was not insignificant when compared with the value of the land where no evidence was before the Commissioner in relation to the value of the trade goods or a comparative valuation of the land as at 1906.
(c)      The Commissioner was wrong in failing to exercise his discretion in favour of the appellant in the particular circumstances notwithstanding that the appellant was in no position to influence what was or was not done in the District Office.
I do not consider that these particulars precisely relate to ground 2 as they range over the issues covered in the first ground. While I appreciate that the appellant’s counsel took over this matter after the appeal notice was filed in January 1984, he assumed control of the case in September 1985, some ten months before the hearing. In my view, the appellant’s counsel should have made his amendments well before the hearing and I was not impressed by his excuse that another counsel had drawn the grounds of appeal. When counsel assumes carriage in such a case as this, that counsel assumes full responsibility for the case and has the opportunity to correct those matters on the record which are apparent at the time of taking over the case. Of course there are cases where counsel takes over carriage of a case at very short notice and may not have time to make these adjustments before hearing, but in this case counsel had ten months. As a result of counsel’s failure to take action to amend, a substantial amount of time was spent at the hearing ascertaining the final grounds and particulars. This is not good practice nor is it a proper use of the Court’s time.
SECTION 40(2)(A) AND (B)
It will be seen from the terms of these provisions that for a claimant to be successful in the preliminary hearing (s 41) he must satisfy both criteria in s 40(2)(a) and (b).
In respect of s 40(2)(a) the Commissioner found that no claim had been made prior to Independence. In evidence before the Commissioner the appellant alleged a claim was made in 1968. I set out the following passages of the transcript:
“Q:     Have you concerning your own present claim, ever made a claim under the law before Independence in 1977?
A:       Yes in 1968.
Q:      Was it a written claim?
A:       Yes I brought the claim to the District Office.
Q:      About what land?
A:       Section 10 ‘apaferore’.
Q:      Do you have a copy of this claim?
A:       Yes (Claimant shows Commission of a copy of the letter from the Acting Secretary, Kerema to the Public Solicitor dated 1978 Commission explains this was after Independence).
Q:      Did you make any claims to the District Officer concerning land within DA696?
A:       No written claims because I could not get any help.
Q:      Are you saying the District Office staff refused your assistance?
A:       Yes.
Q:      But in 1978 they did help?
A:       Yes later they did but before not.
(Commission explains File No 1967/62 ‘mahope’ etc claim by Luipi/Maivila Karaeta village clans to claim within Town of Kerema being part of DA2498.)
Q:      This claim was lodged in 1967 and beard in 1972. You would know of this because the Court was held here twice. This claim was through the District Office. Why do you think the District Office staff would assist in one instance and not assist in another concerning you?
A:       Maybe because the Office did not take any interest in my grievances.
Q:      Do you know any written complaint about land in this area?
A:       Yes (Claimant hands up some typed letters which were all dated 1983. Commission again explains that this was after Independence).
Q:      Do you have any written papers complaining about your land dated before Independence?
A:       Yes but I cannot find them, I would need time.”
The gist of the appellant’s claim was that the District Office would not assist him. The Commission mentioned the “Mahope” claim which was made by the same clan. The Commissioner reasoned that he found it difficult to reconcile the claim that no assistance was forthcoming on DA696 whereas the same clan was able effectively to mount a claim in respect of nearby land.
I set out in full the Commissioner’s reasoning on this aspect of the matter:
“None of the claimants could show that they had made any such claims before Independence. Mr Karakara said that although no formal written legal claims had been lodged, he had made several approaches to the District Office to register and record his complaints but no assistance had even been given to him. I have no way of knowing the truth of this allegation. However the Land Titles Commission did receive several applications over land in and around the town of Kerema and these were over land which government officers in Kerema would have considered to have been properly purchased. For example, the Luipi clans of Karaeta villages application over land called ‘MAHOPE KAKAUMRAETA etc’ was lodged in 1967. Also applications 1971/20 by Boss Taisu over land called ‘Luruitera No 2’ 1972/305 by Hepa Harai and Fari Teretere over land called ‘HEVORO’ 1972/483. ‘Hevepetala’ by Aio and Sere Hevaere were lodged pre-independence and all through the District Office. That the District Office processed these applications at about this time casts more — doubts on Mr Karakara’s claim that he was refused assistance. He also referred to a demonstration about mid 1960’s which resulted in claims being lodged in respect of land called ‘Mahope’ etc. It would seem reasonable to think, that had there been other areas of land over which the Luipi clan claimed ownership, then they would have made these known at that time. However this is no evidence to show that the Luipi clan ever lodged any other application but for ‘Mahope’. Though it was not argued by Mr Karakara it could have been said that the lodging of the application for ‘Mahope’ was sufficient to satisfy section 40(2)(a) in respect of the clans claims to other lands. However I would not have accepted that anyway, as my construction of that section, is that a pre-independence claim must refer specifically to the area currently the subject of the section 39 claim.
Under special circumstances the Commission has a discretion to admit a claim where no pre-independence claim was ever made. It would appear that Mr Karakara’s claim that the District Officer refused to help him, even though he went there several times, would be reason enough for the Commission to use this discretionary power. However in the light of the District Office assisting the Luipi clan in relation to the ‘Mahope’ claim and several claimants from Siviri village, I am not prepared to accept Mr Karakara’s contention.”
During the course of the appeal hearing the appellant’s counsel asserted some type of duty on the State to produce the claim alleged to have been made by the appellant. I indicated that I considered this contention to be unsound and indicated a view that these were matters for an applicant to prove and I doubted that the State would have maintained its attitude opposing the claim if in fact there was a record of it.
The appellant’s counsel then submitted that the Commissioner should have adjourned the hearing for further inquiry and in not doing so acted unfairly against the appellant. I consider that the Commissioner acted properly, he questioned the appellant at some length to get to the bottom of his assertion and clearly he came to the view, as he was entitled to do, that he did not accept the assertion that the appellant was making before him.
During the appeal I asked the appellant’s counsel whether the appellant had uncovered any further evidence about the claim since the hearing before the Commissioner in November 1983 and the appeal hearing in July 1986. He said he had not.
Apart from the appellant’s claim before the Commission there was no evidence from any other clan member to support the appellant’s assertion. No one gave evidence of a belief or understanding that such a claim was made, nor any evidence of discussions amongst the clan of the need for a claim to be made.
The Commissioner was in a better position to assess the appellant than this Court. The Commissioner came to the view that the assertion by the appellant was not credible. I have heard nothing in the course of this appeal which indicates error in his process of reasoning which brought out this conclusion.
Accordingly, I would uphold the decision of the Commission that the appellant failed to satisfy the criteria in s 40(2)(a). Since both s 40(2)(a) and s 40(2)(b) must be satisfied at the preliminary hearing, having found that s 40(2)(a) has not been satisfied, it is not necessary for me to make a determination in respect of s 40(2)(b).
SECTION 40(3)
This subsection enables the Commission to exercise its discretion despite non-compliance with s 40(2)(a) and (b). The subsection only makes sense if the word “admissible” at the end of the subsection is read as “inadmissible”. I draw this apparent misprint to the attention of the legislative draughtsmen.
An appellate court should only interfere with the exercise of discretion in very limited circumstances. It is clear from the transcript of the evidence and the Commissioner’s reasons for decisions that he turned his mind to the question of the exercise of his discretion but after viewing the whole of the facts he was not inclined to do so. I can see no reasons why I should disturb his judgment. The Commissioner is a very experienced officer who has a long history of involvement in land matters in this country. His conduct of the application was thoughtful and fair and I consider his decision sound.
It should be added that the appellant’s original application as out of time but the Commission exercised its discretion in favour of the appellant thus allowing him a preliminary hearing.
During the appeal a substantial amount of time was directed to the assertion by the appellant’s counsel that the Commissioners had breached the principles of natural justice by not requiring independent evidence of the value of the subject land in 1906 and the value of the items accepted as consideration for transfer. Although counsel for the appellant referred me to a plethora of cases on this point I did not find them relevant or helpful.
Section 34(4) states that the Commission is not bound by technical rules of procedure and shall investigate and inform itself on any matter before it in such manner as it thinks proper and admit and consider such relevant information as is available. This section presumes that not every piece of evidence will be available and gives the Commission broad powers regarding its findings. Section 40(4)(b) anticipates, by the words “whether or not the value can be precisely estimated”, that a judgment will have to be made on events which took place back in history. In this case eighty (80) years ago.
I do not agree that the Commission had a duty to seek these valuations. It was entirely justified on the evidence before it to come to the conclusion that the payment was not insignificant (s 40(4)(b)).
As the land now forms part of Kerema town, its value today would be considerable. This seems to be at the base of the appellant’s view of events and he seems to feel there is some obligation to take this into account. Whilst this view is perhaps understandable it is not enough to satisfy the strict requirements of the Act.
During the course of the appellant’s evidence the Commissioner made it clear to the appellant what view he was taking of the payment and the appellant contested this view. I am certain that if the payment was one tomahawk or knife for the whole 35 acres the Commission may have taken a different view. As it was, he took the view that the payment was not insignificant. I see nothing in his reasoning that would lead me to upset his findings.
Accordingly, for the reasons set out above, I dismiss the appeal and order each party to pay their costs.
Appeal dismissed
Lawyer for the appellant: Ikennas Lawyers.
Lawyer for respondent: State Solicitors Office.