State and Sali v Sisia [1987] PGLawRp 502; [1987] PNGLR 102 (4 June 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 102 - The State and Boyamo Sali v Lohia Sisia 

[1987] PNGLR 102

SC333

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

N1>(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.

N1>(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.

N1>(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.

N1>(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

N1>(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, the 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 classrooms only, and that the purchase was made between him and Ivan Champion who was then the District Officer. He said those three classrooms were built in 1958 and thereafter when more classrooms were built outside that area he complained to the authorities for more pay for the land. He requested compensation for “the school facilities (extra classrooms, teachers’ houses, headmaster’s residence and open-air picture theatre)” and also for a section of the land used by Shell Oil for a fuel pipe.

Lohia Sisia took his letter of 2 May to the Lands Department to give it to the Minister. He was told by an Elevala man who worked there to take it to Mr Charles Ali who was then a National Land Commissioner. He did this. Mr Ali said he would call him later. Two weeks later Lohia Sisia went to see Mr Ali who was not there. He was in Rabaul. Sisia heard nothing further from him. We do not know if Ali ever sent Sisia’s letter to the Minister.

On 7 December 1979 the Minister declared the land to be National Land. The declaration was made under s 8 of the National Land Registration Act 1977 and was published in National Gazette G84 of 20 December 1979. The effect of that declaration by s 9 of the Act was to convert any claims to ownership of the land to claims for settlement payments under ss 39 to 46 of the Act. Section 9 also provides that a declaration under s 8 is not subject to appeal or review and shall not be called in question in any legal proceedings. How final that section is will be considered later.

The declaration was registered as national land certificate volume 1 folio 18 on 24 January 1980. By s 19 of the Act that registration is conclusive evidence that the State has title to the land.

Lohia Gari claimed a settlement payment under the Act. He claimed compensation for the breach of the agreement in that the government had acquired [sic] extra land for school extension. On 11 February 1983 the claim was dismissed by a National Land Commissioner, L Gideon, who considered that £562-10-0 was “sufficient” for 4.25 ha. Section 46 of the National Land Registration Act purports to give that decision a degree of finality. It provides that, subject to s 155 and s 41 of the Constitution, no appeal lies against any decision of the Commissioner under the Act, otherwise than on the ground of failure to comply with the principles of natural justice as required by s 34(2).

Mr Sisia and his clan then took direct action. In or about November 1983 they forcibly closed the school. That led to discussions with Sir Barry Holloway, the Minister for Education, who on 8 November 1983, wrote a letter to the Minister for Justice asking that they be given legal aid to bring a prerogative writ against the State. On the same day, 8 November 1983, Lohia Sisia, Lohia Tolana and Gari Tolana wrote to their local MP, Mahuru Rarua Rarua, to use his influence with the Minister for Justice to get legal aid from the Public Solicitor. They obtained the service of Mr Jeff Shepherd, a lawyer then employed in the Public Solicitor’s Office. Mr Shepherd arranged a survey of the land which they said was sold. The survey was done on 26 March 1984. The survey was done by two senior government surveyors in the presence of Gari Tolana, Lohia Tolana and Gari Sisia for the claimants. Four points were marked out by the claimants delineating the land which they said was actually sold and the points were surveyed together with all the school improvements and a plan prepared: Plan M/49/810. The area which they say was purchased is about one-ninth of the area of DA 2171 and is about one-quarter of the fenced area of the school. The western and eastern boundaries of the plot agree approximately with the 1956 boundaries but the northern and southern boundaries do not. The plan shows that no survey marks were found on those boundaries, whereas a 1970 survey of the 1956 area found most of the 1956 native land purchase cements.

On the morning of 8 October 1984 the claimants chained and padlocked the school gate and thus prevented access to the school by students and staff. Public Works men, in the presence of police, broke the padlock. That afternoon the claimants fitted a fresh padlock. The school was closed for two days. On 9 October 1984 the State obtained an ex parte injunction restraining eight-named defendants, including Mr Sisia, from blocking access to the school until further order.

On 31 October the injunction was continued and leave was granted to the defendants to file a cross claim setting out the relief sought. This was done in the form of a writ of summons issued on 21 June 1985 (WS 314 of 1985) by Lohia Sisia as representative of the Varimana clan, plaintiff, against the State, first defendant, and Boyamo Sali, second defendant. In a long statement of claim the plaintiff claimed that the 1956 purchase was invalid as to four-fifths of the land, that the vendors only walked the boundaries of about one-fifth of the land and believed that they were only selling that portion. The plaintiff also claimed that the Minister’s declaration in December 1979 that the land was National Land was invalid because the Minister was negligent and in breach of his statutory duty in that he failed to consider the plaintiff’s representations that there was a genuine dispute over the land. The plaintiff also claimed that all further steps taken under the National Land Registration Act were invalid.

The case came on for hearing before Los J. The plaintiff called four witnesses. The first was Lohia Sisia who said he was the only one of the six vendors of the 1956 sale still alive. The second was the interpreter for the 1956 sale, Boge Nau. The other two gave evidence of developments on the land and complaints made after the acquisition. The State did not call any witnesses. It did not call Mr Burge. The State’s documents of title which had been put in evidence to support the interim injunction were treated as being in evidence before Los J.

The learned trial judge accepted the evidence of the plaintiff and the interpreter on the 1956 purchase. The plaintiff said that he signed the document with his fingerprint and got paid. He walked around the boundaries of a small area required for three classrooms and a toilet block with Ivan Champion. He understood that that was the area the government wanted to purchase. He got paid by a government officer, O’Malley. He did not know Patrol Officer Burge and had no dealings with him. The interpreter had great difficulty identifying his signature on the document. He said if he did sign it he did so because he was told to sign it by Burge. He did not walk around the boundaries of the 11.25 acres mentioned in the document with the landowners but only the smaller area where three classrooms were later built. He did not translate the document to the vendors, he did not point out the boundaries of the area being sold, and he was not present when the payments were made.

The learned trial judge considered the legal effect of the registration of the purchase as DA 2171. He considered the Second Schedule of the Land Ordinance 1911 of Papua which provides that when a purchase document is registered and sealed with the seal of the Territory it shall be “conclusive evidence” of the facts therein set forth and of the title of the Crown to the land. He referred to the case of Safe Lavao v The State [1978] PNGLR 15 in which Pritchard J held that the purchase in question there did not comply with the requirements of Schedule 2 and hence was not conclusive evidence of the State’s title. The trial judge found the purchase invalid as to most of the land. He declared that the part of the land not intended by the Varimana clan to be sold to the government was the property of the Varimana clan.

The trial judge held the Minister’s declaration of National Land of December 1979 invalid because the Minister failed to comply with s 52 of the Act which requires notice of intention to declare land National Land, or a declaration of land as National Land, to be published at the nearest Local Government Council Office, over the radio, and in such other manner as he thinks appropriate.

A second reason for declaring the 1979 declaration invalid was that the trial judge considered it harsh and oppressive under s 41 of the Constitution. The trial judge listed some of the complaints the plaintiff had made to the authorities over the years that all the land had not been sold to the government. The first complaint listed by the judge was a complaint made in 1962 to the then headmistress of the school, and the last complaint listed was the plaintiff’s letter of 2 May 1979 addressed to Minister Sali.

The trial judge said:

“The least that could be expected would have been to tell the plaintiff that the land was bought irrespective of what he thought. Then it would have been up to him to seek legal assistance if he still thought it otherwise. But in the face of all his attempts, he received a slap on his face by a declaration that the whole land was a public purpose land. In my view that in the face of the evidence, which had not been destroyed, the declaration by the Minister is harsh and oppressive.”

The trial judge declared the declaration of National Land dated 7 December 1979 invalid. He went on to declare that all further steps, procedures, decisions or other actions taken by the servants or agents of the State were invalid. That order is widely expressed but it is logical. If the declaration of National Land is invalid, then it follows as a logical consequence that the National Land Commission’s decision of 11 February 1983 rejecting the compensation claim was also invalid.

As I have said, the Minister’s declaration of National Land of 7 December 1979 was declared invalid. Even if the judge’s reasoning is correct, that order cannot stand in that form. The Minister’s declaration of 7 December 1979 covered two adjoining properties, Deeds of Attestation, Nos 2171 and 2266 of total area 9.74 ha. The case before the trial judge, as pleaded in the statement of claim and covered by the evidence, is only concerned with Deed of Attestation 2171 of area 4.55 ha (ie 11.25 acres).

THE DECLARATION OF NATIONAL LAND

The learned trial judge granted the declaration sought that the Minister’s declaration of National Land was invalid. As I have said, he did so on two bases: that the Minister had not complied with s 52 of the National  Land Registration Act and that his action was harsh and oppressive under s 41 of the Constitution. The trial judge did not discuss the time lapse of five-and-a- half years between the Minister’s declaration of December 1979 and the writ of summons challenging its validity issued in June 1985. The matter is important and needs to be discussed.

(1) Delay a bar to relief

The power to grant a declaration in Papua New Guinea comes from s 155(4) of the Constitution which reads:

N2>“(4)    Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice, in the circumstances of a particular case.”

In particular the power comes from the latter words of that subsection “such other orders as are necessary ...”: see Dent v Kavali [1981] PNGLR 488. The Constitution is a superior law to a statute, and any statute must be read subject to the Constitution — see s 10 of the Constitution. Thus s 155(4) of the Constitution overrides s 9 of the National Land Registration Act which provides that the Minister’s declaration under s 8 shall not be subject to appeal or review nor called in question in any legal proceeding, and s 19 of the Act which states that registration is conclusive evidence of the State’s title to the land.

I consider that this power under s 155(4) of the Constitution to invalidate a Minister’s declaration of National Land should be used sparingly. The courts should give some weight and some respect to Parliament’s view expressed in s 9 and s 19 that the Minister’s decision is not appealable or reviewable and that registration is conclusive evidence of the State’s title. The way to do that is to say that the Minister’s decision is reviewable by the courts but will only be reviewed in special cases or in exceptional circumstances. I consider that that is the proper way we should exercise our powers under s 155. The courts have enormous power under s 155 to review the decision of any minister, tribunal or court. In exercising that power we can ignore any time limits imposed on appeal or review by statute, and any statutory “ouster” provisions excluding review or appeal, of which there are many, such as s 9 of the National Land Registration Act. I consider that in all these cases it is in the public interest that unreasonable delay should be a bar to review under s 155. Ministers, officials and tribunals should make their decisions fairly and in accordance with the law, and if they go wrong that can be corrected by the courts, but good government would be frustrated if decisions could be challenged ad infinitum in the courts.

Delay reduces the quality of justice. Indeed justice delayed is justice denied. Witnesses disappear, witnesses die, memories fade, and documents get lost. A claim which would fail if brought promptly might succeed 20 years later when key witnesses are dead and vital documents lost. Conversely a claim which would succeed if brought promptly might fail if brought many years later. Most countries prevent stale cases being brought by statutes of limitation.

I know of no local case on delay and declarations under s 155(4) but there are many analogies which point in the same direction. Section 155(4) also allows orders in the nature of prerogative writs which in modern terminology are called judicial review. Order 16 of our National Court Rules 1983 provides a procedure for that remedy. By O 16, r 4, the application must be made within four months of the decision under challenge. This time can be extended but not if the court considers that there has been undue delay in bringing the application. The remedies of judicial review and declaration are very similar; they are alternative ways of challenging a decision and the power to grant either remedy comes from s 155(4). It is thus logical and reasonable that similar principles should apply to each remedy.

The State v District Land Court; Ex parte Caspar Nuli [1981] PNGLR 192 is an example of a prompt application under s 155(4). Like s 9 of the National Land Registration Act, s 60 of the Land Disputes Settlement Act (Ch No 45) states that a decision of a District Land Court is final and not subject to appeal. Caspar Nuli, a National from West New Britain, applied under s 155(4) for judicial review of a decision of the West New Britain District Land Court held at Kimbe. I have searched the file. His application to the court for judicial review was made six weeks after the decision of the District Land Court.

In The State v Giddings [1981] PNGLR 423, Kearney Dep CJ granted an order nisi for certiorari 20 months after the decision of the District Land Court. The judge carefully considered the factors which made the application late. He mentioned the difficulties of these tribesmen outside Laiagam getting a lawyer. Their application for legal aid made within one month of the decision was rejected. They approached a private lawyer in Port Moresby two months after the decision. He required copies of the court papers. Photostat difficulties ensued, etc etc.

In NTN Pty Ltd v The Board of Post & Telecommunications Corporation, [1987] PNGLR 70 Wilson J (at 71) considered an application for judicial review against a decision to grant a TV station license. The application to the court was made 16 months after the grant of the license. The learned judge considered that there was undue delay and that the granting of relief would cause substantial hardship and prejudice to the company which had been given the license and had acted upon it. He also held that to grant the relief would be detrimental to good administration. I would endorse his remarks (at 76) on this point:

“There comes a time when things are entitled to be as they appear. An applicant who is involved in challenging a decision which has implications for another party or for public administration is under a heavy duty to act expeditiously and fairly.”

The case of Arthur Ageva v Bobby Gaigo [1987] PNGLR 12 is instructive. In that case Ageva appealed against a decision on title to land of the Land Titles Commission within the three-month time limit imposed by statute. For a period of one year after filing his notice of appeal (ie 15 months after the Land Titles Commission’s decision) he took no steps to prosecute the appeal. The appeal was struck out by Amet J for lack of prosecution and that decision was affirmed on appeal by the Supreme Court. Let me suppose that there was another litigant in that case who was aggrieved by the Commission’s decision, who did not appeal but applied for judicial review or for declaratory relief under s 155(4), 15 months after the Land Titles Commission’s decision. Should he be in a more favoured position than Ageva who lodged his appeal within the time limited but had it dismissed for lack of prosecution? I think not. I consider that he would have to show exceptional circumstances why his application for review should be heard 15 months after the decision sought to be challenged. The litigant, in the example given, would be in a worse position if he applied for judicial review or declaratory relief under s 155(4) five-and-a-half years after the Commission’s decision.

Section 155(2) of the Constitution is analogous to s 155(4) and has received judicial elucidation. It provides that the Supreme Court has “inherent power to review all judicial acts of the National Court”. In Avia Aihi v The State (No 2) [1982] PNGLR 44 the Supreme Court said that a person applying for review under this section would have to show “substantial reasons” for the delay, and that long delay would only be excused in “very exceptional circumstances”. In that case the applicant was given a life sentence of wilful murder and she failed to appeal within the 10-day time limit set by statute. In that case she was able to show exceptional circumstances and the court entertained her application for review lodged 14 months after her sentence was given.

I turn to the law in two other jurisdictions and find that delay is a factor which can bar relief. In England the power of the courts to grant a declaration began in the Court of Chancery and is now contained in O 15, r 16 of the Rules of the Supreme Court. It is a discretionary remedy and delay can be a ground for refusing relief: Hogg v Scott [1947] 1 All ER 788. The position is the same in New South Wales where the power to grant a declaration is conferred on the courts by statute: see P W Young, Declaratory Orders (1975) at p 78.

In this case, what were the reasons for the five-and-a-half year delay between the Minister’s decision and the application to the Court? The plaintiff claimed compensation for the land from the National Land Commission. The claim is not before us so I do not know the date of the claim but it was heard and determined on 11 February 1983 when it was dismissed. I can assume that the claim was lodged within the prescribed time limit, or such other time as the Commission allowed: see s 39 of the Act. Thus it can be said that between the date of the Minister’s decision in December 1979 and February 1983 the plaintiff took no legal steps to challenge the validity of the Minister’s declaration because he was hoping to get compensation under the Act. That was refused. The next step taken by the plaintiff was the forcible closing of the school in November 1983. That was followed by discussions with the Minister, Sir Barry Holloway, who recommended legal aid from the Public Solicitor. Legal advice was obtained prior to the survey made in March 1984. The next steps were the forcible closure of the school in October 1984 and the issue of the writ in June 1985. Asked why he or his clan had not sought legal advice from 1960 until the 1983 hearing for compensation, Lohia Sisia said they would have sought legal advice but they had no money for a lawyer.

The plaintiff knew of the Minister’s decision of December 1979 because soon afterwards he claimed compensation under the provisions of the National Land Registration Act, but he did not challenge the Minister’s declaration as to title by a court action until June 1985. The excuse that he did not have money for a lawyer is a lame one. Mr Sisia is the head of a clan which numbered 90 landowning members in 1954. I can assume that the members of the clan now greatly exceeds 90. I assume that it is a clan which can contribute reasonable sums for bride price payments and for the annual United Church bou bou. If the clan wanted to badly enough I consider that it could collect a few thousand kina necessary to pay a private lawyer to commence a court case. The clan’s area, Elevala, is near Hanuabada in the National Capital District. Many lawyers, National and non-National, private and government, live and work in the National Capital District. The truth is that this clan chose not to apply for judicial review of the Minister’s decision because for three years it was pursuing a claim for compensation under the Act and for the next two years it thought it could do better by self-help, by forcibly closing the school. That kind of action may or may not produce results. It may produce an ex gratia payment from the government. But if the claimants wish to get judicial relief they must apply to the court promptly.

A person who claims his land was never bought by the government may, among other ways, decide to close the school, set up a road block, burn down the buildings, raise the matter in Parliament through a sympathetic MP; or he may decide to litigate his claim. I consider that if he fails to get any favourable result by those non-court means then he must bear the consequence of that choice of method. He has lost time in applying to the court. It is no justification for that delay to say that for two years I was pursuing my claim through direct-action methods.

I consider that the plaintiff’s reasons for the five-and-a-half years delay are not convincing, that he has shown no special circumstances for the long delay and that his claim for declaratory relief should be refused.

(2) Section 41 of the Constitution

As I have said, the learned trial judge found the Minister’s declaration of Hagara as National Land invalid under s 41 of the Constitution as harsh and oppressive. That section reads:

N2>“41.    Proscribed Acts

(1)      Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a)      is harsh and oppressive; or

(b)      is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c)      is otherwise, not, in the particular circumstances reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2)      The burden of showing that Subsection 1(a), (b), or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3)      Nothing in this section affects the operation of any other law under which an act may be held to be unlawful/or invalid.”

The ambit of s 41 was considered by the Supreme Court in SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314. The majority, Kidu CJ, Kapi Dep CJ and Kaputin J, decided that the section applies to any act done under a valid law and is not limited to an act done under a law which restricts one of the constitutional rights. Thus the section applies to the Minister’s declaration made in this case under a valid law, viz, s 8 of the National Land Registration Act. Section 41 received further consideration by the Supreme Court in SCR No 5 of 1985; Raz v Matane [1985] PNGLR 329. The majority, Kidu CJ and Kapi Dep CJ, in that case held that a breach of s 41 cannot be enforced under s 57 of the Constitution but can be enforced by an order under s 23 or s 155(4) of the Constitution.

Section 23(1) allows the court to fine, imprison, or order compensation for the breach of a prohibition, restriction or duty imposed by the Constitution. The plaintiff in the court below was not contending that the Minister for Lands be fined or imprisoned because his declaration of Hagara land was harsh and oppressive. He did claim damages but led no evidence on them. Section 23(2) provides:

“Where a provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty ....”

This section would empower the court to make an order quashing the Minister’s declaration of December 1979 or declaring it invalid which is exactly the kind of order which could have been obtained under s 155(4). In other words, the trial judge’s declaration invalidating the Minister’s declaration could have been made under s 23(2) or s 155(4).

An official decision can be challenged in the courts on the grounds that the official exceeded his jurisdiction, acted contrary to law or breached the principles of natural justice. Section 41 adds to those well-known administrative law grounds three more under subs 1(a), 1(b) and 1(c). The ground which was relied on in this case was subs 1(a) — that the Minister’s action was harsh and oppressive. I consider that the grounds for challenging the Minister’s decision are the same whether the order for relief is granted under s 23(2) or s 155(4) of the Constitution. And I consider further that the same orders for relief can be made under either section. They can be in the nature of a prerogative order (eg quashing the Minister’s decision, ordering him to do something, or restraining him from doing something), or in the form of a declaration. Section 23(2) adds this twist that the Minister can be fined, imprisoned, or ordered to pay compensation, for the breach of a constitutional provision. The similar grounds for relief under s 23 and s 155(4), and the similar orders for relief under those sections, inevitably suggests that those sections should be interpreted in the same way. In other words, because unreasonable delay is a bar to a prerogative order or a declaration under s 155(4), so too it should be a bar to any similar order under s 23(2). I would rule that the plaintiff is barred from getting relief for any breach of s 41 because he has been guilty of unreasonable delay in bringing the action for the detailed reasons given earlier in this judgment.

If I am wrong in that view, however, I must now consider whether the Minister’s declaration of December 1979 was harsh and oppressive. There are a number of factors to consider.

The first factor is that the government did not act on the complaints from the plaintiff and his clan made over the years that part of the land had not been bought. I have already mentioned the first complaint by Gari Tolana in 1959 to the headmistress that some of the school buildings were not on the purchased area. Lohia Sisia made a similar complaint to the headmistress in 1962. He later complained to patrol officers, including a Mr Clayton, and to a later headmaster Mr Jacob Reilly. In 1967 Sisia went to the Sub-District Office several times. He complained before and after Independence. In 1979 he saw a Mr Jim Janson of the Central Provincial Lands Office. All these complaints were to no avail. Some, like the headmaster, said they would pass on the complaint to some higher authority. The kiaps on the whole said they would look into the matter but did nothing practical or effective about the complaints.

The trial judge had enormous sympathy for Mr Sisia, a genuine and sincere complainer consistently being stone-walled by the government bureaucracy. I do not share that sympathy. Mr Sisia was a clan leader of a large landowning clan situated in the heart of Port Moresby. He would have as much sophistication about land matters as anyone else. From the date of purchase in June 1956 until December 1979 he had the opportunity to bring a court challenge to the government’s title. From June 1956 until 23 May 1963 the colonial Supreme Court had jurisdiction to hear any claim for title. On the latter date the Land Titles Commission Ordinance 1962 came into force. By s 15 of the Ordinance the Land Titles Commission had exclusive jurisdiction to determine any dispute whether land “is or is not native land”. That Ordinance made it even easier for the plaintiff to challenge the government’s title to Hagara. To start the court case he simply had to fill in a claim form. There were no fees to pay. A lawyer was not necessary. The Land Titles Commission Office was conveniently situated in Port Moresby just a few miles from Elevala. Hundreds of claims were lodged all over Papua New Guinea by Nationals against government purchases like Hagara. A number of claims by Nationals were brought against government acquisitions in the Port Moresby area and the litigation received wide publicity eg the Newtown (Era Taora) and Fishermans (Daugo) Islands cases. I do not think that Sisia could have been ignorant of these avenues yet he failed to bring any legal challenge to the government’s title to Hagara. The avenue was open to him in the Supreme Court and later in the Land Titles Commission yet for 23 years he failed to use it. When he could see that his complaints to headteachers and kiaps were getting nowhere, he should have brought a legal challenge to title.

The second matter which might be thought to be harsh and oppressive was the Minister’s failure to comply with s 52 of the National Land Registration Act. Before a declaration of National Land is made under s 8 of the National Land Regulation Act there has to be a compliance with the requirements of s 52 of the Act. Section 52 requires certain notices to be given when there is known to be a genuine land dispute. The learned trial judge found that there was a genuine dispute and that notices of the intention to declare the land National Land and the actual declaration of National Land were not published as required by s 52. That finding was open to him. But I consider the breach of s 52 was not that serious and, by itself, was not sufficiently serious to declare the Minister’s declaration invalid or harsh and oppressive. It is not every breach of a statutory duty which will result in judicial relief. Some breaches are so minor that they can be treated as mere irregularities (see S A de Smith, Judicial Review of Administrative Action (4th ed, 1980) at p 142). The reason in this case is that the requirements of s 52 are designed to give the widest possible notice to former customary owners to give them ample opportunity to object if they so wish. Thus notice has to be given to any person who is known to dispute ownership, and published on the notice board at the local government council office and given over the radio. In this case the failure to publish the notice in the local government council office and over the radio was not serious, because there was only one possible claimant to this land, the Varimana Iduhu, because of the Native Land Commissioner’s decision in 1954 that that clan was the owner; and that claimant got notice. The plaintiff heard about the Minister’s notice of intention to declare the land National Land from an in-law, and he acted on it, as we have seen by writing the letter of 2 May to Mr Sali.

The third matter which might be thought to be harsh and oppressive was the Minister’s failure to read and consider Mr Sisia’s letter of 2 May 1979 before declaring the land to be National Land. On that date Mr Sisia wrote a well-worded letter to Mr Sali, the Minister for Lands, objecting to the proposed declaration of National Land. He took it to the Lands Department at Waigani. There an Elevala man behind the counter told him to give the letter to Mr Charles Ali. That was very wrong advice. The Minister’s declaration of 29 March 1979 called on any aggrieved person to make representation to the Minister — not to Charles Ali who was a National Land Commissioner. It had nothing to do with him. Sisia took the letter to Ali who said, “I will look at it, go home, and come back when I call for you”. He did not say he would send it to Sali. Two weeks later Sisia went back to check up with Ali. Ali was away in Rabaul. He heard nothing more from him. Sisia was asked in cross examination:

N2>“Q:     Can you tell the court whether this letter did reach the then Minister?

N2>A:       I know he received the letter.”

I would have grave doubts on the accuracy of that answer and the source of that knowledge. It was a factual issue at the trial whether the Minister got the letter or not, yet the Minister’s file was not tendered.

Anisi Mea gave evidence that he went with Lohia Sisia to deliver the letter. He said when the letter was handed over to Charles Ali he said “Alright, I will send this letter to Mr Boyamo Sali”.

The trial judge made no finding that the letter was or was not received by Mr Sali. He did find that Lohia Sisia got no response from the letter. Sisia was not called in to discuss the matter. It was not explained to him, for example, that the government considered the land was bought, irrespective of what he thought.

I think it would be open on the evidence to find that the letter of 2 May 1979 never reached the Minister. Whose fault was that? It was not the Minister’s personal fault. But he should be vicariously responsible for the acts of his staff and the efficiency of his Department. He should thus be held responsible for the wrong advice of his clerk to take the letter to Charles Ali. On the other hand, the plaintiff was partly at fault too. He could have mailed it to the Minister. He could have insisted that it go to the Minister or the Minister’s secretary. He was foolish to have followed the advice of the Elevala clerk.

The fourth matter to consider in relation to s 41 is to weigh up the plaintiff’s interest against the public interest. The plaintiff is really alleging fraud on the part of the government — that Burge did not purchase the land as shown in the purchase document, that he did not walk the boundaries with the landowners, did not explain to them what land was sold, and was not present when the moneys were paid. The plaintiff has an interest that his case, his objections to the purchase, are heard. At the same time the State has an interest. It has a purchase agreement which it had registered as DA 2171. It has an interest in defending its title to land, which on the face of the documents, was properly purchased. The State has built a large school on the land which has been in operation since 1959. The 1984 survey shows the number of school buildings on the land: 11 double classrooms, a headmaster’s office and staff rooms, a toilet block, 10 staff houses and playing fields in front of the buildings. The State has a legitimate public interest in keeping its school there.

The Minister in considering whether to declare the land National Land would have to weigh up the competing interests of the claimants and of the State. The Minister evidently did not consider these competing interests as he never got Sisia’s letter of 2 May 1979. The court has to evaluate those competing interests to determine if the Minister’s action was harsh and oppressive. I notice from the 1984 survey that about four-fifths of the land is outside of the school fence at the rear of the school buildings and is not used by the school. I note too that Mr Sisia’s letter of 2 May does not claim this unused land for his clan’s use. He asks for compensation for all the land not sold in 1956.

The National Land Registration Act is not challenged before us as harsh and oppressive. It pegs compensation. Had Mr Sisia succeeded in getting a compensation payment under the Act it would have been K2,250 plus a possible loading of 50 per cent (see s 45 and Schedule 2). A declaration under the Act has the effect of cutting off the claimant from evermore challenging title (apart from s 155(4) and s 23(2) of the Constitution) and restricting him to insignificant compensation by today’s market values.

I weigh up the various factors I have mentioned. Sisia and his clan received no positive action from the authorities on their complaints from 1959 to 1979 that the land had not been bought. If he had been reasonably astute he would have realised that his lack of action was a negative result and he would have commenced a court case in the old Supreme Court or in the Land Titles Commission. For 23 years he failed to commence a court case even though other traditional landowners were suing the government in the same period. In May 1979 he wrote a letter objecting to the proposed declaration of Hagara as National Land. Partly through his fault and partly through the government’s fault that letter failed to reach the Minister. Even if it had reached him it is quite likely that the Minister would have thought it was an appropriate case to make the declaration: it would save the school, a much-needed public amenity, and it would severely limit any compensation payable which was an objective Parliament thought worthwhile two years before in 1977 when it enacted the National Land Registration Act. When I weigh up all these factors I consider that the Minister’s declaration was not harsh and oppressive.

EXCLUSIVE JURISDICTION OF THE LAND TITLES COMMISSION

I have refrained from saying anything about the merits of the 1956 purchase: whether I think the government’s purchase document and the subsequent registration of that document as a Deed of Attestation is outweighed by the plaintiff’s evidence of non-purchase. That omission has been deliberate because I consider the trial judge made an error as to jurisdiction and he was led astray by the State’s failure to refer the relevant section to him. The action was correctly brought in the National Court because only the National Court acting under the constitutional provisions, already cited, could declare the declaration of National Land invalid, and the trial judge correctly saw the validity of that declaration as the first issue in the case. But having ruled that declaration invalid, I consider that he had no jurisdiction to decide whether the 1956 purchase was valid because s 15 of the Land Titles Commission Ordinance 1962 as amended 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”.

The Land Titles Commission is a specialist tribunal established by Parliament to hear these disputes. It has special powers to hear evidence and special expertise developed over 24 years of operation. It has the difficult task in many cases of weighing up oral evidence from interested parties of events which happened decades before against contemporary documents. Over the years there have been many cases and a considerable jurisprudence has developed in this area. Safe Lavao v The State [1978] PNGLR 15 should have alerted the parties to this jurisdictional problem. In that case National claimants successfully challenged a 1963 purchase by the government of land at Kerema which had been registered as a Deed of Attestation. The case would thus appear to be very similar to this one but with this important difference — Pritchard J heard the case on appeal from the Land Titles Commission.

I would allow the appeal and quash all the orders made by the trial judge.

CORY J: I have read the judgment of Bredmeyer J. I agree entirely with his reasons. I agree that the appeal should be allowed and I have nothing further to add.

BARNETT J: I concur with the judgment of Bredmeyer J.

Appeal allowed; Orders of National Court quashed

Lawyer for the appellant: B O Emos, State Solicitor.

Lawyer for the respondent: K Y Kara.