Gaigo, on Behalf of Laurina Clan, and Resena and Others on behalf of their Respective Clans v The State [1979] PGNC 18; [1979] PNGLR 202 (3 August 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 202 - Bobby Gaigo, on Behalf of Laurina Clan, and Madaha Resena and Others on behalf of their Respective Clans v The State 

[1979] PNGLR 202

N197

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RE FISHERMAN’S ISLAND

Waigani

Wilson J

15-17 February 1978

12-15 March 1978

20 March 1978

25-27 April 1978

31 July 1979

3 August 1979

REAL PROPERTY - Land Titles Commission - Duties of Land Titles Commission - Duty to make findings of fact - To assess credibility and reliability of witnesses in conflict, to draw inferences of fact, to try to reach definite conclusions about the facts in issue, to take and subscribe the evidence, to give reasons for decision, and to act judicially - Format of reasons for decision - Meaning of “natural justice” - Whether omission to subscribe the evidence of a witness is contrary to natural justice - Whether there is a right to cross-examine witnesses considered - Standard of proof required - Inspection - Commission under no duty to prepare an inspection report or to ensure that all claimants are present at an inspection - Whether grounds that decision against the weight of the evidence and that decision wrong in law can be considered - Land Titles Commission Act 1963-1968, ss. 8, 9, 10, 28, 29 and 38[ccxxvi]¹ - Land Titles Commission (Jurisdiction and Appeals) Act 1968, ss. 28a and 38a - Land Titles Commission Rules, r. 15(8)[ccxxvii]².

APPEALS - Land Titles Commission - Decision appealed from - Reasons for judgment - Method of giving - Wrong in law - Against weight of evidence - Findings making establishment of grounds of appeal impossible - Whether rehearing or substitution of findings in interests of justice - Rehearing ordered.

EVIDENCE - Proving of facts in issue - Meaning of - Hearsay evidence - Nature of and weight of before Land Titles Commission discussed.

REAL PROPERTY - Land Titles Commission - Standard of proof required - On balance of probabilities.

WORDS AND PHRASES - “Subscribe” - Subscribing transcript of evidence - Full record in writing required.

WORDS AND PHRASES - “Hearing” - Judicial proceedings - Terminates when whole matter disposed of - Land Titles Commission Act 1962, s. 38.

WORDS AND PHRASES - “Natural justice” - Judicial proceedings - To be done and to be seen to be done.

Held

N1>(1)      Every judicial officer in the exercise of his judicial function should state to the best of his ability the facts he finds and the reason for his decision, such as will assist a litigant, who may be aggrieved, exercising rights he has to appeal.

De Iacovo v. Lacanale[1957] VicRp 78; , [1957] V.R. 553;

Pettitt v. Dunkley, [1971] 1 N.S.W.L.R. 376, at p. 382;

Connell v. Auckland City Council, [1977] 1 N.Z.L.R. 630;

Hill v. Arnold (1976), 9 A.L.R. 350; and

Bowman v. McKeown, The Times, 23rd November, 1978, referred to.

N1>(2)      The duty of a Land Titles Commissioner, in the exercise of his functions under the Land Titles Commission Act 1962, is to the best of his ability, to make findings of fact, to assess credibility and reliability of witnesses in conflict, to draw inferences of fact, to try to reach definite conclusions about the facts in issue, whether the evidence was direct or indirect, hearsay or otherwise, to take and subscribe the evidence, to give reasons for decision and to act judicially.

The State v. Manessah Voeto, [1978] P.N.G.L.R. 119;

Benmax v. Austin Motor Co. Ltd., [1955] A.C. 370;

Warren v. Coombes [1979] HCA 9; (1979), 53 A.L.J.R. 293;

Edwards v. Noble (1971), 125 C.L.R. 296;

Carlson v. King (1947), 64 W.N. (N.S.W.) 65, and

Pettitt v. Dunkley, [1971] 1 N.S.W.L.R. 376, referred to.

N1>(3)      The standard of proof to be applied by a Land Titles Commissioner in the exercise of his functions under the Land Titles Commission Act 1962 is the standard of proof in civil cases, i.e. on the balance of probabilities.

Hanes v. Wawanesa Mutual Insurance Co. (1963), 36 D.L.R. (2d) 718, at pp. 728-737;

Rejfek v. McElroy [1965] HCA 46; (1965), 112 C.L.R. 517; and

Blyth v. Blyth, [1966] A.C. 643, referred to.

N1>(4)      A “hearing” of the Land Titles Commission which by s. 38 of the Land Titles Commission Act 1962 is required to be conducted in a manner which is not contrary to natural justice does not terminate until the whole matter is disposed of: it includes all the proper consequences of the hearing at which evidence is taken and submissions are made, such as the transcript of the evidence and the preparation of and the recording of the reason for decision.

Green v. Lord Penzance (1881), 6 A.C. 657.

N1>(5)      Natural justice in the context of the conduct of a judicial hearing means that justice should not only be done but should manifestly and undoubtedly be seen to be done.

R. v. Sussex Justices; Ex parte McCarthy, [1923] EWHC KB 1; [1924] 1 K.B. 256, at p. 259;

R. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976), 136 C.L.R. 248, at p. 263; and

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon[1968] EWCA Civ 5; , [1969] 1 Q.B. 577, at p. 599, referred to.

N1>(6)      The “subscribing” of a transcript of evidence means to record in writing under one’s signature or bring into existence a written and verified transcript.

Attorney-General v. Bradlaugh [1886] UKLawRpKQB 9; (1885), 14 Q.B.D. 667; and

Carlson v. King (1947), 64 W.N. (N.S.W.) 65, referred to.

N1>(7)      A hearing before a judicial officer, where there is a failure or omission to subscribe a transcript of the evidence of an important witness, is to be taken to have been conducted in a manner contrary to natural justice;

N1>(8)      Rule 15(8) of the Land Titles Commission Rules 1968, which provides:

“After each witness has given evidence the Commissioner or Deputy Commissioner presiding may grant leave to a party with a conflicting interest to ask particular questions of that witness”,

does not confer a right to cross-examine witnesses; it gives the commissioner a judicial discretion to be exercised according to notions of fairness.

On appeal from the hearing before a Land Titles Commissioner under s. 15 of the Land Titles Commission Act 1962, to determine a claim in respect of native ownership or the right by native custom to use of land (Fisherman’s Island) the court found that the Acting Commissioner failed to subscribe a transcript of evidence of an important witness, failed to state whether he disbelieved or declined to accept the evidence of certain witnesses, failed to make findings of fact on crucial issues, failed to assess adequately the weight of documentary evidence, failed to do more than state that the appellant’s evidence was “insufficient”, failed to make findings and give adequate reasons for his decision, and failed to conduct the hearing in compliance with the rules of natural justice.

Held

It being impossible therefore to determine whether the decision itself was (or was not) based on some error of law, or was (or was not) against the weight of evidence (as required by s. 38(2) of the Land Titles Commission Act 1962), and there being sufficient grounds to interfere with the decision, a rehearing should be ordered.

Appeals

These were three appeals against a decision of the Land Titles Commissioner, and brought pursuant to s. 38 of the Land Titles Commission Act 1962.

Counsel

E. I. M. Nwokolo, for the appellant Naime Daure (of Nenehi Dubu clan).

The appellant Bobby Gaigo (of the Laurina clan), in person.

The appellant Madaha Resena (of the Nenehi Idabana, Tubumaga and Mavara clans), in person.

S. Thair, for the respondent.

Cur. adv. vult.

3 August 1979

WILSON J: These are three land appeals against a decision of the Land Titles Commission brought on behalf of several clans the members of which reside at Tatana Village on the outskirts of Port Moresby. The clans are aggrieved by a decision of that Commission which decided that Fisherman’s Island (or Daugo Island) is government land and not native land. The respondent in each instance is the Independent State of Papua New Guinea or the Government of Papua New Guinea (hereinafter referred to as “the government”). For the sake of convenience the three appeals were heard at the same time. The appellants were Bobby Gaigo on behalf of the Laurina clan (in Appeal No. 209 of 1977), Madaha Resena on behalf of the Nenehi Idabana, Tubumaga and Mavara clans (in Appeal No. 257 of 1977), and Naime Daure on behalf of the Nenehi Dubu clan (in Appeal No. 261 of 1977). Bobby Gaigo and Madaha Resena were unrepresented at the hearing of the appeals and they appeared in person to present their respective claims; Naime Daure was represented by Dr. Ikenna Nwokolo. The respondent was represented by Mr. Thair of the State Solicitor’s office.

These three appeals are brought pursuant to s. 38 of the Land Titles Commission Act 1962. Section 38 provides:

N2>“38(1) A person aggrieved by a decision of the Commission, whether after review under the last preceding Division or otherwise, may appeal to the (National) Court within ninety days after the decision or the review of the decision.

N2>(1a)    For the purposes of Subsection (1) of this section, in relation to a final order under the New Guinea Land Titles Restoration (Act) 1951-1966 the period for appeal was from the date on which the written final order is issued by the Commission.

N2>(2)      An appeal under Subsection (1) of this section may be made only on the ground that:

(a)      the Commission has exceeded its jurisdiction;

(aa)    the decision was against the weight of the evidence.

(b)      the hearings of the Commission were conducted in a manner contrary to natural justice; or

(c)      the Commission was wrong in law.

N2>(2a)    In paragraph (aa) of Subsection (2) of this section, ‘evidence’ means all information, facts, matters and things including hearsay evidence, expressions of opinion and the results of any inquiries or investigations made by the Commission under Subsection (1) of Section 15, or Subsection (4) of Section 36, of this Ordinance in relation to the decision appealed against) that were properly before or present to the mind of the Commission and which the Commission ought properly to have taken into account in arriving at the decision appealed against, together with all inferences proper to be drawn therefrom.

N2>(3)      In this or any other Ordinance in force in (Papua New Guinea) a reference to a decision of the Commission shall be read as a reference to a decision of the Commission as affected by the decision on an appeal under this section.”

It is observed in passing that, unlike much criminal appeal legislation, there is no overriding provision equivalent to s. 22(2) of the Supreme Court Act 1975 which permits the appellate court only to allow an appeal if it considers that, notwithstanding the fact that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, a miscarriage of justice has actually occurred.

The decision appealed against was given by Mr. Acting Commissioner Oliver on Friday, 9th September, 1977. Before I deal with that decision in detail I should refer to the history of this matter.

THE PREVIOUS HISTORY OF THIS MATTER

It appears that in 1964 various clans lodged formal and informal claims to customary ownership of inter alia the island off Port Moresby known as Fisherman’s Island (or Daugo Island). Hereinafter I shall refer to the island as “Fisherman’s Island” and as “the island”. A decision was given by the Land Titles Commission on 13th December, 1965, to the effect that the claimants did not own the island. That decision was the subject of an appeal to the pre-Independence Supreme Court. On 6th October, 1969, this court’s predecessor ordered and adjudged, by consent, that the case be remitted in whole to the Land Titles Commission for re-hearing.

On 16th December, 1974, the Chief Commissioner of the Land Titles Commission stated a case on a question of law for determination by the pre-Independence Supreme Court. The questions asked were[ccxxviii]³:

N2>“1.      Was any prerogative, or other authority, vested in the Administration of British New Guinea prior to June 1890 ‘to take possession of, on behalf of the Crown, as being waste and vacant’, land within the Possession.

N2>2.       If such authority existed and was exercised has the Land Titles Commission jurisdiction to hear and determine claims under s. 15 of the Land Titles Commission Act in respect of such land.”

On 30th March, 1977, the abovementioned questions were answered respectively by O’Meally A.J.[ccxxix]⁴:

N2>“1.      Yes.

N2>2.       No. However, the Commission has jurisdiction to ascertain whether land is waste and vacant where also there is a question of native ownership or the right by native custom to use it.”

His Honour’s full reasons are to be found in Arthur Agevu v. Government of Papua New Guinea[ccxxx]⁵.

It is to be observed that, although the case stated under s. 32 of the Land Titles Commission Act 1962 was in relation to certain claims to Fisherman’s Island, it did not relate specifically to any matter in issue between the parties. His Honour was at pains to emphasize[ccxxxi]⁶:

“It is important to note at the outset that in the form in which these questions are presented they do not relate specifically to any matter in issue beween the parties. The answers will relate to capacity: they will be of general application and will not in any way affect the rights of parties inter se. No matter of fact is decided by me and subject to any Appeal from the Land Titles Commission the ownership of and interests in the land the subject of the dispute are decided by it.”

His Honour, without deciding whether the establishment of the Protectorate and the subsequent annexation had the effect of vesting “in the Crown the ultimate title to all the land in Papua ...”, was satisfied that “waste and vacant” land was so vested in the Crown. His Honour defined “waste and vacant” land as land which is “unoccupied, uncultivated and unused”. His Honour saw fit to give no reasons for having decided upon that definition. With respect to the learned Acting Judge, it is to be regretted that, in the context of an island which was at all events used by fishermen, his Honour did not see fit to explain that his definition might need some qualification to take account (in the context of, for example, an island) of the exigencies, habits and practices of fishermen. I think that the extent and mode of occupation, cultivation and use of an island within fishing waters can undoubtedly be expected to be quite different from the extent and mode of occupation, cultivation and use of land upon which crops are grown or upon which stock are grazed. Depending on the seasons and the availability of fish, the land of fishermen may for many months or even years be unoccupied, uncultivated and unused but yet it may be sufficiently “occupied, cultivated and used” to remove it from the category of “waste and vacant”. Fishing as an industrial purpose involves considerably less concentration of land occupation, cultivation and usage than most other industrial purposes.

It was in the latter part of his Honour’s judgment that his Honour made it clear that the question of whether the land was “unoccupied, uncultivated and unused” as at June 1890 was the primary issue, that the question of whether the land was “waste and vacant” as at that date was the secondary issue, and that the question of the ownership of the land was the ultimate issue.

It was implicit in his Honour’s judgment that the learned Acting Judge was envisaging that the Land Titles Commission during the hearing of the various claims would decide whether Fisherman’s Island was at the relevant date “occupied, cultivated and used” (and, if so, by whom) — the primary issue, and then decide, by a process of drawing inferences from the facts so found and of adhering to the doctrine of judicial precedent (also known as stare decisis i.e. regarding himself as bound by a decision of the National Court), whether it was “waste and vacant” — the secondary issue, and then assuming that there was no direct evidence of ownership, decide by a like process the question of ownership — the ultimate issue. His Honour said[ccxxxii]⁷:

“Waste and vacant land I have said is unoccupied, uncultivated and unused land. That would seem to exclude ownership of such land. I then find it difficult to understand how once land has been found to be waste and vacant there could remain a question of ownership or a right to use it, that is, how could there then be any claims in respect of such land. The question of the exercise of the authority is perhaps unimportant; it is the character of the land which the Commission may be called upon to decide.”

On 22nd August, 1977, Mr. Acting Commissioner Oliver commenced to hear the claims of the various clans. The number of those claims had by this time increased to eleven. Nine of the claimants appeared and gave evidence.

THE EVIDENCE BEFORE THE LAND TITLES COMMISSION

The evidence before the Acting Commissioner taken during the lengthy hearing comprised the oral evidence of many witnesses, the evidence taken at the first hearing in 1965, and a considerable amount of documentary evidence. An inspection was also conducted.

It will be useful in due course to summarize some of the evidence that was before the Acting Commissioner at the conclusion of the hearing before him and to make some observations as to the sort of findings one would have expected him to make, as to the kind of decision-making processes one would have expected him to adopt, and as to the preparation of his reasons for decision.

THE DUTIES OF A LAND TITLES COMMISSIONER AND ALL OTHER INDEPENDENT JUDICIAL TRIBUNALS TO MAKE FINDINGS AND GIVE REASONS

I first make some reference to the duty of a Land Titles Commissioner (and all other independent judicial tribunals established to do “justice to all parties (to disputes) in accordance with law”) to making findings and give reasons for decision. It is to be observed at the outset that in the preamble to the Land Titles Commission Act 1962 it is stated:

“WHEREAS it is universally recognized that the expeditious and final determination of disputes as to rights in land and the registration of guaranteed rights to land are of basic importance to the well-being and development of all countries and especially of developing countries such as the (Independent State) of Papua New Guinea:

AND WHEREAS it is also universally recognized that these matters can best be dealt with by judicial authorities independent of control by the Government of the day, doing justice to all parties in accordance with the law:

AND WHEREAS it is proposed to make special provision in the laws of (Papua New Guinea) for the establishment of such an independent judicial tribunal to be known as the Land Titles Commission for the determination and protection of rights to land, and in particular to native land.”

By s. 8 and s. 10 (4) of the Act a Commissioner or Acting Commissioner “has the same protection, privileges and immunities as a Judge” and, of course, has certain judicial powers, duties, functions and jurisdiction conferred upon him.

There is ample authority for the proposition that every judicial officer in the exercise of his judicial functions should state, to the best of his ability, the facts he finds and the reasons for his decision (see De Iacovo v. Lacanale[ccxxxiii]⁸ and the cases cited therein). As Monahan J. said in that case, the court is not endeavouring to impose on judicial officers the necessity of producing “ ‘... long and elaborate reasons for their decisions, but desires a concise statement of the grounds of their decisions.’ “ [Monahan J. quoting from the judgment of Langton J., in Romilly v. Romilly[ccxxxiv]⁹.] In a lengthy and complex case involving a number of issues the reasons should contain a statement of the findings on disputed issues and the reasons should be coherent, intelligible and comprehensive.

In Pettitt v. Dunkley[ccxxxv]¹⁰ Asprey J.A. said:

“In my respectful opinion the authorities to which I have referred and the other decisions which are therein mentioned establish that where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge’s findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law.”

I need not decide and accordingly do not comment on the question of whether or not his Honour went too far in deciding that a failure to state adequately the findings and the reasons for the decision of a judicial tribunal constitutes an error of law, but I am persuaded by (and respectfully agree with) his Honour’s remarks regarding the duty of one who is exercising “his judicial office”. Pettitt v. Dunkley[ccxxxvi]¹¹ has been followed by Chilwell J. in Connell v. Auckland City Council[ccxxxvii]¹² and by a former acting judge of the pre-Independence Supreme Court, Muirhead J. in Hill v. Arnold[ccxxxviii]¹³. (See Uriva v. Maika; Re Veakabu-Vanapa[ccxxxix]¹⁴.)

Buckley L.J. in the Court of Appeal in Bowman v. McKeown[ccxl]¹⁵ made a comment of particular relevance in a case such as the present; the appellants in this case, it will be remembered, were not separately represented before the Land Titles Commission. His Lordship said:

“A judge who has a litigant appearing in person before him should give clear reasons for his decision and should deal with special care with the case of the party against whom he decided.”

It generally is convenient for a court or judicial tribunal, when preparing reasons for decision, to give an indication of the nature of the dispute mentioning the main issue to be determined and the contentions of the parties, then to proceed to a consideration of the witnesses (making findings as to their credibility and reliability and indicating the weight to be attached to the whole or parts of their testimony) and the documentary and other evidence (making findings as to the extent to which such evidence may be important and indicating the weight to be attached to such evidence), then to proceed to make primary findings of fact, then to proceed to make secondary and any subsequent findings of fact (indicating the method, whether by a process of drawing inferences from proved facts or otherwise, by which the secondary and subsequent findings of fact are arrived at), and finally, after considering at a convenient stage any legal issues that arise in the case, to announce the ultimate decision and make all necessary determinations and orders. I do not intend to convey the impression that there is any hard and fast rule about the matter of preparation of reasons for decision. I realize, of course, that cases differ, circumstances vary, and judicial officers are entitled to approach the task of preparing their reasons for decision independently and as individuals, and they should be permitted a reasonable amount of latitude in expressing themselves.

In the present case oral evidence was given by a number of witnesses and some of the evidence given was in conflict with other testimony. It was, I think, important for the Acting Commissioner at a reasonably early stage in his reasons for decision to deal with the credibility and reliability of the witnesses. In this context it may be useful and it is certainly convenient for me to refer to what I had cause to say about the assessment of witnesses and the weighing of evidence, witnesses in conflict, liars and inconsistent and mistaken witnesses, and the assessment of the witness who tells lies in the cases of The State v. Manasseh Voeto[ccxli]¹⁶, The State v. Jimmy Bellam[ccxlii]¹⁷ and The State v. Mole Manipe[ccxliii]¹⁸. All those cases were criminal cases, but the principles to which I am alluding apply equally well to land disputes.

In any case in which there is conflicting oral evidence the judicial officer should state in his reasons for decision why he rejects the evidence (or part of the evidence) of one and why he accepts that of the other. Where there is evidence, whether oral or otherwise, tending to prove one side of an issue and there is no evidence on the other side to contradict it, the judicial officer is bound to accept it unless that evidence is in itself so incredible and so unreasonable that no reasonable man could accept it. If, for any reason which recommends itself to the mind of the judicial officer dealing with the matter, he thinks fit not to accept the evidence of the witness who is the only witness before the court or judicial tribunal and is founding his decision on his disbelief of that witness, he is bound to disclose it. If, for any reason, he thinks fit not to rely on the only documentary or other like evidence (e.g. reports or opinions of experts) that is placed before the court or judicial tribunal and is founding his decision on his non-acceptance of that evidence, he is bound to disclose it. If he does not disclose these things, then he is deciding in the teeth of the evidence without showing why he does so, and that is not reasonable in any court or judicial tribunal charged with the responsibility of “doing justice to all parties in accordance with the law”.

I now deal with the judicial task of making findings of fact. In this context it is necessary for me to say something about the purpose of courts and judicial tribunals, such as the Land Titles Commission, and the approach they adopt to deciding disputed questions of fact. It should be remembered that the Land Titles Commission is established for the determination of disputes and the protection of rights to land. No court or judicial tribunal can continue to receive the respect and obedience of the community unless the people are satisfied that the court or judicial tribunal has an efficient machinery for investigating a dispute and arriving at conclusions about the essential facts involved which are as near as possible to the exact truth. In its task of discovering the facts, a court or judicial tribunal cannot carry out a general and all-embracing investigation like a scientist in a laboratory seeking universal laws of physics or chemistry. The administration of justice is a practical business which must be conducted smoothly and expeditiously and directed to solving only those problems with which the court or judicial tribunal is immediately concerned.

The problem of fact which a court or judicial tribunal has to solve is usually whether enough reliable information, which the court or judicial tribunal will listen to, has been brought forward to satisfy it that, as far as the court or judicial tribunal can judge, the facts really and truly are as the claimants claim them to be. Putting the same thing more shortly, the court or judicial tribunal will ultimately ask itself whether any particular claim or claims have been satisfactorily proved. I observe in passing that if “satisfactorily proved” does not mean proved with absolute certainty; it is something more than surmise, conjecture or guess.

In a land case such as the present the important central facts, all of which a claimant must show to be true if he is to win his case, and which are accordingly denied by the government, are termed “the facts in issue” or sometimes simply “the issues”. The issues in the present case were, in short, whether Fisherman’s Island was immediately prior to June 1890 “occupied, cultivated and used” (and, if so, by whom), and therefore whether it was at that time “waste and vacant”, and therefore whether it was owned (and, if so, by whom).

“Evidence” in a non-legal sense is generally understood to mean information, whether coming as verbal statements (whether hearsay or otherwise), as documents, as physical objects, as impressions or as expressions of opinion supplied to someone who is charged with the responsibility of deciding an issue and which, it is suggested or hoped, will help him to find the answer to the problem.

“Evidence” in a legal sense (i.e. when strict legal procedure is observed and when the technical rules of evidence are applied), however, means information, supplied or “given” directly to a court by a witness, which the court listens to and uses because its form, substance and source comply with certain legal requirements. These “legal requirements” are known as the “rules of evidence” and taken as a whole comprise the “law of evidence”.

“Evidence” for the purpose of s. 38(2) (aa) of the Land Titles Commission Act 1962, means all information, facts, matters and things, including hearsay evidence, expressions of opinion and the results of certain inquiries or investigations (see s. 38(2A) of the Land Titles Commission (Jurisdiction and Appeals) Act 1968 and s. 29(1) of the Land Titles Commission Act 1962).

Where “evidence” is being “given” in court, the accounts of the various witnesses are drawn from them by “examination”, that is, by question and answer. They are “examined”, “cross-examined”, and “re-examined” by counsel appearing for the parties or by the parties themselves (if they are unrepresented) with occasional (sometimes not so occasional) interventions by the court. As will appear later in this judgment, the procedure regarding the “giving” of evidence before the Land Titles Commission is less strict and the right to cross-examine is not recognised.

In practice in courts and in judicial tribunals like the Land Titles Commission evidence consists almost entirely of statements made by witnesses who have taken an oath to tell the truth, supplemented (sometimes extensively as was the case here) by documents or other physical objects or impressions or expressions of opinion or the results of certain inquiries or investigations. A witness in a court may only speak directly of things, acts, events and words of which he has become aware by his own observation — the exercise of his own five senses; that is, he can speak only of what he has seen, heard, felt, smelt and tasted.

A witness before the Land Titles Commission may speak of information, facts, matters and things of which he has become aware either by his own observation or by way of what he has been told (“hearsay”) or by way of the formulating of opinions or by way of the conducting of certain inquiries and investigations.

In any particular dispute it is the ultimate task of the court or the judicial tribunal (as the case may be) to decide how far evidence so given and received is reliable and whether, after considering all the evidence presented, it can feel satisfied that the facts are really and truly as they are alleged to be by either party. It is, therefore, as well to bear in mind that, when anyone speaks of “proving” or “giving proof of” a fact (whether “conclusively” or not) and when anyone speaks (as the Acting Commissioner did in his reasons for decision in this case) of the “sufficiency” of evidence tendered in purported proof of a fact, what is usually meant is that evidence is offered to the court or judicial tribunal (or “led”), which it is hoped the court or judicial tribunal will accept, and which, if accepted, may help to satisfy the court or judicial tribunal about where the truth lies. The phrase “I have proved such and such a fact” means, in practically every case, “I have led, or offered evidence of this fact, I hope it will be accepted and acted upon.”

Applying these general principles to any case, a number of things inevitably become the facts in issue; they become the important central facts to which I have broadly adverted; and they are (or ought to be) before the mind of the judge or judicial officer when he comes to reach his decision in the case and make his final determination. If the court or judicial tribunal is satisfied that any one or more of those facts really and truly is (or are) as the claimants or any one of several claimants (if there are more than one) claim it to be, then a finding of fact in those terms should be made. If the court or judicial tribunal is not satisfied about the truth of any one or more of those facts, then no such finding (or a negative finding) should be made. When there is a considerable amount of evidence, it should be weighed carefully to decide whether the facts in issue have been proved.

In a Land Titles Commission hearing such as the present one, which is concerned with questions of “occupation”, “cultivation” and “use” at various times but, in the final analysis, at the time just prior to 1890 and is ultimately concerned with question of ownership it is unlikely (because of the lapse of nearly ninety years between the relevant period and the present day) that any witness could be called either by the claimants or by the government to state directly that one or more of the actual facts in issue is true, i.e. to give an account of one or more of such facts from his own direct observation.

It is likely (as appears to have been the situation before the Acting Commissioner) that all witnesses called to give evidence relating to the actual facts in issue at the relevant period (I emphasize the word “at” in order to draw an important distinction between evidence directed to that particular period on the one hand and evidence — including the important archaeological evidence — directed to the period since and to the period prior to that particular period) will necessarily be giving hearsay evidence which is subject to criticism for the essentially practical reasons given by Stephen in his Digest of the Law of Evidence (12th ed., p. 192):

N2>1.       A statement made by an absent person cannot be tested by cross-examination of that person.

N2>2.       Very few people can be trusted to repeat (with accuracy) a statement they have heard in any but the simplest cases. [The words in parentheses are my own.]

N2>3.       Admission of hearsay would open an easy way to fraud, and would often prolong proceedings by the production of relevant but unimportant matter in a way which would cloud the real issues.

Hearsay evidence may be unreliable; but, particularly in the case of disputes over land which frequently arise in Papua New Guinea it may be in the interests of justice that it be permitted to be adduced (as the relevant Acts contemplate) for the reason that, without it, there may be no evidence as to certain of the facts in issue. Whilst recognising the need for the reception by the judicial tribunal of hearsay evidence in a case of the kind under consideration in these appeals, it is imperative that the judicial tribunal reminds itself of the dangers inherent in receiving potentially (but not necessarily) unreliable evidence in that form. It must here be stated that the extent to which hearsay evidence may be unreliable may be measured by such criteria as the honesty and reliability of the witness giving the evidence, the standing of the absent (or deceased) person whose statement is the subject matter of oral evidence, and, most “importantly in a case such is the present, how remote in time the evidence is, and, finally, whether the hearsay evidence is second-hand or third-hand or even more remote still. In this context the evidence of a witness who testifies as to what he was told by a person who quite obviously made observations with his own eyes or experienced things personally is more likely to be more reliable and therefore more important than the evidence of a witness who testifies as to what was passed down to him through two or more generations. I shall be making reference later in this judgment to the evidence of Heni Rei in this context.

It should not be overlooked that in a largely illiterate society, as was the case in Papua before the turn of the century, evidence in written form was unlikely to be brought into existence. Special account therefore needs to be taken of oral evidence even if it is hearsay.

The necessity for allowing hearsay evidence to be given before the Land Titles Commission is at least as compelling as allowing many of the exceptions to the hearsay rule which have been recognised by the courts.

It is likely (as appears to have been the situation before the Acting Commissioner) that documentary evidence, whether in the form of public documents or otherwise, purporting to contain statements made by a person long-since deceased will be tendered. Such evidence is admissible in a court if it is brought within one of the exceptions to the hearsay rule, such as a declaration as to public and general rights or a statement in a public document. Because such evidence is necessarily indirect, it too may be unreliable or otherwise subject to criticism. Such evidence needs to be scrutinized with care before it is given such weight (and no more weight) than it properly deserves. The values of the writer (including his attitudes to notions such as “ownership”) need to be considered.

It is usual for the parties to attempt to prove (as also appears to have been the situation before the Acting Commissioner both as far as the claimants were concerned and as far as the government was concerned) a number of surrounding facts and circumstances, known as “relevant facts”, from which it is possible for a person of ordinary common-sense and reasonable experience of the ways of the world (both of which characteristics I would unhesitatingly attribute to any Land Titles Commissioner or Acting Commissioner, all of whom, by virtue of the operation of s. 9(3) of the Land Titles Commission Act 1962, are acknowledged to have “a knowledge of native customs in relation to land”) to infer (or work out for himself) which of the facts in issue are proved; in other words, which of the facts in issue are in truth as they are claimed to be. In this context the relevant facts and circumstances relating to “occupation, cultivation and use” of land in a period following the relevant time and, perhaps more importantly, in a period earlier in point of time would seem to be of special importance. In this same context the relevant facts and circumstances referred to in the official documents brought into existence during the period under consideration would also seem to be of special importance.

Most cases before a court or judicial tribunal have this in common — the judicial officer cannot start to reach a decision about any evidence in any case until he has firmly and clearly fixed what are the facts in issue. It is necessary that in his reasons for decision he should make findings of fact (which, in a case such as the present, means primary, secondary and ultimate findings of fact).

In a case where it is necessary to draw an inference from the established facts and make secondary and even subsequent findings of fact, the judicial officer should state the inferences he draws and his reasons for doing so. In a case such as the present, where the secondary fact found by drawing an inference might have been that the subject land was not “waste and vacant”, assuming, for the purpose of illustrating the process to which I am referring, that there has been at least a primary finding of fact that at the relevant time the land was “occupied cultivated and used” by some clan or clans or the indigenous people at large, it would only have been necessary to state that the inference is drawn that the land was not “waste and vacant” for the reason that, according to the decision of O’Meally A.J. in the case stated, “waste and vacant” land is, by definition, land which is “unoccupied, uncultivated and unused”. The converse would also apply where the secondary fact found by drawing an inference might have been that the subject land was “waste and vacant”, and (again for the purpose of illustration only) I assume that there has been primary finding of fact that at the relevant time the land was “unoccupied, uncultivated and unused”, it would only have been necessary to state that the inference is drawn that the land was “waste and vacant” for the same reason as expressed above.

That a judicial officer has in a case such as this the duty first to find the facts and then to draw from them inferences of fact is to be seen from a perusal of the judgment of Viscount Simonds in the House of Lords in Benmax v. Austin Motor Co. Ltd.[ccxliv]¹⁹ wherein his Lordship stated in the setting of a negligence action:

“A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent.”

His Lordship’s opinion has recently been approved in the High Court of Australia decision in Warren v. Coombes[ccxlv]²⁰ which not only is important but also will have widespread implications. Although the Supreme Court of Papua New Guinea and some judges of the National Court have, in relation to the duties of an appellate court, hitherto followed Edwards v. Noble[ccxlvi]²¹, which was disapproved of in the majority judgment of Gibbs A.C.J., Jacobs and Murphy JJ. in Warren v. Coombes[ccxlvii]²² and which would now seem to be in need of re-consideration in Papua New Guinea, in none of the cases supporting either the Edwards v. Noble[ccxlviii]²³ doctrine or the Warren v. Coombes[ccxlix]²⁴ doctrine can I find any dissent from Viscount Simonds’ view as to the duty of a judicial officer first to find the facts and then to decide on the proper inference or inferences to be drawn from those facts which have been established.

So it is that courts and judicial tribunals must seek to come to some definite conclusions about the facts in issue. This is sometimes an onerous task, but nevertheless, that is a part of the judicial duty that a judicial officer is there to perform and he should not shrink from his duty however difficult the task. In a complex case (and it must be said, in fairness to the Acting Commissioner, that this one was such a case) the tribunal of fact must endeavour “to untie the Gordian knot”. It is in rare and unusual circumstances that a court or judicial tribunal is driven to such a counsel of despair as to announce or imply that it cannot choose between conflicting witnesses and conflicting evidence.

It is only when evidence is evenly balanced and the judicial officer cannot reasonably decide between conflicting evidence that he should find the issue not proven. Again he should disclose his reasons for being unable to decide. It is then, and only then, that an issue is determined according to where the onus of proof lies. I am far from convinced that the decision appealed against was such a case.

Turning to the issues of fact that had to be decided in the case by the Acting Commissioner, it was reasonable to expect the Acting Commissioner (indeed I am of the opinion that it was his duty) to have made specific findings one way or the other with regard to the evidence (whether such evidence was direct or indirect, hearsay or otherwise) on the primary issue, i.e. findings as to the land’s “occupation”, “cultivation” and “use”, and then to have made a finding on the secondary issue, i.e. a finding made by the process of drawing an inference, as to whether or not the land was “waste and vacant” at the relevant time, and then to have made a finding on the ultimate issue, i.e. a determination as to the land’s “ownership”. It was not open to the Acting Commissioner to have proceeded directly and independently of the oral evidence to make a finding on the issue of ownership of the land at the relevant time, because there was no direct evidence of ownership and such indirect evidence of ownership (in the form of hearsay evidence from the witnesses and in the form of statements in written documents) as was before the Acting Commissioner was necessarily suspect or potentially unreliable.

In the case of the oral evidence of witnesses it was the Acting Commissioner’s duty as a judicial officer to assess the credibility and reliability of those witnesses who gave evidence. If he thought they were lying he should say so, specifying his reasons. If he thought they were unreliable he should say so, specifying his reasons. If he thought their evidence, or any of it, was lacking in weight, was of little effect or was unsatisfactory for any reason, he should say so, specifying his reasons. Of course, if he thought they were honest and reliable and their evidence was in all respects satisfactory, he should say so.

In the case of the documentary evidence it was the Acting Commissioner’s duty to assess that evidence also and to determine whether what was written could be expected to be accurate and of real assistance (and, if so, to what extent) in determining any of the issues.

It was particularly important to the appellants in this case for the Acting Commissioner to have made findings, if he could (and I believe he could), along the lines suggested and to have made the assessments and determinations incidental thereto in the manner suggested. I assert this with some confidence because, unless the archaeological evidence as to the period prior to the relevant time is to be rejected as totally unsatisfactory (and it would appear that no-one so contended) and unless the evidence of the “occupation, cultivation and use” of the subject land at and since the turn of the century is also to be rejected, what would seem to be abundantly clear on the evidence before the Acting Commissioner is that both in the distant past and in the recent past (as recently as about 1900 to 1910, if Heni Rei’s eye-witness evidence is accepted) the island was “occupied, cultivated and used” and, in no sense, “waste and vacant”. The main dispute between the indigenous Papua New Guineans on the one hand (leaving to one side the question of which particular clans may have any, and what entitlement) and the government on the other hand revolves around the question of whether, during what I shall call “the intermediate period” (and at the relevant time, in particular), the subject land could be said to be “occupied, cultivated, and used” and, therefore, not “waste and vacant” and therefore “owned” by the claimants or, at the very least, “not owned” by the government.

The claimants, as a group, are some of the descendants of the Papuans or “natives” to whom Erskine made a promise that their land “would be secured” to them. The appellants could reasonably have expected a finding in their favour or, if not, reasons for decision containing findings of fact and reasons for such findings which would enable them (if they wished) to exercise their rights of appeal and in particular, that right of appeal which was recognised by the legislature and incorporated by amendment into the statute in 1968 when the Land Titles Commission (Jurisdiction and Appeals) Act was enacted, viz. the right to have the decision, in so far as it was against the weight of the evidence, reviewed on appeal and, if the appeal is successful, have the decision varied or have the case remitted for re-hearing.

THE DECISION AND RULING

On 9th September, 1977, the Acting Commissioner announced his decision and ruled that Fisherman’s Island (or Daugo Island) is government land having been acquired as “waste and vacant” land by proclamation of 4th September, 1888, but that it is subject to the continued existence of camping and fishing rights and the right to gather natural products of the island (fructus naturales) in favour of the descendants of the people formerly living at the villages of Gorohu, Porebada, Roku, Tatana, Hanuabada and Vabukori.

The Acting Commissioner said that his reasons would be formally published at a later date. This was done on 15th September, 1977, when copies of “the transcript” and reasons for decision were forwarded to the State Solicitor and the Public Solicitor and when copies of the reasons for decision were forwarded to each of the claimants.

THE APPEALS

Within ninety days after 15th September, 1977, the appellants being three of the several claimants instituted their appeals. There being some doubt as to whether the period within which an appeal may be instituted commenced in this instance on 9th September or 15th September, and there being power to extend the time, I ordered that the time for appeal in both Appeal No. 257 of 1977 and Appeal No. 261 of 1977 be extended until 13th December, 1977, and 14th December, 1977, respectively.

THE HEARING BEFORE THE NATIONAL COURT

On 15th February, 1978, these appeals first came on for hearing before me. The hearing was unusually lengthy, largely on account of the fact that two of the appellants, Madaha Resena and Bobby Gaigo were unrepresented. They needed help with procedural matters and it was some time before their appeals were in order. Whilst both Madaha Resena and Bobby Gaigo behaved courteously and with dignity before me and revealed that each of them has a considerable amount of ability as a lay advocate, their command of the English language and of the language of the law was not such as to make it easy for me always to understand what their grievances were.

THE GROUNDS OF APPEAL

The grounds of appeal, as amended by leave, were:

BOBBY GAIGO'S APPEAL

N1>1.       That the hearings of the Commission were conducted in a manner contrary to natural justice.

N1>2.       That the decision was against the weight of the evidence.

N1>3.       That the Commission made wrong finding (sic) that Daugo was waste and vacant land by the proclamation of British New Guinea Administration dated 4th September, 1884.

N1>4.       That the Commission made wrong further declares all claimant has right to use the Daugo Island (sic).

MADAHA RESENA'S APPEAL

N1>1.       That the Commission acted in a manner contrary to natural justice in that it did not consider the evidence of the witness, Heni Rei, who gave evidence before the Commission and did not make any mention in the final judgment of such evidence and it did not record such evidence in the Commission’s record.

N1>2.       That the Commission was wrong in law in finding that the land was waste and vacant when it was first acquired by the Proclamation of 4th September, 1884, in that it fails to take full cognizance of the evidence as to the nature and concepts of ownership and land usages in this country.

N1>3.       That the Commission was wrong in refusing to take documents tendered in support of the appellant’s evidence.

N1>4.       That the hearing of the Commission was conducted in a manner contrary to natural justice in that the appellant was refused the right to cross-examine the witness Arthur Ageva.

N1>5.       That the hearing of the Commission was conducted in a manner contrary to natural justice in that the Commissioner failed to record or failed adequately to record the details of the inspection that took place on 2nd September, 1977, and, in particular, the fact:

N2>1.       that Heni Rei pointed out where he and his grandfather and father had lived,

N2>2.       that one thousand pieces of pottery and shellfish and stone tools were at the village site,

N2>3.       that he asked the men from Porebada and Roku (called Lohia Goata and Hitolo Lohia and Arthur Ageva) in the presence of the appellant, Bobby Gaigo, Heni Rei, Resina Gaigo and Mrs. Daure and others “Who owned the village site?” to which they replied “Tatanas”,

N2>4.       that at the inspection some vines were obtained,

N2>5.       that the Commission was shown how the people lived, how they made gardens and how they cleaned rocks,

N2>6.       that the Commission was shown where during the wet season the people got their water from the holes in the area,

N2>7.       that the Commission was shown the whole area where people did gardening and where broken posts existed,

N2>8.       that the inspection did not involve inspecting the whole of the island,

N2>9.       that the Commission was shown the airstrip where a garden had been cleared by bull-dozers,

N2>10.     that the Commission, although having started to inspect the island Maoi, did not ever get there for that purpose,

N2>11.     that the Commissioner asked the two Porebadans and two Rokuans to show their ancestor’s village site on Daugo island and that the four of them refused to show him,

N2>12.     that for that reason the Commission did not inspect any site purporting to be the village site of the ancestors of the two Porebadans and two Rokuans,

N2>13.     that, through lack of petrol, no inspection was made of the island Maoi.

N1>6.       That the hearing of the Commission was conducted in a manner contrary to natural justice in that the Commission failed to ensure that all applicants were present at the inspection and failed to prepare an inspection report and bring it to the hearing of the Commission and failed to give all applicants the opportunity to comment upon it.

NAIME DAURE'S APPEAL

N1>1.       The Acting Commissioner’s decision was wrong in law or alternatively against the weight of evidence in that he found that when the British New Guinea administration took possession of Fisherman Island it was unoccupied, uncultivated and unused and was waste and vacant land when there was abundant evidence that the land was occupied and used for gardening, fishing, and camping by Tatana villagers.

N1>2.       The Acting Commissioner was wrong in law in holding that the word “use” in the circumstances of the particular case meant that it was necessary for a claimant group to show that they had possessory or proprietary right and that such use must be exclusive.

THE ACTING COMMISSIONER'S REFERENCES TO THE ORAL EVIDENCE OF THE CLAIMANTS AND THEIR WITNESSES, IN PARTICULAR, THE TATANA EVIDENCE

I now consider the Acting Commissioner’s references to the oral evidence given by the claimants and their witnesses. A summary of such evidence appears in the reasons for decision of the Acting Commissioner. For the purposes of understanding what the issues of fact were, it is a reasonably helpful summary as far as it goes. Later in this judgment I will need to deal more specifically with the evidence given by the Tatana claimants (i.e. the appellants) and their witnesses.

It is to be noted that the Acting Commissioner did not state in his reasons for decision that he disbelieved those witnesses or any of them or was disinclined to accept them. He did not find that their evidence lacked credibility nor did he find that it was unrealiable or unsatisfactory. As will be seen later (and I find this both curious and bewildering), the Acting Commissioner, when asked, omitted to provide me with an answer to my question to him: “Did you reject the evidence of Heni Rei and, if so, for what reasons?” What he did say was that “only the Tatana people state that they have ever lived on the island. Indeed they claim to have lived there at the time of Captain Moresby’s arrival and even welcomed him onto Fisherman Island, though no mention of this is made in the book Discoveries and Surveys in New Guinea.” The Acting Commissioner, having drawn attention to this conflict in the evidence, did not attempt to resolve that conflict by making a positive finding one way or the other as to the question of whether or not the Tatana people lived on the island at or about the time of Captain Moresby’s arrival or even, as Heni Rei testified, by reference to his own observations shortly thereafter (in the period 1900 to 1910). All he did was to say that the Tatana evidence was “insufficient” and “not conclusive enough”.

If the evidence of the Tatana people that they lived on the island at or about the time of Captain Moresby’s arrival was credible, reliable and otherwise satisfactory (and the Acting Commissioner did not give any explicit indication that he had reached a conclusion to the contrary), then the Acting Commissioner, in discharging his judicial duty of making findings of fact, should have said so, and that would have led to a finding of “residence” on the island, a crucial aspect of “occupation”, and probably of “cultivation” and “use” as well. If the evidence of the Tatana people that they lived on the island at the relevant time was incredible or unreliable or unsatisfactory, then the Acting Commissioner should have said so and given his reasons.

The Acting Commissioner did make reference to the book Discoveries and Surveys in New Guinea and to the absence of any reference in it to people living on the island. He also did say that “all the other claimants both Motuan and Koitabuan deny that the Tatana people ever had an established village on the island.” If the Acting Commissioner proposed to accept the evidence in the book and if he proposed to accept the evidence “of the other claimants both Motuan and Koitabuan”, thereby rejecting the evidence of the Tatana people, it was his duty to say so and give his reasons. I repeat that all he did was to say that the Tatana evidence was “insufficient” and “not conclusive enough”.

The Acting Commissioner next made reference in his reasons for decisions to the evidence of the Tatana people that the place indicated to the Acting Commissioner during his inspection of the island on Friday, 2nd September, 1977, was the site of their village called Nagwa and the evidence of broken pottery, shell-fish remains and stone implements. He also made reference to the two reports of archaeological surveys that had been tendered (exhibits “A” and “C”).

Again he did not state that he disbelieved the Tatana witness giving his reasons for disbelieving them. It is true that he indicated his conclusion about the two archaeological reports. Notwithstanding the apparent strength of the evidence of those two experts Dr. F. J. Allen and Mrs. M. J. Mountain and their statements to the effect that the village site on the island had been “occupied for a reasonably long time at some stage in the pre-1870 past” and that the village “was occupied more or less on a permanent footing” (see Dr. Allen’s report) and to the effect that “undoubtedly (the village site) was an area of considerable settlement during some period of time, including a large village” and “the material shows that there is a site here of considerable size and importance to the past history of the Tatana people ...” (see Mrs. Mountain’s report), the Acting Commissioner felt compelled to say that he was “unable to find” that the evidence mentioned in those reports and that which he saw on his inspection was “conclusive enough to accept that the site taken as a village site by Dr. Allen and Mrs. Mountain was a Tatana Village called Nagwa in existence at the time of Captain Moresby’s arrival and occupied at the time of the Proclamation in September 1884.” With reference to the evidence of the garden areas indicated by the coral formations, the Acting Commissioner again spoke of the “insufficiency” of that evidence (cf. Dr. Allen: “I think those certainly were garden plots ...”). The Acting Commissioner once more omitted to make a positive or negative finding on that issue, a finding which in a case such as this needed to be made on the balance of probabilities. I will need to deal in more detail with the standard of proof, and I will do so later in this judgment, but as far as the standard of proof was concerned on this and all other issues, it is sufficient for me to state at this stage that the Acting Commissioner only needed to be satisfied on the balance of probabilities and not (as with the onus in criminal cases) beyond reasonable doubt. In purporting to reject the evidence of the Tatana people regarding the garden areas, the Acting Commissioner said that “it is quite possible ... that these areas could have been cleared by the government employees or prisoners at the time the island was planted up or by subsequent work parties as mentioned in the British New Guinea Annual Reports or even by other people some time long ago in the past (see exhibit ‘I’).” (The emphasis is mine.) The Acting Commissioner should only have rejected the evidence of the Tatana people regarding the garden areas if, in addition to finding their evidence incredible, unreliable or otherwise unsatisfactory, he concluded that it was probable that those areas had been cleared “by the government employees or prisoners of the time the island was planted up” or “by subsequent work parties” or “by other people some long time ago in the past”, specifying, if possible, which, and, in any event, indicating why he concluded that the garden areas were more likely to have been cleared by such people than by the Tatana people.

It was a valid comment for the Acting Commissioner to make when he observed that “Sir William Macgregor, in his minute to the Government Secretary, dated the 19th April, 1889, said he crossed the island from sea to sea eight times but mentions nothing of any settlement or gardens.” This evidence (notwithstanding its limited probative value) provided a reason for the Acting Commissioner to reject the evidence of the Tatana people, but, as I have already stated, he did not purport to do so; he merely asserted that their evidence was “insufficient” and “not conclusive enough”. Far from rejecting the evidence of the Tatana people, he proceeded then to give a reason why it might have been accepted. He stated, “It was apparent that, of all the claimants, the Tatana people were most knowledgeable of the islands geography and other things ...” Immediately following that statement in the reasons for decision were several reasons for the Acting Commissioner to reject the evidence of the Tatana people; first, he said that “curiously enough (the Tatana people) knew nothing of their ancestors’ history before the establishment of Tatana village”, secondly, he referred to the “numerous statements” from the other claimants and witnesses to the contrary of the evidence of the Tatana people as to their ancestors always being “in residence at Tatana” and, thirdly, he stated that “they could provide no stories or evidence of conflict between themselves and other villages over the right to occupy and use the island and the surrounding area for fishing and other purposes.”

The Acting Commissioner concluded his reference to the Tatana claimants’ evidence by stating:

“I have no doubt that the people of Tatana did exercise the right to fish in these areas and camp on and gather natural produce off the island during these expeditions, but I find there is insufficient evidence to support their claim of exclusive use and the right to exclude others.”

There was clearly some evidence before the Acting Commissioner to support the claim of the Tatana people to having owned the island and, more specifically, to having “occupied, cultivated and used” the island at the relevant time, thereby leading to the inference being drawn that the island was not “waste and vacant” at the time of the Proclamation. There was clearly some evidence from which the contrary inference might have been drawn. I consider the Acting Commissioner fell into error when he failed to weigh up all of the evidence and reach a conclusion one way or the other based upon his assessment of the credibility and reliability of the witness and the satisfactoriness of all the evidence both oral and written; he failed to make necessary findings and failed to give adequate reasons. Instead, he based his conclusions (at least as far as the Tatana claims were concerned) upon the evidence being “insufficient”.

THE FAILURE TO MAKE FINDINGS AND GIVE ADEQUATE REASONS — A RELEVANT MATTER

None of the appellants has based his or her appeal specifically upon the ground that the Acting Commissioner failed to discharge his judicial duty by making findings of fact which he ought in the circumstances to have made and was therefore wrong in law. None of the appellants has based his or her appeal specifically upon the ground that the Acting Commissioner failed to discharge his judicial duty by making any or sufficient findings as to the credibility or reliability of witnesses and was therefore wrong in law. None of the appellants has based his or her appeal specifically on the ground that the Acting Commissioner failed to give adequate reasons for his decision and was therefore wrong in law. Such grievances are nonetheless of importance in deciding whether this court is in a position to decide these appeals on the ground of appeal that the decision was against the weight of the evidence and, if the appeal is successful on any other ground, in deciding what order this court should make whether by way of remitting the case for re-hearing or otherwise.

I express no opinion (because I have nothing before me in the Acting Commissioner’s reasons for decision to indicate which of the witnesses who were called and which of the persons whose statements or opinions were set out in documentary evidence are credible and reliable) as to whether the Acting Commissioner ought on the whole of the evidence to have made findings of fact as contended for by the appellants, Indeed, as will be mentioned later, I find it impossible, in discharging my duties as an appellate court, to determine the grounds of appeal to the effect that the decision of the Acting Commissioner was against the weight of the evidence in the absence of any findings as to the credibility and reliability of the witnesses. Findings which clearly had to be based on an assessment of the credibility or bearing of witnesses were simply not made. However, the failure on the part of the Acting Commissioner to make any or a proper assessment of the credibility and reliability of the witnesses (especially the Tatana witnesses and, the witness Heni Rei, in particular) and the Acting Commissioner’s insistence upon the conclusion that their evidence was “insufficient” — in circumstances where it was clearly sufficient, if accepted, but insufficient, if rejected — are important to the ground relied upon by two of the appellants regarding an alleged non-compliance with the rules of natural justice, and, if I decide that there was a breach of those rules, important to the question of whether I can (or should) substitute my own decision for that of the Acting Commissioner or remit the case for re-hearing.

THE ACTUAL ORAL EVIDENCE GIVEN BY THE TATANA WITNESSES

I now turn to the actual oral evidence given by each of the Tatana witnesses. At the 1977 hearing Madaha Resena, who was aged forty-eight in 1977, testified as to what he had been told by his grandfather. He said, “Daugo Island is not pronounced Daugo, it is Dauko” and he explained the reason. He told how his ancestors and his family lived and made their houses on Fisherman’s Island. He said, “When Tatana people lived there, they used to build gardens and made many more things on that island. The Tatana people used to live at Dauko Island till the first Europeans came to Port Moresby. The name of the first European who arrived in Port Moresby was Captain Moresby.” (The emphasis is mine.) Madaha Resena went on to explain the type of gardens that were made, the food the people ate, the articles they made, the methods of fishing that were used, the names of the reefs and points on the island, the method of getting water, the trading practices of the people, the meetings with the Hula people (and no others), and the hunting that was done on the mainland. Madaha Resena stated, “We people of Tatana know the places for fishing around Dauko Island and we are the only owners of Dauko Island.” (The emphasis is mine.) Madaha Resena in his evidence then argued in favour of the Tatana claims and made a number of points including the naming of the island “Dauko” by the people of Tatana, and the use by the government in the British Proclamation and elsewhere of the same name. He explained how that, when Captain Moresby came, the people “from Dauko” and the Tatana people saw him, “he was anchored near Dauko”. Madaha Resena went on to describe what happened after Captain Moresby’s arrival. Under cross-examination by Mr. Thair, Madaha Resena said that he could indicate a village where his ancestors lived on the island. He explained that the Tatana people left the island after Governor Macgregor told them to leave. He also told how his ancestors had the right to tell other people to leave, if they were found using the island, but he was not asked whether that right was ever exercised.

Nihirai Siai, who was aged about fifty-nine or sixty in 1977, gave evidence as a member of the Tubumaga clan in support of the evidence of Madaha Resena. He had also given evidence at the 1965 hearing. He indicated that his main source of information regarding the island was his father. He spoke of “going to Daugo for fishing and gardening”, but, important as that evidence as emphasised by me was, that must have been at a time after World War 1 (1914-1918). He testified to the “people of Tatana having lived some on Daugo and some at Tatana.” (The emphasis is mine.) He said that no-one else lived on the island. In answer to a question by the Acting Commissioner, Nihirai Siai said that the name of the Tatana village on the island was Nagwa, and he indicated that he knew where it was. He told of the Tatana people leaving the island when told to do so by Mr. Hunter, a government officer. He testified to having been told by his father that his grandfather had lived on the island also.

Hane Igo of the Laurina clan, who was aged fifty-two in 1977, gave evidence in support of the Tatana claims. She testified to having been told by her grandfather that “Daugo belongs to Tatana.” Both her father and grandfather had “lived on the island for a few months at a time” and had “made nets, fished, gardened and made everything on that island.” (The emphasis is mine.)

Resena Gaigo of the Nenehi Laurina clan, who was a reasonably elderly man in 1977, also gave evidence in support of the Tatana claims. He had been a policeman for twenty-seven years. He had previously give evidence at the 1965 hearing. He said he lives at Tatana, and had a story to tell about the island. He gave evidence to the effect that the Nenehi Laurina clan were the first people on the island followed by the Nenehi Idibana. The Tatana people were before the government. He testified to having got his information from his father, who had got his information from his father before that. He testified as to the use made of the island for fishing and collecting shells. He knew the place where the archaeological surveys were carried out — Nagawa. Although he had no stories to tell of fights with other villages, he did say that he knew of the Tatana people giving permission for the government to take sick people there. He supported Madaha Resena regarding the name of the island and regarding the planting by his ancestors of some coconuts.

Harake Bago of the Idibana clan, who was about fifty in 1977, also gave evidence in support of the Tatana claims. He testified as to what he had been told by his grandfather — Tatana people had been “living on Daugo and it belonged to them.” (The emphasis is mine.) Permission was given, he said, for the government to build the airstrip and to take sick people there. He was subjected to strong cross-examination. He did testify as to “the fishing and gardening” that he had heard about on the island. (The emphasis is mine.)

Bobby Gaigo of the Laurina clan, who was aged thirty-one in 1977, gave evidence and claimed that “the island belongs to the Laurina clan of Tatana.” He testified as to “the village” made by the Laurina clan on “Daugo”. He spoke of “the fishing, gardening and shell-collecting” that went on. Lakatois and canoes were made there. He testified as to what his father, his grandfather and his ancestors had told him. (Once more the emphasis is mine.)

Naime Daure of the Nenehi Idubu clan, who was about forty in 1977, gave evidence in support of the Tatana claims. She testified as to what her mother had told her. She told of her ancestors, two brothers named Daure Daure and Vedio Daure, who had “lived on Daugo” and who had met Captain Moresby on 21st February, 1873, on the island. She testified as to how the two brothers were standing on the beach watching Captain Moresby come to the beach in a little boat and how, after Captain Moresby had made a sign indicating that he wanted water, they took him to Tatana. She testified further as to what she had been told had happened when they arrived at Tatana on that occasion and when they returned to the island later. Under cross-examination Naime Daure told of “the gardens that were made on Daugo and the fighting that went on at night-time over food.” She was asked many questions. (The emphasis is mine.)

Although a transcript of his evidence given at the 1977 hearing does not appear in the Appeal Books, it was clearly established before me that Heni Rei gave evidence at the 1977 hearing. Heni Rei also gave evidence at the 1965 hearing, a transcript of which appears at pp. 18 to 20 of the evidence of that hearing which is in “Book 1 of three Books” of the Appeal Books before me. Henri Rei is from Tatana. He was one of Madaha Resena’s witnesses. His evidence, as recorded, was to the effect that the grandfathers of his people “lived on Daugo island” and “made gardens” and they “caught fish”. (The emphasis is mine.) The people left the island after Robert Hunter told the people to shift “because of sickness”. After that “the people still went to this island for fishing and sometimes they stayed there for two or three days.” He is also reported as having given evidence regarding what happened in Governor Murray’s time. The transcript reveals that under cross-examination Heni Rei testified as to the meaning of “Daugo” and as to a song composed by the Tatana people “about a canoe and Daugo island.” He is reported to have said “our people always lived there.” (The emphasis is mine.) His father “was working on the island” for Robert Hunter. He is reported to have given evidence about a number of other matters including the other land owned by the Tatana people (some of his ancestors lived on the island and some at Tatana), the lack of water on the island, his having seen the “Fijian man and the monkey”, the coconut plantation being worked at that time and his ancestors having lived there before that, and his having known Governor Murray. Heni Rei’s source of knowledge to the earlier events was his father. His father told him, according to the transcript at the 1965 hearing, that “Captain Moresby went to Daugo and from there he visited the harbour and then he went to Tatana village where he was given water by the Tatana village.”

At the 1977 hearing Heni Rei’s evidence was of considerable importance. For the sake of convenience I summarize it below in narrative form. The summary has been extracted by me from the notes of evidence made by Mr. Thair, who appeared for the government at the 1977 hearing, and by Madaha Resena. During the course of the hearing before me, I caused a translation to be made of Madaha Resena’s notes which had been made by him in Motu. (The emphasis in the summary is mine.)

The summary of Heni Rei’s evidence at the 1977 hearing is as follows:

“I am from Tatana; I am of the Tubumaga clan. I am eighty years old. I was born at Tatana Island. I lived on Daugo Island when I was about twelve to fifteen years of age. My father and my grandfather showed me everything ... I was grown up when I left Daugo. There were many people living there when I lived there. There was one village — four clans, but not when I was a small boy. I lived with both my grandfather and my father. I went with my father and mother. My grandfather was there already.

My father and mother made gardens at Daugo. They also made gardens on the mainland. My father was born at Tatana. I don’t know where my grandfather was born. My mother was born at Tatana.

Nagwa was the name of the village on the island. When I left, there were still some people living there — about twenty. They all came to Tatana. The Government asked them to leave and go to Tatana Island because the government was trying to put prisoners on Daugo Island — also as place for sick people.

My grandfather had some coconut trees on Daugo — when I first went there, there were coconuts on Daugo — planted by Tatana people.

When we were staying on Daugo, we fished; only the Tatana people.

People from other villages did not come to make gardens on Daugo as well.

If other villagers fishing or making gardens, we would fight them.

During the rainy season we got our fresh water for drinking and cooking from a hole on the island. When it was dry we went to the mainland to get water.

We made gardens on all the area.

Daugo is pronounced ‘DAU-KO’. My grandfather also told me that Bobby Gaigo’s grandfather (Gaigo Rahe) was living on Daugo making gardens and fishing and building houses.

I don’t know where my ancestors came from. Tatana is as far back as I can go.

We went from Tatana to Daugo to make gardens and came back to the mainland. Even in the dry they lived there but came back to the mainland for water.

There was only one village on Daugo.

I have children; oldest born before the War.

My father and grandfather left Tatana for Daugo because my father sometimes went fishing and to make gardens on Daugo; it was our land. My father had two houses, one at Tatana and one at Daugo.”

When Heni Rei’s evidence at the 1977 hearing (which is summarized above) is viewed in the light of all the other evidence given in support of the Tatana claims, it may be seen that his evidence was more important than any other of the Tatana evidence. He is an old man, now aged eighty-two. He is the only witness who claims to have lived on Fisherman’s Island. His knowledge of the important events and activities before he was born derives from his father and grandfather directly. It was first-hand hearsay evidence he gave, as opposed to second and third-hand evidence, as was the case with some of the other witnesses. By virtue of this fact, his oral evidence was more likely to be trustworthy than oral evidence in conflict with it and given by witnesses to whom it had been passed down second and third-hand by their ancestors. More importantly, his knowledge of the important activities on Fisherman’s Island at or shortly after the turn of the century was his own and it was the subject of direct evidence of his own observations. Those were activities which it could be expected that an eighty year old man possessed of his faculties could remember. They were activities which, though later in time than the actual period under consideration, were clearly relevant to the questions of the “occupation”, “cultivation” and “use” of the island, and from which strong inferences might be drawn as to the matter of “occupation, cultivation and use” in the period immediately preceding the turn of the century, thereby providing, if his evidence was to be believed and accepted, the answers to the questions in issue before the Land Titles Commission.

THE GROUND: CONTRARY TO NATURAL JUSTICE — EVIDENCE OF HENI REI NOT SUBSCRIBED

One of the main grievances of both Bobby Gaigo and Madaha Resena was that the hearing of the Land Titles Commission had been conducted in a manner contrary to natural justice (see s. 38(2)(b) of the Land Titles Commission Act 1962). Bobby Gaigo so argued in relation to the first of his grounds of appeal; Madaha Resena so argued in relation to the first, fourth, fifth and sixth grounds of his appeal. The complaint most emphasised related to the omission on the part of the Acting Commissioner to record the evidence of Heni Rei in the transcript of the Commission. It is now clearly established before me that Heni Rei did give evidence at the hearing before the Acting Commissioner and that a transcript of his evidence, though taken, was not subscribed by the Commission. I am surprised that it was not conceded by counsel for the government for a long time that this evidence was given and taken; indeed, I find it difficult to understand why the government did not see fit to concede from the outset that Heni Rei’s evidence, though given and taken, had not been subscribed. In the Acting Commissioner’s affidavit, which I found it necessary to require him to furnish to me pursuant to s. 38A(3) of the Land Titles (Jurisdiction and Appeals) Act, the Acting Commissioner stated in an annexure thereto:

“I cannot recall (Heni Rei) specifically though the name is familiar, because he was a witness in the 1965 hearing. The State Solicitor’s counsel at the 1977 hearing has advised me that he has a record of him giving evidence, so whatever he said would have been recorded, but I am unable to locate his testimony. I can offer no reason why it is not included in the transcript, but expect it was misplaced in the compilation from the original typing and omitted from the final record. I have searched the office but failed to find any of the original typed sheets ... I cannot recall any of the evidence given by Heni Rei ... I considered the evidence of the Tatana witnesses and all the other witnesses, so I would have considered and taken into account the evidence of Heni Rei. I would have heard what he said in 1977, I would have read (what) was recorded both in 1965 and in 1977, and I would have considered and taken it into account in coming to my decision. The omission of this part of the record is a regrettable error, but would have taken place during the final typing of the transcript after my decision had been reached.”

Notwithstanding the use by the Acting Commissioner of the words “recorded”, “testimony”, “original typing”, “original typed sheets” and “final typing” which, in part, may have been prompted by the question asked of the Acting Commissioner which was whether he did “make or have made any written record of the evidence given before you by Heni Rei of Tatana Village”, it is apparent that a transcript of his evidence, though taken, was not subscribed. “Subscribe” means, in this context, record in writing under one’s signature or bring into existence — written and verified transcript (see Attorney General v. Bradlaugh[ccl]²⁵).

Section 28A of the Land Titles (Jurisdiction and Appeals) Act provides:

N2>“20A(1)         A transcript of the evidence given in a matter before the Commission shall be taken and subscribed by the Commission.”

At common law the requirement that a court or judicial tribunal should record the evidence of the witnesses has been referred to in a number of cases. In Carlson v. King[ccli]²⁶ Jordan C.J. in delivering the judgment of the Full Court of the Supreme Court of New South Wales said:

“It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.”

The judgment otherwise makes it clear that this statement is directed to the general judicial duty of a judicial officer from whose decision an appeal lies, whether or not a provision such as s. 28A exists.

That there is a link between the requirement, whether statutory or at common law, to record in the transcript (or “take and subscribe”) the evidence of all witnesses and the rules of natural justice is made clear by Asprey J.A. in Pettitt v. Dunkley[cclii]²⁷ to which reference will again be made later in these reasons for judgment, when his Honour said:

“Just as it is impossible to confine the grounds upon which an appellate court will order a new trial within rigid categories (see McCann v. Parsons[ccliii]²⁸), so the ambit of the difficulties confronting parties to an appeal will place the appellate court to which they look for the exercise of their statutory rights in many cases in a position which may prevent the court from giving effect to the paramount consideration of obviating a miscarriage of justice.”

It may well be that the failure or omission on the part of the Acting Commissioner to “subscribe” a transcript of the evidence of Heni Rei might constitute an error in law and might have, if the appellants had alleged as a ground of appeal “that the Commission was wrong in law in that it failed or omitted to have taken and subscribed a transcript of the evidence of Heni Rei”, led to the appellants, Bobby Gaigo and Madaha Resena, succeeding in their appeals on that ground. However, an appeal may only be brought to this court on one or more of the grounds set out in s. 38(2) of the Land Titles Commission Act 1962, and no ground of appeal alleging such an error in law or couched in the terms quoted above or to like effect has been included in any of the notices of appeal. Furthermore, an appeal on such a ground might only succeed if the appellant relying upon such a ground could show that the failure or omission would have affected the result (see Hocking v. Bell[ccliv]²⁹ per Dixon J. (as he then was) and Balenzuela v. De Gail[cclv]³⁰).

It is not therefore open to me to decide that the failure or omission to subscribe a transcript of the evidence of Heni Rei in itself constitutes an error of law such as to vitiate the decision of the Land Titles Commission. Notwithstanding that conclusion, it is open to me to decide that the failure or omission to subscribe a transcript of the evidence of Heni Rei constitutes non-compliance with the rules of natural justice in the “manner” of the “conduct” of “the hearing of the Land Titles Commission”. Such a ground of appeal couched in terms to such effect has, as I have already stated, been included in the notices of appeal of both Bobby Gaigo and Madaha Resena.

Before I embark upon a discussion of what natural justice means in the context of this case, I should decide whether the failure or omission to subscribe a transcript of the evidence of one witness before a judicial tribunal forms part of the manner of conduct of a hearing. In other words, when the legislature implies (as it does in s. 38 of the Land Titles Commission Act 1962) that a hearing of the Land Titles Commission shall be conducted in a manner which is not contrary to natural justice, does “hearing” mean and include all the proper consequences of the hearing at which evidence is taken and submissions are made, such as the subscribing of the transcript of the evidence and the preparation of and the recording of the reason for decision?

My conclusion on this aspect of this case is reached without difficulty. A “hearing” within the meaning of these words does not appear to me to terminate till the whole matter is disposed of. As Lord Selborne L.C. said in Green v. Lord Penzance[cclvi]³¹:

“[Hearing] includes not only the necessary antecedents, but also the necessary or proper consequences.”

That the taking and subscribing of the evidence given in a matter before the Land Titles Commission is inter alia a necessary and proper consequence of a hearing is apparent from a perusal of s. 28A(1) of the Land Titles (Jurisdiction and Appeals) Act quoted supra.

As was approved in the recent High Court of Australia decision of R. v. Watson; Ex parte Armstrong[cclvii]³² any discussion of what is meant by natural justice in the context of the conduct of a judicial hearing may conveniently be commenced by citing the oft-repeated saying of Lord Hewart C.J. in R. v. Sussex Justices; Ex parte McCarthy[cclviii]³³:

“... it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Lord Denning M.R. stood by that principle in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon[cclix]³⁴ and spoke of the need for justice to be “rooted in confidence”. The Master of the Rolls in his judgment said:

“... in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. ... Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough.... There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

In R. v. Watson; Ex parte Armstrong[cclx]³⁵ the High Court of Australia said:

“It is of fundamental importance that the public should have confidence in the administration of justice.”

In s. 59(2) of the Constitution of the Independent State of Papua New Guinea the minimum requirement of natural justice is stated to be “the duty to act fairly and, in principle, to be seen to act fairly.” The principles of natural justice are, subject to the Constitution and to any statute, the rules of the underlying law known by that name “developed for control of judicial and administrative proceedings.” (See s. 59(1).)

I conclude that right-minded people might be thinking, as the appellants in this case surely did: “The Acting Commissioner was biased” by reason of the failure or omission on his part to subscribe a transcript of the evidence of Heni Rei, an important witness yet a witness none of whose evidence he could later recall. It has been firmly established that a suspicion may reasonably be engendered in the minds of those who came before the Land Titles Commission or in the minds of the public that the Acting Commissioner may not have brought to the resolution of the questions arising before the Commission (i.e. regarding the “occupation, cultivation and use” of Fisherman’s Island and regarding the honesty and reliability of the Tatana witnesses) a fair and unprejudiced mind. The public may not, therefore, have confidence in the administration of justice in this case. Fair-minded people may reasonably apprehend or suspect that the Acting Commissioner has misjudged or pre-judged this case. It will be remembered that even the Acting Commissioner himself described his omission as “a regrettable error”. Accordingly confidence cannot be had in the Acting Commissioner’s decision. For these several reasons I hold that, on account of the failure or omission on the part of the Acting Commissioner to subscribe a transcript of the evidence of Heni Rei, an important witness, the hearing before the Land Titles Commission was conducted in a manner contrary to natural justice.

If reinforcement is necessary (and I think that it is not) the Acting Commissioner has acknowledged in his affidavit a number of things which reinforce the decision just announced which is, as I have said, based on the need for confidence in the administration of justice. I refer to his statements in the annexure to his affidavit as follows:

N2>a.       Re point 4(6) of Bobby Gaigo’s appeal.

“I cannot recall that (Bobby Gaigo) said or indicated that he wanted to cross-examine (Ata Ageva) but I feel sure that he would have. Had he been allowed I’m sure he would have even asked questions of the geckos on the ceiling.”

Before commenting on this answer I should say that I have some sympathy for the Acting Commissioner; he undoubtedly encountered many difficulties in presiding over a hearing such as this one; there were numerous claimants, witnesses and spectators to cope with; feelings may understandably have run high; the issues were certainly complex; the facilities at the Commissioner’s disposal were apparently not as good as they might have been; and controlling litigants who are not separately represented by counsel often presents special problems. Nevertheless, it is the duty (however difficult it may be) of every judicial officer to act judicially and to be seen to be acting fairly. Accordingly, patience is a judicial virtue; impatience, when shown or expressed, my lead to a mis-trial or be a ground of appeal.

The Acting Commissioner’s answers given in explanation of why he apparently refused to allow Bobby Gaigo to cross-examine Ata Ageva, a witness unfavourable to the Tatana claims, and, in particular, his reference to “the geckos on the ceiling” (together with a statement to the effect that Madaha Resena “never missed an opportunity to examine (and) cross-examine anybody and everybody available”) indicate a degree of impatience or exasperation on the Acting Commissioner’s part which leads one to doubt that he was acting judicially (or at least was being seen to be acting judicially) at the stages of the hearing under consideration. Until one has heard cross-examination it is unsafe to predict that nothing positive will emerge. A litigant may have more than one reason for cross-examining a witness and, subject to keeping it within the bounds of reason and limiting it to relevant material, a judicial officer should not assume that it will be a fruitless exercise. The Acting Commissioner here did not allow any cross-examination of Ata Ageva by Bobby Gaigo or any of the other claimants. It is to be noted that the Acting Commissioner had allowed counsel for the respondent to ask a number of questions by way of cross-examination.

No right to cross-examine witnesses is guaranteed to the claimants under the Land Titles Commission Act 1962. Furthermore, the Commissioner is not bound to observe strict legal procedure or apply technical rules of evidence (see s. 29(1)). Rule 15(8) of the Land Titles Commission Rules 1968 provides:

“After each witness has given evidence the Commissioner or Deputy Commissioner presiding may grant leave to a party with a conflicting interest to ask particular questions of that witness.”

This rule imparts a judicial discretion. Unwise as I think it generally is on account of notions of fairness, to refuse to permit a litigant to cross-examine any witness, it is open to the Commissioner to forbid it in the exercise of his discretion. For these reasons I do not allow Bobby Gaigo’s appeal upon the sole basis that the refusal to allow Bobby Gaigo to cross-examine Ata Ageva constituted a denial of natural justice. Nevertheless, the Acting Commissioner’s conduct in the circumstances as had just been explained does affect confidence in the administration of justice and it may lead an appellate court to arrive more readily at a conclusion that there was a denial of natural justice.

N2>b.       Re point 5(8) of Bobby Gaigo’s appeal and point 1(7) of Madaha Resena’s appeal.

“See answer to point 5(7)” of Bobby Gaigo’s appeal. (This is no answer at all to the questions asked of the Acting Commissioner which were to the effect: ‘Did you reject the evidence of Heni Rei and, if so, for what reasons?’ The answer to point 5(7) of Bobby Gaigo’s appeal is the last portion of the answer quoted in full earlier in this judgment; it contains no indication as to whether or not the Acting Commissioner rejected the evidence of Heni Rei nor any reasons.)

The omission on the part of the Acting Commissioner to answer these questions and to provide this court with some clue as to whether Heni Rei’s evidence was rejected and, if so, as to the reasons for such rejection highlights the point made earlier in this judgment regarding the need for a judicial officer to include in his reasons for decision findings as to the credibility and reliability of the witnesses and an indication of the weight to be attached to the whole or parts of their testimony. The omission also illustrates how a failure to include in reasons for decision findings of such a kind may give rise to a lack of confidence in the administration of justice and consequently to a possible finding that there has been a denial of natural justice. An omission of this kind may lead an appellate court to be more willing to arrive at a conclusion derived from other circumstances that there has been a denial of natural justice.

CONTRARY TO NATURAL JUSTICE  — MISDIRECTION AS TO STANDARD OF PROOF

Although such a ground of appeal has not been relied upon specifically by any of the appellants, the Acting Commissioner clearly misdirected himself as to the standard of proof to be attained by the appellants before the Land Titles Commission. He approached his decision-making task upon the assumption that the appellants, in order to succeed, had to prove their case beyond reasonable doubt, as is the situation in criminal cases, and not on the balance of probabilities, as is the situation in cases before the Land Titles Commission and in other civil cases. At a hearing before the Land Titles Commission, which is a civil hearing, the less onerous burden of proof applies (see the able judgment of Ritchie J. in Hanes v. Wawanesa Mutual Insurance Co.[cclxi]³⁶). As the High Court of Australia said in Rejfek v. McElroy[cclxii]³⁷:

“The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind had only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.”

As Lord Denning said in the House of Lords decision of Blyth v. Blyth[cclxiii]³⁸ when dealing with the standard of proof in a divorce case:

“In short it [standard of proof] comes to this: so far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject matter.”

That the Acting Commissioner misdirected himself on the vital question of standard of proof and was in breach of something more than a mere “technical rule of evidence” (see s. 29 of the Land Titles Commission Act 1962) appears from an analysis of his reasons for decision and the actual words used therein. I am left in no doubt that it was a misdirection. It will be convenient here to scrutinize the reasons for decision by attempting to make a condensed summary of those reasons omitting therefrom explanatory material, the details of the evidence, and, of course, the questions of law that were considered. Such a condensed summary and analysis may be stated as follows:

The Acting Commissioner outlined the history of the claims to Fisherman’s Island and made reference to the previous Supreme Court hearings in relation to the land. He referred to the appearances of the claimants and the nature, in broad terms, of the proceedings.

“The evidence and witnesses of the claimants were presented first and I shall now deal with this aspect of the case.”

The Acting Commissioner then proceeded to deal with the Gorohu evidence and made reference to a family who “lived there”, to a man who “was buried there, but this was a long time before the arrival of the British New Guinea Administration”, and to them having “left the island”. The Acting Commissioner referred to the Gorohu witness “who said that his people had never lived there and only went there to fish”.

The Acting Commissioner also considered the Roku evidence which was similar to the Gorohu evidence.

The Acting Commissioner then proceeded to deal with Porebada evidence and pointed out the lack of evidence that they “had ever lived there”.

The Acting Commissioner then made reference to the evidence that was tendered to counter the evidence of the Koitabuan claimants to ownership of the island on the ground that their claims “were based on an occupation some time well in the past which appears to have been abandoned”. Reference was made to the absence of “any evidence of any conflict between themselves and other people over the right to occupy or use the island.”

“On this evidence the Commission cannot entertain the claim by the Roku, Porebada or Gorohu people to exclusive use of the island and the right to exclude others.”

The Acting Commissioner then made reference to the right of the Koitabuan claimants “to use the island for camping and fishing purposes.”

Of the Motuan claims Tatana, Vabukori and Hanuabada, only the Tatana people state that they ever lived on the island. Indeed they claim to have lived there ...”

The Acting Commissioner then proceeded to deal with the Tatana evidence, and the other evidence that was inconsistent with it or in conflict with it. He referred to the evidence about the site of “their village called Nagwa.”

The Acting Commissioner then discussed the archaeological evidence and mentioned his inspection of the island.

The Acting Commissioner then dealt further with evidence that was opposed to the Tatana evidence and, in particular, referred to Sir William Macgregor’s minute to the Government Secretary dated 19th April, 1889.

“It was apparent that of all the claimants, the Tatana people were most knowledgeable of the island’s geography and other things but curiously enough knew nothing of their ancestors’ history before the establishment of Tatana village. In the face of numerous statements to the contrary from the other claimants and witnesses, they insisted that their ancestors had always been in residence at Tatana (sic).”

Reference was then made to the absence of any evidence “of conflict between themselves and other villages over the right to occupy and use the island and the surrounding area for fishing and other purposes.” The Acting Commissioner then made reference to the right of the Tatana people “to fish in these areas and camp on and gather natural produce of the island during these expeditions ...”

“But I find there is insufficient evidence to support their claim of exclusive use and the right to exclude others.”

With reference to the archaeological evidence and his own inspection of the island, the Acting Commissioner referred to the findings of Dr. Allen and Mrs. Mountain and to his own observations.

“I have been unable to find that the evidence mentioned in these reports and that which I saw on my inspection is conclusive enough to accept that the site taken as a village site by Dr. Alien and Mrs. Mountain was a Tatana village called Nagwa in existence in the time of Captain Moresby’s arrival and occupied at the time of the Proclamation in September, 1884. Nor can I find sufficient evidence to accept that the garden areas indicated by the coral formations were made exclusively by Tatana people. It is quite possible, as Mr. Thair suggests, that these areas could have been cleared by the Government employees or prisoners at the time the island was planted up or by subsequent work parties as mentioned in the British New Guinea Annual Reports or even by other people some time long ago in the past.”

The Acting Commissioner then proceeded to deal with the Vabukori claims and emphasised the absence of any evidence by those claimants to the effect that they ever permanently occupied or cultivated the island. Such use as was made of the island as a dwelling place was, according to the Acting Commissioner, after the relevant period.

“I have no cause to doubt that the Vabukori people at the time of the acquisition made the use of the island that they say. However, I find that (their stories do) not constitute evidence of possession.”

The Acting Commissioner then dealt with the Poreporena and Elavala claims and referred to the absence of any claim by them “to have ever cultivated the land or entered into permanent residence upon it.”

“On their evidence (Poreporena and Elavala) I cannot find any basis for a claim to possession; indeed it seems they exercised merely a right to use the island for fishing purposes.”

The Acting Commissioner then proceeded to deal with the arguments of Mr. McDermott, one of the counsel who had appeared before him, including two arguments which the Acting Commissioner appeared to appreciate the force of. The first one arose from a consideration of paragraph thirty-four of the British New Guinea Annual Report of 1888-1890 “where the administration took pains to point out that the land of which it had taken possession as waste and vacant may have to be purchased ...” The second argument related to the oral evidence which was “the only (oral) evidence” submitted.

“... but in the conflicts and counter-claims (I) could find little evidence upon which sufficient weight could be placed to arrive at a definite opinion confirming consistent use and occupation. After examining all the evidence presented at this hearing and recorded at the hearing of 1965, I can find nothing of sufficient weight to support any of the different claims to ownership of the island and think that it was used most likely by all of the villages in the general Port Moresby area as a place from which to launch fishing expeditions, and upon which to camp and gather wild produce.”

The Acting Commissioner then proceeded to examine the legal issues involved. (It is to be noted that the Acting Commissioner inferentially acknowledged that he had not resolved the conflicts in the evidence and had reached his decision on the basis that standard of proof had not been attained when he said, “If the administration was contesting the ownership of the island with only one claimant group, I could concede that such a use as (Mr. McDermott) described could constitute ownership (occupation).” The Acting Commissioner’s concession was quite obviously a reference to the claims of the Tatana people who, of the Motuan claimants, were the “only” ones to “state that they even lived on the island”, who “were most knowledgeable of the island’s geography and other things”, and who “insisted that their ancestors had always been in residence at (Nagwa).”) The Acting Commissioner then emphasised the conflicts between the claimants, and indicated his conclusion as to the “basic use” to which the island had been put.

“None of the claimants to my satisfaction have shown (a continuing physical presence ... to the exclusion of others) and therefore I find that at the time of acquisition the administration of Papua New Guinea was justified in considering Fisherman Island to be unoccupied.”

The Acting Commissioner then considered the question of “cultivation” in more detail and referred to the documentary evidence.

“From the evidence produced by the claimants at the hearing only one group claimed even to have made gardens on the island and all other groups denied that any cultivation had taken place. Physical examination of the island revealed where gardens could have been made but I found it impossible to determine whether these were made by the claimant groups or by Government employees or prisoners during the period when it was used as a State plantation.”

The Acting Commissioner then announced his final conclusion regarding the question of “cultivation” and then considered the question of “use”. The Acting Commissioner then, without making any assessment of the credibility or reliability of the witnesses or attempting to resolve the conflicts in the evidence either as between the witnesses or as between the proffered oral evidence and the documentary evidence, purported to make findings that at the relevant time the island was “unoccupied, uncultivated and unused and as such was waste and vacant land.” He once again referred to the law and drew attention to some of the documentary evidence in support of his final conclusion. The final decision was then announced.

If the Acting Commissioner had not misdirected himself as to the standard of proof, then it was open to him on one view of the evidence to have found for the appellants, although it was not inevitable that he should have so found. In my view there was ample evidence, if he accepted it, on which the Acting Commissioner could properly have found that at the relevant time Fisherman’s Island was “occupied, cultivated and used” and, therefore, not “waste and vacant” land. I refer particularly to the evidence of the Tatana witnesses and the archaeological evidence viewed in the light of the criticisms which could legitimately be made (and were made by Mr. McDermott) of the government’s documentary evidence.

If the Acting Commissioner had not misdirected himself as to the standard of proof, then it was open to him on another view of the evidence to have found for the respondent, although it was by no means inevitable that he should have so found. In my view there was ample evidence, if he accepted it, on which the Acting Commissioner could properly have found that at the relevant time Fisherman’s Island was “unoccupied, uncultivated and unused” and, therefore, “waste and vacant” land. I refer to the government’s documentary evidence; however, such a finding could only stand if the evidence of the Tatana witnesses and of some of the other claimants’ witnesses was rejected and if the archaeological evidence could be explained away.

The regrettable fact is that the Acting Commissioner failed to state that he disbelieved or declined to accept the evidence of the Tatana witnesses, he failed to make findings of fact on crucial issues, he failed to assess adequately the weight of the documentary evidence (i.e. the archaeological evidence, the government documents, and the other written evidence), and he failed to do more than state that the appellant’s evidence was “insufficient””. In so far as the Acting Commissioner used the word “insufficient” and derivations thereof throughout his reasons for decision, he clearly meant that the appellants had, with their evidence, failed to attain the standard of proof that he thought was required. It is to be inferred from what he said that he meant, by “insufficiency of evidence”, that the evidence before him on the particular fact in issue, even if believed, would not justify him as a rational and independent judicial tribunal in finding the fact in issue in favour of the party having the burden of proof. The standard is to be gathered from the context. The fact that the Acting Commissioner used the words “(not) conclusive enough” when speaking of the archaeological evidence and what he saw on his inspection of the island leads me to conclude that he thought that, for the claimants, or any of them, to succeed on an issue, they had to prove it absolutely or with absolute certainty to the extent of precluding any other finding to the contrary. I hold that the word “conclusive” is not the same word as, and has not the same meaning as, “sufficient” (see Re Duce and Boots Cash Chemists (Southern) Ltd.’s Contract[cclxiv]³⁹ per Bennett J.). The Acting Commissioner’s reference to it being “quite possible” that the garden areas were made by government employees or prisoners at the time the island was planted up or by subsequent work parties or even by other people some time long ago in the past rather implies that the Acting Commissioner was not directing his mind to the balance or preponderance of probabilities but instead was directing his mind to the need, as he saw it, for the claimants, if they hoped to succeed on an issue, to exclude all possibilities or hypotheses consistent with the government’s position in the same way as in a criminal case, especially one involving circumstantial evidence, where the prosecution is required, in satisfying the court beyond reasonable doubt, to exclude all hypotheses consistent with innocence. Had the Acting Commissioner used the words “It is probable that” or “It is likely that”, instead of “It is quite possible that”, then that part of his reasons would not be open to criticism.

In relation to the evidence given by the Vabukori people the Acting Commissioner used the words “I have no cause to doubt ...” which also suggests that his thinking was directed along the lines of proof beyond reasonable doubt rather than proof on the balance of probabilities. Regarding the evidence of “use” and “occupation” the Acting Commissioner used the words “little evidence upon which sufficient weight could be placed to arrive at a definite opinion,” which likewise suggests a pre-occupation with the criminal standard. A similar comment can be made regarding the Acting Commissioner’s use of the words “(shown) to my satisfaction.” The word “satisfaction” is one frequently used by judges when summing up to juries; it should preferably be used only in the context of the prosecution proving some fact or essential ingredient of a criminal charge “beyond reasonable doubt”.

When the Acting Commissioner stated that he “found it impossible to determine” whether the gardens on the island were made by the claimant groups or by government employees or prisoners during the period when it was used as a state plantation, he was, in the context of his reasons read as a whole, suggesting that for the claimants or any of them to succeed on the issue of “cultivation” (in respect of which the making of gardens was a crucial aspect) he had to be able to determine with absolute certainty or beyond a shadow of doubt that they (the claimants) made them.

The Acting Commissioner’s language throughout his reasons for decision, (and it will have been noted that I have emphasised the relevant parts) is susceptible of no other meaning than that he thought that the case had to be proved with the same strictness as a crime has to be proved in a criminal court. To have used such language amounts to a misdirection.

Because no ground of appeal specifically directed to the Acting Commissioner’s misdirection of himself was included in the amended notices of appeal and because no argument was addressed to me on this aspect, I do not feel able to allow this appeal on that ground. However, I feel constrained to make reference to it because the fact that a misdirection occurred is relevant to the issue of whether or not the hearing of the Commission (or was seen to be) conducted in a manner contrary to natural justice.

THE GROUNDS OF DECISION — AGAINST THE WEIGHT OF THE EVIDENCE AND WRONG IN LAW

The failure by the Acting Commissioner to conduct the hearing in compliance with the rules of natural justice and, in particular, the omission to subscribe a transcript of the evidence of Heni Rei and, furthermore, the failure to make findings and give adequate reasons for his decision and, furthermore, the misdirection as the standard of proof makes it impossible for this as an appellate court to give effect to the appellants’ rights of appeal based upon the arguments that the decision was against the weight of the evidence and that the Commissioner erred in law, and so carry out all of its own appellate functions. I have already stressed the prime importance to a party to an appeal, whether he be appellant or respondent, of the findings and reasons at first instance.

In my opinion, the Acting Commissioner in the present case, whatever his motives may have been, fell into error. The purpose of my earlier references to the evidence before the Land Titles Commission was to show that, upon facts fundamental to the result of the hearing, there were vital issues to be resolved. This was a case in which issues of credibility and reliability had to be resolved and there was a definite conflict of evidence on matters of “occupation”, “cultivation” and “use”, matters which related to the question whether the land was “waste and vacant” and therefore whether the land was “owned”.

It is clear that the Acting Commissioner considered that the evidence of the Tatana witnesses was “insufficient”. However, it is impossible to discover whether the Acting Commissioner accepted or rejected the Tatana witnesses (and Heni Rei in particular) on the primary matters of fact. This was a case in which, depending upon what view was taken of the Tatana evidence, it was clearly open to conclude that the land was “occupied”, “cultivated” and “used” at the relevant date and therefore not “waste and vacant”. According to the resolution of the conflicting evidence and the issues of credibility and reliability of witnesses, findings either in favour of or against the appellants may have been made, but, in the absence of any findings of fact on these issues, I am unable to understand the basis upon which a decision adverse to the appellants was reached.

If the appellants’ version of the facts was accurate, it is difficult to see how a decision in their favour could possibly be avoided, if the correct legal principles were applied to the case. If the appellants’ version of the facts was rejected, understandably a decision favourable to the respondent might have been reached.

If the Acting Commissioner erred in law in respect of the decision in favour of the respondent or if the decision was against the weight of the evidence, the appellants are entitled to have this court intervene. Because there remains the degree of speculation, to which I have referred concerning this matter, it is not possible to tell whether the decision itself was (or was not) based on some error of law or was (or was not) against the weight of the evidence. Notwithstanding the Acting Commissioner’s ten pages of “reasons for decision”, there are absent the means one would have expected to be present which would have enabled a determination to be made whether or not the decision was derived from some error of law and whether or not the decision was against the weight of evidence.

A difficulty arises in a case, such as the present, where there are mixed questions of fact and law is that any or particular questions of law understandably are not raised, and perhaps cannot by reasonable foresight be perceived, unless and until the facts are found in a particular way. It is possible that certain questions of law may only arise if a number of facts are found in a way which is quite unexpected. If the usual and proper course is adopted in such a case, the basis of the decision will appear, so that, if there is error in law or if the decision is against the weight of the evidence, that will appear directly or by a process of drawing inferences. In this way litigants’ rights to have their case determined in accordance with law, and to appeal if it is not, are preserved.

It is to be regretted that the usual and proper course was not adopted by the Acting Commissioner in this case, and in respect of the important rights of appeal referred to in s. 38 of the Land Titles Commission Act 1962, those rights have not been preserved to the parties.

Warren v. Coombes[cclxv]⁴⁰ decided inter alia that in general an appellate court is in as good a position as the trial judge or judicial officer at first instance to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge or judicial officer at first instance. However, it is not possible for me as an appellate court to apply that general principle in the present case because not only were the facts disputed but also they were not established by the findings of the Acting Commissioner. I am, therefore, left with no alternative but to interfere with the decision of the Land Titles Commission.

Having found as I have done that there are grounds to interfere, I think this is a case where the decision cannot justly be allowed to stand and where a re-hearing should be ordered.

THE OTHER GRIEVANCES

A number of other grievances of both Bobby Gaigo and Madaha Resena were canvassed before me. They are referred to in the notices of appeal. I can see no substance in them. On account of the enactment which provides that the Land Titles Commission is not bound to apply technical rules of evidence (s. 29(1) of the Land Titles Commission Act 1962), I cannot see how the refusal to receive in evidence the documents sought to be tendered by Madaha Resena in support of his claim would vitiate the decision of the Commission. On account of the fact that the duty of the Commissioner regarding the taking and subscribing of a transcript is limited to a transcript of “the evidence” (s. 28A(1)) and because “evidence” in the context of s. 28A(1) means evidence in a non-legal sense as earlier defined by me and does not have the extended meaning that “evidence” has for the purposes of s. 38 (2) (aa) of the Land Titles Commission Act 1962 (see s. 38(2A)), I cannot see how the failure on the part of the Acting Commissioner to take and subscribe the details of the inspection that took place on 2nd September, 1977, would vitiate the decision of the Commissioner. Desirable as it would ordinarily be, there is no legal obligation, statutory or otherwise, on the Land Titles Commission to ensure that all claimants are present at an inspection. I am unaware of any requirement that the Land Titles Commission should prepare an inspection report which is to be brought to the hearing of the Commission and on which all claimants are to have the opportunity to comment.

WHETHER A RE-HEARING OR A SUBSTITUTION IS PREFERABLE IN THE INTERESTS OF JUSTICE

During the hearing of these appeals submissions were made to me by or on behalf of the three appellants and by Mr. Thair on behalf of the government to the effect that, should I decide to allow one or more of the appeals, I should exercise my powers under s. 38A(2)(c) of the Land Titles Commission (Jurisdiction and Appeals) Act 1968 and substitute for the decision of the Land Titles Commission any decision that might have been given by the Commission in preference to remitting the matter for re-hearing. It was implicit in such submissions that it would be, at least as far as the parties represented on those appeals were concerned, more preferable that this court should make a decision that the Land Titles Commission might have made than for me to subject the parties, and possibly other claimants, to yet a third Land Titles Commission hearing. I can certainly understand why submissions to this effect were made and I can appreciate that it might cause hardship and inconvenience (and possibly even prejudice) to some who will be involved in yet a third hearing before the Land Titles Commission. Notwithstanding those submissions and in the light of my conclusions in relation to the grounds of appeal, I am satisfied that it would not be proper for me to substitute my own decision; the justice of the case requires that the case in whole be remitted for re-hearing by the Commission.

The factors that have exercised my mind are:

N2>1.       The hearing appealed from took a course clearly prejudicial to the appellants.

N2>2.       The absence in the reasons for decision of any primary findings of fact and the failure on the part of the Acting Commissioner to make findings as to the credibility and reliability of witnesses.

N2>3.       My inability on the material before me to make such findings without launching into (and completing) something in the nature of a complete re-hearing involving the re-calling of all, or most of, the witnesses.

N2>4.       The fact that several of the original claimants are not parties to these appeals. Their interests might conceivably be affected by any decision I were to reach by way of substitution for the decision of the Land Titles Commission. For this court to proceed to substitute its own decision on these appeals would be for this court to be acting contrary to the interests of justice.

N2>5.       The Public Solicitor, who appeared as amicus curiae before the Land Titles Commission, and who might have some views to express and some submissions to put has not been heard.

N2>6.       The general principle enunciated by Dixon J. (as he then was) in Hocking v. Bell[cclxvi]⁴¹ to the effect that a new trial is granted ex debito justitiae in cases on the one hand in which the decision “is vitiated by some legal error, such as a material misdirection ... or was perverse” and, on the other hand, cases where on conflicting evidence a decision is made which is said to be against the weight of the evidence.

N1>7.       The interests of the parties may be better served by having the proceedings before the Land Titles Commission re-commence afresh rather than by them having to rely upon the evidence given and tactics adopted to date. The Acting Commissioner himself foreshadowed this when he made reference to the possibility of contest between only one claimant group and the government. He said:

“If the administration was contesting the ownership of the island with one only claimant group, I could concede that such a use as he described could constitute ownership (occupation).”

It will be noted, perhaps with some understandable dismay, that my decision to remit this case for re-hearing before the Land Titles Commission will mean that for the third time there will be a hearing before that tribunal on Fisherman’s Island (or Daugo Island) — the first having been in 1965, the second having been in 1977, and the third that would yet have to be held. It must be said that the course that these proceedings have taken over a period of some fourteen years reflects little credit upon the Land Titles Commission.

CONCLUSION

For these reasons, I think that each of the appeals should be allowed, the decision quashed, and the case remitted in whole for re-hearing before the Commission (such a hearing to be, of course, before a different Land Titles Commissioner).

I will adjourn consideration of the question of costs to a date to be fixed in order to allow the parties to take time to consider the implications of this judgment.

Appeal allowed. Decision quashed. Case remitted in whole for re-hearing before the Commission. Question of costs adjourned to a date to be fixed.

Solicitors for the appellant, Naime Daure (of Nenehi Dubu clan): Ikenna Nwokolo & Co.

Solicitors for the respondent: C. Maino-Aoae, State Solicitor.

R>

[ccxxvi]Infra p. 205.

[ccxxvii][ccxxviii][1977] P.N.G.L.R. 99, at p. 101.

[ccxxix][1977] P.N.G.L.R. 99, at p. 106.

[ccxxx][1977] P.N.G.L.R. 99.

[ccxxxi][1977] P.N.G.L.R. 99, at p. 101.

[ccxxxii][1977] P.N.G.L.R. 99, at p. 106.

[ccxxxiii][1957] VicRp 78; [1957] V.R. 553, at p. 558.

[ccxxxiv](1934) 151 L.T. 179.

[ccxxxv] [1971] 1 N.S.W.L.R. 376, at p. 382.

[ccxxxvi][1971] 1 N.S.W.L.R. 376.

[ccxxxvii][1977] 1 N.Z.L.R. 630.

[ccxxxviii](1976) 9 A.L.R. 350.

[ccxxxix][1969-1970] P. & N.G.L.R. 234.

[ccxl]The Times, 23rd November, 1978.

[ccxli][1978] P.N.G.L.R. 119.

[ccxlii]Unreported. (National Court judgment, N 192, 18th April, 1979.)

[ccxliii]Unreported. (National Court judgment, N 196, 1st June, 1979.)

[ccxliv] [1955] A.C. 370, at p. 373.

[ccxlv](1979) 53 A.L.J.R. 293.

[ccxlvi](1971) 125 C.L.R. 296.

[ccxlvii](1979) 53 A.L.J.R. 293.

[ccxlviii](1971) 125 C.L.R. 296.

[ccxlix](1979) 53 A.L.J.R. 293.

[ccl][1886] UKLawRpKQB 9; (1885) 14 Q.B.D. 667, at pp. 685-686.

[ccli] (1947) 64 W.N. (N.S.W.) 65, at p. 66.

[cclii] (1971) 1 N.S.W.L.R. 376, at p. 382.

[ccliii](1954) 93 C.L.R. 418.

[ccliv][1945] HCA 16; (1945) 71 C.L.R. 430, at p. 499.

[cclv][1959] HCA 1; (1959) 101 C.L.R. 226, at pp. 235-236, 243-244.

[cclvi] (1881) 6 A.C. 657, at p. 669.

[cclvii](1976) 136 C.L.R. 248.

[cclviii][1923] EWHC KB 1; (1924) 1 K.B. 256, at p. 259.

[cclix][1968] EWCA Civ 5; [1969] 1 Q.B. 577, at p. 599.

[cclx][1976] HCA 39; (1976) 136 C.L.R. 248, at p. 263.

[cclxi] (1963) 36 D.L.R. (2d) 718, at pp. 728-737.

[cclxii][1965] HCA 46; (1965) 112 C.L.R. 517, at pp. 521-522.

[cclxiii] [1966] A.C. 643, at p. 669.

[cclxiv] [1937] Ch. 642, at pp. 649-650.

[cclxv](1979) 53 A.L.J.R. 293.

[cclxvi][1945] HCA 16; (1945) 71 C.L.R. 430.