Dickson v Orere and Modigai [1976] PGSC 4; [1976] PNGLR 120 (9 April 1976)

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[1976] PNGLR 120 - Osineru Dickson v Luka Orere and Modigai Igeauri; Re Goilanai No 2

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

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

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

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

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

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

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

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

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

A fresh panel consisting of Mr. Chief Commissioner O’Shea and Commissioners Smith and Page undertook a further review on the 28th and 29th June, 1972. At this hearing the appellant Mr. Dickson again gave evidence and was cross-examined; his brother Sila Dickson also. Mr. Osineru Dickson made submissions. This second review again resulted in a confirmation of Mr. Kimmorley’s decision.

Mr. Dickson appealed therefrom to the Supreme Court on a number of grounds. The appeal came before Williams J. on l3th August, 1974. This hearing and all hearings to this point of time, except that before Kelly J., took place at Alotau. Various grounds of appeal were asserted, but of the available statutory grounds of appeal, only that under s. 38 (2) (d), namely, “that the decision of the Commission was against the weight of the evidence” was reasonably open to argument. His Honour, the judge of primary appeal, adopted the dicta of the pre-Independence Full Court in Director of District Administration v. Custodian of Expropriated Property (Re Wangaramut No. 2)[clvi]¹ as setting out the yardstick by which he was to measure the appeal. He stated that he appreciated the appellant was entitled to his review of the evidence, to his consideration of its probative value, his evaluation of inferences drawn from that evidence and his consideration of the relevant law so far as it affects the evidence. He considered that he was not entitled to substitute his own conclusions for those made in the decision under appeal; but could allow the appeal only if he came to the conclusion that the decision under appeal was wrong and could not be supported by the evidence and proper inferences therefrom. His Honour came to the conclusion that the reviewing tribunal’s decision was supported by the evidence, and that it had not been shown that the tribunal had erred in law or drawn inferences unsupported by the evidence and the appeal was dismissed.

The appellant appealed therefrom to the Supreme Court of the Independent State of Papua New Guinea. As is seen, this Court is constituted by three judges. A number of grounds of appeal were laid of which that numbered 2, “there was insufficient evidence which would have entitled the judge to confirm the finding of the Commission ...”, appeared to be the only one stating a proposition of law. In an interlocutory application leave was sought to rely on the other grounds stated in the Notice of Appeal, they being matters of fact. It was ruled that it was then not open for this Court to grant leave to argue appeal points grounded on matters of fact. At the substantive hearing before this Court, the only ground which could be relied on therefore, was that there was insufficient evidence to justify the finding of the judge that he should confirm the Land Titles Commission decision.

Both Mr. Dickson and the respondent Luka Orere appeared in person. Mr. Dickson addressed the Court for some hours. He has put to this Court the submissions which he put to the Commission. He agreed he was putting nothing new. These submissions took the form of recounting some of the evidence which he himself and others had given and of criticizing the findings of the Commission. The traditional history of the Dickson family has been canvassed; comment has been urged as to the Commissioner’s findings as to native custom. Argument has been based on original discovery of the land by a remote ancestor of the Hiai clan. (Incidentally no investigation seems to have been conducted as to whether other clans in the Milne Bay area claimed descent from this identical ancestress). As the court understands Mr. Dickson’s submissions, he agrees that there has been occupancy of the subject land by members of the Garuboi clan for years, certainly from the 1930s; but he asserts that this was disputed by the rightful owners, his lineage, and that the Garuboi were told to go by his senior uncle Dao Dao. They refused to go he says; and they continued living there ever since. He submits that the pattern of plantings on nearby land by his family indicates its ownership of the subject land. He states that the Garuboi always buried their dead in a cemetery west of Alotau never on the subject land (though he did not cross-examine the respondent Luka Orere when Luka gave evidence to the contrary). He submits very strongly that this establishes that the Garuboi did not enjoy ownership of the land. On the other hand, he does not assert that his own people were ever buried on the subject land — they were buried at Waga Waga. As he had done before, he challenged Mr. Kimmorley’s attempt to reconstruct the passage of the generations to elicit the approximate date of discovery by Hiwoirere. The significance of customary rules has been overlooked he says; and a wrong (an Australian) interpretation of them adopted.

It appears that in this Court Mr. Dickson has done what Williams J. stated that he sought to do in the appeal before him, namely, to insist that the claims made and evidence given on behalf of his group should have been accepted in preference to the case advanced by the rival claimants.

This Court agrees with Williams J. that Mr. Kimmorley appears to have conducted his hearing in a painstaking way and to have taken great trouble to collate genealogies and comments as to native custom. Like Williams J., this Court considers that Mr. Kimmorley was entitled to take on the evidence the view which he did take on each matter and in particular as to the evidence of burial custom. (He might well have taken a stronger line against the appellant’s claim in this regard by positively accepting the evidence of Luka that his mother and members of his family had been buried in the subject land).

The plain fact is that the Commissioner having heard the evidence and submissions of the parties decided to accept that of the Bebesige lineage of the Garuboi against that of the Dickson family. He may well have been impressed by the evidence to the effect that the Dicksons did not dispute the sale of the Alotau-site land by Nikole to the Administration even though it was said that Dick, their father, had been shown all the subject land and also that of the Alotau site by his senior relatives, and told by them that it was all Dick’s land. The Commission’s decision was as Williams J. said, based upon evidence of recent effective occupation of the subject land. This occupation went back in his view possibly as far as the 1880s. It has been laid down that where traditional accounts of land ownership vary, they must be tested against the evidence of recent and present occupation. Adjeibi Kojo II v. Bonsie[clvii]², followed by the present Chief Justice in Uriva & Ors. v. Maika & Ors. (Re Veakabu-Vanapa)[clviii]³. The Commissioner and the review tribunal appear to have done just this, and they came to a conclusion against the claims of the Dickson family.

The Court wishes to repeat that the task of this Court is not to seek to substitute its own opinions for that of the Commission or of Williams J. Under the law as it is, this Court may merely examine the evidence hitherto given. It must ask itself the question, was there sufficient evidence to support the Commission’s findings. If it answers that question “yes” then the appeal must fail.

The Court is of the opinion that there was evidence which the Commission accepted as true, which justified the Commission coming to the conclusion to which it did. The Court would answer the question abovementioned “yes”. The Court is not satisfied, therefore, that the Commission’s decision was wrong.

The Court is satisfied that Williams J. has made no error in confirming the Commission’s decision.

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[clvi][1969-70] P.N.G.L.R. 410.

[clvii][1957] W.L.R. 1223.

[clviii][1969-70] P.N.G.L.R. 234.

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Supreme Court of Papua New Guinea

Dickson v Orere and Modigai [1976] PGSC 4; [1976] PNGLR 120 (9 April 1976)

Papua New Guinea Law Reports - 1976