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Bingagl and Kambu, Re [1976] PGNC 13; [1976] PNGLR 34 (13 January 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 34 - Re Bingagl, Kambu (2), Kambu (1), Siure, Binagl Extended, Kambu Below, Kambu on Top and Oka Land�

[1976] PNGLR 34

N42

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WENA KAIGO

V

SIWI KURONDO AND OTHERS

IN RE BINGAGL, KAMBU (2), KAMBU (1), SIRUE, BINAGL EXTENDED, KAMBU BELOW, KAMBU ON TOP, AND OKA LAND

Kundiawa

Saldanha J

4-6 August 1975

13 January 1976

REAL PROPERTY - Ownership of native land - Customary law - Validity - Whether custom of acquiring land by conquest repugnant to the general principles of humanity - Native Customs (Recognition) Act, s. 6(1)(a)[xxiii]¹- Laws Repeal and Adopting Act 1921-1939, s. 10[xxiv]²�- Land Titles Commission Ordinance 1962-1971, s. 42(1)(b)[xxv]³.

For the purposes of establishing the validity or otherwise of native custom regarding the ownership of land, and in particular recognizing acquisition of land by conquest and effective occupation, the provisions of s. 6(1)(a) of the Native Customs (Recognition) Ordinance 1963, s. 10 of the Laws Repeal and Adopting Ordinance 1921-1939 and s. 42(1)(b) of the Land Titles Commission Ordinance 1962-1971 are to be interpreted in such a way that to recognize as owners of native land persons who had acquired that land by conquest after Government control had been established would be repugnant to the general principles of humanity, but to recognize as owners of land those who had acquired it by conquest and who were in effective occupation of the land at the time when Government control was established is not repugnant to the general principles of humanity.

Per Curiam

Before the advent of the Administration native customary law had reigned supreme, and it was not only expedient but also right and proper that when it imposed its own control the Administration should have recognized rights of ownership acquired by native custom even if native custom meant brute force.

Appeals From Land Titles Commission

These were eight appeals from a decision of Mr. R. W. Cruickshank, Chief Commissioner of the Land Titles Commission, who had reviewed decisions made by Commissioners McKenzie and MacIlwain upon applications regarding ownership of land, four heard by Commissioner McKenzie and four by Commissioner MacIlwain. All eight applications concerned disputes between sub-clans of the Siku Group on the one side and sub-clans of the Gena Group on the other side, and, by consent of the parties the eight matters were consolidated and reviewed together by the Chief Commissioner.

Counsel

J Hartigan for the appellants

AR Castan for the respondents

Cur. adv. vult.

13 January 1976

SALDANHA J:� In order to enable the merits of the appeals to be appreciated it is necessary to set out � and I shall do so briefly � the history of the disputes between the Siku and Gena Groups. The Siku and the Gena are traditional enemies. They occupy the land in the vicinity of Kerowagi Station and Airstrip. Before Government control was established in the area occupied by these two groups � and this would appear to have been done about 1938 � the ownership of native land was determined by customary law; the land belonged to the group which acquired it by conquest and was strong enough to retain it. As the two groups live next to each other the boundaries between their respective lands changed with the fortunes of war between them. Over the years either because they were more numerous than the Siku or because they were able to form more powerful alliances with neighbouring groups the Gena forced the Siku steadily westward, and, as will appear hereafter, at the time when Government control was established the boundary between the lands of the two groups was the Koro River, the Siku living to the west and the Gena to the east of the Koro River.

This boundary would appear to have been accepted by the two groups until sometime in 1951 when Patrol Officer B. R. Heagney defined a boundary to the east of the Koro River. Heagney did not himself mark the boundary, another Patrol Officer called A. M. Keogh did so in 1952, following the descriptions written by Heagney in a village book belonging to the Siku.

The Gena did not accept the new boundary and five Gena went to Goroka to complain to Mr. Downs, the District Commissioner who gave instructions to the Assistant District Commissioner at Kundiawa that the original boundaries were to be restored. But for some reason this was never done with the result that since 1952 there have been murders, burning of houses, destruction of crops and other forms of violence short of open warfare between the two groups.

In 1960 a dispute between them came up before Mr. M. B. Orken who was Native Land Commissioner. After an exhaustive inquiry he defined and marked a boundary which conformed roughly to the boundary marked by Keogh. The Gena Group being aggrieved applied to the Supreme Court, as it then was, for an order nisi to be directed to Commissioner Orken to show cause why a writ of certiorari should not issue compelling him to bring up the proceedings before the Supreme Court with a view to having them quashed. Minogue C.J., who heard the application refused to grant an order nisi. In order to appreciate his decision it is necessary to refer to the relevant legislation.

The Native Land Registration Ordinance was enacted in 1952. It set up a Native Land Commission consisting of a Chief Commissioner and such other Commissioners as the Administrator considered necessary. It was in his capacity as Native Land Commissioner that Mr. Orken heard this dispute. On 23rd May, 1963, however, the Native Land Registration Ordinance was repealed and on the same day the Land Titles Commission Ordinance 1962, came into operation. The Native Land Commission ceased to exist, its place was taken by the Land Titles Commission and Mr. Orken, who was a Native Land Commissioner under the repealed Ordinance, became a Senior Commissioner of the newly-formed Land Titles Commission. Minogue C.J. dismissed the application for an order nisi mainly on the ground that he could not direct the issue of an order nisi against a person who had ceased to exist, namely, Mr. Orken, who had been Native Land Commissioner and was now no longer so.

But a more important matter had come to light. The Native Land Registration Ordinance empowered the Native Land Commission or a Commissioner to inquire for the purpose of setting up a Register of Native Land and incidentally determine any disputes between natives or native communities as to the ownership of native land. There was no provision for settling disputes regarding boundaries. The proceedings before Commissioner Orken were headed �Boundary Dispute � Siku Group v. Gena Group� and an analysis of the evidence and material before him show quite clearly that he meant to do no more than fix a boundary between the lands of the two disputing groups. He made no findings regarding the ownership of land. As Minogue C.J. observed:

�it is clear that there was no legislative warrant for the sort of �Finding� that was made and in legal terms the Commissioner had no jurisdiction to make the order or �Finding� that he did�.

Minogue C.J. suggested that the parties concerned should as soon as possible formulate claims for hearing before the Land Titles Commission.

It is in these circumstances that applications in respect of Binagl, Oka, Kambu Block (1) and Kambu Block (2) came to be heard by Commissioner H. J. McKenzie and applications in respect of Kambu On Top, Kambu Below, Binagl Extended and Siure came to be heard by Commissioner R. I. MacIlwain. All these applications were in respect of land to the east of the Koro River and were decided in favour of the sub-clans of the Gena Group.

The sub-clans of the Siku Group being aggrieved applied to the Chief Commissioner, Mr. Cruickshank, for a review of the decisions of Commissioners McKenzie and MacIlwain pursuant to s. 34 of the Land Titles Commission Ordinance 1962-1971. In reviewing these decisions Mr. Cruickshank considered the records of the proceedings before Commissioners Orken, McKenzie and MacIlwain. He himself called witnesses whom both sides had the opportunity of examining. Both sides were allowed to call new witnesses or recall witnesses who had given evidence at any of the former proceedings. In substance he approved all eight decisions.

There is ample evidence that the Chimbu custom of recognizing acquisition of land by conquest and effective occupation exists. Mr. Hartigan, counsel for the appellants, contends that if such a custom exists it is contrary to s. 6 (1) (a) of the Native Customs (Recognition) Ordinance 1963 and s. 10 of the Laws Repeal and Adopting Ordinance 1921-1939. Section 6 (1) (a) of the Native Customs (Recognition) Ordinance 1963, provides:

�Subject to this ordinance, native custom shall be recognized and enforced by, and may be pleaded, in all courts, except insofar, as in a particular case or in a particular context:

(a)����� it is repugnant to the general principles of humanity.�

Section 10 of the Laws Repeal and Adopting Ordinance 1921-1939 provides:

�The tribal institutions customs and usages of the aboriginal natives of the Territory shall not be affected by this Ordinance and shall, subject to the provisions of the Ordinances of the Territory from time to time in force, be permitted to continue in existence in so far as the same are not repugnant to the general principles of humanity,�

but the above-mentioned provisions must be read together with the provisions set out below. Section 8 (a) of the Native Customs (Recognition) Ordinance 1963 provides:

�Subject to this Ordinance, native custom shall not be taken into account in a case other than a criminal case, except in relation to:

(a)����� the ownership by native custom of or of rights in, over or in connection with native land or anything therein or thereon or the produce thereof, including rights of hunting or gathering.�

Section 9 of the Laws Repeal and Adopting Ordinance 1921-1939 provides:

�Nothing in this Ordinance shall affect the right, title, estate or interest, vested, possessory or contingent, of any aboriginal native or tribe of aboriginal natives to any land within the Territory whether such land had been proclaimed as a native reserve or not, or any customary user by aboriginal natives of market-places and landing-places, or any existing right, privilege or custom of aboriginal natives in relation to cultivation, barter, hunting and fishing.�

Section 42 (1) (b) of the Land Titles Commission Ordinance 1962-1971 provides:

�Subject to the next succeeding subsection, for the purposes of the Commission, in relation to the ownership of native land:

...

(b)����� living persons who under native custom are regarded as owners of native land shall be treated as the beneficial owners of that land by native custom.�

Having regard to the above-mentioned legislation as a whole my interpretation of the validity or otherwise of native custom regarding ownership of land is as follows. To recognize as owners of native land persons who had acquired that land by conquest after Government control had been established would undoubtedly be repugnant to the general principles of humanity but to recognize as owners of land those who had acquired it by conquest and who were in effective occupation of the land at the time when Government control was established is not repugnant to the general principles of humanity. It is the only practical and sensible basis upon which ownership of land can be recognized otherwise a tribunal would be faced with the impossible task of going back to the mists of time in order to ascertain who are the rightful owners of disputed land. Before the advent of the Administration native customary law had reigned supreme, and, it was not only expedient but also right and proper that when it imposed its own control the Administration should have recognized rights of ownership of land acquired by native custom even if native custom meant brute force.

Applying this test of conquest and effective occupation we find that at the time when Government control was established about 1938 the Gena were well settled on the land to the east of the Koro River and therefore were the owners of that land.

Taylor told Commissioner McKenzie that when he patrolled the area in 1933-1936 the area to the east of the Koro River was occupied by the Gena.

At the time when Commissioner Orken held his inquiry Rev. Hanneman, a Lutheran missionary, was stationed at the Lutheran Mission in Kerowagi. He informed Commissioner Orken that when he arrived in the area in 1934 to establish the Lutheran Station the Gena were in possession of the land in dispute and that he was of the opinion that the Gena had only recently driven the Siku people off that land.

Sometime in 1936 or 1937 there was another fight between the Siku and the Gena and the Siku who were on the west bank of the Koro River were driven further west. Mr. Kyle, an Assistant District Officer, re-settled the Siku on the west bank of the Koro but made no attempt to settle them to the east of the River. There was a ceremonial burning of weapons and further fighting was prohibited.

Mr. Hartigan maintains that even if the custom regarding acquisition of native land by conquest exists and ought to be recognized there is no evidence that the Gena had consolidated their conquest of the east bank of the Koro River and that there is some evidence that there is an intermingling of the Siku with the Gena to the east of the Koro River. In these circumstances the test to apply is that laid down in the Privy Council case of Twimahene Adjeibi Kojo II v. Opanin Kwadwo, Bonsie & Anor. [xxvi]⁴. It was adopted by Frost S.P.J., as he then was, in Re Veakabu Vanapa [xxvii]⁵, and by Williams J. in Lilumpat Land Owning Group and Others v. The Ianu and Sausau Clans of Kranket (Re Piawai, Pig and Masas Islands)[xxviii]⁶. This test is stated in the judgment of the Judicial Committee as follows:

�Where there is a conflict of traditional history one side or the other must be mistaken but both may be honest in their belief. In such a case demeanour is of little guide to the truth, the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable.�

In 1939 Patrol Officer L. Viall prepared a map of the area showing tribal boundaries. This map showed the Koro River as being the boundary between the Siku and the Gena. It was prepared after an extensive survey had been conducted by Viall in collaboration with two other officers, namely, A. F. Kyle and I.F.G. Downs. In his letter dated 25th July, 1972, addressed to Commissioner McKenzie Mr. Downs states that the map was commissioned by the Administration for the particular purpose of establishing tribal/clan boundaries and prepared after a period of twelve months had elapsed for the settlement of disputes.

At the hearing before Commissioner Orken as well as the hearing before Commissioner McKenzie there was evidence that in 1948 upon a complaint being made by the Gena that the Siku had built houses and cultivated gardens on land to the east of the Koro River, Mr. Wakeford, who was an Assistant District Officer at Kundiawa, sent out some policemen with instructions to remove the houses and gardens.

In 1953 the Gena sent five representatives to the District Commissioner Mr. I. F. G. Downs at Goroka to protest against the new boundary established by Patrol Officers Heagney and Keogh. Mr. Downs then sent the following telegram to the Assistant District Officer at Kundiawa:

N2>�GO204�������� All tribal boundaries along rivers or ridge features named and are not repeat not to be changed (.) Arrange forthwith for boundary Rivers Koro, Suan and Dari in respect Gena/Siku-Kamanegu and Siambuga/Waugwa tribes restored immediately.�

Thus we find that when the traditional conflicting histories of the two groups are tested by recent facts established by the evidence it is more probable that the disputed land to the east of the Koro River belongs to the Gena Group. The trouble started and has not ceased since 1951 when Patrol Officer Heagney decided that the boundary should be moved further to the east and when Patrol Officer Keogh following Heagney�s instructions marked a new boundary with shrubs and casuarina trees. There was no justification for the new boundary. But the reason is perhaps not far to seek. In about 1949 the Administration acquired the large portion of land upon which Kerowagi Station and the Airstrip now stand. Most of this land belonged to the Siku whose land shortage became even more acute. The Administration was beholden to the Siku for the land that had been acquired from them and tried to help the Siku over their difficulties with shortage of land by sponsoring Siku occupation of Gena land. The following passage from a note made in the village books by Patrol Officer Heagney, and which appears in Appendix 8 of the proceedings before Commissioner Orken, is significant. After setting out the history of the disputes between the Siku and Gena, Heagney states his conclusions as follows:

�In endeavouring to straighten the matter out one is faced at every turn with the fact that the Siku Group are the possessors of very little land.

The point is now to do something about this and still be straight with the Gena people.

The policy here is that the possessors of land at the advent of the Administration is the automatic owner of that land. This follows on the assumption and the fact that fighting becomes outlawed by the Administration once it is controlling an area. However, as with all rules this is but a line of guidance, to be followed with due regard to the exigencies of each particular case.

It is thought that this particular case has few circumstances favouring the Gena Group. Gena took the land with overwhelming aid from neighbouring groups and did so moreover well after the advent of the Administration ...

Faced with the above it is the view of the writer that at least the majority of Binagl and Kambu, held by the Siku Group around 1937-38 should be returned to that Group.�

There is no evidence that the Gena took land from the Siku after the advent of the Administration and no evidence that the Siku occupied the greater part of Binagl and Kambu around 1937-1938. The Siku may have been allowed to graze their pigs and cultivate land to the east of the Koro after the ceremonial burning of weapons by Kyle in 1937 but there is no evidence that they occupied this land after 1933 when they were driven away from it by the Gena.

Mr. Hartigan asserts that as Patrol Officers Heagney and Keogh had adjudicated on the matter in the Native Court under reg. 59 of the Native Administration Regulations the sub-clans of the Gena were estopped from re-opening the matter. There is no evidence that Patrol Officers Heagney and Keogh conducted hearings in the Native Court, and, even if they did, all that these two Patrol Officers did was to mark the boundary between two clans. The Land Titles Commission Ordinance under which Commissioners McKenzie, MacIlwain and Cruickshank acted is concerned with ascertaining the ownership of land and registering the land in the names of the persons found to be the owners. In this connection it is not irrelevant to point out that by customary law the owners of native land are not clans or groups but sub-clans and extended families.

Mr. Hartigan contends that as Commissioner Orken had already adjudicated in the dispute, and no appeal lodged as provided for by the Native Land Registration Ordinance the matter could not have been re-opened before Commissioners McKenzie and MacIlwain. He further contends that the observation of Mingue C.J. that Commissioner Orken was not empowered to make the finding he did was obiter and not binding on this Court. I have said before that what Commissioner Orken did was to fix a boundary between two groups. He did not adjudicate on the question of ownership. It is true that for the purpose of deciding whether or not an order nisi should issue it was not necessary for Minogue C.J., to decide at that stage whether Commissioner Orken had jurisdiction to make the finding he did. To this extent it is obiter. Nevertheless the observation of Minogue C.J., with regard to Commissioner Orken�s finding is correct. For the purposes of the proceedings before me it is relevant to inquire whether Commissioner Orken had jurisdiction to make the finding he did. As in my view he had no jurisdiction the matter was not res judicata and the applications were quite properly before Commissioners McKenzie and MacIlwain.

Mr. Hartigan criticizes Commissioner McKenzie for treating the four applications before him as test cases and criticizes Commissioner MacIlwain for relying upon the reasons given by Commissioner McKenzie. Whether he looked upon the applications as test cases or not, upon hearing evidence and considering the material before him Commissioner McKenzie came to the conclusion that the four portions of land belonged to the sub-clans of the Gena Group. Similarly Commissioner MacIlwain heard evidence and examined the material placed before him. In par. (1) of his �Reasons for Decision� he says:

�The Reasons for Decision accompanying the four pilot plots of land ownership of which was determined by Commissioner H.J. McKenzie, as a guide to the whole of the land disputed East of the Koro River adequately cover this decision. He examined all avenues available to him and it would be difficult to disturb if one had views to the contrary. However, I concur with his reasons.�

This could be read as meaning that he, himself, came to the conclusion that the four portions of land that he was adjudicating upon belonged to the sub-clans of the Gena Group and for the same reasons as those given by Commissioner McKenzie which he did not wish to repeat.

But whatever errors either of omission or commission may have been committed by Commissioners McKenzie and MacIlwain the review before Chief Commissioner Cruickshank was a hearing almost de novo and his findings are not against the weight of the evidence he heard and the material he examined. In short the applications heard by Commissioners McKenzie and MacIlwain and reviewed by Chief Commissioner Cruickshank were for the purpose of determining the ownership of certain portions of land pursuant to the provisions of the Land Titles Commission Ordinance. The procedure provided for by the Ordinance had been adhered to. The Commission had not exceeded its jurisdiction, the decision was not against the weight of the evidence, there was no violation of the rules of natural justice and no error in law.

Appeals dismissed.

Solicitor for the appellants: N. H. Pratt, Acting Public Solicitor.

Solicitor for the respondents: M. Campbell, Deputy Public Solicitor.

[xxiii]Infra. p. 37.

[xxiv]Infra. p. 37.

[xxv]Infra. p. 38.

[xxvi][1957] 1 W.L.R. 1223.

[xxvii]Unreported 547 of 24th October, 1969.

[xxviii][1974] P.N.G.L.R. 235.