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Sina v Administration of the Territory of Papua and New Guinea [No 2] [1969] PGSC 38; [1969-70] PNGLR 359 (4 December 1970)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 359 - Saraga Sina v Administration of the Territory of Papua and New Guinea [No. 2]

[1969-70] PNGLR 359

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SARAGA SINA AND OTHERS

V

ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA [NO. 2]

Port Moresby

Minogue CJ Clarkson Kelly JJ

5-6 November 1970

13 November 1970

4 December 1970

APPEAL - Case stated - Practice and procedure - Land Titles Commission - Refusal of leave to amend claims - Power to grant amendment at discretion - Whether refusal shown to be wrong - Principles on which exercise of discretion to be reviewed on case stated - Land Titles Commission Rules 1968, r. 20[dxxxiv]¹�.

REAL PROPERTY - Claims to land by native custom - Several applicants to ownership of land - Applicants� claims in conflict in part - Failure of one applicant to prove title - Defence that adverse claim invalid - Onus of proving title - Proof of title not established alone by failure of adverse claim to prove title - Land Titles Commission Ordinance 1962-1969, s. 15[dxxxv]²�.

Each of several applicants, under the Land Titles Commission Ordinance 1962-1969, s. 15, claimed ownership to land. After hearing evidence and argument upon the several claims for some days, an application which the Land Titles Commission refused, to amend the claims before the Commission was made, the amendment seeking to include a claim for a pronouncement of the validity of the claim by the Administration of the Territory of Papua and New Guinea, as respondent, to be the owner of the land. The respondent opposed the application for leave to amend.

Held

By the Full Court on a reference of a case directed to be stated by the Commission, that having regard to the functions of the Commission it was a proper exercise of its discretion not to allow the amendment sought.

Australian Coal and Shale Employees� Federation v. The Commonwealth [1953] HCA 25; (1953), 94 C.L.R. 621, and Rodgers v. Rodgers (1964), 114 C.L.R. 608, followed.

Per the Full Court: Where one of two claimants under the Land Titles Commission Ordinance 1962-1969, s. 15, fails to establish his claim to ownership to a piece of land, the other claimant, because of that failure, does not necessarily succeed, it being incumbent upon every such claimant to prove his claim irrespective of the number of claimants.

Dictum in Abdulla Bin Rithiwani v. Wakf Commissioners (1919-21) 8 K.L.R. 105, at pp. 107-108 (Court of Appeal for Eastern Africa), adopted by the Full Court.

Reference by Clarkson J

On 16th July, 1970 the Supreme Court of the Territory of Papua and New Guinea (Clarkson J.) directed, under the Land Titles Commission Ordinance 1962-1969, s. 32(1), that the Land Titles Commission state a case for the opinion of the Supreme Court upon certain questions: Saraga Sina v. Administration of The Territory of Papua and New Guinea [No. 1] [1969-70] P. & N.G.L.R. 352.

On 19th October, 1970 on the application of Saraga Sina and Madaha Geita on behalf of the Iarogaha and Uhadi clans (the first applicant), Mea Gabe and Diho Gabe on behalf of the Adari clan (the second applicant), Kore Avie and Raho Rakatani on behalf of the Gaibudubu clan (the third applicant), Gomara Udia and Hariki Goro on behalf of the Ogoni Dabunari clan, Vana Rakatani on behalf of the Ogoni Gubini clan, Udia Sivari on behalf of the Mokogaha clan, Heni Guba on behalf of the Kaevaga clan, and Ganega Gumasa on behalf of the Baruni clan (the other applicants) the case to be stated under the order made on 16th July, 1970 was referred (Clarkson J.) to the Full Court with a direction that the above-mentioned applicants should have the carriage of the proceedings on the reference, to which the Administration of the Territory of Papua and New Guinea was made the respondent.

Counsel

Gyles, for the first applicant.

Court, for the second applicant.

Miss Campbell, for the third applicant.

Young, for the other applicants.

Croft, with him Tuthill, for the respondent.

Cur. adv. vult.

4 December 1970

MINOGUE CJ CLARKSON KELLY JJ: �delivered the following written judgment:

This is a case stated by the Land Titles Commission under s. 32 of the Land Titles Commission Ordinance 1962-1969, pursuant to an order made by Clarkson J. on 16th July, 1970.

The history of the matter is set out in the case stated by the Commission and from this it appears that a claim was made by two claimants on behalf of one clan in January 1967, to certain land subsequently identified and referred to as DA1 and DA180 in the Port Moresby area. In the period which followed further claimants representing other clans were added. These claims are separate and some of them overlap, with the result that disputes have arisen between the claimant clans where overlapping occurs.

The claim as framed at the time relevant to these proceedings was for an order �that the land comprised in the annexed plan and known as DA1 and DA180 is owned by the above idihus�. After the proceedings had continued for some time counsel on behalf of all claimant clans applied to amend the application by deleting the above words and substituting the words �that the claim by the Administration to be the owner of the said land comprised in DA1 and DA180 to the exclusion of claims to ownership by native custom of or the right by native custom to use the said land be declared invalid and of no force and effect�.

This application was opposed by the Administration and on the same day was rejected by the Commission which published reasons for its decision.

Counsel for the claimant clans requested the Commission to state a case to the Supreme Court under s. 32 of the Land Titles Commission Ordinance which the Commission refused to do; but following an application to the Supreme Court an order was made on 16th July, 1970 requiring the Commission to do so. The case as stated was by a further order of 19th October, 1970 referred to the Full Court which heard argument on 5th and 6th November. The questions stated for consideration were as follows:

N2>(1)����� Did we err in or in the course of ruling as set forth in the reasons referred to in par. 18(h) above?

N2>(2)����� If so, in what respect?

The reference to par. 18(h) of the case is to the reasons given by the Commission in refusing the amendment sought by the claimants. On 13th November we answered the questions as follows: Question 1�No, the Commission did not err in making the ruling set out in its reasons referred to in par. 18(h) of the case stated. We further indicated that we would publish our reasons at a later date which we now do.

It was not contested that the Land Titles Commission is a judicial body which is bound to act judicially. Rule 20 of its Rules provides that any document in the Commission (sic) may be amended with the leave of a Commissioner and this is clearly wide enough to confer a power to enable the Commission to grant the application for amendment which was made, if it so decided. The amendment sought, if granted, would in our view still have left the case sought to be made by the applicants within the jurisdiction of the Commission as that jurisdiction is defined by s. 15 of the Land Titles Commission Ordinance. Whether the amendment should have been granted, however, was a matter within the discretion of the Commission. In dealing with the application the Commission was exercising its discretion on a matter of practice and procedure. The decision should therefore be affirmed unless we are satisfied that it is clearly wrong. Australian Coal and Shale Employees� Federation v. The Commonwealth[dxxxvi]³�approved in Rodgers v. Rodgers[dxxxvii]⁴�and see Ratnam v. Cumarasamy[dxxxviii]⁵.

Whether or not the Commission was bound to reach a decision as to who owned the land, it could properly take the view that it should do so when claims to ownership were before it and that this was a more desirable course than simply pronouncing on the validity of the Administration�s assertions of ownership raised by way of defence, a decision upon which would not necessarily determine ownership. We adopt the statement of the Court of Appeal for Eastern Africa in Abdulla Bin Rithiwani v. Wakf Commissioners[dxxxix]⁶: �We endorse the view recorded by the learned judge that where there are two claimants numbered respectively 1 and 2, because one fails to establish his title to the land the other does not because of such failure necessarily succeed. It is incumbent, in our opinion, on every claimant to prove his claim irrespective of the number of applicants there may be. . . .� For ourselves we think that if the Commission is able to determine the ownership of this land it is desirable it should do so.

What the Commission was being asked to do was to effect a complete change in the nature of the proceedings after some days of hearing evidence and argument, against the wishes of one of the parties and in the situation where there could be no compensation by way of costs. In the light of the arguments foreshadowed before us we think it is by no means certain that the amendment, if allowed, would necessarily shorten the proceedings. Having regard to the functions of the Land Titles Commission we consider it was a proper exercise of its discretion to decline to allow the amendment.

Some of the phraseology used in the Commission�s reasons for its decision is not altogether apt but reading the reasons for decision as a whole it could not be said that the Commission had exercised its discretion wrongfully. It is for these reasons that we dealt with the case in the way we did.

We were invited to express opinions on a number of matters which it may well be necessary for the Commission to determine in the course of its hearing. These matters involved the construction of sections of the Land Titles Commission Ordinance and of the Land Ordinance 1962. We do not consider it appropriate to deal with these matters. Our function is to pronounce on such matters as and when they properly come before us for decision. We would, however, say that the sooner the Commission is enabled to proceed with the determination of this claim on its merits the better.

Question (1) answered: �No, the Commission did not err in making the ruling set out in its reasons referred to in par. 18(h) of the case stated.�

Solicitor for the applicants: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[dxxxiv]Rule 20 provides as follows: �Any document in the Commission may be amended with the leave of a Commissioner or Deputy Commissioner.�

[dxxxv]Provisions of s. 15, so far as they are relevant are: �(1) The Commission has, subject to this Ordinance, exclusive jurisdiction to hear and determine all disputes concerning and all claims to the ownership by native custom of, or the right by native custom to use, any land, water or reef, including a dispute as to whether any land is or is not native land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.�

[dxxxvi][1953] HCA 25; (1953) 94 C.L.R. 621, at p. 627.

[dxxxvii] (1964) 114 C.L.R. 608, at pp. 619-620.

[dxxxviii] [1965] 1 W.L.R. 8, at p. 11.

[dxxxix] (1919-21) 8 K.L.R. 105, at pp. 107-108.