[1971-72] PNGLR 212

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

DICKSON

V.

OKERE AND OTHERS
(RE GOILANAI NO. 2.)

Port Moresby
Kelly J

26-28 May 1971
30 June 1971

APPEAL - Land Titles Commission - Review of decision of single Commissioner by Commission consisting of three Commissioners - Reception of new evidence on review - Discretion to receive new evidence - Power to admit hearsay evidence - Land Titles Commission Ordinance 1962-1970, ss. 36,[ccli]138.[cclii]2 

In the course of hearing a review of a decision. of a single, Land Titles Commissioner, the Land Titles Commission, constituted by three Commissioners:

(a)      several times during the hearing refused to receive new evidence considering either that there was no power to do so or failing to exercise the discretion to receive such evidence; and

(b)      misconceived its power to admit hearsay evidence, such evidence being admissible by virtue of s. 38 (2a) of the Ordinance.

Held:

That as the Commission had made errors of law as a result of which the appellant had been denied the opportunity of presenting his case fully, the case should be remitted to the Commission for rehearing.

Semble:

Although the Commission had made errors of law, the proceedings had not been conducted in a manner contrary to natural justice.

Case referred to:

Wiseman v. Borneman, [1969] 3 W.L.R. 706.

Appeal.

The nature of the appeal, and the facts, appear sufficiently in the reasons for judgment.

Counsel:

Casson, amicus curiae.
Ross, for the respondent.
Cur. adv. vult.

30 June 1971

KELLY J. This is an appeal by Osineru Dickson on behalf of the Hiwiorere family of the Hiai clan against a decision of the Land Titles Commission in respect of certain land in the Milne Bay District to the east of the town of Alotau. The land is known as Goilanai and is referred to as Goilanai No. 2 to distinguish it from adjacent land further to the east which is the subject of other proceedings referred to as Goilanai No. 1.

The decision under appeal was one given by three Commissioners who reviewed the decision of Mr. Commissioner Kimmorley and confirmed that decision. The appellant and members of his family had been one of the respondents to the original applications heard by Mr. Commissioner Kimmorley. The Commissioner had heard together two applications concerning the land, one by Gilbert Torigawa on behalf of the Negidaha family under s. 15 of the Land Titles Commission Ordinance 1962-1968 and the other by the Administration of the Territory of Papua and New Guinea under s. 82 of the Land Ordinance 1962-1969. The Commission declared that the living members of the Bebesige family of the Waiwai or Baiobaio (Garuboi) clan (of which Luka Okere and Modigai Igeauri were appointed agents) are the sole beneficial owners by native custom of all interests in the land except such presently established interests of occupancy and usufruct held under native custom by other families including the Negidaha family of the Waiwai or Baiobaio (Garuboi) clan (of which Gilbert Torigawa and Labidi were appointed agents) and the Baige family of the Gomela (Tuwoko) clan (of which Nikole Kiwiwi and Udia were appointed agents) and any subsequent rights acquired by them or by any other families. At that hearing the appellant claimed the land on behalf of his family but, as will be seen from the declaration made by the Commission, that claim was unsuccessful.

The appellant then sought a review of the decision of Mr. Commissioner Kimmorley on the grounds—(1) that his decision was against the weight of the evidence, (2) that his decision was contrary to natural justice, and (3) that he erred in law and acted without jurisdiction. The third ground was subsequently withdrawn by the appellant during the course of the review hearing. It appears that notice of the review hearing was given to all interested parties but no persons other than the appellant were either present or represented at that hearing at which the appellant appeared on his own behalf.

In this appeal the appellant relies on all the grounds which are open to him under s. 38(2) of the Land Titles Commission Ordinance. He attacks the decision of what in the amended notice of appeal is referred to as the Review Commission, a term which for convenience I shall adopt, for its failure to correct various errors of law made by Mr. Commissioner Kimmorley and also, independently of that, for its rejection of relevant evidence, its failure to give weight to certain evidence, its failure to ascertain correctly the native custom relevant to the ownership of the subject land and/or to apply those customs to the facts before it. It was also said that the Review Commission erred in law and/or conducted the hearing in a manner contrary to natural justice in that it rejected certain recent relevant evidence, that it prevented the appellant from referring to matters not before Mr. Commissioner Kimmorley at first instance and refused to admit further evidence sought to be adduced by the appellant, that it considered its functions in making a review of Mr. Commissioner Kimmorley’s decision to be that of a tribunal hearing an appeal on limited grounds and that it considered that the Land Titles Commission could not admit hearsay evidence.

From various passages in the transcript of the proceedings before the Review Commission it is apparent that the Senior Commissioner who presided (Mr. Senior Commissioner Orken) proceeded for a considerable part of the hearing at all events upon the basis that the Commission was obliged to limit itself to evidence given before Mr. Commissioner Kimmorley and could not consider any fresh material. It must be assumed from the reading of the transcript that the other two members of the Commission associated themselves with that view; at all events, they said nothing to indicate otherwise, and on one occasion specifically agreed with a ruling to that effect given by the Senior Commissioner.

As I shall subsequently indicate the Commission was not consistent in this approach as it did ultimately hear certain evidence not given before Mr. Commissioner Kimmorley, but this does not alter the fact that prior to that the Senior Commissioner had adopted the attitude to which I have referred.

The conduct of a review is dealt with in s. 36 of the Land Titles Commission Ordinance, sub-ss. (3) and (4) of which are in the following terms:

“(3)    The Commissioners making the review, after considering the records relevant to the decision and hearing such evidence and making such inquiries (if any) as they consider necessary, may—

(a)      confirm the decision; or

(b)      set aside the decision and substitute another decision in its place.

(4)      For the purposes of a review, the Commissioners making the review may authorize one of their number to take evidence and make inquiries on their behalf.”

In its reasons for decision the Commission stated: “As provided for in s. 36(3) of the Land Titles Commission Ordinance 1962 as amended to date, we have considered the records relevant to the decision of Mr. Commissioner Kimmorley and we have heard such evidence and made such enquiries as we consider necessary . . .” This passage must however be read with what the Commission in fact did and what the Senior Commissioner said in the course of the hearing.

At the outset the Senior Commissioner told the appellant “This is a review of the decision of Mr. Commissioner Kimmorley. It is the duty of the reviewing Commissioners to review all the evidence that was placed before Mr. Commissioner Kimmorley at the original hearing.” Whilst of course this statement does not necessarily indicate that the Senior Commissioner was not mindful of the provisions of s. 36(3), in particular the discretionary power to hear further evidence and make enquiries, nevertheless, when it is read with some later observations by the Senior Commissioner, it may indicate that he believed that the Commission was limited to reviewing the evidence at the original hearing.

Then after the appellant had referred in summary form to some of the evidence before Mr. Commissioner Kimmorley, the transcript proceeds as follows:

“Orken:         We already have all this, Mr. Dickson. This was said before Mr. Kimmorley.

Dickson:        How do I refer to make it clear before the Commissioners. The land was bought; the official statements were handed over at that time.

 Orken:         You can say—‘I refer you to my evidence given before Mr. Kimmorley in which I stated . . . etc.’. There is no need to go through all you have said before. Strictly speaking, we shouldn’t listen to all this. We should bring all the other people in.”

Shortly afterwards the appellant commenced to deal with certain proceedings stated to have taken place before a Mr. Atkinson, the Resident Magistrate at Samarai in or about the year 1929 and about which evidence had been given before Mr. Commissioner Kimmorley. The Senior Commissioner observed:

“I don’t think we can listen to something that happened 30 years ago. You must confine yourself to the evidence that was given before Mr. Kimmorley. You had an opportunity to bring this out before Mr. Kimmorley. You must confine your comments as far as you possibly can to the evidence given before Mr. Kimmorley. I have allowed you a lot of latitude. I have allowed you to refer to things that dead men have said. I have allowed you to refer to things that were said before Mr. Giles. You must not refer to things said before Mr. Atkinson. I was not there then. None of the people were there then.”

The appellant then said: “Mr. Commissioner, the main things that were submitted to Mr. Kimmorley . . .” to which the Senior Commissioner replied: “If it was submitted to Mr. Kimmorley, all you have to say is ‘I refer you to the evidence given before Mr. Kimmorley referring to the evidence given before Mr. Atkinson.’ If it was said before Mr. Kimmorley, it will be in the evidence. If it wasn’t said before Mr. Kimmorley, we can’t allow it.”

A little later the appellant referred to a statement allegedly made to him and his brother Eli by one Nicoli Ogavoi to the effect that the Garuboi people especially Bebesige and Gilbert said that they did not own this land but wanted to make false statements to the Government and get paid and leave the area. When the appellant indicated that this might not already be in evidence, the Senior Commissioner said: “We can only review the evidence that was given. I cannot accept it if it was not in the evidence”, and when he told the appellant that he would have to rule against him in this he sought and obtained the agreement of the other two Commissioners. The Senior Commissioner then went on to say: “We cannot consider it because it was not said in evidence. All we can do is consider the evidence that was given before. You cannot bring up any now. You can take a note of my rejection of this submission of yours. I rule finally that any alleged statement of Eli Dickson as to whether or not other people told lies about the ownership of this land cannot be received by this present review.” In dealing with this particular matter in its reasons for decision the Commission concluded by saying: “But neither he (that is the appellant) nor his brother Eli made this claim in their evidence before Mr. Commissioner Kimmorley and we are not prepared to accept it now in the absence of any supporting evidence whatsoever.” Put in that way the rejection of the material is made to appear as though it had been done in the exercise of a discretion, but this is not the way it appears in the passage of the transcript to which I have referred.

It must be observed that in the way in which this matter proceeded the Commission was not in fact rejecting evidence but was rather refusing to allow the appellant to make statements of fact before it when such statements were not contained in the evidence given before Mr. Commissioner Kimmorley. However, it would seem, especially from the ruling by the Senior Commissioner referred to above that the matter was being treated in the same way as though the appellant was seeking to adduce further evidence, and the real point of objection was not the form in which the appellant was seeking to present the fresh material but the fact that he was seeking to present that material, the view of the Senior Commissioner and of the other Commissioners being that he was limited to the material before Mr. Commissioner Kimmorley.

Subsequently, the appellant sought to have evidence given by his brother Merari who had not given evidence before Mr. Commissioner Kimmorley, it being alleged that the Commissioner had told him that he was not required. After hearing evidence from the Acting Executive Officer of the Commission, the Commission then decided to hear Merari Dickson’s evidence, this being referred to in its reasons as an “indulgence” and as the Commission went on to say “so that there could be no reasonable doubt in his mind or in that of his brother Osineru, that the fullest opportunity was being given them to present all or anything they desired to bring forward before us”. Before he commenced to give his evidence the Senior Commissioner addressed the following remarks to Merari: “I would ask you, Mr. Merari Dickson, when you give your evidence to try and confine yourself to facts. Not to go over something that we have got before. We have already got the history of the land. We have Mr. Osineru Dickson’s evidence and the evidence of your two brothers. If you can remember that, the proceedings will go along more quickly. You must remember this is a judicial process and I cannot allow these hearsay statements to creep in.”

In the course of his evidence Merari Dickson referred to a conversation with his grandmother and to having been taken at the age of sixteen through a garden, presumably on the subject land, by his grandfather and uncle and he said that from then on it remained as his land. He was then questioned by Mr. Commissioner Jones who queried whether a sixteen year old boy would be placed in charge of land. Merari Dickson answered that his grandmother had handed it over to him. At the conclusion of his evidence the appellant sought to deal with this matter, saying “Mr. Commissioner, I would like to reply to what Mr. Jones has queried about the age” to which the Senior Commissioner said “It is not for you to reply” and he then asked the witness if he wanted to add anything to what he had said, to which the witness replied “I haven’t anything to say”.

There is one other matter relating to the conduct of the review to which reference should be made. The appellant sought to deal with the matter of cemeteries, obviously for the reason that before Mr. Commissioner Kimmorley he had laid emphasis on burial customs, although in his reasons for decision the Commissioner stated that the evidence about burials was of little help. When the appellant raised this matter before the Review Commission, the Senior Commissioner quoted part of his statement in the original proceeding relating to cemeteries and then said: “I think the way you want to present this is as follows: ‘I refer the reviewing Commissions (sic) to my evidence as to the presence of cemeteries and I submit my evidence there supports the claim that the Dickson family own the land’. Is that sufficient?” Perhaps not surprisingly, the appellant merely said “Yes”.

Despite the assertion to the contrary by the Commission in its reasons, it is quite obvious that the appellant was certainly not given the fullest opportunity to present anything he desired to bring forward before it. Admittedly, there were some matters which the appellant was permitted to develop at length, but as is shown by the passages from the transcript to which I have referred, with the exception of the evidence of Merari Dickson which it allowed, the Commission limited the appellant to dealing with material before Mr. Commissioner Kimmorley and even then in some respects, as for instance on the subject of cemeteries, it discouraged the appellant from developing an argument, considering it sufficient merely to refer the Commission to evidence given before Mr. Commissioner Kimmorley.

From the statements made by the Senior Commissioner which I have already quoted, it appears to me that prior to the stage when Merari Dickson was allowed to give evidence the Senior Commissioner misconceived the duty of the Commission under s. 36(3) and from their acquiescence in one instance and their silence in other instances the other members of the Commission must be taken to have shared in this misconception. It would seem that during the major part of the review proceedings the Commissioners considered either that they had no power to hear further evidence or if they did appreciate that they had such power and that it was a matter for their discretion as to whether they should hear further evidence (which is clearly the case) then they failed completely to exercise that discretion. In either case they were wrong in law.

The Commission also appeared to have had some misconception as to its power to admit hearsay evidence. It was not consistent in its view on this matter but the Senior Commissioner appears to have considered that if he did allow hearsay statements, which he did, this was simply allowing latitude to the appellant and that hearsay should not be admitted; this is shown for instance by his warning to Merari Dickson prior to his giving evidence. That hearsay is admissible is indicated by s. 38(2a) of the Land Titles Commission Ordinance; it is of course a matter for the discretion of the Commission as to whether it allows any particular hearsay statement to be given in evidence, but it is certainly not precluded from so doing.

The overall result of the way in which this review was conducted is that it was unsatisfactory and as a consequence the appellant was denied the opportunity of presenting his case fully to the Commission. He was unrepresented and it is scarcely surprising that for the most part he simply accepted the restrictions placed on him by the Commission. Whilst I would not go so far as to say that the proceedings were conducted in a manner contrary to natural justice, despite the wide meaning given to that term (see Wiseman v. Borneman[ccliii]3) the Commission certainly made errors of law in the ways in which I have indicated and the only satisfactory course now is that the case should be remitted to the Commission for rehearing. What is necessary is a complete rehearing of the review and this should be held before a differently constituted Commission.

As this matter is to be reheard it is not necessary that I deal with the matters of substance in which it is alleged that the Review Commission was in error, as distinct from the manner in which the proceedings were conducted, and indeed it does not appear appropriate that I should do so. I am however bound to observe that in so far as the appellant attacks the decision of the Review Commission for its failure to correct errors of law made by Mr. Commissioner Kimmorley such a ground of appeal could not be entertained in the face of the appellant’s withdrawal in the course of the review hearing of the ground that the Commissioner had erred in law and acted without jurisdiction. An appellant must be bound by the way in which he has conducted the proceedings below, even though unrepresented, and he can hardly now be heard to say that the Review Commission was wrong in not correcting errors of law made by Mr. Commissioner Kimmorley when it was not being asked to do so. However, I would think that on the rehearing the appellant would not be precluded from arguing this ground which is specified in his application for review, although should he wish to do so it would be prudent that this be indicated in advance to the respondents in order that there be no misunderstanding in the matter.

There is only one matter to which I feel an observation (and it can be no more) at this stage may be helpful with a view to avoiding what might otherwise be a somewhat profitless and time consuming argument on the rehearing. The appellant obviously places great reliance upon a decision, allegedly in relation to the ownership of the subject land, said to have been made by Mr. Atkinson, the Resident Magistrate at Samarai in or about the year 1929. It is quite clear, having regard to the specific provisions of Reg. 111 of the Native Regulations 1922 which were then in force that if any such decision had been made, it was made without jurisdiction. Quite apart from that and even if it were thought that it was relevant to know what the Magistrate had in fact decided, despite the fact that he had no jurisdiction to determine more than rights to occupancy or user, it seems that it does not assist in determining the matter which now has to be decided merely to know that at that time a decision had been made in favour of the appellant’s father (which the appellant says he was told by his father was so and which Mr. Commissioner Kimmorley accepts as being so) or on the other hand, that it was made against his father (which Nikole Kiwiwi says he was told by his grandmother was the case). Moreover, it must not be forgotten that it does not appear to be disputed that it is the lineage which is the land owning group and that it is a matrilineage. If a record of those proceedings were still in existence and available, it might be thought to be of some assistance to consider what was said by the witnesses at that time, but in the absence of some such evidence, it seems to be of little value for the present purpose merely to have evidence of what someone was told was the decision.

The appeal is allowed, the decision of the Land Titles Commission on review is quashed, and the case is remitted for rehearing before the Commission on review.

Appeal allowed. Decision of the Land Titles Commission on review quashed. Case remitted for rehearing before the Commission on review.

Solicitor for the appellant: John Casson.
Solicitor for the respondent: P. J. Clay.

[ccli]Section 36 of the Land Titles Commission Ordinance 1962-1970 provides, inter alia, as follows:
“(3)       The Commissioners making the review, after considering the records relevant to the decision and hearing such evidence and making such inquiries (if any) as they consider necessary, may—

(a)        confirm the decision; or

(b)        set aside the decision and substitute another decision in its place.

(4)        For the purposes of a review, the Commissioners making the review may authorise one of their number to take evidence and make inquiries on their behalf.”

[cclii]Section 38 (2a) provides:

“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 Commissioner 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.”

[ccliii][1969] 3 WLR. 706.