Resena v State [1990] PGNC 127; [1990] PNGLR 22; N793 (9 January 1990)

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MADAHA RESENA, RAHO GAIGO AND IGO OALA
(ON BEHALF OF THEMSELVES AND ALL OTHER MEMBERS
OF THE IDUHUS (CLANS) OF TATANA VILLAGE)

CONSTITUTIONAL LAW - Underlying law - Choice of law - Custom as prime source of law - Customary title to land - Compensation for wrongful occupation by government - Claims to be based on custom - Development of underlying law - Constitution, Sch 2 - Customs Recognition Act (Ch No 19), s 5(g).

REAL PROPERTY - Land titles - Claim established - Compensation claim for wrongful occupation by government - Claim to be based on custom - Relevant principles developed - Compensation to be fair and reasonable to both parties - Calculation of - Interest on - Constitution, Sch 2 - Customs Recognition Act (Ch No 19), s 5(g) - Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52), s 1.

TRESPASS - Trespass to land - Compensation for - Wrongful occupation of customary land by government - Claim to be based on custom - Relevant principles developed - Compensation to be fair and reasonable to both parties - Calculation of - Interest on - Constitution, Sch 2 - Customs Recognition Act (Ch No 19), s 5(g) - Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52), s 1.

In 1985, a Chief Commissioner of the Land Titles Commission determined in proceedings under the Land Titles Commission Act 1963 to determine a claim in respect of native ownership or the right by native custom to the use of land, that "Fisherman’s Island prior to June 1980" was not waste and vacant land but land occupied, cultivated, used and owned by the natives of Tatana Village.

The members of the clans of Tatana Village claimed damages for wrongful occupation of the Island for 100 years. The claim related to occupation of parts of the Island by the Government over that time for various purposes including a State coconut plantation, a quarantine station, a licence to settle and a Government airstrip.

The claim was made under five headings of common law damages, namely, occupation fees, removal of fixtures, damages for reinstatement, consequential loss and exemplary damages, together with interest under the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52).

Under the Constitution, Sch 2, custom is adopted and applied as part of the underlying law and the principles and rules of common law and equity cannot be applied or enforced if they are inconsistent with custom.

The Customs Recognition Act (Ch No 19), s 5(g), relevantly provides that custom may be taken into account in civil cases where:

or where the court thinks that by not taking the custom into account injustices will or may be done to a person."

(1) Under Sch 2 of the Constitution, custom is the prime source of the underlying law and the common law of England is the secondary source.

(2) Because the claim to ownership of Fisherman’s Island was based on custom, the claims for compensation were relevantly transactions which justice required should be regulated wholly by custom and not by the common law, pursuant to s 5(g) of the Customs Recognition Act.

(3) In the absence of a relevant customary law on trespass by the Government on customary land, it was appropriate to apply Sch 2.3 of the Constitution and to formulate appropriate rules.

(4) Compensation for wrongful occupation by the Government of customary land should be fair and reasonable to both parties.

(5) In the circumstances, no compensation should be awarded in respect of the State coconut plantation from which the clans of Tatana Village had benefited, but compensation should be awarded for the quarantine station, the licensed settlement and the Government airstrip.

(6) Compensation should be calculated on the basis of an economic rent for the relevant part of the Island fixed at a percentage of the unimproved capital value of that part, reappraised every five years allowing for inflation of 5 per cent.

(7) Because the Government acted in good faith in taking possession of parts of the Island and in erecting thereon buildings for use in connection with the airstrip, no compensation should be awarded for removal of those improvements.

(8) Because the Government had acted in good faith in 1889 in taking possession of the Island and in using it for three different kinds of public purposes and until 1985 had good title at law to the land, no customary damages equivalent to common law exemplary damages should be awarded and no analogous rule of custom formulated.

(9) Interest on compensation should be awarded under s 1 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52).

BREDMEYER J.: This is a claim by the plaintiffs for damages for the Government’s wrongful occupation of Daugo or Fisherman’s Island for 100 years. The claim is made under five common law heads of damages, which I will mention later, totalling K341,069, plus interest under the Judicial Proceedings (Interest on Debts and Damages Act) (Ch No 52) of K206,509, total K547,578.

The plaintiffs are the owners of Fisherman’s Island, having gained a decision in their favour from Chief Commissioner Miriung of the Land Titles Commission on 18 April 1985, a decision which came at the end of protracted litigation. In 1964, four claims to the ownership of Fisherman’s Island were lodged by four groups from nearby villages. One of the claims was lodged by a group from Tatana Village representing the present applicants. Those claims came on for hearing before Chief Commissioner Kelliher in 1964 and at that hearing they were opposed by the then Administration. I appeared as a young counsel for the Administration. I mentioned this to counsel for the plaintiffs at the outset of this trial but he said that he was instructed that his clients had no objection to my hearing this case despite my earlier involvement in it. On 20 December 1965, the Chief Commissioner decided that none of the claimant groups owned the island, but that all had the right to use it for fishing purposes and vested ownership of the island in a committee composed of one representative from each group, and subject to an encumbrance that the national people using it for fishing purposes were not to interfere with the operation and maintenance of the airstrip and wharf. An appeal was lodged to the then Supreme Court against that decision and on 6 October 1969, by consent, the case was remitted to the Land Titles Commission for rehearing. That rehearing occurred in 1977 and in the course of that rehearing some legal questions were referred to the National Court in a case stated. Those questions were decided by O’Meally AJ in Arthur Agevu v The Government of Papua New Guinea [1977] PNGLR 99. The Judge decided, among other things, that the Administration of British New Guinea prior to June 1890 had power to take possession of waste and vacant land on behalf of the Crown. The case was then reheard by Mr Acting Commissioner Oliver in August 1977. Mr Oliver’s decision was taken on appeal in Re Fisherman’s Island [1979] PNGLR 202, before Wilson J who, on 3 August 1979, ordered a rehearing of the claims.

That rehearing commenced in March 1982 before Chief Commissioner Lucas and later, on 26 March 1984, before Chief Commissioner Miriung. The rehearing occupied 20 days and resulted in a 28-page decision which was handed down on 18 April 1985. A copy of that decision has been handed to me but not the order made under it. The Chief Commissioner had before him claims by Madaha Resena, the present plaintiff, on behalf of four named clans of Tatana Village, Arthur Ageva on behalf of three named clans of Roku Village, Gadiki Sanai on behalf of a clan from Gorohu and Kido Villages, Jack Mase on behalf of a clan of Vabukori Village, one from a clan of Porebada Village and a claim from Ruga Ara of Fisherman’s Island on behalf of the Hula and Alukuni people. Another claim was lodged on behalf of the other clan from Vabukori Village and one lodged on behalf of people from Poroporena and Elevala Villages. A final claim was lodged on behalf of a named clan of Hisiu Village. In addition to these claims, the Government also asserted its title to the island.

The Chief Commissioner’s findings at the conclusion of his judgment are as follows:

(b) so occupied, cultivated and used by natives of Tatana Village as part of that village for gardening, semi-permanent camping for purposes of collecting shells and manufacture of shell produce such as necklaces, arm-shells and beads, for manufacture of clay pots, for launching Hiri trips and fishing and gathering, and was also used by the natives of Vabukori, Hanuabada, Porporena, Elevala, Porebada, Gorohu and Roku Villages as well as the Hula people for fishing in the reefs and waters of the island and for temporary camping for fishing purposes only.

(e) [Owned] by the natives of Tatana Village with the right to fish and temporarily camp on it for fishing purposes only vested in the natives of Vabukori, Hanuabada, Poroporena, Elevala, Porebada, Gorohu and Roku as well as in the Hula people."

Arthur Ageva of Roku Village appealed against that decision but his appeal was struck out by Amet J for lack of prosecution in Arthur Ageva v Bobby Gaigo [1986] PNGLR 160 and a further appeal by Ageva was dismissed by the Supreme Court in Arthur Ageva v Gaigo [1987] PNGLR 12.

Just prior to delivering these reasons, I discovered that an appeal by Jack Mase on behalf of the Darahasi clan of Vabukori Village (Appeal 211 of 1985) against that decision, is still outstanding. I have allowed for that in the orders I will make.

The plaintiffs allege four acts of Government trespass on the land. The acts are not in dispute and have been proved by the Government’s own documentary evidence.

The Annual Report for British New Guinea from 1 July 1889 to 3 June 1890 describes the acquisition of the island and the creation of a State plantation as follows:

"33. The Island of Tauko (sic) (Fisherman’s Island) has been taken possession of, on behalf of the Crown, as being waste and vacant land. It is situated 2 or 3 miles from Port Moresby, has not been used for planting purposes, and was not claimed by any natives although due inquiry was made on that point. A considerable area of it is considered suitable for the coconut tree. Some 1,500 nuts have been planted during the year and 3,000 or 4,000 more have been sprouted there to be planted out when the rainy season commences. So far, the undertaking promises to be successful. If these plantations thrive they will be of great use in the district. Intrinsically they will be valuable to the government, and they may suggest and encourage similar work among the natives. They could, however, not be induced to plant coconuts on such a place as this island without some such example: they would, under ordinary circumstances, speedily steal and eat every nut planted out."

In par 31, the Annual Report for 1890-91 reports that the planting of coconuts on the island has continued and that over 12,000 nuts have been planted on the island by Mr Gleeson using prison labour. The report also said that fortunately they found fresh water on the island by digging and that there is every reason to believe that it is provided with a permanent water supply. The Annual Report for 1891-92 (at p 87) reports that the resident magistrate for the Central Division and the Secretary for Native Affairs on Prisons reported that the prisoners were employed prospecting for water on Daugo Island. Eighteen shafts were dug but water was only found in four of them on the west end of the island, two of which have been timbered and have proved beneficial to the caretaker and others visiting Daugo. The Annual Report for 1892-93 quotes Mr Gleeson, the head gaoler and overseer of works, as saying that from 1 to 14 July prisoners were busy weeding coconuts on Tauko and Hydano Islands. Also in June 1893, the prisoners were, for a change, transferred back to Port Moresby and were taken over to Tauko Island to weed the coconuts and at the end of June were still engaged in weeding the coconuts. The Annual Report for 1890-91 (at p 70) reports that the prisoners were again employed on weeding the coconut plantation at Tauko. The 1897-98 report (at p 113) also reports that the prisoners were used to clean the coconut plantation at Tauko during the year. The Annual Report for 1898-99 reports:

"Early in July the villages of Boera and Borebada were visited, and an agreement entered into with the respective chiefs for the weeding of the coconut plantations at Tauko and Hydona."

The report for 1903-04 (at p 55) reports that the Tauko Coconut Plantation was partly cleaned of weeds by the prisoners. The report for 1904-05 reports that the Taugo Coconut Plantation was cleaned throughout, again by the prisoners. The Papua Annual Report for 1906-07 (at p 90) under the heading "Government Plantations" reports as follows:

"During the administratorship of Sir William MacGregor the following government coconut plantations were started (inter alia).

A similar entry was made in the Papua Annual Report for 1907-08 (at p 115). The 1910-11 Annual Report (at p 15) reports as follows:

About fifteen years ago the principle of creating Government plantations was established by Sir William MacGregor who planted areas with coconuts at Rigo and on Dauko (sic), Samarai, and Gesile Island."

Daugo is excluded from the Government plantations listed in the Annual Reports for 1911-12 to 1914-15, suggesting that it was abandoned by then. Ivan Champion, who first visited Daugo in 1913, when he was aged nine years, and regularly thereafter, said:

"The island was not used as a coconut plantation in my time although there may have been a few coconuts there."

In the Territory of Papua Government Gazette of 6 November 1907, the Acting Administrator, Hubert Murray, reserved permanently from lease for a State plantation "all that piece of Crown land known as the Island of Daugo or Fisherman’s Island". That reservation was made under s 32 of the Land Ordinance 1906 of Papua. It was revoked in 1957: PNG Government Gazette, p 191.

The Annual Report for Papua for the year ending 30 June 1919 (at p 86) contains a report by the Chief Medical Officer on a quarantine station established at Daugo or Fisherman’s Island. I quote the extract:

"During the year, on the outbreak of pneumonic influenza in Australia and reports of the epidemic in Samoa, New Zealand and elsewhere, it became urgently necessary for the Department to make such preparations as were possible for promptly dealing with cases coming from overseas, which required quarantine on arrival.

Dauko, a coral island, about six miles from Port Moresby, laying south and a little west of the harbour was our quarantine station, but the accommodation there for the reception of cases was very primitive. It was felt that the exigencies of the situation required something further. Accordingly, carpenters were sent over to Dauko with plans for the erection of houses for male and female cases, a central dining room, kitchens, store-rooms, wells, latrines, etc.

Building material was hurried over, and in a short time, everything was in order for the reception of cases and contact.

These arrangements were carried out under the supervision of Dr B C N O’Reilly, the Port Quarantine Officer.

Influenza will be referred to later on in this report, but I might state here, luckily, we have not yet — that is, up to the time of writing — been obliged to use Dauko in connection with this disease."

That extract suggests that the quarantine station was already in existence but was considerably extended in 1919. Ivan Champion, who lived in Port Moresby for 65 years, recollected in 1969 that he first visited Daugo in 1913, and that there was a quarantine station there at that time on the western side of the island. Champion said that there was a caretaker of the island, a man called Navo who used to live at the quarantine station. Champion believed him to be from the New Hebrides. His reason for saying that was that he was a small man, not of the same stature as the Fijian police whom Governor MacGregor brought to the Territory. Champion said that Navo had been in the employ of Governor MacGregor, possibly as a personal servant. Champion said Navo used to wear a cocked hat and had a monkey for a companion. The resident magistrate used to go across to Daugo and visit him with rations. He had a small tank and a well for water. Champion thought that the well was probably dug for him by the Government.

The next act of trespass on the land occurred in 1949 when, again according to Ivan Champion, the Hula people settled on the island. According to the leading plaintiff, Madaha Resena, the Hula people settled there in 1964. The Hula people gave evidence of their claim to Daugo and their occupation of it to the Land Titles Commission in 1977 and 1984 but that evidence has not been placed before me. The evidence which they gave in 1984 has been summarised in the decision of Chief Commissioner Miriung dated 18 April 1985 but his summary does not state when they first came to occupy the land. At a Land Titles Commission hearing in December 1965, Francis Daniel Smythe, a property officer with the Department of Civil Aviation, gave evidence that the Hula people were living on the land and that the Administration gave them a licence to occupy the area. However, the next witness at that hearing, Neville Logan, a Lands Officer of the Department of Lands who had been employed there since 1953, said that he did not know of any permission given to the Hula people to stay on the island. He said that they had squatted on the island. The evidence of the two men conflicts but in any case, as the plaintiffs have the onus of proof and as secondary evidence of a licence is of little weight, I prefer the evidence of Logan. A map produced to me as exhibit H, entitled "Proposed Section 84 declaration of Daugo (Fisherman’s) Island (Map No M/49/630 File Ref 68/3313), shows an area of 8.09 hectares on the eastern end of the island under a heading "Licence No 1070". A copy of that licence was not produced to me, nor was the Lands Department file reference 68/3313 which I have mentioned. Chief Commissioner Miriung’s decision of 18 April 1985 has annexed to it a small map of Fisherman’s Island and the eastern tip of the island is marked off with a line from shore to shore and in that portion these words appear, "Occ Lic No 199 — Hula Settlement". I take that as a reference to an Occupational Licence No 199 given to the Hula people. A copy of that licence has not been tendered to me. Section 84 of the Land Ordinance 1963 allowed the Administrator, by notice in the Gazette, to declare any Administration land to be native land. That section became s 79 of the Land Act (Ch No 185) when the revised laws came into operation on 1 January 1980. I consider that the reference to Licence No 1070 on the plan headed "Proposed s 84 declaration of Daugo (Fisherman’s) Island" is documentary evidence of an occupational licence having been granted to the Hula people prior to the coming into force of the revised laws on 1 January 1980. As the plaintiffs have the onus of proof, I am not willing to infer that the licence existed before 1979. I therefore find that the Government gave a licence to them to occupy 8.09 hectares on the eastern end of the island on, say, 1 January 1979. I can readily infer that that licence was granted by the Administrator, or an officer authorised by him, under s 74 of the Land Ordinance 1963, which section allows the Administrator to licence someone to enter upon Administration land. In other words, from 1 January 1979, the Hula people were living on 8.09 hectares at the eastern end of the island with the express approval and permission of the Government. Prior to that, as far as the Government was concerned, they were trespassers as per the evidence of Mr Logan, although, from their own point of view, they also claimed to be traditional owners.

The final act of trespass alleged by the plaintiffs of the State is the establishment of an airstrip on the island by the Department of Civil Aviation in April 1951. The airstrip was completed on that date and cost the Department between £40,000 and £45,000 approximately. The runway is 1,430 metres long and 85 metres wide and the total airstrip occupies an area of 134 hectares, and includes two residences, sheds for generators, a tractor shed, a tool shed and other related improvements. The department of Civil Aviation also erected a 150-ft-high beacon run by a small generator as a navigational aid. In February 1957, the Department of Civil Aviation decided that it would not man the station operationally and staff were withdrawn. The airstrip was kept and maintained as an emergency airstrip, and the radio beacon was an important navigational aid for Jackson’s airstrip. Staff were sent over every week or two to cut the grass and check on the equipment. In 1987, the beacon erected at Fisherman’s Island became redundant as a better one was installed at Jackson’s Airport above the Airways Motel. The two beacons were operated in parallel for a year or so and the beacon at Fisherman’s Island was decommissioned in August 1988. On 4 and 5 February 1989, the Department of Civil Aviation arranged for a barge and a large number of labourers to visit the island and all installations and buildings were dismantled and removed. Of course, the airstrip, which was built on coronous, still remains.

The claim for damages is brought under five headings of the common law as follows:

McGregor on Damages, 15th ed, (1988), ch 32, deals with torts affecting land. I quote from parts of that chapter.

"Where the defendant wrongfully deprives the plaintiff of his land, the plaintiff will generally wish to recover not the value of the land but the land itself. The principal action is therefore an action for the recovery of the land, historically better known as the action of ejectment. Damages will thus generally be limited to loss arising from the period of wrongful occupation by the defendant. Such damages are recoverable in the action for mesne profits, in origin an action of trespass."

"The normal measure of damages is the market value of the property occupied or used for the period of wrongful occupation or user. There is little authority, but this measure is consonant with general principles and with the name of the action for wrongful occupation as one for mesne profits. If the rental value varies due to market fluctuations during the period of wrongful occupation, these fluctuations should be taken into account. If the defendant makes improvements on the land, the rental value should be assessed upon the unimproved value."

Under this heading Mr Shepherd, for the plaintiffs, led evidence that the 376.5 hectares of the island were worth about K2.10 per hectare as agricultural land in 1889. He submitted that a reasonable economic rent for that, allowing for inflation and allowing for a modest revaluation of the land in 1919 when the quarantine station was erected, to reflect the additional improvements on the land and when the airstrip was constructed in 1954, is K49,169.

The plaintiff also claims a sum for the destruction and removal of the fixtures by the Department of Civil Aviation in February 1989. Mr Shepherd argues that, at common law, the owner of the land owns the fixtures and thus the plaintiffs became the owners of the fixtures following Commissioner Miriung’s decision in April 1985. He submitted that all of the improvements, when erected, were in the nature of permanent improvements and thus formed part of the freehold and thus passed to the plaintiffs. He claims the value of those improvements at K69,200.

The plaintiffs argued that, in addition to occupation fees for the period of wrongful occupation and use by the defendant, they are entitled to claim for the actual physical injury to their land and prima facie that is the diminished value of the land or the cost of reinstatement. In this case, the plaintiff is claiming K17,700 as the cost of reinstating the land to its former state. Evidence was led from Mr Tom Jones of Tatana, who is engaged in the road construction business, that the cost of removing the concrete slabs left by the Department of Civil Aviation buildings and the excavation and removal of piles of rocks which the Department of Civil Aviation left along the side of the airstrip intending to use them for repairs to the runway, was K17,700.

"In addition, claims for non-pecuniary loss would seem to be in order; to be dispossessed of one’s property, or to have its use interfered with, may well cause inconvenience, discomfort and distress. However, such claims will generally give rise to an entitlement to aggravated damages since they will stem from culpable and unattractive conduct of the defendant; such damages are dealt with next."

The plaintiffs have argued that to qualify for exemplary damages, the claim must fall within one of the three categories set out by Lord Devlin in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, discussed in McGregor, op cit, at pars 411-423. The two relevant categories here are cases in which there has been "oppressive, arbitrary or unconstitutional action by the servants of the government" and those where "the defendant’s conduct has been calculated by him to make a profit for himself which may exceed compensation payable to the plaintiff". The plaintiffs argue that their constitutional rights guaranteed to them in 1888, when British New Guinea was declared a British possession, were denied to them for 100 years, and that a fair measure of that denial is K2,000 x 100 years = K200,000. The plaintiffs have argued that the island was used for cultivation, fishing, manufacturing and housing before the Government purported to acquire it and that, apart from fishing, all activities have been denied to them and their ancestors for over 100 years.

The plaintiffs seek a further K5,000 as exemplary damages for the "reprehensible behaviour" of the Department of Civil Aviation in removing the improvements on the land following the Land Titles Commission’s decision in 1985. The plaintiffs say that if they had brought civil or criminal action for this wrong, the defendant might have been fined at least K5,000 or been ordered to pay the costs of restoration.

Under Sch 2 of the Constitution, custom is the prime source of the underlying law and the common law of England is a secondary source. Under Sch 2.1, custom is adopted and shall be applied and enforced as part of the underlying law and the Customs Recognition Act (Ch No 19) sets out when custom may be applied. Under Sch 2.2, the principles and rules of common law and equity in England cannot be applied or enforced if they are inconsistent with custom. Under s 5 of the Customs Recognition Act, custom may be taken into account in civil cases in a number of specified situations, one of which is set out in s 5(g):

or where the court thinks that by not taking the custom into account injustice will or may be done to a person."

The plaintiffs’ claim to the ownership of Fisherman’s Island was based on custom. The plaintiffs pursued that claim in the Land Titles Commission from 1964 to 1985 and eventually won a decision from that Commission that they were the customary owners of the land subject to minor rights vested in other groups. They now bring this claim in the National Court for damages or compensation for the Government’s wrongful trespass on this land since 1889 in common law. I find that switch from custom to common law very incongruous. Their claim to own the land was pursued in the Land Titles Commission because, under s 15 of the Land Titles Commission Ordinance 1962, the Commission had "exclusive jurisdiction" to determine whether any land is or is not Administration Land. But let me suppose s 15 of the Land Titles Commission Ordinance was not so worded and the plaintiffs were entitled to bring both claims — for title and for damages — in the National Court. The statement of claim would recite that they are the owners of Fisherman’s Island by native custom and that they claim damages at common law for the Government’s wrongful occupation and trespass on the land since 1889. I do not think that the plaintiffs can have it both ways, that they can choose the kind of law to give them the most advantageous claim. It seems to me that, logically, if their claim to the ownership of the island is based on custom, then their claim for compensation for the Government’s wrongful use of the island should also be based on custom. Applying s 5(g)(ii), and the final words of that section, of the Customs Recognition Act, I consider that this is a case or "a transaction" which "justice requires should be" regulated wholly by custom and not by the common law and I consider that determining this claim by the common law and not taking custom into account would produce injustice to the State. I therefore propose to ignore the common law submitted to me and decide this case in accordance with the Motuan custom of the Tatana people.

What is the relevant customary law on the wrongful trespass by the Government on customary land? No evidence of this has been led before me nor is it found in the written materials submitted to me. I have referred myself to an authority, "Notes on Native Land Custom, Port Moresby Region" by J C B Bramell, who was a Commissioner of the Native Land Commission and later of the Land Titles Commission. This document, consisting of 25 typed pages of notes under 14 headings plus appendices, seems a lucid and well-informed account of Motuan land customs and has been used extensively as an authority by the Land Titles Commission. Unfortunately, it does not have anything relevant on the question of trespass or wrongful occupation of another’s land. As no rule of customary law has been submitted to me which would be applicable and appropriate to this particular case, and as my own limited researches have been unable to apply one, I consider that I should apply Sch 2.3 of the Constitution and endeavour to develop the underlying law by formulating an appropriate rule, having regard to the matters set out in pars (1)(a) to (e) of that schedule.

I start with a working premise that the compensation awarded to the plaintiffs should be fair and reasonable to both parties.

The coconut plantation was started at an unknown date between 1 July 1889 and 30 June 1890. Let me say for convenience that it was started in late 1889. It is mentioned in the Annual Report for that year and in subsequent Annual Reports, which I have quoted above, until 1910-11. In the 1906-07 Annual Report, its area is reported to be 80 acres. Using the formula of 2.5 acres to the hectare, this is 32 hectares. Its non-mention in Annual Reports after 1911 suggests that it was abandoned and this is supported by Ivan Champion’s evidence. There is no evidence from the plaintiffs to the contrary. I find that it was abandoned in about 1912. It can be said for the plaintiffs that they were dispossessed of 32 hectares of land on Fisherman’s Island from late 1889 to 1912, a period of 22 years. On the other hand, it can be said for the State that this was not a normal commercial plantation from which the State made an income. There was no plantation manager appointed, there were no buildings, there was no fence, no employed plantation labourers. The plantation was planted by prisoners from Port Moresby and periodically weeded by them except for a period noted in the 1898-99 Report when an agreement was made with the villagers of Boera and Borebada to weed the plantation. Coconuts take seven years to mature and there is no further entry about the plantation on Daugo after the Annual Report for 1910-11. There is no oral evidence from any of the customary claimants that the plantation was managed like a normal commercial plantation with a manager and a labour line. There is evidence from the plaintiffs that they and their forefathers drank coconuts when they visited the island. I note, too, that Sir William MacGregor, who was Governor of British New Guinea from 1888 to 1898, was concerned to encourage the growing of coconuts by the native people to improve their standard of living and to arrest their declining birth rate. That is why he started this and other State plantations and why in 1894 he introduced the Native Board Regulations (Coconut Planting) (No 2 of 1894) which made it compulsory for some natives to plant coconuts. See R B Joyce, Sir William MacGregor (Melbourne, 1971), at 197, for general background on this. From all this evidence, I infer that when the coconuts were mature, the predecessors of the plaintiffs made use of them when visiting Daugo and that use continued throughout the life of the coconut palms. I therefore consider that the plaintiffs benefited from the planting of 32 hectares of coconuts on the island. I consider too that, if those coconuts had not been planted in 1889 and the early 1890s, the plaintiffs would not have used that land for any other economic purpose. They have given no evidence that they would have used the land and I think it unlikely, given its distance from Port Moresby, the lack of land shortage in the Port Moresby area at that time due to the small population, and the lack of water on the island. I therefore consider it reasonable and just that no compensation should be awarded to the plaintiffs for the Government’s establishment of the coconut plantation on the island.

Compensation is claimed for the Government’s occupation of part of the land for a quarantine station. Compensation is claimed for the establishment of this station in 1919 but I consider the station began before that. In the entry quoted from the Annual Report for Papua 1918-19, it stated that there was a quarantine station there, but that the accommodation was very primitive, and hence it was improved and extended by the erection of houses for male and female cases, a central dining room, kitchens, storerooms, wells, latrines, etc. Ivan Champion in his evidence states:

"The government had a Quarantine Station there as early as I can remember, about 1913, and before that time. The Government had put some goats on the island for the Quarantine Station. Around 1919 the Station was extended and new buildings were erected."

National witnesses refer to the quarantine station but are not so precise about dates. I infer that the quarantine station started about 1910 and was extended in 1919. There is no evidence that the quarantine station was ever used and I think it likely that it was later abandoned. Ivan Champion said that the caretaker of the island, a man named Navo, used to live in the quarantine station. He had been brought to New Guinea by Governor MacGregor, possibly as a personal servant. Champion believed that he was from the New Hebrides, being smaller in stature than the Fijian policeman whom MacGregor had brought to New Guinea. However, the national witnesses thought this man a Fijian. Champion and all the national witnesses refer to the fact that he had a monkey as a companion. Champion said that he spoke only broken English and that the resident magistrate used to visit him periodically and give him his rations. He had a small tank and a well for water. I am unable to ascertain from the evidence when the quarantine station was abandoned but believe the evidence supports the view that it was abandoned when Navo died. I consider it most unlikely that Navo would have lived beyond 1930 and I take that as the date when the quarantine station was abandoned. I therefore consider that the quarantine station existed on Daugo Island from 1910 to 1930. There is no evidence as to the area occupied by the quarantine station but I consider that it did not exceed one hectare. I therefore find that the quarantine station of one hectare was erected on the western end of Daugo and that it lasted from 1910 to 1930. That possession by the Government amounts to a trespass against the customary owners, who are represented by the plaintiffs, and compensation should be awarded for it.

I have recited the evidence from Ivan Champion that a group of Hula people settled on the eastern end of the island in 1949. They claimed to be the traditional owners and gave evidence to that effect before Chief Commissioner Miriung. That evidence has not been placed before me but is summarised in the decision of Chief Commissioner Miriung given on 18 April 1985. The Hula settlers considered that they were the traditional owners and therefore occupied part of the island as of right. However, the Government considered them as squatters or trespassers on its land for some years. I have recited the evidence of Neville Logan, a senior official in the Lands Department, given in 1965 that his department regarded them as squatters at that date. However, at some time they were given a licence to occupy the land and for reasons given above in connection with the map, exhibit H, I consider that licence was first given on about 1 January 1979. Thus, from the date the Government gave the Hula people official permission to occupy the eastern end of the island of 8.09 hectares, the plaintiffs are entitled to compensation for that portion of the island.

The Government completed its airstrip in April 1951 and used it as an airstrip until February 1989 when its buildings were removed and the airstrip abandoned. I consider that the plaintiffs are entitled to compensation for the Government’s use of this land, which, according to the area given in the two valuation reports, amounts to 134 hectares. I therefore consider they are entitled to compensation for 134 hectares for 38 years. Each report also refers to 69.3 hectares of underwater land "occupied by the Department of Civil Aviation for small craft anchorages and proposed jetty site". I do not see how the Department of Civil Aviation has occupied or possessed this land by occasionally mooring a boat there or because it proposed to erect a jetty there. I am pleased to see that the plaintiffs are not claiming compensation for that area.

Two key valuation reports were put before me, exhibit F prepared by the Acting Valuer-General, Mr Soloi, in 1986, and exhibit G(2) prepared by an experienced valuer, Mr Hosa, in November 1989. Both these valuers gave sworn evidence before me and were questioned on their valuations.

What was the land worth when acquired by the Government in 1889? Mr Hosa said that he had no comparable information available to him and therefore arbitrarily chose a value of ten toea per hectare as at 1884. His choice of 1884, instead of 1889, was a mistake. Much comparable information is, in fact, available in that numerous deeds of attestation are kept in the Lands Department and in the office of the Registrar of Titles and they show the value of trade goods paid for land around that period. However, Mr Hosa was ignorant of this source of information. Mr Shepherd, for the plaintiffs, has referred me to a note of a comparable sale recorded in the Annual Report on British New Guinea for the year 1886 at p 18. This Report is photocopied (badly) at p 61 of exhibit J. I have referred myself to a more legible copy. This is a report by Assistant Deputy Commissioner Musgrave on the first purchase of Government lands in British New Guinea dated 8 September 1885. In it he reports that George Hunter, Government Assistant, purchased not more than 8 acres for trade goods worth 18 pounds 2 shillings and 4 pence. This was land for the "proposed Government and commercial division of the settlement". The land is also referred to by Musgrave (at p 16 of that report):

"The first acquisitions on the part of the Protectorate officers were the sites of the Government bungalow, comprising about an acre, and a strip extending in a southerly direction from the Argus Villa for about 20 chains along the harbour, and about 4 chains in width. These plots were secured from the Motu and Koitapu people of the villages adjacent to the London Mission Station, in the same manner that the representatives of that Mission originally obtained sites for their buildings and gardens. This is by giving to the claimants of the ground desired certain articles in barter, such as hatchets, gaudy cloth, tobacco etc."

Note that 4 chains x 20 chains = 38,720 square yards, and 4,840 square yards = 1 acre, thus the area is 8 acres. It is part of the same land referred to in p 18 of that Report:

I make the obvious point that desolate, isolated Fisherman’s Island can hardly be compared in value to this prime town land.

A hectare is about 2.5 acres so Mr Shepherd has argued, from the evidence of this sale, that a hectare of land was worth about £5 (say K10) in 1886. But, as this was commercial land, he concedes that land for agricultural purposes, such as on Daugo, would be worth less. He says that the land on Daugo would be worth K2 per hectare in 1884, and in the absence of any better evidence from the State, I am willing to accept that. Mr Shepherd says that K2 per hectare in 1884, allowing for an inflationary factor of 5 per cent, is worth about K2.50 in 1889. Again allowing for a 5 per cent inflationary factor, as suggested by Mr Shepherd and which I regard as reasonable, in 1910 the land would be worth K4.60 per hectare.

Mr Hosa has suggested, in his valuation exhibit G(2), that the land should be reappraised every five years and Mr Shepherd has agreed with that in his written submission. I set out a table showing an unimproved value of K2 per hectare in 1884 allowing for inflation at the rate of 5 per cent per annum:

Date	ucv
1884	K2.00
1889	2.50
1894	3.00
1899	3.50
1904	4.00
1909	4.50
1910	4.60
Plus 10% interest change of user .	46
	K.5.06

Mr Shepherd has argued that a special increase of 10 per cent should be allowed in 1919 when he says the quarantine station was established to reflect the additional value of the land to the Government at that time. Hitherto it was considered as agricultural land and now it became more valuable to the Government. I accept that argument. I consider that the land was very poor agricultural land, being largely coronous and that may well be one of the reasons why the State plantation was abandoned. I can see, too, that it was particularly useful for the Government to have a piece of land available on an uninhabited island five or six miles off the coast of Port Moresby for use as a quarantine station. I do not agree with Mr Shepherd’s date. As stated above, I consider the quarantine station commenced in 1910 and I will allow the 10 per cent increase at that time. The value in 1910 was K4.60 per hectare and with the 10 per cent increases that comes to K5.06 per hectare. The unimproved values per hectare over the 20-year period 1910-30, allowing for 5 per cent inflation per annum, are as follows:

Date	ucv
1910	K5.06
1915	6.32
1920	7.59
1925	8.85
1930	10.12

Mr Shepherd has accepted the valuer’s view that an economic rent should be fixed at 4 per cent per annum of the unimproved capital value. This produces the following figures:

Date	ucv	Economic rent
1910	K 5.06	20 toea per ha
1915	6.32	25 toea
1920	7.59	30 toea
1925	8.85	35 toea

The economic rents due for the Government’s trespass on this one hectare for the period 1910-30 is as follows:

5 years at 20 toea	=	K1.00
5 years at 25 toea	=	1.25
5 years at 30 toea	=	1.50
5 years at 35 toea	=	1.75
	Total	K5.50

There is no evidence that the Government’s establishment of a quarantine station on the island prohibited the customary owners from visiting the island. On the contrary, all their evidence is to the effect that they continued to visit the island for their traditional activities and that is how they knew the caretaker, Navo, and knew about his monkey. If the quarantine station had been operational and if the traditional landowners had been chased off the island, then the Government’s physical occupation of one hectare would have amounted to a practical occupation of the whole island. But that was not the case.

Mr Shepherd has argued that the value of the land to the Administration increased in 1954 when it established the airstrip. He gives a figure of K7,540 for the 376.5 hectares which equals K20.02 per hectare. I accept that argument but consider that the airstrip commenced in 1951 and I am willing to give an unimproved value of K20 per hectare in 1951. The Valuer-General in his calculations in exhibit G(2) has suggested an economic rent of 9 per cent from 1954 for the land occupied by the Hula settlers and 12 per cent for land claimed as State owned. I agree with Mr Shepherd that this can conveniently be averaged out at 10 per cent and that that does represent a fair economic rent. In other words, as the land became more valuable to the Administration, an economic rent of 10 per cent of the unimproved capital value is a fair rent instead of 4 per cent.
I consider that the rent for the airstrip should now be not calculated on the total area of the island of 376.5 hectares as submitted by Mr Shepherd. He gets that area from the two valuation reports exhibit F and exhibit G(2) which state the various areas as follows:

134.00 ha —	dry land occupied by the Department of Civil Aviation including the airstrip
234.41 ha —	unused dry land
8.09 ha	occupied by Hula settlement
376.50 ha	Total

I consider that the correct area for compensation for the airstrip is 134 hectares only because the Government’s use of the land as an airstrip did not deny the plaintiffs access to, and use of, the rest of the island. The plaintiffs’ evidence is that they continued to use this island for their traditional purposes. I also point out that the airstrip was not operational, that very few planes ever landed there, that the airstrip was not fenced and that trespassers were not chased off. The only fenced area was that small area around the houses, power station and radio beacon. The Government’s construction of the airstrip did deprive the plaintiffs of the possession of that part of the island but not, in my view, of the possession and use of the other parts of the island. For example, there is no evidence that they proposed to build houses or plant coconuts on land adjoining the airstrip but were prohibited from doing so by Department of Civil Aviation officials. Indeed if, for example, they had decided to build a village on that part of Daugo not occupied by the Department of Civil Aviation, they could have done so. That is, they were not deprived of possession of that part of the island in the same way that the Department’s construction and occupation of the airstrip did not force the Hula people to abandon their settlement.

I consider that the plaintiffs should be paid an economic rent for the Government’s occupation of the airstrip of 134 hectares from 1951 to 1989 based on the unimproved value of K20 per hectare in 1951. As submitted by counsel for the plaintiff, the value should be reappraised every five years allowing for inflation of 5 per cent. This produces the following result:

Date	ucv (per ha)	Rent
		(10 per cent of ucv)
1951	K20	K2.00
1956	25	2.50
1961	30	3.00
1966	35	3.50
1971	40	4.00
1976	45	4.50
1981	50	5.00
1986	55	5.50
1989	58	5.80

Economic rentals
1951-56	5 yrs	x	134 ha	x	K2	=	K1,340
1957-61	5	x	134	x	2.5	=	1,675
1962-66	5	x	134	x	3	=	2,010
1967-71	5	x	134	x	3.5	=	2,345
1972-76	5	x	134	x	4	=	2,680
1977-81	5	x	134	x	4.5	=	3,015
1982-86	5	x	134	x	5	=	3,350
1987-89	3	x	134	x	5.5	=	2,210
						Total	K18,625

I apply the same figures to the Government’s trespass on the land by granting a licence and so allowing the Hula settlement to continue. I note that, under Chief Commissioner Miriung’s decision of April 1985, the Hula people were given the right to fish and temporarily camp on the land for fishing purposes only. I consider that their use of the land greatly exceeds that right and that the Government, in granting them an occupational licence to stay there in 1979, sanctioned their trespass on the land and compensation for this should be paid by the Government to the plaintiffs. I accept that the airstrip valuation per hectare should be applied to the Hula settlement. The airstrip valuation was K20 per hectare in 1951 and, allowing for annual inflation of 5 per cent, that comes to K48 per hectare in 1979, K53 in 1984 and K58 in 1989. I also accept that an economic rent of 10 per cent per annum is appropriate for the Hula settlement and this produces the following economic rents:

Hula settlement
1979-83	5 yrs	x	8.09 ha	x	K4.8	=	K194.16
1984-88	5 yrs	x	8.09 ha	x	K5.3	=	214.38
1989	1 yr	x	8.09 ha	x	K5.8	=	46.92
						Total	K455.46

Clearly the Hula people have been trespassing on part of this land since 1949 but their trespass is only compensable by the Government for the period which the Government officially allowed them to occupy the land. As stated above, this was approximately from 1 January 1979. From the trespass from 1949 until that date, the plaintiffs’ only remedy is in an action against the Hula settlers.

Quarantine station (1 ha)	1910-30	K5.50
Airstrip (134 ha)	1951-89	18,625.00
Hula Settlement (8.09 ha)	1979-89	455.46
Total		K19,085.96

In awarding this compensation, I have endeavoured to apply the customary law, but as no customary law was cited to me or discovered by me which was directly relevant, I have endeavoured to fashion a rule which is applicable and appropriate to the circumstances of the country in accordance with the matters set out in Sch 2.3 of the Constitution. In doing so, I have read the National Goals and Directive Principles and the Basic Social Obligations contained in the Constitution without gaining much assistance from them. I have also read Div III.3 dealing with "Basic Rights", in particular s 53 of the Constitution and again have not found it particularly relevant. Paragraph 1(c) of Sch 2.3 requires me to have a regard to "analogies to be drawn from relevant statutes and customs". I can think of two analogies from custom which may be relevant. The first is that I believe under Motuan custom, and under many other customs in Papua New Guinea, when a wrong has been committed against a group, it can be put right by compensation and it is usual for the payment of that compensation to be marked by a feast at which speeches are made and food and drink is consumed. The compensation is handed over in a ceremony and the feast helps reconcile the hitherto opposed parties. I would like to award a sum to the plaintiffs for this purpose but, as I have heard no argument on it, will not.

The second analogy I draw from custom is this. Mr Shepherd vigorously argued that the buildings on the land erected by the Department of Civil Aviation became the property of the plaintiffs following the Chief Commissioner’s decision in April 1985 and hence should not have been removed by the Department of Civil Aviation in February 1989. Mr Toro Aihi gave evidence of the value of those buildings in a letter to the Valuer-General dated 15 October 1986 which has been produced to me in a file exhibit DI as follows:

Groundsman’s hut	K10,000
Fence	2,000
Tractor shed	200
VOR including power supply	20,000
NDB including power supply	21,000
Power house	16,000
Total	K69,200

I consider that under the relevant Motuan custom, these buildings did not pass to the plaintiffs and that Mr Tom Jones’s evidence to the contrary was not convincing and is not to be believed. I remind myself that the airstrip and these ancillary buildings were not a blatant act of trespass by the Government. When the airstrip and these buildings were constructed, the Government honestly believed that it was the owner of the land. According to its records, it had taken possession of the land in 1889 and had treated it as its land ever since. Hence the establishment of the State plantation and of the quarantine station and the 1907 Gazette notice reserving it from sale or lease. Of course, the Chief Commissioner found in 1985, after 21 years of litigation, that the Government did not own the land, but, up until that time, I consider that the Government believed in good faith that it owned the land. I note, too, that in Arthur Agevu v The Government of Papua New Guinea [1977] PNGLR 99, a decision of O’Meally J on a case stated to the National Court from the Land Titles Commission about Fisherman’s Island the judge held that at the time Governor MacGregor took possession of the island for the Crown as waste and vacant, he had statutory power to do so. He also, through his officials, made inquiries to ascertain if the land was ownerless and details of those inquiries are recorded in exhibit J. At p 73 of exhibit J, there is a copy of a memo from Anthony Musgrave, the Government Secretary, to the Administrator dated May 1889 stating:

"From the enquiries I instituted through the Government’s interpreter, Mr F James, Peter Lifu whom I especially deputed to ascertain what he could from the natives of Hanuabada, and Charlie Belom of Tatana — there are no aboriginal claimants for any part of Fisherman’s Island. Their fathers and they themselves have always been in the habit of using it but the island does not belong to anyone in particular ..."

This appears to be the basis of MacGregor’s note in the Annual Report 1888-89, par 33, already quoted that:

"It is situated 2 or 3 miles from Port Moresby, has not been used for planting purposes and was not claimed by any natives, although due enquiry was made on that point."

I consider that the Government acted in good faith in taking possession of the island. I note, too, that the plaintiffs and their predecessors did not object at the time to the Government’s limited use of the land as a State plantation and as a quarantine station and, on the material before me, their first objection was raised when the airstrip was constructed in the early 1950s. I consider that the Department of Civil Aviation had the right to remove those buildings and that no compensation should be awarded for that removal.

Mr Shepherd claimed K2,000 per annum for 100 years, total K200,000, common law damages under the heading of "Exemplary Damages" under principles established by Lord Devlin in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129. He said they came under the category of suffering from the "oppressive, arbitrary or unconstitutional action by the servants of the government". I consider that no analogous rule of custom should be formulated to award similar damages under this heading. I consider that the Government acted in good faith in 1889 in taking possession of the island and in using it for the three different kinds of public purposes and until 1985 the Government had a good title to the land. So what it did on the land up until that date was not "arbitrary or unconstitutional". I consider that there should be no customary damages in this case equivalent to common law exemplary damages. As for denial of constitutional rights, this has not been pleaded or argued and I do not propose to consider it.

The plaintiffs are entitled to interest on the compensation I have awarded them under s 1 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52) which reads:

"Subject to s 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages, for the whole or part of the period between the date on which the cause of action arose and the date of the judgment."

Mr Shepherd claimed K206,509 interest on the occupation fees which he sought under the common law. He sought occupational fees from 1884 to 1989 totalling K49,169 and claimed interest on them at 4 per cent for 105 years. In support of that contention, Mr Shepherd cited the English case of Jefford v Gee [1970] EWCA Civ 8; [1970] 2 QB 130 at 151, thus:

Interest should be awarded from the date of the accident to the date of the trial at half the appropriate rate.

Interest should be awarded at the appropriate rate from the date of service of the writ to the date of trial."

In Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 at 174, the Supreme Court in a joint judgment approved that passage from Jefford v Gee. I quote:

"We cannot see any justification for denying an award of interest merely because there has been no demand for it prior to issue of the writ. The award of damages is compensation for the loss suffered. That loss was suffered at a particular date and was subsequently proved to have been the fault of the defendant. It is not a question of punishment. It is simply a matter of the plaintiff not being kept compensated at the proper time. If that is so, it seems to us perfectly just that he should not only receive that money but receive the monetary equivalent of the value which that money would have earned had he been given it at the proper time. We believe the principles enunciated in Jefford v Gee (supra) are consistent with both commonsense and justice."

The court went on to say that there were special factors in Pinzger’s case whereby interest should not run from the date of the accident but from the date that the writ was issued.

I cannot see the relevance of those quotations. Each case was concerned with damages for personal injuries following a motor vehicle accident. The court in Jefford v Gee said that in the case of special damages (including loss of wages), interest should be awarded from the date of the accident to the date of the trial at half the appropriate rates. Special damages include medical bills, hospital expenses and loss of wages. The medical expenses and hospital expenses are monies paid out by the plaintiff before he receives his damages. Loss of wages is money that he would have received had he not been injured and put off work.

Although this cause of action only arose in April 1985 when the Chief Commissioner declared the plaintiffs to be the owners of the land, I propose to be generous in the award of interest because the earliest recorded complaint about the airstrip was made in 1957 to Mr Bosguard of the Lands Department. I also think it likely that the motivation for the Land Titles Commission claim lodged in 1964 was to get compensation for the airstrip. If the Land Titles Commission Ordinance had not existed, which required customary claimants to Administration land to bring their claim before it because it was given "exclusive jurisdiction" to decide the claim, it is possible that the claimants might have commenced their action in 1964 in the predecessor of this Court and claimed both title to the land and compensation for trespass. I can therefore treat their 1964 Land Titles Commission application as, in a sense, also a claim for damages. I agree with Mr Shepherd that interest should run for the whole period at half the appropriate rate. The normal interest rate awarded by the court on debts and damages is 8 per cent. If the plaintiffs had been paid the economic occupation fee in 1951, they could have invested that sum and earned interest on it for 38 years. On the other hand, if the penultimate payment had been paid in 1988, the claimants would have only earned interest on that sum for one year. To avoid having to calculate 38 interest sums all for different periods, the courts have arrived at the same result by allowing interest for the whole period at half the given rate. I therefore propose to allow interest on K18,625 compensation for the airstrip at 4 per cent per annum for 38 years = K28,310.

I propose to allow interest on the compensation awarded for the Hula settlement on the land on the same basis. That is K455.46 x 10 years x 4 per cent per annum equals K182.18.

If the economic rents totalling K5.50 had been paid to the predecessors of the plaintiffs by 1930 when the Government’s occupation of the quarantine station ceased, the plaintiffs could have earned interest on that sum at, say, 8 per cent. I therefore propose to allow them interest as follows: K5.50 x 59 years x 8 per cent per annum = K25.96.

Airstrip	K18,625.00
Hula settlement	455.46
Quarantine station	5.50
Interest	28,518.14
Total	K47,604.10

3. The money is not be be paid out until the resolution of appeal No 211 of 1985 lodged by Jack Mase.

Lawyers for the plaintiffs: Joseph K Pakau & Associates.
Lawyer for the defendants: Leo Au, Acting State Solicitor.

National Court of Papua New Guinea

Resena v State [1990] PGNC 127; [1990] PNGLR 22; N793 (9 January 1990)