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Resena, Gaigo and Oala v The State [1991] PNGLR 174 (28 June 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 174 - Resena, Gaigo and Oala v The State 

[1991] PNGLR 174

SC409

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

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

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Kapi DCJ Amet Los JJ

31 October 1990

28 June 1991

CONSTITUTIONAL LAW - Underlying law - Formulation of - Pre-requisites to - Evidential inquiry into custom - Determination of consistency with particular matter - Constitution, Schs 2.1, 2.2(1), 2.3.

REAL PROPERTY - Compensation claim - Claim to native title established - Compensation for wrongful occupation - Whether claim to be based on common law or custom - Discussions of - Constitution, Schs 2.1, 2.2(1).

CONSTITUTIONAL LAW - Underlying law - Common law - Custom - Whether dual system - Whether custom superior to common law - Discussion of - Constitution, Schs 2.1, 2.2(1).

Under the Land Titles Commission Act 1963, the Land Titles Commission had jurisdiction to determine the ownership of land by native custom. The Commission determined that Fisherman’s Island was not waste and vacant land but was occupied, cultivated, used and owned by the natives of Tatana Village.

In subsequent proceedings for damages for wrongful occupation of the Island for 100 years, the villagers claimed, under five headings of common law damages, namely, occupation fees, removal of fixtures, damages for re-instatement, consequential loss and exemplary damages, together with statutory interest.

The trial judge determined that because the claim to ownership of Fisherman’s Island was based on custom, the claims for compensation were relevantly matters which should be regulated wholly by custom and not by the common law pursuant to s 5(g) of the Customs Recognition Act (Ch No 9); he then formulated and applied rules pursuant to Sch 2.3 of the Constitution.

On appeal,

Held

(1)      The pre-requisites to formulation of an appropriate rule of law as part of the underlying law under Sch 2.3 of the Constitution are:

(a)      an inquiry into and proof by evidence of the existence of and application of any relevant principle of customary law; and

(b)      whether the particular matter is inconsistent with the principles of customary law as found in accordance with Sch 2.2(1) of the Constitution.

(2)      The matter should be remitted for rehearing before another judge of the National Court to determine whether there is any relevant custom by which damages might be assessed.

(Per Kapi Dep CJ; Los J reserving his opinion) There is a dual system of law applicable to the indigenous inhabitants of Papua New Guinea as to which, where both are applicable, indigenous litigants have a right of election, namely, custom as applied under Sch 2.1 of the Constitution and common law applied under Sch 2.2 of the Constitution.

(Per Amet J; Los J reserving his opinion) The adoption, application and enforcement of appropriate custom under Sch 2.1 of the Constitution is superior to any principle of common law or equity.

(Per Los J) Until such time as the Supreme Court decides otherwise, in cases where there is no relevant statutory law, parties have a right to choose whether to apply common law or custom.

Decision of Bredmeyer J in Madaha Resena v Independent State of Papua New Guinea [1990] PNGLR 22, reversed in part.

Cases Cited

Arthur Agevu v Government of Papua New Guinea [1977] PNGLR 99.

Aundak Kupil and Kauke Kensi v Independent State of Papua New Guinea [1983] PNGLR 350.

Fisherman’s Island, Re [1979] PNGLR 202.

Iambakey Okuk v Fallscheer [1980] PNGLR 274.

Madaha Resena v Independent State of Papua New Guinea [1990] PNGLR 22.

Mwaura s/o Kamau v Gatoto s/o Mwangi (1962) EA 528.

Nyokabu v Public Trustee (1965) EA 530.

Sannga, Deceased, Re [1983] PNGLR 142.

State, The v Paul Pokalo [1983] No N 404.

SCR No 4 of 1980; Re Constitution and Somare [1981] PNGLR 265.

Ume More v University of Papua New Guinea [1985] PNGLR 401.

Appeal

This was an appeal from a decision in Bredmeyer J, namely, Madaha Resena v Independent State of Papua New Guinea [1990] PNGLR 22, in which he determined a claim to compensation for wrongful occupation of native lands.

Counsel

I Shephard, for the appellants.

I Mesulam, for the respondent.

28 June 1991

KAPI DCJ: This is an appeal from a decision of the National Court.

The appellants/plaintiffs are the customary owners of the island known as “Fisherman’s Island”. In a writ of summons they sued the State of Papua New Guinea for damages under five heads of claim under the principles of common law — occupational fees, damages for destruction and removal of fixtures, damages for reinstatement of land to original condition, consequential loss and exemplary damages.

In brief, the trial judge concluded that the appellants made the wrong choice of remedy in basing their cause of action in common law. He concluded that the cause of action should be brought in accordance with the principles of custom. The trial judge reached this conclusion on the basis that the claim to the ownership of “Fisherman’s Island” was based on customary law: see Madaha Resena v Independent State of Papua New Guinea [1990] PNGLR 22.

Based on this conclusion, the trial judge proceeded to examine the custom. He concluded that there was no evidence of any custom. Having reached the conclusion that the principles of common law were the wrong choice and that there was no evidence of custom, he proceeded to create a new principle of underlying law under Sch 2.3 of the Constitution. The trial judge then proceeded to create the new underlying law in relation to the cause of action and principles relating to the assessment of damages. He assessed the damages in favour of the appellants for K47,604.10.

The appellants have appealed against the whole of the decision.

OWNERSHIP OF “FISHERMAN’S ISLAND”

The appellants’ cause of action is based on their claim of ownership of “Fisherman’s Island”. There has been a long-standing dispute as to the ownership of the island. It is helpful to outline the litigation regarding the ownership of the island.

Formal claims for the ownership of the island were commenced in 1964. Several clans made claims to the customary ownership of the island. On 13 December 1965, the Land Titles Commission made a ruling that none of the customary claimants owned the land. There was an appeal to the pre-Independence Supreme Court against this decision. On 6 October 1969, by consent of the parties, the decision was quashed and the matter was sent back to the Land Titles Commission for rehearing.

The matter came before the Land Titles Commission again and, on 16 December 1974, the Chief Commissioner of the Land Titles Commission stated a case to the pre-Independence Supreme Court on the following questions:

1.       Was any prerogative, or other authority, vested in the Administration of British New Guinea prior to June 1890 “to take possession of, on behalf of the Crown, as being waste and vacant”, land within the Possession?

2.       If such authority existed and was exercised has the Land Titles Commission jurisdiction to hear and determine claims under s 15 of the Land Titles Commission Act in respect of such land?

These two questions were answered by O’Meally A-J and are reported in Arthur Agevu v Government of Papua New Guinea [1977] PNGLR 99. He answered these questions as follows (at 106):

“1.      Yes.

2.       No. However, the Commission has jurisdiction to ascertain whether land is waste and vacant where also there is a question of native ownership or the right by native custom to use it.”

His Honour (at 101) said:

“It is important to note at the outset that in the form in which these questions are presented they do not relate specifically to any matter in issue between the parties. The answers will relate to capacity; they will be of general application and will not in any way affect the rights of parties inter se. No matter of fact is decided by me and subject to any appeal from the Land Titles Commission the ownership of and interests in the land the subject of the dispute are decided by it.”

The Land Titles Commission then proceeded to hear the claims of the various parties and decided that “Fisherman’s Island” is government land and not native land. This decision was appealed to the National Court and the decision of the Land Titles Commission was quashed and the matter was sent back to the Commission for rehearing: see Re Fisherman’s Island [1979] PNGLR 202. This matter then came before the Chief Commissioner, Mr Theodore Miriung. The Chief Commissioner handed down his decision on 18 April 1985. Following on from the decision of O’Meally A-J to the effect that the Administration of British New Guinea prior to June 1890 had authority to take possession of and on behalf of the Crown, land which is waste and vacant, the Chief Commissioner considered the question of whether the Administration of British New Guinea made sufficient inquiries on the question of whether the island was waste and vacant. He concluded:

“I found that the enquiry as to native claim of the island instituted by the government secretary was, to say the least, insufficient to be the basis of a decision by the BNG Administration that the island was waste and vacant. There is no evidence that the nature and extent of the native use of the island were identified and that the natives or native or customary groups who had the right to such use were identified. It seems to me that this constituted the defect for basic error which made the decision to take possession of Fisherman’s Island on behalf of the Crown as waste and vacant defective and erroneous.”

The State has not appealed against this decision. The effect of the Chief Commissioner’s decision is that the acquisition by the Administration of British New Guinea in 1890 was invalid and of no effect. The effect of the Chief Commissioner’s decision is that Fisherman’s Island is customary land and it is 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, Poreporena, Elavala, Porebada, Gorohu and Roku as well as in the Hula people. I now consider the merits of the appeal.

CHOICE OF REMEDY

The trial judge dealt with the question of choice of remedy in the following passage (at 31-32):

“The plaintiff’s claim to the ownership of Fisherman’s Island was based on custom. The plaintiffs pursued the 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 Act 1963, 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 Act 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 ‘Fishermans 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, logically, that 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 for ‘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 as submitted to me and decide this case in accordance with the Motuan custom of the Tatana people.”

I have reached the conclusion that the trial judge fell into error on the question of choice of cause of action by the plaintiff. First, the trial judge reached his conclusion on the choice of cause of action on a false premise when he stated in his judgment (at 31):

“But let me suppose s 15 of the Land Titles Commission Act 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.”

The trial judge then proceeded from this premise and concluded (at 31):

“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.”

The trial judge proceeded on an erroneous premise in that the Land Titles Commission Act 1963 does not give the plaintiffs the right to bring claims for both titles and damages in the National Court. As to the question of “claims to ownership by native custom of, or the right by native custom to use, any land ...”, the Chief Commissioner decided that the natives of Tatana Village owned Fisherman’s Island with the right to fish and temporarily camp on the land for fishing purposes only vested in the natives of Vabukori, Hanuabada, Poreporena, Elavala, Porebada, Gorohu and Roku, as well as the Hula people. The Land Titles Commission has “exclusive jurisdiction” to determine ownership under s 15(1) of the Land Titles Commission Act. The question of ownership in custom is settled and there is no consequential relief sought by the plaintiffs against the people from the other villages referred to above.

As far as dispute as to “whether any land is or is not native land” is concerned, the Land Titles Commission has “exclusive jurisdiction” under s 15(1) of the Land Titles Commission Act.

The National Court has no original jurisdiction at all in any of the category of cases I have just dealt with. The only way such matters can come before the National Court is by way of a reference on a question of law under Pt V, Div I, of the Land Titles Commission Act and by way of appeal under Pt V, Div III, of the Act. It follows from this that the trial judge proceeded on a wrong principle of law.

It could also be implied from the premise on which the trial judge proceeded, that the plaintiffs could, as a matter of choice, claim for title under common law in the National Court. According to the reasoning of the trial judge, had the plaintiffs commenced action for title in common law, then action for damages in common law would be alright. Such a course of action would be inconsistent with s 15 of the Land Titles Commission Act and would not be successful. The implied premise upon which the trial judge proceeded was wrong in law.

The law provides that all “disputes concerning and claims to ownership by native custom ...” are to be exclusively determined by the Land Titles Commission. The plaintiffs had no choice in the matter. To suggest that because the plaintiff is bound to proceed under this law and therefore they must pursue any other consequential relief under custom, is a conclusion which deprives the choice of remedy to which they are entitled under Sch 2.1 and Sch 2.2 of the Constitution. I reject the suggestion that the Parliament intended through the provisions of the Land Titles Commission Act that when a person claims ownership of land by custom under s 15 of the Act, that at that point he is exercising a choice as to any remedies which he may wish to claim in the future which are based on that claim of title by custom. I fail to see any such intention either expressly or impliedly under the Act. The Act deals only with the question of “claim to ownership by native custom to land” and does not deal with any consequential relief arising out of that ownership. The only other consequential matter it deals with as far as this case is concerned is compensation for deprivation of interests under Pt VII of the Act. However, this is confined to persons other than parties to the proceedings. Any consequential relief arising from a successful claim of ownership based on custom is left to other laws set out under Sch 2 of the Constitution. That is where the issue of choice of remedy is relevant and this is where the litigant exercises his option. I will come back to this matter later on in my judgment.

As far as the action commenced in the National Court for damages at common law is concerned, that flows from the decision made by the Chief Commissioner arising out of a dispute as to “whether any land is or is not native land”. The nature of dispute with the Independent State of Papua New Guinea by the plaintiffs is different from the dispute they had with other parties from the other villages. Essentially the dispute with the State was whether the acquisition of the “Fisherman’s Island” by the Crown in 1890 was valid. If it was, then it would not be native land. The Chief Commissioner found that the Administration of British New Guinea in 1890 did not make sufficient inquiries as to whether Fisherman’s Island was waste and vacant land. In this regard, the claim against the State has nothing to do with custom and therefore it cannot be concluded that the claim against the State was determined in accordance with custom.

Now I turn to the question of the choice of remedy. The cause of action in this case is said to arise from the body of law known as underlying law: see Sch 2 of the Constitution. Primarily there are two sources of the underlying law. They are:

of the Constitution.

The extent to which each of these sources of law are adopted, applied and enforced as part of the underlying law in individual cases must be filtered through the considerations set out in Sch 2 of the Constitution. In respect of the application of custom under Sch 2.1(2) a custom is not applicable to the extent that it is inconsistent with a constitutional law or a statute or repugnant to the general principles of humanity. In respect of the application of the common law under Sch 2.2(1) the common law is not applicable if it is inconsistent with a constitutional law or any statute or if it is inapplicable or inappropriate to the circumstances of the country from time to time or, in its application to a particular matter is inconsistent with custom as adopted under Sch 2.1 of the Constitution. I will return to these considerations later on in my judgment. These two sources of law can be adopted and applied as part of the underlying law. In this sense they exist side by side and make up the body of law known as the underlying law (Aundak Kupil and Kauke Kensi v Independent State of Papua New Guinea [1983] PNGLR 350 at 360).

The operation of the dual system in this way is also expressly allowed in specific areas of the law. The Marriage Act (Ch No 280) allows registered marriages and recognises customary marriages (see s 3). Custody of children may be determined under the Infants Act (Ch No 278) or under custom (see the Village Courts Act (Ch No 44)). For certain kinds of property not restricted by custom, automatic citizens have a choice as to whether they should bequeath or dispose of that property in accordance with custom or under the Wills, Probate and Administration Act (Ch No 291): see Re Sannga Deceased [1983] PNGLR 142. There is no provision in these laws which may compel an indigenous inhabitant to choose one or the other.

As far as the “indigenous inhabitants of the country” are concerned, they have their rights regulated by customary law as well as the common law. This is where the choice of remedy by the indigenous inhabitants becomes relevant. For the “non-indigenous inhabitants”, customary law may not have any relevance at all.

When the indigenous inhabitants of the country, such as the plaintiffs in this case, are considering their rights and the subject matter is regulated both by customary law as well as the common law, there is a choice of remedy. There is nothing under Sch 2 of the Constitution which would compel a litigant who is an indigenous inhabitant to litigate under the principles of custom. It is obvious that the Constitution has not made this choice for the indigenous inhabitants of this country.

In an action for injuries caused in a motor vehicle accident, an indigenous inhabitant of this country could make a claim under the principles of custom or of common law. Both sources of law are applicable to him under Sch 2.1 and Sch 2.2 of the Constitution. The choice of remedy in such an action is illustrated by the case of Aundak Kupil and Kauke Kensi v Independent State of Papua New Guinea. The two plaintiffs in this case were injured in a motor vehicle accident. The plaintiffs in that case chose to sue the State for damages under the principles of common law. However, the trial judge in the course of the trial considered the question of damages that might be claimed in accordance with the principles of the custom of the two plaintiffs. At 359 of the judgment, the trial judge stated:

“In this case, the plaintiff is not seeking from the court the application and enforcement of Waghi custom under Sch 2.1 of the Constitution. He is not suing for the unpaid customary compensation of K7,600 and six pigs. He has chosen, instead, to sue under the principles of common law, under Sch 2.2 ...”

A similar situation exists in Kenya, East Africa. In Mwaura s/o Kamau v Gatoto s/o Mwangi [1962] EA 528, the plaintiff was a Kikuyu father who sued in the Supreme Court under the Fatal Accidents Ordinance for damages in respect of the death of his son. He also sued in the local African Court and was awarded customary compensation of 106 sheep and 10 fat rams, before the matter came to trial in the Supreme Court. The court was concerned with whether the proceedings in the African Court were in respect of the same subject matter and so created an estoppel per rem judicatam. The A-CJ in dealing with this issue said (at 530-531):

“There is nothing in the Fatal Accidents Ordinance to prevent proceedings being taken in accordance with African law and customs but I think it is clear from the evidence of the expert witnesses that payment of compensation under the customary law has the effect under that law of a complete settlement so that no other claim remains and this is so whether the proceedings are brought against the actual killer or against his father and whether the killing is tortious or not. In fact it can be said that under African (Kikuyu) customary law the acceptance and payment of compensation is subject to a condition that all further claims of compensation in respect of the death, against the killer and his family or clan, are wiped out. I think that when such a claim is litigated to the point of judgment then, so long as the judgment stands, any further such claim is barred under African law and custom. To allow dependants to pursue a concurrent claim under the Fatal Accidents Ordinance would be to allow them to approbate and, at the same time, reprobate the customary law. For these reasons I hold that under African law and custom the present claim is barred by the judgment of the African court, in the same way as I am sure an action for damages for personal injury under the common law would be barred by the recovery of compensation for personal injury not causing death under African law and custom.”

The A-CJ went on to say:

“Where the parties are subject to customary law either form of action is available, but if the customary law is invoked those proceedings would finalise the matter.” (Emphasis added.)

In another Kenyan case, Nyokabu v Public Trustee (1965) EA 530, the plaintiff was a Kikuyu widow suing for herself and her minor children in respect of her husband, killed in a car accident. She sued for damages under the Fatal Accidents Act (Chap 9)(K). No claim was made under custom. The court said:

“The Act gives a right to damages assessed in accordance with the injury resulting from the death. This right applies to African as well as to people of other races. The existence of an alternative right under tribal customary law cannot affect the right given by the Act beyond the fact that the law forbids the injured parties from getting relief under the customary law and also relief under the Act. The customary right can be waived and I think the institution of this suit for relief under the Act is a waiver. No claim has been made for customary relief in this case. The deceased’s dependants are entitled to elect as between the two forms of relief which were open to them and they have elected for relief under and in accordance with the Act. This is a proper and valid election.” (Emphasis added.)

Whether the plaintiffs in this case choose to seek their remedy in custom or in common law is their privilege. Once the plaintiff has made his choice as to the remedy (in this case it was the cause of action at common law), the question then becomes whether the plaintiffs, whose claim to ownership of Fisherman’s Island is based on custom, are capable of claiming remedies that are available in common law. That, in essence, is the question of the application of common law to a claim by an indigenous inhabitant of this country whose claim to ownership of the land is based in custom. The trial judge concluded that, as the plaintiffs in this case proceeded to deal with their claim to ownership of Fisherman’s Island based on customary law, they had no choice but to pursue any other consequential claim under the principles of custom. I have already ruled that his Honour fell into error in this regard.

I have no doubt that the principles of common law regulating damages to trespass and wrongful occupation of land are applicable to persons who own land in accordance with custom. These principles are clearly applicable to all persons under the terms of Sch 2.2 of the Constitution.

As the plaintiffs made the choice to pursue their claim under the principles of the common law, the trial judge was bound to consider the matters set out under Sch 2.2(1)(a)-(c) of the Constitution. In my view, the trial judge fell into error when he ignored this provision.

The first matter to be considered under Sch 2.2 is whether these principles are inconsistent with a constitutional law or a statute: Sch 2.2(1)(a). It has not been argued in this case that there is any constitutional law or statute which is inconsistent with these principles.

The next question is whether these principles are inapplicable or inappropriate to the circumstances of the country at this time: Sch 2.2(1)(b). As to this consideration I adopt what I said in Iambakey Okuk v Fallscheer [1980] PNGLR 274 at 285, 286. No submissions have been made in this regard to show why these principles may be inapplicable or inappropriate.

The next question arises under Sch 2.2(1)(c) and that is, whether the principles of common law are inconsistent with custom. In this regard, courts need not resort to the preamble to the Constitution or the National Goals and Directive Principles and the Basic Social Obligations. The courts are directed to have regard to this under Sch 2.3 of the Constitution. Under Sch 1.3, the preamble expresses general principles and is subject to other provisions of the Constitution. Under Sch 2.2, the constitutional framers have expressed their intention in the matter and that is that the application of common law, insofar as it is inconsistent with any custom that may be applicable under Sch 2.1, cannot be adopted and enforced as part of the underlying law. The trial judge correctly stated the law when he said (at 31):

“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.”

This accords with the view I have already expressed in the case of SCR No 4 of 1980; Re Constitution and Somare [1981] PNGLR 265.

This means that where a common law action is instituted as a matter of choice, if a custom which is applicable to any of the parties in the action is shown to be inconsistent with the common law action, the common law principle in the particular case cannot be enforced. It is the duty of counsel to ensure that this inquiry is made before principles of common law can be adopted and enforced as part of the underlying law. Ultimately it is the duty of the court to make this inquiry as was done in the case of Aundak Kupil and Kauke Kensi v Independent State of Papua New Guinea.

Now in this case, while the trial judge posed the right question, he did not give any opportunity to any of the parties to assist him on the inquiry as to the existence of any principle of customary law. In my view, this is significant in this case as the claim was based and argued before the trial judge on the principles of common law and they gave no consideration at all to calling any witnesses to give evidence of custom. In my view, had the parties been given the opportunity to do so, they would have led evidence relating to custom. The relevant custom in question is that of the Motuan people and there would be no difficulty in calling appropriate witnesses from villages around Port Moresby. No opportunity was given to any of the parties to call this evidence. This is not only contrary to principles of natural justice (ss 59, 60 of the Constitution) but a real and a meaningful effort must be made by the courts to call for proof of evidence of custom. I agree with Los J that the trial judge proceeded prematurely to consider formulation of a law under Sch 2.3 of the Constitution. On the hearing of the appeal before us, no attempt was made by either party to lead new evidence relating to custom under s 8 of the Supreme Court Act (Ch No 37). It is impossible for this Court to come to any view on the question of whether these heads of claim under common law are inconsistent with the principles of the Motuan custom. As the matter stands, the inquiry by the court is incomplete. In my view, therefore, this matter cannot finally be disposed of on this appeal. It is necessary to make the inquiry under Sch 2.2(1)(c) of the Constitution. That is the only way custom can have any influence on the development of our indigenous jurisprudence: see s 21(1) of the Constitution.

When this inquiry is made one of two things could happen. If it is found that the common law action is not inconsistent with the Motuan custom, the action would be maintained and the action would be governed by the principles of common law as at Independence or as the court may develop them under Sch 2.4 of the Constitution. If, on the other hand, the common law action is found to be inconsistent with the Motuan custom, the common law action in the case would not be maintained and would result in the dismissal of the action. In my view, that is the practical effect of Sch 2.2(1)(c) of the Constitution.

The question then arises whether a cause of action in custom may be brought against the defendant in this case. As a matter of law and of good practice, a new cause of action based on custom should be separately instituted. The reason is that the parties should be allowed to plead issues of custom clearly and precisely. This will enable counsel to make proper enquiry into the custom and enable the court to reach an informed decision on these issues. An issue which might arise in the pleadings is whether the Motuan custom which is applicable to the plaintiffs may extend to the defendant, The Independent State of Papua New Guinea. The inquiry is necessitated by the very nature and definition of custom under the Constitution. Custom is applicable only to “the indigenous inhabitants of the country”. The Independent State of Papua New Guinea is not “an indigenous inhabitants of the country”. From this it can be concluded that the Motuan custom cannot extend to the defendant in this case. However, that is not the end of the inquiry. Custom is not static. It develops and may develop to extend to parties who may be considered outside the term “the indigenous inhabitants of the country”. Custom is capable of developing to extend to parties outside a particular customary area and it is also capable of developing to extend to modern properties or institutions: see Re Sannga, Deceased. That is a question of fact to be proven by the parties and a matter of development of the law by the court under Sch 2.4 of the Constitution.

For the reasons I have outlined above, I have reached the conclusion that the trial judge fell into error on the choice of remedy question as between the principles of common law and custom and he failed to consider the applicability of the principles of common law in accordance with the considerations set out under Sch 2.2(1) of the Constitution. I have reached the conclusion that it was open to the plaintiff to choose the remedy at common law and therefore this should be the basis of this claim. However, as the applicability of the principles of common law under Sch 2.2(1)(c) are subject to any principle of custom, it is necessary to inquire into any principle of custom which may be inconsistent with those principles. As no such evidence has been led before us at the hearing, it is necessary to send this matter back before another judge of the National Court to make this inquiry and, if necessary, subsequently to assess the damages. I would allow the appeal, quash the decision of the trial judge and send the matter back to the National Court to consider the applicability of this common law claim with any relevant principles of customary law.

AMET J: The appellants are the traditional owners of Fisherman’s Island. They obtained a ruling in their favour from Chief Commissioner Miriung of the Lands Title Commission on 18 April 1985, after many years of protracted litigation against the State and other competing traditional claimants. The history of the litigation is not necessary for the purposes of this appeal. It is sufficient to simply restate Chief Commissioner Miriung’s reasons for his ruling in the appellants’ favour. After hearing much oral historical evidence of customary rights and usage, he concluded that immediately prior to 18 June 1890, Fisherman’s Island was:

“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 shells produce such as necklaces, armshells and beads, for manufacture of claypots for launching Hiri trips and fishing and gathering, and was also used by the natives of Vabukori, Hanuabada, Poreporena, 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.

Not waste and vacant; and

Owned by the natives of Tatana village with the right to fish and temporarily to camp on it for fishing purposes only vested in the natives of Vabukori, Hanuabada, Poreporena, Porebada, Elevala, Gorohu and Roku as well as in the Hula people.”

The appellants’ claim to the ownership of Fisherman’s Island was based on custom. They pursued that claim in the Land Titles Commission from 1964 to 1985 and eventually won a decision that they were the customary owners of the island subject to the minor rights vested in other groups, and that the then Administration of British New Guinea had wrongly taken possession of the island on behalf of the Crown as waste and vacant.

The appellants then made a claim in the National Court for damages or compensation for the government’s wrongful occupation and trespass on the island for nearly one hundred years from 1889. The claim was made under five common law heads of damages, totalling K341,000.69, plus interest of K206,509.00.

The appellants alleged four acts of the government’s trespass on the land. The acts were not in dispute and had been proved by the government’s own documentary evidence. They were:

(1)      a government coconut Plantation.

(2)      a government quarantine station.

(3)      the Hula settlement.

(4)      the government airstrip.

The five heads of common law under which the claim for damages was made were:

(1)      Occupation fees.

(2)      Removal of fixtures.

(3)      Damages for reinstatement.

(4)      Consequential loss.

(5)      Exemplary damages.

The learned trial judge appealed from found the appellants’ “switch from custom to common law very incongruous”. He said Madaha Resena v Independent State of Papua New Guinea [1990] PNGLR 22 at 31-32:

“I do not think 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 real evidence of this has been led before me nor is it found in the written materials submitted to me ... 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 par 1(a) to (e) of that Schedule.”

The learned trial judge thus rejected the claim based on the common law heads of damages and proceeded to formulate a customary compensation relying on some of the heads of trespass by the government. He awarded the appellants the sum of K47,604.10 plus costs.

The appellants have appealed against the whole of the judgment. Two principle arguments were advanced as grounds for the appeal.

(1)      The trial judge failed to appreciate that customary law (where it is recognised by the court) and the rules of common law (where they are not inappropriate or inapplicable to the country) form part of a body of law known as “the underlying law”. The fact that a party’s title derives from custom does not mean that he cannot protect his title in reliance upon principles of the underlying law derived from the common law rules; and

(2)      In the absence of any evidence of customary law and without the consideration of the appropriateness or applicability of the common law rules, the trial judge erred in attempting to formulate an appropriate rule of law under Sch 2.3.

The essence of these grounds of appeal is that pursuant to Sch 2.2 the principles and rules of common law and equity of England are adopted, and applied and enforced, as part of the underlying law and co-exist side by side with principles of custom as adopted pursuant to Sch 2.1. It was submitted that, that being the case the fact that the appellants’ title to ownership of the land derived from custom did not deprive them from seeking to protect that title and seeking consequential relief for infringement of that title by relying upon principles of the common law as adopted. It was contended therefore that the appellants were perfectly within their rights to seek to enforce their rights by invoking the cause of action which is derived from adopted principles of the common law. It was submitted therefore that the learned trial judge erred in simply dismissing the claim based on the common law.

The appellants did not contend that the trial judge erred in considering custom, so far as it applied, but that he was wrong in stating that he intended to ignore the common law because of the appellants’ derivation of title by custom, before deciding whether there was any applicable custom by which the matter could be determined, and whether the common law was inapplicable or inappropriate to the circumstances of the country.

APPLICATION AND IMPLEMENTATION OF THE NATIONAL GOALS AND DIRECTIVE PRINCIPLES

This case has raised some very fundamental constitutional issues relating to the interpretation and application of the adoption and reception provisions of Sch 2.1 on custom and Sch 2.2 on the principles and rules of common law and equity of England. As we endeavour to construe these and other provisions of the Constitution we must not lose sight of the autochthonous nature of the constitutional regime, that is, that the Constitution itself, as the Preamble recites, is established by the will of the people of Papua New Guinea to whom “all power belongs”. Its authority is thus original and in no way derivative from any other source. I would add that the original interpretative jurisdiction of the Supreme Court conferred by the Constitution, s 18, emanates from that same source.

Section 21 of the Constitution stipulates the purpose of Sch 2 as being:

“to assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea.”

Schedule 2.4 states that:

“In all cases, it is the duty of the National Judicial System, and especially the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except in so far as it would not be proper to do so by judicial act.”

The underlying principles and spirit of independence which motivated and inspired the Constitution into being are embodied in the National Goals and Directive Principles in the Preamble.

“We Hereby Proclaim the following aims as our National Goals, and direct all persons and bodies, corporate and unincorporate, to be guided by these our declared Directives in pursuing and achieving our aims:

...

5.       Papua New Guinean Ways

We declare our fifth goal to be to achieve development primarily through the use of Papua New Guinean forms of social, political and economical organization.

WE ACCORDINGLY CALL FOR:

(1)      a fundamental re-orientation of our attitudes and the institutions of government, commerce, education and religion towards Papua New Guinean forms of participation, consultation, and consensus, and a continuous renewal of the responsiveness of these institutions to the needs and attitudes of the People; and

(2)      ...

(3)      recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development, ...”

To comprehend the full intent of these statements of principle we need to restate the relevant parts of the Final Report of the Constitutional Planning Committee, (the CPC) pars 103-105 at p 2/13:

“103.   Development through our ways should not be thought to involve stagnation. Papua New Guinean ways, contrary to a commonly held view, not only of foreign citizens but of our people also, are not stagnant and closed. Our ways have always been open to external influences. It is this inherent openness which has enabled us to achieve so much in such short time and adapt to the new structure which has existed since Europeans first arrived here. Our ability to cope with new demands, our ability to readjust our ancient ways to new needs, have enabled us to develop, though not in the manner which we are now striving for. It is this ability which is the centre of what we call ‘Papua New Guinean ways’.

104.    This ability to accept new ways is evident in the manner in which our people are quietly accepting the demands of a modern nation. There is the danger, however, that in so doing, we, as a people and as a nation, might become borrowers only. There is the danger that we might discard our ways or place them in subservience. No matter how hard we try to copy foreign ways, we will always end up being second-rate unless we make full use of our own traditions and institutions to achieve our national goals.

105.    It is inevitable that we should make intelligent use of foreign ways. But we should do so only after we have set our national goals and priorities. The second step is to determine and make sound use of our own resources, both human and material. We should use foreign ways only to supplement our own resources. This is self-reliance. This is self-respect. It is our way, a Papua New Guinean way. It is a matter of our survival as a people to preserve our identity and still keep abreast of the changing times.”

In its recommendations on the implementation of the goals and principles, the CPC stated:

“All activities of the State and its institutions should be based on the directive principles and directed towards achieving the National Goals set out in this chapter.

The goals and principles as a guide in judicial interpretation:

(1)      All courts and other adjudicatory tribunals shall be guided in the exercise of their functions by the National Goals and Directive Principles.

(2)      Except to the extent provided for in this recommendation, the National Goals and Directive Principles shall not be directly justiciable. However, these goals and principles should not be regarded by any court, other adjudicatory tribunal or institution of government as being of less weight than other directly justiciable provisions.

Note: (i)        To exemplify the manner in which Clause (1) of this recommendation is intended to be applied as an aid to interpretation, we envisage that where the meaning of a constitutional provision is in question, or there is doubt as to the constitutional validity of any law or administrative action, or there is ambiguity in any law, or no particular law or principle of law appears to apply to the circumstances involved in any matter before a court, the court will give an interpretation which is consistent with the National Goals and Directive Principles rather than an alternative interpretation.”

These statements of goals and principles combine to enshrine this principle that development of an indigenous jurisprudence must begin primarily by use of Papua New Guinean traditional ways of life and culture.

There needs to be a fundamental re-orientation of our attitudes and institutions of government towards Papua New Guinean forms of participation, consultation and consensus, and a continuous renewal of the responsiveness of these institutions including the courts to the needs and attitudes of the People.

I believe these call for, in the words of goal number 5, “a willingness to apply these ways dynamically and creatively for the tasks of development”, including the development of an indigenous jurisprudence — the underlying law.

The strong recommendation of the CPC is that all activities of the State and its institutions should be based on the Directive Principles and directed towards achieving the National Goals.

The CPC recognised Papua New Guinea’s ability to cope with new demands and our ability to readjust our ancient ways to new needs. It is this ability which is the centre of what we call “Papua New Guinean Ways”. But the CPC cautioned in strong terms that:

“There is the danger, however, that in so doing, we as a people and as a nation, might become borrowers only. There is the danger that we might discard our ways or place them in subservience. No matter how hard we try to copy foreign ways, we will always end up being second-rate unless we make full use of our traditions and institutions to achieve our national goals.”

All of these point to the compelling conclusion that Papua New Guinean ways should first be resorted to in conflict resolution and determining rights and obligations in the ultimate pursuit of the development of a truly indigenous jurisprudence.

APPLICATION OF CONSTITUTION SCHEDULE 2

The purpose of Sch 2 is to assist in the development of a Papua New Guinean jurisprudence or underlying law, as a consistent and coherent system in a manner that is appropriate to the changing circumstances of the country from time to time: see ss 20, 21 and Sch 2.4.

It follows that to give effect to these guiding principles, the adoption, application and enforcement of appropriate custom under Sch 2.1 must be superior to any principle of English common law and equity.

This is further affirmed by subjecting the application and enforcement of English common law and equity to custom as adopted under Sch 2.1.

It becomes abundantly clear in my opinion that “customary law” adopted under Sch 2.1 should take precedence over the “adopted English common law and equity” under Sch 2.2.

Indeed, Kapi J (as he then was) stated the same in SCR No 4 of 1980; Re Constitution and Somare [1981] PNGLR 265 at 285, 286. His Honour referred to Schs 2.1, 2.2 and 2.3 and said:

“The order in which these laws are listed under Sch 2 is not without significance. In a case where the underlying law of Papua New Guinea is in question or is an issue, the inquiry should always begin with the examination of custom which is applicable under Sch 2.1 of the Constitution. Custom which is adopted in accordance with Sch 2.1 of the Constitution is superior to common law because common law is only applicable to the extent that it is not inconsistent with custom as adopted under Sch 2.1 of the Constitution (Sch 2.2(1)(c) of the Constitution).”

The Chief Justice also accepted counsel’s submission in the same case (at 271) that the adoption and application of English common law by the Constitution is a “stop-gap” interim measure and should not be applied as of right.

It is entirely inconsistent with these directive principles to interpret that a common law remedy adopted under Sch 2.2 is equal to a valid Papua New Guinean customary method of compensation and can co-exist side by side. It is further inconsistent with these principles to conclude that a “dual system of law”, one a Papua New Guinean way and the other a borrowed English way, can exist side by side as part of our “indigenous jurisprudence”.

In my opinion the founding fathers in the Constitutional Planning Committee Report and Constituent Assembly through the Constitution intended that there should be developed a single system of “indigenous jurisprudence” or “underlying law’, derived primarily from custom as it is “discovered” and adopted and secondly from principles of common law and equity of England only if it was applicable and appropriate to the circumstances of Papua New Guinea and not inconsistent with custom in its application.

If there is no custom applicable and the principles of common law and equity of England are inconsistent with a constitutional law or a statute, or are inapplicable or inappropriate to the circumstances of the country from time to time, then the courts should develop an underlying law that is applicable and appropriate to the circumstances of the country.

If custom is adopted and applied under Sch 2.1, it becomes an underlying law principle. If a principle of common law is adopted and applied under Sch 2.2, it too becomes an underlying law principle. They become part of the development of a consistent and coherent system of our indigenous jurisprudence or underlying law. They do not remain separate systems of law. Upon adoption and application they become part of the “underlying law” referred to in s 9(f).

It was never, in my opinion, the intention of the CPC or the Constituent Assembly that there should exist a “dual system of law” applicable under Sch 2 of the Constitution. I do not believe that it was ever intended that litigants have a choice of law or remedy, nor do I think it was ever intended that there should be a different system of law for indigenous inhabitants and a different system for non-indigenous inhabitants.

The important underlying principle is that there shall be developed a single body of consistent and coherent indigenous jurisprudence derived primarily from custom, but if no custom is applicable then principles of common law and equity of England or the blending of the two adapted to the circumstances of the country from time to time.

APPLICATION AND ENFORCEMENT OF ADOPTED ENGLISH COMMON LAW AND EQUITY

I repeat my views that I do not believe the legal profession and the courts have subjected the application and enforcement of English common law and equity rigorously enough against the pre-conditions for their application and enforcement. There has not been adequate inquiry to discover or ascertain if there is relevant custom. Hithertofore, customary law is ignored or rarely considered and the “adopted English common law” is invariably resorted to as the sole legal source. Very rarely are the pre-conditions applied in a meaningful manner.

Whilst preconditions (a) and (c) of Sch 2.2(1) are easily tested and applied, that is whether the adopted common law is inconsistent with a Constitutional law or a statute or whether, in its application to a particular matter, it is inconsistent with custom, precondition (b) as to whether it is inapplicable or inappropriate to the circumstances of the country from time to time, is not so easily applied. I am of the view that often parties and courts pay lip service to this pre-condition. I believe that what theoretically takes place is a cursory consideration of the prevailing circumstances of the socio-economic and legal order in urban areas which often bear no real relevance to the circumstances of the majority of the indigenous inhabitants of Papua New Guinea. The applicability and appropriateness pre-condition is applied to this status quo. No real consideration of the Preamble and the National Goals and Directive Principles of the Constitution is applied to the adopted English common law. Consequently, the courts and the majority of the legal profession perpetuate the status quo of continued “dependency” upon and “subservience” to Anglo-Australian common law and equity, the very danger which the CPC cautioned against.

I would repeat the strong sentiments of the CPC in par 104 of Chapter 2 in the Final Report:

“This ability to accept new ways is evident in the manner in which our people are quietly accepting the demands of a modern nation. This is the danger, however, that in so doing, we, as people and as a nation, might become borrowers only. There is the danger that we might discard our ways or place them in subservience. No matter how hard we try to copy foreign ways, we will always end up being second-rate unless we make full use of our own traditions and institutions to achieve our national goals.”

APPLICATION OF CUSTOM

I hold the view therefore that the learned trial judge was correct in his conclusion that because the appellants’ title to land was determined according to their custom, their claim for compensation for violation or infringement of those rights should be pursued and determined according to the same custom. I can find no fault in that proposition in principle. This is precisely what the CPC recommended should be undertaken by the courts. I could imagine that if such rights were violated by other traditional people, the claims for reparation compensation or restitution could without doubt be determined according to custom as might have prevailed in the traditional and customary context.

The appellants succeeded in their claim against the State and the other competing customary claimants, according to customary law. I do not consider that it is unjust nor inconsistent with the constitutional mandate to develop a system of underlying law which is consistent and coherent and in a manner that is appropriate to the circumstances of the country, to direct that determination of relevant compensation should also be by application of the relevant custom. I agree with the learned trial judge that having founded their ownership to the Island according to custom, to then switch to seeking compensation by resorting to principles of the adopted common law is very incongruous. It is entirely inconsistent with the development of an appropriate underlying law and inappropriate in these circumstances. I also agree with the trial judge’s view that the plaintiffs cannot have it both ways; they cannot choose the kind of law to give them the most advantageous claim. I do not think for a moment that, if the appellants had obtained a judgment in damages or compensation equivalent to or indeed greater than their claim under the common law principles by the application of customary law as the learned trial judge did, they would have any complaints. I rather think that the complaint here is because the appellants had received compensation which is markedly less than the computed claim under the adopted common law principles.

The proposition that the fact that a party’s title derives from custom does not mean that he cannot protect his title in reliance upon principles of the underlying law derived from the adopted common law, is one with which I cannot agree. I would find this quite difficult to agree with, in the circumstances of a case such as this, where a substantive right is founded upon customary principles and quite clearly consequential enforcement of rights for compensation could also be determined under the same customary principles. The continued reliance upon principles of adopted common law would be quite inappropriate and inapplicable to the circumstances of this country in relation to the particular issues before the Court, and in view of the constitutional directive to develop an indigenous underlying law more appropriate to Papua New Guinea.

The other submission, that on the trial judge’s approach traditional landowners do not have the same rights in respect of trespass to their land as do persons who hold land pursuant to common law, also has no substance. There is no evidence that there is no custom applicable to such a situation of trespass nor indeed any of the other common law heads of damages claimed in this case. The claim for compensation in the customary context might not be described in the same terms but there is no evidence that such infringement or interference with another person’s property or land goes uncompensated in custom.

I consider therefore that his Honour was not in error in rejecting the rules of common law in determining this case in the circumstances where the substantive ownership of the Island was determined according to customary principles. I am of the view that because of that the learned trial judge did not have to proceed to determine whether the common law principles being relied upon were inapplicable or inappropriate to the circumstances of the country and in particular the circumstances of the issues then before him. That was sufficient basis for holding that this was a case which “justice required should be” regulated and determined wholly by custom and not by the adopted common law.

Having decided that the common law principles being relied upon should not apply but that the Motuan custom of the Tatana people should prevail, his Honour ought to have required the appellants to lead more oral evidence as to the relevant custom on compensation for trespass on customary land. I accept that his Honour did make some inquiries himself and relied upon materials that were available to him but I consider that his Honour ought to have enquired more and required the appellants to call direct oral evidence as to what the custom was. And so while it is the next logical course to take to proceed to develop appropriate underlying law pursuant to Sch 2.3 where there appears to be no rule of law that is applicable and appropriate to the circumstances of the issues then before the court, I feel that the learned trial judge should have proceeded to make more inquiry into the relevant custom.

The main difficulty with the learned trial judge’s approach is of course that there was not sufficient evidence to show that there was no custom applicable to the compensation claim that was made by the appellants.

In the circumstances the logical course to take is to remit the matter to the National Court to proceed to make the necessary inquiry and to call evidence or to require the parties to call relevant evidence on the existence or otherwise of the relevant custom on compensation.

I would therefore uphold the appeal in part, set the judgment aside and order the matter remitted to another National Court judge, to make the inquiry on custom and to assess the amount of compensation accordingly.

This inquiry into custom would be for the purposes of its adoption and application as a superior source of underlying law pursuant to Sch 2.1 and not for the purpose of subjecting the application of English common law and equity to it pursuant to Sch 2.2(1)(c).

Upon ascertaining that custom on compensation, it should be applied as a superior source of underlying law, which then becomes an underlying law principle.

LOS J: The appellants appeal from the decision of the National Court given on 9 January 1990 at Waigani. The decision involved the assessment of damages and compensation for the government’s wrongful trespass on the land on the island lying southwest of Port Moresby known as “Fisherman’s Island”. His Honour the Deputy Chief Justice and Amet J have given in their judgments the history of various developments and occupation and the various proceedings pertaining to the land. I do not wish to repeat them. Briefly, the plaintiffs’ claim to the land was based on Motuan custom. On 18 April 1985, the Land Titles Commission decided that the appellants were the traditional owners of the land and hence the occupation by the respondent was unlawful.

In the National Court the appellants claimed some five common law heads of damages totalling K341,069.00, plus interest. The trial judge awarded a sum of K47,604.10 including the interest. The trial judge assessed the damages, not by common law or custom, but by analogous principles developed as applicable in the case. His basic reason was that as the ownership of the land had been determined by custom, the claim for damages or compensation must also be determined by custom. When he could not find any customary rules applicable, he proceeded to develop new rules. He then assessed the damages under the new rules.

The appellants listed some 15 grounds of appeal. I think that there arise three basic issues. The resolution of these issues would, in my view, sufficiently answer all the grounds of appeal.

(1)      Whether the National Court was correct in coming to a conclusion that as the claim to the ownership of the land was determined under customary law, the claim for damages must also be determined according to custom.

(2)      Whether the National Court was correct in holding that no customary rules were in existence which would be applicable in the case.

(3)      Whether the trial judge was wrong in not transmitting to the appellants his intention not to apply common law principles and hence not requiring them to produce evidence of custom in respect of the assessment of damages.

In relation to the first issue the trial judge said (Madaha Resena v Independent State of Papua New Guinea [1990] PNGLR 22 at 31):

“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 to 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.”

His Honour continued (at 31) with more on this point and said the plaintiffs could not have it both ways:

“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.”

Before proceeding, I wish to state that from the language and the tone of the judgment, it does not seem that his Honour was laying down any across-the-board principles. He says in this particular case that the choice of law appears to be illogical. He did not refer to any constitutional provisions and so my discussion on the broader context of the constitutional provisions may be irrelevant, and in a way, not be treating his Honour’s judgment fairly. From the perspective of s 9 of the Constitution and the provisions of Sch 2, his Honour’s decision on choice of law may not have foundation. The customary law and the common law are in the same category under s 9(f), that is, underlying law. The qualifications imposed on the applicability of customary law and common law are provided in Sch 2 of the Constitution.

“Sch 2.1        Recognition, etc, of Custom

(1)      Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.

(2)      Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity. ...”

“Sch 2.2        Adoption of a Common Law

(1)      Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that:

(a)      they are inconsistent with a Constitutional Law or a statute; or

(b)      they are inapplicable or inappropriate to the circumstances of the country from time to time; or

(c)      in their application to any particular matter they are inconsistent with custom as adopted by Part 1.”

I think the most important and direct question to ask is: when the customary law and the common law satisfy the conditions of their applicability in Sch 2, how should a party decide which one to follow? The scheme of things in the Constitution relating to custom suggests that custom must take precedence over common law. The inspirational statement in the Preamble says: “We ... acknowledge the worthy customs and traditional wisdoms of our people ...”, and the declaration in the fifth Goal says: “... to be to achieve development primarily through the use of Papua New Guinean forms of social, political and economic organization.”

Sections 20 and 21 of the Constitution reinforce the aspirations:

“20.    ...(2) Until such time as an Act of Parliament provides otherwise:

(a)      the underlying law of Papua New Guinea shall be as prescribed in Schedule 2 (adoption etc of certain laws); and

(b)      the manner of development of the underlying law shall be as prescribed by Schedule 2 (adoption etc of certain laws).”

Then s 21 states the Purpose of Sch 2:

“(1)    The purpose of Schedule 2 (adoption etc of certain laws) and of the Act of the Parliament referred to in Section 20 (underlying law and pre Independence statutes) is to assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea.

(2)      For the purpose set out in Subsection (1), a Law Reform Commission shall be established in accordance with Schedule 2 (adoption etc of certain laws), and certain special responsibilities are imposed by that Schedule on the National Judicial System (and in particular on the Supreme Court and the National Court) and on the Law Reform Commission.”

Further, s 25 of the Constitution imposes a duty to implement the National Goals and Directive Principles:

“25(1) Except to the extent provided in Subsections (3) and (4), the National Goals and Directive Principles are non-justiciable.

(2)      Nevertheless, it is the duty of all governmental bodies to apply and give effect to them as far as lies within their respective powers.

(3)      Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.”

However, there is a fundamental question that needs an answer: can I hold that there is now an enforceable duty under the Papua New Guinea Constitution to apply customary law instead of common law when, in a given situation, certain relevant principles under both laws are put through the constitutional screening in Sch 2 and they reach the other end with “clean” status? To answer this question, a widely researched argument is required because various considerations are involved and the constitutional argument is one of them. Some of the considerations may concern the legislature rather than the judiciary. Should it be the case in Papua New Guinea that every aspect of life, business or social, not covered by any statute, must be regulated by custom? And by whose custom? I read the nationalistic and forceful view of Amet J on this point. While I do not necessarily agree with the notion of dual system, I take the view that counsel or parties must be given opportunity to address either now or in a future case before making any decision. For the moment I consider that the Constitution has raised the status of the customary law of this Nation and has imposed a duty on the National Judicial System and other governmental bodies to develop, apply and continue to develop, the indigenous jurisprudence. But the fact that there is already a screening process in Sch 2 of the Constitution, I consider, is not intended to arbitrarily drop the common law in favour of the customary law. On this premise, it is my respectful view that, if his Honour said he had chosen custom in order to follow the constitutional desires, he would have been right. But I do not think as a matter of law he was correct when he said, because the ownership of land had been determined by customary law, the damages must also be determined by custom. I conclude that, until such time as the Supreme Court decides on well-informed submissions, where there is no statutory law on a subject, the parties have a right to choose which law to apply.

His Honour might have been influenced by the claim for a large sum of money at common law. In other words, claims for damages under customary law might be less. One of the reasons may be that cash is not always the sole ingredient under a customary claim for compensation. But with respect, this begs the question. This leads me to the next point to deal with, that is, whether there existed no customary rule on this point. His Honour discussed the process of determining custom. Then he said (at 32):

“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 JCB 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.”

His Honour had done a commendable job of doing some research on his own initiative on relevant custom by studying and considering the notes by JCB Bramell. But with respect, his research could not lead to the conclusions that he had reached. Many witnesses who appeared before the National Court were Motuans who lived around and not far from Port Moresby. If any appropriate questions had been directed to them, I believe they would have given some answers. If they could establish ownership of land (or any other property) by custom then there must be rules relating to the protection of the land by custom and hence rules relating to damages for interference or trespass.

There is an obligation to find appropriate rules on custom first before developing and formulating new rules: SCR No 4 of 1980; Re Constitution and Somare [1981] PNGLR 265. I am aware of the difficulties faced by the courts. And I have personally used those reasons especially on circuit when I am pressed for time. The Chief Justice had correctly referred to some of those difficulties in The State v Paul Pokalo [1983] No N 404. But I do not think these are answers to the constitutional obligation in Sch 2. In my respectful view, even the wording of Sch 2.3 (Development, etc, of the underlying law) confirms the obligation to determine custom and makes it a condition precedent to formulating new rules as part of the underlying law:

“Sch 2.3        Development, etc, of the Underlying Law

(1)      If in any particular matter before a court there appears to be no rule of law that is applicable and appropriate in the circumstances of the country, it is the duty of the National Judicial System, and in particular of the Supreme Court and the National Court, to formulate an appropriate rule ... .” (My emphasis.)

His Honour’s basis for proceeding to formulate new rules were: (1) no evidence had been led before him; and (2) no rule of customary law had been submitted to him. This is not similar to saying that there was a customary rule but it could not be applied in this case; or, there was no customary rule at all on the subject. With respect, his Honour proceeded to develop the new rules prematurely.

The third issue is related largely to the second issue because of the course taken by his Honour. If his Honour had called for evidence on custom on the point, his call could have indicated to the plaintiffs and their lawyers what course he intended to embark upon. The switch from common law to custom had a very significant effect on the plaintiffs’ claim. The plaintiffs had claimed K341,069.00 at common law, plus interest. The switch to custom, then eventually to development of new rules, resulted in an award of some 78 per cent less damages, namely K47,604.10. The plaintiffs had no say on the existence or otherwise of custom on damages for unlawful conversion, nor did they have any input to the development of new rules, the result of which affected them most. This was unfair to them. There are numerous cases on this point; I refer to one as an example only: Ume More v University of Papua New Guinea [1985] PNGLR 401.

In summary, I consider that his Honour made an error when he held that the appellants were legally obliged to pursue their claims for damages under customary law because the ownership of the land was determined under customary law. His Honour did not make any full inquiries before holding that there existed no relevant customary rules on assessment of damages or trespass on customary land. Lastly, his Honour made an error in proceeding to assess the damages under customary law and then analogous principles without informing the appellants and giving them an opportunity to call evidence and/or address the Court.

I would, therefore, uphold the appeal and remit the matter back before another judge of the National Court for rehearing. The rehearing is to determine whether there are any customary rules under which damages may be assessed. If there is, then assessment may be made.

Appeal allowed.

Matter remitted for re-hearing.

Lawyers for the appellants: Joseph K Pakau & Associates.

Lawyer for the respondent: Z Gelu, (Acting State Solicitor).