[1971-72] PNGLR 621

PAPUA NEW GUINEA
[CENTRAL COURT OF THE TERRITORY OF NEW GUINEA]

CUSTODIAN OF EXPROPRIATED PROPERTY AND PHOEBE KROENING

V

COMMISSIONER OF NATIVE AFFAIRS (RE MORTLOCK ISLANDS)

Rabaul
Phillips J

9 May 1929
11 March 1930
24 March 1930
29 April 1930

REAL PROPERTY - Acquisition of title by prescription by non-natives in New Guinea - Applicability of the law of German New Guinea to the mandate territory of New Guinea - Lands Registration Ordinance 1924-1929, ss. 24, 26 (2), 27c - Laws Repeal and Adopting Ordinance 1921-1929, ss. 4, 8, 9, 10, 16 - Land Ordinance 1922-1929, s. 16.

The Commissioner of Native Affairs referred the question of possible native rights affecting land known as the Mortlock Islands to the Court by way of summons under s. 24 of the Lands Registration Ordinance 1924-1929. The Custodian of Expropriated Property and Mrs. Phoebe Kroening (called Calder in the summons) claimed to own the islands by virtue of a purchase document made by their predecessor in title with the chiefs and rulers of the Mortlock Islands dated 7th June, 1886. On the hearing of the summons and before the evidence had been concluded, the custodian and his co-owner raised the point that, irrespective of the validity or otherwise of the 1886 purchase, they had acquired title by prescription as against the native claimants by virtue of the fact that they had been in continuous and undisturbed possession of the islands since 1886. The Court gave a ruling on the assumed facts that the custodian and his co-owner, or their predecessors, had entered into a purchase agreement with certain chiefs and rulers dated 7th June, 1886, for the purchase of twelve or thirteen islands and had been registered in the Ground Book as owners of ten of those islands; that they had been in continuous occupation of the islands since 1886; and that the Mortlock Islanders or some of them had continued to live there also.

Held
(1)      The question of whether non-natives could acquire title by prescription against natives prior to 9th May, 1921, is to be determined according to the laws then in force in the Colony of German New Guinea by virtue of s. 8 of the Laws Repeal and Adopting Ordinance 1921-1929. That law is local law of the mandate territory of New Guinea and not foreign law and accordingly the Court may take judicial notice of it.

Secretary of State for Foreign Affairs v. Charlesworth, piling & Co., [1901] A.C. 373, cited with approval.

(2)      The Court is not prepared to give a decision on the question of whether the ownership of land in New Guinea might be acquired by prescription under the German laws in force before 9th May, 1921, because the translations of the German laws before the Court were made by one who did not have the legal training to translate German legal terms into English legal terms. The following views expressed on the German law are therefore tentative and subject to revision if better translations become available.

From 1885 to the end of German rule restrictions were placed on the acquisition of land by non-natives: they could only acquire native owned land by agreement with the native owners or ownerless land. After 1904 it was provided that areas necessary for the livelihood of natives were precluded from acquisition. There was no provision that non-natives could acquire native owned land by prescription. The Ground Book system established in New Guinea was subject to Prussian law prior to 1903 and thereafter to the German Civil Code of 1900. The Prussian law expressly provided that title to land by usucapion could not take place against a registered owner. But s. 900 of the Civil Code provided that if a person was wrongly registered in the Ground Book as the owner of land, he nevertheless acquired good title if his registration had stood unchallenged for thirty years and if he had been in proprietary possession during that period. Section 927 of the Civil Code provides that the owner of land might be excluded from his rights if the land had been in the proprietary possession of another for thirty years. But the application of the Civil Code was subject to the provisions of an Imperial Ordinance of 21st November, 1902, and orders made under it by the governor which did not include acquisition of title by prescription. Accordingly, the Imperial Ordinance ousted the relevant provisions of the Civil Code and non-natives could not acquire title against natives by prescription. Even if this conclusion be incorrect, the thirty-year period of ss. 900 and 927 of the Civil Code had not expired when the German laws ceased to apply on 9th May, 1921, and the provisions of the Civil Code had no retrospective effect in New Guinea.

(3)      The question of prescription after 9th May, 1921, is to be determined according to the principles and rules of common law and equity by virtue of s. 16 of the Laws Repeal and Adopting Ordinance 1921. There is no legislation in New Guinea similar to the English Prescription Act. Although the Court has a discretion under s. 27c of the Lands Registration Ordinance to depart from the principles and rules of common law and equity, it will not do so unless they clash with the principles of right and good conscience referred to in that section. In view of the fact that the Land Ordinance 1922-1929 limits the ways in which land can be acquired from natives and makes it an offence for non-natives to occupy land owned by natives without authority, it is not appropriate in this case to depart from the common-law rules of prescription and invent a new doctrine of prescription under the principles of right and good conscience.

(4)      The custodian and his co-owner cannot establish title by the common law rules of prescription for two reasons. First, to allow them to acquire title by prescription against natives would be in contravention of s. 16 of the Land Ordinance 1922-1929 which makes it an offence for non-natives to occupy land owned by natives without authority under that Ordinance, and the Court will not presume the existence of a lost grant which, had it existed, would have contravened a statute or involved illegality.

Rochdale Canal Co. v. Radcliffe (1852), 18 Q.B. 287, and Neaverson v. Peterborough Rural District Council, [1902] 1 Ch. 557, at p. 573 followed. Second, the common-law rules require the Court to presume a lost grant from the existence of long, open, undisturbed and unexplained possession and the Court cannot presume a lost grant in this case when it has before it the 1886 purchase agreement which purports to explain the non-native possession.

(5)      Although long non-native possession as against natives does not of itself give title in New Guinea, it does not follow that long non-native possession has no importance. It may be of the greatest importance as evidence of a duly acquired title.

(6)      The reference of the question of possible native rights to the Court by the Commissioner of Native Affairs was most unsatisfactory for it failed to clearly or fully set out the nature, extent and basis of the claims and the natives on whose behalf the claims were made. The Court must therefore exercise its powers under s. 26 (2) of the Lands Registration Ordinance and adjourn the hearing of the summons to the Mortlock Islands and there inform itself of the native rights or claims in respect of the land.

Editor’s Note

This judgment is published in this report for its legal and historical importance. The Central Court was renamed the Supreme Court of the Territory of New Guinea in 1934. Phillips J. later became Sir F. Beaumont Phillips, K.B.E., Chief Justice of the Supreme Court of the Territory of Papua and New Guinea. The judgment is published with the kind permission of Paul J. Quinlivan, Esq., Stipendiary Magistrate of Port Moresby, who edited a version of the judgment which appeared in B. J. Brown (ed.) Fashion of Law in New Guinea (1969), pp. 237-248.

Counsel

McLennan, for the Custodian of Expropriated Property.
Brown and Flannery, for Phoebe Kroening.
Hogan, for the Commissioner of Native Affairs.
Cur. adv. vult.

29 April 1930

PHILLIPS J:  In the present proceedings the Commissioner of Native Affairs has, by summons, and under the provisions of s. 24 of the Lands Registration Ordinance 1924-1929, referred to the Court the question of possible native rights affecting land at the group of islands known as the Mortlocks.

When the matter was last before me on 24th March, legal questions arose which were of considerable importance not only in this particular case but in general. It appeared that the Court’s decision on these questions might have the effect of shortening the hearing and so saving expense, and learned counsel expressed their desire that a ruling be given.

In the ensuing observations I shall assume that the undisputed facts are as follows:

The Custodian of Expropriated Property and Mrs. Kroening (who was formerly Mrs. Phoebe Calder and is so called in the summons), claim to own the Mortlocks as co-owners and to trace title, through others, from a document dated 7th June, 1886. This document purports to be an indenture by which certain named "chiefs and rulers of the Mortlock Island Group . . . acting for themselves and all their relations and followers, constituting the entire population of the said Group of Islands" in consideration of sixty-eight dollars in trade bargained and sold to Emma Eliza Forsayth all the "certain pieces and parcels of land known as the Mortlock Islands . . . being the true and lawful separate owners thereof, said Mortlock-Island Group consisting of twelve separate islands . . .". Further on in the same document, however, thirteen islands are named (including a double island) while the sketch plan drawn on the document shows twelve islands, but thirteen names. Later, in 1891, when application was made to have this land entered in the Ground Book, and although a direction was given for the ‘entry of the Mortlocks group of islands consisting of thirteen named islands (which named islands accorded with the thirteen mentioned in the document of 1886), only ten of those islands were entered by name in the Ground Book. The custodian and Mrs. Kroening also claim that they (or their predecessors in title) have been in possession of the Mortlocks as owners against all comers ever since 1886. It would also appear that indigenous natives of the Mortlock Islands continued to live there after 1886, and that there are still true Mortlock natives living there, though indentured native labourers from outside the group were brought into it at different times and there has been some mingling of blood.

At the hearing on 24th March last, Mr. Crown Law Officer, counsel for the Commissioner of Native Affairs, raised the question whether long possession of land gives title in the Territory of New Guinea; that is to say, may title to land be acquired by prescription? He pointed out that non-natives had been at the Mortlocks for over forty years and stated that because of this and because of the great difficulty in procuring trustworthy evidence nowadays about happenings forty odd years ago, he had advised against the commissioner’s reference of the native claim. He stressed the need for a ruling upon this question as a guide in this and other cases, since such a ruling might prevent the Commissioner of Native Affairs from unnecessarily referring native claims to the Court. As to the possession of land requisite to give prescriptive title, Mr. Crown Law Officer considered if any law of prescription had been introduced in the Territory under s. 16 of the Laws Repeal and Adopting Ordinance, s. 27c of the Lands Registration Ordinance (one of the last year’s additions to that Ordinance) had, within its ambit, virtually repealed the rules of common law (including those on prescription) that might otherwise have applied.

Mr. Brown, learned counsel for Mrs. Kroening, contended that his client’s title rested on an undisputed possession, as owner, lasting for nearly fifty years and based on a prima facie title, namely, the indenture of 1886, and that this long and continued possession showed that Mrs. Calder was owner "in law and common sense". He also contended that the "principles of right and good conscience" referred to in s. 27c of the Lands Registration Ordinance demanded that a possession of nearly half a century should not now be disturbed. For these reasons Mr. Brown submitted that rules of prescription ought to apply and that, if they did not apply in the Territory, the Court should make such rules, otherwise titles were unsafe.

Mr. McLennan, for the custodian, stated that he had nothing to add to Mr. Brown’s remarks.

Learned counsel were agreed that the English statute law relating to prescription in respect to immovables had no application in the Territory.

The position as to land dealings between non-natives and natives before the annexation of New Guinea by Germany was also touched upon by learned counsel, for in reply to Mr. Brown’s statement that the Mortlocks document of 1886 was a prima facie title or conveyance, the crown law officer submitted that that document purported to have been made with natives and ante-dated the German occupation of New Guinea and that therefore its effect depended upon whether, after being "considered" by the German "Governor", it was "ratified" by him.

Thus it will be seen that questions of some intricacy and importance have been raised and I regret that learned counsel have not given the Court the advantage of hearing full and exhaustive argument and the citation of authorities upon these questions.

It will be convenient, I think, if, before referring to the questions of prescription that have arisen, I consider the position of pre-annexation dealings between non-natives and natives as to land. The Mortlocks document of 7th June, 1886, has been described by learned counsel as a pre-annexation one. I am not sure that this is a correct description. In a historical survey of the Pacific, written in 1919 by Guy H. Scholfield, and entitled The Pacific, its Past and Future, the author, at p. 143, quotes an extract from the English Parliamentary Paper Cmd 4584, in reference to the charter or letter of protection which was given by the ex-Kaiser of Germany to the German New Guinea Co. on 17th May, 1885. In this charter the assumption of German sovereignty over the mainland of New Guinea and the Bismarck Archipelago was confirmed and the company was given "the right to exercise territorial sovereignty under the (Imperial) sovereignty, with the exclusive right, under the supervision of the (Imperial) Government, of taking unclaimed land into occupation and disposing of it and concluding contracts with the natives respecting title to landed property". The scope of this charter was extended by another charter dated 13th December, 1886 (that it to say, six months after the date of the Mortlocks document), so as to include the northern Solomons zone, in which the Mortlocks lie. But, on the other hand, by the Anglo-German Declaration, signed at Berlin on 6th April, 1886 (two months before the date of the Mortlocks document) the British and German Governments had agreed upon a line of demarcation defining the limits of their respective "spheres of influence in the Western Pacific". The line thus drawn included the Mortlocks within the German sphere of influence. (The text of this Declaration in Scholfield’s work, at pp. 320 and 321, is taken from Hertslet’s Treaties and Conventions, vol. XVII, p. 442.) I think nothing of present importance turns on the fact that the words "sphere of influence" were used in the Anglo-German demarcation Declaration of 1886, in view of the Imperial German Government’s express assumption of sovereignty in New Guinea. In any case the line between the declaration of a sphere of influence and annexation becomes in practice rather thin; for example, in both cases the exclusion of other nations is taken for granted: Westlake’s International Law, 1910 ed., vol. 1, p. 121 and Hall’s International Law, 1917 ed., p. 127 et seq.

If the Mortlocks document post-dated the German annexation of New Guinea it was, of course, governed by the law then in force in New Guinea. On the other hand, if it ante-dated the German annexation it had, after annexation, just whatever effect the annexing sovereign power decided to allow it. The general rule of both international and municipal law as to pre-annexation land transactions is that annexation (as between civilized countries) does not per se disturb private rights of property, but the annexing state may, in the exercise of its sovereign power, modify or take away such rights: Cook v. Sprigg[dxxxv]1 a Privy Council decision. In English law the Crown, on annexation, may decide to modify or may refuse to recognize claimed pre-annexation rights of property, this being an act of state and a matter into the justice or injustice, expediency or inexpediency of which the Courts will not enter, though diplomatists may: See Cook v. Sprigg (supra) and Secretary of State for India v. Kamachee Boye Sahaba[dxxxvi]2. Though this is the general rule regarding pre-annexation private rights of property in the case of civilized countries, the case is not necessarily the same when the annexed territory is (as in this instance) a country under no form of government recognized as "responsible" or "civilized" in the sense in which either of those terms is used in international or municipal law. Tribal rights, and therefore rights acquired from native tribes, are not necessarily rights of property recognized or confirmed by the annexing state so as to assume the character of definite legal titles. As was said in the Privy Council case, Re Southern Rhodesia[dxxxvii]3: "The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.... On the other hand there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English Law."

But while property rights claimed to have been acquired before annexation from native tribes are not necessarily recognized by annexing States, those States may decide to do so and, indeed, frequently have done so—usually alter some form of preliminary investigation as to whether the rights claimed have been duly or justly acquired.

According to Scholfield, in the book already referred to, at p. 143, when the German Administration was set up in New Guinea, that administration "promptly . . . advertised in the Australian press that future acquisitions of land without the consent of the Government were invalid but that older ones, if justly acquired, would be protected". Hence it becomes important to ascertain the attitude of the German Government in New Guinea toward the Mortlocks transaction. Did that government regard Mrs. Forsayth’s claim to ownership of the Mortlocks as non-meritorious and deny it recognition, or did that government consider her claim sufficiently meritorious or well-acquired to extend to it that degree of absolute or conditional protection that would have the effect of transmuting Mrs. Forsayth’s claim into a legal right known to civilized law? Further, if that government did in fact extend an absolute or conditional protection to Mrs. Forsayth’s claim to the ownership of the Mortlocks, there remains the further question: Did Mrs. Forsayth’s claim become, under the laws in force in New Guinea prior to the establishment of the present administration on 9th May, 1921, a "right, title, estate, claim or interest, vested or contingent . . . to, or over . . . land"? If it did, then by s. 8 (2) of the Laws Repeal and Adopting Ordinance 1921-1929, "all questions of law affecting" it must be "decided, settled or dealt with in accordance with the laws that were in force in the Territory at the date of the commencement of (that) Ordinance".

It is, therefore, clear that any determination as to whether non-native title in the Mortlocks has been acquired by prescription or otherwise must involve, in the first instance, the consideration of whether such an acquisition of title was permissible under the laws in force in New Guinea prior to 9th May, 1921. If it was permissible, then it was protected by ss. 4 and 8, of the Laws Repeal and Adopting Ordinance. If, on the other hand, it was not so permissible, the Court has to consider whether such an acquisition by prescription or otherwise became permissible by the laws in force in the Territory on and after 9th May, 1921.

Here another difficult question arises. Granted that by s. 8 of the Laws Repeal and Adopting Ordinance the Court has to decide all questions of law affecting rights, titles, estates, claims or interests, vested or contingent, at 9th May, 1921, to or over land in the Territory in accordance with the laws in force at that date, how are these laws to be ascertained? Are they "foreign law" requiring proof as evidence by skilled witnesses, or "local law", law of the Territory, of which this Court should take judicial notice? I understand that this point has not yet been judicially decided. As this question must have an almost everyday importance and application it would seem that a great deal has been assumed or taken for granted in regard to it. For instance, in s. 17 of the Lands Registration Ordinance there is the provision that the Commissioner for Lands may issue a certificate authorizing registration where any person was before 9th May, 1921, entitled, either immediately or in the future and either absolutely or contingently, under the laws then in force, to be registered in the lands register (which register is defined in s. 4 of the Ordinance as being the "Grundbuch" kept under the laws in force in the Territory before 9th May, 1921). Again, in these very proceedings, Mr. Crown Law Officer has called upon the Registrar of Titles to produce the Mortlocks document of 1886, the "Grundbuch" containing the entry respecting the non-native claim to the Mortlocks, and the record of the proceedings relating to that entry before the Ground Book official—the effect of all of which is governed by the law in force here before 9th May, 1921, but was not stated by the learned counsel. Similarly Mr. Brown pressed strongly for the recognition of an alleged non-native possession of nearly half a century—which period would include that of the German occupation of New Guinea—but he said nothing as to the effect given or not given to such a possession by the laws in force before 1921. In fact the only direct reference I heard on the part of learned counsel to the laws in force before 9th May, 1921, was the observation by the Crown Law Officer that he did not know that they were and knew of nobody in the Territory who did. The principle is well established in English law that the Courts will not judicially notice foreign law; foreign law must be proved as a matter of evidence: Mostyn v. Fabrigas[dxxxviii]4. Since the Imperial Foreign Law Ascertainment Act 1861—(see vol. V., Queensland Statutes)—is "practically a dead letter", as no convention has been made with foreign countries in pursuance of it, foreign law is proved in English Courts by experts, who may be either professional lawyers or persons peritus virtute officii, (holders of offices which require and imply legal knowledge): see Sussex Peerage Case[dxxxix]5 and Phipson’s Law of Evidence, 6th ed., pp. 388-389. Moreover, foreign law, being a question of fact, must be proved in each and every case, even between the same parties: see Phipson, above cited, at p. 390, and the cases there cited. It should be mentioned, in this connexion, that (except in appeal cases before the House of Lords or the Privy Council) the laws of Scotland and Ireland and of the British Dominions and Colonies are just as "foreign" in English Courts as are those of Germany and France: see Phipson, at p. 20. The law in force in the Territory before 9th May, 1921, is sometimes described as "German law", but this description, though conveniently short, is dangerous unless it is clearly understood that it stands for the longer and correct one given in s. 4 of the Laws Repeal and Adopting Ordinance: "all . . . legislative measures enacted issued or made in the name of the German Emperor or the German Government by the competent authority for the time being, and expressed to extend to, or applied to or in force in, the Territory" before that date. In short, the laws in force in New Guinea before 9th May, 1921, were the law of New Guinea, and they were none the less the law of New Guinea because most of them had their origin in Germany. But on 9th May, 1921, the Laws Repeal and Adopting Ordinance came into operation, and s. 4 of that Ordinance provided that subject to this Ordinance the laws hitherto in force in New Guinea should, as from the date of commencement of the Ordinance, "cease to extend or apply to, or be in force in, the Territory". In s. 8 of that Ordinance, as I have already said, it was provided that nothing in the Ordinance should affect rights or interests, vested or contingent at the date of commencement of that Ordinance, to or over land, and that all questions of law affecting them should be decided, settled or dealt with in accordance with the law in force in the Territory at that date. Section 5 of the Judiciary Ordinance 1921-1928 is as follows: "The Courts in and by this Ordinance constituted and appointed shall have jurisdiction, power and authority to apply and give effect to the law that prior to the commencement of the Laws Repeal and Adopting Ordinance, 1921, was in force in the Territory, for the purpose of deciding, settling, or dealing with any right, title, status, obligation, liability, remedy, claim, demand, action, proceeding, or matter vested, contingent, granted, given, made, accrued, incurred, pending, or arising under the said law." Sections 6, 7, and 8 of the Judiciary Ordinance relate to the judicial power, establishment, and constitution of the Central Court, the judges of which are described as "judges of the Territory". In so far, then, as the Central Court, when dealing with any matter referred to in s. 8 (1) of the Laws Repeal and Adopting Ordinance, must, by s. 8 (2) thereof, deal with that matter "in accordance with the laws that were in force in the Territory" at 9th May, 1921, are those laws to that extent continued and adopted as laws of the Territory? Or are they "foreign law", and is their application under s. 8 similar to the application of foreign law which sometimes occurs in our courts in cases involving a conflict of laws? The nature of the Laws Repeal and Adopting Ordinance is indicated in its title: by that Ordinance some laws were repealed while others were adopted. By s. 12, certain specified legislative acts of the military administrator during the military occupation of New Guinea from 1914 to 1921 were to "continue in full force and effect in the Territory" while all the other legislative acts of the military administration were repealed. By ss. 13, 14, and 15, certain Queensland and Imperial statutes and certain Papuan Ordinances were "adopted as laws" or Ordinances of the Territory—subject to territorial applicability and non-repugnance to other law of the Territory. Subject to the same conditions of applicability and non-repugnance, the principles and rules of common law and equity that were in force in England on 9th May, 1921, were, by s. 16, declared to "be in force in the Territory". Now the statutes of Queensland, for instance, would ordinarily be "foreign law" so far as this Territory is concerned, but I take it that our legislative authority, by expressly "adopting" certain Queensland statutes "as laws of the Territory", has clearly shown its intention that the adopted Queensland statutes should be part of the local law of the Territory—law, that is, that may be judicially noticed by the Courts of the Territory without the necessity of having the same proved by expert witnesses skilled in the law of Queensland. In the same way, the English rules of common law and equity that have been declared to "be in force in the Territory" and would (speaking generally) otherwise have been "foreign law" are now, I consider, local law. In the case of the laws in force in the Territory prior to 9th May, 1921, however, different words are used; in s. 4 of the Ordinance it is declared that, subject to the Ordinance they shall, from the date of its commencement, cease to extend to or apply to, or be in force in, the Territory; but by s. 8, certain matters have even today to be decided settled or dealt with "in accordance with" such laws. Obviously the intention in s. 4, was not the total repeal of the laws of the Territory in force before 9th May, 1921, because the words "subject to this Ordinance" are used; and in s. 8, as I think that section must be interpreted, the legislative authority has cited an instance in which those laws are not to be regarded as repealed, but as acquiesced in and continued as laws of the Territory which must, in proper case, be applied and judicially noticed by the courts of the Territory. It is, perhaps, unnecessary to mention that in arriving at a conclusion of this kind any consideration of the practical difficulties which may ensue, either from it or from an opposite conclusion, is entirely irrelevant. The duty of the Court is, to the best of its ability, to ascertain the intention of the legislative authority from the words used in the Ordinance. I have searched for an authority that might guide me in the interpretation of ss. 4 and 8 of the Laws Repeal and Adopting Ordinance but have been unable to find a case precisely in point. There is a Privy Council case, Secretary of State for Foreign Affairs v. Charlesworth, Pilling & Co.[dxl]6 which, while not on all fours with this case, does, I think, shed some sidelights upon it. That case was an appeal from Her Britannic Majesty’s Court at Zanzibar, where, by treaty with the Sultan, the Queen had been given power and jurisdiction and, by Order in Council, a consular court had been established with jurisdiction exercisable under the Foreign Jurisdiction Acts. Under s. 8 of the Order in Council, and subject to the other provisions of that order and to any treaties relating to Zanzibar, that jurisdiction was to "be exercised on the principles of, and in conformity with" certain Indian enactments made applicable; and so far as such Indian enactments were inapplicable, the jurisdiction was to be exercised, "so far as circumstances" admitted; "under and in accordance with the common law and statute law of England in force at the commencement of this order". (The similarity of the wording of this section and that of s. 8 (2) of our Laws Repeal and Adopting Ordinance will be noted.) In 1895, the British Government in Zanzibar commenced railway operations and erected railway buildings on the land of Charlesworth, Pilling & Co. without authority and before having acquired the land from that company. The company, in claiming compensation for the buildings erected on its land by the government, relied on the principle of English law that buildings, erected, without authority by one person on the land of another, belong to the latter. The government contended that, by English law, the incidents of land were governed by the law of the site, in this case Mahomedan law, under which unauthorized buildings on the land of another did not become the property of the owner of the land but might be removed. In delivering the judgment of the Privy Council, Lord Hobhouse said, at p. 383: "The first question is whether the dispute is to be governed by the English or the Mahomedan rules applicable to unauthorized buildings on land. The Indian enactments which the Order in Council makes applicable as far as circumstances admit . . . do not fit this case; and therefore Her Majesty’s jurisdiction is to be exercised under and in accordance with the law of England. But the law of England recognises the principle that the incidents of land are governed by the law of its site. Therefore, by the terms of the order, if we look no further, Her Majesty would exercise her Zanzibar jurisdiction on the principle that Zanzibar law, which is Mahomedan law, applies to this case. . . . But then the order is made subject to treaties for the time being in force, and Art. XVI of the treaty of 1886 confers on British subjects the rights of exterritoriality as regards their persons and their property." Lord Hobhouse went on to discuss and reject the contention that the rights of exterritoriality stamped land purchased in Zanzibar by Britishers with the character of English land to which English law alone was applicable; he stated that the local Mahomedan law governed the matter. His Lordship continued, at p. 385: "The next question is how the local law is to be ascertained. Is it matter of evidence, or should the Consular Court take judicial notice of it? The Vice-Consul held that he was an English judge, that it was to him foreign law and must be proved by evidence, though he says it is an extreme instance of that principle, especially as he is also one of the Sultan’s judges administering Mahomedan law. That circumstance, however, should make no difference in the principle, though it enabled the Vice-Consul personally to appreciate the evidence which he took." Lord Hobhouse then pointed out that the root of the Queen’s power and jurisdiction was the treaty grant from the Sultan of Zanzibar, and her power was derived from the Sultan’s sovereign power. As his Lordship said, at p. 385: ". . . throughout the matter Zanzibar remains foreign territory, and the Queen and her officers are acting as Zanzibar authorities by virtue of the power which she has acquired, and which is within its limits a sovereign power. It results that a judge acting within these limits is a Zanzibar judge, and is bound to take judicial notice of the Zanzibar law, whatever it may be, applicable to the case before him." From these observations of the Privy Council, it would seem to follow that when the Queen, as a Zanzibar authority and by virtue of powers granted under treaty by the sovereign Sultan of Zanzibar, makes applicable in her Consular Court (a Zanzibar Court) English or any other law, that applied law might in so far be regarded as Zanzibar or local law and therefore judicially noticeable by the Consular Court. (See the comments of Sir Francis Piggott in his work Exterritoriality, at p. 51.)

As I have already said, in arriving at the conclusion that the laws in force in New Guinea prior to 9th May, 1921, have for certain purposes been acquiesced in and continued as law of the Territory and are therefore to be judicially noticed, I had to put to one side, as irrelevant, any consideration of the practical difficulties which might ensue from that or an opposite conclusion. But now that I have reached that conclusion and have to act upon it, I am at once faced with a very practical difficulty indeed, namely, the dearth in the Territory of reliable English translations of the laws in force here before 9th May, 1921. It is true than an annotated English translation of the German Civil Code and its introductory Act by Dr. Chung Hui Wang is available, but this is not enough, since the Code was not applied to the German colonies until the beginning of this century and we have, in this case, to go back further than that. We are here concerned with the legislative measures in force in New Guinea before 9th May, 1921, whether they emanated from Germany itself or were framed locally. In my own researches in that field I have had to depend on translations made by the interpreter attached to the Court, who does not pretend to have the legal training that would equip him to translate with certainty into legal English the terms of art that may be used in German legal works of reference. Obviously it would be unsafe to found any decision as to prescription, for example, upon such translations, unless, of course, their accuracy and completeness, from the legal point of view, were properly verified. And as means of verification are not presently at hand, I must defer giving my decision as to whether or not the ownership of land in New Guinea might be acquired by prescription under the laws in force here before 9th May, 1921.

Nevertheless, although I am not now prepared to give a decision on that question, I believe that it will at least do no harm, and, on the other hand, trust that it may be of assistance to parties, counsel, and anyone else interested, if I summarize the results of my reading, so far, on the subject of the laws regarding land in force in the Territory prior to 9th May, 1921. But it must be remembered—and I wish this to be very clear—that the remarks I am about to make on that subject are tentative and are subject throughout to any revision that may be necessary when the proper means of verification are available. Further, and in order that those tentative observations may be checked, I propose to refer to the works upon which they purport to be based—all of which are to be found in the Central Court Library. For convenience I shall refer to the following German works by English abbreviations of their titles: G. A. Grotefend’s series Die Gesetze und Verordnungen für den Preussischen Staat und das Deutsche Reich, 1876-1883 (a collection of the laws and Ordinances for the State of Prussia and the German Empire for those years), will be referred to as Grotefend’s Collected Laws, 1876-1883; the same author’s series, Die gesammte preussisch-deutsche Gesetzgebungs-material, (a collection of Prussian-German legislation) will be referred to as Grotefend’s Collected Legislation; the series of Die deutsche Kolonial Gesetzgebung (a collection of the laws, Ordinances, orders, and international treaties relating to the German colonies, edited by Judge Riebow, Dr. Zimmerman and others) will be referred to as German Colonial Legislation; and the volume containing a collection of laws, Ordinances, etc., of New Guinea, from 1885 to 1st January, 1912—a publication printed at the Government School, Rabaul, will be referred to as Collected laws, etc. of German New Guinea.

The assumption of sovereignty by Germany in New Guinea automatically placed the annexed territory under German jurisdiction and steps were soon taken to define the legal system or conditions applicable to the colony. As far back as 10th July, 1879, an Imperial Statute concerning Consular Jurisdiction had been passed; see Grotefend’s Collected Laws, 1876-1883, vol. 4, p. 352. Section 3 of that statute provided that in the consular jurisdiction civil matters should be governed by the law in force in Prussia. By another Imperial statute of 17th April, 1886, (see Grotefend’s Collected Legislation, 1886, p. 108), it had been enacted (s. 2) that the civil and criminal law and procedure applicable in the German colonies should, in general, be in accordance with that applicable in consular jurisdiction under the Consular Jurisdiction Statute of 10th July, 1879. The date upon which the statute of 1886 was to come into force was to be fixed by Imperial Ordinance and it was also provided in the statute (s. 3) that legislation for the colonies on specified matters might be by Imperial Ordinance, Amongst these matters, by an amending statute of 7th July, 1887, was land: see Grotefend’s Collected Legislation, 1887, p. 259. By an Imperial Ordinance of 5th June, 1886, it was ordered that the Imperial statute of 1879 regarding consular jurisdiction should come into force, in accordance with the statute of 17th April, 1886, in the colony of the German New Guinea Company on 1st September, 1886, and, by Imperial Ordinance dated 11th January, 1887, in the Northern Solomons on 1st April of that year: see German Colonial Legislation, vol. I, pp. 443 and 447.

In the New Guinea Company Charter of the 17th May, 1885, (see "German Colonial Legislation", vol. I; p. 434), the Imperial German Government had granted the Company, in consideration (inter alia) of the Company’s obligation to establish and maintain an administration and bear the cost of an adequate legal system, permission to exercise certain sovereign rights and the exclusive right to take possession of ownerless land in the colony and to dispose of it and to conclude contracts with natives concerning land and rights over land—all this under the supervision of the Imperial Government, which undertook to issue the necessary regulations for the protection of existing duly acquired rights to land and for the protection of natives. The company’s later Charter of 13th December, 1886, was virtually an extension of the earlier one to include the northern Solomons zone within the territory of the company: see German Colonial Legislation, vol. I, p. 436.

In both of the Charters granted to the New Guinea Company the Imperial Government confirmed its assumption of sovereignty over New Guinea territory. From the text of those documents it is clear that the German Government took the view that the natives of New Guinea had disposable rights in land, because the Government not only gave the company the exclusive right to negotiate with the natives in regard to such rights but also undertook to introduce legislation to protect land-rights that had already been acquired and duly acquired from natives.

The manner in which the Imperial Government proposed to protect such duly acquired rights was disclosed in the Imperial Ordinance of 20th July, 1887 (which came into force on 1st October of that year), concerning the acquisition and charging of land in the colony of the New Guinea Company: see German Colonial Legislation, vol. I, p. 469. By s. 1 of that Ordinance, the acquisition of ownership of property in the colony was (subject to the Ordinance) to be governed by the provisions of Prussian law, and in particular by the Prussian Statute of 5th May, 1872, concerning the acquisition and charging of landed property. By s. 3, however, the Prussian Ground Book Statute of 1872 was not to apply to the Colony but, in lieu thereof, local Ground Book Regulations were to be issued by the Imperial Chancellor after consultation with the Directorate of the New Guinea Company. The foregoing provisions did not, however, apply to the acquisition of ownerless land or to native land in the colony (see s. 4) because the occupation of ownerless land and the acquisition of land by agreement with natives were in future to be exclusively reserved for the New Guinea Company and were to be effected in accordance with principles of procedure to be prescribed by that company with the sanction of the Imperial Chancellor: s. 5. The only other persons who could derive rights from the occupation of ownerless land or from agreements with natives were those persons who claimed to have duly acquired such rights before 21st May, 1885, (in the case of the mainland of New Guinea and the Bismarck Archipelago) or before 28th October, 1886 (in the case of the Solomons): ss. 6-9. As to any claims that rights had been acquired by agreement with natives, it was necessary that an agreement showing the intention to cede and to acquire the land should have been made and possession given before 21st May, 1885, (or, in the Solomons, 28th October, 1886), and further, that such possession should not have been relinquished or otherwise lost: s. 7. By s. 10, claimants had to apply for the entry in the Ground Book of the properties they claimed to own and their applications had to be lodged by 1st March, 1888, at the latest, otherwise their claims became legally null and void. (This provision, however, did not apply to claims to ownership already entered in the "Ground Book or Register of Acquisitions" compiled by the Imperial Commissioner before the coming into force of the Ordinance.) The entry of these claims in the Ground Book was open to objection on the part of the New Guinea Company if its exclusive rights had been infringed (s. 11), but in default of objection by the company, entry in the Ground Book was to ensue if, on investigation by the Ground Book authority, the acquisition appeared lawful. That authority was empowered to make relevant inquiries and to issue public notices calling for counter-claims, but he could depart from these rules if applicants had been for at least three years in undisturbed possession of the land claimed: s. 11. In s. 13, it was laid down that the provisions of the Ordinance should not prevent the promulgation of regulations entailing the limitation of ownership for the protection of natives or in the public interest.

Thus the Ordinance of 1887 placed special limitations upon the acquisition of land from natives. The New Guinea Company and those other persons who had duly acquired land from natives before fixed dates got a measure of protection.

By s. 4 of that Ordinance, once land acquisitions were entered in the Ground Book they became subject to the provisions of Prussian law (especially to those of the Prussian Land Statute of 5th May, 1872, already mentioned) which had been applied to the colony by s. 1 of the Ordinance. In Achilles’ Die preussische Gesetze über Grundeigentum und Hypothek vom 5, Mai, 1872 (an annotated edition, published in 1881, of the Prussian Statutes of 5th May, 1872, relating to land, mortgage, and the Ground Book) it is stated (at pp. 49, et seq.) that the formal delivery of possession ("traditio") was once considered, in the land law of Prussia, to be essential to the transfer of ownership, but that the legislation of 1872 marked a change and made registration the important thing in the transfer of land. Thus in s. 1 of the Prussian Land Statute of 5th May, 1872, it was provided that in cases of voluntary alienation of land, ownership could only be acquired by the entry of the transfer in the Ground Book by virtue of what was termed a "cession". The way in which this cession was to take place was described in s. 2: it was by the verbal declaration of the entered owner before the Ground Book authority that he agreed to the entry of the acquirer as owner and the simultaneous declaration of the latter that he applied for that entry. (In New Guinea, by s. 2 of the Ordinance of 20th July, 1887, it was specially provided that these declarations might be written and need not be made simultaneously.) The Prussian Statute of 1872 did not, apparently, give entries in the Ground Book the conclusive character that appertains to registration under a Torrens system because by ss. 9 and 10 of that Statute, the entry of any transfer in the Ground Book and the consequences of such entry of any transfer might be attacked, as might also the transactions on which "cessions" before the Ground Book authority were based; again (by s. 12), some rights over the land of another did not require registration to be effective even as against a registered owner. Before referring to sections in the Statute dealing with prescription or usucapion in the case of land, I may mention that in the "Encyklopaedie der Rechts-Wissenschaft" (or Encyclopaedia of Legal Knowledge) edited by Professor Birkmeyer and published in 1901, it is stated (at p. 317) that whereas the doctrine of prescription in the matter of land once had a wide acceptance in the Germanic States, modern Ground Book legislation tended to abolish it, sometimes (as in Saxony and Hamburg) wholly, and sometimes (as in Prussia) as against the registered owner. (A comparable state of affairs exists today in the Australian States, some allowing prescription as against a registered owner a place in their Torrens Acts, others allowing it none.) In s. 6 of the Prussian Land Statute of 1872, it was expressly provided that the acquisition of ownership of land by usucapion could not take place against a registered owner: and by s. 7, persons whose ownership was disputed were not allowed to rely on prescription as a technical defence.

But s. 4 of the Imperial Ordinance of 20th July, 1887, as we have seen, made Prussian law inapplicable in New Guinea to the acquisition of ownerless land or to native land; and by the same Ordinance (and save for the exceptional case of property rights duly acquired before certain dates, only the New Guinea Company could occupy ownerless land or contract for the acquisition of land from natives—and this subject to rules which were to be framed and were to be approved by the Imperial Chancellor: s. 5. These definite provisions would seem to point to the conclusion that the Imperial German Government intended that land might only be acquired from natives in the manner prescribed and did not intend that non-natives should be able to acquire ownership of native land by prescription. The rules laid down on 10th August, 1887 by the Directorate of the New Guinea Company with the sanction of the Imperial Chancellor for the procedure to be adopted by the company in occupying ownerless land and purchasing native land point to a similar conclusion. These rules were elaborate and strict and may still be studied with profit; the instructions given, for instance, as to the exhaustive preliminary inquiries that were to be made before the company occupied land as ownerless do not seem to square with any intention to permit the company to squat on native land: see German Colonial Legislation, vol. I, p. 472. As to non-native land in New Guinea, the Prussian law made applicable in the colony presumably applied, that is to say, ownership could not be acquired by usucapion as against a registered owner.

On 30th July, 1887, and pursuant to the powers given in s. 3 of the Imperial Ordinance of the 20th of that month, regulations were issued by the Imperial Chancellor for the institution of a Ground Book system in the colony of New Guinea. In due course Ground Book districts were defined and Ground Books opened therein. The Imperial Chancellor’s regulations were procedural: see German Colonial Legislation, vol. I, p. 475.

The New Guinea Company finally ceased to administer the colony in 1899. On 7th October, 1898, an agreement was concluded between the Imperial Chancellor and the company whereby, as from 1st April, 1899, the German Empire was to take back the sovereign rights the exercise of which had been delegated to the company by the charters of 1885 and 1886, and the company agreed to renounce, in favour of the Empire, the special rights it had been granted under those charters, e.g., the exclusive right to take up ownerless land and to contract with natives for land: see Collected Laws, etc., of German New Guinea, at p. 8. By an Imperial Ordinance of 27th March, 1899, provision was made for the assumption of full sovereignty in New Guinea on 1st April of that year, the cancellation of the New Guinea Company’s charters of 1885 and 1886, and the transfer of the company’s exclusive rights to the Fiscus of the colony: see German Colonial Legislation, vol. IV, p. 50. It would appear that the close of last century was marked by important legal reforms in Germany—e.g. the Civil Code was drafted and came into force on 1st January, 1900; and these reforms were not confined to the Fatherland.

On 7th April, 1900, an Imperial statute was passed which brought the law relating to consular jurisdiction into line with the reforms at home: see Grotefend’s Collected Legislation, 1900, p. 314. Thus in s. 19 of the statute, it was enacted that persons under consular jurisdiction should (so far as there was nothing to the contrary in the statute) be subject to the Imperial statutes relevant to civil rights and the general law of Prussia. A certain field was left for legislation by means of Imperial Ordinances, however; e.g., by s. 21, land matters in consular jurisdictions might be specially regulated by Imperial Ordinances. Another Imperial Statute—the Colonial Statute of 25th July, 1900—provided for the application to the colonies, with appropriate modifications, of the provisions of the consular jurisdiction statute of 7th April, 1900; the Imperial Chancellor was empowered to proclaim the full text of this statute and this he did on 10th September, 1900: See Grotefend’s Collected Legislation, 1900, p. 778 and Collected Laws, etc., of German New Guinea, at p. 73.

On 21st November, 1902, an Imperial Ordinance was promulgated concerning land and rights over land in the German colonies, and came into force on 1st April, 1903: see Collected Laws, etc., of German New Guinea, p. 133. By s. 1 of that Ordinance, the law referred to in s. 19 of the Consular Jurisdiction Statute of April 1900, was, subject to the Ordinance, made applicable in the colonies. In this way, e.g. (and in so far as they were not expressly modified or made inapplicable) the German Civil Code with its introductory Act and the Imperial Ground Book Ordinance of 24th March, 1897 (printed in Grotefend’s Collected Legislation, 1897, p. 137), became law in New Guinea. Regulations made by the Imperial Chancellor on 30th November, 1902 (under powers given in the Ordinance of the 21st of that month) related to Ground Book procedure and also prescribed elaborate rules for the surveys of land: see German Colonial Legislation, vol. VI, p. 10.

The German Civil Code, like the Prussian Land Statute of 1872, provided that in the transfer of land or the creation of rights over land two things were necessary, unless the law otherwise provided— first, a real agreement between the person entitled and the other party as to the transfer of title (which agreement had to be declared at the Land Registry in the simultaneous presence of both parties), and secondly, registration; (see ss. 873 and 925 of the Code; Dr. Chung Hui Wang’s translation). (In New Guinea the simultaneous presence of both parties was unnecessary nor did their declarations to the Ground Book official need to be made verbally: see s. 3 of the Imperial Ordinance of 21st November, 1902.) But in the Civil Code a greater measure of recognition was given to the doctrine of prescription in respect of land than was given in the Prussian Statute of 1872, as will be seen on reference to ss. 900 and 927 of the Code. Under s. 900 it was provided that a person who had been registered in the land register as owner of a piece of land, even though in fact he had not truly acquired ownership of it, nevertheless acquired the ownership thereof if his registration as owner had stood for thirty years and if during that time he had had proprietary possession of the land: the running of the period in his favour was suspended so long as an objection to the correctness of the register had been entered in the land register. The question arises as to whether s. 900 had a retrospective effect. Ordinarily, legislation is not given a retrospective effect unless the intention of the legislating authority to give it that effect is clearly expressed. In this connexion, also, it must be remembered that the Civil Code applied to the Germanic States generally and that the local laws of these States differed on the subject of usucapion in the case of land. In Articles 169 and 189 of the introductory Act to the Code, the intention of the legislature seems to have been to give what I might call a partially retrospective effect to the prescriptive provisions of the Code in those States which had had similar local provisions before. But under the former law of the State of Prussia, as we have seen, and therefore in New Guinea, title to land by prescription could not be acquired as against the registered owner. I should add that Article 189 of the introductory Act to the Code was made inapplicable in the case of New Guinea by s. 3 of the Imperial Ordinance of 21st November, 1902. It would seem to follow that s. 900 of the Code had no retrospective effect as far as New Guinea was concerned.

In s. 927 of the Civil Code, it was enacted that the owner of land might, if the land had been in the proprietary possession of another for thirty years, be excluded from his rights by public summons: but if the owner had been registered in the land register, the procedure by public summons was only permissible if the owner was dead or had disappeared and no entry requiring the consent of the owner had been made in the register for thirty years. Before the person who had obtained a decree excluding the owner could acquire ownership, he had to have himself registered as owner. It would seem that if s. 900 of the Code had no retrospective effect in New Guinea, s. 927 had none either.

But did ss. 900 and 927 of the Code permit the acquisition of ownership by prescription in the case of native lands in New Guinea? The answer would seem to be in the negative in view of the Imperial Government’s land policy and land legislation for the colony. As already noted, the New Guinea Company’s exclusive rights regarding the acquisition of land were surrendered to the German Empire when the company finally ceased to administer the colony in 1899, and those exclusive rights, by the Imperial Ordinance of 27th March, 1899, were transferred to the Fiscus of the Colony. In the Imperial Ordinance of 21st November, 1902, (already referred to), the control over the acquisition of land in the colonies was not relaxed. Under s. 5 of that Ordinance, the conditions applicable to the acquisition of rights to ownerless land and to Crown land were to be determined by the Imperial Chancellor and, with his sanction, by the governor. Section 6 of the Ordinance contained special provisions regarding native lands. By sub-s. (1) of that section, and in so far as it was in the public interest, the Imperial Chancellor and the governor (with the Chancellor’s sanction) were empowered to attach special conditions to the acquisition of ownership or rights over native land; they could make such acquisition subject to government approval or even prohibit it. (In 1904, the governor of German New Guinea, under the powers given him by this subsection, did attach conditions to the acquisition of native lands, to which conditions I shall refer again presently.) By sub-s. (3) of s. 6, the Imperial Chancellor and the governor (with the Chancellor’s sanction) were also empowered to decree that, in favour of the natives, other forms of servitudes and encumbrances than those described in the third book of the Civil Code were permissible, and that native rights of user even though they were non-hereditary and non-transferable, might appear in the Ground Book folios. This provision appears to have cut the Gordian knot of doubts and difficulties in respect of the reservation and protection of native rights over land acquired from them. Native rights such as those mentioned in s. 6 (3) did not necessarily fit snugly within the four corners of the encumbrances which were known to Prussian law and could be protected by entry in the Ground Book; again, some native rights were analogous to those rights over land which did not require registration for their protection. As we have seen in other cases before this Court, the New Guinea Company and the German Government, even before the passing of s. 6 (3), held that encumbrances over land in favour of natives might have a special character and, indeed, special entries were made in the Ground Book to protect such encumbrances. But s. 6 (3) put these matters beyond all doubt by the recognition given to the special character of some native encumbrances and the provision for safeguarding them by registration.

In another Imperial Ordinance, the Expropriation Ordinance of 14th February, 1903, it was enacted (s. 32) that, where land had definitely passed from the possession of natives to that of non-natives, it might be expropriated in so far as this appeared necessary to the government to ensure to the natives the possibility of an economic existence, and, in particular, a home: see German Colonial Legislation, vol. VII, No. 17, p. 39.

On 22nd July, 1904, the governor of German New Guinea, under the powers given him in the Imperial Ordinance of 21st November, 1902, prescribed conditions regarding the occupation of ownerless land and its disposal and the acquisition of native land by agreement with natives: see German Colonial Legislation, vol. VIII, p. 157. He ordered that these matters pertained exclusively to the Fiscus of the colony and that areas necessary for the livelihood of the natives (in particular, dwelling places, garden lands and palm groves) were precluded from acquisition. He also ordered that further conditions governing the acquisition by the Fiscus of the native land and the resale thereof would be laid down by the governor, either generally or for each individual case, as he deemed fit; and general conditions relating to the cession into private ownership of lands that had been acquired by the Fiscus were published in 1904, 1910, 1912, and 1914.

As the application of the Civil Code in the colony was subject to the provisions of the Imperial Ordinance of 21st November, 1902, and s. 6 of that Ordinance, coupled with the orders of the governor made in pursuance of its provisions, permitted native land to be acquired only under specified conditions (which did not include acquisition of ownership by prescription), it would appear to follow that the intention of the German Government was that no acquisition of ownership over native land should occur, as against the natives, by prescription. But even if this conclusion is incorrect and s. 900 of the Civil Code did indeed apply to native land in New Guinea, that section (because of the Laws Repeal and Adopting Ordinance) ceased to have this effect some years before the thirty years prescriptive period mentioned in it could run.

I need not dwell upon the period, 1914-1921, when the Territory was under military occupation by Commonwealth forces, because the terms of the capitulation of September 1914 provided that the existing laws were to remain in force in New Guinea so far as this was consistent with the military situation. The Land Ordinance of 7th December, 1919, which made land dealings void unless they had ministerial approval, has no special relevance to the questions now under consideration.

I now come to 9th May, 1921, the day on which the New Guinea Act 1920 (a Commonwealth Act), came into force and New Guinea became a Territory of the Commonwealth of Australia under civil administration. On the same day the Laws Repeal and Adopting Ordinance 1921, (since amended), came into force. As I have previously mentioned, s. 4 (1) of that Ordinance provided that, subject to the Ordinance, the laws in force in New Guinea prior to 9th May, 1921, should cease to apply. Subsection (2) of that section preserved rights, titles, obligations or liabilities "already acquired accrued or incurred". So too, as already noted, s. 8 preserved rights, titles, estates, claims or interests, vested or contingent at 9th May, 1921, to or over any land within the Territory and all questions of law affecting these matters were to be dealt with in accordance with the laws in force in the Territory at that date. By s. 9, nothing in the Ordinance was to "affect the right, title, estate, or interest, vested, possessory or contingent" of natives "to any land within the Territory" or any customary user by natives of market places and landing places or any existing native right, privilege or custom in relation to cultivation, barter, hunting and fishing. By s. 10, native tribal "institutions, customs, and usages" were permitted to continue provided they were not repugnant to the law of the Territory or general principles of humanity. In s. 16 (as amended by Ordinance No. 36 of 1923) it was provided that "the principles and rules of common law and equity that were in force in England on 9th May, 1921" should "be in force in the Territory" provided they were applicable to the circumstances of the Territory and not repugnant to other law of the Territory.

The provisions of ss. 4 and 8 of this Ordinance make it clear that if, under the laws in force here prior to 9th May, 1921, the acquisition of title to land by prescription was permissible and had in fact occurred, that title had to be recognized.

But let us assume, for the moment, that the law in force before 9th May, 1921, did not allow anyone to acquire ownership of native land by prescription: on that assumption have the laws in force in the Territory on and after 9th May, 1921, permitted the acquisition of ownership of native land by prescription? Or, to put the question in another form, are the English common-law rules regarding prescription in the case of land in force in the Territory? It is admitted that no legislation was introduced into the Territory, on 9th May, 1921, or has been since, similar to the English Prescription Act (which, by the way, did not oust the English common-law rules on the subject). The English common-law rules, which, by s. 16 of the Laws Repeal and Adopting Ordinance, were to be in force in the Territory, were to be so—provided they were applicable to local conditions and were not repugnant to other law from time to time in force here. These common-law rules included those relating to prescriptive title to land which, therefore, can only be in force here subject to the conditions of local applicability and non-repugnance to the local law. But Mr. Crown Law Officer submitted that these rules may not apply in the present case because, in his opinion, they have been virtually repealed—within the ambit of s. 27c of the Lands Registration Ordinance—by the provisions of that section. That section reads as follows: "In the determination of any matters referred to it under s. 22 or s. 24 of this Ordinance, notwithstanding anything contained in the Laws Repeal and Adopting Ordinance 1921-1928, the Court shall not be bound by the principles and rules of common law and equity which were in force in England on the 9th day of May, 1921, but may be guided by such principles of right and good conscience as it deems to be applicable to the matters referred to it, having regard to the tribal institutions, customs and usages of the natives of the Territory and to the conditions existing in the Territory since its occupation by persons other than natives." The learned law officer has contended that, as the section provides that in certain circumstances this Court "shall not be bound by the principles and rules of common law", those rules are therefore so far abolished or repealed. I find myself unable to agree with this extreme and, I think, unreasonable interpretation of the words of the section. It would be as logical to argue that, because the section continues—"but may be guided by the principles of right and good conscience, etc." the principles of right and good conscience are also set aside. There is a well-established rule of interpretation that where one possible interpretation of a statutory provision is reasonable and another possible interpretation is less reasonable or leads to absurdity, Courts will adopt the more reasonable interpretation: see Caledonia Railway Co. v. North British Railway Co.[dxli]7; Countess of Rothes v. Kirkcaldy Waterwork Commissioners[dxlii]8; Metropolitan Coal Co. of Sydney Ltd. v. Australian Coal and Shale Employees’ Federation[dxliii]9. I therefore adopt what appears to me to be the more reasonable interpretation of s. 27c of the Lands Registration Ordinance, namely, that in the determination of matters referred to it under s. 22 or s. 24 of the Ordinance, the Court will follow the principles and rules of common law and equity that were in force in England on 9th May, 1931 (provided they are applicable to the circumstances of the Territory and are not repugnant to other local law), unless the Court comes to the conclusion that to do so would be to clash with the principles of right and good conscience that it deems applicable to the matters referred to it, having regard to native institutions, customs and usages and to the conditions of the Territory since its occupation by non-natives. This interpretation, in my opinion, is the plain meaning of the English of the section and gives effect to the obvious intention of the legislative authority, namely, the administration of evenhanded justice between two very different peoples, non-natives and natives.

The position then is this: in cases like the present reference, the Court will apply the English common-law rules of prescription provided they are applicable to the circumstances of the Territory and are not repugnant to other local law and provided also the Court does not deem their application contrary to the principles of right and good conscience applicable in the circumstances.

The question remains—if s. 27c of the Lands Registration Ordinance has not virtually repealed (within its scope) the rules of common law, do the English common-law rules of prescription apply in this case?

The policy of the present administration in regard to the acquisition of native land in the Territory is indicated in the Land Ordinance 1922-1929. Section 6 of that Ordinance is as follows: "Save as hereinafter provided a native shall have no power to sell lease or dispose of any land, and any contract or agreement made by him so to do shall be void." By s. 8, however, the administrator is empowered to purchase or lease land from native owners provided they are willing to dispose of it and the administrator "is satisfied, after reasonable inquiry, that the land is not required or likely to be required by the owners". This provision relates to the voluntary alienation of native land by agreement. But what of involuntary alienation? May ownership of native land be acquired by non-natives by prescription? Section 16 (1) of the Land Ordinance provides that "except for temporary purposes or by virtue of some right or permission under this or some other Ordinance, no person other than a native shall occupy any land owned by natives and subject to this Ordinance no person shall occupy any land the property of the administration"; and by sub-s. (2) of s. 16 contravention of the provisions of sub-s. (1), persisted in after written notice to quit from the Commissioner for Lands or a District Officer, is made an offence. Squatting on native land cannot be classed as "right or permission under this or some other Ordinance": see s. 16. Occupation is the first step in any acquisition of title by prescription, and as occupation by non-natives of native land (except for temporary purposes or by virtue of some right or permission under an Ordinance) is prohibited by s. 16 or the Land Ordinance and measures are prescribed for its summary termination if begun, the intention of the legislative authority to prevent the acquisition by non-natives of prescriptive titles over land seems clearly enough expressed. Further, it is difficult, in face of s. 16, to see how the acquisition of prescriptive title over native land would be sustained, as the Courts will not presume the existence of a lost grant which, had it existed, would have been in contravention of a statutory provision or would have involved illegality: see Rochdale Canal Co. v. Radcliffe[dxliv]10 and Neaverson v. Peterborough Rural District Council[dxlv]11.

There is another reason which prevents the application of the common-law rules of prescription to the non-native possession alleged in the present case, and that reason is implicit in the common-law rules of prescription themselves. The common-law principle was that where there has been long, open and undisturbed but unexplained possession of land, the Courts would, if it were reasonably possible, presume that such possession had a lawful origin. Hence arose the fiction that such a possession pre-supposed a "grant once made and validly subsisting but since lost or destroyed". But the imagination of the Courts stopped short of presuming a "lost grant" when they had before them a "grant or other document which originated or might have originated" the long possession. In such circumstances "prescription had no place": see Labrador Co. V. The Queen[dxlvi]12. In the present case there is before the Court a document to which the claimed long non-native possession of the Mortlocks may well be referrable and I cannot, therefore, ignore the existence of that document and then proceed to presume some fictional "lost grant".

Mr. Crown Law Officer referred to a Queensland statute which has been adopted as a law of the Territory: the Statute of Frauds and Limitations 1867. But this Statute does not relate to the acquisition of land by prescription at all. It is a statute providing for the limitation of certain personal actions, actions of debt and so on, not a prescription Act.

Mr. Brown urged upon the Court the proposition that "the principles of right and good conscience" referred to in s. 27c of the Lands Registration Ordinance demanded that long non-native possession of land should not be disturbed. But however interesting speculations on such a proposition may be, it is idle to make them in advance for questions of possession notoriously depend on the facts and circumstances of each particular case. From the decision of the House of Lords in Lord Advocate v. Lord Lovat[dxlvii]13 the following passage may be quoted: "As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests—all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession." See also Johnston v. O’Neill[dxlviii]14 and Kirby v. Cowderoy[dxlix]15.

Mr. Brown also submitted that if the doctrine of prescription did not apply to land in the Territory, it ought to, and he invited the Court to make a rule of prescription. That invitation must of course be declined, for the province of a judge is to declare the law, not to make it. It is for the legislative authority to determine whether the doctrine of prescription should apply or not to native land in New Guinea, and the provisions of the Land Ordinance (especially s. 16 of that Ordinance) show, I consider, that the legislative authority has decided that prescription should not apply to native land in this Territory. The great divergence between the conditions in the Commonwealth of Australia (where prescription is known) and the conditions of this Territory suggests itself as one reason why the legislative authority for New Guinea has decided as it has.

Although long non-native possession as against natives does not of itself give title in the Territory, it does not follow that long non-native possession has no importance. It may be of the greatest importance as evidence of a duly acquired title.

As to the effect of the omission from the Ground Book of the name of three of the islands of the Mortlocks group mentioned in the indenture of 1886, I shall express no opinion until I have heard all the evidence.

So far, I have been considering questions that have been raised by learned counsel in this case.

But, before the hearing is continued and before the non-native parties proceed to present their side, the Court has to make up its mind upon another question. That question is this: Has the Court in this case been relieved of its duty under s. 26 (2) of the Lands Registration Ordinance by the way in which the Commissioner of Native Affairs has referred and presented the question of possible native rights to the Court?

In this connexion, it must be borne in mind that it is claimed that the natives of the Mortlock Islands, in a transaction of 7th June, 1886, sold to a non-native the whole of their isolated island group and everything on it: yet it appears that there are indigenous Mortlock islanders still living at the group. The Court, even apart from its duty under s. 26 (2) of the Lands Registration Ordinance, has a general duty to scrutinize closely any such alleged transaction. As was said in the judgment of the Privy Council in the case Re Southern Rhodesia[dl]16: "Private concessions of large extent and of ambitious character, when obtained by white financiers from untutored aborigines, are generally and justly objects of close scrutiny, but their Lordships are relieved from the duty of inquiring into the circumstances under which this grant was made by the fact that competent officials reported to the High Commissioner, after making full inquiry under his direction, that the concession had been properly obtained and that its terms correctly expressed Lobengula’s intentions and exactly reflected his understanding of the matter." In addition to this general duty, this Court has the further statutory one, imposed by s. 26 (2) of the Lands Registration Ordinance, which compels this Court to "take all measures which it deems fit in order to be informed as to any native rights or claims whatever affecting the land whether those rights or claims are mentioned in any affidavit or have been raised by any party or not". Even so, the practice of the Court has been to rely, unless there was reason to do otherwise, upon the Commissioner of Native Affairs; (the officer whose duty it is under the Ordinance to refer native claims to the Court), to see that all native claims affecting any land the subject-matter of a reference were before it. But, I repeat, the question arises in this case: Does the Court, having regard to the manner in which the commissioner’s reference has been made and presented to it, deem it necessary or unnecessary to take measures "to be informed as to any native rights or claims whatever affecting the land whether those rights or claims (have been) mentioned in any affidavit or have been raised by any party or not"?

The summons in this case was taken out by the Crown Law Officer, as solicitor for the commissioner, on the 8th of March, 1929, and was a summons under s. 24 of the Lands Registration Ordinance. That section was repealed and a new section inserted in its stead by the amending Lands Registration Ordinance 1929 which was dated the 11th of March, three days later than the date of the summons. As the section stood when the summons was taken out, the Commissioner of Native Affairs "whether he (had) been served with the notice and draft certificate referred to in s. 21 of the Ordinance or not" had to "refer the question of possible native rights in relation to land to the Court for inquiry and determination" (inter alia) "in every case where any natives (other than natives employed by the person in possession of the land (dwelt) upon any land owned, occupied or used by or for any person other than a native". Section 24, in its new form, makes it obligatory upon the commissioner to make the reference to the Court "in every case where he is of opinion that there are natives . . . having rights of any description, other than those appearing in the land register or in the draft certificate, over any land owned, occupied or used by or for any person other than a native". Thus under the section in its old form the reference by the commissioner had to be made just because natives (other than employees) were dwelling on the land in question, but under the new section, the forming of an opinion by the commissioner that natives have rights must precede his reference. In any reference by the commissioner nowadays, whether under s. 22 or s. 24 of the Ordinance, the commissioner’s opinion as to whether or not the natives have rights (other than those shown in the land register) is all-important. Under the new s. 24, as we have seen, if the commissioner is of opinion that the natives have rights he makes his reference to the Court. Similarly under s. 22, if he thinks natives have rights he refers the matter to the Court, but if he thinks they have none (other than those in the Register) he issues his certificate and the matter need never come to the Court at all. In the present case, though the summons and the commissioner’s affidavit were filed before the new s. 24 became law, the reference was apparently based on more than the mere fact that natives were dwelling at the Mortlocks, for in par. 3 of the commissioner’s affidavit nothing is said about natives dwelling on the land but the ownership of the Mortlocks group (and in particular the ownership of three of the islands thereof) is claimed on behalf of "the natives" (whoever "the natives" may be). Presumably, therefore, the commissioner had formed some opinion and had had some ground for forming it, before deposing to par. 3 of his affidavit, that a native claim of some sort existed affecting land at the Mortlocks. Presumably also, if the commissioner’s reference had been launched solely because of mere native residence at the Mortlocks and without any conviction on his part that that residence was based upon a right, the commissioner, after the new s. 24 became law, would have taken steps to acquaint the Court of that fact.

Section 25 (1) of the Lands Registration Ordinance provides that references by the Commissioner under s. 22 or s. 24 of the Ordinance shall be by summons. Subsection (2) of s. 25 is as follows: "There shall be filed with the summons an affidavit setting forth the substance of the entries in the Land Register referring to native ownership or rights or the nature and extent of the rights claimed by natives or other reason for the reference, as the case may be." As I interpret s. 25 (2) it means that the affidavit should so clearly and fully set out the substance of the entries in the Land Register, the nature and extent of the native claims, or other reason for the reference, as the case may be, that other interested parties will know exactly what they have to face. The Court also should be reasonably able to ascertain, from the affidavit, the reason for the reference and what the native claim is. Obviously the less the information the Court can gather from the affidavit about the native claim or the reason for the reference, the more likely it becomes that the Court will have to take measures under s. 26 (2) to be informed if all native rights and claims affecting the land are before it. An affidavit, by the commissioner, for example, which clearly and fully sets out the nature and extent of the native claims has definite advantages: such an affidavit would indicate that a proper preliminary investigation of the claim by the commissioner or competent officers had been made and so relieve the Court of some of the weight of its duty under s. 26 (2); further, such an affidavit might well promote a settlement between the parties before the hearing; again, it might make an adjournment to the land quite unnecessary; and certainly, such an affidavit would make for expedition. The aim, in framing these affidavits, should surely be to 1930 furnish the maximum, rather than the minimum, particulars of native claims. But again and again, during the past year, non-native parties have been brought to the Court on the summons of the commissioner to face native claims of which the most nebulous particulars were given in his affidavits: in common justice these objections could not be ignored and hearings had to be adjourned to permit the commissioner to amplify his affidavits. In some of the affidavits filed by the commissioner, for instance, the only particulars of the native claim consisted of the statement—"certain natives claim ownership of portion of the land". What natives? On what ground did they claim ownership? Of what portion of the land was ownership claimed? There was nothing to show in the affidavits. Those affidavits bore indorsements indicating that they had passed through the Crown Law Office, yet how such unsatisfactory affidavits were ever permitted to leave that office is hard to understand. On another occasion, when exception was taken to the dearth of particulars regarding the native claim in the commissioner’s affidavit, the Court was informed by the commissioner’s representative (an officer from the Native Affairs Department) that the summons had "only been brought on to have the Court’s ruling on s. 24". The commissioner’s representative then contended (as he said he had been instructed to do) that as s. 24 provided that the commissioner had, in certain circumstances, to refer the question of "possible native rights" to the Court "for inquiry and determination", this meant that all the commissioner had to do was to say, in his affidavit, that there was a possible native claim over land and then the Court had itself to inquire into the matter and determine it. The Court, in the course of its observations on that occasion, did not agree that this contention was sound and thereafter there was an improvement. In other cases, summonses have been brought on and applications immediately made on behalf of the commissioner for an adjournment to the land; but when the Court desired to be informed as to the necessity or desirability of such a step, adequate reasons could not be adduced because of lack of sufficient information about the native claims; in fact, the object of some of these applications for immediate adjournment to the land seemed to be to enable the commissioner to garner particulars of what in the meantime were "possible" native claims. A similar state of unpreparedness has been disclosed in cases where fuller particulars have been directed to be supplied by the commissioner; these particulars have not been forthcoming, sometimes, for months. In fairness to the commissioner it must be said that he has informed the Court that he has experienced great difficulty in the preparation of his references because he has found it impossible to have inquiries expeditiously made in the districts and reports sent in, and that he has been further hampered by delays in the issue of draft certificates, lack of staff, difficulties of transport and communications, etc. Doubtless these difficulties have existed and do exist, but while it is to be hoped that they are being solved, especially as the Ordinance has been in force since 1924, their solution is not the concern of this Court.

The Court, however, is concerned with the manner in which the commissioner’s references come before it and I must repeat what I have had occasion to say before, that unsatisfactory affidavits and slackness generally in this matter will not be tolerated. It must not be forgotten that references by the commissioner lead to orders of the Court that native rights do or do not exist affecting land and, when native rights are found to exist, to directions that they shall be protected by entries in the certificates of title about to be issued. These certificates of title are Torrens titles and are as final and conclusive as the law allows; hence the necessity for the greatest care. Except for some cogent reason, native claims should not be referred to the Court until they have first been investigated by competent officers and properly got ready.

In the present instance, the particulars of the native claim given by the commissioner in par. 3 of his affidavit were these: "The ownership of portion of the land known as the Mortlock Islands group situate in the administrative district of Kieta in the Territory of New Guinea is claimed on behalf of the natives and in particular (but without limiting the claim) the ownership of the islands Gunuhare, Anuke, and Gungurua." This paragraph did not indicate what portion of the land in the group was claimed; it did not identify the natives on whose behalf ownership was claimed; nor did it disclose on what ground such ownership was claimed. Nothing at all was said in it about the indenture of 7th June, 1886. Further if it were the case that the reference had been based on the fact that natives other than native employees of non-natives were dwelling at the Mortlocks, nothing was said in the affidavit about this or about any native right or claim so to dwell.

The summons came on for hearing on 9th May of last year but an adjournment to a day to be fixed was agreed to, Mr. Brown being unable to proceed because his client’s local attorney had just, he said, been "deported" from the Territory. Mr. Brown has told the Court (and he has not been contradicted) that he wrote on the following day (10th May) to the Crown Law Office asking for fuller particulars of the native claim but without success.

Ten months later, on the 11th of last month, the matter again came on for hearing but none of the parties appeared to be ready to go very far with it, apparently in the expectation that the Court might adjourn to the Mortlocks. On that occasion the commissioner’s affidavit was before the Court but had not been amplified in any way, and Mr. Brown drew attention to its vagueness and the consequent impossibility of his client’s knowing what she had to face. The Crown Law Officer stated that he had advised the Commissioner of Native Affairs not to refer this matter to the Court because of long non-native occupation at the Mortlocks and the difficulty, now, of getting reliable evidence about what may or may not have happened in 1886. He also told the Court that the reason the ownership of the three islands specially named in the commissioner’s affidavit was particularly claimed was that the names of those three islands had been omitted from the entry in the Ground Book, though personally he thought they had been omitted by mistake. There was some confusion that morning as to which of the Mortlock Islands were which. Shortly before the hearing was adjourned that day to enable this confusion to be cleared up, the Crown Law Officer announced, on behalf of the commissioner, that he would claim only the three islands particularly named in the commissioner’s affidavit—Gunuhare, Anuke and Gungurua; but he added that because of s. 26 (2) of the Lands Registration Ordinance the Court had to contemplate the possibility of there being native claims which did not happen to be mentioned in an affidavit.

On the 24th of that month, the hearing was continued, and evidence was given by the Registrar of Titles (who produced the indenture of 1886, the Ground Book entry respecting the Mortlocks, and German files relating to the acquisition and registration of the land) and by the Commissioner of Native Affairs, before the legal questions were raised with which I have been dealing this morning. It was difficult to get much that was definite from the commissioner when he was giving his evidence, as the preliminary inquiries into the native claim had been made, not by him personally, but by Mr. Chinnery, who is absent from the Territory. He said that Mr. Chinnery had not embodied the results of his investigations in an affidavit but had only written him a letter on the subject. This letter was not produced and Mr. Crown Law Officer intimated that he considered it should not be produced. The commissioner, who had once claimed on behalf of natives the whole of the Mortlocks and who told Mr. McLennan that he was aware of the indenture of 1886 when he first made the reference, stated in the box that the reason he now claimed only three of the islands was simply because those three islands had not been registered in the Ground Book and he thought they had been deliberately omitted, and because he did not think it worth while contesting the indenture of 1886 further. I gathered that "the natives" referred to in the commissioner’s affidavit were those indigenous natives who are still living at the Mortlocks. The commissioner said he thought such natives were living at the Mortlock islands known as Taku, Anuke and Gunuhare because he had heard so from a Mr. Goodson who lives at the Mortlocks, but he could not say whether all the natives living at those islands were aboriginal Mortlock islanders only or included indentured native labourers from elsewhere who had settled at the Mortlocks.

Though many months have passed in which it might have been amplified and verified, this is the information that is placed, not to say thrown, before the Court. In my opinion, our legislative authority with great foresight has framed s. 26 (2) of the Lands Registration Ordinance to meet circumstances such as I have just been describing, and because of those circumstances I have no hesitation whatever in saying that the Court does not feel relieved of its duty under that section to take measures "in order to be informed as to any native rights or claims whatever affecting the land" at the Mortlocks. I propose therefore, if counsel for the parties can suggest no better course, to adjourn the hearing of this summons to a day to be fixed, and to the Mortlocks.

Hearing adjourned to the Mortlock Islands.

Solicitor for the Custodian of Expropriated Property: A. N. McLennan.

Solicitor for Phoebe Kroening: E. T. Brown.

Solicitor for the Commissioner of Native Affairs: G. Hogan, Crown Law Officer.

Note: On 22nd May, 1930, the Court determined the merits of the case and found that the land was subject to the right of the indigenous natives of the said land to live on and to take and use food and material necessary for their ordinary existence from the said land. No copy of this judgment now exists.

[dxxxv][1899] AC. 572.
[dxxxvi](1859) 13 Moo. P.C.C. 22; 15 ER. 9.
[dxxxvii][1919] AC. 211, at p. 233.
[dxxxviii](1775) 1 Cowp. 161; 98 ER. 1021.
[dxxxix](1844) 11 Cl. & Fin. 85; 8 ER. 1034.
[dxl][1901] AC. 373.
[dxli](1881) 6 App. Cas. 114.
[dxlii](1882) 7 AC. 694, at p. 702.
[dxliii](1917) 24 CLR. 85, at p. 99.
[dxliv](1852) 18 QB. 287.
[dxlv][1902] 1 Ch. 557, at p. 573.
[dxlvi][1893] AC. 104, at p. 122.
[dxlvii](1880) 5 A.C. 273, at p. 288.
[dxlviii][1911] A.C. 552, at p. 583.
[dxlix][1912] AC. 599, at p. 603.
[dl][1919] AC., at p. 236.