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[1969-70] PNGLR 381 - Director of District Administration v Administration of the Territory of Papua and New Guinea (re Tol Foreshore Reserve)
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
DIRECTOR OF DISTRICT ADMINISTRATION AND OTHERS
V.
ADMINISTRATION OF THE TERRITORY OF PAPUA NEW GUINEA (RE TOL FORESHORE RESERVE.)
Rabaul
Frost J
13-14 May 1970
3 June 1970
TORRENS SYSTEM - Registration of title - Restoration of title - Legislative provisions for protection of native customary rights - Inquiry into those rights - Report showing rights claimed - Certificate that no native claims made - Copy report furnished with certificate - Whether certificate conclusive - Jurisdiction to make final order acting on certificate - New Guinea Land Titles Restoration Ordinance 1951-1966, s. 36[dli]1 .
COURTS AND JUDGES - Judicial tribunal - Practice - Manner of authenticating and perfecting orders made - Tribunal only had jurisdiction under statute to make orders - Statute providing for seal of tribunal and its use for authentication - Judicial notice of seal required by statute - Order issued under seal signed by Acting Registrar of tribunal - Provisional order signed by Acting Registrar without seal - Validity of orders - Land Titles Commission Ordinance 1962-1966, ss. 11, 12, 34, 46[dlii]2 .
Sections 11 and 12 of the Land Titles Commission Ordinance 1962-1965, as in force at the time of the perfecting of the subject provisional and final orders, provided for the seal of the Land Titles Commission, its use for sealing adjudicating records and other documents issued from the Commission requiring its seal, and that judicial notice be accorded to the seal if it is purported to be attached or appended to a record or other document issued from the Commission. A provisional order bore no seal and was signed by the Acting Registrar of the Commission. The final order, made consequent upon the provisional order and which recited the making of the provisional order, was signed by the Acting Registrar and sealed. Both orders were published in the Gazette as required by ss. 34 and 46 of the Ordinance.
Held:
On an appeal to the Supreme Court of the Territory of Papua and New Guinea in which the validity of the orders was challenged, that the orders were valid (a) on the ground that the final order which bore the seal must be within the category of documents requiring to be sealed under ss. 11 and 12 and the recital in that final order of the provisional order could be regarded only as recognition of the latter order as a valid order of the Commission, and (b) on the further ground that by reason of their being gazetted the orders should be assumed to have been properly made by the Commission.
After the provisional order under the New Guinea Land Titles Restoration Ordinance 1951-1965 was made, the Director of District Administration, having received a field officer’s report capable of a construction that a native community was claiming customary rights in the subject land, delivered to the Land Titles Commission a copy of that report together with a certificate under s. 36(b) of that Ordinance to the effect that, to the best of the Director’s knowledge, information and belief, there were no native claims to the subject land. The Land Titles Commission made a final order relying on the certificate.
Held:
On appeal to the Supreme Court of the Territory of Papua and New Guinea against the final order, that no certificate had been duly given under s. 36(b) and therefore the Land Titles Commission had no jurisdiction to make the final order.
APPEAL under the Land Titles Commission Ordinance 1962-1965.
By a claim made on 4th September, 1958 under the provisions of the New Guinea Land Titles Restoration Ordinance 1951-1955 the Administration claimed a freehold title to certain land known as Tol Extended Foreshore Reserve, Portion 540, Wide Bay, District of East New Britain. No other description or particulars of title to the land were given.
In the provisional order made on 30th April, 1967, the Land Titles Commission provisionally restored absolute ownership of the land to the Administration.
Patrick Petau, a field assistant, made inquiries on behalf of the Director of District Administration on 6th July, 1967 and furnished the following report:
“N.G.L.T.R.O.—Provisional Order Investigation
DISTRICT:—East New Britain
N2>1. Name of Property:—Tol Extended Foreshore—Portion 540. Date of Provisional Order:—
N2>2. Adjoining Owners:—
(a) Generally northern boundaries:—Tol Extended.
(b) Generally southern boundaries:—Wide Bay Waters.
(c) Generally western boundaries:—Kauelka & Kuvaduka. clans of both villages, Marunga & Kuvademki.
(d) Generally eastern boundaries:—Tol Portion 18.
N2>3. Those Present:—
Maindu-Sisi—Tultul of Marunga—original owner.
Masava-Dai-Luluai of Kuvademki—original owner.
Ngelena-Karekam of Kuvademki—original owner.
Setauva-Mandenga of Kuvademki—original owner.
N2>4. Although the property had never been paid for, the owners made no claim or objection to the property. The property remains public and may be used for public purposes.
Date of Investigation: 19th June, 1967.
Investigating Officer:—Patrick Petau F.A.”
As a result of this report, the Director of District Administration certified under s. 36(b) of the New Guinea Land Titles Restoration Ordinance 1951-1966 that, to the best of his knowledge, information and belief, there were no native claims to the land.
The certificate together with Patrick Petau’s report were filed with the Land Titles Commission.
On 30th October, 1967 the Land Titles Commission made a final order restoring absolute ownership of the land to the Administration.
Upon being given notice of the making of the final order the native appellants objected and claimed the land. The Director of District Administration and the native appellants then instituted this appeal against the final order.
Counsel:
O’Neill, for the appellants.
Casson, for the respondent.
Cur. adv. vult.
3 June 1970
FROST J: The first ground of appeal was that the provisional order made on 30th April, 1967 was invalidly made, being made by a person purporting to be the Acting Registrar, Land Titles Commission, and the same particulars of invalidity are alleged in respect of the final order.
I gave leave under this ground of appeal for Mr. Casson to rely on matters of facts additional to the evidence contained in the appeal book, viz. an affidavit sworn by Mr. Oliver, the Acting Registrar, and certain extracts from the Government Gazette, to which I shall refer later. This was not fresh evidence on the issues before the Chief Commissioner, and I considered that it was admissible on the issue of the validity of the final order in the same way as evidence can be called of the relevant facts when the order of a tribunal is impugned for failure to observe the principles of natural justice.
Under the New Guinea Land Titles Restoration Ordinance 1951-1966 (the Restoration Ordinance) as it was in effect when both the provisional and the final orders were made, only the Commission had power to make such orders, so that if the orders were in fact made by the Acting Registrar, they are invalid. The only relevant statutory provisions are s. 11(1) of the Land Titles Commission Ordinance 1962-1965 which provides that there shall be a seal of the Commission for the sealing of adjudication records and other documents issued out of the Commission and requiring to be sealed, and s. 12 which provides, so far as is relevant in this case, that all courts and persons acting judicially in the Territory shall take judicial notice of “...(c) the seal etc. referred to in the last preceding section if the seal etc. purports to be attached or appended to an adjudication record or other document issued out of the Commission”. Regulations were made under the Restoration Ordinance, the relevant regulation being reg. 30(A) which made provision for provisional and final orders of the Commission to be executed under the hand of the Registrar who should affix the seal or stamp of the Commission, as the case requires, at the time the signature had been made. However, on 22nd February, 1965 when the amendment adding that regulation was made, s. 69 of the Ordinance which gave power to make regulations, had been repealed and both counsel conceded that reg. 30(A) having been made was at that time made without power and was therefore void. In determining whether the orders are valid, it is important to note that each order purports to be made by the Land Titles Commission and that the signature of the Acting Registrar appears on the face of each order as an authenticating signature. Indeed, this was the practice of the Commission at the relevant period, as was deposed to by Mr. Oliver in his affidavit, all provisional orders and final orders being sealed with the seal of the Commission and signed by the Registrar or the person acting in his place. Mr. Casson argued that in the absence of specific provisions for the affixing of the seal of the Commission, it was sufficient to establish the validity of the orders if the Commission were shown to have complied with the practice and procedure which it had set up. See Re Emananus Island (Administration of the Territory of Papua and New Guinea v. Toilu Mai)[dliii]3. However, I consider that these orders can be sustained under ss. 11 and 12 of the Land Titles Commission Ordinance. The final order is authenticated as an order of the Commission by reason of the fact that it bears the seal of the Commission and must fall within the category of documents requiring to be sealed and, although the provisional order which is contained in the appeal book does not bear the seal of the Commission, the reference to the provisional order in the final order can be regarded only as a recognition of it as a valid provisional order of the Commission. There is another ground upon which both orders can be sustained. The provisional order was included in a list of provisional orders of the Commission duly gazetted, pursuant to the Land Titles Restoration Ordinance, s. 34, and the final order was also included in a list of final orders of the Commission, also duly gazetted, pursuant to s. 46, so that under the maxim omnia praesumuntur rite esse acta, the orders are assumed to have been properly made by the Commission. For these reasons, the first ground of appeal fails.
The second ground relied on by Mr. O’Neill was that the Land Titles Commission had failed to make inquiries in relation to and under s. 16 of the Restoration Ordinance to investigate the claim which was before the Commission. Mr. Casson argued that the fact that the Director had given a certificate under s. 36(b) to the effect that, to the best of his knowledge and belief, no native or native community was or asserted that he or it was at the appointed date entitled to any customary rights in respect of the subject land, absolved the Commission from any duty of further investigating the question of such native customary rights. Mr. O’Neill argued that not only was it open for the Commission to go behind the Director’s certificate, but that also it was its duty to do so. The relevant sections of the Ordinance are ss. 16(1) and (2), 36(b), 37, and 42(1), (2) and (4). Section 16 appears to cover the same ground as s. 42(1) and (2). Despite its terms, s. 42(2) would appear only to be capable of operation where there was neither an objection nor a reference, because it is possible that there might be a reference under s. 36(a) which would thus require a hearing, and yet no objection under s. 39(1). It is to be noted that the obligation of the Commission under s. 42(1) to investigate, hear and determine is restricted to claims, objections and references. An interest in land does not include native customary rights (s. 4) so that such rights cannot be the subject of a claim under s. 9, but there is nothing in ss. 39 or 40 to prevent native customary rights being made the subject of an objection. There is in s. 42(1) no reference to native customary rights, so that in the absence of any objection or reference, the only obligation of the Commission is to determine the claims before it. Reading s. 42(1), pursuant to its terms as subject to s. 37 of the Ordinance, in my opinion Mr. Casson’s submission is correct that if a certificate has been duly given by the Commissioner pursuant to s. 36(b), the Commission is absolved from the duty of investigating the question of native customary rights. Indeed, this could be the only purpose of such a certificate.
In this case, I consider that it is not necessary for me to deal with Mr. O’Neill’s submission as a general submission; it is sufficient that I should confine it to the facts of the present case. The important fact is that there was before the Commission, together with the Director’s certificate, a report by Mr. Patrick Petau, a field officer, dated 19th June, 1967 and from its heading—“N.G.L.T.R.O. Provisional Order Investigation”—it was obviously made for the purpose of the investigation of the question of native customary rights in respect of the subject land. The only inference which is open is that the Director’s certificate was based on that report. Indeed, I assume that it was normal administrative practice for the Director to require an investigation to be made. The point therefore in this case is whether the Commission should have gone beyond the certificate and examined the report to determine whether, on the basis of the report, the certificate was duly given.
Under the terms of s. 37 of the Restoration Ordinance, the Commission was bound to satisfy itself that a certificate had been furnished by the Director in pursuance of s. 36(b). Thus it was necessary that the certificate should be couched in the required terms, as indeed it was. It is unlikely that it would ever be questioned whether a certificate was given to the best of the Director’s belief, but if in fact the report upon which the Director based his certificate was before the Commission, the opportunity was thus presented to the Commission of comparing the certificate and the report and thus of determining whether if was a certificate given by the Director in fact to the best of his knowledge, as s. 36(b) requires.
It seems to me not too remote to have regard by way of analogy to the law governing the issue of prerogative writs. It is established that certiorari lies to quash the decision of an inferior tribunal for error of law on the face of the record: R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw[dliv]4. The Court, however, looks at the reasoned decision and such other documents as can be fairly said to be part of the record: Baldwin & Francis Ltd. v. Patents Appeal Tribunal[dlv]5, approving the statement of the law by Parker L.J. in the Court of Appeal. (Whether the analogy is complete so as to define the limits of any jurisdiction to go behind the certificate, it is unnecessary for me to decide.) In view of the conclusive effect of the certificate upon the question of native customary rights, and the policy of the Ordinance which is to ensure the preservation of such rights, in my opinion the Commission was required to go behind the certificate and look at the report as part of the record and determine whether the certificate was duly made pursuant to s. 36(b). If, on the proper construction of that report, it should appear that a native community was in fact asserting that it was entitled to customary rights in respect of the subject land, then whilst the Director’s certificate may be a certificate as to the matters stated to the best of his belief, it cannot be regarded as a certificate to the best of his knowledge, pursuant to s. 36(b). To act on such a certificate would thus be an error of law.
The relevant portions of Mr. Petau’s report are par. 3, which gives the names of the present appellants as “the original owners” and par. 4, which is in these terms:
“Although the property had never been paid for, the owners made no claim or objection to the property. The property remains public and may be used for public purposes.”
Of course, Mr. Casson strongly relied upon the words “the owners made no claim or objection to the property” as fully justifying the Director’s certificate, and they were no doubt the words the Director quite reasonably adverted to. But it is necessary to look at all the words used in that paragraph to ascertain the proper construction of the report. Mr. O’Neill argued that whilst the normal meaning of the words, that “the property had never been paid for”, might well involve a distinction being drawn between the contract for the transfer of the property and the payment of the consideration, when this expression was said to have been used by unsophisticated natives, it is equivocal and is capable of the meaning that the property had never been sold. He also argued that the words used meant that the owners were dedicating land which belonged to them for public purposes and that they refrained from making a claim or objection to the property so long, and conditionally, as it was used for those public purposes. In my opinion, Mr. O’Neill’s submission is sound and on its proper construction, the report is capable of bearing the meaning that the native communities of the two villages referred to claim they own the land, that they have never sold it and they are prepared to allow it to be used for public purposes, but it is to be implied that they reserve the right to make a claim if in the future it ceases to be used for public purposes. They were thus asserting customary rights to the land. For these reasons, in my opinion, no proper certificate within the meaning of the Ordinance was before the Commission and accordingly the Commission had no jurisdiction to make a final order in respect of the land.
I gave leave for Mr. O’Neill to add a further ground of appeal, that the Commission was wrong in law in making a final order in that there was no evidence to support it. This raises the question whether the effect of s. 42(2) of the Ordinance is to exempt orders made under it from being upset on appeal on the ground of such an error of law. However, it is unnecessary for me to decide this ground of appeal and I therefore express no opinion.
The final order must be quashed and the case remitted for further hearing before the Commission.
I assume that the Director will refer to the Commission the question of native customary rights under s. 36(a).
Final order quashed. Case remitted to Land Titles Commission for further hearing.
Solicitor for the appellants: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: P. J. Clay, Acting Crown Solicitor.
[dlian>The relevant statutory provisions are summarized in the judgment at pp. 384 et seq.
[dlii]The relevant statutory provisions are summarized in the judgment at pp. 384 et seq.
[dliii][1969-70] P. & N.G.L.R. 319.
[dliv][1951] 1 K.B. 711.
[dlv] [1959] A.C. 663, at pp. 678-679, per Lord Morton.
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