[1971-72] PNGLR 58

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

RAHONAMO

v

ENAI AND ANOTHER (RE HITAU.)

Port Moresby
Clarkson J

16 December 1970
3 February 1971
8 February 1971
25 February 1971
5 March 1971

EVIDENCE - Presumptions - Of regularity - Persons acting in public capacity - Due performance of duty - Purchase of native land by Crown - Inquiry before purchase of need of native owners - Administrator to be satisfied after inquiry before purchase - Evidence that purchase made eighty years ago - Presumption that enquiry made and that Administrator so satisfied.

Section 5 of the Land Regulation Ordinance 1888-1889 made it unlawful for the Administrator to purchase native land "until by sufficient enquiry he has become satisfied that such land, or the use or usufruct thereof, is not required nor likely to be required by the native owners". In 1890 and 1891 the Administration purchased some land known as Hitau pursuant to the Ordinance, and in 1892 made a Crown Grant of the land in favour of Robert Hunter. The land then remained in private hands until 1951 when it was compulsorily acquired. In 1968 the appellant claimed the land on behalf of his clan in proceedings before the Land Titles Commission. He contended that the original purchase was not valid because the Administration could not show that the inquiry required by s. 5 had been duly conducted. There was no direct evidence one way or the other on this issue. The Land Titles Commissioner held in favour of the appellant, but this finding was reversed on a review before three Commissioners. On appeal to the Supreme Court.

Held:

That there was a presumption that the prerequisites specified by s. 5 were duly completed, and this presumption had not been rebutted by the appellant.

McLean Bros & Rigg Ltd. v. Grice (1906) 4 C.L.R. 835 referred to.

Appeal under the Land Titles Commission Ordinance 1962-1967. On 5th March, 1970, the Land Titles Commission declared that certain land situated near Port Moresby and called Hitau was the property of the Administration of the Territory of Papua and New Guinea (the second respondent). The proceedings before the Commission were instituted by Bobby Gaigo Rahonamo, on behalf of himself and the members of the Laurina Clan of Tatana Village (the appellant), and in these proceedings Logai Enai, on behalf of himself and the members of his Clan of Roku Village (the first respondent), claimed the land to be native land owned by the last-mentioned Clan.

All other relevant facts appear in the judgment.

The appellant in person.

Counsel:

Ross, for the second respondent (the Administration of the Territory of Papua and New Guinea).
Lovering, appeared amicus curiae.
There was no appearance by or on behalf of the first respondent.
Cur. adv. vult.

5 March 1971

CLARKSON J:  These proceedings are concerned with the ownership of certain land, the native name of which is Hitau. To understand the issues involved it is necessary to follow in some detail the course of the proceedings.

The original application was made on 12th December, 1968, to the Land Titles Commission by Bobby Gaigo Rahonamo on behalf of the Laurina clan of Tatana. The application was that the land known as Hitau "be registered in the name of the Laurina clan". The land claimed was described as being "situated on the western shore of Port Moresby Harbour about between portions 510 & 348". The contest which now concerns the Court arises from the fact that the claimed land when accurately positioned comprises a substantial part of portion 510.

Section 14(2) of the Land Titles Commission Ordinance provides that subject to that and any other Ordinance, the powers functions and jurisdiction of the Commission may be exercised by a single Commissioner and on 7th February, 1969, the application came on for hearing before Mr. Commissioner Neilsen. No party other than the applicant appeared and after hearing witnesses for the applicant the Commissioner made an order declaring that the living members of the Laurina clan, the land custodians of which were named, were the sole beneficial owners by native custom of all interests in Hitau and directing the Registrar of the Commission to arrange for appropriate registration of the land if no appeal were lodged within the appeal period of ninety days. Section 14(3) of the Ordinance which had been added to the Ordinance on 21st November, 1968, provided in effect that the jurisdiction of the Commission in relation to a question as to whether any land is or is not native land should be exercised only by the Chief Commissioner sitting with two Senior Commissioners.

Although the question whether Hitau was or was not native land does not appear to have arisen at the hearing before Commissioner Neilsen it did thereafter when the Administration on 20th April, 1969, sought a review pursuant to s. 34 of the Ordinance of the Commissioner’s decision on the grounds inter alia that Hitau was Administration land and that the Commission had exceeded its jurisdiction. A review was also sought by one Logae Enai of Roku village who as it subsequently transpired claimed Hitau to be native land owned by a clan which he represented.

The provisions relating to a review of a decision of the Commission are contained in Div. 2 of Pt. IV of the Ordinance. Section 36 so operates that upon receipt of the applications for review which I have mentioned the decision should be reviewed by three Commissioners appointed by the Chief Commissioner of whom the Chief Commissioner or a Senior Commissioner should be one. There is no limitation placed on the grounds on which a review may be sought and the review appears to be almost in the nature of a rehearing in the fullest sense because the Commissioners are empowered to consider the records relevant to the decision, to hear such evidence and to make such inquiries as they consider necessary. They may also authorize one of their number to take evidence and make inquiries on their behalf. At the conclusion of the review they may confirm the decision under review or set it aside and substitute another decision.

It will be seen that the constitution of the Commission when exercising its jurisdiction to review may well be different from that when the Commission is called upon to determine at first instance whether any land is or is not native land and that when performing the latter function there is no power of delegating to one member of the Commission the taking of evidence or the making of inquiries.

It should also be noted that even when no party applies for a review, a decision of the Commission when constituted by a single Commissioner may be referred for review by the Chief Commissioner himself.

On 30th October, 1969, the matter came before the Commission constituted by the Chief Commissioner, Senior Commissioner Orken and Commissioner Page. The Administration’s claim clearly raised a question under s. 14(3) and the Chief Commissioner took the view that the Commission as then constituted did not comply with the requirements of that subsection and the proceedings were, after some discussion, adjourned. They were resumed on 19th November, 1969, before a Commission constituted by the Chief Commissioner and two Senior Commissioners. After hearing some evidence and argument the Commission adjourned after it had been announced by the Chief Commissioner that his two colleagues had authorized him to take any further evidence in the two applications for review.

Evidence was called before the Chief Commissioner on 24th and 25th November and 8th and 9th December. Addresses were then made to the full Commission on 3rd March and the Commission’s decision in which all Commissioners agreed was given on 5th March, 1970. The effect of the decision was to set aside Commissioner Neilsen’s order in favour of the original applicant and to substitute a decision that the land is the property of the Administration. The substance of the Commission’s findings was that the land in question had been owned by the Roku people who had lawfully sold it to the Administration.

The original applicant, now the appellant, appealed against the Commission’s decision but Logae Enai the representative of the Roku people not appealing has been made a respondent to the appeal.

The appeal is brought pursuant to Div. 3 of Pt. V of the Ordinance and the grounds of appeal are as follows:

"(a)    That the Land Titles Commission was wrong in law and/or exceeded its jurisdiction and/or acted in a manner contrary to natural justice in that:

(i)       it granted the requests of both Respondents for review of the decision of Mr. Commissioner Neilsen in this matter given the 7th day of February, 1969.

(ii)      it found that before its purported sale to the said Administration the land the subject of this appeal was owned by the Rokuan clan under native customary right.

(iii)     it found that there was a valid sale of the said land.

(iv)     it found that the alleged vendors of the said land were entitled to sell the said land.

(b)      That the following findings of the Land Titles Commission in the said Review of Decision were against the weight of the evidence that is to say:

(i)       the finding that the Rokuan clan and not the Laurina clan of Tatana Village was the owner of the said land by native customary right.

(ii)      the finding that there was a valid sale of the said land.

(iii)     the finding that the alleged vendors of the said land were entitled to sell the said land."

The hearing commenced before me on 16th December, 1970, when the appellant appeared in person and the first respondent Logae Enai did not appear. At my request the parties appeared again when I indicated further matters on which I desired to hear argument and this argument I heard on 8th and 25th February, 1971. On the latter occasion Mr. Lovering, instructed by the Public Solicitor, appeared as amicus curiae.

I turn now to a short history of the various dealings with the disputed land. I have already indicated that the boundaries of the land Hitau as claimed by the appellant do not coincide exactly with those of the land described as portion 510 which the Commission on review found to be the property of the Administration. There are what might be called small slivers of Hitau outside the western and eastern boundaries of portion 510.

By two agreements or transfers dated 14th May, 1890 and 24th March, 1891 certain named natives purported to sell to the Colonial Government of British New Guinea on behalf of and for the Crown an area of land exceeding 900 acres situated on the west side of Port Moresby harbour. At that time the Land Regulation Ordinance 1888 and its amending Ordinance of 1889 authorized the purchase on behalf of the Crown of lands from native owners in specified circumstances.

The Crown Lands Ordinance 1890 provided for the attestation by the Administrator in a written instrument of all acquisitions of lands and those two acquisitions were attested by an instrument dated 5th July, 1892 which was registered in vol. 1 folio 5 of the appropriate register.

The lands comprised in the earlier of these transactions included the whole of Hitau.

On 5th July, 1892, a Crown Grant, vol. 2 folio 2, of 15 acres 26 perches of land was made to Robert Hunter. This land is identical with that now known as portion 510.

By notice gazetted on 11th October, 1951, pursuant to the Land Acquisition Ordinance 1914 the Administrator declared that this land had been acquired for public utility which for the purposes of the Ordinance was declared to be a public purpose.

A number of matters are raised for consideration on this appeal and for the sake of convenience they can be placed in three categories. Firstly, there are allegations of jurisdictional error which rendered either the original hearing or the review of no effect. Secondly, the findings of fact made by the reviewing Commission are challenged and, thirdly, there are questions of law arising as to the validity of the purported purchase in 1890, the proper effect of the Crown Grant made to Robert Hunter on 5th July, 1892, and of the purported compulsory acquisition of the land in 1951.

[His Honour dealt with the first question and held that the proceedings before the Commission were correctly conducted and that there was no jurisdictional error by the Commission.]

The second broad ground of challenge was in respect to the findings of fact by the Commission on review. This of course is not a case in which I am considering whether a reviewing body was justified in reaching conclusions different from those reached by the original tribunal on the facts before the latter tribunal. Here, the substance of the case which succeeded on review was not before the original tribunal. Having perused all the evidence at both hearings before the Commission I am quite satisfied that the conclusions of fact reached by the Commission on review should not be disturbed.

The appellant sought to produce further evidence before me which was not before the Commission at either hearing and I reserved my ruling. It is unnecessary for me to decide whether on an appeal to the Supreme Court such as this as opposed to an appeal from a decision under the Land Restoration Ordinance this Court is empowered to receive further evidence because, even if such a power exists, the tests to be applied in deciding whether fresh evidence should be admitted are not satisfied here. Both documents were available for the earlier hearings and neither is directly relevant to, let alone persuasive on, any issue in this case. I have therefore disregarded them both.

I come now to the questions of law raised in respect to the original purchase, the Crown Grant and the compulsory acquisition.

The problem relating to the original purchase is one on which I invited counsel to make submissions. Section 5 of the Lands Regulation Ordinances 1888-1889, under which the purchase was made, made it unlawful for the Administrator to purchase native land "until by sufficient inquiry he has become satisfied that such land, or the use or usufruct thereof, is not required nor likely to be required by the native owners".

There is nothing in the material before me which shows expressly whether the Administrator made any enquiry or not, nor whether he became so satisfied or not.
As to the Crown Grant to Hunter it was submitted that the grant to Hunter "his administrators and assigns for ever" was, in the absence of words of limitation referring to his heirs, a grant of a life estate only.

Finally, it was argued that the compulsory acquisition of whatever interest the Crown Grant had conferred brought about a merger of that interest with whatever residual interest the Crown held and nothing was left to be protected by the provisions of the Real Property Ordinance relating to indefeasibility.

The first of these matters relating to a state of satisfaction in the mind of the Administrator as a prerequisite to the lawfulness of the purchase raises matters of fundamental importance which may go beyond this case.

At the time of the purchase set up by the Crown the Land Regulation Ordinances 1888-1889 reserved to the Administrator the power to negotiate "on behalf of Her Majesty direct with the ascertained native owners of any land . . . for the purchase in perpetuity . . . of any such land . . . which such native owners may wish to dispose of . . .". This power was then limited by the requirement for the Administrator’s prior enquiry and state of satisfaction previously set out. The Ordinance had been made by the Administrator with the advice and consent of the Legislative Council.

The purchase of 14th May, 1890, was evidenced in a written document of that date signed by the vendors to which are attached a certificate completed by F. E. Lawes, who acted as interpreter, and another by the Resident Magistrate, Anthony Musgrave. None of these documents refers to any enquiry by or a state of satisfaction on the part of the Administrator.

Later in that year on 12th November, 1890, the Crown Lands Ordinance 1890 came into force. It also had been made by the same Administrator with the advice and consent of the Legislative Council. It provided by Pt. II for the recording of acquisitions of Crown Lands. Section 18 required that "where the fee simple in land in respect of which no Crown Grant had ever been issued is acquired by the Crown from the owners of such land" the acquisition by and the transfer to the Crown of such land be taken in the name of Her Majesty and be "attested by an instrument in writing under the hand of the Administrator and the seal of the Possession which shall be recorded in the office of the Registrar-General as hereinafter directed". Section 20 extended the operation of s. 18 to purchases made prior to the passing of the Ordinance. Section 21 prescribed the form of and method of recording an instrument of attestation. It was required to show:

(a)      a description of the land giving the native and (if any) English name of it, its position and boundaries, an estimate of its area and some delineation of its shape;

(b)      the names of the vendors, "Its condition as to occupation" the price paid and to whom and in whose presence payment had been made;

(c)      the name of the interpreter;

(d)      such further information as the Administrator may think fit.

The instrument was required. to be recorded by the Registrar-General "in a separate Register in the manner that other instruments are directed to be recorded under the Real Property Ordinance of 1889".

On 5th July, 1892, the same Administrator completed a deed of attestation in respect to the relevant purchase under his hand and the seal of the Possession.

The deed in the form of a certificate appears to contain all the information in (a), (b) and (c) above required to be shown by it including the statement that when the land was sold it was not occupied by any person.

The deed further recorded that the purchase was made on 24th March, 1890, by the Colonial Government of British New Guinea on behalf of and for Her Majesty the Queen.

The deed carries an endorsement dated the same day by the Acting Registrar-General "Registered Vol. 1 folio 5".

The Crown argues that in all the circumstances a presumption arises that the appropriate enquiry was made by the Administrator as a result of which he became satisfied that the land was not required nor likely to be required by the native owners.

Mr. Lovering adopts the position that the Crown has not established a lawful sale to the Crown.

It should be noted that there was no statutory requirement that the enquiry and satisfaction of the Administrator should be recorded. The Administrator who enacted the 1888 Ordinance was the same person who completed the deed of attestation. According to him the land was unoccupied at the time of purchase and there is no evidence which the Commission was or which I am prepared to accept of any later occupation referable exclusively to any native customary right of ownership. The Administrator by his deed of attestation certified that the land had been sold. The written agreement and the deed of attestation were registered according to law and have been available, except presumably for some period during the 1939-45 war for inspection, search and copying. Some eighty years after the registration of these documents the claim by the clan of the present appellant is made for the first time.

The presumption on which the Crown relies is as expressed by Brewer J. in Knox County v. National Bank[xlviii]1 as quoted by Griffith C.J. in McLean Bros. & Rigg Ltd. v. Grise[xlix]2:

"It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act."

It may well be difficult in any particular case to say whether the factual situation justifies the presumption. After all, it is common experience that not all things are done legally. But we are not dealing with some inflexible rule of law, but merely with a presumption which if justified places some evidential burden on the party against whom the presumption operates.

The Administrator could not have lawfully sanctioned the purchase nor could he have lawfully completed the deed of attestation unless by sufficient enquiry before the sale he had satisfied himself rightly or wrongly that the land was not required nor likely to be required by the native owners. All the known facts are consistent with this process having been duly completed and there is no circumstance to indicate that the process was not duly completed. All the actors who might have been able to give direct evidence on the matter in issue have died.

The appellant does not assert the process was not duly completed; he merely points to the fact that there is no direct evidence that it was.

In all the circumstances and despite my earlier doubts I think I am justified in presuming that the prerequisites specified by s. 5 of the Land Regulation Ordinances 1888-1889 were duly completed.

[His Honour referred to the Crown Grant, and the relevant legislation and held that an estate in fee simple had been granted, and that that estate was substituted by a claim for compensation upon its compulsory acquisition in 1951.]

In my view the Land Titles Commission’s decision under appeal that the subject land was lawfully purchased in 1890 from the true owners who had power to sell is correct and there was no jurisdictional error which vitiates the proceedings before it. It follows that the appeal will be dismissed.

Appeal dismissed.

Solicitor for the second respondent: P. J. Clay, Crown Solicitor.

[xlviii](1892) 147 US 91, at p. 97; 37 Law Ed. 93.
[xlix](1906) 4 CLR 835, at p. 850.