[1973] PNGLR 590

PAPUA NEW GUINEA
[HIGH COURT OF AUSTRALIA]

NAMBUMUTKA SIMBALI

V

SACRED HEART MISSION (NEW BRITAIN) PROPERTY TRUST
Sydney

Barwick CJ McTiernan Menzies Gibbs Mason JJ

2-3 April 1973
7 December 1973

REAL PROPERTY - Land of former German missions vested in property trust - Absolute nature of title - Claim by natives - Duty of Land Titles Commission where claim by natives - Treaty of Peace 1919, art. 438 - German Missions Ordinance 1926 (New Guinea) - Lands Registration Ordinance 1924 (New Guinea) - New Guinea Land Titles Restoration Ordinance 1951 (Papua and New Guinea), ss. 9, 10, 67 - Roman Catholic Archdiocese of Rabaul Ordinance 1969 (Papua and New Guinea).

Certain land in New Guinea in respect of which a Roman Catholic mission property trust claimed to be entitled to an estate in fee simple and to be registered as owner in accordance with s. 9 of the New Guinea Land Titles Restoration Ordinance 1951 (Papua and New Guinea), as amended, was also claimed on behalf of a New Guinea native lineage. Section 9 provides for the making of claims by persons who claim to have been entitled to an interest in land and to be registered or entered in a register lost during the Japanese invasion of New Guinea. Before the first world war a Roman Catholic mission society was registered as owner in the register book kept by the German administration. This register book did not afford conclusive evidence of title. After the war the land was vested in a board of trustees by an order pursuant to the German Missions Ordinance 1926 (New Guinea), which gave effect to art. 438 of the Treaty of Peace 1919 whereby the property which German missions possessed should continue to be devoted to missionary purposes and should be handed over to boards of trustees composed of persons of the same faith. By the German Missions Ordinance a vesting order was in itself sufficient to vest property belonging to or held by a mission in the board of trustees and on the application of the board of trustees the vesting order was to be registered under any law for the time being in force relating to the registration of dealings with land and given effect to as if it were a grant or conveyance or memorandum or instrument of transfer of the land. Neither the vesting order nor the title of the board of trustees was registered under the Lands Registration Ordinance 1924. The board of trustees was subsequently incorporated.

Held

(1)      By the vesting order the board of trustees acquired an absolute title to the land even if the German mission society did not have an indefeasible title.

(2)      The board of trustees was a person entitled to be registered or entered in the lost register as owner within the meaning of s. 9 of the Restoration Ordinance, and a person who would have been entitled to registration but for the destruction of the register within the meaning of s. 10, and hence was entitled to registration independently of s. 67 of the Ordinance.

Observations made on s. 67 (3) of the Restoration Ordinance and reference made to (a) the duty of the Land Titles Commission to form its own judgment on a question which arises for determination, and (b) the relative strengths of a claim based on registration in the German land register together with possession over a long period of time and a claim by natives supported by oral testimony.

(3)      The conclusions were not affected by the Roman Catholic Archdiocese of Rabaul Ordinance 1969. Semble, that Ordinance did not have the effect of dissolving the Sacred Heart Mission (New Britain) Property Trust, but even if it did it did not follow that the proceedings in the Supreme Court abated.

The action of the appellant in filing, after argument had been completed, written submissions unrelated to the argument presented in the course of the appeal, by arrangement with the respondent without having obtained leave of the Court, disapproved.

Decision of the Supreme Court of Papua New Guinea (Full Court) affirmed.

Appeal from the Supreme Court of Papua New Guinea (Full Court).

Counsel

E. A. Lusher QC and J C. Hartigan, for the appellant.
G. Brennan QC and C. T. Wood, for the respondent.
Cur. adv. vult.

12 December 1973

BARWICK CJ MENZIES GIBBS MASON JJ: This is an appeal by the representative of the Denangi lineage and the Director of District Administration against a judgment and order of the Full Court of the Supreme Court of Papua New Guinea declaring that the respondent Sacred Heart Mission (New Britain) Property Trust was at the appointed date, 10th January, 1952, entitled to an interest in fee simple in certain lands at Toriu, New Britain, and to be entered in the Land Register Book in respect of that interest.

On 23rd July, 1952, the respondent made a claim that in accordance with s. 9 of the New Guinea Land Titles Restoration Ordinance 1951 (hereinafter called “the Restoration Ordinance”), it was a person claiming to have been entitled at the appointed date to a freehold estate in three parcels of land at Toriu and to be registered as the owner of those estates. The three parcels of land are known as Toriu Plantation, Toriu on the Beach and Toriu Residue. This appeal relates to the third parcel, Toriu Residue. The respondent’s claim was considered by the Land Titles Commission under the Restoration Ordinance. After a provisional order was made in 1966 in favour of the respondent in relation to each of the three parcels, the Director of District Administration referred to the Commission under s. 36 the question of native customary rights to which the Denangi lineage claimed to be entitled at the appointed date in each of the three parcels. We should mention that the order relating to Toriu Plantation declared that the respondent was entitled to an interest as a lessee only under an agricultural lease for ninety-nine years commencing on 1st July, 1930, but this is a circumstance not material to the appeal.

The conflicting claims of the respondent and the indigenous claimants were determined by the Chief Commissioner. He held that the respondent was entitled at the appointed date to an estate in fee simple to Toriu Plantation and Toriu on the Beach (although he excised some areas from the parcels claimed by the respondent), subject to the payment of $500 to Nambumutka-Simbali on behalf of the indigenous people. As to Toriu Residue he held that the respondent had not established that it had an interest at the appointed date. The Chief Commissioner’s decision was upheld by Prentice J on appeal to the Supreme Court, subject only to a variation in the date on which the payment of the sum of $500 was to be made. The respondent then paid that sum in accordance with the order of the Court and appealed against the judgment and order of the learned judge in so far as they related to the third parcel of land, Toriu Residue. It was on that appeal that the Full Court made its order in favour of the respondent.

The respondent’s claim to a freehold title was based on the existence of a vesting order dated 24th December, 1926, by which the Administrator of the Territory of New Guinea vested property of the Catholic Mission Society of the Most Sacred Heart of Jesus (hereinafter called “the mission society”) in a board of trustees, the respondent’s predecessors in title, pursuant to the German Missions Ordinance 1926. The evidence of the respondent’s title before the Land Titles Commission consisted of the vesting order, copies of entries relating to the three parcels of land in the official land register (Grundbuch) which was established and maintained by the German Colonial Administration in accordance with the laws of the German Empire and a copy of a German survey report dated 28th August, 1907.

The land register consisted of four parts:

(a)      a description of the property entered in the Register;

(b)      particulars of the time and manner of acquisition by the owner of the property (the First Division);

(c)      the permanent burdens and limitations of ownership (the Second Division); and

(d)      particulars of charges and hypothecations (the Third Division).

It was common ground between the parties that under German laws in force in the colony registration in the register of the interest of an individual owner constituted evidence, but not conclusive evidence, that he was the owner of that interest. The materials upon which this proposition rests have been discussed in detail in an unreported judgment of the old Central Court of the Territory of New Guinea—In re the Mortlock Islands, 29th April, 1930.

A predecessor in title of the respondent, the mission society, was shown in the register as the owner of three parcels of land at Toriu. The three parcels and the information relating to them, contained in the register, were:

(1)      A property lying on the Toriu River, having an area of 1,100 hectares, “uninhabited, uncultivated and surrounded on all sides by ownerless land”. It was entered in the register on 20th December, 1904, in pursuance of a contract dated 3rd November, 1904. It was charged in favour of the Mission Institute of Hiltrup to secure repayment of a loan of 25,000 marks. It was also the subject of a cautionary hypotheca.

(2)      A property situated towards Cape Lambert, about 1,800 metres from the mouth of the Toriu, swampy land with casuarinas growing on it, having an area of four hectares. It was entered on the same date as (1) in pursuance of the same contract. It was the subject of the cautionary hypotheca already mentioned.

(3)      A property situated on the Toriu and St. Louis Rivers, having an area of 500 hectares, at the eastern boundary of the property in (1). It was entered on 10th October, 1907, in pursuance of a transfer of 9th October, 1907. It was the subject of a “caution for the preservation of the right to re-transfer in case of improper usage of the land, and to re-transfer of portions of land which are required in connection with the exploitation of minerals or for public purposes”. The entry referred to a consent of 9th October, 1907, and stated that the caution was entered in favour of the Fiscus of the colony.

A plan and survey record of each parcel was entered in the register. An English translation of old German survey documents dated 28th August, 1907, relating to the third parcel described it as having an area of 500 hectares and stated “This newly acquired Land of the Catholic Mission of Sacred Heart of Jesus ... adjoins the other Land of the same Mission of an area of 1,100 ha (the estate I)”. The report showed that boundaries were defined and cement markers placed in position.

The evidence called to support the claim of the indigenous people was meagre. Oral evidence was given by two witnesses, including the appellant Simbali. He gave evidence of the tradition handed down by his clan; the other witness spoke from personal knowledge. The effect of the oral evidence was that before the coming of the Germans the Mandarambit people lived at the rear of Toriu but used Toriu land for hunting, fishing, cooking salt and making gardens. No payment was made by the Germans for the land and the indigenous people did not understand the significance of the cement markers. They were afraid of the guns of the Germans, although subsequently they informed the brothers of the mission of their claim to the land. The indigenous people continued to use some parts of the land “not planted up” for cooking salt and making gardens up to the appointed date.

The sketchy evidence given by the two witnesses was designed to show that at the time when the mission society claimed to acquire the lands they were not “ownerless”, the argument being that under German law only land which was “ownerless” was capable of acquisition by the society. The oral evidence indicated that Toriu lands were occupied by the mission society during the time of the German administration and that it had then established a plantation.

On this evidence the Full Court concluded that, by virtue of the course of legislation enacted after the first world war and the Restoration Ordinance, the respondent acquired an absolute estate in fee simple in Toriu Residue. This conclusion in our opinion is correct. To demonstrate its correctness it is necessary to traverse a narrow path through a series of legislative provisions.

The application of German laws in the Territory of New Guinea was terminated by s. 4 (1) of the Laws Repeal and Adopting Ordinance 1921-1952. However, the validity of past acts and things was preserved, as were rights already acquired (s. 4 (2)) and all Crown grants, titles, certificates, registers, records, entries and all acts of authority which originated under the German laws and were in force at the commencement of the Ordinance on 9th May, 1921, continued to be valid and subsisting (s. 5). Existing titles to estates and interests in land were preserved (s. 8 (1)) and questions affecting such titles were to be decided by reference to the laws in force at the commencement of the Ordinance (s. 8 (2)). The relevant law in force was German law as the Expropriation Ordinance 1920-1934 did not apply to the property of the Mission Society.

By art. 438 of the Treaty of Peace 1919 the allied and associated powers agreed that where Christian religious missions were being maintained by German societies or persons in territory belonging to them, or of which the government was entrusted to them in accordance with the Treaty, the property which such missions possessed should continue to be devoted to missionary purposes and should be handed over to boards of trustees appointed by or approved by the Governments and composed of persons holding the faith of the mission whose property was involved.

The German Missions Ordinance 1926 (New Guinea) gave effect to this provision. By s. 3 it provided that where a Christian religious mission was, before or during the war, maintained in the Territory by a German national, all property which on 10th January, 1920, “belonged to or was held or managed for or on behalf of that Mission ... is hereby vested in the Administrator for the time being of the Territory, and any right, title or interest of the mission in or to the property is hereby extinguished”. The Administrator was, by order, to vest all German mission property in boards of trustees to be held by them on the trusts specified in the order (s. 4 (1)). The vesting order was sufficient in itself to vest the property in the board of trustees without further assurance (s. 4 (2)). Section 4 (3) provided that, in the case of an estate or interest in land, a certified copy of the vesting order should, “on the application of the board of trustees ... be registered under any law for the time being in force in the Territory relating to the registration of dealings with land, in the manner as nearly as may be in which dealings with land are registered and the registration shall be dealt with and given effect to as if it were a grant or conveyance or memorandum or instrument of transfer of the land ... duly executed under the laws in force in the Territory”.

Pursuant to this Ordinance by a vesting order dated 24th December, 1926, the Administrator vested all property which on 10th January, 1920, belonged to or was held or managed for or on behalf of the mission society in a board of trustees who were to hold and deal with that property in their discretion “for the purpose of carrying on or benefiting or advancing or extending or making more effectual the work and objects of Roman Catholic Missions ...”. Included in the properties listed in the Schedule to the order were the three parcels of land at Toriu.

The Lands Registration Ordinance 1924 was a “law for the time being in force in the Territory relating to the registration of dealings with land”. It made provision for the registration of title to estates and interests in land and of dealings with such estates or interests. It established a register book with a system of certificates of title relating to land brought under the Ordinance. Division 2 of Pt. III (ss. 16-43) dealt with freeholds already alienated or in process of alienation. Where any estate or interest in land was registered in the land register (Grundbuch) the Registrar of Titles was required “without any application from any person interested ... to bring that land” under the Ordinance (s. 16). An elaborate procedure was prescribed for the ascertainment and determination of the existence of claims inconsistent with the estates and interests shown in the land register, including claims by natives and native communities to rights over land. In cases where there was doubt as to the existence of native rights over such land the question was to be referred to the court for determination (s. 22). On a reference the court was required either to (a) declare that no native rights existed affecting the land; or (b) define the nature and extent of the rights which it found to exist and direct that those rights be protected by the necessary entries in the register book and on the certificate of title or direct the payment of compensation in certain circumstances (s. 26 (3)).

Subject only to the provisions of s. 41, which excepted any system or custom of native land tenure and disputes between native and native as to the ownership of land and estates and interests in land, a certificate of title duly authenticated constituted conclusive evidence of the ownership of the estates or interests to which it related (s. 57). Accordingly, the register book under the Lands Registration Ordinance, unlike its predecessor the land register, was conclusive evidence of the ownership of estates and interests in land, subject to s. 41.

The appellants’ case is that all that passed in 1926 under the vesting order to the board of trustees was a defeasible title which was liable to be defeated once it was shown that the indigenous claimants were the true owners of the land and that there had not been a valid acquisition of the land by the mission society or the colonial Fiscus. The submission was based on the proposition that the vesting order did not pass a better title than the mission society had, the land register constituting prima facie evidence only of title. The answer to this submission is to be found in the terms of the German Missions Ordinance 1926, which in our view evinced a clear intention that a board of trustees might acquire, pursuant to a vesting order, an absolute title to property, notwithstanding that the German mission may not have had an indefeasible title to it on 10th January, 1920.

The obligation imposed by art. 438 of the Treaty of Peace required the continuing devotion to missionary purposes of property “possessed” by a mission. Conformably with that obligation as it was expressed, s. 3 passed to the Administrator not merely “all property” which on the specified date “belonged to” a mission, but also all property which “was held or managed” for or on its behalf. Thus property title to which was not vested in a mission but which was managed for it or on its behalf vested in the Administrator under s. 3. What passed to a board of trustees by a vesting order under s. 4 (1) was “German mission property”, but the meaning and content of that expression is to be gathered from s. 3. Section 4 provided for a disposition by the Administrator of all that had been vested in him by s. 3.

Article 438 and the Ordinance proceeded upon the foundation that property possessed by German missions, that is, property held or managed for them or on their behalf, was German mission property and should continue to be devoted to missionary purposes. Accordingly, it was that property which passed to the Administrator and was to be vested in a board of trustees by an order made under s. 4 (1). Consistently with this view of the Ordinance, the vesting order of 24th December, 1926, passed to the board of trustees the fee simple of the lands at Toriu to be held and dealt with for mission purposes.

The appellants concede, correctly in our opinion, that the vesting order was valid and had some operation. This is because the mission society had a prima facie title to the Toriu lands and was in possession of them for many years in circumstances in which it can be said that the lands were held or managed for the mission society.

That the title which the trustees acquired by the vesting order was not a defeasible title, as the appellants would have it, is demonstrated by the imperative terms of s. 4 (3) which conferred on the board of trustees an automatic entitlement to registration under the Lands Registration Ordinance of a copy of the vesting order. The language of s. 4 (3) is in sharp contrast to that of s. 16 and the succeeding provisions of the Lands Registration Ordinance with its elaborate procedure for investigation and determination of conflicting claims. The contrast illustrates that the subsection was making a special and different provision for the registration of property vested in boards of trustees, quite apart from the general provisions of div. 2 of Pt. III of the Lands Registration Ordinance, whether it be registration as of a grant of land not brought under that Ordinance (Pt. III, Div. 1) or as of a transfer of land already under the Ordinance (Pt. VI).

In the interpretation of s. 4 (3) the appellants sought to obtain some comfort from s. 26 (4) of the Lands Registration Ordinance (now repealed by s. 67 of the Restoration Ordinance), but it is apparent that s. 26 (4) applied in the investigation and determination of title for which div. 2 of Pt. III provided and that there was no room for its operation on the construction which we have given to the German Missions Ordinance. We do not in any event accept the appellants’ submission that s. 26 (4) denied to the land register any evidentiary value as against an indigenous claimant. The subsection was limited in its effect; it did not deny the quality of prima facie evidence which attached to entries in the land register, but it protected the indigenous claimant from inferences which might otherwise be drawn against him by reason of non-registration or cancellation of the registration of the rights which he claimed.

The Roman Catholic (Sacred Heart Mission) Property Trust Ordinance, No. 21 of 1937, incorporated under the name of the respondent Trust the board of trustees appointed by the vesting order (s. 3) and vested all real and personal property which was held by the board of trustees immediately before the commencement of the Ordinance without further transfer in the respondent (s. 6 (1)). Section 8 of the Ordinance provided: “All property vested in the Trust shall, so far as it is not subject to any express trust, be held upon trust and dealt with for the purpose of carrying on or benefiting or advancing or extending or making more effectual the work and objects of Roman Catholic Missions wheresoever carried on ...” The title which the board of trustees obtained by the vesting order thereby passed to the respondent.

Before the Japanese occupation of New Guinea neither a copy of the vesting order nor the respondent’s title to the three parcels of land at Toriu was registered under the Lands Registration Ordinance.

The appellants finally submitted that the respondent’s claim under the Restoration Ordinance fell to be determined by reference to s. 67 (3) of that Ordinance and that in forming the opinion required by that provision the Chief Commissioner properly came to the conclusion that the respondent would not have been entitled to registration of Toriu Residue in the lost register book.

The purpose of the Restoration Ordinance was, as appears from its long title, to provide for the compilation of new registers and official records relating to land, mining and forestry in place of those lost or destroyed during the Japanese invasion of New Guinea. Included in the lost registers was the register book under the Lands Registration Ordinance. The Restoration Ordinance provides for the making of claims by persons who claim to have been entitled at the appointed date to an interest in land and to be registered or entered in a lost register (s. 9), for the final determination of such claims by the Land Titles Commission (s. 42), and for the entry of claims upheld in a new register book replacing the lost register book (ss. 21-22). The Registrar of Titles is required to give effect to and comply with the declarations and directions contained in a final order of the Commission (s. 47 (1)).

Despite the appellants’ argument to the contrary it is plain enough that s. 9 applies to a person who has not been registered in the lost register book as the owner of an estate or interest in land. In Custodian of Expropriated Property v. Tedep[dccix]1 it was said: “This description embraces those who had, in fact, been registered in the destroyed register and who had not dealt with the land in the period of ten years between the destruction of the registers and the appointed date. It also included persons who had not been so registered but who would have been entitled to registration but for the destruction of the register, the informal nature of, or a misdescription in, a document or the failure of some other person to execute a document which the claimant was entitled in equity to have executed (s. 10). Claims were thus limited to those persons who could show that on the appointed day they would have had a right to be registered if the register had not been destroyed.”

The respondent therefore answered the description contained in s. 9. Moreover, it was a person to whom s. 10 applied because, having regard to the conclusions we have already reached, by virtue of the German Missions Ordinance, the vesting order and Ordinance No. 21 of 1937 it was the owner of an estate in fee simple of Toriu Residue and would have been entitled to be registered on the appointed date in respect of that estate in the register book, had it not been lost. There was therefore no occasion for the Commission to resort to s. 67 (3). The purpose of that subsection was to surmount a difficulty which would otherwise confront a claimant who could not show an actual or deemed entitlement to registration on the appointed date. Division 2 of Pt. III of the Lands Registration Ordinance did not confer on a person who was the owner of an unregistered estate or interest in land an entitlement to registration. It was for the Registrar of Titles to bring the land under the Ordinance and in the course of the elaborate procedure prescribed there was an investigation and determination of conflicting claims. The consequence that no entitlement to registration arose on 10th January, 1952, under div. 2 of Pt. III was not cured by its repeal in s. 67 (1) (c) of the Restoration Ordinance which came into operation on 1st November, 1951. Section 67 (3) was introduced to bridge the gap by providing for a deemed entitlement in the form of a judicial determination of what the claimant’s right would have been on the assumptions expressed by the subsection.

In the event s. 67 (3) had no application to the present case because the respondent brought itself directly within s. 9. In passing we should observe that in those cases in which s. 67 (3) applies it is for the Land Titles Commission to form its own judgment on the question which arises for determination; the question is not to be answered, as the Chief Commissioner sought to answer it, by reference to what it conceives Phillips J or Dr. Hahl would have done or decided in the like circumstances. Although s. 67 (3) did not apply and we need not determine the relative probative value of the entries in the land register and the vague oral evidence given by the two witnesses, we should express our surprise that the Chief Commissioner accepted the oral evidence as outweighing the respondent’s presumptive title established by the documentary and other evidence. The Chief Commissioner’s decision fails to reflect a proper appreciation of the strength of a claim based on registration in the land register involving, as it did, official acceptance after administrative investigation, followed by possession over a long period of time. Moreover, the decision seems to have proceeded upon a failure to appreciate the frailty of the oral testimony relied upon by the appellants. It lacked persuasive value, not merely because it was in vague and general terms and was self-serving, but because it was given in relation to events which occurred almost seventy years ago and was not supported by other objective circumstances.

We therefore agree with the conclusion reached by the Full Court and with the orders which it made. It is for the Commission, pursuant to those orders, to define precisely the area of land comprised Toriu Residue.

After argument in the appeal had been completed, the appellant, by arrangement with the respondent, without having obtained leave, filed written submissions unrelated to the arguments presented during the course of the appeal. The course adopted was irregular and it should not be repeated; argument should be presented orally in accordance with the accepted practice.

The written submissions refer to the Roman Catholic Archdiocese of Rabaul Ordinance 1969 which came into operation on 19th February, 1970, after notice of appeal was lodged with the Supreme Court of the Territory from the decision of the Land Titles Commission and before the appeal was heard. The Ordinance repeals the Roman Catholic (Sacred Heart Mission) Property Trust Ordinance 1937. By s. 6 it divests from the respondent and vests in a new body corporate by the name of the “Roman Catholic Archdiocese of Rabaul” any property which immediately before the commencement of the new Ordinance was vested in the respondent and “was used or held for use in connexion with the Archdiocese”. It provides that such property is “by virtue of this Ordinance and without the necessity of any formal deed of assurance” divested from the respondent and vested in the new corporation.

The Ordinance does not confer any right, title or estate in the lands in question on the appellant; nor does it affect the conclusion that the respondent was entitled to be registered as registered proprietor of an estate in fee simple as at 10th January, 1952. It is suggested, however, that the effect of the Ordinance was to dissolve the respondent and that the proceedings in the Supreme Court thereupon abated.

We are inclined to the view that the effect of the Ordinance was not to dissolve the respondent. Section 6 divests from the respondent only that property vested in it which was “used or held for use in connexion with the Archdiocese”. No provision is made with respect to property vested in it which was not so used. Moreover, in dispensing with the necessity for a formal deed of assurance the action assumes the continued existence of the respondent as a corporate entity.

If, contrary to what we have said, the Ordinance had the effect of dissolving the respondent, it does not follow that the proceedings in the Supreme Court abated. That result depends upon the Rules of the Supreme Court as to which we have not had the benefit of argument. If it be assumed that the proceedings abated, the Court was not without power to mould a convenient form of procedure to meet the case in the absence of specific provision made by its Rules (see Smith v. Williams[dccx]2). Accordingly, in our view the Roman Catholic Archdiocese of Rabaul Ordinance 1969 does not affect the conclusions which we have otherwise reached.

In our opinion the appeal should be dismissed.

MCTIERNAN J: In my opinion this appeal should be dismissed. The propositions put forward in the argument of counsel for the respondent are in my opinion well founded.

Action dismissed with costs.

Solicitors for the appellant: W. A. Lalor, Public Solicitor, by his agent, A. G. Knox, Deputy Public Solicitor.
Solicitors for the respondent: F. N. Warner Shand, by his agent, Molloy & Schrader.

[dccix](1964) 113 CLR. 318, at p. 332.
[dccx][1922] 1 KB. 158.