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Tedep v Custodian for Expropriated Property [1962] PGSC 20 (12 November 1962)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

TEDEP & ORS.
Appellants

V

THE CUSTODIAN FOR EXPROPRIATED PROPERTY
Respondent

(RE VARZIN LANDS)

Port Moresby
Mann C.J.
12/11/62

This is an Appeal from a final order pronounced by the Commissioner of Titles, coming before this Court by virtue of the provisions of Part IV of the New Guinea Land Titles Restoration Ordinance 1951-55.

Broadly, the Appeal raises the question of the extent to which a Certificate of Title issued by the Registrar of Titles is, as against native land interests arising by native custom, conclusive evidence as to the existence and description of the Title specified on the Certificate.

The present judgement may not finally dispose of the whole question, for there are several aspects of it which, depending upon the answer, might call for in extensive inquiry into facts which would be difficult of proof. Accordingly, by consent of all parties concerned in the Appeal, I have elected to proceed to hear argument and determine the questions raised by the Appeal, so far as it may become practicable to reach such a determination upon an agreed or presumed set of facts. I am indebted to Counsel, not only for their able arguments, but also for their concurrence in the summary of facts which I will shortly state. This summary includes assertions of fact which, if they prove material to the ultimate determination of the Appeal, will be alleged and sought to be established by the Appellants. Both of the Respondents represented before me, state that these assertions are not admitted, and they have intimated that, if necessary, some at least of those allegations will be contested. Accordingly the facts which I will state, are to be taken merely as a background against which to consider the legal questions which arise for determination, and are not to be taken as either proved or conceded.

One possible result of the Appeal appeared to be that the Certificate which was issued pursuant to the Commissioner's final order, would prove to be a fatal bar to the Appellant's right of appeal, because the Certificate being ante-dated by a considerable period of years would purport to show conclusively that at a date very much earlier than the relevant date for the purpose of these proceedings, the Appellants had no interest in the land. It might also appear that either the Commissioner's purported exercise of his power to ante-date the document, was invalid, or was subject to attack by the Appellants in proceedings which would have to be brought against the Commissioner or the Registrar or both, so that they would be joined as parties.

Involved in this question is the further point that this appeal being from an Administrative tribunal, comes before the Court in its original jurisdiction. It may become significant in considering the ante-dated Certificate of Title as a possible bar to the appeal, to consider whether this Court is to determine the questions on facts as they stood at the "prescribed date", or the date of the hearing before the Commissioner, the date of commencement of the appeal, or the date of its final determination.

In the Sulka Land Case, during the hearing of a preliminary point in Rabaul in 1961, the question involved was whether the appellants had a right to appeal and whether their appeal was within time. On that occasion I held that the Appellants came within the class of persons who were entitled to receive notice of the making of a final order, and that since no such notice had been given, the time for appeal had not expired and indeed, in a sense, had not even commenced to run. Apart from the provisions of Section 34, the appellants would appear to be clearly within the terms of Section 45 of the Land Titles Restoration Ordinance, as persons known to be affected by the final order, for those appellants had in fact appeared before the Commissioner and were represented by Counsel. The same situation arises in this case.

By a parity of reasoning, it would appear that the period after which the Registrar of Titles is authorized by Section 47 of the ordinance, to give effect to the provisions of the final order, has not yet expired and likewise, in a sense, has not yet commenced to run.

Since however, the Certificate of Title purports to be antecedent to the Appeal, and purports, by virtue of Section 17(3) of the New Guinea Land Titles Restoration Ordinance, to have effect as if it had been made or executed in 1942, and since neither the Commissioner of Titles nor the Registrar of Titles is a party to the appeal, any relief to which the Appellants might be entitled, to have the Certificate set aside, might need to be taken in separate proceedings. The taking of any such proceedings at this stage might in certain events prove abortive.

Accordingly, by consent of all parties, I made an intimation early in the hearing of this appeal, designed to preserve the right of the Appellants to take these separate proceedings before the appeal is finally determined, should it appear that they are otherwise entitled to relief, but that those proceedings would be a condition precedent to the successful outcome of the appeal.

I noted the intimation in the following terms:

"By consent Court intimates that if at a later stage of the hearing of this appeal it appears that the Registrar's Certificate of Title bearing date 1942 is a bar to the present appeal, the Appellants are to be at liberty to adduce evidence notwithstanding that their case may be otherwise closed, to the effect that the Certificate of Title shall have been cancelled or set aside if such be the fact, and that at that stage of the hearing of this appeal the Appellants shall be entitled to an adjournment of the hearing of the appeal sufficient to enable appropriate proceedings to be taken, if necessary, to have the Certificate of Title set aside or cancelled. The record (including exhibits) of Commissioner of Titles is to be considered as before the Court. Mr. Clay at liberty to prove Certificate of Title."

Upon this intimation being given, the Appellants closed their case upon the present appeal, subject to a right to re-open it for the purpose of adducing evidence to establish the factual basis of their title, should it be determined that those facts would, as a matter of law, be relevant, and also for the purpose of proving the result of any separate proceedings which may have to be taken to set aside the Certificate of Title.

At the outset of the hearing, I determined that the appellants should begin. Reference was made to the procedure adapted in a Land Appeal Case under the Native Land Ordinance of 1952- Busin y Levin & Ors. of Havini. Council agreed that it was appropriate that the Appellants should begin. Also, early in the hearing, an application was made to amend the first ground of appeal because the Commissioner's reasons were not available at the time when the Notice of Appeal was given, and the amendment was desired to make the Notice of Appeal conform more precisely with the terms of the Commissioner's findings. There was not objection and leave to amend was granted.

The summary of alleged facts as referred to above, is as follows:-

"In 1884 a German Protectorate was established over an area which included New Britain, where the land in question is situated. It is assumed for the present purpose, that the establishment of a Protectorate had the same effect as the establishment of a Colony. In 1899 a German Administration was set up, and this is commonly referred to as "The Fiscus". The Fiscus established a Ground Book in which interests in land were registered or recorded, and an entry was made purporting to relate to the land in question in this appeal, under the heading "re Varzin, or Paparatawa". This entry appeared in the original Ground Book, Volume II Folio 162, relating to the Gazelle Peninsula.

The interest recorded in the Ground Book was based upon two Contracts of Sale made apparently with natives, and Rudolph Wollff was named as the first owner of the land recorded in the Book. Wollff was in occupation of the land, or part of it, in about 1902, when some natives raided his house and killed his wife. The appellants now claim that Wollff occupied only part of the plantation in question, and that the native who purported to sell the land to him, had in fact no right or title to the land, and that this was the reason for the raid.

Shortly after the raid in which Wollff's wife was killed, there was a punitive expedition, in which punishment was inflicted upon many groups of natives in the area, by killing, by the destruction of property, and by deportation. An area of land was then confiscated, and the present Appellants assert that the confiscated area was a part of the Varzin property and part of nearby Toma.

The confiscated area was settled by Europeans, and the status quo was maintained during the First World War, by the Australian Military Administration. At the end of the war, all German private property became vested in the Custodian, by virtue of the Expropriation Ordinance 1920 of New Guinea (Volume 2, New Guinea Laws, Page 2075) and in due course the Commonwealth of Australia was granted a Mandate.

The Custodian advertised the properties in question and sold them on terms to one T. Garrett and handed the properties over two months after the closing date, vis 15^th May 1928. The Deputy Registrar purported to issue a Certificate of Title in the name of the Custodian, subject to certain encumbrances in favour of the Administration. There is no evidence of inquiries having been made as to the true ownership of the land before this Certificate of Title was issued.

Folio 6. of the Custodian's life contains a relevant memorandum from the Administration. Two small areas of land were excised from the title, but these areas only amounted to two hectares and make no difference to the questions of substance on the present appeal.

During the Second World War, the records of the Registrar of Titles were destroyed, but the Custodian's file contains documents which purport to show what was to state of the registered title at various points of time. It does not show specifically what was the state of title on the date when the Register was destroyed, nor did it show what would have been the state of the title if it had existed on the "appointed date" fixed for the purposes of the New Guinea Land Titles Restoration Ordinance as the 10^th January 1952.

On the 8^th August 1952 the Custodian lodged a claim to have his title restored to him under the Ordinance, and on the 11^th March 1960 the competing native claims came under notice. On the 25^th March 1960, pronounced his final order, including a direction to restore the Certificate of Title.

In purported compliance with the final order and Section 47 of the Ordinance, the Registration of Titles issued a new Certificate of Title, Volume 20 Folio 146, in December 1960. In August 1961 a purchaser for value from the Custodian was entered upon the Registrar".

The purchaser of value is not a party to this appeal, although I suppose that he would have a right of subrogation was between the Custodian and himself. The nominal absence of the purchaser from the record, in this appeal, is due to the circumstances: that under Section 9 of the Land Titles Restoration Ordinance, the basis of the claims which come before the Commissioner is that they are claims subsisting at the appointed date, which, as I have previously indicated is the 10^th January 1952.

Prior to the enactment of the Lands Registration Ordinance, some freehold interests in land had been acquired otherwise than by grant from the Administration, including land registered in the German Ground Book, and provision was made in Sections 16 et seq. for these interests to be brought on to the Register established under the ordinance. All future grants of Administration lands, were, by Section 14 of the Ordinance, to come within the scheme for registered titles thereby established. There is provision in Section 15 for natives to have the benefit of land set aside for their enjoyment and the Director of Native Affairs is designated as the appropriate registered proprietor for the purposes of registration where these lands are sufficiently well-denied to permit registration.

Since the land in question in the present appeal, purported to come on to the Register by virtue of entries appearing in the German Ground Book, it is convenient to give some detailed consideration to the machinery sections set out in what was then Division 2 of Part III. It was provided that land registered in the Ground Book was to be brought under the Ordinance, in addition to other lands in the process of alienation. These lands ought to have been entered in the Ground Book but were not, because the records of the German Administration appeared to have been unreliable and not kept up to date.

The first step towards registration was the preparation of a draft Certificate of Title and at this stage the Registrar was to define the land affected, if necessary with the aid of a survey, and bring up to date encumbrances and other matters which might not have appeared in the Ground Book. The draft certificate was to be in the same name of the person entered in the Ground Book as the owner, except in certain cases, including cases in which the land had become vested in the Custodian of Expropriated properties, in which case the Custodian's name was to be entered in the draft certificate.

It appears that it had been the practice of the German Administration, to enter in the Ground Book, native interests in land, but that the Ground Book could not be relied upon as excluding the existence of native interests which were not registered in the Book (Sec. 26 (4).). Accordingly, having prepared his draft certificate, the Registrar was required to serve notice on a variety of specified people, including the Director of Native Affairs, who had a general duty protect the interest of natives, and a specific duty under Section 22 of the Ordinance, to make inquiries as to the identity and interests of natives and native communities.

Having made the prescribed inquiries and taken other prescribed action, the Director of Native Affairs was required either to certify to the Registrar that after careful inquiry he was satisfied that there were no natives having any rights over the land other than those appearing in the Ground Book, or in the draft Certificate of Title, or to refer, the question of native rights to the Court for determination, or to refer the question of native rights to the Court for determination, or to refer the question to the Administrator to be dealt with in a particular provision applying to cases where native rights had not been exercised for a period of a least twenty years. This provision applied only to land owned, occupied or used by a person other than a native.

Section 24 placed upon the Director of Native Affairs, a general obligation to refer to the Court for inquiry and determination, every case where he was of the opinion that there were natives or native communities having rights of any description, other than those appearing in the Land Register or draft Certificate of Title, or ever any land owned, occupied or used by or for any person other than a native. There was provision for compensation for loss of individual native rights and there were details of procedure to be adopted upon a reference to the Court. The jurisdiction of the Court was to declare that no native rights existed affecting the land, or to define the nature and extent of the rights which should be protected by the necessary entries in the Register Book and on the Certificate of Title, or to award compensation.

It was the Director's duty to represent natives and to arrange for legal or other representation as he considered necessary. There were provisions relating to a caveat which might be lodged by any claimant, and for appropriate Court proceedings to be taken in consequence of a caveat having been lodged. In the conclusion of all these proceedings the Registrar was directed to bring the land under the Ordinance by registering a Certificate of Title which, in cases involving a reference to the Court of questions of native interests, was to be in accordance with the order pronounced by the Court upon the reference.

Sections 38 to 41 dealt with the situation which arose when land was being brought under the system of registration, and it appeared that natives were entitled to ownership or some other interest in land. Section 40 provided that natives were not to be registered in the Register Book as owner or part-owner of any land or as an encumbrance, and the definition of encumbrances extended to prior interests of all kinds.

This is in apparent contradiction with the provisions of Section 26 (3) (b) which required the Court to define the nature and extent of native interests and direct that they be protected by the necessary entries in the Register Book and in the Certificate of Title. It appears that the difficulty which arises in relation to native interests was inescapable, owing to the fact that some native interests were already recorded in the German Ground Book, and that other native interests had been either ignored or at least not recorded, and stood in the way of an effective system of land registration to be introduced to replace the Ground Book. The legislation seems to follow the dual policy of setting up a reliable Land Register, without taking any responsibility for defining or recording native interest, and yet at the same time affording complete protection to these native interests. These two objectives appear in practice to be inconsistent, and so the device was adopted in this part of the Ordinance, of introducing the Director as a Trustee, and converting all native interests which emerged in the course of bringing land on to the Register, either into claims for compensation or into rights which they would thereafter enjoy as against the Director as Trustee for them. In cases where natives appeared in the Ground Book as owners, the land was to be brought on to the Register in the name of the Director as owner, as trustee for natives, and the land was to be described as a Native Reserve. Thus it appears that the only way in which native rights defined and directed by the Court to be entered on the Register and on the Certificate of Title, could be so entered, was by the device of naming the Director as the owner of the land to the extent necessary to protect those rights and naming it as a native reserve.

Section 41 provided as follows:

"41.- (1) Nothing contained in this Ordinance and no registration made thereunder shall affect any system or custom of land tenure or of succession of land or transmission of land in use amongst natives.

(2) Notwithstanding anything contained in this Ordinance, no certificate of title or entry in the Register Book shall be of any force or validity as evidence in any dispute between native and native as to the ownership of land or of any interest in or right affecting land."

At first sight Section 41 appears to be inconsistent with any scheme for land registration which has the effect of extinguishing native rights and interests or converting them into rights of a different degree. I think that the implicit intent of the legislation is to leave native rights undisturbed so that natives under any local system or system of land tenure or succession or transmission of land, will continue to enjoy their rights precisely as before. Over and above any such customary system of land enjoyment which is to remain undisturbed, the Director of Native Affairs is placed as a trustee, and his resulting duty is clearly to leave these native interests undisturbed. The title which is registered in the name of the Director, is assumed to be a higher title, giving the Trustee the protection of registration of an estate of fee simple or other appropriate interest, or enable him more effectively to protect and preserve from disturbance, the native interests in his case.

It is clearly the intention of the Ordinance, that at no point should native interests in the land pass unnoticed, and that except in cases of incidental interests, which were thought to be appropriate subject for compensation, no registration should take place which should have the effect of extinguishing subsisting native rights. The essence of the machinery designed to produce this result, is that there should in every case by an administrative inquiry to ascertain whether any possible native claimant existed, and that as soon as the possibility of native claims emerged, the claimants were to be brought before the Court, to have their interests properly determined by Judicial process, before any registration could take place. As a result of a binding Judicial determination, the rights claimed would either be held non-existent, or made the subject of a reservation in favour of the natives who were entitled to some interest in the land.

Section 24A and corresponding amendments to other Sections introduced in 1933, appear to be new provisions somewhat inconsistent with the scheme for the careful ascertainment of native interests before registration can proceed. It is the provision enabling the Director to refer a question of native rights to the Administrator, where the natives in question have not for a period of at least twenty years exercised rights over land owned occupied or used by a person other than a native, and where these rights do not appear on the Land Register or in the draft Certificate of Title. The Administrator may then direct the question of native rights be referred to the Court for determination, which gets back to the same position as before; but he may, if he thinks fit, instruct the Director to certify that the question of native rights will not be referred to the Court. It may be that the new section was inserted on the presumption that some prescriptive extinguishment of rights would have occurred, or possibly simply on the footing that as a matter of expediency, the Administration could in some cases allow the title to be registered, and take the risk that the natives' rights, which were not to be investigated by the Court, might at some future time re-assert themselves. It may be an indication that it was thought that these rights would be extinguished by registration, or it may be that a registered title, otherwise conclusive, might carry the risk. It is a particular provision of very limited application, and I think it would be unsafe for me to place any reliance upon it in reaching any conclusion to be intended effect of registration. It has not been suggested on the present appeal, that the registration of the title to the land in question proceeded upon the exercises of any power conferred by Section 24A.

The next step which falls for consideration is the actual interests of the Custodian in the land in question. His right to apply for registration under the Lands Registration Ordinance, was based on the Expropriation Ordinance 1920-1934, which appears in the Volume "Laws of the Territory of New Guinea 1921-1945" Volume 2 at page 2075.

By this Ordinance, the Administrator of the Territory is empowered to make certain declarations that any person is a German national, whereupon all property belonging to or held or managed for or on his behalf should be deemed to have vested as in the 10^th January 1920, in the Custodian. This Ordinance is not specifically directed to any class of interest in property or to any particular kind or description of interest. It would appear therefore, that by virtue of its provisions, the Custodian acquired whatever interest in Vazin that Wollff might have had, subject to any claims or rights vested in the appellants or their predecessors according to customary law. The interest was transmitted by operation of law, and the Custodian was not a purchaser for value.

On the file of the Custodian, which was produced in evidence before the Commissioner of Titles, there appears to be some record of what was set out in the German Ground Book. For present purposes it is enough to say that Rudolph Wollff was recorded as the owner and that his estate was encumbered by quite a variety of charges, amounting to mortgages for money lent.

Although I am told that application was made by or on behalf of the Custodian to have the land in question brought under the provisions of the Lands Registration Ordinance, there is nothing on the Custodian's file which gives a satisfactory account of this process. The reference to Folio 6 of the Custodian's file, was to an extract from a radio which apparently passed from the Custodian's delegate to the Custodian in 1935. There is a significant extract from a radio dated 30^th April 1925 in which the following passage appears:

"Land titles Administrator willing to accept German surveys and thinks Ground Book entries should be accepted by Administration as sufficient for registration under Territory law, only encumbrances entered Ground Book being considered. Please see letter from Administrator to Home and Territories Department, dated 23^rd April 1925, in which Administrator indicates that Land Registration Ordinance will have to be amended dispense with service where the person to be served is prescribed person and where owners of adjoining lands are natives".

One unsatisfactory aspect of this question is that from the Custodian's file it does not appear that any enquiry was made as to the existence of native interests in the land in question or that any reference was made to the Court to determine whether the natives had a claim which might have prevented registration of the Custodian's title under the provisions of the Lands Registration Ordinance, and that the Appellants assert that no inquiry was made.

As far as I can see from the Custodian's file, the natives claiming an interest in this land, first made their interests known on the occasion of a visit to the Territory of a United Nations Mission in 1959, for on the 7^th July in that year, the Administrator of the Territory notified the Custodian that the Vazin natives had petitioned the United Nations Mission claiming that the land had been wrongfully taken from them by the German Government. Up to this point of time, the Custodian's file seems to have been concerned with questions of boundaries, and who was to pay for the survey which was intended to put the boundaries right. No attention seems to have been paid up to that time, to the question of possible native interests.

It may well be that other evidence is available to show that the requirements of the Land Registration Ordinance as to the investigation of possible native interests was fully complied with, but for the present purpose and on the evidence as it appears before me, and in view of the Appellant's allegations, I think that I should assume that here was no enquiry into these matters sufficient to satisfy the requirements of the Ordinance, and that this position was arrived at by some arrangement between the Custodian and the Administrator.

I now pass on to consider the extent to which the Custodian's registered title under the pre-war legislation might be conclusive and binding upon the natives notwithstanding any lack of title in the Custodian or his predecessors.

Under the Land Registration Ordinance 1924-1939, there were provisions as to the conclusiveness of title. Sections 57, 68 and 174 to 176 are the main provisions. These sections are expressed in terms commonly encountered in Torrens System legislation elsewhere.

Section 57 provides as follows:

"57. Every certificate of title duly authenticated under the hand and seal of the Registrar shall, subject to section forty-one of this Ordinance, be received in all courts of justice as evidence of the particulars therein set forth and of their being entered in the REGISTER Book, and shall be conclusive evidence that the person named in the certificate of title or in any entry thereon as scised of or taking any estate or interest in, or as being entitled to any encumbrance on the land therein described, is scised or possessed of the land for the estate or interest therein specified or is entitled to encumberance, and that the property comprised in the certificate of title is under the provisions of this Ordinance."

Section 68 provides that notwithstanding the existence in any other person of any estate or interest which but for the ordinance might be held to be paramount or to have priority, the registered owner of land or of any estate or interest in land shall, except in case of fraud, held it absolutely free from all encumbrances whatever except certain stated encumbrances, which are not material to the present case. Sections 174 to 176 prohibit the bringing of ejectment proceedings against a registered owner, except in certain stated cases not material to the present Appeal.

It is to be noted that Section 68 does not in terms purport extinguish any interest, and on the contrary recognized the possibility that they exist, but confers upon the registered owner an estate which is free from encumbrances. There is the usual type of provision in Part XII, for an assurance Fund and under Section 177 and the following sections, for actions and damages.

By the express terms of Section 57, this Section is to operate subject to Section 41, which is quoted above, and which preserves the native system of Land tenure from interference by any provision of the Ordinance or by any registration made thereunder.

Where it not for these last-mentioned provisions I would have come to the conclusion without much difficulty, that the effect of Sections 57 and 68 would be to extinguish any outstanding interest held by natives under a system of customary land tenure.

It is clear that "land" as defined, includes every term of Common Law Title, and that on registration of a title of fee simple, all common law interests other than those registered, would be extinguished by virtue of Sections 57 and 68, with the assistance, if necessary, of the provisions of Part XIII of the Ordinances. Had there been no contrary provisions in the Ordinance, I would have been disposed to take the further step of concluding from the context of the Ordinance, that it was the intended effect of the scheme, that native land interests which might conflict with a registered title, would thereby be extinguished and should qualify for compensation in the appropriate cases from the assurance fund. It is my view that native land interests, whatever they may be, and however they should be defined, are legal interests appropriate to be protected by the Courts at Common Law according to the standards and customs observed by the people, and that upon adequate proof of local custom as part of the Common Law, the Common Law principles stated in other and more civilised communities, should be re-stated and adapted to fit established local custom, so that the custom, having attached to it the sanction of the Common Law, would become part of the declared and established Common Law of the Territory.

However this position may be, it appears from the Ordinance, that it is part of the basic policy of the legislation that native land tenure should not be adversely affected by the system of registration. The precise application of this general policy to particular interests in specified land, must be considered as a possible encroachment on what would otherwise have been the general rule that the registered title is to be paramount.

During argument, I was invited to take the view that cases of very high authority decided elsewhere, as to the effect of the usual Torrens System provisions as to conclusiveness of the Certificate of Title, was not strictly binding upon me, and that I am free to reconsider the position as affecting native land interests in the Territory. It was suggested that Privy Council decisions such as The Assets Company v Mere Roihi 1905 A.C.1761: Gibbs and Messer [1891] UKLawRpAC 2; 1891 A.C. 248: and Loke Yew v Port Swettenhan Rubber Co. [1913] UKLawRpAC 11; 1913 A.C. 491, should be regarded as being only of persuasive force, on the ground that these cases were decided upon legislation enacted by governments whose intentions were not concerned to observe any particular obligation towards Mandated or Trust Territories, and further upon the ground that there is no appeal from the Supreme Court of this Territory to the Privy Council.

I am not prepared to say that there is no possibility of an appeal from this Court to the Privy Council, and I express no opinion on the point because I do not think that it arises. The main cases referred to in argument on this question, were decided by Courts, whose decisions, even if not strictly binding, are of such weight that they would be followed by this Court as a matter of course in the absence of any direct conflict of authority. They duty of this Court in the case where there is a conflict of high authority, is as indicated by the High Court of Australia in Piro v Foster 53 C.L.R. The position here is not unlike that in Primble v Hill 5 A.C. 342.

In the presence case however, I think that no such conflict of Authority arises, and it is sufficient at this point for me to say that, having considered these authorities, I think that within the scope of the intended Land Registration Scheme, and subject to Section 41, the provisions of this Ordinance, as adopted from other sources, indicate an intention that the registered title is, subject to exceptions recognised by statute, and subject to cases where a Court of Equity, acting in personam as between a Plaintiff who can establish an equitable claim, and a Defendant against whom the Court of Equity is prepared to afford appropriate redress, paramount. This I believe is settled law.

The obligations arising in relation to a mandate or Trust Territory, are matters to be taken into account by the legislature and by the administering authorities responsible under the appropriate treaties. The protective provisions of this Ordinance show that the existence of these obligations has not been overlooked, and that being the case, it becomes a question for the Court to construe by ordinary rules of construction, and in accordance with municipal law, the express provisions for the protection of native interests which the legislature has seen fit to provide.

Further, it seems to me, on a general view of these provisions in the Ordinance, that it is not so such a question of whether the imported provisions of this Ordinance are sufficient to exclude, of their own force, native land interests which may not have come into question when the legislation was originally drafted in its place of origin. For the reasons which I have already indicated, I think that native land interests are interests cognisable at Common Law in this Territory, and would be capable of exclusion by the ordinary provisions of the Torrens System if nothing more were said. The real question is whether, in view of the clearly indicated policy of Section 41 of this Ordinance to give protection to the native land system, the extent of the protection seems so far as to set up a second or alternative system of land tenure, relying on administrative reliance and efficiency to prevent clashes from occurring between the two parallel systems. In other words, the situation might be that a complete registration system is to apply to land validly brought under this system, but that no native interests are to be extinguished or affected by that system; see that land cannot effectively be brought within the system unless it is quite clear that there are no outstanding native interests.

Section 41, which under the express terms of Section 57, is to take priority over the provisions of the latter section with regard to conclusiveness of the Certificate of title, does not in terms protect an individual interest in land arising by virtue of native custom. It is expressed to protect the system or custom, as seen, or land tenure or of succession or transmission of land in use against natives. It is not necessarily inconsistent with sub-section (1) that individual interests of land might be taken out of the system of native customary tenure, by the proper Statutory procedure which leaves no native claims unprotected, and brought within the Torrens System of Land registration, so that the former system continues to have full effect, but ceases to apply to the individual block of land in question. It is in my opinion, inconsistent with sub-section (1), that a purported registration of land, unauthorised by the Ordinance, should have the incidental effect of destroying subsisting native claims, and taking the land out of the dominion of native custom.

Sub-section (2) is expressed to apply only to disputes between native and native, as to ownership of or ownership in land.

Section 23 and 24 and 26 (4) contemplate that native rights in relation to land might subsist notwithstanding that they were not entered in the German Ground Book. The inquiries specified in Section 22 and the other provisions previously noted, relating to the bringing of land under the registration scheme, all indicate to my mind, an intention that a Torrens System should only be issued if extensive administrative enquiries on the subject, of a determination of the Court, reveal that there are not native rights subsisting, and if they are still found to subsist, that those rights are to be defined by the Court and protected by entry in the Register Book.

Under Section 26 (3) the context suggest that it is the native rights that require protection in this way, and not that the registered proprietor or future purchaser from him require protection from undisclosed native rights which might subsist notwithstanding registration.

Section 40, which prohibits the registration of natives in the Register Book, is to be reconciled with the apparent contradiction of Section 26 (3) (b), by reference to Section 15 and other clauses conferring on the Director, the general power to act as trustee for native interests which my in this manner, find their way upon the register as comprising a native reserve.

I think that the combined effect of Sections 40, 41 and 57, shows an intention that the Torrens System, and the system of native land ownership by custom are to be parallel but mutually exclusive systems, and that they are to have no point of contact except in the case of native, reserves, and then only at a level which does not contemplate any conflict between European and native interests. It is apparently on the assumption that this intention will be realised in practice, that Section 41 (2) deals only with disputes between native and native.

Having regard to what I have already said about the legislative policy to protect the interests of native landowners, I think that it follows that compliance with the procedural steps laid down in the Ordinance as a condition to the exercise of the statutory powers of the Registrar, constitute also an express condition to the operation of Section 57. In other words, he had no power to issue a Certificate of Title in respect of a place of land, unless he had the appropriate certificate or a judicial determination with regard to outstanding native interests, and if he did so, Section 57 would not support it.

The Appellants in the present case, allege that no inquiry was made as to native interests in the land and that therefore they had no opportunity to come forward to protect their rights. Their case in this respect may gain some support from Folio 6 of the Custodian's file to which I have already referred. I cannot make any finding on the point at the present time, for the evidence is not before me, but I am asked to assume for the purpose of my present decision, that the Applicant will be able to prove that they assert.

I am not entirely clear at the moment precisely what it is that the Appellants will assert. If they merely prove that the proceedings did not come to their notice, it may well be that a former Director of Native Affairs gave a Certificate purporting to show that there were no native interests in the land. The certificate having been given, the Registrar of Titles would have been bound to accept it (assuming that he noted in good faith) and his grant of a certificate of title would have proceeded upon a proper foundation, and the land would have been brought under the provisions of the Lands Registration Ordinance. Once this position arose, and subject to fraud, Section 57 would be fully applicable to the title and Section 41 would not apply because the land would be held, in fact, under the Torrens System and not under native tenure.

If on the other hand, the Registrar, for some reason issued the final certificate of title without statutory authority, I would say that in the light of Section 41 of the Ordinance, his act in doing so would constitute a nullity, for it would be an unauthorised invasion upon the system of native land tenure. In this event Section 57, which operates subject to Section 41, would have no application, and there would be no conclusive evidence either as to title or that the property was under the provisions of the Ordinance.

However this question may eventuate on a view of the facts when established, it would appear that if the Appellants had a claim to rectification or to some other appropriate proceedings to alter the state of the title, their rights would continue so long as the Custodian himself remained on the title, for the conflict of interests would continue to be between the same original parties. This remained the position until the original register was lost or destroyed as a result of wartime activities during the Japanese occupation of New Britain.

I assume therefore, but make no finding to this effect, that up to this time the Appellants might have been able to cake cut a case for the rectification of the Registrar.

It is convenient at this point, to consider some of the authorities on comparable legislation elsewhere, which were cited in argument.

The first case is The Assets Company Limited v Mere Roihi and Other Consolidated Appeals, a decision of the Privy Council, reported in [1905] UKLawRpAC 11; 1905 A.C. 176. The judgement which was delivered by Lord Lindley, contains a clear statement on page 212, that their Lordships based their judgement on the conclusiveness of the registered title in the absence of fraud. Taking the decision as resting on this simple ground, the case decided that a registered title under comparable legislation in force in New Zealand, even if based on a defective claim to the land in question, was paramount over the claims of natives who were setting up an assertion that the land had been taken from them in circumstances not amounting to fraud what could be brought home against the actual registered proprietor. In reaching the decision, the Privy Council extensively considered the New Zealand Registration, and discussed in detail the provisions under which a Native Land Court was given express power to declare that the land formerly held by natives should be held for the future in freehold tenure and, at page 196, drew attention to the provisions of Section 76 of the New Zealand Act giving statutory authority for the land to be held as freehold accordingly. Thereafter a Crown grant might be issued and the process of registration take place. It is printed out, at page 179, that the effect of the order eventually called an "order for freehold tenure", was not to transfer the title of the natives, but to extinguish them, and to confer a new right on the purchaser. Before reaching the conclusion that the registered title was conclusive as against the native interests, their Lordships very carefully considered the allegation that the Land Court proceedings upon which registration was based, were defective, and that account invalid. These objections were rejected by the Privy Council, so that it appears that there was in fact a judicial determination which had the effect of terminating any native customary interests in the land the subject of registration.

Perhaps the most vital passage in the judgment for the parties to the present appeal, is to be found on pages 192 and 193 of the report, where their Lordships refer to Section 10 of the New Zealand Act, and set out the various classes of land specified in the New Zealand legislation as being subject to the provisions of that legislation.

It appears that in New Zealand natives had no power to sell native-owned land, but that a native Land Court was empowered, after due investigation, to terminate the native tenure, and replace it with freehold tenure, so that the natives could thereafter sell their land upon the footing of a freehold title. The effect of an order of freehold tenure, was also to authorise a Crown Grant to be made by the Governor, or for the Governor to issue a warrant to the Registrar, which, under Section 12, had the same effect as a Crown Grant.

Included in the list of land defined as coming within provisions of the New Zealand Land Transfer Act of 1885, is land which had previously become subject to the earlier Land Transfer legislation, and land thereafter alienated from Crown in fee, and land in respect of which any order had been made under the provisions of any Native Land Act having the effect of vesting the land in freehold tenure.

Their Lordships came to the clear conclusion that the land in question in these New Zealand appeals, came within the terms of Section 10 of the Act of 1885, and were therefore within the ambit of the Torrens System. The issue of a Certificate of Title under the Act of 1870, pursuant to the authority of a Governor's Warrant, which by virtue of Section 12 had the same effect as a Crown Grant, brought the land within the terms of Section 10.

It appears that the granting by the Native Land Court of an order of freehold tenure, (subject to argument as to the validity of the order), would also bring the land within Section 10, and it is also to be noted from the headnote, that the Native land Act of 1894, Section 73, also brought native customary land within the scope of the Land Transfer Act 1885.

There seem therefore to have been many grounds upon which the claim put forward by the natives in this New Zealand case were to be regarded as coming within the scope of the Statutes declaring the registered proprietor's interest paramount and the certificate of title conclusive evidence. There appears not to have been any provision corresponding with Section 41 of the Lands Registration Ordinance, in the New Zealand legislation.

Another leading case to which I was referred in argument is Gibbs v Messer, [1891] UKLawRpAC 2; 1891 A.C. 248. In the New Zealand case just referred to, Gibbs v Messer was distinguished on the ground that it was a case resulting from a forged instrument and that the person who purported to execute the instrument was fictitious.

Gibbs v Messer accepts the view that even a void title entered upon the Registrar in the name of a real person, becomes a valid title in the hands of a bona fide purchaser for value, by force of the statutes; yet it was plain enough that as between the immediate parties to the fraud, there was no difficulty about the true owner of the land establishing her right to get back on the register as registered proprietor. This gave rise to some argument in the New Zealand case, to the effect that better protection is afforded to a bona fide purchaser for value than to the original registered proprietor who previously had a void title, and a similar argument was addressed to me on this appeal.

I think that the true position is that in relation to land coming within the scope of the legislation, the same degree of protection and conclusiveness is afforded to all titles appearing on the Register. There are two main classes of cases in which a Plaintiff claiming an unregistered right may succeed.

The first is in cases of fraud, but this is and express provision, and the statute impliedly requires not only that the interest in land and the fraud involved should be proved, but also that the fraud can be set up as against the registered proprietor. It is, in practice, more frequently that the necessary element of fraud can be showed here against the first registered proprietor then against subsequent proprietors, who are more frequently in a position to establish their bona fides. On the same facts as between Plaintiff and Defendant, however, the protection given to the first registration is coupled with that given to any subsequent registration.

This second class of cases to which I refer, are cases in which the Plaintiff not only has an equitable claim to some interest in the land, but also has a Defendant against whom a Court of Equity can properly and effectively give redress. As between these immediate parties and if the interests of others do not intrude, the Courts acting in personam is not really considering the statutory effect of any title of property, and is true, by making appropriate mandatory orders, to cause any necessary instruments to be executed and registered to give effect to any trusts which may exist between the parties, other than alleged constructive or resulting trusts set up merely for the purpose of providing the statutory provisions designed to settle the ownership of land as between parties who are not subject to some special relationship.

Gibbs v Messer proceeds upon the basis that the land in question was land coming within the provisions of the statute. If this proves to be the case in the present appeal, I think that the appellants will have to accept the position that the Custodian's registered title was indefeasible, unless they could have sustained against him or his predecessor a case of fraud.

In Clements v Ellis & Ors. [1934] HCA 18; 51 C.L.R. 217, the High Court was equally divided in its opinion and the conclusion reached by Lowe J. in the Victorian Supreme Court was upheld. The case emphasized the importance, when giving to the provisions of the legislation covering indefeasibility attached to what actually appears on the title at the time when the purchaser "deals" with the registered proprietor. A registered title in fee simple subject to an encumbrances, coupled with the possession of instruments which raise the expectation that upon registration the encumbrance will be removed, does not bring the prospective discharge of the encumbrances within the ambit of conclusiveness provided for by the Statute.

At page 249 of the Report, Dixon J. as he then was, expressed the opinion that in The Assets Case v Mere Roihi, the decision of the Privy Council proceeded upon a view of the effect of the certificate of title issued to the Company as an initial registration of land definitively brought under the system.

In his subsequent analysis of the New Zealand cases, and of Gibbs v Messer, it seems to me that it is made clear that in the case of a first registration of land, there must be some appropriate foundation for the registration. If there are allegations that not valid title existed, registration will confer a valid title upon a proprietor who reaches the title with a bona fide claim to the land, but when the allegation is that the statutory requirements for placing the title on the register have not been validly complied with, the question of whether the land has been brought within the statutory system, still requires to be examined.

A title which is a nullity, may become a reality by virtue of the Act, if the statutory conditions are complied with in bringing it on to the register. The foundation for the title in the Zealand cases, was impeached and was held to be irregular, but honest, and the irregularities did not prevent the title from being validly placed upon the register. The decision did not relate to any question between claimants to inconsistent registered interests, and to paraphrase this position in the appeals at present before me, it seems appropriate to say that the decision did not relate to any question between claimants to inconsistent interests, one being a registered interest and the other an interest not capable of registration but protected by Section 41 of the Lands Registration Ordinance to the extent which I have previously indicated.

Other cases to which I was referred, recognize that the statutory protection afforded to registration under the Torrens System, must be considered in the light of other particular statutory provisions bearing upon the particular case in question. One such case is Roseville Extended Ltd. V Lucas [1926] NSWStRp 43; 26 S.R. (N.S.W.) 402. In that case a direct prohibition in the Local Government Act, against subdivision without the consent of the Municipal Council, had the effect of overriding the right the transfer a title registered under the Real Property Act. This was a dispute between the immediate parties to the transaction in question. It was not a case where a defective title was brought on to the Register, it was a case where the Local Government Act made a dealing as yet unregistered, void, and in effect prohibited registration. It was a claim for specific performance of an agreement, and is not authority for what the position might have been if the instrument in question had come on to the Register.

Another case was Vickery v Strathfield [1911] NSWStRp 71; 11 S.R. (N.S.W.) 354, where a registered title was held to take effect subject to statutory interests created in favour of the public in relation to a public road.

Caldwell v Rural Bank of N.S.W. 69 W.N. 246, was a decision of the Full Court in Equity in New South Wales. In that case, the Minister for Public works, purported to resume certain land for public purposes and required unregistered title based upon the resumption. It was held that as between the immediate parties to the transaction, the resumption was invalid and a nullity. The Minister's title before registration, so that until the rights of a third person purchasing inn good faith and for value on the faith of the register, emerged, the registered title could be set aside. It must be noted that this was a conflict between the original parties and that the Minister was in a position in which the Court recognized that the Plaintiff had a personal equity against him which the Court would enforce. In these circumstances, the Court could compel the Minister to remove his registered title.

In Hamilton v Iredale, [1903] NSWStRp 70; 3 S.R. (N.S.W.) 535, land was brought on to the Register and an attempt was made to show that the title was not conclusive because there had been a wrong description of parcels or boundaries. The Court, however, held that this was not a case of wrong description, but that the Applicant for registration had reasonably correctly described the land which he was applying for, although the land was not his. The result was that the statutory requirements having been complied with, the land was validly brought under the system of land registration, and as between rival claimants, the conflict would depend upon fraud. If the Applicant acted in good faith with an honest relief that he had a title, he required by registration and absolute title, but if he knew that he had no title and tried to get a certificate to exclude other interests, that would constitute fraud so that the true owners could have the register rectified. Seemingly the registration of the land would stand, but the register would be rectified to show who had the true title. A bona fide, purchaser for value, dealing on the faith of the Register, and obtaining registered title to the interest shown, would no doubt acquire an indefeasible title, not because it was a subsequent registration, but because the element of fraud had been lost as between the rival claimants. The whole of this case arises under the statute, and by virtue of statutory provisions applicable to land validly brought under the system.

The next phase to be considered is the post-war period when proceedings were taken pursuant to the New Guinea Land Titles Restoration Ordinance 1951-1955, to have the lost registered restored.

Among the sections of the Lands Registration Ordinance repealed was Section 41, which protected native customs of land tenure from the operation of the Ordinance and from Certificate of Title issued thereunder. Section 67 of the New Guinea Land Titles Restoration Ordinance restored this section as Section 189 A, so that whatever took place by virtue of the new ordinance for Restoration of Titles, the same policy of protecting the native system of land tenure was to be observed.

Again the Ordinance sets out detailed procedure, apparently designed to protect native interests. Again the Commissioner of Titles, who is generally in charge of restoration proceedings, is required to notify persons specified in Section 34 of provisional orders made to restore titles, and again the Director of Native Affairs is required either to certify to the absence of native claims, or to refer the question of native customary interests for determination. This time the question of native customary rights is not referred to the Court for determination, but is referred to the Commissioner, who is empowered to conduct proceedings as if he constituted a Court. The Commissioner's decisions are subject to appeal to the Supreme Court, and broadly the procedure designed to protect the rights of native claimants is much the same as before, except that in the intervening decade it is apparent that native claims to interests inland have suffered some loss of status, and instead of being referred in the first instance to the Court, are referred for primary decision to officers having a general administrative responsibility in the implementation of the Ordinance.

Unless the Commissioner receives a certificate from the Director of Native Affairs, or a reference in respect of native customary rights, Section 37 requires him not to make a final order. Again the Director of Native Affairs has a general responsibility to represent and look after the interests of natives, but as I have held in other proceedings, this right is not exclusive, and the natives are entitled if they see fit, to take independent action to protect their interests.

The proceedings here concerned, were commenced by a claim under Section 9. In order to do this a claimant must claim to have been entitled to an interest in the land in question. He must also claim to have been entitled to be registered or entered on a lost register as the owner of that interest. He may make such a claim, whether or not he was in fact entered in the Register at the time of its loss or destruction, and his entitlement both to the interest in land, and to registration in the lost Register, must be established as on the "appointed date" which for the purposes of the Ordinance was subsequently fixed by notice in the Gazette as the 10^th January 1952.

Claims were made by the Custodian, and dependent claims were lodged by to other parties who are not represented before me on this Appeal. No claim was made by or on behalf of the native appellants, nor could any such claim have been made, for the word "interest" and the words "interest in land" are given statutory definition inn Section 4 which excludes native customary rights. It is clear that the Appellants under the new Ordinance had no right to come forward as claimants, but through the Director of Native Affairs they might have been entitled to have a claim lodged for the purpose of seeing registration of a Native Reserve, under the earlier Lands Registration Ordinance. By Section 13, the Director of Native Affairs is responsible to take steps to protect interests vested in him on behalf of natives and by Section 14-15 natives were entitled to assistance, if needed, from the Administration.

Instead of the draft Certificate of Title provided for in the Lands Registration Ordinance, the Restoration Ordinance provides for a provisional order which is to serve the same purpose. Under Section of the Registrar, after carrying out the procedure specified in the Ordinance, may make a provisional order in certain specified cases, and in other cases, under Section 33, the Commissioner is required to make the provisional order. This order is then the subject of publication in the Commonwealth Gazette and in the Gazette of the Territory of Papua and New Guinea.

Notice of the making of the order is also required to be served upon specified persons, including the Director of Native Affairs, and, in the event of a reference by the Director, the Commissioner is required to hear the claims of the natives. In the present case the Appellants appeared and were represented by Counsel before the Commissioner. The main question, so far as this appeal is concerned, that the Commissioner had to decide, was whether the Custodian on the 10^th January 1952 was entitled to the interest in the land in question, and was entitled to the interest in the land in question, and was entitled to be registered or entered on the lost Register which had been compiled under the Lands Registration Ordinance.

It was argued before me with a good deal of force by Counsel representing the Administration, that at this point it was the Commissioner's duty simply to restore the old title regardless of whether it was good, bad or indifferent, and to leave the determination of any incidental rights or even of any questions of validity, for the parties to take action in the Supreme Court, if they saw fit, to protect their interests. By Section 21 a new Register, compiled and kept under the Ordinance is for all purposes to be deemed to be the lost Register which it replaces, and nothing in the Ordinance is to authorise the registration in the new Register of an interest of a class which would not have been registrable in the corresponding lost Register.

I think that this argument is correct in relation to cases where on the issues presented to the Commissioner, it appears that in any event the bringing of the land within the system of registration was valid, and that any dispute between the contesting parties would need to proceed upon the foundation of the certificate of title which was to be restored. The resolution of such a dispute would be subsequent to the fact of registration, and would not be affected by restoration of the title. The speedy restoration of titles in cases where a duplicate original Certificate is available is an illustration of this.

In the present case, the contest between the parties before the Commissioner, includes a contest whether the Custodian's former registration was a registration which was authorized at all by the statutory provisions. If it was not, then clearly the title should not be restored. Another aspect of the dispute raised before the Commissioner, was the assertion that the land had been taken illegally and by fraud practised against the natives in German times, and possibly what amounts to an allegation that the Custodian obtained his title by arrangement with the Administration to ignore all interests other than those shown on the German Ground Book. The last-mentioned assertion, if established in fact, might go to the validity of the steps taken to bring the land under the operation of the Ordinance, but even if the appellants adopted the fact of registration, the assertion, if established, might well constitute fraud as defined in Hamilton v Iredale.

On the view that I take of the policy behind the Restoration Ordinance, these assertions, if their factual basis were sufficiently established, would provided grounds for the Commissioner wither to refuse to restore the title or, if he held that the fact of registration had been properly achieved in terms of the authorising Ordinance, to issue a restored title in the name of the Director of Native Affairs as trustee.

Once again, as in the case of the Lands Registration Ordinance, where the problem was to replace an unreliable and incomplete record of land transactions, the problem to be solved by the Restoration Ordinance was primarily to restore the paper record which had been lost owing to enemy action, but also to make up for the deficiencies of the old Register, and to bring up to date cases where for a variety of reasons, including survey difficulties, the old Register was not complete. In cases where some reliable starting point could be found, such as under Section 17(5), where the provisional order is based on a duplicate of an Administration Grant, Certificate of Title or Administration Lease, and the duplicate has been lodge with the Commission or the Registrar, the Commissioner may, under Section 37, proceed to make his final order without further enquiry as to native customary rights. In all other cases the Commissioner, before making a final order, is required to exhaust the possibility of native customary rights standing in the way, either by relying on the Director's certificate that there are no native claimants, or by hearing and determining a reference from the Director as to native rights.

It seems unlikely to me that in providing elaborate procedures for inquiries into native rights in the Restoration Ordinance, the Legislature contemplated new rights that might have arisen during the period when the title was missing. If a title was once validly registered under the Torrens System, it would hardly be possible for new native customary rights to arise in relation to it. Any new right arising by any form of grant, would have to be based on some interest in the registered title and in that event could not arise by native custom. It is possible, even over a short period of time, that some native migration right take place over unoccupied land, and some question might arisen whether new interests could arise by native custom over the land during a period when its statutory severance from land under native dominion was not in effective operation, for lack of conclusive certificates, but whatever peculiar claims might arise for determination by the Commissioner, it seems to me that the unlimited duty of the Commissioner to inquire into native rights, is not confined to cases of this character. The use of words "were retained by" in Section 17(1) (c) is a pointer to the view I take.

From these provisions, I infer that the intention of the Legislature is as follows:

(a) If a duplicate original Grant, Certificate of Title or Lease, is actually produced, the Commissioner is empowered to restore that document to the Register, leaving it to any party with conflicting interests, either to lodge an objection under Section 39, or to take such proceedings as he may be advised, to correct the Register when re-established, or otherwise.

(b) In cases where there is no duplicate original of the actual document of title available, the Commissioner is required before restoring the Register to its original condition, or to the condition in which it ought to have been, to conduct a fresh inquiry into the possibility of native claims standing in the way of registration. In such a case, it is not possible to say that it is the Commissioner's duty simply to restore the title and let the native claimants bring such proceedings as they might be entitled to bring to correct the position.

It is notorious as a matter of experience in this Territory, that native claimants to interests in land will very often wait for two or three generations before asserting openly some claim which they have kept to themselves in the meantime. In some cases when the claim emerges, it is put forward upon the footing that the predecessors to the claimants were paid for their interest in the land in question, but that each succeeding generation is entitled to payment for its interest and no previous generation has any right to sell the interests which will accrue in favour of generations yet to come. Another common kind of claim is to the general effect that the original European settlers gave presents to natives who happened to be found in the area and then proceeded to settle on the land. As the givers of presents they were made welcome and their use of the land was not resented because, for the time being, the natives did not need it, but with increasing population pressures resulting from the establishment of peace and law and order, the natives come forward to claim their land because they no needed it to establish a cash economy, and they deny that at any stage the presents which their predecessors received in the early days were understood to constitute a transaction for the sale of land.

In other cases, natives claim that land was purchased from people who were casual strangers, and had no interest in the land in question, or that the land was taken from then, particularly in the days of the German Administration, by confiscation or by force, frequently directed, in ignorance, against groups of natives who has nothing to do with the people who had given whatever cause for offence had started the process of reprisals and confiscation. Some claims are extremely vague and shadowy, not based on any clear knowledge of facts.

Those and many other claims on the part of the natives, keep recurring and frequently arise very many years after the land had been in constant use Europeans. Many such claims were dealt with by Phillips C.J. on references under the Lands Registration Ordinance of 1924-1939.

The question arises, why then does the Titles Restoration Ordinance provide that in every case, except where a duplicate original source of title is available, the Commissioner is required to investigate this question of native customary rights. Why should be act simply restore the Title as it was, from the best evidence available to him, and then leave customary rights to be extinguished as they were before, or to be sustained by Court proceedings if the claimants could establish what they alleged and establish a right to some appropriate relief.

I think that the only answer to this is that since the Register was in fact destroyed during the war, the protection afforded by the Certificate of Title was in fact lost, and adverse claims would in fact be valid and enforceable unless a duplicate could be produced. The policy seems to be to restore conclusive certificates only on condition that native land interests were protected. If a person held a duplicate original carrying its original evidentiary force, he was entitled to come straight back on the Register, but if he had lost that right, it was to be restored to him only on condition that any just claims still outstanding in relation to customary land tenure were satisfied.

On this view of the Ordinance, the question before the Commissioner in a conflict between native land interests and interests which were formerly registered and conclusiveness, was not simply whether there was before the destruction of the Register, a registered title. To such a question an inquiry into native claims would be irrelevant. Therefore the question before the Commissioner must be whether, in the light of such interests by native customary tenure as the native claimants were able to establish in point of fact, it is (under the terms of Section 43) just that the claimant should be given a Certificate of Title which would have the effect of extinguishing these interests. This is a complex question and one on which the Commissioner might well find comfort in resorting to his power under Section 44 to state a case for determination by the Supreme Court. Section 43(4) makes it clear that in arriving at such a difficult decision, the Commissioner is not given any arbitrary discretion in the matter, but must decide the question during the period when conclusiveness of title is absent, in the same way as it would be decided by a Court.

During the hearing of the reference before the Commissioner, some difficulty arose, because the Commissioner took the view that the evidence before him was sufficient to establish that there had been in fact a title in existence. It was argued before the Commissioner that no useful purpose would be served by any inquiry into native claims, and that therefore he should not embark upon one. The Commissioner very properly pointed to the fact that it was his duty to make such an inquiry, and he proceeded to hear native evidence notwithstanding that he apparently thought that he could not give effect to any conclusion which he might derive from it.

It may be of assistance to the learned Commissioner if I point out that, assuming that his conclusion was correct, that the existence of a Certificate of Title was established by the evidence (and I agree with the Commissioner that the evidence before him, uncontradicted as it was, did establish this fact), and assuming further (which is an assumption with which I do not agree) that this fact was conclusive against the existence at the appointed date of any native interests in land; it would have been a full compliance with the Commissioner's duty to inquire into these interests, to proceed up to that point at which, on the case presented before him the was able to reach a final determination that as a matter of law there could be no such interests. Beyond this point no evidence as to native customary tenure could have any relevance to his inquiry, for whatever the evidence might be, it would not establish the existence of any valid native claims.

Therefore on the view which the Commissioner took, that the Certificate of Title once proved to have existed was conclusive against any native land interests, this would have terminated his inquiry into the existence of these interests.

The point at which I am unable to agree with the Commissioner's view, is as to the conclusiveness of the fact of the existence pre-war of a Certificate of Title, when the inquiry under the Restoration Ordinance is as to the existence of native claims as at the appointed date, upon which no conclusive title existed. It is not a matter merely of giving secondary evidence of lost document. The purpose of the Ordinance is not merely to replace documents. It is only to replace documents consistently with the continued policy of protection native interests to the extent specified in the Ordinance.

In this context Section 18 should be noted. It only applied to people who have made a claim which apparently failed to result in the making of the final order sought by the claimant. If such a person discovers an old document or any other evidence which is in conflict with the final order made, he may apply to the Supreme Court for compensation out of the Assurance Fund, if the Supreme Court reaches the opinion specified in the Section. An "old document" is defined in Section 4, and excludes a document forming part of a lost Register. Thus a person who was in fact previously entered on the Register, and who failed to obtain a final order in this favour because the Commissioner's inquiry revealed the existence of native interests inconsistent with the claimant's former title, might at first sight regard himself as entitled to compensation if he subsequently found further evidence of the existence of his title. It is to be noted however, that this relief would only be afforded to if the Supreme Court were satisfied that on this new evidence, the applicant would have been able to establish, not the fact that his title was registered but his interest in the land.

In my opinion, the Commissioner was in error in so far as he decided that secondary evidence as to the state of the old registered title was sufficient to establish as at the appointment date, a conclusive case against the native claimants. In my opinion he should have conducted a full inquiry upon the reference into the validity of the native claims, in the absence of any conclusive state of title against then, and if he reached the conclusion that the natives had a valid and subsisting claim to the land sufficient to exclude the "interest" claimed by the Custodian, he should have refused to order to restoration of the pre-war title. This would leave the native claimants in a position to take such proceedings as they might be advised, to established their rights at Common Law, or to have their interest placed on the register as a native reserve in the name of the Director of Native Affairs as trustee.

What was done in fact as a result of the Commissioner's final order, was that a new Certificate of Title was issued in the name of the Custodian and by virtue of Section 17(3), that Certificate was directed to bear a date in 1942 which was the nearest date that the Commissioner could fix to the date upon which the old Certificate was in fact lost or destroyed. It was the late of the Japanese occupation of Rabaul.

In my opinion this direction as the date as not a proper exercise of the power conferred by Section 17(3). The Certificate in question purported to be a restored document and under Section 21(5) a new Register compiled to be deemed to be the lost Register which it replaces. Now it is clear on the facts, that there never was a Certificate of Title bearing date 1942, and in making this order the Commissioner in effect determine that between 1928 when the original Certificate was granted and 1942, no interests subsequent to registration could have arisen. As between the Custodian and Mrs. Richards this did not matter, for the transaction between the Custodian and Mr. Garret was to be carried out in due course of time, but the ante-dating of the Certificate of 1942 would have the effect of conferring upon the Custodian later and probable better evidence of title in case some interest should arise. At any rate this particular issue was not before the Commissioner for decision, and no party had raised any issue relating to this period for determination. The decision to select that date appears to have been made for the sake of administrative convenience, which I do not think is a justification for the exercise of the power under Section 17(3).

I think that the power to ante-date a document, when applied to a restored document which is to have the same effect as the dated selected should coincide as nearly as possible, according to the facts proved, with the date of the criminal document. Thus, if Certificate of Title Volume 1 Folio 47 was properly to be restored, it should have been ordered to be restored bearing date the 15^th May 1928. The native claimants would be entitled to show, if they could, that the title should only be restored on condition that it was rectified to allow for any interests which they might establish, and in that event I think that the rectification of the register should be included in the final order, and that the Register should show the proper date upon which the rectification took place.

Notwithstanding any defects in the Commissioner's final order, it falls to be decided what is the effect of it as a step in the process prescribed by the Ordinance for the restoration of titles. There can be no question that the Commissioner's determination was a genuine and substantial compliance with what the Ordinance required. There can be no doubt that it is the intention of the Ordinance that the final order should be binding and effective, subject to the right of appeal. Unless and until the decision is set aside on appeal, it remains a final order. The risk that it will be acted upon pending the prosecution of an appeal, is a risk which the Ordinance recognizes and takes into account in prescribing the steps that are to be taken. The Registrar is bound by the order and, subject to safeguard set out in the Ordinance, is bound to act upon it.

What happened after the making of the Commissioner's final order, is important, because of the effect that it has upon the remedy available to the Appellants in this appeal. The Commissioner, having reached his conclusion, made his final order and gave notice of it to the persons who on his view of the effect of Section 45 were entitled to receive a copy of the final order and the notice specified in that Section. Up to that time he had apparently taken the view that under Section 34 the Director of Native Affairs had an exclusive right to represent the interests of all natives, and that if the appropriate notices were served on the Director there would be no need to serve notice on any native person. In the Sulka Land Case I ruled to the contrary, for apart from the provisions of Section 34, there appears to be no reason, in my opinion, why a native or group of natives who have appeared by Counsel before the Commissioner on the hearing of a reference, should not be included in the phrase occurring in Section 45 "any other persons whom he knows to be affected by the final order".

The Commissioner, acting on the view indicated, sent notice as prescribed, to the Director of Native Affairs, but for some reasons, the Appellants were not served. Accordingly, after the expiration of the time for appeals (according to the view taken, by the Commissioner), the Registrar, pursuant to Section 47, purported to implement the final order by issuing a new certificate of registration in favour of the Custodian, and disclosing his interest in land as that which has been established to the satisfaction of the Commissioner.

It appears to me that the Registrar was bound (on his mistaken view as to service), to act as he did, under Section 47, upon the expiration of the specified time, and that he had no right to question the validity of the final order in the absence of any appeal. Therefore, I think that his action in registering the Custodian's title was a genuine but erroneous exercise of the power conferred on him by section 47, and to that extent the Certificate issued is a valid exercise of statutory power. Perhaps not valid in the fullest sense, but a real exercise of power for substantial reasons.

In the result, as I have previously held, the appellants were not served and the time for their appeal under Section 54 had not yet run, no had commenced to run, when the new Certificate of Title was issued.

As between the Appellants and the Custodian, I think that this position could have been remedied by lodging a caveat, and by joining the Registrar as a party to proceedings designed to rectify the register as the instance of the Appellants, so long as no other dealing with title occurred. But it appears that as soon as the new Certificate of Title was available, the Custodian transferred his interest to a Mrs. Richards, and that this transfer was registered before the Register received notice of appeal on behalf of the present Appellants. There was no sudden haste about this transaction; the fact of the matter is that the Custodian had sold the property on terms as far back as 1928, to T.V. Garrett, who gradually paid off the purchase money over a period which does not appear to be specified in the evidence before me. Garret died, and his widow, who remarried and became Mrs. Richards, claims to stand in the shoes of her former husband as a bona fide purchaser for value from the Custodian. Mrs. Richard's, relying upon the restored Certificate of Title, took a transfer and became registered as proprietor before the time for appeal had expired.

The claim as between Mrs. Richards and the present Appellants, is not before me, and I do not need to decide it. But I have to decide what course should be taken in relation to the hearing of evidence upon the present, appeal, and it seems to me that difficult issues of fact might have to be investigated to no good purpose, if the position is that Mrs. Richards has now, by accident, acquired in good faith and for value, a registered title which the Appellant cannot impeach.

It appears to be clear that Garrett agreed to purchase the property from the Custodian at a time where the Custodian had no registered title and possibly had not title at all, he having no greater right than his predecessor Wollff. When the title was registered there seems little doubt that Garrett continued to deal with the Custodian upon the faith of the registered title, and I assume that instalments were paid over some period of time. I do not know at what point, if at all, Garret became entitled to a transfer, or whether Mrs. Richards completed some of the payments under the contract after the title had been restored. Mrs. Richards may have to contend with the difficulties indicated in Clements v Ellis, but I must assume for the present purpose that at some point of time Mrs. Richards dealt with the Custodian in some relevant way upon the faith of the new title which was restored pursuant to the final order. It may be sufficient, although I do not decide this, if Mrs. Richards and her predecessor in title dealt with the Custodian in good faith during a period when there was not title, and subsequently relied on the restored title in good faith when she took a transfer and became registered. If this view is correct and is established in the appropriate proceedings taken on behalf of Mrs. Richards, it may well be that the Appellants, even if they successfully established their claims, and either had the registration set aside altogether, or had the Register corrected as at the appointed date, to show their interests as a Native Reserve under the trusteeship of the Director, their rights would again be extinguished as at the date upon which Mrs. Richards became entitled to conclusive registration as a bona fide purchaser to conclusive.

There are two matters which I think at this point require the consideration of Counsel for all the parties. The first is whether they desire to have the facts investigated further with a view to ascertaining whether the Appellants can establish their claims as at the appointed date, in view of the fact that Mrs. Richards may well be in a position by subsequent proceedings to set up a superior title.

The second is whether in the events indicated in the previous paragraph, the claims of the appellants which might then be converted to claims for compensation might be more effective than claims to compensation which might be based upon the present state of the title, because an analysis of the transactions on the register would then show that their claims had been extinguished at a more recent date.

I summarise my conclusions up to the present stage as follows:-

1. The pre-war registered title of the Custodian was not conclusive as against the Appellants, wither as to whether the land was validly brought under the operation of the Lands Registration Ordinance, or whether the Custodian was entitled to the interest specified.

2. The appellants are entitled to attempt to establish that in fact the statutory conditions of bringing the land under the Ordinance were not satisfied. If they can establish this, my conclusion would be that the land was still not under the effective operation of the Ordinance when the title was lost or destroyed. In the absence of a clear affirmative case on the part of the Appellants, the inference would be that all normal procedural requirements had been complied with in the process of bringing the land under the Ordinance.

3. If the land was properly brought under the Ordinance, it became severed from those lands which were under the effective operation of native custom, and the only claim which the natives could thereafter have, would be a claim for registration in the name of the Director of Native Affairs as a Native Reserve, being a claim coming within the statutory provisions relating to fraud. This fraud, if established either against Wollff or against the Custodian, would have the effect of giving the natives a right to rectification of the Register, in the absence of other registered interests, at any time up to the date of restoration of the title. This would include a right to rectification in the process of restoring that title as at the appointed date.

4. If the Appellants failed to establish both of these assertions, the Custodian, acting in good faith, had a conclusive title under the Lands Registration Ordinance and was entitled to have his Certificate restored as it stood before the war. In this event, any interest in the Land which the natives might have had would have become extinguished upon the issue to the Custodian of his Original title and their claim for compensation, if any, would date from this time.

5. I think that in any event the restoration of the title is a valid, if mistaken, exercise of statutory power, so that the land will now have to remain under the provisions of the Land Registration System. If the title is restored in the name of the Director in respect of a native reserve as at the appointment date, Mrs. Richards would be entitled, in appropriate proceedings brought by her, to seek to establish her statutory title arising upon registration of her transfer in 1961. If she establishes this right as against the Appellants, or rather as against the Director of Native Affairs representing the Appellants, she would be restored to be Registered as at that date, and as at that date the interests of the natives would have become converted into claims for compensation.

I will adjourn the appeals at this point, to give counsel for all parties interested an opportunity to study my findings, so that they will have an opportunity to make submissions as to what order, if any, should be pronounced at this state, and as to what further procedures upon the appeal, any party may desire to take.