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

CORAM: Clarkson, J.
Thursday,
6th March, 1969

THE ADMINISTRATION OF THE TERRITORY 
OF PAPUA AND NEW GUINEA
Appellant

AND

THE DIRECTOR OF DISTRICT ADMINISTRATION
Respondent

This is an appeal against a final order of the Land Titles Commission issued on 15th January 1968 in respect of certain land known as Nangumarum in the Sepik area. The hearing of the appeal was commenced at Wewak on 21st February 1969 and concluded at Port Moresby on 25th February 1969 when I reserved my decision.

To understand the issues involved it is necessary to give some account of the course of these proceedings.

In October 1952 the Roman Catholic (Mission of the Divine Word) Property Trust ("the Mission") made a claim under the New Guinea Land Titles Restoration Ordinance (the "Restoration Ordinance"). The claim in effect was that the Mission had been entitled at the appointed date to a leasehold interest in the Nangumarum land under an agricultural lease for 99 years from the Administration.

In July 1966 the Land Titles Commission made a provisional order declaring that it had been established that on the appointed date the following registered interest was owned by the following person; - "agricultural lease from the Administrator of the Territory of New Guinea for 99 years from 1st July 1940 in favour of the Mission of the Divine Word (Central New Guinea) Property Trust" and declaring that no native customary rights were retained on the appointed date in respect of the said land by any native or native community.

It will be noted that the provisional order contained no express reference to any restorable title held by the Administration.

In response to the usual notice calling for objections the Commission received in February 1967 a reference by the Director of District Administration to the Commission of a question of native customary rights pursuant to Section 36 of the Restoration Ordinance. The particulars set out were as follows:-

"Marisausa/Sagumboli and Wai'Kwasi/Wal'Umboli of Nuindogum claim full rights of ownership by native custom and assert that the land was never alienated nor any payment made for it."

On 2nd May 1967 the claim as disputed came on for hearing before the Commission at Wewak.

The transcript of what then occurred shows that some evidence was given and documents tendered. In particular the following matters appear: ‑

(a) In 1936 a party including an Administration officer and Peter Simogen, then a policeman, walked the boundaries of the land with some native occupants to whom some payment was made.

(b) There were at least two survey pegs on the boundaries of the land.

(c) There was evidence that the Mission had occupied the land for a number of years immediately preceding the War as a farm and a school.

(d) According to a notice in the New Guinea Gazette in April 1940 the Mission's application for an agricultural lease of the land was listed for hearing on 22nd May 1940.

It appears that the proceedings before the Commission were conducted in a somewhat informal manner and consequently there seem to be some omissions in the transcript. Two are worth noting. Firstly, the evidence of Peter Simogen who was clearly an important witness was given in Pidgin and was not interpreted nor recorded. The only note of it is a summary given by the Chief Commissioner to counsel and which occupies ten lines in the transcript. Secondly, it appears that a tape recording of conversations with some of the persons on whose behalf the reference had been made by the Director of District Administration was played to the Commission but I am informed the tape cannot now be found and that there is no note of its contents.

One further point should be noted. During the hearing the Commission appears to have treated Mr. McKinnon, an officer of the Crown Law Department who appeared for the Mission, as appearing also for the Administration. Section 14 of the Restoration Ordinance in effect enables the Administration to intervene at any time before final order but the transcript does not record any such intervention. The relevance of this is to what follows.

Towards the end of the hearing the Chief Commissioner suggested a solution to the parties in the following terms:

"What about a Final Order restoring the lease and directing that the property be valued and the money be paid to the two claimants on behalf of their clan - how'd that be?"

The transcript concludes with the note that the matter was adjourned for negotiations at the next sittings. Both counsel before me agreed there was no record of any further negotiation or hearing.

On the 5th October 1967, the Commission delivered its findings in the following terms:

"I find that the Administration would have been entitled to the Absolute Ownership and the Mission would have been entitled to an Agricultural Lease as at the appointed date provided that some form of compensation had been paid to the native claimants or their predecessors and I find that the present value of that compensation is $1,000. There will be a Final Order accordingly. The Administration to pay the $1,000. "

It will be seen that for the first time in the proceedings the precise interest of the Administration is referred to and the finding is expressed in the terms that the Administration and the Mission "would have been entitled" to the interests set out "provided that some form of compensation had been paid...."

A fair inference from this is that no payment had been made but this it seems would be inconsistent with the evidence of Peter Simogen. It could also be said that if the existence of an absolute or leasehold interest depended on payment having been made and if no payment had been made then no such interests existed, but the final order declares that they did.

I also note that there appears to have been no evidence to justify the finding that $1000 was the then present value of compensation which should have been paid earlier.

This finding of 5th October 1967 was followed by the final order of 15th January 1968, the subject of this appeal. By this the Commission declared:

(1) That the following interests were established: "absolute ownership by the Administration of the Territory of Papua and New Guinea of the said land subject to a lease from the Administrator of the Territory of New Guinea………on the terms and conditions normally applicable to an agricultural lease for 99 years from the 1st July 1940 in favour of the Mission of the Divine Word (Central New Guinea) Property Trust."

(2) That the Administration and the lessee were entitled to be registered as owners of their respective interests.

(3) That no native customary rights were retained on the appointed date by a native or native community in respect of the land.

The final order then goes on "and the Land Titles Commission does hereby direct the Administration of the Territory of Papua and New Guinea to pay or cause to be paid to Marisausa/Sagumboli and Wai'Kwasi/Wai'Umboli of Nuimdogum the sum of $1000 (one thousand dollars)." Further directions in common form then follow.

I also record that one of the recitals of the order shows that the order was made "upon reading the documents listed in Schedule A." And the document numbered 1 in that Schedule is described as "claim by the Administration of the Territory of Papua and New Guinea to freehold of the claimed land." There is no other record of any such document having been in existence.

The difficulties of reconciling the findings of the 5th October 1967 with the final order emerge from the foregoing account of the proceedings and need not be spelt out in detail. It remains for me to add that when the appeal came before me the Administration was described as the appellant and the Mission was neither a party to the appeal nor represented at the hearing.

The appeal was brought to this Court undo e Section 38 of the Land Titles Commission Ordinance. No objection was taken to the competency of the appeal and in any event I am satisfied that the Administration against whom an order had been made for payment of $1000 comes within the wide description of "a person aggrieved by the decision of the Commission" in Section 38 of the Restoration Ordinance.

The amended notice of appeal by the Administration was against only that part of the final order which required the Administration to make a payment of $1000 compensation. There were a number of grounds of appeal but the two on which the appellant relied at the hearing were, firstly, that the Commission had exceeded its jurisdiction in making the order for payment of compensation and, secondly, that even if the Commission had jurisdiction to make such an order there was in this case no evidence to support the award of compensation made.

These arguments if correct would have led to the deletion of the award of compensation from the final order leaving untouched the declarations which I have set out earlier in favour of the Administration and the Mission. However, during the hearing of the appeal counsel for the Administration conceded that since there appeared to be some doubt whether the Commission would have made these declarations if it had known it was unable on the evidence before it to award compensation the proper order if the appeal succeeded would be for a re-hearing.

On the other hand the respondent conceded that there was not sufficient evidence to sustain the award of compensation and then argued that on a proper reading of the findings of 5th October 1967 the final order should have been that neither the Administration nor the Mission had any restorable title. Alternatively the respondent contended that if the present declarations as to title were to stand the only order which should now be made was for a proper assessment of compensation.

It will be seen that both the appellant and the respondent were agreed before me that on the evidence the award of compensation made by the Commission could not be supported and I am satisfied that this view is correct.

The Commission in determining whether a final order should be made and in what terms is required by Section 42 subsec(4) of the Restoration Ordinance to "decide the matters in issue judicially". There was no demand for compensation before the Commission and no evidence of the value of the land either at the time of the events referred to by Peter Simogen nor at the time of the hearing. This is apparent from the transcript and from the Chief Commissioner's closing remarks when he suggested a possible solution which included, inter alia, that the property be valued. If after the hearing and before the publication of his reasons the Chief Commissioner obtained a valuation or some information on which a valuation could be based he did not give either party an opportunity to consider or test it, and in this respect alone did not act judicially. I conclude therefore that the award of compensation cannot stand.

However, both parties pressed the view that if I reached that conclusion I should go further and decide whether or not it is within the power of the Commission to award compensation to a party alleging that he has been deprived of rights by the making of a final order. This question has been fully argued before me and since an answer to it is necessary in order to consider the respondent's alternative submission I have given the matter consideration.

The respondent sought to justify the power to award compensation by reference to Section 17(1)(d) and Section 42(1) of the Restoration Ordinance. I did not understand the respondent to suggest that either of these provisions aided the other in compelling the conclusion that an award of compensation was within power. Either provision it was argued would support the power and I now consider them in turn.

Section 17(1) of the Restoration Ordinance reads as follows:-

"17. (1) In a provisional or final order, the Commission shall declare –

(a) whether it is established that a person was, at the appointed date, entitled to an interest in the land the subject of the order and to be registered or entered in a lost register as the owner of or the person entitled to that interest;

(b) the boundaries of the land the subject of the interest;

(c) the nature and extent of –

(i) the interest established in that land; and

(ii) the native customary rights (if any) which, at the appointed date, were retained by a native or native community in respect of that land; and

(d) any other matter which the Commission thinks necessary.

It will be seen that this sub-section is concerned only with declarations which may be made by the Commission. Paragraphs (a), (b) and (c) are concerned with declarations identifying the land and defining the interests therein. Paragraph (d) then goes on to enable the Commission to declare "any other matter it thinks necessary", words which on the face of them do not seem apt to describe a general and undefined power to award compensation. Nothing is said to identify to whom or by whom the compensation is to be paid nor for what loss or detriment, and the existence of such a power does not lie well with the express provisions of Sections 18, 19 and 20 contained in the same Division as Section 17 and which empower awards of compensation and damages by the Supreme Court in the very limited circumstances set out in those sections.

Division 1 of Fart III of the Ordinance in which Section 17 occurs contains a number of general provisions relating to the establishment of interests and empowers the making of declarations and the giving of directions by the Commission. Sub-section (1) as I have said refers to declarations as to interests in the land concerned and sub-section (2) to directions to give effect to the declarations. But in my view neither provision authorizes an award of compensation by the Commission. Sub-section (1) relied on by the respondent is a clear case where the ejusdem generis rule applies and where the general words of paragraph (d) should be restricted to the same category as comprehends the specific cases provided for in paragraphs (a), (b) and (c). See R. v. Regos  and Morgan , per Latham C.J. at p.623.

Next the respondent relies on the concluding words of Section 42 subset (1), which reads as follows: ‑

"42. (1) Subject to Section 37 of this Ordinance, the Commission shall, after the date specified in the notice published under Section 34 of this Ordinance, proceed to investigate, hear and determine the claims, objections and references which are the subject of, or relate to, the provisional orders listed in the notice, and to make final orders in respect thereof, either in the same terms as the provisional orders, or in such other terms as it thinks just."

The underlining is mine.

The argument is that the concluding words "or in such other terms as it thinks just" authorize an award of compensation by the Commission. In my view this argument rests on a misreading of the section which is even less capable of supporting the power sought than is Section 17.

This section, Section 42, is contained in Division 6 of Part III relating to final orders. It is concerned with "claims, objections and references". Throughout Part III "claim" is used as relating only to a claim to an interest in land. (See for example sections 9 and 11 of the Ordinance). I note also that in Sections 18, 19 and 20 which deal with certain rights to compensation or damages the draftsman has avoided using "claim" to describe either an application for compensation or a right to recover damages. On the only occasion on which that word occurs in those three sections, at the commencement of Section 18, it clearly means a claim to an interest in land. The sense in which the word is used in the Ordinance is demonstrated by Section 40 of the Ordinance in which an objector may be directed to make a "claim".

Similarly from on analysis of the relevant sections it emerges that the "objections" referred to in Section 42(1) are those made pursuant to Division 5 of Part III (see sections 39, 40 and 41) and that the "references" referred to in Section 42 (1) are those relating to native customary rights made under Division 4 of Part III.

I can find no express provision that an "objection" can be only to a claim to an interest in land but that appears to follow from a reasonable construction of the relevant provisions and a claim or a demand for compensation can hardly be described as an "objection".

As to a "reference" this clearly does not comprehend a claim or demand for compensation but refers to the procedure outlined in Sections 35 and 36 in respect to native customary rights which in Section 4 are defined as being rights of a proprietary or possessory kind.

Once it is seen that Section 42(1) relates only to the investigation, hearing and determining of "claims, objections and references" as so understood then that provision cannot assist the respondent because it is only "in respect thereof", i.e. in respect o the claims, objections and references specified in that provision, that any order can be made under it.

The respondent sought to obtain some assistance from the repealed provisions of Section 27E of the Lands Registration Ordinance whereby the Court was expressly empowered when land was being brought under the Ordinance to order compensation to be paid in extinguishment of a native right where the enforcement of the right would cause undue hardship and compensation would be an adequate remedy.

Even if Section 27E of the Registration Ordinance had not been repealed the grounds for an order under it were not established in these proceedings but the respondent suggests that injustice could result in some cases where Section 67(3) of the Restoration Ordinance applies if no power to award compensation is vested in the commission.

If this be a difficulty and one which should be remedied it is a matter for the legislature. But in any event Section 27E was not designed for the benefit of the holder of a native right. The repeal of that section did not leave the holder of a native right with nothing. He still retains his right. The difference is that he cannot now be compelled to take compensation in lieu of the right as he could under Section 27E of the Registration Ordinance.

It follows from what I have said that I cannot follow the course finally suggested by the respondent, that I should let the declarations in the final order stand and remit the matter to the Commission only for assessment of compensation. In my view the proper order for me to make is to remit the whole matter to the Commission for re-hearing. The award of compensation was made presumably to redress some detriment suffered but what it was I do not know, nor can I say what the declarations, if any, of the Commission would or should have been had it been recognized before the Commission that there was no power to award compensation. In addition, this course will enable all concerned to reconsider who should be parties to the proceedings and whether the declaration in the final order in favour of the Administration should have been made.

The formal order will be that the appeal be allowed, that the final order of the 15th January 1968 be quashed and that the whole case be remitted to the Land Titles Commission for re-hearing according to law.

_________________________

Solicitor for the Respondent: S.H. Johnson, Crown Solicitor.
Solicitor for the Appellant: W.A. Lalor, Public solicitor.