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Terade, Tarut and Tolivir v Administration of Papua New Guinea and Luke (re Malmaluan Townsend's Lease) [1973] PGSC 46; [1973] PNGLR 573 (29 June 1973)

Papua New Guinea Law Reports - 1973

[1973] PNGLR 573 - Terade, Tarut and Tolivir v The Administration of Papua New Guinea and Neva Millicent Luke (re Malmaluan Townsend's Lease)

[1973] PNGLR 573

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TERADE, TARUT AND TOLIVIR

V

ADMINISTRATION OF PAPUA NEW GUINEA AND NEVA MILLICENT LUKE (RE MALMALUAN TOWNSEND’S LEASE)

Rabaul & Port Moresby

Prentice J

15 June 1973

26 June 1973

29 June 1973

REAL PROPERTY - Restoration of title - Sufficiency of evidence to establish claims to registration under the New Guinea Land Titles Restoration Ordinance 1951-1955 - Evidence of payment of rent to Administration does not of itself establish purchase from native owners - Evidence required to prove a lease from the Administration - Evidence required to establish presumption of regularity.

EVIDENCE - Real property - Restoration of title - Sufficiency of evidence to prove lease from Administration - Sufficiency of evidence to establish presumption of regularity.

The Administration claimed entitlement to registration under the New Guinea Land Titles Restoration Ordinance 1951-1955 as absolute owner of approximately one hectare of land on the Gazelle Peninsula known as Malmaluan or Townsend’s Lease. Mrs. N. M. Luke claimed entitlement to registration as owner of a lease for 99 years from 1930 in respect of the same land. At the hearing before the Commissioner of Titles, the evidence established that there was a Land Board hearing on 31st October, 1929, and that this could have resulted in a permissive occupancy not amounting to a registerable interest in the land being granted from 1929. The only evidence of purchase of the land from the natives established at the highest a “purchase” or rental of portion of the land from a person who did not own it and in an apparently illegal fashion. The Commissioner of Titles made a final order declaring that on the appointed date the Administration was the absolute owner of the land and Mrs. N. M. Luke the owner of a 99 year leasehold of the land from 1st January, 1930.

The appellants appealed to the Supreme Court against the making of the final order. At the hearing of the appeal, counsel for the respondents, with objection from counsel for the appellants, read an affidavit deposing that “rent and records” held by the Administration disclosed that rental for the land had been paid to the Administration from 1st July, 1930 to 31st December 1970.

Held

N1>(1)      The Commissioner of Titles was clearly wrong in holding that there was sufficient evidence from which to conclude that either of the applicants was the owner of an interest in the land that was capable of registration on a lost register.

N1>(2)      Whilst the payment of rent, if properly proved, may go towards establishing an issue estoppel in favour of a lessee against a purported lessor it could not take the present claims against the former actual owners any distance. The only evidence of purchase of the land from natives would, if accepted, establish at highest no more than a “purchase” or rental of portion of the land claimed from a person who did not own it, in an apparently illegal fashion.

N1>(3)      No evidence was presented of any grant or registration of a lease, or of any entry in the Record of Granted Applications or in the Register of Assignments of Granted Applications. It did not follow from such evidence as there was, of possession of an undefined area of ground, the carrying out of a survey in the vicinity (query whether there was a prescribed survey of the land now claimed) and the existence of unexplained markers, that the land claimed was the subject of a lease.

Director of District Administration & Ors. v. Dowling [1969-70] P. & N.G.L.R. 398 applied.

N1>(4)      No presumption of right or regular or legitimate doing can arise so as to establish to the necessary degree of proof, from the fact that someone may be presently paying an annual rent of a small order to the Administration, taken in association with the other evidence, such as it is, for the advertisement of a Land Board hearing, survey and occupancy of certain undefined ground, that therefore the Administration must have acquired the land claimed and must have granted a 99 year lease thereof, and thus entitling the claimants to registration as owners of their claimed interests on the relevant lost registers.

Discussion of the correctness of the decision of the Full Court in The Administration of the Territory of Papua New Guinea v. The Director of District Administration on behalf of Sinila Telawut of the Mohomarba Clan, and others (Re Madina (No. 2)), [1973] P.N.G.L.R. 553 that in considering under s. 67 (3) of the New Guinea Land Titles Restoration Ordinance whether under s. 42 (2) of the Lands Registration Ordinance (New Guinea) the Registrar might have deemed the evidence of title to be sufficient, the test to be applied is to ask “has such a title been shown as would be forced on an unwilling purchaser”.

Appeal from Commissioner of Titles

The facts and arguments of counsel appear sufficiently from the judgment herein.

Counsel

M. Adams, for the appellants.

J Ross, for the respondents.

Cur. adv. vult.

PRENTICE J: This is an appeal instituted in May, 1961 against an order of the Commissioner of Titles made on 26th August, 1960, whereby it was declared that on the appointed date the Administration was the absolute owner, and one Luke the holder of a 99 year leasehold from 1st January, 1930, of certain delineated land known as Townsend’s lease, Malmaluan. The land is one hectare approximately, in area.

In effect the grounds of appeal are that the evidence did not establish that the land had been sold to the Administration (certainly not sold by the rightful owners) nor that it had been leased to the aforementioned Townsend from whom the second-named respondent drew her claim.

It was common ground that the appeal was to be conducted as an appeal under ss. 54 and 55 of the New Guinea Land Titles Restoration Ordinance, 1951-1955, as an appeal by way of rehearing (s. 55). This result is achieved by the combined effect of s. 51 of the New Guinea Land Titles Restoration Ordinance 1951-1966 and s. 38 of the Land Titles Commission Ordinance, 1962-1972, upon the appeal as originally instituted under s. 54 of the 1951 Restoration Ordinance (as it stood in 1960).

On the threshold of the hearing of the appeal, Mr. Ross for the respondents, sought to tender the affidavit of Bruce Howard as to the contents of certain rent records of the Lands Department. Mr. Adams objected to the reception of the affidavit, on grounds which he argued in detail in regard to a similar application as to fresh evidence in Re Nonga (as yet undecided); and further on the ground that the court in the exercise of the general discretion which he submits it has, should reject it as containing material which would have been available, was in existence, prior to the hearing before the Commissioner of Titles. Alternatively, Mr. Adams submitted that if the new s. 38a, sub-s. (2) (aa) as inserted by the 1972 amending Act were applicable, the respondents had not negatived negligence in failing to adduce this (new) evidence before the Commission(er). I allowed the affidavit to be read subject to objection and it was marked for identification (1).

I consider it unnecessary to make a ruling as to admissibility in this case, because of the view I take of the state of evidence even were it to include this matter purportedly relating to rent records.

As is commonly the case, one has doubts whether the Commissioner’s record fully records the material before him. For example, I instance the mention of the date 1st January, 1930, as the commencing date of a lease, which seems quite unsupported in the documentary record and transcript. Similarly the reference to a 99 year term seems to be unsupported by any evidence. If the lease were of a residential character rather than agricultural, to which I shall refer later, it might well have been for some lesser period so it seems to me. It was not of course incumbent upon the Commissioner to keep a transcript.

The Administration by its claim alleged “a transfer from natives,” from which both counsel assumed a “purchase” (no resumption or Waste and Vacant declaration was suggested). It stated that the Certificate of Title was “lost through enemy action” and under Item 21 (“Other information likely to be of assistance ...”), “Application by H. O. Townsend published in Gazette of 31/11/1929, p. 1945.” I pause here to say that there is no evidence that any Certificate of Titles had been issued.

The lessee claimant stated Administration title was “believed to have been registered in the Register of Administration Leases”. She claimed to have bought the lease by contract of sale on 1st July, 1950, from one Jean Read, and further stated “Land said to have belonged to Harry Orton Townsend (deceased) ...”. A contract of sale from A. C. Townsend to Jean Read of 1/6/1950 was said to have been lodged with the claim form but is not with the Commissioner’s record. This may be a misreference to the document actually filed which is of 1/6/1950 between Townsend’s executrix and Jean Read. This document makes incidental recital of encumbrances in favour of the Administration “contained in the lease thereof” and recites that Townsend “was entitled to be registered as the owner of an administration lease of land at Malmaluan ... containing one hectare”.

A Mr. Matheson made a survey on 24th February, 1960. Apparently he was then shown a peg on the south-east corner of the block as subsequently surveyed; and he uncovered another on the south-west corner. These he described as “O.A.C.s”, apparently meaning Old Australian Cements. In his opinion they could have been thirty years old. He himself centred a new peg on the back boundary on the alignment between these two old pegs. He then placed pegs on what he, I take, reconstructed as a front boundary, one each on the north-east, north-west, and centre, of a line twenty links roughly from the centre of the existing road formation. He gained data from a Mr. Richards and “a letter from the original surveyor Mr. B. T. Webb”. (Mr. Webb apparently did a survey of a portion of land at Malmaluan at the instance of a private individual.) Both these men stated that the property was bounded on one side by the road and on the south by a natural feature. Neither of them is said to have mentioned cement markers. The area Mr. Matheson surveyed in his reconstruction was roughly rectangular. A question was put to him by the Commissioner on an assumption as to a triangular-shaped area delineated in reference to a clump of bamboo. An Alualua, Topoko, on the other hand, asserted that before the war there were no cements—that he himself put in the (old cements) because of two houses he erected on the property concerned. He himself had gardens “inside the cements”. (It is not clear whether he meant on the disputed land or beyond it, that is further from the road.) Apparently he claimed that the portion of the disputed land on which the right-hand house marked “house” on the plan annexed to the final order, was erected—this being where the hearing was conducted, was his. He agreed that a “Mrs.” “bought” the other piece of the disputed land. It seems the “Mrs.” could only be Mrs. Luke.

The appellant Tarut agreed Mrs. Luke “owned” a piece of the land. But he denied that Tingai from whom “she bought” it, had any right to sell.

Tolivir the other appellant, also denied any right in Tingai to sell.

Mrs. Luke remembered no conference about boundaries. She gave no useful evidence.

Mr. C. W. Kimmorley, then an assistant district officer, investigated the land concerned in February, 1960. The story he was given then, as set out in his letter of 2nd March, 1960, indicates that the natives to whom he spoke gave a somewhat different account to that rendered by the claimants at the hearing.

The Commissioner had originally been given information which suggested occupation of a triangular-shaped block (Matheson’s letter 24th February, 1960). A provisional order was in fact issued on 7th December, 1959, in respect of such a triangular-shaped block purporting to record a reconstruction of the aforesaid Townsend’s lease. The Commissioner expressed himself as becoming “perturbed” in March, 1960 by the discovery of “two old German cements” apparently in the vicinity of and possibly surrounding the disputed land (his letter 9th March, 1960). The file does not disclose how his perturbation was quietened, or what was decided about the German cements, although a Mr. Giles was sent to inquire as to possible German Mission interests in the area.

There is a reference in the Government Gazette of 31st October, 1929, which listed for a Land Board meeting “L 1737 H. O. Townsend, 1 ha. Malmaluan.”

Under s. 6 of the Land Ordinance (New Guinea) 1922-1941, Mrs. Luke’s predecessor could not have entered legally upon occupation of native land without going through the process of application to the Administration for a lease (accompanied in the case of an application for an agricultural lease by a certificate of native owners’ willingness to sell to the Administration). It seems it may have been the practice after the making of such an application, for the Land Board to allow an applicant to enter into occupation before title had been attained by the Administration—though s. 26 (2) restricts the Land Board’s powers in that regard to “Administration lands”. There appears to be no provision that land must have become Administration land before an application was advertised and considered by the Land Board.

The evidence before the Commissioner appears to establish no more than that a Land Board hearing, which could have resulted in a permissive occupancy not amounting to a registrable interest in land (Director of District Administration v. Dowling[dcliii]¹), was to have been held in 1929. No evidence was presented of any grant or registration of a lease, or of any entry in the Record of Granted Applications or in the Register of Assignments of Granted Applications. It does not follow to my mind from such evidence as there is, of possession of an undefined area of ground, the carrying out of a survey in the vicinity (query whether there was a prescribed survey of the land now claimed), and the existence of unexplained markers, that the land claimed was the subject of a lease.

Nor do I think Mr. Howard’s affidavit adds anything of cogency to the picture. It is a notorious fact that the records of the Administration of the Mandated Territory of New Guinea were lost by enemy action in Rabaul in 1942; yet the present “rent card records” of the Department of Lands, Surveys and Mines of the post-war Administration of Papua and New Guinea held in Port Moresby, are said to disclose that rental of $2.50 per annum has been paid in respect of the property described as “Malmaluan Plantation” “to the said Department from 1st July, 1930 to 31st December, 1970.” This statement is plainly wrong. The “records” are not produced, the property is not properly identified by metes and bounds or area, the material from which the “records” are made is not disclosed, nor is it stated by whom the “records” have been kept since 1930. While the payment of rent if shown, may go towards establishing an issue estoppel in favour of a lessee against a purported lessor, it could not I consider, take this instant claim against the former actual owners any distance. In any event as against original native owners, no unregistered lease would avail unless the lessor had title to grant the lease. The only evidence of purchase of the land from natives apart from what may be said to be presumed, is that given by the natives prior to and at the hearing. This would if accepted, establish at highest no more than a “purchase” or rental, of portion of the land claimed, from a person who did not own it, in an apparently illegal fashion.

It was held in Re Madina[dcliv]² that in considering under s. 67 (3) of the Restoration Ordinance whether under s. 42 (2) of the Lands Registration Ordinance the Registrar might have deemed the evidence of title sufficient to justify registration, the test to be applied is to ask “has such a title been shown as would be forced upon an unwilling purchaser”. This decision is binding on me. However, with the greatest respect, I take leave to doubt its correctness. One of the cases cited in support of the proposition appears to me to be irrelevant. The other, that of Edwards J of the New Zealand Supreme Court, held that that Court ought not, on a review of a District Land Registrar’s decision, order him to proceed with an application for registration of title where it had not appeared to the Registrar’s satisfaction that the land was vested in an estate or interest as claimed—unless the Supreme Court were clearly satisfied that such a title has been shown as would be forced upon an unwilling purchaser. I am not altogether sure that this is the equivalent of saying that the New Zealand Registrar should have proceeded only on such a standard of proof. But in any case the New Guinea section, and the New Guinea setting, are of course quite different. The New Guinea section provided that the New Guinea Registrar might bring the land under registration “upon production of such evidence of title as he deems sufficient.” In my opinion it by no means follows, having regard to the circumstances of time and place, that the New Guinea Registrar in exercising his discretion in 1924 (or in 1952) should be held to have been required to proceed on principles appropriate and applicable to the settled, urbanized, and sophisticated conditions of New Zealand of 1905. With respect, it appears to me that the court may have no warrant to interpret the section so as to in effect rewrite it, and to restrict the Registrar’s discretion in the form it seems to have done in Re Madina [dclv]³.

Endeavouring however to apply the decision, as I must, I ask myself has the evidence here established in the Administration such an entitlement to the fee simple, and in the other claimants such an entitlement to a 99 year leasehold, as would have been forced on unwilling purchasers. I do not think any presumption of right and regular, or legitimate doing can arise so as to establish to the necessary degree of proof, from the fact that someone may be presently paying an annual rent of a small order to the Administration, taken in association with the other evidence such as it is of an advertisement of a Land Board hearing, survey and occupancy of certain undefined ground, that therefore the Administration must have acquired the land claimed, and must have granted a 99 year lease thereof to Townsend. That is to say that the claimants should be held to be deemed to have been entitled at the appointed date, to interests in land of the type claimed and to have been entered in a lost register as the owners thereof. Mr. Ross for the respondents in support of the Commissioner’s decision, was driven to rely on such a presumption, in seeking to meet a Re Madina test (supra)[dclvi]⁴—a presumption he says arising from the payment of rent. The presumption that the Administration purchased is fortified he submits, by the consideration that this must have been a residential lease, because of its small area, and could not therefore have been the subject of an agricultural lease application—under which when “granted”, an occupancy could be permitted. But it is interesting to note that s. 57 in its provisions for payment of rent, contemplates that all kinds of leases are first the subject of a granting from the date of which rental is due, and that s. 26 (2) does not appear to be restricted to agricultural and pastoral leases, as reg. 9 under the Land Ordinance may, on the contrary, be construed to be. According to Mr. Howard’s affidavit the land claimed is shown in departmental records as “Malmaluan Plantation”.

I am of the opinion that the Commissioner was clearly wrong in holding that there was sufficient evidence from which he should conclude that either of the claimants was the holder of an interest in land which would have entitled the applicant to registration, if under the repealed provisions of the Land Registration Ordinance and with all relevant documents available, proceedings, completed before the appointed date, would have established entitlement to registration.

I consider that the appeal should be upheld. This appeal was itself a rehearing. No witnesses were sought to be recalled. No evidence was sought to be tendered on behalf of the appellants (alleged native owners) nor on behalf of the respondents (claimants) other than in the form of Mr. Howard’s affidavit. Consequently, I do not think either appellants or respondents could properly support a reference to the Land Titles Commission for a hearing de novo—which might in the interests of causing a cessation of litigation, have been the most practical course.

I allow the appeal and I order that in lieu of the final order of the Commissioner of Titles, it be declared that it is not established that at the appointed date either of the claimants was entitled to an interest in the land claimed in respect to which interest she or it was entitled to be registered as owner.

Appeal allowed. Final order quashed. Declaration that it was not established that on the appointed date either of the claimants was entitled to an interest in the land claimed in respect of which she or it was entitled to be registered as owner.

Solicitor for the appellants: W. A. Lalor, Public Solicitor.

Solicitor for the respondents: P. J Clay, Crown Solicitor.

[dcliii][1969-70] P. & N.G.L.R. 398.

[dcliv][1973] P.N.G.L.R. 553.

[dclv][1973] P.N.G.L.R. 553.

[dclvi][1973] P.N.G.L.R. 553.