|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Papua New Guinea Law Reports |
PAPUA NEW GUINEA
[SUPREME COURT OF
JUSTICE]
FIRST ASSISTANT SECRETARY, DEPARTMENT OF THE ADMINISTRATOR, ON BEHALF OF THE BIANGAI LAND-OWNING GROUP OF THE KWEMBU, BAIAWEN KAISINIK,WANDUMI, WINIMA AND WURAWURA VILLAGES
V.
THE ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA AND LEAHY (RE PORTION 56, MOROBE)
Lae & Port Moresby
Frost SPJ
6 October 1971
6 March 1972
REAL PROPERTY - Restoration of title - Claims for absolute interest
and leasehold interest - Provisional order in respect of claim for leasehold
only - Certificate that no native claims made to land by natives - Subsequent
claim to absolute interest by Administration - Only
evidence, evidence of a
granted application for a lease - No evidence to establish interest in land -
New Guinea Land Titles Restoration
Ordinance, ss.
9[cdlxxxiv]1,
10[cdlxxxv]2,
14[cdlxxxvi]3, and
33[cdlxxxvii]4, Land (New Guinea) Ordinance
1922-1958, s. 17[cdlxxxviii]5, Land Regulations
(New Guinea), reg. 9[cdlxxxix]6 .
WORDS AND PHRASES - “A person aggrieved” - Land Titles Commission Ordinance 1962-1970, s. 38 (1).
L. claimed entitlement to restoration of a title as lessee of a registered leasehold of certain land known as “Portion 56, Morobe”. The Land Titles Commission then made a provisional order, provisionally restoring to L. a lease from the Administration in the subject land for ninety-nine years from 1st October, 1936. That provisional order was duly published in the Gazette and after inquiries the Director of District Administration filed in the Land Titles Commission a certificate that to the best of his knowledge and belief there were no native claims to the subject land. Subsequent to the filing of that certificate the Administration claimed entitlement to restoration of an absolute interest in the subject land.
The only evidence of title before the Land Titles Commission was evidence of the assignment to L. of a “granted application for a lease of surveyed lands” over the subject land.
The Land Titles Commission made a final order restoring the claimed absolute interest to the Administration and the above-mentioned leasehold interest to L.
An appeal was brought against the making of the final order by the Director of District Administration on behalf of native land-owning groups who claimed ownership of the land.
Held:
(1) a; Thav leave to amend the proceedings should be granted to enable the appeal to be ma the tirec8or&#s217;s succ successor on behalf of the native land-owning groups on the ground that the latter fell within the expression “a person aggrieved” (as used in s. 38 (1) of the Land Titles Commission Ordinance 1962-1970) as being persons who were really and directly interested in the proceedings, as the effect of the final order was to deprive them of the rights they claimed to ownership and possession.
Day v. Hunter, [1964] VicRp 109; [1964] V.R. 845; Dentry v. Stott[1947] VicLawRp 34; , [1947] V.L.R. 462, applied.
Director of District Administration v. The Administration of the Territory of Papua and New Guinea and the Lutheran Mission Madang (Unreported. Kelly J.—30th September, 1970), followed.
Cases referred to:
Mill v. Scott; Ex parte Mill, [1955] Q.S.R. 210; Re Sidebotham; Ex parte Sidebotham [1880] UKLawRpCh 148; (1880), 14 Ch.D. 458; Re Reed, Bowen & Co. [1887] UKLawRpKQB 92; (1887), 19 Q.B.D. 174; Sevenoaks Urban District Council v. Twynam, [1929] 2 K.B. 440.
(2) & Thce onproa provisional order has been made in respect of a claim to certain land and the proe und.r ssa 35 and 36nd 36 has been carried out in relation thereto, it is not a requirement of the Restoration Ordinance that if thereafter, before a final order has been made, the Administration exercises its right to make a claim in respect of any interest in that land, a second provisional order should be made in relation thereto.
Dictum of Clarkson J. in Director of District Administration v. The Administration of the Territory of Papua and New Guinea (Re Tol Extended), [1969-70] P. & N.G.L.R. 389, at p. 393, applied.
Semble:
That after a provisional order has been made by the Land Titles Commission, it has no jurisdiction to make a second provisional order.
Cases referred to:
The Administration of the Territory of Papua and New Guinea v. Toilu Mai, [1969-70] P. & N.G.L.R. 319. Director of District Administration v. Administration of the Territory of Papua and New Guinea (Re Tol Foreshore Reserve), [1969-70] P. & N.G.L.R. 381; Director of District Administration v. Dowling, [1969-70] P. & N.G.L.R. 398.
(3) a; Th t as there was no evidence to support any intere the held e Admration or anyr any enti entitlemetlement tont to be registered in respect of such an interest nor was there any evidence to support any leasehold interest or agreement to grant such interest or entitlement in the claimant L. such as would show an interest in land or entitlement thereto under ss. 9 and 10 of the New Guinea Land Titles Restoration Ordinance the final order should be quashed and the case remitted for rehearing.
Director of District Administration v. Dowling, [1969-70] P. & N.G.L.R. 398, followed.
Appeal under the Land Titles Commission Ordinance 1962-1970, s. 38.
The facts and arguments of counsel are set out sufficiently in the judgment hereunder. The documents before the Chief Commissioner of the Land Titles Commission when he made the final order are set out below:
1. ټ & A c;aim maim made by Patrick Joseph Leahy dated the 10th Sber, the e of thof the claim being for a lr a leaseheasehold interest in Portion 56, District of Morobe supported by an “assignment dated the 29th January, 1941”.
2. ¦t An assignment of interest in a granted applin forase oveyed lands under the Lthe Land Oand Ordinardinance 1922, dated 29th January, 1941, whereby Michael James Leahy and James Luby Leahy of Upper Watut, miners, being the registered assignees of the rights of an applicant for an agricultural lease of the surveyed land in land, which was described as being agricultural lease No. 14 Morobe and Portion 56, District of Morobe, the application for which had been granted, in consideration of the sum of œ150 paid by Patrick Joseph Leahy of Wau, farmer, the receipt of which sum was acknowledged, assigned and transferred all the right and interest in and under the said application to the said Patrick Joseph Leahy. The assignment was expressed to be subject to the Administrator’s approval which in fact appears by the document to have been given at Rabaul on 21st February, 1941. It is to be noted that the document bears the endorsement, “Registered in Assignment Register, vol. 1, folio 69, on this 21st day of February, 1941 ”.
3. A piovis onal order made on 9th November, 1953,onexith a to rabliserswnp ahip as at s at the athe appoinppointed dted date of registered interest in Portion 56, District of Morobe, whereby it was established that on the appointed date the following registered interest in the said land was owned by the following person—“Lease from the Administrator for the Territory of New Guinea for ninety-nine years from the 1st October, 1936, by Patrick Joseph Leahy and that no native or native community was at the appointed date entitled to any native customary rights in respect of the said land.”
4. &; Anacxtrrom from the Government
Gazette dated 23rdmber,, of aking of thef the provisional
order.
5. &; A firtie uate under s. 36 (b) of the
Resion Once by the Director of Native Affe Affairs airs to which I have already
referred. 6. t&##16; A claim d3ted 30th November, 1953, by
the Administration of the Territory pua awd Nen Guio a freehold
inte
interest
rest to land including the subject land stated to be acquired by purchase
from the native owners, and by declaration of waste and
vacant land, and further
stating that the certificate of title or instrument evidencing title was lost
through enemy action. 7. &; A daimd 3ted 30th January, 1954, by
the Administration e Tery of and New Guiw Guinea to a freehold
intd
interesterest
in Portion 56, District of Morobe stated to be acquired by transfer
from the native owners and further stating that the certificate
of title and
other instrument evidencing title was lost through enemy action, and that the
sources of knowledge of the facts stated
in the claim were the provisional order
for leasehold in favour of P. J. Leahy, Gazette 28th December, 1953. Counsel: O’Neill, for the appellant. 6 March 1972 FROST SPJ: This isppe appeal brought by the Director of District
Administration against a final orade by the Chief Commissionssioner of the
Land
Titles Commission on 29th July, 1965, whereby in connexion with claims to
re-establish ownership as at the appointed date under
the New Guinea Land
Titles Restoration Ordinance of interests in certain land known as Portion
56 of the District of Morobe it was established that, on the appointed date, the
interests
owned were absolute ownership by the Administration of the said land
subject to a lease from the Administrator of the Territory (excluding
a public
road shown on a map annexed to the order), on the terms and conditions normally
applicable to an agricultural lease for
ninety-nine years from 1st October,
1936, in favour of Patrick Joseph Leahy, and further that the Administration and
the lessee were
entitled to be registered as owners of their respective
interests in the Register Book and the Register of Administration Leases,
and
further that no native customary rights were retained on the appointed date by a
native or native community in respect of the
said land or any part thereof. At the hearing counsel for the appellant sought leave to amend the
proceedings to substitute for the Director of District Administration
as the
appellant, the First Assistant Secretary, Department of the Administrator, on
behalf of the Biangai land-owning groups of
Kwembu, Baiawen, Kaisinik, Wandumi,
Winima and Wurawura villages. The application was not opposed by counsel for the
respondent in
so far as it provides for the name of the Director’s
successor to be substituted, but he opposed the application in so far
as the
proposed amendment added a representative capacity. I then gave leave to counsel
for the appellant to read affidavits by villagers
of four of the afore-mentioned
villages of the Biangai land-owning group. These affidavits were in similar
terms and deposed that
on 8th August, 1965, a certain assistant officer had
informed a group of the Biangai land-owning group assembled from those villages
that the Land Titles Commission had made a decision that the said Portion 56 was
owned by the Administration. In each affidavit the
deponent then went on to
depose that he had informed the Assistant District Officer that this land was
owned by his land-owning group,
that the Administration had never paid for the
land, and that each had requested that an appeal be lodged against the Land
Titles
Commission’s decision. After hearing argument I granted leave to amend in accordance with the
application for reasons which I then gave, and which it is
convenient to set out
in this judgment. At the outset I should state that the final order was made
without a hearing being held pursuant
to s. 42 (2) of the Restoration Ordinance.
From the certificate made by the Director of Native Affairs on 31st October,
1956, pursuant
to s. 36 (b) of the Restoration Ordinance, it appears that
subsequently to the provisional order the Director of Native Affairs (the
Director’s predecessor) had certified that, to the best of his knowledge
and belief, no native or native community was, or
asserted that he or it was, on
the appointed date, entitled to any customary rights in respect of the land in
question. That certificate
could only have been given following the notices
given of the provisional order pursuant to s. 35 of the Restoration Ordinance
and
the inquiries which the Director was bound to make also under that section.
Thus, when the claims came before the Chief Commissioner
it is to be assumed in
favour of the respondent that due notice had been given that any native or
native community asserting that
he or it was at the appointed date entitled to
native customary rights in respect of the land, might lodge with the Director
particulars
of those customary rights, that the necessary inquiries had been
made but that no claims had been brought to the attention of the
Director. The argument submitted by counsel for the respondent was that the
Director’s successor neither in his own right nor in any representative
capacity was a “person aggrieved” within the meaning of s. 38 (1) of
the Land Titles Commission Ordinance, which provides that a person
aggrieved by a decision of the Commission may appeal to the Supreme Court within
the time stated. Counsel
relied upon Mill v. Scott; Ex parte
Mill[cdxci]8, and the English authorities
therein referred to. In that case the Full Court of the Supreme Court of
Queensland held that a complainant
in proceedings under the Justices Act
of Queensland was a person aggrieved under that legislation and therefore
competent to appeal by way of order to review. The first
question is whether the
expression “person aggrieved” is to be restricted to a party to the
proceedings. In Re Sidebotham; Ex parte
Sidebotham[cdxcii]9, Lord James stated that
for the purposes of the English Bankruptcy Act, 1869 and an appeal
thereunder: “A ‘person aggrieved’ must be a man who has
suffered a legal grievance, a man against
whom a decision has been pronounced
which has wrongfully deprived him of something, or wrongfully refused him
something or wrongfully
affected his title to something.” It is plain that
this definition does not limit the persons included in the expression to
parties. In the same case Bramwell L.J. said, “certainly the general rule
is that an appeal must be by the party who has endeavoured
to maintain the
contrary of that which has taken place”. In a later case Re Reed, Bowen
& Co.[cdxciii]10, the meaning of
“person aggrieved” was again considered under the Bankruptcy
Act, 1883. Lord Esher M.R. referred to the judgment of James L.J. (supra),
and then went on: “This is not an exhaustive definition,
but it is an
affirmative definition of a person who may appeal, and at all events it includes
a person who has asked for a decision
for which he had a right to ask, and has
been wrongfully refused.” He then went on to approve the statement by
Bramwell L.J.
that the general rule is that the appeal must be by a party. Counsel for the appellant cited the case of Sevenoaks Urban District
Council v. Twynam[cdxciv]11, in which
Lord Hewart C.J. had occasion to consider the meaning of the words “person
aggrieved” under the Public Health Act, 1925 of England, for his
Lordship’s view that, “there is often little utility in seeking to
interpret particular expressions
in one statute by reference to the decisions
given upon similar expressions in different statutes which have been enacted
alio intuitu”.
Despite this useful reminder, counsel then went on to refer
to Day v. Hunter[cdxcv]12, a judgment of
the Full Court of the Supreme Court of Victoria upon the meaning of the words
“any person who feels aggrieved”
in relation to proceedings by way
of order to review under the Justices Act 1958 of Victoria. Under s.
155(4) of that statute the expression “any person who feels
aggrieved” is defined to include
as well as a defendant, any informant to
an information charging an indictable offence or one punishable upon summary
conviction
who is dissatisfied in respect of any order or determination, etc. In
the course of considering whether an applicant for an order
to review had
sufficiently shown himself to be a “person who feels aggrieved”, the
judgment of the Full Court shows that
it fully recognized that someone who was
not a party to the proceedings in the court of petty sessions might be included
in that
expression, and thus entitled to proceed by way of order to review. The
Full Court then referred to the case of a person not a party
to the proceedings
seeking to review a decision, and said: “Whether he can bring himself
within these words depends on the
facts of the case, and whether he is able to
show that he is really and directly interested in the proceedings: see
Dentry v.
Stott[cdxcvi]13 wFullagar Jgar J.
(at that time a judge of the Supreme Court of Victoria) applying this test heldrson, who wwho was not a party
to proceedings in the Court of Petty Sessions, to
be a person who ‘felt aggrieved’ by the order complained of”:
op. cit. at pp. 848-849. Accordingly I propose to refer to Dentry v.
Stott. That case was concerned with an application pursuant to the
National Security (War Service Moratorium) Regulations to a court of
petty sessions for a warrant authorizing and requiring the delivery to the
applicant, Hugh Dentry, of possession of
a dwelling house on the ground that he
was a protected person within the meaning of the regulations, and the dwelling
house was about
to become unoccupied. The owner of the dwelling house, Mary
Stott, who was made respondent to such application, was served with notice
of
the application but as the dwelling house had already been let to one Phillip
Murray she did not contest the application, and
the Court made the order asked
for. Subsequently Murray learnt of the making of this order and as the time had
expired in relation
to the first order, at his instance Mary Stott applied to a
court of petty sessions, pursuant to s. 66 of the Justices Act for an
order setting aside the order in favour of Dentry, and for a rehearing of the
application. The Court refused both applications
and Murray then obtained an
order nisi to review the later decision. Fullagar J. held that Murray was a
person aggrieved by that
decision under s. 150 of the Justices Act 1928,
and stated that, in his opinion, he was also a person aggrieved by the first
order. Fullagar J. propounded the test set out
above and then went on to hold
that a person in the position of Murray, the person in occupation of the
dwelling and claiming to
continue to remain in occupation, was a person really
and directly interested. In my opinion, the words of the Victorian legislation
containing the definition of a “person who feels aggrieved” is not
sufficiently different to prevent the meaning given
by Fullagar J. to that
expression being applied to the words “person aggrieved” in the
Land Titles Commission Ordinance. Further, the facts of the present case
are analogous to the facts of Dentry v. Stott (supra) and, in my
opinion, the villagers in this case fall within the expression “a person
aggrieved” as being persons
who are really and directly interested in the
proceedings, as the effect of the final order was to deprive them of the rights
they
claimed to ownership and possession. Counsel for the appellant also relied upon the decision of my brother Kelly
J. in Director of District Administration v. The Administration of the
Territory of Papua and New Guinea and The Lutheran Mission
Madang[cdxcvii]14. In that case his Honour,
referring to the expression “person aggrieved”, said: “In the
scheme of the New Guinea Land Titles Restoration Ordinance and of the
Land Titles Commission Ordinance I do not consider that these words
should be so narrowly construed as to include only a person who has, in a sense,
been a party
before the Commission. Rather it seems to be that any person who
has a claim to have a right which he alleges has been infringed
by an order of
the Commission is a ‘person aggrieved’. Whilst normally it might be
expected that such a right would already
have been the subject of a reference
under s. 35 of the Restoration Ordinance, there could be a situation where this
had not happened,
for example, because of a failure to comply with some
procedural requirement whereby the making of such a reference had been
precluded.
A person who is thus, as it were, shut out from having a reference
made on his behalf would I consider be a ‘person
aggrieved’.” For the reasons I have given I agree with that decision. Accordingly I gave
leave to counsel for the appellant to make the amendments
sought. [His Honour then referred to the documents before the Chief Commissioner of
the Land Titles Commission when he made the final order
and continued:] I propose now to refer to the amended grounds of appeal. The first main
ground based on the fact that the Administration’s claim
was made after
the provisional order, is that the Land Titles Commission exceeded its
jurisdiction in that it made a final order
upholding the Administration’s
claim to a freehold interest without having made a provisional order in respect
of that claim.
Counsel for the appellant submitted that the scheme of the
legislation provided for a provisional order to be made as a condition
precedent
to a final order, and that a provisional order was to be made in respect of
every claim. He relied upon s. 33 of the Restoration
Ordinance, which provides
that the Commission shall, after considering the claims and any other evidence
which is available to it,
but without being bound to hear any person, make a
provisional order in respect thereof. Section 34 then provides as the next step
in proceedings under the Restoration Ordinance, that the Commission shall each
month cause to be published in the Gazette a notice in the prescribed
form containing a list of all provisional orders made during the preceding
month, and specifying a date
as the date by which objections to the provisional
order may be lodged. The section goes on to provide for the service by
registered
post of a copy of the notice upon the various persons including the
occupier of the land, and also contiguous land. Under s. 35 it
is provided that
where the Director is served with a copy of the relevant portion of the notice
he is to post up at the district
office in which the land is situate a notice
stating that he has been so served, and that any native or native community
asserting
any claim to native customary rights may lodge particulars of those
customary rights. He is also to cause to be made any inquiries
which he thinks
necessary. Under s. 36 of the Ordinance he is required either to refer to the
Commission the question of native customary
rights, or certify to the Commission
by writing under his hand that to the best of his knowledge and belief no native
community was
or asserts that it was at the appointed date entitled to any
customary rights in respect of the land. Upon these provisions counsel
for the
appellant submitted that the provision for the making of a provisional order
following a claim was mandatory so that, in
so far as the final order
established any interest in the Administration, it was made without
jurisdiction. He relied upon the decision
of O’Loghlen A.J. in
Administration of the Territory of Papua and New Guinea v. Toilu
Mai[cdxcviii]15, in which his Honour held
that in his opinion, “the whole scheme of the Restoration Ordinance is
mandatory”. However,
this was not the view of Clarkson J. expressed in
Director of District Administration v. The Administration of the
Territory of Papua and New Guinea (Re Tol
Extended)[cdxcix]16. In that case also the
Administration’s claim was not made until after the provisional order was
made. There was a claim
for a registered Administration agricultural lease for
ninety-nine years followed by a provisional order establishing as the registered
interests, absolute ownership by the Administration and a lease by the
Administration for ninety-nine years to the original claimant.
The
appellant’s argument was that the claim by the lessee could not support
the provisional order in favour of both respondents
and that the provisional
order being invalid could not support the final order. His Honour held that:
“the failure by the Administration
to file a claim until after the making
of the provisional order was an irregularity of procedure which did not
prejudice the appellant
or anyone else and did not invalidate the final order
when made.” To decide this question it is necessary to give more detailed consideration
to the Restoration Ordinance. The Administration’s
claim seems to have
been made under s. 14 which provides as follows: “Notwithstanding the expiration of any time prescribed by this
Ordinance in which claims, objections or applications are to
be made or notices
given, the Administration may make a claim, objection or application, or give
notice in respect of any interest,
at any time before a final order has been
made in respect of the land concerned.” This section does not appear to have been cited in the two cases I have
referred to, and it was not referred to by counsel before
me. It follows, in my opinion, from the wide words of this provision that the
Administration may make a claim after a provisional order
has been made so long
as it is made before the final order has been made. The question then is whether
s. 33 is applicable so as
to require the Commission to make a second provisional
order in respect of the Administration’s claim. Counsel for the appellant
submitted that the protection of native rights was paramount and required this
result. In reaching a conclusion upon this point,
it is to be noted that, as the
effect of the notice, to be given under s. 35 (a) is that any native or native
community asserting
native customary rights in respect of the land might lodge
with the District Commissioner particulars of those customary rights,
the
particulars to be lodged were thus independent of and unrelated to the interest
established under the provisional order. Similarly
under s. 36 of the
Restoration Ordinance it is merely the question of native customary rights which
the Director is to refer to the
Commission or as to which he is to certify,
which is a matter also unrelated to the nature of the interest established by
the provisional
order. Accordingly so far as those two sections are concerned
the making of a second provisional order would appear to serve no useful
purpose. On the whole I have come to the conclusion that s. 14 is the overriding
provision and that, in the absence of any express
requirement that a further
provisional order should be made, once a provisional order has been made in
respect of a claim to certain
land and the procedure under ss. 35 and 36 has
been carried out in relation thereto, it is not a requirement of the Restoration
Ordinance
that, if thereafter, before a final order has been made the
Administration exercises its right to make a claim in respect of any
interest in
that land, a second provisional order should be made in relation thereto.
Accordingly, in my opinion, the grounds of
appeal based upon the
Administration’s claim being made after the provisional order fails. The reasons for this conclusion are twofold. First the possibility that the
Administration might exercise its right to make a claim
under s. 14 in respect
of any interest in land the subject of a provisional order, is a matter which
all persons, including the Director
and the persons to whom notice was to be
given under s. 34 (2), are required to take into account. (The same
consideration would
seem to apply to late claims permitted under s. 25 (4).)
Whether any claim was made by the Administration after the making of the
provisional order might be ascertained by searching the Register of Claims and
Objections which the Commission is required to keep
under s. 27. See also s. 29
which provides for the giving of notice, if the Commission thought fit, of an
amended claim. Further,
under s. 39 (3) the Commission has power, if in its
opinion it is just and equitable so to do, at any time before a final order is
made, to grant permission to a person to make an objection, notwithstanding that
the specified time has expired, and an objector
might be directed by the
Commission to withdraw his objection and make a claim under s. 40. Note also the
reference to claims which
“relate to” a final order under s. 42
(1). Now the only purpose which counsel for the appellant argued required the
making of a second provisional order after a claim made thereafter
by the
Administration, was the giving of notice to natives under s. 35 and also to the
persons mentioned in s. 34 (2). But in view
of the provisions to which I have
referred, no person could be said to be prejudiced by the Administration making
a claim after a
provisional order, and, in my opinion, as the effect of those
provisions is to make special provision for due notice of all claims,
including
those made after the provisional order, upon the proper construction of the
Ordinance the Commission was not required to
make a second provisional
order. Secondly, whilst I do not consider that I should go so far as to express a
concluded opinion upon this matter as it was not argued,
I consider that there
is much to be said for the view that the claims which the Commission is to
consider before making a provisional
order under s. 33, are all the claims made
in respect of the land prior to the date specified under s. 25 (1) as the date
not later
than which claims must be made, and in view of the provisions for the
keeping of the Register of Claims and Objections which any
person might search
to ascertain any claims or objections made after the provisional order pursuant
to ss. 14, 24 (4) or 39 (3) of
the Restoration Ordinance, the Commission was
functus officio under s. 33 once a provisional order was made, so that it has no
jurisdiction
to make a second provisional order. I note that Clarkson J. in
Re Tol Extended[d]17, suggested in the
circumstances of that case the making of a second provisional order, but the
provisions I have referred to do
not appear to have been mentioned before
him. Accordingly, in my opinion, the grounds of appeal based upon the
Administration’s claim being made after the provisional order
fail. The other main ground of appeal was either that there was no evidence to
support the final order, which would be, of course, an error
of law within the
meaning of the Land Titles Commission Ordinance, s. 38 (2) (c), or,
alternatively, the final order was against the weight of the evidence pursuant
to s. 38 (2) (aa). Counsel for
the respondent submitted that a final order made
without a hearing, as in this case, under s. 42 (2) could not be challenged upon
the above grounds by reason of the Commission’s jurisdiction thereunder to
make an order in such terms as it thinks just. This
was a point raised before me
in Re Tol Foreshore Reserve[di]18, but,
in view of the grounds of appeal being made applicable generally to the
decisions of the Commission, I consider the submission
untenable. Taking first the claim by Mr. P. J. Leahy, counsel for the respondent
conceded that the final order could be supported only under
ss. 9 and 10 of the
Restoration Ordinance, so that the question was whether the appellant has shown
that there was insufficient evidence
in law to show that that claimant had an
interest in the land and was entitled to be registered as the owner of or
entitled to that
interest. An interest in land is defined under s. 4 to mean a
proprietary right, title or estate in land, whether corporeal or incorporeal
and
whether legal or equitable. The relevant portion of s. 10 is sub-par. (c) which
provides that, for the purposes of s. 9, a person
shall be deemed to have been
entitled to be registered as the person entitled to an interest in land but for
the failure of some
person to execute a document which the first-mentioned
person is in equity entitled to have executed. Now there was no evidence before the Commission that any lease upon which Mr.
P. J. Leahy could rely as an assignee, had been executed
in favour of any
person, so that the only way that claimant could have supported his claim was by
proof of an agreement by the owner
of the land to grant a lease for the term
referred to in the granted application, viz., ninety-nine years, upon terms
certain, which
would have conferred a proprietary right upon him to the land in
equity, and also a right to the execution of an instrument of lease.
The
assignment of the interest in the granted application for a lease of surveyed
lands, which was the only evidence before the Commission,
depends for its effect
upon the provisions contained in Pt. IV of the Land (New Guinea)
Ordinance 1922-1941, all of which are set out in the judgment of Minogue
C.J. in Director of District Administration v.
Dowling[dii]19. In that case the learned
Chief Justice held that a granted application for a lease under the provisions
of the Land Ordinance 1922-1941, s. 17, does not constitute an
“interest in land” as defined in the Restoration Ordinance, so that
the holder
of such a granted application at the appointed date cannot, without
further evidence, bring his case within the provisions of s.
9. Upon the facts
of that case the application was granted in respect of unsurveyed lands but it
is clear that his Honour did not
restrict his statement of the law to granted
applications of unsurveyed land. With great respect I agree with the learned
Chief Justice’s
reasoning. Under s. 17 (1) of the Land Ordinance, there
was in this case a granted application, which appears to have been validly
assigned to Mr. P. J. Leahy, concerning a lease of the subject land, which was
surveyed, but the lease for some reason (not related
to survey) could not
immediately issue in accordance with such application. (The fact that the
assignment was endorsed with a notice
to the effect that it was registered in
the Assignment Register with a stated volume and folio number and date cannot
give the assignment
any greater weight.) Next it is to be noted that s. 17 (2) of the Land Ordinance provided that the
granting of an application should not be held to guarantee,
inter alia, the
title of the Administration, and the granting of the application should be taken
to be for such part only of the
land as was Administration land. The reason for
that express reservation is to be found in reg. 9 of the Land Regulations, which
provides that an application for a lease of native land could not be considered
by the Land Board unless accompanied by a certificate
signed by the district
officer of the district in which the land was situated, certifying that the
native owners were willing to
transfer the land to the Administration and that
the transfer would not be detrimental to native interests. It follows that the
Land
Board had jurisdiction to grant an application prior to the acquisition of
title in the land by the Administration. These provisions
govern the position of
both the Administration and the claimant for a lease. It follows that the
hypothesis was equally open on the
evidence that the land the subject of the
claim was native land still subject to negotiation by a district officer for
purchase upon
the appointed date, which would explain the fact that a lease had
not issued, as that the land had in fact been purchased before
the appointed
date, and the former hypothesis was not excluded. In fact there was no evidence of title in the Administration apart from the
assertion in the claim that the land was either purchased
from native owners or
by declaration of waste and vacant land, and the fact that the claim was
supported by affidavit and thus verified
cannot remedy the lack of evidence of
any such purchase or declaration. Accordingly, in my opinion, there is no
evidence to support
any interest in the land held by the Administration or any
entitlement to be registered in respect of such an interest. It also follows
that there was nothing to support any leasehold interest or agreement to grant
such an interest, or entitlement to registration of
any such interest in the
claimant, Mr. P. J. Leahy. For these reasons the appeal succeeds and the final order must be quashed.
The question then arises as to whether I should order that
the case be remitted
to the Commission for rehearing. I have decided that for two reasons I should so
order. First, in proceeding
under s. 42 (2) the learned Chief Commissioner did
not, in my opinion, investigate the claims which were before him, which was an
obligation from which he was not absolved if he decided to proceed without a
hearing under s. 42 (2). Secondly, although the Commission
is given the power
under s. 42 (2), without a hearing, to make a final order in the terms of the
provisional order or in such other
terms as the Commission thinks just, in my
opinion, the Commission’s jurisdiction is limited by the provisions of s.
16 (2),
which provides that where no objection is made to a provisional order,
the Commission may make a final order substantially in terms
of the provisional
order without a hearing. In so far as under the final order the claim of the
Administration to an interest in
the land was upheld, in my opinion, it could
not be said that the final order was substantially in terms of the provisional
order.
I thus consider that both claimants should have an opportunity to support
their claims at a rehearing. I assume that the Commission
will grant permission
to the Director to make an objection pursuant to s. 39 (3) of the Restoration
Ordinance. Accordingly the case
will be remitted to the Commission for
rehearing. Order that appeal be allowed, the final order quashed and the case
remitted to the Land Titles Commission for rehearing. Solicitor for the appellant: W. A. Lalor, Public
Solicitor. [cdlxxxiv](New Guinea Land Titles Restoration
Ordinance) Section 9 provides: “A person claiming to have been entitled as
at the appointed
date— (a) &##160; ـ to an ist rest in land; and
(b) e registerestered tered in
a in
a lost register as the owner of or entitled to that interest (whether or not he
was
before the loss or destruction of that register so registered or
entered), may make a claim in respect of that interest.” [cdlxxxv](New Guinea Land Titles Restoration
Ordinance) Section 10 provides: “For the purposes of the last preceding
section, a person
shall be deemed to have been entitled to be registered or
entered in a lost register as the owner of or the person entitled to an
interest
in land if he would have been so entitled, but for— (a) ¦t the destrnction or loss of any
register (including the Land Register)ord, fertieicatdocum/p>
>
(b)&#(b) & t&#the; the informal nature of a
document or a misdescription in a dnt; o
(60;
&##60;< ; the failurailure of some other
person to execute a document which the first mentioned peis intequity
entitleditled to have executed.” [cdlxxxvi](New Guinea Land Titles Restoration
Ordinance) Section 14 provides: “Notwithstanding the expiration of any
time prescribed by
this Ordinance within which claims, objections or
applications are to be made or notices given, the Administration may make a
claim,
objection or application, or give a notice, in respect of any interest,
at any time before a final order has been made in respect
of the land
concerned.” [cdlxxxvii](New Guinea Land Titles Restoration
Ordinance) Section 33 provides: “The Commission shall after considering
the claims and any
other evidence which is available to it but without being
bound to hear any person make a provisional order in respect thereof.” [cdlxxxviii](Land Ordinance (New Guinea)
1922-1958) Section 17 provides: “(1) & he; Wn a an application for a
lease made under this Ordinance is for land which is wholly otly uesurvoyed
or
forr for which for any reason a lease from the Administration in accordance with
such application cannot immediately issue the Administrator
may nevertheless if
he thinks fit grant the application. (2) &##160; ـ The gra ofng of the application
shall not be held to guarante posi ion,daries or area ofea of the land
described tbed therein, or the title of the Administration thereto; and the granting
of the application shall be taken to be subject
to survey and for such part only
of the land therein as is Administration land.” [cdlxxxix](Land Regulations (New Guinea))
Regulation 9 provides: “An application for a lease of native land shall
not be considered by
the Land Board unless it is accompanied by a certificate
signed by the District Officer of the District in which the land is situated
containing a locality sketch of the land, and stating that the native owners are
willing to transfer the land to the Administration,
that the transfer will not
be detrimental to native interests, and that no portion of the land is likely to
be required for public
purposes.” [cdxc](Land Titles Commission Ordinance
1962-1970) Section 38 (1) provides: “A person aggrieved by a decision of
the Commission, whether
after review under the last preceding Division or
otherwise, may appeal to the Supreme Court within ninety days after the decision
or the review of the decision.” [cdxci] [1955] QSR.
210.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
Tuthill, for the first
respondent.
No appearance for the second respondent.
Cur. adv.
vult.
Solicitor for the respondent: P. J. Clay, Crown
Solicitor.
[cdxcii][1880] UKLawRpCh 148; (1880) 14 Ch.D.
458.
[cdxciii][1887] UKLawRpKQB 92; (1887) 19 QBD.
174.
[cdxciv] [1929] 2 KB.
440.
[cdxcv][1964] VicRp 109; [1964] VR.
845.
[cdxcvi][1947] VicLawRp 34; [1947] VLR.
462.
[cdxcvii]Unreported. (Kelly J.—30th
September, 1970.)
[cdxcviii][1969-70] PNGLR.
319, at p. 330.
[cdxcix][1969-70] PNGLR. 389, at
p. 393.
[d][1969-70] PNGLR. 389, at p.
396.
[di][1969-70] PNGLR. 381, at p.
388.
[dii][1969-70] PNGLR. 398, at pp.
403-404.
URL: http://www.paclii.org/pg/cases/PNGLR/1971/622.html