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Administration of the Territory of Papua New Guinea v Director of District Administration on behalf of the Mohomarba Clan (re Madina) [No. 2] [1973] PNGLR 553 (6 December 1972)

[1973] PNGLR 553

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

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))

Port Moresby
Minogue CJ Frost SPJ Clarkson J

1-2 November 1972
6 December 1972

REAL PROPERTY - Restoration of titles - Jurisdiction - Appeal to Land Titles Commission - Question to be determined by Commission - Application of s. 42 (2) of the Lands Registration Ordinance - Application of Evidence (Land Titles) Ordinance - New Guinea Land Titles Registration Ordinance, s. 67 (3)[dcxxxix]1 - Lands Registration Ordinance 1924-1962 s. 42 (2)[dcxl]2 - Evidence (Land Titles) Ordinance.

The question for determination under s. 67 (3) of the New Guinea Land Titles Restoration Ordinance is not whether in the circumstances posited by the section a person would have been entitled at the appointed date to an interest in the land and to be registered as the owner of it, but whether in the opinion of the Commission a person would have been so entitled.

When the Land Titles Commission is applying s. 67 (3) of the New Guinea Land Titles Restoration Ordinance, and it comes to the stage of considering whether under s. 42 (2) of the Lands Registration Ordinance, a Registration might have deemed the evidence of title sufficient to justify registration, the test to be applied is, namely, it must be clear that such a title has been shown “as would be forced on an unwilling purchaser”.

Smith v. Auckland District Land Registrar (1905), 24 N.Z.L.R. 862 at pp. 867-8 and Re Eaton’s Application (1881-84) 1 Q.L.JR. (1879 Supp.) 9, referred to.

If on a consideration of the evidence the Land Titles Commission can find in favour of the Administration under s. 67 (3) of the New Guinea Land Titles Restoration Ordinance, the Evidence (Land Titles) Ordinance has no application and the Commission should certify to that effect under s. 20 of the Evidence (Land Titles) Ordinance. It is only when some part of the claim is not proved satisfactorily that it need be decided whether recourse be had to the provisions of the Evidence (Land Titles) Ordinance.

Decision of Kelly J in Director of District Administration v. The Administration (Re Madina), [1971-72] P. & N.G.L.R. 304 affirmed.

Appeal

On 31st March, 1971, the Land Titles Commission made a final order in favour of the Administration under the provisions of the New Guinea Land Titles Restoration Ordinance 1951-1965 in respect of two pieces of land to which the Administration claimed entitlement to restoration, and known as Madina and Madina Foreshore Reserve. The Director of District Administration appealed to the Supreme Court on behalf of native claimants who denied that the land had ever been purchased by the Administration. On 25th November, 1971 Kelly J quashed the final order and remitted the case for further hearing before the Land Titles Commission—Director of District Administration v. The Administration (Re Madina) [1971-72] P. & N.G.L.R. 304. The Administration appealed to the Full Court. The relevant grounds of appeal were as follows:

The first ground of appeal is that the learned Appeal Judge was wrong in law when he held as he impliedly did that the Land Titles Commission in considering s. 67 (3) of the New Guinea Land Titles Commission Ordinance 1951-1965 had to take into account a procedure which was not prescribed by law.

The second and last ground of appeal is that the learned judge was wrong in law when he held that an agricultural lease registered under the provisions of the Lands Registration Ordinance 1924-1933 was not probative of the Administration title.

And the orders sought were as follows:

(a) &##16;& That the lppeal be allowed,

(b) &##160; the of thef the lear learned judge be set asid aside,

(c)҈&ـ That That the the finalfinal order of the Land Titles Commission be restored.

Counsel

R. Woods, for the appellant.
M. Adams, for the respondent.
Cur. adv. vult.

6 December 1972

MINOGUE CJ FROST SPJ CLARKSON J: The facts and issues are fully set out in the reasons of the appeal judge who ordered that this matter should be remitted to the Land Titles Commission for further hearing[dcxli]3.

We think both grounds of appeal fail. As to the first, the Registrar was quite entitled in the exercise of his discretion under s. 42 (2) of the Lands Registration Ordinance to call for claims and to consider any response he received, and accordingly the learned appeal judge was not wrong in law when he held that the Land Titles Commission should have considered the native claimants’ claim according to the way in which the Registrar had apparently fashioned his inquiry. As to the second ground, we agree with the appeal judge that the agricultural lease could be supported by an estate in the lessor of something less than the fee simple.

The appellant concedes that the matter should be remitted but for consideration of one limited aspect only, namely for the issue of a certificate of the nature referred to in s. 20 of the Evidence (Land Titles) Ordinance, 1969. In its decision the Commission did not refer to this Ordinance but concluded by saying that the native evidence did not serve “as a rebuttal of the presumption set up by reference to the transfers in the Gazette notices”. This might point to a presumption raised by ss. 7 (a) and 13 (1) of the Ordinance.

When the Commission is applying s. 67 (3) of the New Guinea Land Titles Restoration Ordinance (the “Restoration Ordinance”) and it comes to the stage of considering whether under s. 42 (2) of the Lands Registration Ordinance a Registrar might have deemed the evidence of title sufficient to justify registration, the test to be applied is that contended for by the claimants, namely, it must be clear that such a title has been shown “as would be forced on an unwilling purchaser”. Smith v. Auckland District Land Registrar[dcxlii]4 per Ed J; Re Eaton’s Application[dcxliii]5.

In the application of s. 67 (3) of the Restoration Ordinance in the manner indicated by the appeal judge there were at least four matters which required consideration in addition to the evidence that transfers had existed.

The first is whether those represented by the respondent and their predecessors (whom we call the claimants) were the vendors shown in the transfers which have been lost or destroyed. This involves a consideration of the evidence including that which identifies the land as originally land of the claimants later occupied by Mocatta and then by the company New Ireland Plantations Limited, the evidence of negotiations between the claimants and Administration officers, the denial of the claimants, disbelieved by the Commission, that the land had been surveyed before the last war and the evidence indicating such a survey occurred.

The second is whether the transfer was of an absolute interest and not merely of a leasehold interest and on this the Commission and the appeal judge appear to agree. The third is the delay which occurred and which resulted in the land not being registered as Administration land. This delay may or may not be significant depending on what is known of the practice followed and the delays which commonly occurred at the time. The Commission might also see fit to inquire whether there is any significance to this case to be attached to the virtual cesser of court hearings in respect of native land rights after 1932 as appears from the annexure to Mr. Bredmeyer’s declaration of 25th January, 1968. Fourthly, there is the undisputed and open possession of the land by a lessee from the appellant. The possession held by Mocatta is not inconsistent with the claimants’ contentions, but the possession of subsequent holders may well be and apparently the first complaint by the claimants was not made until about 1965.

As to the transfers which were shown to have existed, if the Commission is satisfied that the claimants are those with whom the Administration officers treated, it may well have to consider whether it is more probable that the land was sold by the native owners or that the transfers were forgeries, presumably made by Administration officers, or that there was a basic misunderstanding as to the nature of the transaction which the transfer evidenced.

As to the advertisements for claims, if the Commission is satisfied that the claimants were parties to the transfers and the original owners and that there is no evidence of complaint by them before 1965 it appears irrelevant to consider whether claims were made by anyone else in response to the advertisements.

It is upon a consideration of matters such as these that the Commission will be assisted in the difficult task s. 67 (3) assigns to it.

It is then necessary for the Commission to consider the possible application of the Evidence (Land Titles) Ordinance. If on a consideration of the evidence the Commission can give an answer in favour of the Administration under s. 67 (3) of the Restoration Ordinance, the Evidence (Land Titles) Ordinance has no application and the Commission should certify to that effect under s. 20. It may be, however, that some part of the Administration’s claim is not proved satisfactorily. For instance, the Administration may not have established that the claimants or persons duly authorized by them were parties to the transfers. It must then be decided whether recourse may be had to provisions of the Evidence (Land Titles) Ordinance, as for example s. 7 (a) and s. 13 (1) which if applicable would appear to raise a presumption that there was a valid transfer to the Administration. In the absence of rebutting evidence amounting to clear and positive proof of one of the matters set out in s. 18 the title of the Administration would be established with the assistance of the Evidence (Land Titles) Ordinance and the Commission under s. 20 should then certify accordingly and assess compensation. On the other hand, it may be that the notices not being required by the sections referred to in s. 13 (1) are not strictly notices of the kind with which that section deals. The matter has not been argued before us and therefore we express no firm view.

It will be seen that we support the order made by the appeal judge and we think it is important that the Commission should complete the whole of the process which we have outlined. It must be constantly borne in mind that the question arising under s. 67 (3) is not whether in the circumstances posited by the section a person would have been entitled at the appointed date to an interest in land and to be registered as the owner of it but whether in the opinion of the Commission a person would have been so entitled. Since the matter is to be remitted to the Commission we think it unnecessary to say any more.

Appeal dismissed.

Solicitor for the appellant: P. J Clay, Crown Solicitor.
Solicitor for the respondent: W. A. Lalor, Public Solicitor.

[dcxxxix]Section 67 (3) of the New Guinea Land Titles Registration Ordinance provides:

“67(3) &#For the pthe purposes of this Ordinance, a person shall be deemed to have been eed, at the appointed date, ate, to an interest in land, and to be entered or registered in a lost register as the owner of, or person entitled to, that interest if, in the opinion of the Commission, he would have been so entitled if—

(a) the provi ions repealed by this section had remained in force;

(b) ¦t no relevact document or register had been lost or destroyed; and

(c0¦҈& &160; #160; #16e procedrocedure prescribed by those provisions had, before the appointed date, been completely applied in relation to that land.”

[dcxl] Section 42 (2) of the Lands Registration Ordinance 1924-1962 provides:

“Where any land or any estate or interest in land (other than land referred to in sub-section (1) hereof) is or has been acquired by the Crown or the Administration or has become Crown land or Administration land under the provisions of any Ordinance or law, the Registrar, upon production of such evidence of title as he deems sufficient or as may be prescribed by any Ordinance, accompanied by a proper plan and description of the land, shall bring the land under this Ordinance by registering, in manner provided in this Ordinance, a Certificate of Title in the name of the Administration of the Territory.”

[dcxli] [1971-72] PNGLR. 304.
[dcxlii] (1905) 24 NZLR. 862, at pp. 867-8.
[dcxliii](1881-84) 1 QLJR. (1879 Supp.) 9.