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Director of District Administration v Administration of the Territory of Papua and New Guinea (re Morobe Goldfields) [1973] PNGLR 715 (19 July 1972)

[1973] PNGLR 71

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

DIRECTOR OF DISTRICT ADMINISTRATION AND OTHERS

V

ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA
(IN RE MOROBE GOLDFIELDS)

Port Moresby
Williams J
24-25 May 1972
19 July 1972

REAL PROPERTY - Appeal - Restoration of titles - Purchase from natives in 1941 - Whether evidence of title in proper form for registration - Effect of land being entered on Index of Unregistered Administration Land - Land Ordinance (New Guinea) 1922-1941, ss. 6, 8 & 9[lxiii]1- Lands Registration Ordinance (New Guinea) 1924-1939, ss. 42 (2) & 43A[lxiv]2- New Guinea Land Titles Restoration Ordinance 1951-1960, s. 67 (3)[lxv]3 .

If in a claim for restoration under the New Guinea Land Titles Restoration Ordinance, the Administration’s claim is based on a purchase from natives between 1922 and 1942, it must satisfy the Land Titles Commission that the evidence of title was such that the Registrar of Titles would have deemed it sufficient for him to bring the land under the Lands Registration Ordinance and register a Certificate of Title in the name of the Administration under s. 42 (2) of the Lands Registration Ordinance.

The Registrar of Titles could not, in the proper exercise of his function under s. 42 (2) of the Lands Registration Ordinance have accepted, as evidence of title in the Administration, anything less than an instrument of transfer in accordance with or substantially in accordance with form “S” of the regulations made under the Land Ordinance (New Guinea).

If particulars of a transfer from natives have been entered by the Registrar of Titles on the Index of Unregistered Administration Lands kept by him under s. 43A of the Lands Registration Ordinance, it cannot be inferred that the land the subject of the transfer would automatically be brought under the Ordinance under s. 42 (2) of the Lands Registration Ordinance.

Appeal

This was an appeal under the Land Titles Commission Ordinance 1962-1968.

By a claim made on 30th November, 1953, the Administration claimed a freehold title to 6,000 hectares of land known as “Morobe Goldfields” and alleged that the land had been purchased from natives on 11th August, 1941.

In the provisional order made on 14th September, 1954, the Commissioner of Titles provisionally restored to the Administration an estate in fee simple in the land claimed.

On 4th April, 1955, the Director of Native Affairs certified under s. 36 (a) of the New Guinea Land Titles Restoration Ordinance that to the best of his knowledge and belief there were no native claims to the land.

Subsequently in November 1965 the Acting Director of District Administration lodged an objection to the making of a final order in respect of the subject land. The grounds of the objection were stated to be that certain native communities claimed “full customary ownership and that the land was never purchased or paid for, and without prejudice to the foregoing that the claimant for restoration was not registered or entitled to be registered in the lost register at the appointed date.”

The claim was heard in August 1968. The reasons for the decision given by the Land Titles Commission were as follows:

“... On the evidence, I am satisfied that Mr. Niall purchased on behalf of the Administration the subject matter of this claim. Although the whole of the boundaries of the land had not been surveyed at the time of the purchase, enough of them had been surveyed so the area of the land could be calculated for the purpose of ascertaining the purchase price.

The documentation of the purchase could have been and probably was entered in the Index of Unregistered Administration Land kept under s. 43A of the Lands Registration Ordinance and the Administration would have been entitled to the benefit of a Certificate of Title under s. 42 (2) of that Ordinance.

Some part of the purchase price was invested in War Savings Certificates. In my opinion, that would not affect the validity of the sale. It appears from the evidence that there was some dissatisfaction with the investment but it appears to have arisen some time after the transaction had been completed. The native claimants allege that they never received the benefit of the War Savings Certificates. That is a matter which falls outside the jurisdiction of the Land Titles Commission. The parties will have to settle that difference elsewhere.

There will be a final order in terms of the provisional order.”

On 7th October, 1968, the Land Titles Commission made and issued a final order restoring an absolute interest in the subject land to the Administration and declaring that no native customary rights were retained in respect of the land.

The appellants appealed to the Supreme Court of the Territory of Papua New Guinea against that final order. The relevant facts and arguments of counsel are set out in the reasons for judgment.

Counsel

J. C. Turnbull, for the appellants.
R. K. Woods, for the respondent.
Cur. adv. vult.

19 July 1972

WILLIAMS J: This is an appeal against a final order made by the Land Titles Commission on 7th October, 1968, concerning land in the vicinity of Wau. By that order it was declared, pursuant to the provisions of the New Guinea Land Titles Restoration Ordinance 1951-1966, that the above-named respondent was the absolute owner of an area of about 6,000 hectares of land in the Morobe Goldfields District of Morobe and was entitled to be registered in the Register Book in respect thereof. It was further declared 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.

In short the case made by the respondent before the Land Titles Commission was that, in the year 1941, it had purchased the land in question from various native owners who are appellants in this appeal. The Commission upheld this claim. The decision of the Commission is challenged on a number of grounds. The main grounds may, I think, be shortly stated as follows:

(1) &##160; &#160t the the evidence before the Commission was insufficient to establish a vpurchfse of the land by the resp respondent from the appellants.

(2) ټ upo, the the evidence, it could not properly have been found that the respondent would have betitlea to a Cert Certificate of Title with respect to the land.

This matter arose for consideration by the Commission under the provisions of the New Guinea Land Titles Restoration Ordinance. It was common ground between counsel for the respective parties that the matter fell for consideration under s. 67 (3).

As has already been stated, the claim in this case is founded upon an alleged purchase of the land from the native people. At the time of the transaction with the native people there were statutory provisions governing the purchase by the Administration of land from the natives. These provisions were to be found in ss. 6, 8 and 9 of the Land Ordinance 1922-1941. I set them out hereunder:

“6. ¦t Save as hereinafter provided a native shall have wer tl lease or dispose of any land, and, and annd any contract or agreement made by him so to do shall be void.

8(1) &#If ; e nahe native owners are willing to dispose of any land thenistrmay out of funds provided for ther the purp purpose purchase or lease it upon such terms as may be agreed upon between him and the owners.

(2) ـ Nchaur or e or lease of any land shall be made by the Administrator until heatisffed areasonable inquirnquiry thay that the land is not required or likely to be required by the owners.

9. Leanes arc purchases of land by the Administratrom ns sha authated ch sustrinstrumentuments ands and in s in such much manner as may be prescribed, and until so prescribed the practice prescribed by the First Schedule to this Ordinance shall be followed.”

In effect therefore the Administration was authorized to purchase land from willing native owners after the Administrator, following reasonable inquiry, was satisfied that the land was not required, or likely to be required, by the owners. It was then necessary that any purchase of land by the Administration from the native owners be authenticated by such instruments and such manner as was prescribed and, until so prescribed, the practice prescribed by the First Schedule to the Ordinance was to be followed.

It appears that, at relevant times, reg. 28 of the Lands Regulations (to be found in Vol. III of the Laws of the Territory of New Guinea 1921-1945 at p. 2687) was in force. That regulation provided that the certificate of transfer from a native to the Administration shall be in accordance with form “S”. By reg. 30 it was provided that strict compliance with the forms under the regulations was not required and that substantial compliance was sufficient.

It was thus necessary, in order to comply with s. 9 of the Land Ordinance, that the purchase of land said in this case to have been made from the native owners be authenticated by an instrument in form “S” or substantially in accordance with that form. The form and manner of the authentication having been prescribed by the regulations, the practice prescribed by the First Schedule to the Ordinance was no longer applicable.

I turn now to s. 42 (2) of the Lands Registration Ordinance which, with other sections of that Ordinance, was repealed by s. 67 (1) of the New Guinea Land Titles Restoration Ordinance, 1951. It would have been necessary, in order to obtain a Certificate of Title in the name of the Administration with respect to the land said to have been purchased from the native owners in this case, for the requirements of s. 42 (2) to have been met.

That section provided, inter alia, that, where land was acquired by the Administration under the provisions of any Ordinance or law, the Registrar of Titles, upon production of such evidence of title as he deemed sufficient or as may be prescribed by any Ordinance, accompanied by a proper plan and description of the land should bring the land under the Ordinance by registering, in the manner provided by the Ordinance, a Certificate of Title in the name of the Administration.

In my view an instrument of transfer in accordance with form “S” or substantially in accordance with that form was evidence of title as “may be prescribed by any ordinance” within the meaning of s. 42 (2) of the Lands Registration Ordinance. Section 9 of the Land Ordinance was mandatory in its terms and prescribed the form and manner of authentication of a purchase by the Administration from native owners. In my opinion the Registrar of Titles, could not, in the proper exercise of his function under s. 42 (2) have accepted, as evidence of title in the Administration, anything less than an instrument of transfer in accordance with form “S” or substantially in accordance with that form.

I pass now to a consideration of the evidence which was before the Commission. It appears that most of the relevant papers had been lost or destroyed so that those who gave evidence before the Commission did so very largely from their recollections of events which occurred some twenty-seven years before. In these circumstances it is not surprising that the evidence was often vague and contradictory. The case for the claimant was that, in the year 1941, the land in question had been purchased from native owners. Questions arise as to the boundaries of the land and the consideration said to have been paid for it. Without canvassing the evidence in detail I think it is sufficient for present purposes to say that it emerged from the evidence that some transaction had been entered into involving the purchase of at least some part of the land with which this appeal is concerned and that a consideration of at least œ100 was involved and that some, if not all, of the consideration consisted of War Savings Certificates issued to the native owners. It was claimed by counsel for the appellant that, upon the evidence, there was much uncertainty in the minds of the native people and that it could not be said that there was any real consensus between the parties. However, in the light of the views I shall later express, I do not find it necessary to pursue this aspect of the matter.

On the evidence of Mr. Niall some documents were executed at the time of the transactions. These documents were not in evidence before the Land Titles Commission. Mr. Niall, when asked what happened to the documents after they had been signed, stated that he could not remember whether he sent them back to the District Officer at Salamau or direct to the Lands Department. There is no evidence as to what happened to them after they left Mr. Niall’s hands.

[His Honour then discussed the evidence relating to the documents evidencing the transaction and continued:]

The prescribed form of transfer (form “S”) is in three parts. The first part takes the form of an acknowledgement of sale by the vendor of the land therein described together with declarations that the vendor has the full right to sell the land to the exclusion of others, that the vendor in company with Administration officers has walked around the boundaries of the land, that the consideration is the price asked for the land and is a fair price and that the consideration has been paid. The second part consists of a certificate from the interpreter that he truly interpreted the contents of the first part of the form, that in company with the vendor and Administration representative he walked around the boundaries of the land, that the boundaries were identical with those described in the first part of the form, that the consideration was paid in his presence and he was certain that the vendor knew what he was selling and was satisfied with the price. The third part of the form consists of a certificate by the Administration representative to the same effect.

One matter common to all parts of the form is the certificate that the parties walked around the boundaries of the land. This, clearly, upon the evidence, was not done. On the evidence the most that was done was that the boundaries were indicated in a general way from the back of the district office. Asked whether the statement in the form that the boundaries had been walked was struck out Mr. Niall stated that “It would have been—I don’t remember but you didn’t sign them unless you had walked around them”. If this part of the form had been struck out then it seems to me to be a material departure from the prescribed form. The certificate concerning walking the boundaries appears in each part of the form and the reason for its presence is obviously to avoid any uncertainty in the minds of the parties, particularly the native vendors, as to the dimensions of the land the subject of the transaction. There was evidence before the Commission of uncertainty in the minds of the native people as to the boundaries of the land.

[His Honour referred to this evidence and continued:]

As I have already said the third part of the form comprises a certificate from the Administration representative (in this case Mr. Niall). He was, amongst other things, required to certify that “he was certain that the vendor when he signed the transfer knew what land he was selling.” This was not the case of a purchase of a small area of land the boundaries of which could be seen on casual inspection but an area of land comprising approx. 6,000 hectares in the hills surrounding the township of Wau. No questions were directed to Mr. Niall concerning this part of the certificate but I do not think that it could be accepted that a responsible Administration officer would, in the circumstances mentioned, have certified that “he was certain” that the vendors knew what land they were selling.

The second part of the form contains a certificate from the interpreter regarding a number of matters. It is common ground that in this case the interpreter at the time of the transaction between Mr. Niall and the native people was Ninga Yamong, who gave evidence before the Commission. When asked questions concerning the signing of documents Ninga is reported as saying “I don’t know. There were small slips of paper given to us and then put in the bank. I didn’t mark any papers”. If that part of his answer which I have italicized is accepted (and so far as I can see it was not contradicted by any other evidence) then it appears that Ninga did not give the certification required by the second part of form “S”.

I pass now to the Commissioner’s “Reasons for Decision” in which the following paragraph appears:

“The documentation of the purchase could have been and probably was entered in the Index of Unregistered Administration Land kept under s. 43A of the Lands Registration Ordinance and the Administration would have been entitled to the benefit of a Certificate of Title under s. 42 (2) of that Ordinance.”

The finding that “the documentation of purchase probably was entered in the Index of Unregistered Administration Land” is, I think, open to some doubt in circumstances where, upon the evidence, the last heard of the documents was that they had been despatched from Wau in 1941 by Mr. Niall either to the District Officer at Salamau or to the Lands Department. However, it seems, from the rest of the paragraph of the “Reasons for Decision” quoted, that the Commission took the view that, once the transaction was recorded in the Index of Unregistered Administration Land kept under s. 43A, it was thereafter an automatic process to obtain a Certificate of Title under s. 42 (2). If, as appears to be the case, that was the Commission’s view, then I think that it was plainly erroneous in that it failed to have regard to the strict requirements of proof of entitlement to a Certificate of Title laid down by s. 42 (2). Entry in the Index under s. 43A did not confer on the Administration an indefeasible title whilst, of course, the issue of a Certificate of Title under s. 42 (2) did.

The Commission did find that there was a purchase of the land by the Administration from the native owners. I think it was open for the Commission to find that there was a purchase of land although it is open to doubt whether the native owners had any real understanding of the boundaries of the land included in the transaction. The witnesses for the appellants, in effect, agreed that there had been a sale of at least part of the land the subject of this appeal. Their chief complaint seemed to be that they had never received the proceeds of the War Savings Certificates. But it was necessary for the Commission to go further than finding that there had been a transaction between the parties. It was also necessary for it to find that the transaction was, upon the evidence before it, evidenced in such a way as to satisfy the requirements of s. 42 (2) relating to the issue of an indefeasible Certificate of Title.

As I have said earlier it was common ground between counsel that this matter fell for consideration by the Commission under s. 67 (3) of the New Guinea Land Titles Restoration Ordinance. That section has received consideration in this Court in previous cases. (Tolain & Others v. The Administration (In re Vulcan Island)[lxvi]4; Custodian of Expropriated Property v. Director of District Administration (Re Tonwalik)[lxvii]5; Director of District Administration v. Administration (Re Madina)[lxviii]6 ). Applthe the principles laid down in those cases it seems that the task confronting the Commission w form a staa statutory opinion whether the applicant would have been entitled to registration if, under the repealed provision of the Land Registration Ordinance and with all relevant documents available, proceedings, completed before the appointed date, would have established entitlement to registration.

If the Commission directed its mind to the requirements of s. 42 (2) of the Land Registration Ordinance then the evidence before it showed that some documents evidencing the transaction were executed. These documents were not in evidence before the Commission and were presumably lost or destroyed. In the view I take of the matter the transaction was required to be evidenced by a transfer in form “S” or substantially in that form in order to satisfy the requirements of s. 42 (2). Upon the evidence before the Commission the document could not have been in form “S” as there would have been no certification concerning walking the boundaries and no certificate by the interpreter. It is also improbable that Mr. Niall would, in the surrounding circumstances, have certified that he was certain that the native vendors knew what land they were selling. These matters involved, to my mind, substantial departure from the prescribed form. A document which so departed from the prescribed form was not one which, in my opinion, the Registrar of Titles, in the proper discharge of his functions under s. 42 (2), could have accepted. To the extent that the Commission formed any other view then it was either wrong in law, in that it misconstrued s. 42 (2), or it made a finding of fact which was not open to it upon the evidence, namely that the transaction between the parties would have been authenticated in the manner necessary to satisfy s. 42 (2). In either case, in the view I take of the matter, the Commission’s decision cannot stand.

A number of other matters were canvassed in argument before me. However, in the light of the views I have just expressed, I do not think that it is necessary for me to deal with them.

Appeal allowed. Final order quashed. Declaration that it was not established that the Administration was, at the appointed date, entitled to an interest in the land the subject of the appeal and to be registered on a lost register as the owner of or person entitled to that interest.

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

[lxiii]Infra p. 74.
[lxiv]Relevant Sections of the Lands Registration Ordinance (New Guinea), are as follows:--

Section 42.—(2) Where any land or any estate or interest in land (other than land referred to in subsection (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.

Section 43A.—(1) The Registrar shall keep a book to be called the Index of Unregistered Administration Lands.

(2) The Commissioner of Lands shall lodge with the Registrar an original of every proclamation, notice, lease, conveyance, agreement, or other instrument under or by virtue of which any land has become Administration land as soon as the same is made, published or executed as the case may be.

(3) The Registrar shall thereupon enter in the Index of Unregistered Administration Lands the particulars of the proclamation, notice, lease, conveyance, agreement or other instrument together with brief particulars of the land sufficient in his opinion to identify the same, and shall preserve the instrument in question for reference.

(4) Where any land referred to in the Index of Unregistered Administration Lands is brought under the Ordinance by the registration of a Certificate of Title in respect thereof a note or memorial of the registration shall be entered in the Index of Unregistered Administration Lands with a reference to the volume and folio of the Certificate of Title.

(5) No entry in the Index of Unregistered Administration Lands and no preservation of any proclamation, notice, lease, conveyance, agreement, or other instrument by the Registrar under this section shall give to the Administration any further or other title than that given by the said proclamation, notice, lease, conveyance, agreement or other instrument.

[lxv]Section 67 (3) of the New Guinea Land Titles Restoration Ordinance provides:--

s. 67. (3) For the purposes of this Ordinance, a person shall be deemed to have been entitled, at the appointed date, 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 provisions repealed by this section had remained in force;

(b) no relevant document or register had been lost or destroyed; and

(c) the procedure prescribed by those provisions had, before the appointed date, been completely applied in relation to that land.

[lxvi] [1965-66] PNGLR. 232.
[lxvii] [1969-70] PNGLR. 110.
[lxviii] [1971-72] PNGLR. 304.