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Kerema Town and Airstrip Land, Re; Safe Lavao Luipi Clan v The State [1978] PNGLR 15 (17 January 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 15 - Re The Kerema Town and Airstrip Land; Safe Lavao Luipi Clan v The State 

[1978] PNGLR 15

N122

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SAFE LAVAO AS LEADER OF THE LUIPI CLAN

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA IN RE THE KEREMA TOWN AND AIRSTRIP LAND

Waigani

Pritchard J

1 August 1977

20 August 1977

17 January 1978

REAL PROPERTY - Ownership of native land - Purchase of customary owned land by the Crown - “Conclusive evidence” of Government Title - Admissibility of evidence in rebuttal - Non-compliance with conditions precedent to purchase - Fraud - Land Act 1911-1940, ss. 3, 5, 6,[xi]¹ Second Schedule.[xii]²

STATUTES - Interpretation - Colonial Acts - Instructions from the colonial power may be used as an aid in interpretation if Act uncertain on its face.

STATUTES - Interpretation - In Papua New Guinea Acts taking away customary rights to claim land to be strictly construed.

STATUTES - Interpretation - Mandatory or directory provisions - Intent of Act to be considered.

WORDS AND PHRASES - “Authenticate” and “conclusive evidence” considered.

In 1963, the then Administration of Papua New Guinea purported to acquire a large portion of land in Kerema known as the Kerema Town and Airstrip land. In relation to the acquisition, an instrument of transfer some 71 pages long including a 19 page Schedule of Vendors and other like details was registered under par. 6 of the Second Schedule to the Land Act 1911. In 1967 the appellant and others claimed under s. 15 of the Land Titles Commission Act 1962 to be the owners of certain of the lands included in the acquisition of 1963; their claim having been allowed by a Senior Commissioner was quashed by the Acting Chief Land Titles Commissioner. On appeal to the National Court, it was argued that the Instrument of Transfer having been registered under par. 6 of Sch. 2 to the Land Act 1911, was cloaked with the invulnerability of the “conclusive evidence” provision of par. 7 of the said Schedule which provides:

Every such instrument when sealed with the seal of the Territory and duly recorded as aforesaid shall be conclusive evidence of the facts therein set forth and of the title of the Crown to the lands of the estate or interest therein referred to.

Held

(1)      In interpreting the legislation of Papua New Guinea before self government and where the legislative intention is not clear, instructions from the colonial power may be called in aid.

Holme v. Guy [1877] UKLawRpCh 129; (1877) 5 Ch. D. 901 at p. 905 referred to.

(2)      So viewed the Land Act 1911 was drafted as were its predecessors, with the concept of protection of native land owners clearly laid down in cl. 9 of the Instructions to Major General Scratchley from the Colonial Office in 1884.[xiii]³

(3)      When legislation in Papua New Guinea affects traditional or customary rights, especially in relation to land, that legislation will be strictly construed where it purports to deprive the people of their right to assert ownership, or interest of any sort, in the land.

Arthur v. Bokenham (1708) 11 Mod. 148 referred to.

(4)      In considering whether legislative enactments which are mandatory in terms shall be considered directory only or obligatory with an implied nullification for disobedience, the court shall consider the real intention of the legislation.

Liverpool Borough Bank v. Turner (1860) 2 De G.F. and J 502 at p. 507 and Howard v. Bodington [1877] UKLawRpPro 14; (1877) 2 P.D. 203 at p. 211 applied,

(5)      Accordingly and in the light of the wording, legislative history and “protectorate” background of the Land Act 1911, before the “conclusive evidence” provision in par. 7 of Sch. 2 comes into operation, it must be shown that all the conditions precedent have been strictly complied with, that is, “shall” in Sch. 2 is to be regarded as mandatory.

(6)      In applying par. 7 of Sch. 2 to the Land Act 1911 “conclusive evidence” is to be interpreted as meaning that no contrary evidence will be effective to displace it, unless the so called conclusive evidence is inaccurate on its face, or fraud can be shown.

Kerr v. John Mottram, Limited [1940] 1 Ch. 657 and In re Caratal (New) Mines Limited [1902] UKLawRpCh 117; [1902] 2 Ch. 498 applied.

(7)      On the facts the instrument of transfer did not comply with the requirements of Sch. 2 to the Land Act 1911 and therefore the conclusive evidence provision in par. 7 was not applicable.

(8)      Section 6 of the Land Act 1911 which provides that purchases of land from natives “shall be authenticated” by such instruments and in such manner as is prescribed in Sch. 2 to the Act, is to be regarded as directory only so that failure to comply with it does not necessarily mean that a particular purchase is void or invalid.

(9)      “Authenticate” in s. 6 of the Land Act 1911 is to be interpreted as meaning to give authority to by the formalities required by law, or to prove to be genuine, such that where an instrument does not “authenticate” anything at all, does not necessarily mean that it has no effect whatsoever.

(10)    Accordingly the subject instrument of transfer was one subject to the ordinary law of contract.

(11)    On the evidence the appellants were entitled to the order sought.

Appeal

This was an appeal under s. 38 of the Land Titles Commission Act 1962 against a decision of the Acting Chief Land Titles Commissioner quashing a decision of a Senior Commissioner.

Counsel

M. Kapi, for the appellants.

S. S. W. Thair, for the respondent.

Cur. adv. vult.

17 January 1978

PRITCHARD J: This is an appeal under s. 38 of the Land Titles Commission Act 1962 against a decision of the Acting Chief Land Titles Commissioner dated 16th March, 1977 quashing, by way of review under s. 34 of that Act, a decision of Senior Commissioner Kimmorley given on 5th July, 1972.

Mr. Kimmorley’s decision concerned an application by the appellant and others under s. 15 of the Act, dated 31st May, 1967 claiming to be the owners of certain land situated in the town of Kerema, headquarters of the Gulf Province in Papua.

Surprisingly enough, although small portions of land in Kerema had been acquired by the then Administration (hereinafter called “the Government”) over the years, a large portion of the town area and its airstrip were not acquired until 1963, so unlike many land disputes which the courts in Papua New Guinea have had to consider, this matter is of very recent origin.

There are two portions of land the subject of this appeal, namely Mahope and Kakaumaraita (hereinafter called “the subject land”). There is another small portion known as Lolola which is the subject of another appeal, the result of which it has been agreed by counsel for the appellant and the State will be dependent on the result of the appeal now before me.

I should say at this stage that the subject land is agreed by counsel to be geographically situate within the boundaries of the Kerema Town and Airstrip Land which the Government acquired in 1963. The claim basically is that the subject land was not in fact sold by its owners, nor was it paid for, and it was wrongly included within those boundaries.

There have been a number of submissions put to me by Mr. Kapi of counsel for the appellant, relating to the grounds of appeal upon which he relies. Some of these submissions relate to the evidence before Mr. Kimmorley and upon the Review. What is basically a preliminary point has, however, been taken by Mr. Thair, counsel for the State, and it is obvious that this point is crucial to the appeal itself. I propose to deal with it first, because if it is valid the other matters probably do not arise.

The acquisition by the Government was by way of purchase under the Land Act 1911-1940 of Papua (hereinafter called “the Act”). I will discuss later in this judgment the general effect of this Act but for the immediate purpose its relevant provisions are:

“3.      Save as hereinafter provided a native shall have no power to sell lease or otherwise deal with or dispose of any land and any contract made by him to do so shall be void.”

“5.      If the native owners are willing to dispose of any land it shall be lawful for the Lieutenant-Governor to purchase or lease it upon such terms as may be agreed upon between him and the owners; but it shall not be lawful for him to purchase or lease any land until by sufficient inquiry he has become satisfied that the land is not required or likely to be required by the owners.”

“6.      Leases and purchases of land by the Crown from natives shall be authenticated by such instruments and in such manner as may be prescribed by regulations to be made under this Ordinance. Until such regulations are made the practice prescribed by the Second Schedule to this Ordinance shall be followed.”

In fact, no regulations were ever made pursuant to s. 6 and I therefore set out the provisions of the Second Schedule to the Act relevant to this matter:

“SECOND SCHEDULE

AUTHENTICATION OF LEASES AND PURCHASES OF LAND BY THE CROWN FROM NATIVES

(1)      When an estate in fee-simple in land in respect of which no Crown grant has ever issued is acquired by the Crown from a native the acquisition by and transfer to the Crown of such estate shall be taken in the name of His Majesty.

(2)      (Refers to leases — omitted).

(3)      Every transfer or other transaction relating to any such acquisition shall be authenticated by an instrument in writing under the hand of the Lieutenant-Governor or some officer of Government appointed by the Lieutenant-Governor in Council to sign the same and under the hand of the owner of such land estate or interest or some person authorized by the owner to sign the same on his behalf.

(4)      Every such instrument shall set forth:

(i)       a description of the land which is the subject-matter of the transfer or other transaction giving the native name and (if any) the English name of the land its position and boundaries an estimate of its area and as accurately as may be a delineation of its shape;

(ii)      the name of the vendor lessor or other owner;

(iii)     the condition of the land as to occupation;

(iv)     the price or rent paid or to be paid and if paid the name of the person to whom and the name of the person (if any) in whose presence payment has been made;

(v)      the name of the interpreter (if any) employed in the transfer or other transactions between the parties;

(vi)     such further facts as the Lieutenant-Governor directs to be set forth therein.

(5)      Every such instrument shall be sealed with the seal of the Territory.

(6)      Every such instrument shall be recorded by the Registrar of Titles in a separate register in the same manner as instruments are directed to be recorded under the provisions of The Real Property Ordinance of 1889.

(7)      Every such instrument when sealed with the seal of the Territory and duly recorded as aforesaid shall be conclusive evidence of the facts therein set forth and of the title of the Crown to the lands of the estate or interest therein referred to.”

The preliminary point taken by Mr. Thair is that the Instrument of Transfer under which the Government acquired the Kerema Town (or Station as it is described) and Airstrip Land, containing as it did, the subject land, and having been registered in accordance with par. (6) of Sch. 2 is cloaked with the invulnerability of the “conclusive evidence” provision of par. (7) of the Schedule, both as to the facts therein set forth and of the title of the Crown (hereinafter called “the Government”) to the lands therein referred to.

Before considering Mr. Thair’s argument and the arguments raised against him, the document itself must be looked at. It was registered, both counsel agree, by the Registrar of Titles on 19th July, 1963. It was registered in vol. 7 of the Register and numbered 2498. It has since been known as DA2498 by which description I will refer to it from now on. DA2498 was not sealed with the seal of the Territory of Papua in accordance with par. (5) of the Schedule, but as both counsel agree the seal no longer existed in 1963 and its absence is irrelevant. It is also agreed that DA2498 was not signed by the Lieutenant-Governor as prescribed by par. (3) of the Schedule but by a Deputy of the Administrator, his successor, validly appointed. That man, Mr. D. E. Macinnis, signed DA2498 on 13th June, 1963.

The contents of the instrument itself now become relevant. It is a voluminous document, 71 pages in length. What appears to have been a standard form A (Natives to Crown) of four printed pages was utilized for the purpose.

In setting out the relevant portions of the instrument those portions in double quotation marks are printed in it and those in single quotation marks are inserted either by typewriter or by hand.

Page 1 is as follows:

“Transfer of Land by Natives to the Crown

We ‘Natives of Karaeta and Siviri Villages as per attached schedule’ Natives of the Villages of ‘Siviri and Karaeta’ which village is situated ‘near Kerema’ in the Territory of Papua, and being the sole owners of the piece of Land, the boundaries of which are set out below, and a rough and approximate plan of which is drawn below, in consideration of

‘Three thousand Nine hundred and thirty-two pounds Fifteen shillings and Ninepence (£3932.15.9) of which Two thousand and eighty-one pounds Twelve shillings (£2081.12.0) is for the land’

paid over to us as the price of the said piece of Land by the Crown, do hereby sell and transfer to Our Sovereign THE QUEEN the whole of the said piece of Land, and all our rights therein. AND WE DECLARE that we are the sole owners of and have full right to sell the said piece of Land, and that no one else is an owner of or has any right to such Land. AND WE DECLARE that previous to our signing this paper we in company with ‘Robin Charles Royston PERCY, Arthur Thomas CAREY, and George MALAISA’ walked round the boundaries of the said piece of Land, and that the description of the said boundaries written below is correct. AND WE DECLARE that the price paid to us for the said piece of Land is the price we asked for it, and is a fair price, and we have received such Moneys representing the said price as is specified below opposite to our (respective) signatures. The said piece of Land is called in our language ‘Umaleitai, Taufosea, Hevorohuhuru, Ilakaraeta, Karaeta, Hororipe, Hevoro, Tauro, Kepari, Apaferoe, Halailari, Pori-ai, Siviri, Fosopoi, Sururu, Sauka, Puo, Ivoria, Pomara, Popo, Popotupe, Popoharo, Hevorotupe, Hevoroharo, Taufeseharo’ and in the English language ‘KEREMA’

The said piece of Land is situate at ‘Kerema’ in the said Territory.”

Page 2 of the printed form has been deleted. I presume it contained the setting out of the “boundaries” the “rough and approximate plan drawn below” and the “description of the said boundaries”, referred to on page 1. Page 2 has been replaced by pages 2 and 3 of DA2498, page 2 being a large plan of the total area of the land supposedly the subject of the transfer limited to its outside perimeter, and at no point indicating the actual position within such plan of any individual piece of the 25 pieces of native land named on page 1; and page 3 being a surveyor’s metes and bounds description of the external boundaries of the land in that plan.

Page 4 of DA2498 was originally page 3 of the printed form A and comprises, firstly, a section intended to contain the signature of the vendor, the money or articles received by him and the value. This is filled in by the written words “As per Schedule”. A printed section reading “Equal to - s/ - d per acre” has no figure inserted, but next to the words “Total Value” at the end of that section the sum of œ2,081.12.0 has been written in. The next section contains provision for the purchase of “Plants etc., Growing on the Land” and has provision for the number, name of plant, value, articles or money paid, value again and owner’s signature. This section too, has written across it “As per Schedules” but at the bottom, against the words “Total Amount Paid” the figure of œ1,849.13.9 has been written.

The form then provides for the signature of a witness to payment. I assume this means to everything preceding it and therefore is intended to be as witness to all the signatures of the persons paid money in the Schedules referred to. The signature of that witness is of a Government Officer not mentioned anywhere else in the document, and who does not sign his name as witness to any of the signatures in the schedules, although a number of other people do.

Page 4 of DA2498 continues on into page 5 (originally page 4 of the printed form) with the inserted portions again in single quotation marks, as follows:

“I ‘George MALAISA’ of ‘Moveave’ in the Territory of Papua ‘Interpreter’ do hereby certify that I acted as Interpreter in the above sale of Land. That I understood the language spoken by the Vendors and the language spoken by ‘Messrs. A. T. Carey and R. C. R. Percy’ Officers in the Service of the Territory. That I truly interpreted the contents of the above paper as they were given to me by the said Officers in the ‘English’ language into the ‘Kerema Bay’ language, which is understood by the Vendors, and pointed out to them the boundaries of the Land sold as shown on the above plan. That I am certain the Vendors understood me. That previously to my so interpreting I and the said Officer walked round the said Land in company with the said Vendors, and that the boundaries of the said Land were then pointed out by the said Vendors, and that the said boundaries were identical with the boundaries set out in writing in the above transfer. That the Moneys which are specified opposite to each Vendor’s signature were in my presence paid over to such Vendor. That I am certain that the Vendors when they signed the above transfer knew what Land they were selling, and knew that they were selling it out and out to the Government. That I am also certain that the Vendors were satisfied with the price they got and that it was the price they asked.

Witness my hand this ‘28th’ day of ‘May’ 19 ‘63’.

(Signed) ‘George Malaisa’ Interpreter.”

“I, ‘Arthur Thomas Carey’ of ‘Kerema’ an Officer in the Service of the Territory of Papua, do hereby certify that all the Vendors named in the above transfer signed the said transfer at ‘Kerema’ in the Territory of Papua, on the ‘28th’ day of ‘May’ 19 ‘63’, in my presence. That previous to their signing the transfer, the Interpreter named in the preceding Certificate, in my presence, did so far as I could judge interpret the contents of the said transfer from the language in which I read them to him into the ‘Kerema Bay’ language which is understood by the Vendors, and pointed out the boundaries of the Land sold as shown on the above plan. That previous to this being done I and the aforesaid Interpreter walked round the said Land in company with the said Vendors, and that the boundaries of the said Land were then pointed out by the said Vendors, and that the said boundaries were identical (sic) with the boundaries set out in writing in the above transfer. That the Moneys which are specified opposite to each Vendor’s signature were in my presence paid over to such Vendor. That I am certain that the Vendors when they signed the above transfer knew what Land they were selling, and that they were selling it out and out to the Government. That I am also certain that the Vendors were satisfied with the price they got.

Witness my hand this ‘28th’ day of ‘May’ 19 ‘63’.

Following this on the printed form is an instruction in brackets reading as follows:

(‘The Officer must state here whether the Land was unoccupied by Natives at the time of sale, or, if occupied, when occupation is to cease.)

Part of this instruction has been ruled out and the portion remaining is “the Land was unoccupied by Natives at the time of sale.”

Thereafter follows Mr. Carey’s signature with his title of “Asst. District Officer” written in below.

The remaining parts of page 5 comprise the signature of the Deputy of the Administrator above referred to and the certificate of registration by the Acting Registrar of Titles.

The next 19 pages (pp. 6 — 24) of the Instrument contain the Schedule of Vendors of the land. This Schedule gives the name of each vendor, the name of the native land or ground name in respect of which the sale is made, the signatures (or marks) of each vendor, and the amount paid in each case to him.

To give an idea of the complexity of the purchase I set out here in summary the ground names of the land and the number of persons paid in respect of each:

making a total of 218 different payments.

A number of people were paid in respect of more than one piece of ground and the Chief Land Titles Commissioner estimates that there were in excess of 150 vendors.

Pages 25-26 of the instrument contain a schedule of buildings “to be pulled down to clear the approaches to Kerema Airstrip Land.” Nine houses, all of native materials, with small outbuildings, are referred to here. This schedule contains the name of the owner, the description of the house, the signature of the vendor and the amount paid.

I note in passing that the vendor of two of these nine houses was the London Missionary Society, which apparently became a “Native” for the purposes of this transaction and was paid £78.15.0 for its buildings.

Pages 27-49 are a Schedule of “economic trees” purchased. This sets out the names of the owners, the type and number of trees, the price paid for each tree, the signature or mark of the vendor and the total amounts paid. In every instance the vendors are described as coming from Siviri or Karaeta villages, not one purchase being therein related to any of the other 23 native place names on page 1 of the purchase instrument.

Pages 50-71 are a Schedule of “Pro-Rata” payments for trees, every one of which relates to “Kerema Station Land” as opposed to “Airstrip” setting out the name of each vendor, the amount paid and his signature or mark only.

There would appear to be some thousands of trees referred to in these last two schedules.

This somewhat awesome document is the Instrument which the State contends is conclusive evidence of the Government’s title to the land the subject of this appeal.

Mr. Thair’s preliminary argument is that once DA2498 was recorded it became conclusive evidence of the title of the Government to the land referred to in it by virtue of par. 7 of the Schedule and no evidence can be admitted to rebut it. The authority he relies on (and in fact the only authority cited by either counsel to me) is Kerr v. John Mottram, Limited[xiv]⁴. In that matter a shareholder in a company, the articles of association of which provided that the minutes of any meeting if purporting to be signed by the chairman should be “conclusive evidence without any further proof of the facts therein stated”, brought an action against the company for specific performance of an alleged contract and proposed to call evidence inconsistent with the signed minutes of an extraordinary general meeting. Simonds J held that the words “conclusive evidence” meant evidence which was not to be displaced and was conclusive as between the parties bound by the minutes and that, accordingly the evidence tendered by the plaintiff was inadmissible.

Mr. Thair makes the following comparisons between that case and the present one. Firstly, he submits in each case something had to be done to endow the resultant document with its conclusive nature. In Kerr’s case[xv]⁵ the minutes had to be signed by the chairman of the board of directors at its next meeting. In the present case the Instrument of Transfer had to be sealed and recorded by the Registrar of Titles. Once these events occur, Mr. Thair claims the “conclusiveness” is created. The second similarity he submits is that in each instance there is a qualification to each type of document. In Kerr’s case[xvi]⁶ under the article in question the minutes had to be “proper” minutes. In this case he submits the words in par. (7) “Every such instrument” appear to refer back to par. (3) requiring the transfer to be in writing, signed by the appropriate Government officer and the owner or some person authorized by him. Mr. Thair submits that in this case every land owner named in the transfer has signed it, the transfer is in writing and the appropriate Government officer has signed it. In Kerr’s case[xvii]⁷ the Company Secretary gave evidence to prove that the minute book was the minute book of the Company, that the minutes relied on were the minutes of the meeting in question and that the signature was that of the chairman of that meeting. He asserts that these similarities should bring about the same result as in Kerr’s case[xviii]⁸, that is, that evidence going behind the document should not be admitted.

I agree with Kerr’s case[xix]⁹ and, if Mr. Thair’s submissions were valid, would hold without question that, in the absence of fraud, the conclusive evidence provision would mean no evidence would be admissible to rebut the matters to which it relates. I agree with the first comparison Mr. Thair makes, that of signature of the chairman of the board to that of recording by the Registrar of Titles. I agree, in relation to his second proposition, that there is a comparison as to qualification in each document. But the argument ends there and Kerr’s case in my view is to be distinguished. The fundamental problem is to what extent should DA2498 comply with the requirements of Sch. 2 and to what extent does it do so, because the words “every such instrument” in par. (7) relate not only to the provisions of par. (3) but also those of par. (4). This involves a close examination of the Act and the Schedule and the interpretation of them both.

Firstly, I would doubt whether, if par. (7) had been created under the regulation-making power in s. 6 of the Act, it would have been within that power. However, as counsel agree, under the then Ordinance Interpretation Ordinance of 1911 “Every schedule to an Ordinance shall be deemed to be part thereof”, a provision which has continued to be the statutory rule of interpretation up to the present time, although in slightly different wording.

Secondly, to understand this legislation, its history must be traced. The Protectorate over British New Guinea, before it was named Papua, was established on 6th November, 1884 and the first Special Commissioner appointed to administer it was Major-General Scratchley whose instructions from the Colonial Office included the following clause:

“9.      You will especially make it your duty to explain to them that Her Majesty, in taking them under her protection, has their welfare in view, and that you are sent to secure to them the safety of their persons, the enjoyment of their property, and particularly to protect them from being deprived of their lands by force or fraud. At the same time you will make it known to them that if it shall be decided to allow Her Majesty’s subjects or others to purchase land, such transactions must in every case be conducted through you; that their wishes in these matters will be respected, and that the purchase money will be paid through you to them, unless in any case it shall appear desirable to apply it in their behalf for some object in which they are directly interested. You will also explain carefully, and satisfy yourself that they comprehend, that by sale of land they deprive themselves of all further claim to it, and that it becomes the absolute property of the purchasers. In the event of any such purchases being made, it will be your duty to see that both parties agree as to the boundaries of the land, and that these boundaries are defined by beacons or other easily recognizable marks. All such transfers should be carefully recorded in a register, and all subsequent transactions must be similarly recorded, or they will not be recognized by Her Majesty’s Government.”[xx]¹⁰

Actual annexation of British New Guinea was delayed until 1888 but it can be noted that in the First Schedule (Draft Proposals) and Second Schedule (Amended Proposals) for the future Administration of British New Guinea to the British New Guinea (Queensland) Act of 1887 cl. 9 was indentical — “No purchase of land to be allowed to be made by private persons, except from the Government or purchasers from it.”

The Annexation was proclaimed by the then William MacGregor, the first Administrator, on 4th September, 1888 and cl. (XII) of the Letters Patent providing for the Annexation read:

(XII)   The said Legislative Council is hereby required to establish a law providing that no purchase of land within the Possession be allowed to be made by private persons, except from the Administrator, or other authorized officers of the Government, or from purchasers from him.”

The first legislation immediately followed, on 17th September of that year, and was entitled The Land Regulation Ordinance 1888. It consisted of only seven sections, the last of which was its title. Section 1 made it an offence to deal with native land, s. 2 prohibited natives from dealing in land except as later provided, s. 3 made any dealing contrary to these provisions null and void, s. 4 provided that the Administrator, on behalf of the Crown, could purchase native land on agreed terms, s. 5 prohibited him from thus acquiring land until he was satisfied that the land or its use was not required or not likely to be required by its native owners, and s. 6 provided that the Administrator was subject to other limitations in purchasing land (which led to subsequent legislative change the reasons for which are irrelevant here).

The following year the Real Property Ordinance 1889 was passed, applying the Queensland Acts in British New Guinea. This did not affect the legislation concerning purchases of native land. In 1890 the Crown Lands Ordinance was passed and again it did not affect purchases, but it did provide for them to be attested by an instrument in writing under the hand of the Administrator and recorded in the office of the Registrar-General.

I set out here s. 21 of that Ordinance:

“XXI.   The instrument of attestation made out under any of the preceding sections of this Part of this Ordinance shall set forth a description of the land purchased or leased or in which an interest has been acquired giving the native and (if any) the English name of the land its position and its boundaries an estimate of its area and some delineation of its shape. The name or names of the vendors or lessors its condition as to occupation the price or rent paid or to be paid and to whom paid and in whose presence payment has been made and the name of the interpreter employed (if any) in the transaction between the parties shall also be stated as well as such further information as the Administrator may think fit. Such instruments as aforesaid shall be recorded by the Registrar-General in a separate Register in the manner that other instruments are directed to be recorded under The Real Property Ordinance of 1889.”

In the Land Ordinance of 1899 the existing laws relating to Crown Lands were consolidated. For the first time (under s. 9 (7)) a “conclusive evidence” clause was inserted making instruments of acquisition when sealed with the seal of the Possession and duly recorded “conclusive evidence of the facts therein set forth and of the title to the lands therein referred to”’.

In the Land Ordinance 1906 the earlier provisions of the former Ordinances regarding acquisition of land from natives were retained and provision was made for authentication of such acquisitions by Regulations. None were made. There was no “conclusive evidence” clause in this Ordinance.

Next followed the 1911 Act under which DA2498 came into being. It should be noted that the registration of the transfer documents throughout this legislation is not under the Torrens system, so that none of the Torrens provisions as to rectification are applicable.

The significance of the historical background I have given is, to my mind, to establish the real intent of the Act and its Schedule.

In Blackwood v. R.[xxi]¹¹, Sir Arthur Hobhouse said:

“There are decisions on the construction of English statutes with reference to English methods of taxation which would be of great value if it were first found that the Victorian (Aust.) Legislature had adopted any such method, but which are of little value until that conclusion has been reached. It appears to their Lordships that the Court below has first searched for a rule of law, and has then bent the statute in accordance with it; whereas, until the true scope and intention of the statute has been discovered, it cannot be seen what rules of law are applicable to it.”

Craies on Statute Law, 7th ed., p. 488, says:

“But in cases of ambiguity in a colonial Act, the Privy Council may have difficulty in accurately ascertaining what is the special scope or policy of the statute brought into question before them.”

On this question of policy, I prefer to adopt the statement of Sir George Jessel, M.R. in Holme v. Guy[xxii]¹² where he said:

“The Court is not to be oblivious ... of the history of law and legislation. Although the Court is not at liberty to construe an Act of Parliament by the motives which influenced the Legislature, yet when the history of law and legislation tells the Court, ... what the object of the Legislature was, the Court is to see whether the terms of the section are such as fairly to carry out that object and no other, and to read the section with a view to finding out what it means, and not with a view to extending it to something that was not intended.”

In my view it is an appropriate rule in the interpretation of the legislation of Papua New Guinea before self-government to look at the instructions from the colonial power to its colonial legislators, if the intent of the legislation is not certain on its face.

Doing so in this case, although in my view the intention of the Legislature is clear enough, one finds without any question, that the Act in question was drafted, as were its predecessors, with the concept of protection of native landowners so clearly laid down in Instruction 9 to General Scratchley set out above.

This concept of course, is not limited to the legal method of documenting purchases of native-owned land and its subsequent registration and effect, but with the actual method of going about the purchase with the vendors, so clearly expressed in par. (4) of the Schedule.

Despite the fact that this legislation is a colonial law to be looked at in its local context, there are two principles of statutory interpretation, which to my mind are particularly appropriate in matters of this type, and I am addressing myself here in the main to the “conclusive evidence” clause, par. (7).

The first principle is the presumption against changes in the common law. In Maxwell on Interpretation of Statutes, 12th ed., p. 116, it is said:

“Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question.”

This is a quotation from the judgment of Trevor C.J in Arthur v. Bokenham[xxiii]¹³. The textbook continues:

“It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, ...”

In Craies on Statute Law, 7th ed., p. 121, after discussing the general principles the author says:

“It thus appears that the courts will construe with strictness statutes which entail a deprivation of common law rights.”

It is my view, when a law in Papua New Guinea affects traditional or customary rights, especially in relation to land, which historically is of so much more significance to the people of Papua New Guinea than many other countries, that law will be strictly construed where it purports to deprive the people of their right to assert ownership, or interest of any sort, in the land.

The second principle concerns the wording of the legislation itself. This relates directly to the intention of the Legislature. The word “shall” appears throughout s. 5, s. 6 and the Schedule to the Act. Is it “mandatory” or is it “directory”? Is it imperative or is it permissive? Maxwell, Interpretation of Statutes, 12th ed., p. 314, refers to two judicial pronouncements which in my mind sum up the problem completely.

Firstly, Lord Campbell L.C. in Liverpool Borough Bank v. Turner[xxiv]¹⁴ said:

“No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.”

Secondly, Lord Penzance, in Howard v. Bodington[xxv]¹⁵ said:

“I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”

With respect, I agree with these principles. In the light of the wording, legislative history and “protectorate” background of this legislation I am completely satisfied that before the “conclusive evidence” provision in par. (7) of the Schedule comes into operation, there must have been the strictest compliance with all conditions precedent to it. In other words the meaning of “shall” in the Schedule is mandatory. I will refer to its meaning in the Act later in this judgment.

In Halsbury, 4th ed., vol. 17, par. 28, it is said “conclusive evidence” means “that no contrary evidence will be effective to displace it, unless the so-called conclusive evidence is inaccurate on its face, or fraud can be shown.” Fraud is referred to in Kerr’s case[xxvi]¹⁶. The reference in Halsbury to “inaccurate” is, in my opinion, itself not quite accurate. The decision referred to is In re Caratal (New) Mines, Limited[xxvii]¹⁷, a company case, not dissimilar to Kerr’s case[xxviii]¹⁸, in which Bradley J held that the chairman of the board of directors had acted erroneously in point of law on the face of the minutes in allowing proxy votes to pass a resolution and that because of that, the “conclusive evidence” provision in the Companies Act 1862, did not apply. Being wrong in law is one thing, but inaccurate is another. However, that decision, in my view, is most appropriate to the present case. There was some conflict amongst the earlier English cases on the interpretation of the “conclusive evidence” provision in company law, but I do not think they assist me in this matter.

Adopting these strict rules of construction I now examine DA2498 in the light of the Schedule’s requirements, particularly those in par. (4).

The purpose of the requirements in par. (4) is obvious, namely, that when native land was purchased, its position and boundaries should be clearly defined so that there is no possibility of error in the minds of the vendors and the purchaser. The fact that the Government believed it was buying 25 pieces of land in one purchase in my view does not enable it to avoid this clear obligation.

The simple facts DA2498 discloses are as follows:

1.       Not one of the 25 pieces of land has its position described in the instrument or marked on the plan.

2.       Not one of the 25 pieces of land has its boundaries described in the instrument or marked on the plan, and in this regard it will be noted that the interpreter Mr. Malaisa, claimed he walked around the land with the vendors and pointed out the boundaries to them. However the boundaries he pointed out were the boundaries “shown on the above plan” and “set out in writing in the above transfer”. Again the perimeter, and quite clearly in no single case the boundary of one of the 25 pieces.

3.       In not one case is an estimate of the area given in the document. Not only does this refer to the 25 pieces, there is not even an estimate of the total land delineated on the plan. An expert mathematician might be able to estimate the total area from the metes and bounds description but even he would have problems without measurements of “the high water mark”, “the crest of the escarpment” and “the edge of mangrove swamps”.

4.       In not one instance has there been a delineation of the shape of the 25 pieces of land.

In going about the transaction in the way it did the Government has not complied with the requirements of par. (4)(i) in relation to any one of the pieces of land purchased. It seems extraordinary to me why it did not do so. Each piece of land could have been marked on the plan, its boundaries agreed on by its particular vendors and then delineated on the plan, with the end result that the 25 pieces would, hopefully, fall into place like a jigsaw puzzle and then make up the whole. That is what this case is all about, that two pieces of the jigsaw puzzle were missing.

Another matter concerns me. Mr. Carey also refers to boundaries, which is likewise subject to my remarks above. However, he says three other things, that the contents of the transfer were read to each of the vendors in his presence, that all the vendors signed the document in his presence and were paid the purchase money in his presence.

It is obvious on the face of the instrument that the vast majority of vendors were paid as he says, but 11 payments for the ground and a number for trees were paid into the “NMTA” which I am well aware is the “Native Moneys Trust Account”. This to me is evidence on the face of DA2498 that those persons were not present at all and gives rise to the strongest suspicion that they may not have seen the instrument at all, but only a page of its schedule. However, I do not rely on that matter at this stage, when considering only the validity of DA2498 on its face.

The final nail in the coffin of Mr. Thair’s argument that this case is on all fours with Kerr’s case[xxix]¹⁹ is this. Observant readers of this judgment may have noticed in the summary of ground names and payments made for each set out above, that there are only 24 listed. Missing is the land named Pomara. Not one person is named in DA2498 as its owner, not one person is named as its vendor and not one penny is expressed to have been paid in respect of it.

Whatever caused this error I do not know. If the Government officers had prepared this instrument in the manner I have suggested above they were required to do, and inserted in it a separate schedule for each portion of named land, the mistake would have been picked up. It was not adverted to in argument before me, so I can only presume that both counsel did not detect it either.

This is a classic case of the Government officers trying to do things the easy way, by trying to purchase the land the Government wanted in one document only instead of many, or at least a more detailed one. They obviously did an enormous amount of work, but failing to do the little extra involved to do it properly has led to the possibility of error.

I have not the slightest hesitation in saying that DA2498 does not comply with the requirements of Sch. 2 and that therefore the conclusive evidence provision in par. (7) of the Schedule does not apply to it.

This immediately poses the problem that if DA2498 is not conclusive evidence of the Government title to the land referred to in it, is it anything at all?

My first concern was that it may have been rendered void by the mandatory nature of s. 3 of the Act. However, when one studies ss. 3, 5 and 6, the following picture emerges.

Section 3 clearly relates to s. 5 only. The words “Except as hereinafter provided” at the commencement of s. 3 relate to the sale of land. Section 5 authorizes the Lieutenant-Governor to purchase land, subject to the mandatory requirement in its second part which I will mention shortly.

Section 6 has nothing to do with selling or purchasing land. It is an evidentiary provision only. It does not say that purchases of land by the Crown shall be by such instruments and in such manner as are prescribed in Sch. 2. It only says that they shall be “authenticated” by such instruments and in such manner. In this section the word “shall” is directory and not mandatory. Failure to comply with it does not mean the purchase in question is void or even invalid, so long for example that the Statute of Frauds has been complied with (a point raised by Mr. Kapi, counsel for the appellant in this matter, but irrelevant in my decision on the appeal itself), but it leaves DA2498 a very vulnerable document indeed. It, like any contract in writing, is subject to the ordinary law of contract.

To “authenticate” means to give authority to by the formalities required by law, or to prove to be genuine. The fact that DA2498 does not authenticate anything at all does not in my view mean it has no effect whatsoever. This is not a case where a statutory form of contract has to be followed to the letter, nor is it a case where the contract on its face is against the policy of the statute, in both of which instances a contract may not only be invalidated but be void. It is unnecessary for me to consider the eventual fate of DA2498 in this appeal except for one matter contained in the evidence which has been placed before me, to which I now turn.

[His Honour then considered aspects of the evidence and previous findings relevant to the apparent unwillingness of the appellants to sell bringing them within the situation envisaged in the second portion of s. 5 of the Land Act 1911 referring to Clarkson J’s reasons for judgment in Rahonamo v. Enai & Anor (Re Hitau)[xxx]²⁰ at pp. 66-67 concluding:] DA2498 contains no suggestion that anyone had even bothered to ask if the vendors had considered whether they would possibly have a need for their land in the future. The question appears to have been ignored. It is as I have said, a mandatory provision, and failure to comply with it is virtually the death knell for DA2498. This appeal could have succeeded on the undisputed evidence of the appellant on this single simple issue.

DA2498 was an inadequate document, attempting to comply with what in my view was an inadequate law. It contains a number of statements which are patently untrue, particularly in the case of the people who were absent from Kerema at the time, with whom both the interpreter and Mr. Carey claim they spoke and walked the boundaries of the land. It is perhaps indicative of the need for land purchase documents to be practical, specific and easy for people other than lawyers to understand.

This appeal is upheld and I therefore quash the decision by the Chief Land Titles Commissioner of 16th March, 1977 and reinstate the decision of Senior Commissioner Kimmorley of 5th July, 1972 namely, that the sole beneficial owners under native customary tenure of the land known as Mahope and Kakaumaraita as delineated in red in the plan marked “A” annexed to that decision were as at 5th July, 1972 the living members of the lineage of the Luipi Clan descended from Mirahua and Levau, the present leader of which is Safe Lavao and whose names are shown in the genealogy annexed to that decision marked “B”, subject to ownership of certain sago palms on the said land by Matoi Sevese of the family of the Luipi Clan descended from Etai Sevese.

Order accordingly.

Solicitor for the appellant: W. J Andrew, Acting Public Solicitor.

Solicitor for the respondent: C. Maino-Aoae, Acting State Solicitor.

[xi]Infra p. 17.

[xii]Infra p. 18.

[xiii]Infra p. 25.

[xiv][1940] 1 Ch. 657.

[xv][1940] 1 Ch. 657.

[xvi][1940] 1 Ch. 657.

[xvii][1940] 1 Ch. 657.

[xviii][1940] 1 Ch. 657.

[xix][1940] 1 Ch. 657.

[xx]Further Correspondence. Respecting New Guinea and Other Islands C-4273 London 1885, pp. 29-30 — as quoted in Documents and Readings in New Guinea History — Prehistory to 1889 — Whittaker and Ors, Jacaranda Press, 1975.

[xxi] (1882) 8 App. Cas. 82 at p. 91.

[xxii][1877] UKLawRpCh 129; (1877) 5 Ch. D. 901 at p. 905.

[xxiii](1708) 11 Mod. 148.

[xxiv](1860) 2 De G.F. and J 502 at p. 507.

[xxv][1877] UKLawRpPro 14; (1877) 2 P.D. 203 at p. 211.

[xxvi][1940] 1 Ch. 657.

[xxvii][1902] 2 Ch. 498.

[xxviii][1940] 1 Ch. 657.

[xxix][1940] 1 Ch. 657.

[xxx] [1971-1972] P. & N.G.L.R. 58.