Director of District Administration v Custodian of Expropriated Property and Administration of Papua New Guinea (re Kurikiki Island) [1972] PGLawRp 28; [1973] PNGLR 81 (24 May 1972)

[1973] PNGLR 81

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

DIRECTOR OF DISTRICT ADMINISTRATION

V

CUSTODIAN OF EXPROPRIATED PROPERTY AND ADMINISTRATION OF PAPUA NEW GUINEA (RE KURIKIKI ISLAND)

Kieta & Port Moresby
Prentice J

10 May 1972
24 May 1972

REAL PROPERTY - Restoration of Titles - Appeal from Land Titles Commission to Supreme Court - Whether different description of land in certificate under s. 36 (b) from that in provisional order causes uncertainty and invalidates certificate - New Guinea Land Titles Restoration Ordinance, (1951-1956) s. 36 (b).[lxix]1

The Custodian of Expropriated Property claimed entitlement to restoration of a freehold title over Kurikiki Island under the provisions of the New Guinea Land Titles Restoration Ordinance. In the provisional order the Commissioner of Titles described the land claimed as “Kurikiki or Kokahiki Island, District of Bougainville, being the whole of the said land above the highwater mark.”

In his certificate issued under s. 36 (b) of the New Guinea Land Titles Restoration Ordinance, the Director of Native Affairs described the land claimed as “Portion 125 on Kokahiki Island, Kieta—Bougainville. Approx. 2.5 ha”. Subsequently the Land Titles Commission made a final order restoring the claimed title to the Custodian.

The appellant appealed on the ground that the final order was invalid because of the different descriptions of the land in the provisional order and the certificate under s. 36 (b).

Held

The inclusion of the words “Portion 125” and the exclusion of the words “being the whole of the said land above the highwater mark” in the certificate given by the Director under s. 36 (b) of the Ordinance amounted to no more than a procedural irregularity; an irregularity which did not prejudice the appellant or anyone else and did not invalidate the final order when made.

Director of District Administration v. Administration of the Territory of Papua and New Guinea and Another (Re Tol Extended), [1969-70] P. & N.G.L.R. 389 applied.

Appeal

Under the Land Titles Commission Ordinance, 1962-1965.

By a claim made on 17th November, 1952, under the provisions of the New Guinea Land Titles Restoration Ordinance, 1951 the Custodian of Expropriated Property claimed freehold title to certain land being a trading station of 2.50 hectares, Kurikiki (Kokahiki) “an island at the eastern-most end of the Duteroi group about three miles from Arawa Bay” and being the land registered in vol. 1 fol. 10 Solomon Islands Ground Book.

In a sheet annexed to the Custodian’s claim it was noted that Kokahiki and certain other grouped “trading stations” had been “sold as Lots 125, 126, 132 and 138 Third Group Catalogue of Sales;” and that Lot 125 Kokahiki was sold to a T. E. Ebery;— Burns Philp becoming the owner of Ebery’s interest on a sale under a writ of execution.

By a claim made on 4th September, 1952, under the provisions of the New Guinea Land Titles Restoration Ordinance 1951 Burns Philp and Company Limited also claimed freehold title “on Kokahiki Island near Kieta— portion No. 125— approx. 2.5 hectares.” Burns Philp and Company Limited claimed that it had obtained its interest in the land “by purchase of the sale of Ebery & Walsh’s interests about 1932,” but that transfer of title to it from the Custodian had not been completed at the time of the Japanese invasion. In a letter dated 6th October, 1952, Burns Philp (New Guinea) Limited wrote to the Commissioner of Titles claiming (inter alia) “Portion No. 125 on Kokahiki Island near Kieta” on behalf of Burns Philp and Company Limited.

On 22nd September, 1955, the Commissioner of Titles issued a provisional order provisionally restoring to the Custodian of Expropriated Property an “estate in fee simple” in “Kurikiki or Kokahiki Island, District of Bougainville, being the whole of the said land above the highwater mark.”

On 23rd October, 1956, the then Director of Native Affairs certified under s. 36 (b) of the New Guinea Land Titles Restoration Ordinance, 1951-1956 that to the best of his knowledge and belief, there were no native claims to “Portion 125 on Kokahiki Island, Kieta, Bougainville. Approx. 2.5 ha.”

On 19th February, 1965, the Land Titles Commission made a final order restoring an estate in fee simple to the Custodian of “the piece of land known as Kurikiki or Kokahiki Island, District of Bougainville.”

The appellant appealed to the Supreme Court of Papua New Guinea against the final order.

The arguments of counsel appear sufficiently in the reasons for judgment.

Counsel

J. C. Turnbull, for the appellant.
R. K. Woods, for both respondents.
Cur. adv. vult.

24 May 1972

PRENTICE J: (After referring to the facts above his Honour continued): The appellant contends that the inclusion of the words “Portion 125 on” and the elimination of the phrase beginning “being the whole . . .” invalidates the certificate given by the Director of Native Affairs under s. 36 (b) of the New Guinea Land Titles Restoration Ordinance as it renders uncertain the land to which it is intended to apply; and because it does not apply to the land the subject of the provisional order. If it is not a certificate as to the land claimed, then (a) no certificate under s. 17 of the Ordinance having been issued and (b) no question of native rights having been referred to the Commission, and (c) no certificate (i.e., no proper certificate) having been issued under s. 36, no valid final order could be made.

Regulation 18 of the New Guinea Land Titles Restoration Regulations, requires that a s. 36 certificate shall be in or to the effect of form 13. Form 13 as printed to the addendum to the regulations has a footnote— “Here set out description of land in same terms as in the notice listing the provisional order.” I am satisfied that the certificate in question is to the effect of form 13.

It is clear from the Land Titles Commission file that no survey of the island was ever made. The use of the phrase “Portion 125” appears to have been imported from the Land Titles Commission card which in turn translates the phrase “Lot 125” originally appearing in the Custodian’s catalogue of sales. There is nothing in the file to suggest that the use in the description of the words “Portion 125” and the omission of the phrase “being the whole . . .”, necessarily or inferentially should refer to anything less than the whole of Kurikiki Island. To my mind no uncertainty appears— the “Portion 125” is the whole of the island. I do not consider that the inclusion of the phrase “Portion 125” and the omission of the phrase referred to, in the schedule description, would amount to any more than procedural irregularity in that the footnote to form 13 has not been followed; an irregularity which did not prejudice the appellant or anyone else, and did not invalidate the final order when made (cf. Re Tol Extended)[lxx]2).

I am satisfied the certificate was intended to and did by description, relate to the land claimed, and complied with s. 36. I am satisfied the Commission made no error in law and did not exceed its jurisdiction. I dismiss the appeal. I confirm the Commission’s order.

Appeal dismissed. Final order of Land Titles Commission confirmed.

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

[lxix]Section 36 of the New Guinea Land Titles Restoration Ordinance provides:

36. &ـ < < ;d &##60;&< As0; As soon as prabticafte after the expiration of the period of two monthcifiethe n so p up, irectall—

(a) #160; & r60; refer efer efer to the Commission the question of native customary rights to which a native or native community appears to the Director to have been, or asserts that he or it was, at the appointed date, entitled in rt of the subject land; or

(b) ـ &#c60; fyrtify to the CommiCommission by writing under his hand that, to the best of his knowledge and belief, no native or native community was, or asserts that he or it was, at the ated dentito any customustomary rary rightsights in respect of the subject land.

[lxx] [1969-70] PNGLR. 389, at p. 393.