Administration of the Territory of Papua and New Guinea v Bosup [1969] PGSC 1; [1969-70] PNGLR 61 (18 December 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 61 - The Administration of the Territory of Papua and New Guinea v Bosup

[1969-70] PNGLR 61

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA

V.

BOSUP

Rabaul & Port Moresby

Clarkson J

24 November 1969

26 November 1969

18 December 1969

REAL PROPERTY - Restoration of titles - Appeal from Land Titles Commission to Supreme Court - Claim for restoration based on acquisition of land by the Administration from natives after closure of Ground Book - Land Registration Ordinance 1924-1962, ss. 42, 43a[lxxxvii]¹ - New Guinea Land Titles Restoration Ordinance 1951-1965, s. 67 (3).[lxxxviii]2

By virtue of the combined operations of s. 42 (2) of the Land Registration Ordinance 1924-1962 and s. 67 (3) of the New Guinea Land Titles Restoration Ordinance 1951-1965 the Administration may succeed in a claim under the latter Ordinance where the claim is founded on an acquisition from natives after the closure of the Ground Book.

Appeal from Land Titles Commission.

The Administration of the Territory of Papua and New Guinea appealed against a final order of the Land Titles Commission made on 23rd February, 1966 in respect of the title to land known as the Bulu Foreshore Reserve Portion 456 situated in New Ireland. The respondent to the appeal was The Director of District Administration on behalf of Bosup of Bulu, the representative of the Kaitala Clan. This appeal is reported only on the effect of s. 42 of the Land Registration Ordinance 1924-1962 and s. 67(3) of the New Guinea Land Titles Restoration Ordinance 1951-1965. The arguments of counsel appear from the judgment hereunder.

Counsel:

Croft, for the appellant.

Wood, for the respondent.

Cur. adv. vult.

18 December 1969

CLARKSON J:  This is an appeal from a final order of the Land Titles Commission made on 23rd February, 1966 in respect of land in New Ireland known as Bulu Foreshore Reserve Portion 456 and comprising approximately 15 hectares.

[His Honour then dealt with matters not relevant to this report and continued.]

Counsel for the appellant conceded that the land had not been registered in the Ground Book and that it must be assumed that the acquisition was made after its closure.

Counsel for the respondent then pointed out that in those circumstances the provisions for obtaining a registered title under the Registration Ordinance—s. 16 et seq.—could not have applied because there was not as required by that section a right affecting land registered in the Ground Book. In these circumstances, the respondent maintained, s. 67(3) of the Restoration Ordinance could not be invoked by the appellant because it was only in respect of land in the Ground Book that the repealed sections referred to in s. 67(3) applied. The result would then be that the appellant could only succeed in its claim under the Restoration Ordinance if it could bring itself strictly within ss. 9 and 10 of that Ordinance.

However, after consideration of the relevant provisions and of the helpful arguments of both counsel I have concluded that this contention is not correct.

The sections contained in Div. 3 of Pt II of the Registration Ordinance which were repealed by the Restoration Ordinance in 1951 were ss. 16 to 43 inclusive. The next section, s. 43a, provided for the establishment by the Registrar of an Index of Unregistered Administration Lands. This section had been inserted in 1925 and continued in operation until 1963. Subsections (2) and (4) provide:

N2>“(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.”

N2>“(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.”

But one of the sections of the Registration Ordinance repealed by the Restoration Ordinance was s. 42 which provided in effect by sub-s. (1) that for the purposes of the Registration Ordinance the Administration was deemed to be the successor in title to any land of which the British Military Administration or the German Government had been registered or entitled to be registered as owner in the Ground Book. Subsection (2) then provided that where any land or estate or interest in land other than land referred to in sub-s. (1) had been acquired by the Crown or the Administration (and I interpolate here that the land acquired by the Administration from natives after the closure of the Ground Book fits that description) the Registrar “upon product of such evidence of title as he deems sufficient . . .” should bring the land under the Ordinance by registering a Certificate of Title in name of the Administration of the Territory.

In the present case the origin of the Administration’s claim to title appears to have been some “proclamation notice lease conveyance agreement or other instrument” which was shown in the Index of Unregistered Administration Lands and presumably at any time an attempt could have been made by the Administration to obtain registration of a Certificate of Title for the land by satisfying the Registrar under s. 42(2) of the Registration Ordinance.

With the destruction of the various registers and documents which prompted the passing of the Restoration Ordinance, s. 67(3) of the Restoration Ordinance would in my view have supported an application or registration based on the operation of that subsection and s. 42(2) of the Registration Ordinance. The Commission acting under s. 67(3) would consider whether in its opinion the Administration would have been entitled at the appointed date to an interest in the land and to be entered or registered in the Lost Register as owner if:

N2>(a)      s. 42(2) of the Registration Ordinance had remained in force;

N2>(b)      no relevant document or register (including the documents recorded in the abovementioned Index) had been lost or destroyed; and

N2>(c)      the procedure described by s. 42(2) had before the appointed date been completely applied.

I have already expressed the view that the Commission’s finding of fact in the particular I have already discussed was clearly wrong. If the argument which the respondent raised and which I have just discussed had succeeded there would have been no point in ordering a rehearing because on any view of the admitted facts the appellant could not have succeeded. However, since the argument fails it seems to me there is a further reason for ordering a rehearing in that from what counsel have said from the bar it is unlikely that the Commission or counsel before it adverted to the possible inter-action of s. 67(3) of the Restoration Ordinance and s. 42(2) of the Registration Ordinance.

I propose to allow the appeal and remit the whole case to the Land Titles Commission for rehearing.

Liberty is reserved to the parties to apply in respect of the costs of this appeal.

Appeal allowed. Rehearing ordered.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.

Solicitor for the respondent: W. A. Lalor, Public Solicitor.

R>

[lxxxvii]span>Relevant subsections of s. 43a infra, at p. 63.

[lxxxviii]Section 67 of the New Guinea Land Titles Restoration Ordinance 1951-1965 repealed various sections of the Land Registration Ordinance 1924-1962 including s. 42 (2) which empowered the Registrar “upon production of such evidence of title as he deems sufficient” to register land other than land of which the British Military Administration or the German Government had been registered or entitled to be registered as owner in the Ground Book.

Section 67 (3) provides that a claim for restoration of title may succeed if the claimant would 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 a person entitled to, that interest if, in the opinion of the Commission, he would have been so entitled if—

N2>(a)        the provisions repealed by this section had remained in force;

N2>(b)        no relevant document or register had been lost or destroyed; and

N2>(c)        the procedure prescribed by those provisions had, before the appointed date been completely applied in relation to that land.