Doriga v Guba [1969] PGSC 61 (21 November 1969)

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DAERA GUBA ON BEHALF OF HIMSELF AND THE
TUBUMAGA IDIBANA CLAN OF POREPORENA
1^st Respondent

THE ADMINISTRATION OF THE TERRITORY
OF PAPUA AND NEW GUINEA
2^nd Respondent

This hearing concerns two appeals from a decision of the Land Titles Commission given on the 25^th March, 1968 and incorporated in formal orders dated 1^st May, 1968. The subject matter of the Orders under appeal is land in the Port Moresby area, being a portion of what is commonly referred to as Newton, and which the Administration claims to have acquired from native owners in 1886.

To understand the issues it is necessary to give at least somewhat general terms the history of the events and of the proceedings which have so far occurred.

On the 6^th November, 1884 at Port Moresby, Commodore Erskine proclaimed the Protection of British New Guinea. This was some 10 years or more after the establishment of a station by the London Missionary Society in Port Moresby.

This first Special Commissioner was Major-General Sir Peter Scratchley who arrived in Port Moresby on 22^nd August, 1885. His stay, because of illness, was short and in November of that y ear he travelled to Australia where he died in December, 1885. For events which occurred during this period, the parties have had recourse to the report of Sir Peter Scratchley's private secretary, Mr. Seymour Fort, whose report of the 30^th March, 1886 for the period to the Special Commissioner's death is published in the 1886 Report for British New Guinea.

By Commission dated 26th December, 1885, the Honourable John Douglas was appointed Special Commissioner. He arrived in Port Moresby in June, 1886 and his Report and its Annexures for that year as published in the 1886 Report for British New Guinea, supplies much of the information relevant to the land dealings which occurred in the first two years of the Protectorate. The annexures to this report include reports by Mr. A. Musgrave and a surveyor, Mr. W.R. Cuthbertson, regarding purchases and surveys made during that period including a survey of the area known as Granville East.

One of the first acquisitions of land was in 1885 for the site of a Government bungalow. Further acquisitions to which I will refer in detail occurred during 1885 and 1886.

The "recent acquisitions" as summarized by Mr. Musgrave in his memorandum of 9thI November, 1886, include "Granville East, Township ...........95 acres." This is the area to portion of which the present appeals relate.

Mr. Douglas in his report for 1886 states that the purchases made under the authority of Sir Peter Scratchley and himself resulted "in the acquisition of a continuous book of land amounting to some 900 acres which will be quite sufficient at present for purposes of immediate settlement whenever it is deemed expedient to authorise it. It seemed to me to be very desirable that the land thus acquired should be defined by survey and for this purpose I secured the services of Mr. Cuthbertson ......... Mr. Cuthbertson has now completed the plans......."

The Granville East Township appears to be next mentioned in 1898 when Township boundaries were proclaimed in Gazette No. 26 of 8^th October, 1898. The same description of boundaries was adopted in an Order in Council of 19^th August, 1901 published in Gazette No. 9 of 14^th December, 1901 declaring certain lands in the Port Moresby area to be waste and vacant. This Order in Council is considered later.

The next reference to Granville East in official documents appears to be in Gazette No. 22 of 20^th September, 1910 which announced that certain allotments in that area were open to application for lease.

On 2^nd October, 1912 the Administration leased eight allotments in Section 5 of Granville East to the Amalgamated Wireless Company of Australia.

In 1928 the Port Moresby Golf Club obtained from the Administration permissive occupancy of Sections 7 and 8 and of the southern half of Section 5, and in 1931 this occupancy was extended to Section 6.

In the same year an area of less than an acre was leased by the Administration from certain natives including the present Respondent, Daera Guba, for the purposes of constructing a well. It is difficult to fix the position of this piece of land, but it appears to have been in the vicinity of the eastern boundaries of allotments 4, 5 and 6.

From then onwards there are a number of recorded complaints by natives that their lands were being occupied without their consent. Mr. Champion's report as Native Land Titles Commissioner in 1954 to which I will refer in more detail records a complaint in 1941 which was renewed after the war in 1949. The then officers of the Administration did not investigate the complaints but preferred to adopt the attitude that the disputed land was recorded as Crown land, and that the onus was on the Department of District Services and Native Affairs to take legal action to establish the claimants' title to the land.

On the 26th June, 1952 the Native Land Registration Ordinance came into operation and on the 17th December, 1953 a claim was made to the Native Land Titles Commissioner by one Arua Ako. An objection to the claim was made by Reva Lou. The hearing before the Commissioner, Mr. Champion, took place in February and March 1954, and he gave his report and findings on the 5th March.

The original claim before the Commissioner by Arua Ako was substantially for the area which on the plan marked Exhibit X before the Land Titles Commission is identified as Eranesi I and II. During the course of the hearing before Mr. Champion "objections" were lodged, but clearly some of these objections related not to Eranesi I or II, but to area s to the east, west and south of that land.

The Commissioner's conclusions can be conveniently described by reference to Exhibit X. He found that the rectangular sub-division of Granville East (46 x 21 chains = 96.6 acres) less the internal rectangle shown on Exhibit X as WXYZ (21 x 14 chains = 29.4 acres) was Crown land, and that the internal rectangle referred to was native land. He then proceeded to find the ownership of the internal rectangle, which included most of Eranesi I and II of Eranesi II, and awarded it as follows:

" (a) Area called ERA TAURA is owned by the TUBUMAGA IDIBANA Iduhu and that DAERA-GUBE is the representative head of that Iduhu the boundaries of the land being:-

Beginning at the south-east corner of Section IV Granville East thence 123º true for 355 links thence 100º true for 338 links thence 87º true for 500 links, thence 51º 30' true for 260 links, thence 135º 30' for 415 links thence 161º 55' true for 95 links thence 251º 55' for 1400 links thence 341º 55' for 1000 links to point of commencement. Area 7 acres 3 roods 17 perches be it a little more or less.

(b) Area called RANUGURI is owned by the TUBUMAGA IDIBANA Iduhu, the representative head being CARI-DAE, the boundaries beings:-

Commencing at the north-east corner Section IV Granville East thence 71° 55' true for 546 links thence 162° 30' true for 352 links thence 235° true for 332 links thence 154° 30' true for 270 links thence 225 true for 373 links, thence 341º 55' true for 840 links to point of commencement.

(c) Are called ERANESI is owned by ARUA-AK0 of GUNINA Iduhu being inherited from his grandmother DAGU-DIKANA of TUBUMAGA Iduhu the said land being a marriage gift to DAGU-DIKANA and the boundaries are:-

Commencing at south-east corner of Section IV Granville East thence 123° true for355 links thence100° for 338 links thence 87° true for 150 links thence 3° 45' true for 892 links thence 21º true for 276 links, thence 356° 30' true for 540 links thence 251º 55' true for 748 lurks thence 162º 30' true for 352 links thence 235º true for 332 links thence 154 º 30' true for 270 links thence 225° true for 373 links thence 161º 55' true for 260 links to point of commencement. Area 11 acres 1 rood 25 perches be it a little more or less.

(d) Area called ERANESI is owned by the KAHANAMONA Iduhu which is represented by REVA-LOU the boundaries being:-

Commencing at an iron peg bearing 163º true distant 615 links from a cement survey peg situated 100 links bearing 161º 55' true from the south-east corner of Section I Granville East, thence bearing 266º for 85 links thence 210º true for 185 links thence 183º 45' true for 892 links thence 87º true for 350 links thence 51º 30' true for 274.5 links thence 56º 30' true for 150 links thence 341º 55' true for 783 links thence 286º 30' for 247 links to point of commencement. Area 5 acres 0 roods 30 perches be it or a little more or less.

(e) Area called VANAMA owned by TUBUMAGA LAURINA Iduhu on which HARORO-NOU, AKO-LAHUI, KOHU-VAG1, RARUA-TAU and IPI-MOREA have usufructuary rights the description being:-

Commencing at a point bearing 71° 55' true distant 100 links from a cement peg bearing 161° 55' distant 100 links from the south-east corner of Section I of Granville East thence 71º 55' true for 100 links thence 161º 55' for 745 links thence 286° 30' true for 240 links thence 266° true for 85 links thence 21º true for 85 links thence 356º 30' true for 540 links to point of commencement. Area 1 acre 0 roods 24 perches be it a little more or less.

(f) Area called VANAMA owned by TUBUMAGA LAURINA Iduhu represented by VAI-DIKANA the description being:-

Commencing at the south-east corner of area (d) 161º 55' true for 420 links thence 315º 30' true for 418 links thence 51º 30' true for 14.5 links thence 56º 30' true for 140 links to point of commencement. Area 3 roods 1 perch be it a little more or less.

These six areas total 29 acres 1 rood 25 perches, or 29.406 acres, which fits closely enough the 29.4 acres of the internal rectangle.

Following Mr. Champion's report, doubts arose whether as Native Land Titles Commissioner he had had Jurisdiction to conduct his inquiry. The Chief Legal Officer expressed the opinion that he had not, and Mr. Champion appears to have accepted this opinion and he thereupon purported to cancel the decision he had given. Apparently, he told the claimants what had happened and that a Land Board would be established under Section 9 of the Land Ordinance 1911 to determine the matters in issue. This course was followed and a board of three members under the chairmanship of Mr. J.I. Cromie appointed by Proclamation published in the Government Gazette No. 46 of 9^th September, 1954.

"(1) whether there is a dispute as to the ownership of any of the areas of land described in the Schedule hereto;

(3) where a dispute exists is one or more of the disputing parties a Papuan Native; and

(4) if a dispute exists and one or more of the disputing parties is a Papuan Native who is the owner or who are the owners of the land the subject of the dispute."

It is important to note the boundaries of the land described in the Schedule. Eight areas are described and are shown on Exhibit X. All are within the large rectangle of Granville east, but only Eranesi II and two small pieces comprising Vanama are wholly within the internal rectangle WXYZ. Two of the areas, G and H, had not been the subject of claims before Mr. Champion, but the other six areas were claimed respectively by the claimants who were before Mr. Champion. I am unable to say whether or not the boundaries of these claims before the Land Board coincided with the boundaries of those made before Mr. Champion because except for the claim by Arua Ako the extent of the other claims before him is not recorded.

The Land Board hearing took place in October 1954 and its decision was given on 21st October.

To understand the Course of events before the Land Board three matters should be noted.

Firstly, the eight areas claimed by native claimants were marked on Exhibit X and as previously indicated they are all to be found within the large rectangle of Granville East.

Secondly, Counse1 who appeared for the claimants to all eight areas "announced that all areas which had been claimed by the various native claimants whom he represented and which lay outside a rectangle on the plan lettered WXY were now abandoned by his clients. In effect the total area claimed lies within the rectangle bounded by Pike Street, the eastern boundaries of Sections 4 and 5 thus taking in portion of Hely Street, Gubbins Street and taking part of Castlereagh Street.

It will be seen that the claims as thus described corresponded with the boundaries and acreages of the areas awarded to the claimants by Mr. Champion. As to the two additional claims G and H which fell wholly outside the internal rectangle WXYZ the Board remarked that they "are no longer of concern to this Board."

Thirdly, when addressing the Board at the conclusion of the evidence, Counsel for the claimants "made it clear that he could not support their claim to land comprised in the half sections immediately to the east Sections 4 and 5". That is, Counsel could not support a claim for any land outside the smaller internal rectangle WXRS shown on Exhibit X.

The Land Board by its decision of 21^st October, 1954 found in effect that the whole of the land comprised in the large rectangle of Granville East was part of the land purchased by the Protectorate in 1886 and was owned by the Government.

The Registrar of Titles was instructed to register the Land Board's report and findings "in the separate register for authentication of purchase by the Crown from natives under the Land Ordinance 1911-53", which he did.

On the hearing of this appeal the Crown Solicitor did not seek to rely on this registration as assisting the Administration's case.

Section 9 of the Land Ordinance under which the Land Board had been appointed, provided that an appeal lay from the Board to the Central (now Supreme) Court but no appeal was instituted.

On 23^rd May, 1963 the Land Titles Commission Ordinance 1962 came into operation. This Ordinance gave the Commission, which it constituted, "exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by native custom of or the right by native custom to use any land."

In February, 1966 both Deere Cuba for the Tubumaga Idibana and Lohia Doriga for the Giakone clan, parties to the present appeals, made separate claims to the Land Titles Commission for a piece of land described as Era Taora. No description of the land claimed by Lohia Doriga is before me although it appears throughout to have been accepted that it was the same as that claimed by Daera Guba. That land as delineated in the sketch attached to Application 42 of 1966 before the Commission comprised most of the land included in the original Tubumaga claim before the Land board.

On 25th March, 1968 the Chief Land Titles Commissioner gave his decision in which he found that the Tubumaga clan were the owners of the Land, the subject matter of these applications and that subject to the 1956 and 1957 transactions as to part of the land, it was never sold by them". A further finding was "that the Giakone clan purported to sell the land to the Administration". On a plan annexed to the formal decision of 1st May, 1968 the boundaries of the land are shown.

The reference to the 1956 and 1957 transactions was to small areas, being a portion of Castlereagh Street and two small areas east of Castlereagh Street, which has been purchased by the Administration from the Tubumaga claimants at that time. Reference to the plan annexed to the Commission's formal order and to Exhibit X will show that the Commission's order applied to land which fell within the rectangle of East Granville and to some land west of the old Lawes Street, and therefore west of the large rectangle and to a small piece to the east of Castlereagh Street and therefore to the east of the large rectangle.

I have been unable to satisfy myself from a perusal of the documents before me that the western boundary of the disputed land as claimed and as shown in Exhibit X coincides with the western boundary of the land delineated in the Commission's plan, but it was conceded by all parties before me that the western boundary on this plan encompassed land which lied to the west of the old Lawes Street, and which therefore on the Administration's case not included within the area of the 1886 purchase of Granville East.

There were a number of matters which arose during the hearing of these appeals with which I shall now deal.

The appellant Lohia Doriga filed an affidavit in which he claimed that at the hearing before the Commission the land to which he had referred as Era Taora and which had been referred to as sold to the Administration was not the land the subject of these proceedings but that known to the Commission as Vanama. He also sought to clarify a somewhat unintelligible passage in the transcript.

In the end, the affidavit was used to support an application by that Appellant for a new trial on the grounds that he had given evidence at the trial which were mistaken. This application was opposed by other parties before me and I reserved my decision.

I have decided to refuse the application and will set out my reasons. Before doing so, however, I draw attention to an aspect which, although not argued before me, may be a quite fundamental objection to the application.

Subject to a review by the Commission and to any appeal permitted to this Court, the Commission-had exclusive jurisdiction to determine the matters before it I set aside the provisions relating to review ass being irrelevant to the present enquiry. An appeal to this Court under S.38 may be made "only" on the grounds set out in Section 38(2) and upon the hearing of the appeal this Court is empowered by S.38A(2) to affirm or quash the decision or substitute a decision which might have been given or remit the case in whole or part for hearing or further hearing.

I am inclined to the view that a rehearing can be ordered only when a ground set out in S.38(2) is established, and the discovery since the hearing o fresh evidence or the fact that evidence teas mistaken does not seem to fall within that sub-section. Since the point was not argued before me and since I have decided in any event to refuse the application I express no final opinion.

I was referred to Richardson v. Fisher ^[1] where it appearing on affidavit from a material witness that he ha made a mistake in giving his testimony, the Court granted a new trial but did not discuss the principles involved. See also Germ Milling Co. v. Robinson ^[2]; Ladd v Marshall ^[3]; and Skrzypkowski v. Silvan Investments ^[4] in which an order in the County Court for a new trial made by the trial judge was not disturbed by the Court of Appeal. A stricter test may well be applied in Australia. See for instance Wellongong Corporation v. Cowan ^[5] per Dixon C.J., and cases there cited.

Even if I accept the appellant's affidavit without enquiry, it seems to me quite clear that the evidence now sought to be adduced could not satisfy the tests which it must in order to justify an order for new trial. The appellant gave his evidence during the hearing on 20^th March. Neither in re-examination nor on the 21^st, the following day of the trial, was an attempt made by the appellant or his Counsel to correct an apparent admission which in itself appeared sufficient to destroy the appellant's claim; but in addition two further points affecting the weight of the evidence should be noted. Firstly, there were other witnesses including the witness Kora Nek who gave evidence of the sale which the appellant now seeks to deny, and secondly even a finding that the appellant's ancestors had not purported to sell the disputed land does not touch the Commissioner's first finding that the land was owned by the rival Tubumaga claimants. I refuse the application based on the affidavit for a new trial.

The application to use the affidavit to clarify the transcript was not pressed and I have not so used it.

At the commencement of his argument Mr. Broadley, for the Tubumaga claimants, sought to tender the original of Exhibit 1 before the Commission. Exhibit 1 is apparently a duplicate of the lease by some of his clients in 1931 to the Administration of a small area to enable the Administration to construct a well. Mr. Broadley sought to tender the original of the lease for the purpose of putting before me particulars of registration which are endorsed on it, and on which he intended to found an argument that registration of the lease, even though it expired in 1961, was conclusive evidence against the Administration of certain facts in relation to the land, the subject of the lease.

The application was opposed by the other parties represented at the hearing and I reserved my ruling. After consideration I have decided to reject the application on the grounds that the fact of registration at some time of the making of the lease is clearly fresh evidence which I have no power to receive (In Re Wangaramut) ^[6].

This brings me to comment on two interrelated aspects of the present case which have caused me concern. The first is one which in my experience appears in most of the land appeals which come to this Court, and that the attempt to improve the case by adducing more evidence and raising additional arguments.

Most cases should be made better on a second presentation but in the interest of certainty and finality the Courts have always limited attempts to re-open a decision properly made on the evidence and arguments then available.

The attitude of the courts is well expressed by Street C.J. in a passage quoted with approval by the Judicial Committee in Leeder v. Ellis ^[7]:

"It is impossible for this court, within the limits which necessarily control it, to achieve abstract justice in every case. It most work within its prescribed limits, and rules must be observed and complied with in the general interests of justice, and one general interest is that there should be an end to litigation, once it is instituted, and that parties should not be permitted to protract proceedings indefinitely by taking a chance on the hearing in the lower court as to whether the evidence is sufficient, and on finding it insufficient should then be able to come to the appellate court and ask for fresh evidence to be admitted, which was available at the time and in respect of which no difficulty arose in the way of putting that evidence before the court, and seek to have the matter reopened on that ground."

The second aspect is the trial of the same issue in two or more successive proceedings. Again, most cases can be made better on a second presentation, but again the courts prefer certainty and finality.

No case could better illustrate the confusion, uncertainty and discontent which flaws from repeated litigation of substantially the same issue as this case does. Since 1953 when the first formal step to obtain an adjudication was taken the present issues have been litigated before three different tribunals, each established under a different Ordinance and each having somewhat different powers and terms of reference, and each arriving a different conclusion. The whole matter has been canvassed again before me on this appeal by five Counsel for almost a fortnight, and I have no reason to think that my decision will bring any finality after sixteen years of sporadic litigation.

I do not propose to set out the grounds of appeal in detail. They raise questions of fact and of law ranging from the contention that the Commissioner's decision was against the weight of evidence to the submission that officers of the Protectorate of British New Guinea had no power to acquire land from the native inhabitants. On the view I take of the facts and law, it is unnecessary for me to decide all the matters raised before me, but to the extent that I find them relevant I have given them all my consideration.

At the outset of the hearing I drew Counsel's attention to a question of law which was raised on the appeal, the determination of which might shorten the proceedings and hasten final determination. This was the question whether the decision of the Land Board in 1954 could in the proceedings before the Commission be res judicata or could give rise to an issue estoppel.

Two of the parties before me would have agreed to my stating a case to the Full Court, but the third preferred that the whole appeal should be heard and this is the course I followed. It is convenient, however, to deal first with a number of questions raised regarding the hearings, before earlier tribunals.

I start this consideration by referring to the decision of Mr. Champion as Native Land Titles Commissioner.

The Crown Solicitor argued that the Native Land Registration Ordinance did not enable the Native and Commission to deal with a dispute between the Administration and natives as to the ownership of land. Neither of the other parties urged strongly to the contrary and I am quite satisfied that this view, which appears to have been accepted by Mr. Champion himself, is correct. It follows that the decision being ultra vires the whole dispute remained at large. I should say, however, that the decision has some persuasive force. The evidence taken by Mr. Champion and his conclusions from it formed part of the material before both the Land Board and the Land Titles Commission, and therefore before me. Mr. Champion made his enquiry some thirteen years before the Chief Land Titles Commissioner made his, and some evidence available at the first enquiry was apparently not available at the second. In addition, as the record of evidence itself shows, Mr. Champion had had almost a lifetime of contact and experience with the native people from whom the claimants came. For myself, I have found the evidence he took and the conclusions he reached most helpful.

This brings me to the Land Board which was set up when it was recognised that Mr. Champion's decision was ultra vires. The Board was constituted under Section 9 of the Land Ordinance 1911. Sections 8 and 9 of that Ordinance read as follows:

"8. The Lieutenant-Governor may from time to time by Order in Council published in the Gazette declare that any land which has never been alienated by the Crown and of which there appears to be no owner will unless cause be shown to the contrary within the period specified in such order become Crown land.

Every such Order in Council shall set forth the name or names (if any) by which such land is known with a description thereof made from an actual survey or a diagrammatic sketch of the same the position of the land an estimate of its area and a statement showing as far as known how long it has been unused by natives.

From and after the expiration of the time limited by such Order in Council the lands referred to therein shall be and be deemed to be vested in His Majesty for an estate in fee-simple;

Provided that the Lieutenant-Governor shall at any time before the expiration of the time so limited and may at any time thereafter take into consideration any claim to such land or any interest therein made by or on behalf of any alleged owner thereof and if he allows such claim may either by another Order in Council published in the Gazette declare that the Crown disclaims its title to such land in which case the land shall not then vest in His Majesty or become Crown land or if it has so vested shall be divested from His Majesty and cease to be Crown land or he may acquire the right of such owner in manner hereinbefore provided.

9. It shall be lawful for the Lieutenant Governor by Proclamation in the Gazette to appoint a Board or Boards to decide all questions as to waste and vacant lands or lands alleged to be waste and vacant and all cases of disputed ownership of land in which a Papuan native is a claimant. The Board in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure.

An appeal shall lie from the Board to the Central Court. The practice regulating such appeals shall be as laid down in regulations to be made by the Chief Judicial Officer and published in the Gazette."

"The Board accordingly answers the questions which have been referred to it as follows:

Question	Answer

1. Whether there is a dispute as to the ownership of any of the areas of land described in the Schedule hereto.	Yes.

2. Where a dispute is found to exist who are the disputing parties.	The disputing parties are the Government and certain native claimants who are referred to in the opening parts of this report.

3. When dispute exists is one or more of the disputing parties a Papuan Native.	Yes.

4. If a dispute exists and one or more of the disputing parties is a Papuan Native who is the owner or who are the owners of the land the subject of the dispute.	The Government.

As I have already stated there was no appeal to the Central (now Supreme) Court by any of the unsuccessful native claimants.

Although the record of the Land Titles Commission does not show it, it was agreed by all parties before me that at some time between February 1966 when the proceedings before the Commission were first called on and March 1968 when the hearing of evidence commenced there was argument before the Commission regarding the effect of the Land Board's decision.

"And the Land Titles Commission holds that the decision of the 1954 Land Board (Exhibit W) is not a judgment in rem nor does it estop the Tubumaga clan or members thereof and further that such decision is not binding on the Land Titles Commission."

One further matter should be noted. Section 44 of the Land Titles Commission Ordinance 1962 provided that the Commission should accept findings the Native Land Commission under the Native Land Registration Ordinance subject to any appeal under that Ordinance. The Chief Commissioner in his reasons for decision said that his findings on the facts were arrived at independently of the findings of Mr. Ivan Champion. This failure to take account of Mr. Champion's findings creates no legal difficulty when it is appreciated that it was common ground before the Land Titles Commission that Mr. Champion's decision was ultra vires.

It will be recalled that the Giakone clan was not a party to the proceedings before the Land Board.

Before me the Crown Solicitor argued that the decision of the Land Board amounted to a judgment in rem which bound not only the parties to the proceedings but also all others including the Giakone clan. Alternatively, it was contended the Land Board's decision constituted an estoppel as against the Tubumaga claimants.

Counsel for the Tubumaga clan submitted that the Land Board had no standing because Section 9 of the Land Ordinance 1911 under which it was purportedly appointed had been impliedly repealed by the Native Land Registration Ordinance 1952. Alternatively he stated the Land Board was neither a judicial body nor did it exercise judicial power, with the consequence that its decision could not be a judgment in rem nor could it give rise to an estoppel. It was further argued, somewhat faintly, that the Board had not been validly constituted in that it failed to comply with Section 16 of the Land Ordinance. I think it is clear that the Land Board referred to in Section 16 is quite different from a Board constituted under Section 9 and is established for quite a different purpose and that this latter argument fails.

The argument for the implied repeal of Section 9 of the Land Ordinance was founded on the proposition that jurisdiction which could formerly have been conferred on a Land Board was by the 1952 Ordinance conferred on the Native Land Commission and that to avoid the absurdity of permitting an unsuccessful applicant to go from one tribunal to the other the 1952 Ordinance should be read as impliedly repealing the power to appoint a Land Board under Section 9 of 1911 Ordinance The decision of Gore J. in Busin v. Havini ^[8] was cited as supporting this conclusion.

In my view this submission is unsound. Firstly, it is by no means unusual for concurrent jurisdiction to be held by two different courts and if such a situation had existed here it would not necessarily have followed that there had been a repeal by implication. But in any event the two tribunals quite different jurisdictions. As I have already indicated the jurisdiction of the Native Land Commission was concerned only with native land while the jurisdiction of the Land Board when appointed embraced the disputes as to ownership between the Administration and Papuans which were expressly referred to it. Even if some basis exists for arguing a pro tanto repeal by implication where the dispute before the Land Board was between natives concerning native land such was not the case here where one question was whether the land was native land.

As to the possibility of an unsuccessful claimant doing what coincidentally the Tubumaga clan did here, namely going from one tribunal to another in search of a favourable decision, it is against this possibility that the doctrine of judicial estoppel operates.

I do not think that Busin v. Havini (supra) assists the present argument. It is one thing to say that legislation which established a Commission to determine all disputes between natives over native land shows an intention impliedly to repeal a regulation giving a Court of Native Affairs power to determine the same disputes, but it is quite another thing to say that that legislation is plainly repugnant to a power conferred on the Lieutenant-Governor to appoint a special tribunal to decide a particular dispute which is not within the jurisdiction of the Commission.

I should add that if the ratio of Busin v. Havini (supra) were that the implication of repeal was necessary only to avoid two tribunals having concurrent jurisdiction I would respectfully disagree, but I do not think that to be the basis of the decision.

I turn now to the contention that the Land Board was not a judicial body and that it did not exorcise judicial power. The Crown Solicitor conceded, that if that were so a decision of the Board could not be a judgment in rem nor could it give rise to a judicial estoppel.

To determine whether a tribunal is exercising judicial power is not always easy. A number of different tests has been propounded and no particular characteristic or combination of characteristics con be said to he necessarily conclusive. Some of the cases seem to suggest that whether a body is exercising judicial power or not may vary according to the purpose for which the determination is necessary. So, for instance, Professor S.A. de Smith in "Judicial Review of Administrative Action" (2nd ed.) p.36, detects differing approaches by the Courts depending on whether the inquiry is to determine the applicability of the prerogative writs or to determine whether a decision is unimpeachable in collateral proceedings or to determine whether absolute privilege in respect of defamatory statements exists and so on.

I propose first to look at the powers and function of the Land Board itself under the two Sections 8 and 9 of the Land Ordinance which I have already quoted.

Section 8 empowered the Lieutenant-Governor to declare by Order in Council that any land which had never been alienated from the Crown and of which there appeared to be no owner should become Crown land unless cause, be shown to the contrary within a specified time. The Section goes on to provide that either before or after the time limited the Lieutenant-Governor may consider an alleged owner and if he allows the claim may, by Order in Council, declare that the Crown disclaims its title to the land.

Section 9 then follows and provides that a Board or Boards may be appointed by the Lieutenant-Governor "to decide all questions as to waste and vacant lands or lands alleged to be waste and vacant, and all cases of disputed Ownership of land in which a Papuan native is a claimant."

It was assumed, I think correctly, by all parties that the land referred to in Section 8, namely, "land which has never been alienated by the Crown and of which there appears to be no owner" was for the purposes of Section 9 "waste and vacant lands". It will be seen then that if there were a claim to lands which the Crown asserted was waste and vacant there were alternative ways in which the claim could be dealt with. It could be "taken into consideration" by the Lieutenant-Governor himself who could then disclaim or not as he chose. Alternatively, he could appoint a Board under Section 9 to decide the question. In the absence of other considerations a fair conclusion is that the Lieutenant - Governor might himself have dealt with the claim administratively or he may have appointed a Board where the claim was disputed to deal with it judicially.

These provisions, however, are not strictly relevant to the present enquiry. The relevant provision of Section 9 is that a Board or Boards may be appointed "to decide ............all cases of disputed ownership of land in which a Papuan native is a claimant" and no reference to such disputes is made in Sec. 8. To decide a dispute as to ownership of land is typically a judicial rather than an administrative function and on the face of it, therefore, the Board's function in respect to waste and vacant land and to disputed ownership of land appears judicial. Certainly it does not follow that because the Board exercises a judicial function in respect to waste and vacant land its function in respect to disputed ownership of land is also judicial for a body may, and in fact quite often does exercise both judicial and administrative functions. Nevertheless, some assistance in determining the true function of the Land Board may still be gained from Sec.8.

Part of the argument before me was that since the Board was to be guided by the principles of equity and good conscience and was not to be bound by rules of evidence or legal procedure, this was a clear indication that in relation to cases of disputed ownership it would not he acting judicially. If, however, it is accepted that the Board's function in relation to waste and vacant land is judicial, and in the exercise of that function it is guided by the same principles, then the argument is of little weight.

The legislative provisions from which the true function of the Board to he determined are not elaborate. By reference to Section 9 of the Land Ordinance and the Order in Council appointing the Board, it can be said that the Board was appointed to decide certain specified cases of disputed ownership of land in which Papuan natives were claimants. Further, it can be said that by Section 33 of the Ordinances Interpretation Ordinance, the Board was authorised to receive evidence and examine witnesses and to administer an oath to all witnesses legally called. It could also be said that since an appeal lay from the Board's decision it was guided by principles, the existence and application of which could be discovered by the Appeal Court.

Apart from these considerations one can, I think, look to the manner in which the Board in fact conducted its proceedings and, in the absence of objection assume that it was within the power of the Board to conduct its affairs in the way in which it did.

From a perusal of the record it appears that all the disputing parties were represented by Counsel. The claimant called seven witnesses and tendered documentary evidence. Counsel for the Administration then called five witnesses and tendered documentary evidence. In the words of the Board:

"During the course of the proceedings care was taken to give the native claimants confidence and encouragement to tell the Board all they knew in support of their claims and Counsel were permitted considerable freedom in the course of their task." It appears also that Counsel addressed the Board and whilst it is not expressly stated that the hearing was open to the public, there is nothing to indicate that it was not. After the hearing had concluded the Board gave written reasons for its decision and the decision was in respect to the disputes expressly referred to it and described in the Order in Council.

In all these matters the Board appears to have acted in the same way as a judicial tribunal would act, and I think I are entitled to assume at least that it was within the power of the Board to act as it did.

A number of matters were referred to as indicating that the function of the Land Board was administrative and not judicial. At least three of these were founded on the provision in Sec.9 that "the Board in giving its decision shall he guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure." These were:

(3) that the Board being required only to be "guided" by principles of equity and good conscience did not have to apply the general pre-existing law.

Somewhat similar provisions occur in other legislation and have given rise to some difficulties of construction. Some aspects of the problem in relation to another local enactment were considered by this Court in Romai Mond & Ors v. Robertson ^[9]

There is one thing which I think emerges quite clearly from the authorities and that is that a tribunal is not rendered incapable of acting judicially merely by the circumstance that it is guided by equity and good conscience and is not bound by rules of evidence or legal procedure.

On this aspect of judicial power the critical test seems to be whether on a proper construction of the relevant legislation the tribunal is exonerated from all rules of law and practice, or whether whilst required to apply the general law and to act only on the evidence it is freed procedurally and may inform itself as to the facts on the way it thinks best.

This distinction is seen by comparing the relevant statutory provision in the two cases to which I now refer.

In Moses v. Parker ^[10] the provision being considered was that "in examining into and reporting upon all.........applications the said Court .......... shall be guided by equity and good conscience only and by the best evidence that can or may be procured, although not such as would be required or be admissible in ordinary cases; nor shall the said Court ....... be bound by the strict rules of law or equity in any case, or by any technicalities or legal forms whatever."

In deciding that the examination and report of the Court was not a judicial decision admitting of appeal the Judicial Committee said "they are expressly exonerated from all rules of law and equity and all legal forms. How then can the propriety of their decisions be tested on appeal?" See also Canadian Pacific Railway Company v. Toronoto Corporation & Another ^[11].

In The Tramways Case (No.1) ^[12] the relevant provision was that "in the hearing and determination of every industrial dispute... "the Court ...........shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms and shall not be bound by any rules of evidence, but may inform its ..... ...mind on any matter in such manner as it .........thinks just." Of this, Isaacs J. said (at p.72) "that Section should be read as a procedure section and it does not except 'rules of law' as was the case in Moses v. Parker (supra) a circumstance that seems to me to have been the real point of judgment of the Privy Council."

In the same way Sec.9 of the Land Ordinance now under consideration can be contrasted with Section 27C of the Land Registration Ordinance 1924-39 of New Guinea, which expressly stated that the Court was not to be bound by the principles and rules of common law and equity.

I accept the distinction drawn by Isaacs J. and on that basis it is unsound to say as was argued here that the Land Board did not have to apply the existing law and need only be "guided" by principles of equity and good conscience.

It is of course true on a proper construction of Sec.9 that the Land Board was not bound by rules of evidence and legal procedure but as I have indicated the authorities show clearly enough that while these are considerations relevant in determining whether the Board's function was judicial or not they are by no means decisive.

Apart from the particular aspect with which I have just dealt other distinctions between Sec.9 and the relevant provision in Moses v. Parker (supra) should also be noted. The jurisdiction to decide a case of disputed ownership of land conferred by the former can be contrasted with the jurisdiction to examine and report conferred by the latter. Note also the use of the word "only" in the provision.

The existence of a right of appeal under Sec.9 is also significant in the general enquiry in view of the reasoning in Moses v. Parker (supra).

In United Engineering Workers Union v. Devanayagam ^[13] Lord Guest and Lord Devlin referring to Moses v. Parker (supra) and Canadian Pacific Railway Company v. Toronto Corporation & Anor (supra) said:

"These decisions indicate the importance of the provision in the Ceylon statute which gives a right of appeal from the tribunal on questions of law. In Moses v. Parker the Board, after observing that the court was expressly exonerated from all rules of law, continued:

'How then can the propriety of their decision be tested on appeal? What are the canons by which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong? It seems almost impossible that decisions can be varied except by reference to some rules; whereas the court making them is free from rules. If appeals were allowed, the certain result would be to establish some system of rules; and that is the very thing from which the Tasmanian legislature has desired to leave the Supreme Court free and unfettered in each case. If it were clear that appeals ought to be allowed, such difficulties would doubtless be met somehow.'"

In the present case it is clear that appeals arc allowed and the corollary is that there must be established a system of rules. It is true that the only requirement in the Act is that the orders of the tribunal must be such as appear to them to be just and equitable but this imports a judicial discretion, albeit a very wide one. If an order was made arbitrarily, this would be, as Tambiah J., says, a good ground of appeal. Experience shows that out of a jurisdiction of this sort there grows a body of principles laying down how the discretion is to be exercised and thus uniformity is created in the administration of justice. In this fashion as was said in Moses v. Parker, there emerges inevitably a system of law.

It is interesting to compare the United Engineering Workers Union ^[14] case with the present case. The question there was whether the President of an industrial tribunal was a judicial officer. The Judicial Committee concluded by a majority of three to two, that he was not. The majority set out a number of tests to be applied to determine the question in issue. The minority consisting of Lord Guest and Lord Devlin adopted different criteria although all accepted as a general proposition the definition of judicial power given by Griffith C.J. in Huddart Parker & Co. v. Moorhead ^[15], which is quoted later.

The importance of the case is that it seems to me whichever of the two sets of criteria suggested is applied to the present case the result would be the namely that the Land Board was a judicial tribunal.

I do not attempt to include a survey of the long list of cases, to many of which Counsel referred, in which similar problems have been considered. Many of them are discussed and summarized by Professor S.A. de Smith "Judicial Review of Administrative Action" 2nd Ed. pp.64-80.

Professors Benjafield and Whitman in "Principles of Australian Administrative Law", 3rd Ed. pp.103-4 refer to the Committee on Minister's Powers in 1932, (Cmd. 4060), and its formulation of the distinctions between judicial and administrative powers in the following terms:

"(a) A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites:

(2) the ascertainment of any disputed facts by evidence adduced by the parties, often with the assistance of argument on that evidence;

(4) a decision which disposes of the whole matter by a finding upon disputed facts and "an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. "

(b) An administrative decision is one in the making of which the authority is not required to employ any of the processes familiar in courts of law (hearing evidence and arguments, etc.) and where the grounds upon which he acts are left entirely to his discretion."

"..................usually it is emphasized that judicial power involves the conferment of a jurisdiction to decide controversies as to existing rights conclusively, according to a judicial procedure and by application of pre-existing law. Emphasis may be placed on any or all of these attributes."

If one omits the word "conclusively" which relates to the very point under consideration this is a fair description of the function of the Land Board.

Of all the possible attributes of judicial function referred to in the authorities quoted it seems to me that the only one which the Land Board is shown not to have had was power to enforce its decision and the argument before me was put so high as to say that this is an essential characteristic of judicial function and that without it the Land Board could not be said to act judicially.

This argument is based on a statement by Latham C.J. in Rola Company (Australia) Pty Ltd. v. The Commonwealth^[16]. "Reference is made to the frequently quoted statement of Griffith C.J. in Hddart Parker Co. Pty. Ltd. V. Moorhead [1909] HCA 36; (1908) 8 C.L.R. 330, at p.357, approved by the Privy Council in Shell Co of Australia Ltd. v. Federal Commissioner of Taxation (1931) A.C. 275 at Pp.295, 296:- 'I am of opinion that the words 'judicial power' as used in s.71 of the Constitution mean the power which every sovereign authority must necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action...

I am not satisfied that the words of Griffith C.J. are properly interpreted when it is said that they mean that a power to make binding and authoritative decisions as to facts is necessarily judicial power. I direct attention to the concluding words - 'is called upon to take action'. In my opinion these words are directed to action to be taken by a tribunal which has power to give a binding and authoritative decision. The mere giving of the decision is not the action to which the learned Chief Justice referred. If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that decision, then, but only then, according to the definition quoted, all the attributes of judicial power are plainly present. I refer to what I say more in detail hereafter, that the Privy Council, in the Shell Case (1931) A.C. 275, in which approval was given to the definition quoted, expressly held that a tribunal was not necessarily a court because it gave decisions (even final decisions) between contending parties which affected their rights."

With great respect I think that the reference to a tribunal being called upon to "take action can be read quite fairly as meaning no more then that the jurisdiction of the tribunal is invoked. I can see nothing to indicate that the Judicial Committee in adopting the statement of Griffith C.J. has read it in any other way. See Shell Company of Australia Limited v. Federal Commissioner of Taxation ^[17]; Labour Relations Board of Saskatchewan v. John East Iron Works Limited ^[18] and United Engineering Workers Union v. Devanayagam ^[19].

But in any event the conclusion which Latham C.J. reached in the Rola case was that because a tribunal is given power to decide questions of fact and because its determination is binding upon the parties to the controversy this does not necessarily show that judicial power as referred to in section 71 of the Australian Constitution has been entrusted to the tribunal.

This conclusion does not require a conclusion here that the decision of the Land Board was not a judicial determination. The position is as in the passed quoted by Latham C.J. from the Shell case in which the Judicial Committee agreed with a statement of Isaacs J. that "..............there are many functions which are either inconsistent with strict judicial action........ or are consistent with either strict judicial or executive action.......... If consistent with either............. The matter must be examined further.........."

In the present case there was a dispute between certain Papuan claimants and the Administration as to the ownership of certain land. The dispute was referred to the Land Board to decide. The Board proceeded to hear the dispute in substantially the same way as a Court would and by applying the existing law it reached a decision declaring which party owned the land. The decision was not in the form of a report or recommendation on which some other authority then could or was required to act. If the decision was not a judicial determination which bound the parties then the whole procedure was pointless and the right of appeal expressly conferred by Section 9 was completely unnecessary.

There are cases where a body making a judicial determination does not itself enforce the determination. Two examples are the Land Titles Commission itself and some Workers Compensation Tribunals where the determination is registered in another Court, e.g. a District Court, and enforced as a judgment of that Court. See Somadoj ^[20].

Unfortunately the Land Titles Commission did not record its reasons concluding that the decision of the Land Board did not bind the parties in collateral proceedings but having considered the arguments addressed to me I satisfied that the Board's decision was a judicial determination.

The next enquiry is to determine to what extent the decision of the Land Board bound the parties before the Land Titles Commission.

In my view the Land Board's decision that the land under dispute belonged to the Government, whilst a judicial determination, was not a judgment in rem in the sense that it determined the status of the land as distinct from the particular interests in it of the parties to the litigation. (Lazarus-Barlow v. Regent Estates Co. Ltd. ^[21]). It may be contrasted with a decision of the Land Titles Commission that land is native land and therefore subject to customary rules as to use, transfer and devolution without any identification of individual interests. Such a decision would appear to be a judgment in rem even without the assistance of the Land Titles Commission (Declaratory) Ordinance 1968.

The decision of the Land Board was not embodied in any formal judgment and the Board was not a Court of Record so that any estoppel arising would be what is commonly called "estoppel quasi of record" or issue estoppel. (3rd Ed) 212). With this qualification the position is as summarized by Dixon J., as he then was, in Blair v. Curran ^[22].

"The decretal order does not of course, deal with the title to the undisposed of three-twentieths share of income. The case is, therefore, not one of res judicata in the proper sense. The principle upon which the parties are precluded from denying to the clause an operation and effect sufficient to catch the undisposed of share of income is called estoppel by record or issue-estoppel.

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action that is, the title to the right established. Where the conclusion against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter (1855 4 E. & P 780 at p.794), the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous."

Before the Land Board both Laurina and Idibana sides of the Tubumaga Iduhu pressed their claims separately while before the Land Titles Commission the appellant Daera Guba appeared as representative of both sides of the Iduhu. For that reason it appears that the area known to the Land Titles Commission as Era Taora may have included at least part of the small southerly part of Vanama (marked F on Exhibit X) identified before the Land Board.

The decision of the Land Board by its terms purports to determine the ownership of all the land described in the Schedule to its terms of reference and this included for all practical purposes the whole of the land within the large rectangle known as Granville East. But it appears that different considerations apply to different portions of land in this area.

As a result of the abandonment by the claimants of part of their claim the contest before the Board was primarily concerned with the land within the rectangle WXYZ on Exhibit X. The fact that Counsel in his address indicated he could not support a claim to land outside the smaller rectangle WXRS seems to me of no significance. The evidence had been heard and Counsel from the terms of his concession apparently had no authority to make any concession in relation to the land referred to. In effect he was I think suggesting an alternative finding and I think it quite clear that the Board's determination of ownership was made at least in respect of the land enclosed in the rectangle WXYZ.

The next enquiry is as to the land outside that rectangle WXYZ but included in the claims as marked on Exhibit X. As previously noted claimants' Counsel announced that "all areas which had been claimed by the various native claimants whom he represented and which lay outside a rectangle on the plan lettered WXYZ were now abandoned by his clients".

There was no suggestion that Counsel made that abandonment without authority and in view of Mr. Champion's findings it was a predictable concession. The Land Board acted on the abandonment in giving its decision although it is reasonably clear that on the view which the Board took of the evidence before it it would have found against the claimants even if the abandonment had not been made.

The general principle applicable is stated by the Judicial Committee in Hoystead v. The Commissioner of Taxation ^[23] as follows:

"..........In the opinion of their lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain, circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted and there is abundant authority reiterating that principle. Thirdly, the same principle - namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties' rights to rest applies and estoppel occurs."

Subject to the reservation to which I refer hereunder my view is that the estoppel raised by the Board's decision operates in respect to the present Tubumaga claim to such of Era Taora as falls within the Granville East rectangle.

The reservation I make relates to the area G on Exhibit X. Although as I have said the terms of the Board's decision are wide enough to cover this area and the area H, those terms must I think be read in conjunction with the statement on the record by the Board that "areas G and H are no longer of concern to the Board. Strictly they were its concern because the Board had been charged with the duty of determining whether there was a dispute as to the ownership of them and, if so, who were the owners. There might be a nice argument whether the Board should be understood as saying it was not concerned to investigate title because the claimants conceded title in the Administration or as saying in effect that it refused jurisdiction. However, it is unnecessary for me to consider the point because the Crown Solicitor conceded that in respect to that portion of Leke Boio awarded to the claimants by the Land Titles Commission (being part of G on Exhibit X) the Administration relied for its title only on the 1886 acquisition of Granville East lands. The area H is not involved in these proceedings.

I add that although there is nothing before me to show that the area shown as Leke Boio was claimed before the Land Board by the Tubumaga clan the submissions of all counsel were made on the basis that it was so claimed.

I turn now to further submissions on the law relating to the acquisition of the land. A number of submissions were made on behalf of the native claimants as to the validity or enforceability of the arrangement. Firstly, it was said that the acquisition purported to be a purchase of lands from the native inhabitants and that such a purchase was beyond the power of the Special Commissioner. Secondly, it was argued that the officers of the Protectorate could concern themselves only with British subjects and subjects of foreign States and not with the native inhabitants of the Protectorate.

A third submission was that the transaction was invalid or unenforceable, as not complying with the formal requirements of the existing law as to contract and dispositions of land. Any agreement, it was stated, was required by the Statute of Frauds to be in writing and any transfer was by Sec. 3 of the Real Property Act 1845 of England required to be by deed.

As to the second argument I do not see why it follows that if the Crown in a Protectorate were concerned only with persons other than the native inhabitants it is precluded from having any dealing with the native inhabitants. At the very least the officers of the Crown must have been able to obtain food and shelter and to make engagements accordingly. But in any event for reason, which I will elaborate I do not think it is correct to say that the Crown had no jurisdiction over the local inhabitants or that its officers had no power to acquire land from them.

I deal now with the first contention that the Commission of the Special Commissioner, Mr. Douglas, did not empower him to acquire land. The Commission, a copy of which was before me, recites that Her Majesty had been pleased "to take under Our protection and jurisdiction" the Protectorate and that Her Majesty is "minded to make provision for the conduct of Our affairs within the said Protectorate".

The Commission then goes on to appoint the Special Commissioner to acts "in Our name and on Our behalf and in all respects to represent Our Crown and authority in matters occurring therein and further to take all such measures and to do all such matters and things in the said Protectorate as in the interest of Our service you may think expedient......" The Commissioner was then required to act subject to instructions, to promote religion and civilization among the native inhabitants, to take care to protect them in their person and in the future enjoyment of their lands and their possessions, to restrain violence and injustice against them and to appoint officers if provision had been made for their payment.

The letter of instructions accompanying the Commission does not restrict the wide terms of the Commission and indicates that the Protectorate would in due course be added to Her Majesty's Dominions. Port Moresby had already been chosen as the seat of government (Seymour Fort's report, p.8) and obviously land for a settlement would be needed. In these circumstances and bearing in I have no difficulty in reading a power "to do all such......things........ as in the interest of Our service you may think expedient" as wide enough in their natural meaning to authorize the acquisition, for the purposes of a settlement, of land from the native inhabitants who were ready and willing to part with it and who were paid what was then thought to be fair compensation.

I refer now to the considerable restrictions under which it was said the officers of the Protectorate carried out their duties.

In considering this problem it is necessary to note that the extent of the powers of the Crown in a Protectorate has been fully spelt out only in this century. The old view, and that put forward by the claimants, appears to have been that in a Protectorate the powers of the protecting power in respect to internal government were such as were acquired by treaty with the existing indigenous government. Where there was no effective government with which a treaty could be made the capacity of the protecting power to intervene in internal affairs was necessarily very restricted. It was argued that jurisdiction in a Protected State must be extra-territorial because the meaning of a Protected State is that the territory remains independent.

This view was challenged by Sir Henry Jenkyns in "British Rule Jurisdiction Beyond the Seas" published in 1902 after his death. The following extracts will indicate the argument:-

"Apart from the Indian group, there are two types of British protectorates: one where there is en organized government under a sovereign, with more or less distinct boundaries; the other where there is no organized government over the whole of the territory, but where either a petty chief governs his own tribe or sometimes a combination of several tribes, or where there is even still less civilization and merely tribes perhaps nomad. In these cases there are often no specific boundaries. But these two types run into each other, so that it may be difficult in some cases to determine whether a protectorate belongs to one or the other". (p.172).

"In the first type of protectorates there is a native sovereign with an organized government capable of sending and receiving diplomatic representatives and making a treaty. In the best organized protectorates a British officer, called a Resident, resides in the country and advises on all matters of government, legislative or executive, while the British Government undertakes to maintain internal as well as external peace; but does not directly interfere with the internal government. And the natives of the state continue under their local law and local courts and administration.

In protectorates of the second type there is no sovereign or organized government. What may be termed the tribal government is left untouched, but the general government of the country, i.e. the maintenance of peace, is carried on by a British officer under the name of commissioner or consul-general. There is no general treaty, though conventions are usually made with the petty kings or tribal chiefs by which they cede their territories or surrender external and internal sovereign rights to the British Government. In these protectorates there is no legislation or exorcise of judicial functions properly so called for the natives, but the British official requires the chiefs to observe certain rules in governing their tribes. Thus he prohibits war and slave-trading.

In both types of protectorates external foreign relations are entirely managed by the British Government; and strangers, whether British subjects or other Europeans, are mostly exempt from obedience to the native law and the native courts or officials.

As to the internal government, the types differ as regards the amount internal sovereignty which is assumed by the British Crown as protecting state. In the first type hardly any of the internal sovereignty is assumed directly, although in the Malay states mush indirect influence may be exercised through the Resident.

But in protectorates of the second type a very large amount of internal sovereignty has been assumed and exercised. As regards the position of British subjects in a protected state of either type the internal sovereignty is only a matter of British municipal law and no difficulty arises about it in either type of protectorate if the municipal law is in fact made sufficient." (pp.173-4).

Jenkyns argued, following Sir Henry Maine, that the rights of sovereign both external and internal were divisible. He goes on:

".........., the jurisdiction will depend on the existence in fact of the assumption of the protectorate, and not on the question whether some naked chief living in the country is or is not sufficiently civilized to cede jurisdiction, or has or has not by some informal agreement in fact ceded it. It really seems absurd that the question of the jurisdiction of a British court should depend upon such points." (pp.179-180).

As to the formal division between acquisition by conquest, cession or occupation he says:

"It is difficult to see why sovereignty in each case can be acquired by one alone of the above modes, namely, conquest, cession, or occupation. A strong power may have acquired by conquest one part of certain territory, or a protectorate over certain tribes in it, and the natives of the adjoining part of that territory, or other tribes in it, may yield obedience to that power on account of fear without any actual cession. In such a case the sovereignty of the protectorate may be acquired partly by conquest and partly by sufferance without there being the possibility of determining under which head the acquisition is to be placed.

If, in a region like New Guinea or the centre of Africa, a British officer enters and assumes control of the territory in the name of the either with or without agreements with the tribes dwelling there, is not that to all intents and purposes as much a conquest as if the territory was acquired by the defeat of the former sovereign and the consequent annexation of the country?"(p.181)

The modern view, which appears to accept this line of argument, is stated by Sir Kenneth Roberts-Wray in "Commonwealth and Colonial Law" (lst Ed.1966) in the following extracts:

"The legal view as to the extent of the powers to which the establishment of a Protectorate in an "uncivilised country" entitles the protecting government has varied materially during the past hundred years. The original view of English law was that the Sovereign could not exercise jurisdiction in a foreign country over anybody but British subjects or nationals of a foreign Power whom that Power had consented to submit to British jurisdiction. It followed that in no Protectorate could jurisdiction be obtained over subjects of a civilised foreign Power without the consent of the Power concerned, while in protected countries not possessing any settled government, jurisdiction could not be obtained even over natives of the protected territory. Certain Continental governments, on the other hand, notably those of Germany and France adopted a more practical view that the establishment of a Protectorate in an uncivilised country imported the right to assume whatever jurisdiction, over all persons irrespective of nationality, might be needed for the effectual exercise of the Protectorate." (p.114).

"It is now established that the jurisdiction claimed and internationally, recognised is unlimited, except in so far as limits are imposed by any obligation of the protecting Power under treaties or agreements with any local rulers or with other Powers. Moreover, so far as municipal law is concerned, the Courts will not call in question the jurisdiction of Her Majesty to make by Order in Council such provision as has in fact been made, and the control exercised in fact is in no way less effective than that exercised in a 'Crown Colony;"' (p.116).

See R. v. Crewe ^[24]; Nyali Ld. v. Attorney-General ^[25]; Sabally & Anor v. Attorney-General^[26].

"Although the jurisdiction of the Crown in the protectorate is in law a limited jurisdiction, nevertheless the limits may in fact be extended indefinitely so as to embrace almost the whole field of government. They may be extended so far that the Crown has jurisdiction in everything connected with the peace, order and good government of the area, leaving only the titles and ceremonies of sovereignty remaining in the Sultan. The courts themselves will not mark out the limits. They will not examine the treaty or grant under which the Crown acquired jurisdiction; nor will they inquire into the usage or sufferance or other lawful means by which the Crown may have extended its jurisdiction. The courts rely on the representatives of the Crown to know the limits of its jurisdiction and to keep within it. Once Jurisdiction is exercised by the Crown the courts will not permit it to be challenged. Thus, if an Order in Council is made affecting the protectorate, the courts will accept its validity without question: see Sobhuza II v. Miller and Others (1926) AC 518, 528; 42 TLR.

It follows, therefore, that in the present case we must look, not at the agreement with the Sultan, but at the Orders in Council and other acts of the Crown so as to see what jurisdiction the Crown has in fact exercised; because they are the best guide, indeed they are conclusive, as to the extent of the Crown's jurisdiction." (p15)

"...........these courts will not consider the limits of the jurisdiction granted by treaty or otherwise to Her Majesty. Such limits may be extended by sufferance and usage and courts will and must assume that the legislative or other acts in question are within the jurisdiction granted. All that they can do is to look at the instrument manifesting the exercise of the jurisdiction to see whether it has been lawfully exercised, according to the law in force." (p. 33)

Here we are concerned with an executive and not a legislative Act. It seems to me that terms of the Commission are wide enough to authorize the acquisition of land from persons willing to part with it on payment of reasonable compensation, it is not open to the parties in this Court to say the Crown had no power to grant a commission in those terms nor that some supposed limitation on the Crown's jurisdiction in the protectorate requires a reading down of the general power given by the Commission.

The third submission to which I have referred was that the law applicable was the law of England as at 1886 and that a purchase of land in the way this land was said to have been acquired was invalid or unenforceable.

It is clear that the general rule that settlers abroad take English law with them applied to settled colonies. As to protectorates, Roberts-Wray says at p.542-3 that the well-established colonial rules have never been stated in terms embracing protectorates. He goes on to say in effect that in respect to less-developed territories — as opposed to those having a properly constituted government and legal system - the situation in a protectorate is for practicable purposes virtually identical with that in a territory acquired by cession or conquest, namely that the law in for at the time of cession or conquest remains in force unless or until altered under the authority of the sovereign. This of course does not determine by what rules (lf any) the formal validity or enforceability of dispositions of land by local inhabitants to the protectorate were to be determined, but it does suggest that the full requirements of the laws of England were not applicable.

If the transaction must be regarded as a disposition of land pursuant to contract and if for any reason English law were applicable then it would be only that portion as was applicable to the situation and condition of the Territory. Roberts-Wray at p.552 says, "The Statute of Frauds was held not applicable in Manitoba or in East Africa because (inter alia) it is not a statute of general application and few of the inhabitants were literate. The apparent reason for applying it in a Nigerian case - because it was pleaded by an illiterate against a literate party - seems to be very dubious. "Reports of the authorities for this statement to which he refers are not available to me.

In Nyali's case where by treaty the common law applied subject to such qualifications as local circumstances rendered necessary, Denning L.J. dealing with the prerogative of the Crown to grant a franchise in the Kenya Protectorate expressed the view that the grant "need not be made by matter of record such as a Charter or Letters Patent nor does it need any formal enrolment." Later he states that the grant can be made by agreement in writing without any formalities and no doubt it was appropriate to the circumstances of the Kenya Protectorate in 1929 that the grant by the Crown of a franchise should be in writing.

Here the argument is that by the law, of England as it existed in 1886 both the Statute of Frauds and Sec. 3 of the Real Property Act 1845 would have applied to this dealing as being a disposition pursuant to contract, but in my view neither of these provisions on which the claimants relied was applicable in the circumstances of the Protectorate in 1886.

For myself I think it a sufficient answer to the claimants to say that the acquisition of the Territory as a Protectorate was an Act of State by sovereign power and that existing private rights continued only so far as they were recognized. See the dictum of Lord Dunedin in Vajesingji v. Secretary of State for India ^[27] as quoted by Viscount Simon in Hoani v. Aotea Land Board ^[28].

The Officer acquiring the land was empowered to do so by his Commission. In effect by executive act the land was taken possession of by the Crown for its own purposes and to that extent it refused to recognize pre-existing rights in the land as against the Crown. The true nature of the acquisition would to a large extent be concealed by the obviously prudent and politic course followed of taking only such land as the inhabitants were prepared to give up and of paying compensation which was agreed with the inhabitants as reasonable.

Two further comments should be added. Firstly, some doubts were raised in the early years of the territory by Commodore Erskine's regulation that no settlement or acquisition of land was on any account to be permitted (1886 Report Appendices p.28). I think the Crown Solicitor is right in maintaining that this must be read as referring to private settlement and acquisition. (See correspondence 1886 Report Appendices p.25-30). It should be noted that the Rev. Lawes' attitude was that "to compel a native to sell land which he objects to part with would be a direct contravention of the terms on which the Protectorate was proclaimed and accepted by the people on the 6th November 1884" (p.26 supra).

Secondly, there is nothing to show whether any particulars in relation the acquisition of the subject land were ever recorded in an instrument of attestation under the Crown Lands Ordinance 1890. It should be noted however that Sections 18 - 20 of that Ordinance assume that valid purchases and leases of land and acquisitions of interest in land could be made on behalf of the Crown during the Protectorate and Section 21 goes a good way towards recognizing that the original transactions particulars of which would be recorded in the instrument of attestation may not be in writing.

Having dealt with the foregoing general legal problems I propose at this stage to particularise the various areas comprising the land the subject of this appeal and then to turn to the facts.

By reference to the plans and Exhibits to which I have referred, Counsel identified the land the subject of this appeal as being comprised of a number of pieces to each of which different considerations apply. I now describe these pieces, disregarding for present purposes any minor variations in boundaries. I should add that Counsel identified five pieces but I have made a further sub-division and added (3) hereunder.

To assist in the identification of the six areas to which I am about to refer I have annexed to these reasons a rough diagram on which each is marked explain its inaccuracies by pointing out that it is not to scale and is not intended to mark the boundaries of Era Taora as claimed or awarded. Its purpose is merely to illustrate that by reference to the large rectangle which is of Granville East, the two smaller rectangles WXYZ and WXRS and the area before the Land Board as Leke Boio the land the subject of these proceedings (which is indicated by a broken line) can be divided into six different areas. These are:

1. The small almost triangular piece of land lying to the east of Castlereagh Street. See Commissioner's plan. Of this it can be said:

(b) it is not known whether any claim was made to it before Mr. Champion, or if so by whom;

(d) it was not included in the area claimed by any claimant before the Land Board;

(f) it was included in the area claimed by the Tubumaga clan as part of Era Taora before the Land Titles Commission;

2. That portion of Era Taora and perhaps Vanama shown on Exhibit X as falls within the smaller inner rectangle WXRS. This piece:

(b) is within the area found by Mr. Champion to be owned by representatives of the whole Tubumaga clan;

(c) was claimed before the Land Board by the Tubumaga Idibana as to so much of it as is marked Era Taora on Exhibit X and by the Tubumaga Laurina as to so much of it as is marked Vanama.

(e) was included in the area claimed by the whole Tubumaga clan before the Land Titles Commission;

3. That piece of Era Taora which falls outside the smaller internal rectangle WXRS but inside the larger internal WXYZ.

This land is subject to the same considerations as the portion of Era Taora referred to in (2) above except that during the hearing before the Land Board counsel for the native claimants conceded that he could not support his clients'' claim to it.

4. That portion of Era Taora shown on Exhibit X as lies to the south and west of and outside the inner rectangle WXYZ but-excluding any portion to the west of old Lewes Street (see 5) and any portion of Leke Boio (see 6). As to his area:

(c) it was originally claimed by the Tubumaga before the Land Board to belong to the Tubumaga but the claim was "abandoned" by the claimant's Counsel at the commencement of the hearing;

(e) it was claimed by the Tubumaga before the Land Titles Commission to belong to the Tubumaga;

5. That portion of land lying to the west of the old Lewes Street as was claimed before the Land Titles Commission to be part of Era Taora. This piece:

(a) while not claimed to be within the 1886 purchase is claimed by the Administration to have been covered by the 1901 Order in Council declaring it to be waste and vacant and therefore the property of the Crown;

(b) is thought by Mr. Champion probably to have been included in the 1866 purchase;

(e) was claimed before the Land Titles Commission as being part of Era Taora and belonging to the Tubumaga;

(f) was found by the Land Titles Commission not to lie within the boundaries of the land described in the Order in Council of August 1901 but to be part of Era Taora belonging to the Tubumaga.

6. That portion of the area marked Leke Boio on Exhibit X as was included in the area of Era Taora claimed before the Land Titles Commission. As to this:

(e) it was claimed by the Tubumaga before the Land Titles Commission to be part of Era Taora and to belong to the Tubumaga;

My view as already expressed is that the Tubumaga claimants are estopped by the Land Board's decision from now setting up a claim to title to the pieces of land identified in the preceding pages as Nos. 2, 3 and 4. This still leaves for determination the Tubumaga claim to pieces 1, 5 and 6 and the Giakone claim to all six pieces. This will involve consideration of a number of matters relating to the original acquisition in the days of the Protectorate and to the Oder in Council of August 1901. I propose to deal first with the facts relating to the 1886 acquisition.

The Administration has based its claim to title to what I refer to loosely, as a purchase in 1886 of the large rectangle described as Granville East. It is conceded that the area purchased did not include areas to the east and west the large rectangle so that the areas I have numbered as 1 and 5 are temporarily excluded from consideration.

As already noted the title to the Granville East lands was investigated by Mr. Champion in early 1954 and by the Land Board in October 1954. The proceedings now under appeal were commenced in 1966 and the decision of the Land Titles Commission was given in 1968.

The records of these various proceedings show that each of the three tribunals which has so far investigated the facts concludes that a portion of Granville East was purportedly sold to the Administration.

Mr. Champion held that approximately 95 acres were sold by the native owners to the government in 1886 but that the area so sold did not include the whole of Granville East but only that area less the internal rectangle WXYZ. On this basis, some 58 acres of the Granville East rectangle were purchased.

The Land Board was convinced that an area of approximately 95 acres was purchased by the Government from the native owners in 1886 and the Board's decision identified the area purchased as being the whole of the Granville East rectangle.

The Land Titles Commission was concerned only with Era Taora which included some land in both the Granville East rectangle and the inner rectangle WXYZ. The Commission held Era Taora was at all relevant times owned by the Tubumaga clan but that there was a purported sale of that land to the Government by the Giakone clan.

As to the areas numbered 4 and 6 then, all three tribunals reached the same conclusion, that purportedly it had been sold by natives to the Government, but the Land Titles Commission further held that the sale was not by the true owners.

It is this last finding which is challenged by the Administration on this appeal. The Crown Solicitor in fact accepts that land in Granville East was owned by the Tubumaga clan or its predecessors and that land in the same area was sold by the Koitapu people (which includes the Giakone clan) but does not accept that the Giakone purported to sell what was in fact Tubumaga land.

His contention in its final form as against both claimant groups was that an area of approximately 95 acres at Granville East was acquired groups in 1886; that in this area was land owned by the Motu people (which would include ancestors of the present Tubumaga claimants) and land owned by the Koitapu (which would include the ancestors of the present Giakone claimants since the records show that almost everyone living in the area received payment in the course of an elaborate transaction it is inconceivable that the acquisition could have bean made without the Motuan people being aware of what was happening and highly probable) in view of the precautions taken, that the true owner of each parcel, Motuan or Koitapuan, was identified and paid. It will be seen that this argument does not require any determination as to which group in fact owned Era Taora.

One of the first problems encountered in dealing with the facts related the evaluation of the mass of documents, hearsay, accounts of traditional history and direct evidence, all of which in this jurisdiction is called evidence.

It is I think desirable to distinguish between verbal evidence of primary facts, that is the facts which the witnesses actually observed with their eyes or knew of their own knowledge in their own lifetime" (T. Adjoibi Kojo II v. Bonsie ^[29]) and accounts of traditional history. Where no records are available the method of testing traditional history by reference to the primary facts is commented on by the judicial Committee in T. Adjeibi Kojo (supra).

Some method of evaluating accounts which are said to be of traditional history should be sought not only for the reason, as the Judicial Committee suggests, that honest mistakes can occur in the transmission of the account by word of mouth from one generation to another but also because of the danger that an account can be coloured by a desire to represent the actions of one's ancestors in the best light and the danger that an account may be reconstructed to meet the immediate self interests.

In the present case, it is difficult to test the conflicting native claims to exclusive ownership in 1886. No witness had personal knowledge of events at that time. There was however evidence by each claimant group in support of its claim to ownership of occupation by it of parts of the disputed land at various times since 1886 but each explained any occupation of the other as being by leave given in consideration of ties of friendship and marriage.

The position is further obscured by direct verbal evidence that both groups at some time after the administration's alleged acquisition remained in possession of parts of the land with the consent of the Administration and that the Administration had in fact dealt with portions of the land - the evidence does not show how much - as if it were owner.

In a situation such as I have described the documentary evidence, especially the officia1reports made during or soon after the alleged acquisition in 1885 and 1886, has a special value.

Whether these documents are public documents for the purpose of the hear-say rule it is unnecessary to decide because they were clearly admissible the Land Titles Commission. However, these reports have certain characteristics which add to their weight. They were concerned with a public matter and were retained, published, and thereafter were available for public inspection. In addition, they give a contemporary account by persons under a duty to report on matters in which they had no personal interest and the reports were published long before any controversy arose.

I have no doubt that these contemporary official records should be accorded considerable probative value where the accounts of traditional history cannot be reconciled with them.

This appears to have been the approach of Mr. Champion who found he could place little reliance on the verbal evidence and who relied more heavily on the documentary evidence. Similarly the Land Board felt that the "only real and authoritative evidence" was that extracted from the documents.

He did not expressly indicate what weight he gave to the official reports. He did not state why he rejected the substance of the Land Board's findings but did say he reached his own conclusions without regard to Mr. Champion's report.

Referring to his first four findings, that the Tubumaga clan owned the land and permitted members of other clans to use it but never sold it and that the Giakone clan although having no rights in the land purported to sell it, he said, "Findings (1) to (4) stem from my view of the facts and generally speaking I accept the evidence of the Tubumaga clan". But it is difficult to see how any preference for the Tubumaga evidence could assist in deciding the critical questions as to the nature and extent of the transactions which occurred in the year 1886 unless he was preferring the Tubumaga traditional history not only to the Giakone traditional history but also to the official contemporary records. For reasons I have discussed this approach would, in my view, be wrong.

The least that can be said is that the failure of the Chief Commissioner to refer to the records raises an uncomfortable doubt that ho may not have given them the force they deserve.

I record that in considering the facts I have given close consideration to each of the findings made by the Chief Land Titles Commissioner and the reasons he recorded for his finding No.5. Unfortunately there is little to show the basis upon which findings numbered 1, 2, 3, 4 and 6 are founded.

I commence my review of the facts relating to the acquisition by saying that I accept the finding of the Land Titles Commission supported by the two tribunals which had earlier considered the dispute, that there was in 1886 a purported acquisition from the natives of a substantial area of land in the Port Moresby area. Further I accept that at least part of the land dealt with lay in the Granville East rectangle. The Land Board, and by implication the Land Titles Commission, concluded that the land dealt with included land in the internal rectangle WXYZ, while Mr. Champion concluded that it did not. For reasons which will appear it is unnecessary for me to express any view on this conflict. Putting aside this conflict as to whether land was acquired in the rectangle WXYZ and accepting that there was a dealing of the nature described, I come to the problem of identifying the persons who dealt with the government officers and their right to do so.

It will be recalled that the report on events during the term of office of Sir Peter Scratchley was prepared by his private secretary, Mr. Seymour Fort. This report is dated 30th March 1866 and contains the following:

"A considerable area of land, comprising the best sites in the harbour and nearly the whole of the frontage to the sea, was, with but small difficulty, purchased from the natives. In summoning together the claimants for this land, and in obtaining their assent to parting with their property in perpetuo, and thus securing a sound title for the Government, the assistance rendered by the Mission was invaluable. A portion of this was set aside for Government buildings; part was reserved as a site for a future township, and a portion was also to be held as a native reserve."

"In addition to the land at Port Moresby purchased by the Government, a large tract of land, comprising nearly one half of Stacey Island, was purchased at South Cape .............In this case, the transaction was simplified by the fact that there was only one owner, and that the rest of the tribe recognised his individual right to dispose of the land. No title deeds were drawn up, nor did the seller attach his name to any document; a statement was signed by the Rev. J. Chalmers, the native interpreter, and others, to the effect that the native (Pusa) had a sole right to the land, that he had parted with it voluntarily, and that he and the tribe were satisfied with the payment given........."

An illustration of the care taken to identify the owners of the land is afforded by the following extract:

"There was a small piece of land at port Moresby for which 30 or 40 members of a tribe alone claimed payment. These, however, were not the whole of the tribe but only a part, and their apparent right to receive the money was acquiesced in by the rest of the tribe. At South Cape, however, the independent right of one individual and he was not a chief, to dispose of a large area of land was recognised by the whole tribe no one, not even the chief of that tribe, putting forward any claim for payment.....; while again, for the land adjoining, there were many owners out of the tribe, each of whom, including the chief, would have had to receive payment in settlement for any land sold. At Kabadi, a piece of land belonged to family group, of which the district chief was not the patriarchal head, and he was consequently, on the sale of the land, only able to veto the transactions but could not stop the transactions in connection with the sale of the land."

I turn now to the Annual Report of the 31st December 1886 by the Special Commissioner, The Honourable John Douglas, who succeeded Sir Peter Scratehley. At page 7 appears a significant piece of information regarding the population of the Port Moresby area:

".........The native village of Hanuapata (sic) built in the shallow water between the island of Elevara and the rising ground on which the Mission premises are situated, is a collection of somewhat fragile tenements built on piles. The native population numbers about 800 men, women, and children, the children being pretty numerous. There arc some small villages at the head of the harbour and on the hills lying to the north-west of the Mission Station. The native population thus indicated, including those occupying the litteral of the bay, and the detached villages on the hill-sides, does not exceed 1,200. "

The Special Commissioner then goes on to deal with the surveys which had been effected at Port Moresby:

"The late Special Commissioner authorized Mr. Assistant Deputy Commissioner Musgrave to purchase certain portions of land from the natives. These instructions were somewhat enlarged by me and have resulted in the acquisition of a continuous block of land amounting to some 900 acres, which will be quite sufficient at present for purposes of immediate settlement, whenever it is deemed expedient to authorize it. It seemed to me to be very desirable that the land thus acquired should be defined by survey, and for this purpose I secured the services of Mr. Cuthbertson, a gentleman who had carried out similar work in British North Borneo and in Northern Australia at Port Darwin. The surveys have been carried out by an efficient party of six Europeans, at a cost of £787. Mr. Cuthbertson has now completed the plans, which are well executed, and include a feature survey of the country for eight miles out of Port Moresby on the road to the Laloki crossing."

Annexed to the 1886 Annual Report in Appendix C are two reports by the surveyor, Mr. Cuthbertson. The first report dated 21st September 1886 contains the following:

"The township of Granville East lies about eighty chains north-easterly from Granville West, and is, so far, cut up into eight sections. The outside roads are two chains, the inner ones being one chain. The allotments are all quarter-acre and are marked with hardwood pegs, the ground being mostly of a blue-clay character; the trenches are cut in the soil. Here there are only two sections - Nos. III and IV. - cut up into allotments. The others can easily be done with the chain should be required and no surveyor here (sic). The two-chain road named Lawes-street, on the western boundary of the town, will be the main thoroughfare until such time as a road can be made facing the beach as surveyed through the mangroves, where there is a firm bottom, and will eventually make a first-class road but at a considerable expense. This town is well supplied with water, there being beautiful springs at the north-eastern corner, where I have surveyed a considerable road deviation which takes in the springs and allows a good roadway on either side of them."

"I have laid out townships, roads, &c., as nearly as possible according to instructions received from either yourself or Mr. Douglas. In some cases I have deviated a little, where in my opinion there has been a more suitable course."

"Plans of the two townships and a general plan of the whole survey completed I forward herewith, which I trust will meet with satisfaction."

The second report of 27th October relates to the road surveyed to the Laloki River which task he had by then completed.

Also attached to the 1886 report are two memoranda from Mr. Musgrave relating to the acquisition of land. The first memorandum dated 8th September 1885 clearly refers to a purchase made on that day. Relevant extracts are as follows:

"Mr. George Hunter, Government Assistant, with the co-operation of the London Missionary Society's teacher, Ruatoka, whose services were kindly allowed by the Revs. Messrs. Lewes and Chalmers, negotiated for the purchase of certain instalments of land in the proposed Government and commercial division of the settlement with twenty-eight Motu and Koitapu natives.

2. The teacher, Ruatoka, having been here since 1873 (twelve years), and being thoroughly conversant with the local natives and their customs especially in their dealings with foreigners, for the sale of land), was a most valuable agent. Mr. G. Hunter also possessed considerable experience of natives."

"4. At 2 p.m. the native vendors gathered at the teacher's house, and their names having been called over and noted carefully, the Rev. Mr. Lawes addressed them at my request. He informed them that I was an officer of the Beretani Government, was allowed to buy land, and had been directed to do so by the Kavana, or great chief. He said, at my request, that 'I would buy both the bad land and the good land when they were inclined to sell, and that I intended to try and lead the water into their village by-and-by, and save them trouble in the dry season.' Each landowner then received his payment and left quite satisfied, and with the intention of selling more land to Mr. Hunter for the Government."

The second report dated 9th November 1886 appears to summarize the acquisitions made until that time. The report opens as follows:

"In compliance with Your Excellency's verbally expressed wish, I have the honour to report upon the acquisition of Government lands in British New Guinea up to this date.

The first acquisitions on the part of Protectorate officers were the sites of the Government bungalow, comprising about an acre, and a strip extending in a southerly direction from the Argus Villa for about twenty chains along the harbour, and about four chains in width. These plots were secured from the Motu and Koitapu people of the villages adjacent to the London Mission Station, in the same manner that the representatives of that Mission originally obtained sites for their buildings and gardens. This is by giving to the claimants of the ground desired certain articles in barter, such as hatchets, gaudy cloth, tobacco, &c."

I note particularly the reference to the "Motu and Koitapu people of the villages adjacent to the London Mission Station."

"No form of 'Memorandum of Land Purchase' has ever been supplied to me, nor did I receive any written instructions other than the authority mentioned."

"3. On the day following (9th September, 1885), a narrow strip of land was purchased to connect the bungalow site already described in my despatch to Her Majesty's Secretary of State of the 1885, with the beach purchases."

"6. On the 14th and 15th of October, Mr. Robert Hunter and Ruatoka the Mission teacher, bought from the Koitapuan natives of the village of Verentu or Badili, certain lands now known in the local surveys as the Badili lands. I did not perambulate the boundaries myself, but I was present, and the Rev. Mr. Lawes also kindly attended at the payment of the claimants. We were assured of their being satisfied with the completion of their sale. One hundred and twenty eight vendors had to be paid for 333 acres of land."

"8. In January two more small plots of uncultivated land were bought at Port Moresby - namely, about half-an-acre to the south of and adjoining the bungalow site, and a piece of about the same size for a boatman's cottage site. This last was a continuation of the beach lands. The price paid was £4. 2s.10d. for these plots."

"9. No further purchases of land were made until after Your Excellency's arrival here in June last. Acting upon your memorandum of instructions with regard to the acquisition of lands in conjunction with the surveys at Port Moresby, which it was most important to have effected, Mr. Robert Hunter, as an agent for the Government, accompanied by the Government interpreter and the present chief of the local village, Ah-oo-doo, made purchases from time to time, as other duties permitted, to the extent of about 222 acres. All the cultivated grounds that interrupted the road reserves have been bought at a full price, but the natives have had it explained to them that in future, when the Government make roads for their benefit as well as for the foreigners' convenience, they ought to grant land free for that and other public purposes."

"Mr. Hunter began purchasing on the 8th July, and ceased by my direction on the 8th October, having secured all the land required within the surveyed portion of the settlement, newly entitled 'Granville'. The recent acquisitions may therefore be summarised as follows-

Purchased Lands.	Acres
Government domain and bungalow site, &c., of 9 acres .....	52
Granville East, township .....	95
Ela Beach, suburban lands	22
Granville West, township ....	50
Badili lands ..........	333
	552

Unpurchased Lands.
Paga Hill Reserve ......	50
Goldie Law Reserve ........	236½
Cemetery (assumed for public purposes, within Native Reserves) ....	3
Government Station (late Mr. A. Goldie's holding) ........	2½
Total acreage	844"

"Your Excellency was an interested eye-witness of the purchase of a portion of garden ground, and is fully aware of the exceptionally troublesome and tedious nature of acquiring and by the present method. The lands purchased at Port Moresby already stated at 552 acres, involved twenty-seven different transactions on as many different days, and compelled negotiation with, and payment of, 1,258 different vendors, or rather more than half-an-acre from each native. It seems evident, therefore that any such process as has been adopted during this season would be too expensive and cumbrous to continue, and it is most desirable that another and more convenient mode of adjusting the relative positions of foreigners and aborigines in respect of land may be settled shortly."

It appears to me from the passages which I have quoted that painstaking efforts were made by the officers of the Protectorate to identify the land and its owners and to give satisfaction to the owners. The officers had none of the difficulties of communication which occurred later in other areas because they had the assistance of members of the Mission party who had lived for may years at Port Moresby, who could converse fluently with the natives and, who, as the 1886 Report shows, were anxious to preserve native land rights. The practice was that the owners, whether a tribal group or part of a tribe or even an individual, were carefully identified and their agreement obtained to parting with the land. The perambulation of the boundaries would than take place and at a final ceremony the vendors were again identified and payment made.

Of the land listed above as "Badili lands' we know that this area of 333 acres was purchased in October 1885 from 128 vendors. It appears therefore that the balance of the purchased lands as listed comprising some 220 acres was purchased from some 1130 vendors.

It is then also clear that the purchase of the land at Granville East was effected as part of a series of purchases of some 220 acres in which payments were made to 1130 different vendors. The total population of the area had earlier been estimated by the Special Commissioner as 1,200 and I note that Mr. Champion estimated the population of Hanuabada Village in 1886 as no more than 1,300 and as he observes: "it is obvious that the whole of the able-bodied natives, male and female, participated in the purchase price of these lands ....."

I have already noted the purchase of the strip of land 20 chains x 4 chains along the harbour from Motu and Koitapu natives. This indicates clearly enough that both Motuans and Koitapuans were interested in land lying immediately to the west of that subsequently surveyed as Granville East.

I find it difficult to believe that purchases of the magnitude referred to and involving the number of persons which they did could have occurred without the knowledge of the Motuans who lived and owned land in the area and who were in close contact with the Mission party, members of whom while acting as interpreters for the Government officers were concerned to protect native rights. Nor can I accept that in the prevailing circumstances the Koitapuans without the knowledge of either the Government officers or the Motuans could have sold what was in fact Motuan land.

The verbal evidence which was given that the Motuans did not know of these 1886 acquisitions does nothing to raise any doubt in my mind as to the accuracy of the official records but it does raise some doubt as to the reliability of the traditional history which was recounted. I note that even part of the direct evidence of the Tubumaga clan was shown to be incorrect in that the clan claim included land which had been clearly sold to the Administration as recently as 1956 and 1957.

Much was made before the Commission of the fact that native claimants continued in occupation of some of the land after 1886, but this is explained by one of the few pieces of direct verbal evidence given before the Commission. The witness Ravura Eava, a Koitapuan who estimated that he had been born in 1888, said that as a small boy he lived at Hanuabada and that at that time a lot of Koitapu people lived with the Motuans there. In the course of his evidence the following passage occurs:

"Q. Have you ever heard the story of the Government purchasing the land including Era Taora.

A. I think this is probably true. I cannot say for sure but I have heard the story and it's probably true.

Q. Have you heard or were you present when Governor Murray called together the Koitapo and Motuan people and said that they may garden on land including Era Taora until such time as the Government asked them to leave the land.

A. Yes, I know about that I was at the meeting and I heard Governor Murray say this. He said all the land belonged to the Government and the Motuan or Koitapu people could garden until they wanted it."

I do not attempt a summary of the whole of the evidence before the Commission. It was examined by Counsel before me in a detailed and helpful way. Whilst there was some confusion in official circles, at least during the 1930's, as to the exact boundaries as evidenced by the lease by the Administration of small area for a waterhole, the case based on the official contemporary document remains a strong one.

On the evidence I conclude that at least the 58 acres of Granville East identified by Mr. Champion were acquired by Government officers and this conclusion is consistent with the findings of Mr. Champion and of the Land Board and differs from the findings of the Land Titles Commission only as to the identity of the vendors of that portion of Era Taora included in the 58 acres.

The difficult factual problem which it is now unnecessary for me to decide is to determine what land should be identified with the 58 acres as making up the total of 95 acres approximately which is said to have been acquired.

On the view I take of the evidence I think it highly probable that when the 1886 acquisitions of land in the Granville East rectangle took place the Motuan and Koitapuan people were both involved, that both agreed to the acquisition and that both groups were paid for the land they respectively owned and with respect I think that the finding of the Commissioner that the Motuan people were not involved as parties in the transactions is against the weight of evidence.

In my view the probabilities are that that piece of land I have numbered No.6 and which all three tribunals held to be within the area purportedly, acquired in 1886 was acquired from its true owners by the Administration and that the claim of the Tubumaga claimants to this land should have failed.

I turn now to the Giakone claim and whilst in no way discounting the weight of Counsel's arguments I am able to express my conclusions in summary form.

I am quite satisfied that any portion of Era Taora which the Giakone's predecessors may have owned was sold to the Government in 1886. The considerations arising from the facts which I have just discussed in relation to the Tubumaga claim apply equally to the Giakone claim. In addition there are the clear admissions by Giakone witnesses before the Commission that the land Era Taora was sold to the Government.

There is also a further consideration. Whilst the Tubumaga clan has for some 30 years and before three tribunals maintained its claim to ownership of Era Taora it is only in 1966 that the first claim to that particular piece of land is recorded as being made by the Giakone clan. In deciding that each clan sold whatever portion of Era Taora it owned it was not necessary for me to decide which clan had formerly owned Era Taora. If it were necessary for me to decide this on the evidence I would say that the Tubumaga clan had.

However, all I need say is that the Giakone clan was unable to satisfy the Land Titles Commission that it owns any portion of Era Taora and that on a review of all the evidence I am not prepared to disturb that position.

Whether the acquisition by the Government of other land in the area which the Giakone clan did own was null and void is a question which does not arise in these proceedings which relate only to Era Taora, but if I am wrong in this, I have already expressed the view that the acquisitions were validly effected.

It is now necessary to consider the Tubumaga claim to the area No. 5 that is such portion of the land claimed as extends to the west beyond the old Lawes Street.

The Administration concedes that this portion of land was not included in the 1886 purchases. It bases its claim to title however on an Order in Council of the 19^th August 1901 made under Section XI of the Land Ordinance 1899 and published in the Government Gazette. This section is the predecessor of Section 8 of the Land Ordinance 1911 reproduced earlier in this decision. The 1899 section reads:

"XI. The Administrator in Council may from time to time by Order in Council published in the Gazette declare that any land which has never been alienated by the Crown and not being land used or required or reasonably likely to be required by native-born Papuans for building agriculture or other industrial purposes will unless cause be shown to the contrary within the period specified in such order become Crown land.

Ever such Order in Council shall set forth the name or names (if any) by which such land is known with a description thereof made from an actual survey or a diagrammatic sketch of the same the position of the land an estimate of its area and a statement showing as far as known how long it has been unused by natives.

From and after the expiration of the time limited by such Order in Council the lands referred to therein shall be and be deemed to be absolutely vested in Her Majesty and to be Crown Land:

Provided that the Administrator in Council shall at any time before the expiration of the time so limited and may at any time thereafter take into consideration any claim to such land or any interest therein made by or on behalf of any alleged owner thereof and if he allows such claim may either by another Order in Council published in the Gazette declare that the Crown disclaims its title to such land in which case the land shall not then vest in Her Majesty or become Crown Land or if it has so vested shall be divested from Her Majesty and cease to be Crown Land; or he may acquire the right of such owner in which case an instrument of title shall be executed sealed and recorded in manner hereinbefore provided."

"The Deputy Administrator in Council, under Section XI of "The Land Ordinance of 1899", doth hereby order and declare as follows: -

1. That the lands, the boundaries of which are given in the Schedule to this Order in Council so far as can be ascertained, are lands not used nor required nor reasonably likely to be required by native-born Papuans for building, agricultural, or other industrial purposes.

4. That a sketch plan of the said lands is open to inspection by the public at the Lands Survey and Works Department, Port Moresby.

5. That the said lands have been unused by natives for a period exceeding fifteen years.

6. That unless cause be shown to the contrary before the 31st day of March, 1902, the said lands will on such date become Crown Lands."

Before the Commission the Administration attempted to rely on this Order and especially the description of the boundaries as supporting a contention that it in some way fixed the eastern boundaries of the land acquired in 1886 This argument was not advanced before me.

The Land Titles Commission found that no portion of Era Taora fell within the boundaries described in the Order in Council. However before me the Administration claimed that the area with which I am now dealing, area No.5, fell within those boundaries and that claim was not contested.

The Administration's argument in respect to this area No.5 is that that portion of land became absolutely vested in the Crown as Crown land pursuant to Section XI of the 1899 Ordinance.

The native claimants whilst not denying that area No.5 lies within the boundaries described in the Order in Council assert firstly, that the Order in Council is on its face defective and, secondly, that in any event the land at the relevant time did not meet the required description contained in Section XI.

It is clear that the section was intended to operate only in respect to land "which has never been alienated by the Crown and not being land used or required or reasonably likely to be required by native-born Papuans for building agricultural or other industrial purposes."

The first argument is that since it is only land which in fact meets that description which can be the subject of a declaration the section has no application where the land meets that description only "so far as can be ascertained" and that such is the case here. The addition of this phrase so the applicants argue indicates that enquiries were not taken far enough to identify positively the land as meeting the description in the section. This point turns on the proper construction of paragraph 1 of the Order in Council and the problem can be expressed in this way. Does paragraph 1 mean:

(a) that the lands, the boundaries of which so far as can he ascertained are given in the Schedule, are lands not used .....

(b) that the lands, the boundaries of which are given in the Schedule, are so far as can be ascertained, not used........

The matter is largely one of first impression and I think that (a) is shown to be the proper construction when regard is paid to the punctuation. In way of emphases I substitute dashes with the first two commas. The paragraph then reads:

"that the lands – the boundaries of which are given n the Schedule to this Order in Council so far can be ascertained - are lands not used ...."

I read the qualifying phrase as containing a caution that the description of the boundaries which contained no identification of survey pegs no distances and no bearings was of boundaries not yet completely and particularly identified by survey. In my view the claimants' submission on this point fails.

The second and more difficult point raised the question whether the Court could go behind the fact that the formal requirements for vesting had apparently been complied with and examine whether at the time the land really answered the description given it in the Order in Council. The argument then proceeds that if the land did not answer that description there is a defect which a mere formal compliance with the procedure set out in the section cannot cure and no vesting in fact occurred.

Assuming for the present that the facts behind the Order in Council examinable as suggested it is I think quite clear that the argument does not assist the claimants until such time as they have shown that the land did not in fact fit the description given it in the Order in Council. Although the point was not expressly referred to I think it obvious that the claimants carry the burden.

The claimants concede that the description in the section applied to the two hills, Page Hill and Mount Goldie, which according to Musgrave's 1886 report, to which I have already referred, total 286½ acres of the 328 acres to which the Order in Council is expressed to apply. However, the argument proceeds, this leaves over 40 acres or more some of which would be flat land, and it is difficult to think even if that flat land was not being used in the years preceding 1901 that in 1901 it was not "reasonably likely to be required by native-born Papuans for building agricultural and other industrial purposes."

I acknowledge the force of this submission but after a careful review of the facts I have decided that it cannot be sustained.

It must be remembered that this is an attempt, commenced in 1966, to invalidate the Crown's title to land ostensibly acquired in 1902 by a procedure which on the face of it appears to have been regular.

With hindsight it is easy to say that in 1901 Government officers could not have reached a sound conclusion that the land concerned was not reasonably likely to be required by the persons and for the purposes specified. Although the information before me suggests there has been speculation that there was some ulterior motive for the resumption nothing like that is established by the evidence. This is one matter on which the Chief Land Titles Commissioner did make some comment. He found that Era Taora did not fall within the boundaries set out in the Order in Council and went on to say "It therefore becomes unnecessary for me to consider the applicability of the 'Vulcan' case. However if it were applicable I consider that the Order in Council was made properly and that no reason exists for me to try to alter it.

I read that passage as meaning that on the evidence before him the Chief Land Titles commissioner rejected the present argument because even on an examination of the facts behind the Order in Council the Order in Council properly founded and I am bound to say that I am of the same opinion.

There is little evidence of weight that the land covered b the Order in Council was not in 1901 of the description specified. I would certainly require something more than the evidence which was placed before the Commission to satisfy me that the Deputy Administrator and his Council whose duty was to protect the interests of the local inhabitants would say that land was not being used when it was or would say that land was not required nor reasonably likely to be required for the persons and purposes specified if they were not of that view. Admittedly there was evidence of subsequent user, specifically in 1925. This as I have already pointed out was probably pursuant granted by the Administration. But it may also be taken as tending to show now that the opinion formed in 1901 was not correct. Even if this were so the short answer is that the question whether the land in 1901 met the specified description had to be answered in 1901.

It follows that even on the assumption I have made that the facts behind the Order in Council are examinable this point would fail and it becomes unnecessary for me to consider the argument further.

It follows that Area No. 5 is Crown land and I think the Chief Land Titles Commissioner would have held likewise if he had been satisfied as I am that that portion of Era Taora fell within the boundaries described in the Order in Council.

As to the area of land No. 1 to the east of the Granville East rectangle which is bounded on the south and west by land sold by members of the Tubumaga clan in 1956 and 1957 to the Administration without any objection nothing appears to justify disturbing the finding of the Land Titles Commission that it is Tubumaga land.

For the reasons which I have given I conclude that the appeal of Lohia Doriga on behalf of the Giakone clan fails and that the appeal of the Administration in respect to the areas I have numbered 2 to 6 inclusive succeeds. The Order of the Land Titles Commission in Appeal No. 35 of 1968 by the Administration should be amended to award to the appellant Daera Guba on behalf of the Tubumaga clan only that portion of Era Taora being area No. 1 as lies to the east of the Administration purchase of 1956, known as Castlreagh Street. This is the almost triangular piece of land delineated in red on the Commission's plan annexed to its decision.

In case the parties cannot agree on the terms of the final order I reserve liberty to all parties to apply as to those terms. I also reserve liberty to all parties to apply as to costs.

Editor's Note: Please refer to the last page (p. 48) of the attached PDF copy of this case, for the 'Diagram of Granville East and Era Taora'.

App. 35/68: Solicitor for the Appellant: T.R. Bredmeyer, Esq.
Solicitor for 1^st Respondent: W.A. Lalor, Public Solicitor.
Solicitor for 2^nd Respondent: P.J. Clay, A/Crown Solicitor.

App. 47/68: Solicitor for the Appellant: P.J. Clay, A/Crown Solicitor.
Solicitor for 1^st Respondent: W.A. Lalor, Public Solicitor.
Solicitor for 2^nd Respondent: T.R. Bredmeyer, Esq.

Supreme Court of Papua New Guinea

Doriga v Guba [1969] PGSC 61 (21 November 1969)