Administration of the Territory of Papua and New Guinea v Tirupia, In Re Vunapaladig and Japalik Land [1971] PGSC 1; [1971-72] PNGLR 229 (1 July 1971)

Papua New Guinea Law Reports - 1971-72

[1971-72] PNGLR 229 - The Administration of the Territory of Papua and New Guinea v Blasius Tirupia, In Re Vunapaladig and Japalik Land

[1971-72] PNGLR 229

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA

V

BLASIUS TIRUPIA AND OTHERS

IN RE VUNAPALADIG AND JAPALIK LAND

Port Moresby

Minogue CJ Clarkson Kelly JJ

27-28 April 1971

1 July 1971

TORRENS SYSTEM - Registration of title - Indefeasibility of registered interest - Native land rights - Survival to extent that registered on title - Registered proprietor protected in absence of fraud - Duties of Director of District Services and Native Affairs - Duties of Administration-Director as agent of Administration - No legal or equitable duties imposed by Mandate - No fiduciary duties imposed by Statute - Validity of legislation - Land Registration Ordinance 1924-1969 ss. 57[cclxiii]1, 68[cclxiv]2, 69[cclxv]3.

TORRENS SYSTEM - Title by adverse possession - No title in New Guinea.

PRACTICE - Demurrer - Whether non-joinder of parties can be subject of demurrer.

PRACTICE - Equity - Conduct after action - What disentitles party to remedy sought - Immediate or necessary relation to equity sued for.

PRACTICE - Supreme Court - Jurisdiction - Native customary rights - Questions of ownership of land - Land Titles Commission Ordinance 1962-1970 s. 15[cclxvi]4.

The plaintiff, the Administration, claimed to be entitled as registered proprietor under the Torrens System to possession of two parcels of land in the East New Britain District known as Vunapaladig and Japalik respectively. The plaintiff claimed that the defendants wrongfully entered upon the respective parcels of land and wrongfully remained thereon. It issued writs claiming injunctions to restrain the defendants from repeating or continuing the trespasses complained of and also claiming possession of both parcels of land.

The plaintiff delivered statements of claim and the defendants delivered defences and counter-claims in all three actions. The plaintiff demurred to all the defences and counter-claims. The demurrers were set down for argument before the Full Court of the Supreme Court and by consent were all heard together.

By their defences the defendants sought to rely on a legal interest flowing directly from their uninterrupted possession from “time immemorial” and from the laws of the Territory and an equitable interest from their long and notorious possession which amounts to notice and an interest of such a nature that notwithstanding registration under the Torrens System it calls for recognition by the Court. The defendants submitted that the registration of the plaintiff’s predecessors in title was effected in breach of a fiduciary duty owed by the plaintiff to the native owners of the lands and that the plaintiff, having through its negligence, error or neglect brought about a situation where registration took place, could not now assert any rights thought to be flowing from its registration in derogation of the rights possessed by the defendants and the other members of their kinship groups which in effect amounted to rights of absolute ownership. The defendants also pleaded that an agreement had been reached between the plaintiff and the Custodian of Expropriated Property which resulted in an amendment to the Land Registration Ordinance 1924 whereby the rights of the defendants or their predecessors in title could be defeated. The defendants further relied on conduct by the plaintiff prior to and during the course of the action as disentitling it to a decision of the Court. The actions were also said to be defective by reason of the nonjoinder of all present members of the respective kinship groups.

By the counter-claims the principal relief sought in each case was a declaration that the defendants and the living members of the kinship group are the owners of the land and entitled to undisturbed and peaceful possession thereof or alternatively a declaration that the plaintiff holds its interest (if any) in the land upon trust for the group.

Held

N1>(1)      that even if in the performance of statutory duties imposed upon him aimed at the protection of native rights to land the Director of District Services and Native Affairs was acting as the agent of the Administration it would not follow that the Ordinance which imposed those duties on him thereby imposed on the Administration a fiduciary duty towards persons who might possess native land rights, nor that the failure of the Director to carry out his statutory duties would amount to a breach of fiduciary duty on the part of the Administration.

N1>(2)      that whatever breach of duty there may have been by the Director or vicariously by the Administration could not avail the defendants against the clear and conclusive provisions of ss. 57 and 68 of the Lands Registration Ordinance 1924-1969 which are supported by s.16 of the Land Titles Commission Ordinance 1963 and the effect of which is to confer an indefeasible legal title on the registered proprietor so that, whatever the events preceding the issue of the certificate of title, upon registration native land rights survive against the registered proprietor only to the extent that they are recognised on the title. Custodian of Expropriated Property v. Tedep [1964] HCA 75; (1964), 113 C.L.R. 318 applied;

N1>(3)      that the Mandate granted to the Commonwealth of Australia over the Territory of New Guinea did not impose on the Administration as a matter of municipal law any legal or equitable duties;

N1>(4)      that there is nothing in the New Guinea Act 1920, the Laws Repeal and Adopting Ordinance 1921 or the Land Ordinance 1922 which can be said to create or indicate a fiduciary duty towards persons who might possess native land rights and on the assumption that registration of the land was effected and no fraud alleged it is not possible for the Court now to consider an assertion that the kinship group and the defendants have never alienated their ownership or possession of the subject land;

N1>(5)      that the Supreme Court cannot inquire as to the circumstances of the passage of legislation or deny its effect because of some course of conduct of which the Court may not approve. Principle in Labrador Co. v. The Queen[1892] UKLawRpAC 47; , [1893] A.C. 104 and Hoani v. Aotea District Maori Land Board, [1941] A.C. 308 applied;

N1>(6)      that no title by adverse possession could be established in the Territory of New Guinea. Miscamble v. Phillips and Hoeflich, [1936] St. R. Qd. 136 applied;

N1>(7)      that in the absence of fraud s. 69 of the Lands Registration Ordinance 1924-1969 protects the registered proprietor from being affected by actual or constructive notice of any claim right title or interest other than such as appears in the register book;

Dicta in Templeton v. Leviathan Pty. Ltd. [1921] HCA 55; (1921), 30 C.L.R. 34 at p. 69 and in Friedman v. Barrett; Ex parte Barrett, [1962] Qd. R.498 at pp. 503, 512 applied;

N1>(8)      that the conduct of the plaintiff in attempting after action brought to enforce the rights which it was seeking to persuade the Court that it had, even if unlawful, did not disentitle it to the relief sought in the action as the conduct complained of did not have an immediate or neccessary relation to the equity sued for;

N1>(9)      that s. 15 of the Land Titles Commission Ordinance 1962-1970 deprives the Supreme Court of jurisdiction to entertain a claim that certain land is owned by native customary rights.

Semble

That non-joinder of parties cannot be the subject of a demurrer.

Cases Referred To

The Custodian of Expropriated Property v. Tedep [1964] HCA 75; (1964), 113 C.L.R. 318; Labrador Company v. The Queen, [1892] UKLawRpAC 47; [1893] A.C. 104; Hoani v. Aotea District Maori Land Board, [1941] A.C. 308; Vajesinji Joravarsingji v. Secretary of State for India, [1924] L.R. 51 I.A. 357; Buck v. Attorney-General, [1965] 1 Ch. 745; Miscamble v. Phillips and Hoeflich, [1936] St. R. Qd. 136; The Belize Estate and Produce Company, Limited v. Quilter, [1897] UKLawRpAC 16; [1897] A.C. 367; Ward v. Kirkland, [1966] 1 W.L.R. 601; Inwards v. Baker, [1965] EWCA Civ 4; [1965] 1 All E.R. 446; Friedmann v. Barrett; Ex parte Barrett, [1962] Qd. R. 498; Templeton v. Leviathan Proprietary Limited [1921] HCA 55; (1921), 30 C.L.R. 34.

Demurrers

In May 1970 the Administration of the Territory of Papua New Guinea issued writs claiming injunctions to restrain the defendants from trespassing on two parcels of land called Vunapaladig and Japalik respectively and also claiming possession of those two parcels of land.

The plaintiff claimed that Vunapaladig which it had acquired by contract of purchase in September 1968, had been brought under the provisions of the Land Registration Ordinance (New Guinea) on 23rd August, 1934, whilst Japalik which it had likewise acquired by purchase in January 1969 had been brought under the provisions of that Ordinance on 21st May, 1928.

Statements of Claim were delivered on 16th September, 1970. To each statement of claim the defendants delivered a defence and counter-claim in identical terms on 2nd November, 1970. The defendants in their defences did not admit the allegations of original registration under the Lands Registration Ordinance, of restoration of title under the Land Titles Restoration Ordinance 1951, of subsequent purchase nor of transfer to and registration of the plaintiff as proprietor nor did they admit the allegations of trespass and wrongful possession. However they went further to allege what amounted to ownership and a right to possession of the parcels of land. The relevant portions of the defence and counter-claim delivered in respect of Vunapaladig are set out below:

N1>“2.      In the alternative, if the land known as Vunapaladig was registered in the Register Book as alleged and is the same land as hereinafter referred to as the native land then the said registration was brought about by breach of fiduciary duty by the Administration.

Particulars

N2>(a)      The Administration, by virtue of the mandate, conferred upon His Britannic Majesty for and on behalf of the Government of the Commonwealth of Australia on the 17th day of December, 1920, and by virtue of the provisions of the Land Registration Ordinance 1924 by its servants or agents owed the fiduciary duty to the Defendants and their predecessors in title, which fiduciary duty they failed or neglected to fulfil in that:

(i)       No proper enquiry into native rights in the said land was made as required by the Land Registration Ordinance.

(ii)      No hearing of the native claims to the land was made as required by the said Ordinance.

(iii)     No notice of proposed registration was served upon the Defendants or the predecessors in title occupying the said land as required by the said Ordinance.

(iv)     An agreement was reached between the said Administration and the Custodian of Expropriated Property who sought to be registered contrary to the interests of the defendants or their predecessors in title which said agreement resulted in an amendment to the Land Registration Ordinance 1924 whereby the rights of the defendants or their predecessors in title could be defeated.

. . .

N1>4.       The defendant, Bilasius Tirupia, is the customary head of the kinship group descended from a common ancestor named Vunapaladig and the other defendant has customary land rights arising from the customary law relating to such kinship group.

N1>5.       The said kinship group is and has been from time immemorial the owner in accordance with native custom of land known as Vunapaladig (hereinafter called “the native land”) and the defendants are in the ownership of the said land.

N1>6.       The said kinship group has been in obvious and notorious possession of the said native land from time immemorial and the defendants as members of that kinship group have, by virtue of their customary rights shared in this communal possession and were at the time of the alleged acquisition of the land by the plaintiff and at the date of issue of the writ and now remain in actual possession of the said native land and rely on such possession.

N1>7.       The defendants and their kinship group and predecessors in title have expended much time, effort and money or money’s worth in improving the said land.

N1>8.       The said kinship group and the defendants have never alienated their ownership or possession of the said native land.

N1>9.       The then living members of the said kinship group had not at any relevant time power to alienate the said native land or any part of it.

N1>10.     If the plaintiff or its alleged predecessors in title claim title pursuant to any purported grant of an estate in fee simple prior to 1962 the defendants say that there was no such estate capable of being granted and such grant was and is of no force or effect.

N1>11.     In the alternative the defendants say that if the plaintiff has become the registered owner of the said native land the said plaintiff is not entitled in equity to possession of the said land and holds the said land upon trust for the aforesaid kinship group by reason of:

N2>(i)       The breach of fiduciary duty by the plaintiff to the defendants.

N2>(ii)      The long and uninterrupted possession of the defendants and their kinship group.

N1>12.     The defendants say that the plaintiff is not entitled to any equitable relief in this action by reason of:

. . .

N2>(ii)      Conduct by the plaintiff prior to and during the course of this action disentitling to a decision of the Court.

Particulars

(i)       The plaintiff did by its servants or agents on the 20th July, 1970, and succeeding days with a vast multitude of armed men forcibly enter upon the said native land and did assault numerous members of the said kinship group and persons authorised to be in possession by the said kinship group contrary to the Statutes of Forcible Entry.

(ii)      The plaintiff did by its servants or agents on the 22nd July, 1970, and succeeding days unlawfully set fire to and otherwise destroy numbers of houses belonging to the said kinship group.

(iii)     The plaintiff did [sic] by its servants or agents subsequent to the events in (i) and (ii) above have [sic] attempted to interfere with the possession of the defendants and members of the kinship group.

(iv)     The plaintiff has by its servants and agents continued throughout the currency of this action to endeavour to interfere with the possession of the kinship group and has actually so interfered with the said possession by encouraging persons to whom the plaintiff has purported to allocate a lease of the land to enter on and take possession of the said land.

N1>13.     The defendants say that the plaintiff’s action is defective for want of parties by reason of the non-joinder of all present members of the said kinship group.

Counter Claim

And by way of counter-claim the defendants say as follows:

N1>1.       The defendants repeat the facts contained in paragraphs 4-13 of this defence and rely upon them by way of counter-claim.

N1>2.       The defendants repeat the facts contained in paragraphs 4-13 of the defence and the defendants’ claim:

N2>(i)       A declaration that the defendants and the living members of the said kinship group are the owners of the said native land and entitled to undisturbed and peaceful possession thereof.

N2>(ii)      In the alternative a declaration that the plaintiff holds all its right title and interest (if any) in the said native land upon trust for the said kinship group.

N2>(iii)     Damages for aggravated trespass to the said native land and members of the kinship group.

N2>(iv)     Costs in the action.

N2>(v)      Such further or other order or orders as to the Court shall seem appropriate.

The plaintiff demurred to such part of the defence as is set out and to the counter-claim. The demurrers were set down for argument before the Full Court and by consent all were heard together.

Counsel

Jeffrey Q.C. (with him Kinna), for the plaintiff.

Enderby (with him Fingleton), for the defendants.

Cur. adv. vult.

1 July 1971

MINOGUE CJ CLARKSON KELLY JJ:  [After referring to the matters set out above their Honours continued:]

The substance of the plaintiff’s case is that the subject lands were lands brought under the Lands Registration Ordinance; that final orders were made under the restoration legislation and certificates of title issued; that the plaintiff was a purchaser who became a registered proprietor by transfer; that it was a bona fide purchaser for value without notice of any other right title or interest and that consequently it was entitled to the relief sought, either an injunction on the footing that it was in possession of the lands or, alternatively, to what in effect was an order of ejectment if the plaintiff was not in possession.

As we understand the defendants’ case they rely on a legal interest flowing directly from their uninterrupted possession from “time immemorial” and from the laws of the Territory and an equitable interest from their long and notorious possession which amounts to notice and an interest of such a nature that notwithstanding registration under the Torrens system it calls for recognition by the court. The claim is of having acquired a right of ownership or some right of possession which detracts from or perhaps wholly extinguishes the plaintiff’s right. It was submitted that the registration of the plaintiff’s predecessors in title was effected in breach of a fiduciary duty owed by the plaintiff to the native owners of the lands. The plaintiff Administration had through its negligence, error or neglect brought about a situation where registration took place and it could not now assert any rights thought to be flowing from its registration in derogation of the rights possessed by the defendants and the other members of their kinship groups which in effect amounted to rights of absolute ownership. Mr. Enderby for the defence sought to show that by a combination of the Mandate granted to the Commonwealth of Australia over the Territory of New Guinea in 1920, of the terms of the New Guinea Act of that year and of the provisions of the Laws Repeal and Adopting Ordinance of 1921, of the Land Ordinance of 1922 and of the Lands Registration Ordinance of 1924, there was a duty cast on the Administration of the Territory of New Guinea to protect native land rights which were in effect to be regarded as inalienable. More specifically he argued that assuming the truth of the facts asserted in the defence (which of course we must do on this demurrer) it was clear that the Director of District Services and Native Affairs had not carried out the duties imposed upon him by the Lands Registration Ordinance. Those duties were to refer the question of possible native rights in relation to any land to the Central Court for enquiry and determination in every case where he was of opinion that there were natives or native communities having rights of any description over any land owned occupied or used by or for any person other than a native, and where he had been served with a notice that it was proposed to bring land under the Ordinance to cause careful enquiries to be made as to the existence of native rights to that land and to refer the question of native rights in relation to land to the Central Court for determination. (See ss. 22 and 24.) If he had carried out these duties, so it was said, registration could not have been effected in the face of the obvious native rights which existed in and over the lands. He further went on to argue that the Administration was responsible for the neglect errors and omissions of the Director and consequently was in breach of a fiduciary duty. True it is that the Director had a number of statutory duties imposed upon him and it is clear that those duties were aimed at the protection of native rights to land. However, even if it be the case that in the performance of those duties the Director was acting as the agent of the Administration it would not follow that the Ordinance which imposed those duties on him thereby imposed on the Administration a fiduciary duty towards persons who might possess native land rights, nor that the failure of the Director to carry out his statutory duties would amount to a breach of fiduciary duty on the part of the Administration. In any event whatever breach of duty there may have been by the Director or vicariously by the Administration cannot avail the defendants against the clear and conclusive provisions of ss. 57 and 68 of the Lands Registration Ordinance, the effect of which is to confer an indefeasible legal title to land on the registered proprietor: The Custodian of Expropriated Property v. Tedep[cclxvii]⁵ makes this proposition clear beyond doubt. As was said in that case, at pp. 331-2: “The indefeasibility of the title of a registered proprietor under systems of title such as that erected by the Lands Registration Ordinance . . . depends, . . . upon the provisions of the Ordinance itself, and particularly upon s. 68, . . . by virtue of which, at the moment of and by the act of registration, the estate of the registered proprietor became absolutely free from any prior asserted legal interest not noted on the register.” And see also at pp. 336-7.

The conclusiveness of a title under the Lands Registration Ordinance receives further support if any is needed from s. 16 of the Land Titles Commission Ordinance 1962 which provides that where a decision of the Land Titles Commission is in conflict with a title previously registered under the Lands Registration Ordinance that registered title shall to the extent of the conflict prevail. We note of course that there is no allegation of fraud in these cases and in our view the submission of Mr. Jeffrey is correct that, whatever the events preceding the issue of the Certificate of Title, upon registration native land rights survive against the registered proprietor only to the extent that they are recognized on the title. In the circumstances we do not find it necessary to determine the legal relationship between the Administration and the Director in this context as whatever that relationship may be the position of the Administration as registered proprietor is not affected.

With regard to paragraph 2(iv) of the defence we did not understand Mr. Enderby to dissent from Mr. Jeffrey’s assumption that the amendment to the Lands Registration Ordinance referred to was that effected by the addition of s. 24a which came into operation in April 1933. This section enabled the Administrator to instruct the Director to certify to the Registrar that the question of native land rights would not be referred to the Court. We assume it to be implicit in the paragraph that a predecessor in title of the plaintiff was the Custodian of Expropriated Property and also that consequent upon a direction by the Administrator under s. 24a the question of native rights in the subject land was not referred to the Court. We cannot see how the allegation of the agreement between the Administration and the Custodian of Expropriated Property alleged could have any relevance to the Japalik land title to which was registered in 1928. But leaving that aside we are of opinion that this Court cannot enquire as to the circumstances of the passage of legislation or to deny it effect because of some course of conduct of which the Court may not approve. As was said by the Judicial Committee of the Privy Council in Labrador Co. v. The Queen[cclxviii]⁶ at p. 123: “Even if it could be proved that the legislature was deceived, it would not be competent for a court of law to disregard its enactments. . . . The courts of law cannot sit in judgment on the legislature, but must obey and give effect to its determination.” And in Hoani v. Aotea District Maori Land Board[cclxix]⁷ there is a distinct statement that the Statute Book contains the entire enactment of the legislative will and that examination of circumstances preceding legislation although it may raise a political question does not raise a justiciable question in a court of law. There it was held that it is not open to the court to go behind what has been enacted by the legislature and to inquire how an enactment has come to be made, whether it arose out of incorrect information or, indeed, actual deception by someone on whom reliance was placed by it. The court was bound to accept the enactment as the law and so could neither inquire whether the Land Board had been guilty of breaches of duty which were alleged nor whether the enactment of legislation affecting Maori rights in land was the reasonable and natural consequence of those breaches. This case too disposes of such reliance as Mr. Enderby was able to place upon the Mandate. The Judicial Committee applying the principles summarised in Vajesingji Joravarsingji v. Secretary of State for India[cclxx]⁸, held that any rights purporting to be conferred by such a treaty of cession (in that case the Treaty of Waitangi) could not be enforced in the courts. It seems to us that the acquisition of control of the Territory of New Guinea by the Commonwealth under the Mandate is an Act of State just as is the acquisition of a Territory by conquest, or cession following on a treaty, or occupation of a Territory hitherto unoccupied by a recognized ruler. The Mandate itself made no reference to native land rights but conferred upon the Commonwealth of Australia full power of administration and legislation over the Territory as an integral portion of the Commonwealth. By the acceptance of the Mandate the Commonwealth was to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory. In our view it did not impose on the Administration as a matter of municipal law any legal or equitable duties and we think it impossible to place reliance upon it to support the “fiduciary duty” in the pleading. See also Buck v. Attorney-General[cclxxi]⁹ and in particular Wilberforce J. (as he then was) at p. 758 et seq. As the learned judge said in that case although in law it is possible for the Crown to assume the position of a trustee, the language of the grant under consideration by him was quite insufficient to support the assumption by the Crown of any equitable contractual or innominate obligation. That seems to us to express the position upon the assumption by the Commonwealth of the Mandate.

Paragraphs 4 to 9 of the defence seem to assert a legal ownership in the defendant and the kinship group of which he is the customary head. They contain an allegation that the kinship group and the defendant had never alienated their ownership or possession of Vunapaladig and it may be too that there is implicit in this allegation a denial of any knowledge of the bringing of the land under the Registration Ordinance. Be that as it may the paragraphs assert that the defendant and the kinship group have at all relevant times owned the land and have been in actual possession of it, that their possession has been open and notorious and that the ownership is in effect equivalent to a full legal estate in the land. There is also an allegation that the defendants and their kinship group and their predecessors in title have expended much time effort and money or money’s worth in improving the land. As to whether this gives rise to some sort of equitable interest we will discuss later. In support of the demurrer Mr. Jeffrey argued that the allegations in these paragraphs if they could support any legal right at all could only support a title by adverse possession. And he went on to submit that such a title could not be acquired in New Guinea. He founded principally on the conclusive effect of ss. 57 and 68 of the Ordinance and relied on the decision of the majority of the Full Court of Queensland in Miscamble v. Phillips and Hoeflich[cclxxii]¹⁰. Indeed as he pointed out although it was held in that case that the plaintiff could not succeed the facts were much more in favour of a person seeking to establish a title by adverse possession than were those alleged by the defendants in this case. Mr. Enderby said that he was putting the defendants’ case a little differently from adverse possession although he sought to rely on The Belize Estate and Produce Co. Ltd. v. Quilter[cclxxiii]¹¹ in support of his argument. However, we have come to the clear view that no title by adverse possession could be established in the Territory of New Guinea. The doctrine of adverse possession was not known to the common law but derives from statute. See Megarry and Wade The Law of Real Property, 3rd ed., pp. 996 et seq. There is no Statute of Limitations such as was, for example, the Distress Replevin and Ejectment Act of 1867 of Queensland, adopted or imported into New Guinea and without some such statute there can be no limitation of a right to bring action for the recovery of land.

But it was said by Mr. Enderby that the relevance of paragraphs 4 to 9 of the defence is that therein are recited facts which as matters of law and of equity defeat the plaintiff’s claim. The legal rights he said come from the ordinances. Reference was made by him to the New Guinea Act 1920, to the Laws Repeal and Adopting Ordinance of 1921 and to the Land Ordinance 1922 (none of which is relied on in the defence). We must confess that we are not entirely clear as to how he based these legal rights. If it was on s. 9 of the Laws Repeal and Adopting Ordinance of 1921 in which it was enacted that nothing in that ordinance should affect the right title estate or interest . . . of any Aboriginal native or tribe of Aboriginal natives to any land within the Territory that section cannot prevail in our view against the later provisions of the Registration Ordinance, power to enact which was within the power to make ordinances for the peace order and good government of the Territory conferred upon the Governor-General in Council by the New Guinea Act 1920.

If it was on a policy to be spelled out of the Ordinances that native rights were to be paramount we can only say that we cannot spell out such a policy. The Ordinances lay down precise rules and procedures to be followed to safeguard native rights to land and seek to ensure that there will be no fraudulent deprivation of those rights; the Lands Registration Ordinance charges the Director with a careful investigation into those rights; but it is clear that in 1924 when the Lands Registration Ordinance was enacted the policy was to provide for indefeasibility or unimpeachability of title to land to which the Ordinance applied both for natives and non-natives alike. We cannot see anything in the provisions of the legislation to which we were referred which can be said to create or assist in the creation of or to indicate the fiduciary duty the existence of which is essential to the defendants’ case. On the assumption that registration of the land was effected and no fraud alleged it is not possible now for the Court to consider an assertion that the kinship group and the defendants have never alienated their ownership or possession of the subject. Section 68 of the Lands Registration Ordinance provides that notwithstanding the existence in any other person of any estate or interest whether derived by grant from the Administration or otherwise which but for the Ordinance might be held to be paramount or to have priority a registered owner of land or of any estate or interest in land shall except in case of fraud hold it free from all encumbrances whatsoever except in the cases mentioned in the section, none of which are material in this case. The Custodian of Expropriated Property v. Tedep[cclxxiv]¹² shows that in the investigations required to decide whether a lost or destroyed title should be put back on the register (which happened in the case of the subject lands) the Commissioner of Titles once the fact of registration was proved could not go behind that registration and enquire into or pronounce upon competing interests.

As we understood the argument for the defence the facts asserted in paragraphs 7 to 11 support some sort of equitable interest in the defendants. Mr. Enderby submitted that the allegations would permit an equitable defence of the type successfully pleaded in Ward v. Kirkland[cclxxv]¹³ and Inwards v. Baker[cclxxvi]¹⁴. However, even allowing for the allegations in paragraph 7 to carry an extended meaning that the registered proprietor of the land has requested or even allowed the defendants to expend money on the land under an expectation created or encouraged by the proprietor that they would be able to remain there, we cannot see that any such permission or creation of expectation on the part of the former proprietor or proprietors can create any equity against the plaintiff. The paragraph cannot in our view be read as an allegation that the money time and effort has been expended since January 1969. What we think Mr. Enderby was really putting forward as the combined effect of paragraphs 2 and 4 to 9 of the Defence is that the Administration had imposed a duty on itself in that it accepted a fiduciary relationship to the defendants, that it defaulted in the performance of its duty, permitted the land to be registered notwithstanding the presence of the defendants thereon, then obtained for itself the title in the wrongful issue of which it had somehow connived and was seeking to profit from its breach of duty by now seeking ejectment. Neither at law nor in equity can such a case succeed. It seems to be implicit in this argument that some claim which arose against the Administration at the time land was brought under the Ordinance in some way survived to defeat the Administration title when it became the registered proprietor—that it was somehow subject to equities which had either been suspended until then or then arose and which enabled the defendants to resist a claim for possession. Fraud was not alleged and s. 69 of the Lands Registration Ordinance in the absence of fraud protects the plaintiff from being affected by actual or constructive notice of any claim right title or interest other than such as appears in the Register Book. See Friedman v. Barrett: Ex parte Barrett[cclxxvii]¹⁵ and Templeton v. Leviathan Pty. Ltd.[cclxxviii]¹⁶.

Paragraph 10 was explained by Mr. Enderby as being an assertion of law that prior to the enactment of the Land Ordinance of 1962 there was no power in the Territory of New Guinea to grant an estate in fee simple. All land acquired from the German Administration was allodial land and the German law did not recognize any doctrine of estates. Any land held had to be allodial and the concept of allodial land was essentially different from that of tenure of estates in land. This would seem to involve the proposition that no land in the former German Land Register could be brought under the provisions of the Land Registration Ordinance for an estate in fee simple. This proposition is we think untenable. Whilst the legislature did not expressly deem all German private title to be fee simple it dealt with land so held as if it were. The interests dealt with were translated by registration into an estate in fee simple. Their Honours of the High Court assumed without question that the prior German title was converted by registration into an estate in fee simple. See The Custodian of Expropriated Property & Anor. v. Tedep[cclxxix]¹⁷ at p. 328. Mr. Hogg in his work Australian Torrens System Statutes regards the most important characteristic of the Torrens system as a system of real property law as being that it exhibits the nearest approach in form which has yet been made to allodial ownership of land by any system based on the principles of feudal tenure. In his view the most prominent feature in the Torrens system, i.e. the necessity for registration to the due creation or transfer of any interest in land, causes the system to approximate to one of allodial ownership and he regards the system as technically consistent only with allodial ownership. It is to be noted that s. 13 of the Land Ordinance of 1922 empowered the Governor-General in the name of the Administration to grant convey or otherwise dispose of estates in fee simple of Administration lands, and s. 53 of the Lands Registration Ordinance with its accompanying Fifth Schedule provides for a certificate of title to an estate in fee simple being issued.

Both counsel agree that paragraph 11 is a recapitulation of the allegations in paragraph 2 and paragraphs 4 to 9 of the Defence. We agree with Mr. Jeffrey’s contention that the matters alleged in the paragraph might be capable of providing an answer to the plaintiff’s claim for possession if they operate to curtail or extinguish the plaintiff’s rights, but as a matter of law they can have no such operation.

We turn now to paragraph 12(ii). The allegations in the particulars appended to this paragraph amount in substance to an allegation that after action brought the plaintiff attempted to enforce the rights which it was seeking to persuade this Court that it had and to anticipate the Court’s decision in its favour. If in fact the plaintiff by its servants or agents has acted in the manner alleged such conduct may well prove to have been unwise and unlawful. It may be that as suggested by Mr. Enderby there have been breaches of the Criminal Code. But it does not necessarily follow that such conduct should disentitle the plaintiff to the relief sought in this action. To deprive a plaintiff of an equitable remedy his conduct complained of must have an immediate and necessary relation to the equity sued for. (See Halsbury’s Laws of England, 3rd ed., Vol. 14, pp. 530-531, para 1000.) In our opinion the conduct of the plaintiff or its servants or agents does not have that immediate and necessary relation. The plaintiff is not seeking some legal advantage from its wrongful act. The acts alleged if unlawful may entitle the defendants to remedies in other proceedings. Assaults on other members of the kinship group are not we think in any event relevant in this action.

With regard to paragraph 13 we are inclined to think that the matter of defence here taken cannot be the subject of a demurrer, but is more probably a matter governed by O. XXII r. 27 of the Rules of the Supreme Court. However it is convenient to deal with it as a point of law and it seems to us that the paragraph is bad as being in breach of O. XXV r. 20. If there are parties whom the defendants feel should be joined in the action it is for them to apply under O. III r. 11 to have them added as defendants, or those parties should come in themselves and make such application.

For the foregoing reasons in each action we would allow the demurrer as amended except to paragraph 13 of the defence and hold that the matters alleged under that paragraph provide no bar to the plaintiff’s action.

With regard to the counter-claim we are of opinion here too the plaintiff’s demurrer must be allowed on the short and to our mind conclusive ground that s. 15 of the Land Titles Commission Ordinance 1962 deprives the Supreme Court of jurisdiction to entertain such a claim.

Order: In each action demurrer as amended allowed except as to paragraph 13.

Rule that matters alleged in paragraph 13 provide no bar to the plaintiff’s action.

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

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

[cclxiii]Section 57 of the Lands Registration Ordinance 1924-1969 provides that:

“Every certificate of title duly authenticated under the hand and seal of the Registrar shall, subject to section forty-one of this Ordinance, be received in all courts of justice as evidence of the particulars therein set forth and of their being entered in the Register Book, and shall be conclusive evidence that the person named in the certificate of title or in any entry thereon as seized of or taking any estate or interest in, or as being entitled to any encumbrance on the land therein described, is seised or possessed of the land for the estate or interest therein specified or is entitled to the encumbrance, and that the property comprised in the certificate of title is under the provisions of this Ordinance.”

[cclxiv]Section 68 of the Lands Registration Ordinance 1924-1969 provides that:

“Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Administration or otherwise, which, but for this Ordinance, might be held to be paramount or to have priority, the registered owner of land or of any estate or interest in land shall, except in case of fraud, hold it absolutely free from all encumbrances whatsoever, except—

N2>(a)        the encumbrances notified by entry or memorial on the folio of the Register Book constituted by the grant or certificate of title of the land;

N2>(b)        the estate or interest of an owner claiming the same land under a prior certificate of title or under a prior grant or Administration lease registered under the provisions of this Ordinance;

N2>(c)        in case of the omission or misdescription of any right-of-way or other easement created in or existing upon the same land;

N2>(d)        in case of the wrong description of the land or of its boundaries;

N2>(e)        as to any tenancy from year to year or for any term not exceeding three years created either before or after the issue of the certificate of title of the registered owner;

N2>(f)         any leases, licenses, or other authorities granted by the Governor-General or the Administrator or any department or officer of the Administration or any public and

N2>(g)        any unpaid rates, taxes, or other moneys which, without reference to registration under this Ordinance, are expressly declared by any Ordinance or law to be a charge upon land in favour of the Crown or the Administration or of any department or

[cclxv]Section 69 of the Lands Registration Ordinance 1924-1969 provides that:

“A transferee, whether voluntary or not, of land under the provisions of this Ordinance shall not, except in case of fraud, be affected by actual or constructive notice of any claims, rights, titles or interests other than those which have been notified or protected by entry in the Register Book according to the provisions of this Ordinance, any rule of law or equity to the contrary notwithstanding.

Nothing contained in the last preceding sub-section shall be held to deprive creditors of any rights or remedies given or provided by the Mercantile Ordinance 1912 of the Territory of Papua adopted as an Ordinance of the Territory of New Guinea.”

[cclxvi]Section 15 of the Lands Titles Commission Ordinance 1962-1970 provides that:

N1>“(1)       The Commission has, subject to this Ordinance, 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, water or reef, including a dispute as to whether any land is or is not native land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.

N1>(2)        After the period for review of or appeal against a decision of the Commission has expired and any proceedings on review have been completed and any appeals have been decided, a determination of the Commission under the last preceding subsection is final and conclusive, and shall be accepted for all purposes as a statement of the interests existing at the date of decision in the land the subject of the decision.”

[cclxvii](1964) 113 C.L.R. 318.

[cclxviii][1893] A.C. 104.

[cclxix][1941] A.C. 308.

[cclxx][1924] L.R. 51; I.A. 357, at p. 360.

[cclxxi][1965] 1 Ch. 745.

[cclxxii][1936] St. R. Qd. 136.

[cclxxiii][1897] A.C. 367.

[cclxxiv](1964) 113 C.L.R. 318.

[cclxxv][1966] 1 W.L.R. 601.

[cclxxvi][1965] 1 All E.R. 446.

[cclxxvii] [1962] Qd. R. 498, at pp. 503-4 and p. 512.

[cclxxviii][1921] HCA 55; (1921) 30 C.L.R. 34, at p. 69.

[cclxxix][1964] HCA 75; (1964) 113 C.L.R. 318.