Sacred Heart Mission (New Britain) Property Trust v Nambumutka/Simbali; In Re Toriu [1971] PGSC 44; [1971-72] PNGLR 26 (29 January 1971)

Papua New Guinea Law Reports - 1971-72

[1971-72] PNGLR 26 - Sacred Heart Mission (New Britain) Property Trust v Nambumutka/Simbali; In Re Toriu

[1971-72] PNGLR 26

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE SACRED HEART MISSION (NEW BRITAIN) PROPERTY TRUST

V

NAMBUMUTKA/SIMBALI AND ANOTHER

IN RE TORIU

Rabaul & Port Moresby

Prentice J

13-14 August 1970

29 January 1971

REAL PROPERTY - Appeal - Restoration of title - Land Titles Commission - Allegation of failure to investigate claim by Commission - Declaration of ownership subject to compensation - Failure to act judicially - Error of law - Verdict against weight of evidence - New Guinea Land Titles Restoration Ordinance 1951-1966, s. 42.[xvii]1

On the hearing of a claim to the freehold of certain lands made under the New Guinea Land Titles Restoration Ordinance 1951-1966, the Commissioner considered documentary evidence and the evidence of two witnesses. All parties were represented by counsel. The Commissioner apparently did not view the location during the hearing, and the record did not indicate that the Commissioner was familiar with it. On appeal to the Supreme Court inter alia on the ground that the Land Titles Commission had failed to investigate the claim and thereby committed an error of law.

Held:

Although it was perhaps desirable that the Commissioner should, in the circumstances, have visited the area and sought further evidence, it was not sufficient to show that the Commissioner had failed “to investigate” the claim within the meaning of s. 42 of the Restoration Ordinance 1951-1966 and therefore committed an error of law.

In relation to one of the areas involved in the claim, the Commissioner ordered that a freehold interest be restored to the claimant subject to the claimant paying the sum of $500 to a clan.

Held:

That the Commissioner had power to make such a declaration.

Re Rempi Land (unreported 4th December, 1970) followed; The Administration of the Territory of Papua and New Guinea v. The Director of District Administration; Re Nangumarum, [1969-70] P. & N.G.L.R. 26, referred to.

Cases referred to:

Director of District Administration v. Guardian of Expropriated Property; Re Wangaramut [No. 2] [1969-1970] P. & N.G.L.R. 410; Re Jomba Plains (Unreported 25th May, 1932, Phillips J., Madang); In Re Matala Lands (Unreported 22nd September, 1932, Phillips J., Rabaul).

Appeal From Land Titles Commission

The facts, the nature of the appeal, and the arguments of counsel, appear sufficiently in the judgment.

Counsel:

Gledhill, for the appellant Mission.

O’Neill, for the respondents.

Cur. adv. vult.

29 January 1971

PRENTICE J:  Three appeals were instituted in respect of a decision of the Land Titles Commission. The hearing of these appeals has overlapped in so far as they contain common matter and arguments; though argument was heard seriatim. My understanding of the matter has been rendered difficult by the confusion as to nomenclature and description which has occurred from the moment of initial claim, to the filing of appeals (in which an additional claimant whose name does not seem to appear anywhere in the record hitherto is joined to Appeal No. 39).

In 1952 the appellant in Appeals 37 and 38 (hereinafter referred to as “the Mission”) made a claim under the New Guinea Land Titles Restoration Ordinance 1951-1966 to the freehold of certain lands. No description was given of the land claimed except by reference to a vesting order. A perusal of the said vesting order purportedly made under s. 4 of the German Missions Ordinance 1926, reveals various categories of lands, and there appears among those headed “Registered Freehold Lands” three references to “Toriu” lands. These are set out as follows:—

Toriu	New Britain	N. W. Gazelle Peninsula	1100 ha. Ground Book Vol. 2 Fol. 187
Toriu on Beach	New Britain	N. W. Gazelle Peninsula	4 ha. Ground Book Vol. 2 Fol. 187
Toriu on Louis R.	New Britain	N. W. Gazelle Peninsula	500 ha. Ground Book Vol. 2 Fol. 187

I am not clear how many separate claims actually developed over the years from this source—but apparently three provisional orders were made in respect of “Toriu” land. One purported to declare an estate in fee simple in the Mission of land described as “Toriu Residue” being that shown on the sketch annexed as the land surrounding but not including “Toriu Plantation”—the area thereunder stated, the file reference being TC 456.

A second purported to declare a fee simple in the Mission of land described as “Toriu on Beach” again without metes and bounds—but reference to the attached sketch identifies a small area on the coast of the Bismarck Sea of the Toriu and the Ludwig Rivers—the file reference TC 456 (semble this should be 455).

A third purports to declare a 99 year lease in the Mission from the Administration from 1st July, 1930 of the land “Toriu Plantation”—reference to the “map” attached shows it to be an area of 381.6 acres said to be S.W. (sic) Gazelle Peninsula—the file reference TC 454. There is some difficulty visually reconciling the area delineated with that plantation shown geographically within but apparently excised from the area the subject of the first provisional order.

The above orders were made on 6th July, 1966, 16th February, 1966 and 11th February, 1966.

On 7th December, 1966 the Director under s. 36 of the Restoration Ordinance referred the question of native rights claimed by the respondent Nambumutka to “Toriu on the Beach” and “Toriu Residue”. Apparently no such reference was made in respect of “Toriu Plantation” though subsequent proceedings advanced on the footing that such a reference was made, as indeed appears obligatory under s. 37 of the Ordinance.

The three claims TC 454 (Toriu Plantation), TC 455 (Toriu on the Beach) and TC 456 (Toriu Residue) came before the Chief Commissioner of the Land Titles Commission on 13th March, 1967 and again on 15th July, 1967 at Rabaul. (It will be noted that the entity “Toriu on Louis River” has disappeared in the record. One assumes the “Toriu Residue” as dealt with, includes “Toriu on Louis River” and that portion of “Toriu” not planted up so as to become “Toriu Plantation” (? Bampfsagewerk Plantation).) Mr. Pratt appeared on behalf of the Mission, and Mr. Ley on behalf of the Director and native claimants. Apart from documentary evidence, the only other material before the Commission appears to have been the short oral evidence of one witness Simon Amarandin, a man of some 75 years, and his written statement, and a written statement of Mambutka/Simbali, the appellant, a man of some 42 years. The record does not suggest that the Commissioner viewed the location during the hearing nor does it appear to indicate his degree of familiarity with it.

The Chief Commissioner proceeded to give a final order and reasons for his decision in the following terms only:

“Reasons for decision

In this matter the bulk of the Mission’s claim lies in copies of documents from German times plus a mention of the properties in the vesting order in the German Missions Ordinance. There is no evidence of any attempt to process the land under the Lands Registration Ordinance. Having seen and heard the witnesses I am satisfied that the particulars of the land as entered in the copy of the ground book would have been altered if the matter had been processed by Dr. Hahl in German times or Mr. Justice Phillips in Australian times before the war. Looking at all the facts I feel that either of these gentlemen would have ordered some form of compensation and also would have excised some of the areas concerned. My view on the evidence is that to do justice I should now order that with regard to the planted up area the portion known as the plantation having an area of about 381.6 acres and the portion known as Toriu on the Beach having an area of about 10 acres that provided the Mission pays the sum of $500 to Nambum-Utka (sic) on behalf of his clan on or before 30th November, 1967, a final order restoring the freehold title shall be issued in favour of the Mission. With regard to the balance of the land known as Toriu Reserve (sic) included in the three provisional orders there should be a final order of no interest.

If the sum of $500 is not paid by 30th November, 1967 there should be a Final Order of No Interest on all three claims.

I order accordingly.”

I am charged with a multiplicity of detailed grounds of appeal, from which I am able to take only one grain of comfort, viz. that in the running, the Mission withdrew its Appeal No. 38 (that against “the order” for the payment of $500). The burden of complaints may be summarised now:

N2>(a)      the Mission complains at losing Toriu Residue;

N2>(b)      the natives complain at losing Toriu on Beach and Toriu Plantation.

No evidence was presented in these matters that any steps had ever been taken by the Registrar of Titles to bring these lands which were registered in the Ground Book into a register, under the Lands Registration Ordinance 1924-1937 (s. 16). Accordingly, the only way the Mission’s claims could have been pursued to fruition was by application of s. 67(3) of the Restoration Ordinance. An examination of the Chief Commissioner’s reasons for decision lead me to the conclusion that he was of the opinion that in notionally applying ss. 16 to 43 of the Lands Registration Ordinance 1924-1939 he should conclude that on a reference under these sections a court would have found—

N2>(1)      native rights of such a kind relating to Toriu Plantation and Toriu on Beach and potential hardship to the Mission should such rights be allowed to override the Mission’s claim to these portions of land—that it should make an order under s. 27e;

N2>(2)      native rights of such a kind relating to Toriu Residue and no or insufficient hardship to the Mission should such rights be allowed to over-ride the Mission’s claim—that s. 27e would not have been resorted to and that in the application of s. 27c an order should have been made disentitling the Mission and recognising native claims.

The properties of 1100 hectares and 4 hectares originally known as Toriu and Toriu on Beach are entered in the ground book at vol. 2 fol. 187 in pursuance of contract of 3rd November, 1904. That of 500 hectares originally known as Toriu on St. (sic) Louis River was according to a survey report of 1907 taken possession of “by Treasury of the State for the purpose of alienation to the abovementioned Mission”—the occupation document of 18th July, 1907 refers. This property is also entered on vol. 2 fol. 187 of the ground book. As there is no other evidence as to acquisition from the Mission side, the claim to all the properties stems from the one source. In so far as the Chief Commissioner has purported to declare ownership in the Mission subject to compensation, of some only of the 1100 hectares and of all the 4 hectares, and no interest in the Mission in respect of the remainder of the 1100 hectares as well as the 500 hectares, it is clear that the differentiating factor must lie to his mind in—

N2>(a)      differing usage and (?) potential hardship to the Mission;

or

N2>(b)      differing native rights to the separate pieces, rather than any differences in the Mission’s root of title to the three pieces of land.

There is evidence that in early German times a sawmill was set up and the Toriu Plantation area was cleared and planted with coconuts, apparently by German Brothers of the Mission. Certain cements were placed and marks established by the planting of coconuts and lemon trees. A sawmill was maintained until the Japanese war. There were a succession of leases after that war. Logging was continuing in 1966. The natives are apparently content to allow the Mission to retain the plantation (as appears from Simon’s statement and Ellis’ letter).

The case for native rights as stated by Simon and Mambutka is that no payment for any of the lands claimed was ever made to the natives, the significance of cements was not understood earlier in the century, but when sufficient common language had been established the natives made a claim to the German Brothers that the land was claimed by and belonged to the Madarambit people. No distinction was made between the pieces of land—all was said to be used for cooking salt, hunting and fishing and (but semble, doubtfully) gardens.

Both appellants placed in the forefront of their appeals the submissions that the Chief Commissioner had without jurisdiction, and in purported reliance on s. 27e of the Lands Registration Ordinance, made orders for compensation. Counsel for the natives and the Director relied on this to vitiate the order in the Mission’s favour for Toriu Plantation and Toriu on Beach. The Mission’s counsel relied on the Chief Commissioner’s alleged error in seeking to set aside the order of no interest (that is, a decision in the natives’ favour) in respect of Toriu Residue, but on the other hand supported the Chief Commissioner and alleged no error in this regard, in seeking to maintain the order in the Mission’s favour for Toriu Plantation and Toriu on Beach. This approbation together with reprobation has not assisted my clear consideration of the problem.

The argument on this head relies on a judgment of Clarkson J. in Re Nangumarum lands in the Sepik[xviii]². His Honour at the invitation of counsel, proceeded obiter in that case, to decide that there was no power given by the Restoration Ordinance to the Land Titles Commission to make an order for compensation, where the Commission was of opinion that an order would have been so made by a court acting under the repealed s. 27e of the Lands Registration Ordinance. His Honour’s decision it is said, could be considered obiter on another ground, that the matter before his Honour involved an order declaring a leasehold interest whereas that part of the Lands Registration Ordinance in which s. 27e appeared dealt only with freehold. Mr. Gledhill in these appeals before me, in a closely reasoned argument, submitted that on a s. 67(3) situation, the Restoration Ordinance ss. 17(1)(d) and 42(1) (“in such other terms as it thinks just”) should be construed as allowing an award of compensation so as to avoid injustice. With respect, I am disposed to agree with the reasoning of Clarkson, J. in Re Nangumarum. However, since argument was concluded in this case, a further decision has been given on the subject—that of Minogue, C.J. in Re Rempi Land[xix]³; in which His Honour indicates his opinion that the Commission may give effect to s. 27e of the Lands Registration Ordinance (at p. 8). I respectfully agree in the Chief Justice’s interpretation of the Commission’s powers, and to my mind it is shown that this is what the Chief Commissioner has purported to do in this case. He has found established a right in the Mission to registration of a free-hold interest, contingent upon its payment of a sum of $500 to the natives. I consider the Chief Commissioner had power to make such a declaration.

I proceed now to a consideration of the particular grounds of appeal laid by the Mission in respect of its failure to gain an order for Toriu Residue.

EXCESS OF JURISDICTION

N1>3(a)(i) A failure to investigate the claim as required by the Ordinance is submitted under this ground. Assuming that the Land Titles Commission had failed to investigate the claim and reference (as to which see later) I am unable to appreciate an argument which seeks to constitute this, as a matter of logic, as amounting to an excess of jurisdiction.

N1>3(a)(ii) An excess of jurisdiction was next sought to be spelt out from a failure to act judicially. Under this ground I understand it to be submitted that the decision was an arbitrary one in that the Chief Commissioner “restored” a Mission title to Toriu on Beach as to which land there had been no evidence of mission occupancy or use, but found “no interest” in Toriu Residue, which was shown to have been used at least as the site of a sawmill. The Commission’s differentiation may be based on many factors (the evidence being sketchy)—the desirability of a plantation being worked in association with some right of access from a coastal strip, the result of a notional application of s. 27e or of s. 27c. I am not prepared to find that the Commission has been arbitrary, non-judicial, and so exceeded its jurisdiction.

N1>3(b)(ii) The Mission argues hereunder that the compensation provision of the decision was arrived at on considerations which the appellant was not given the opportunity to test. Counsel for the natives refused to admit that the question of compensation was originated by the Commissioner and decided without reference to the appellant (though he too considered the actual order incompetent as per the Nangumarum position[xx]⁴ ), and indeed some questions asked by appellant’s counsel indicate that this was a live question at the time of the hearing, in his mind. Section 27e considerations must have been uppermost in both counsels’ minds. No question has been raised as to the inaptness or insufficiency of the actual amount of compensation determined. And while no evidence appears to have been led directly on a valuation basis, having regard to the evidence as to the nature of and user of the subject land and the location thereof, I am not prepared to find that the Chief Commissioner with his admitted very great experience in matters of this kind and familiarity with terrain, has misdirected himself in this regard.

ERROR OF LAW

N1>3(c)(i) Counsel’s argument hereunder is that bearing in mind the prima facie entitlement to registration (as he puts it) raised by the ground book entries, the requirements of ss. 16 and 42 of the Restoration Ordinance “to investigate”, and under its s. 67(3) the notional application of s. 26(2) of the Lands Registration Ordinance requiring (the court) to “take all measures which it deems fit in order to be informed as to native rights”, imposes a heavy duty on the Commission which would not be satisfied by the mere reception of the evidence proffered in this case. Plainly I should have thought it is desirable for the Commission, seized with such claims as these, to walk the bounds, if at all possible, and to hold interviews and take evidence of residents upon and near the land. When one compares the time and attention given in former years by Phillips J. as he then was (Jomba Plains[xxi]⁵ and In re Malala Lands[xxii]⁶ cases), the material put before the Commission in some cases of recent years is sketchy in the extreme, in some cases pitiful, and such as must render the doing of justice and equity extremely difficult. However, in this case the Chief Commissioner was favoured by the submissions of competent and experienced counsel and it is not without significance that, except by tender and reliance upon documents, the evidence of prior native ownership for customary rights and that of non-alienation by owners or rights holders is not challenged. The fact that I myself should have felt disposed, as I think I certainly should, to have visited the area and personally sought out, if possible, evidence from mission and native sources, is not I think, sufficient for me to come to the conclusion that the Chief Commissioner has “failed to investigate” within the meaning of the section and therefore committed an error of law.

3(c)(iii)         In my opinion there is nothing to establish that the Chief Commissioner has not given proper weight to the ground book particulars such as the nature of the register itself and the presumption of regularity of official procedures would require and such effect as s. 49 of the Restoration Ordinance might work.

3(c)(iv) and (v)        As I understand it, Mr. O’Neill for the natives concedes that the reference in the Chief Commissioner’s reasons to Dr. Hahl is irrelevant; but to my mind the reference to Phillips J. indicates that the Chief Commissioner had been proceeding to consider the requirements of s. 67(3) of the Restoration Ordinance in an appropriate manner. It seems to me that nothing turns on the reference to Dr. Hahl.

VERDICT AGAINST THE WEIGHT OF EVIDENCE

N1>3(d)(ii) and (iii)         In my opinion there is evidence on which the Chief Commissioner could have come to the conclusion that the original true owners did not sell Toriu Residue or alternatively, that native rights less than ownership existed which had not been disposed of or that even if such rights as existed had been sold, in applying the provisions of s. 27c of the Lands Registration Ordinance, a court would have held no entitlement to an interest or registration of an interest in this land—that this land should have been excised. I am unable to find that the Chief Commissioner’s decision was plainly wrong (Wangaramut decision[xxiii]⁷).

Turning now to the particulars in the natives’ Appeal No. 39 of 1969 (N.G.).

Ground of appeal 3(i) and 3(iv) relate to the “award of compensation”. I have already dealt with this in my reasons above.

N1>3(ii)    I am satisfied that I cannot find the Chief Commissioner’s decision against the weight of evidence, applying the Wangaramut test.

N1>3(iii)    I am not satisfied that the Commission has made a wrong application of s. 27e and thus has made an error of law, exceeded its jurisdiction, or denied natural justice.

For the above reasons I am of the opinion that Appeals numbered 37 and 39 should both be disallowed. Appeal number 38 has, of course, already been withdrawn.

Being of the opinion that the decision of the Commission should be affirmed but that the justice of the case requires that the compensation provisions be extended so as to allow for compliance at this date with the contingency upon which final orders may issue—I substitute for the Commission’s decision a decision in identical terms to that made by the Chief Commissioner, substituting for the words “30th November, 1967” where appearing the words “31st March, 1971”.

Liberty is reserved to apply for costs.

Orders accordingly.

Solicitor for the appellant Mission: Cyril P. McCubbery & Co. Town agents for F. N. Warner Shand, Rabaul.

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

[xvii]Section 42 of The Restoration Ordinance provides as follows:

“Subject to Section 37 of this Ordinance, the Commission shall, after the date specified in the Notice published under Section 34 of this Ordinance, proceed to investigate, hear and determine the claims, objections and references which are the subject of, or relate to, the provisional orders listed in the notice, and to make final orders in respect thereof, either in the same terms as the provisional orders, or in such other terms as it thinks just.”

[xviii][1969-70] P. & N.G.L.R. 26.

[xix]Unreported Judgment No. 595 (Minogue, C.J., 4th December, 1970).

[xx][1969-70] P. & N.G.L.R. 26.

[xxi]Unreported judgment of Phillips J., 25th February, 1932, Madang.

[xxii]Unreported judgment of Phillips J., 22nd September, 1932, Rabaul.

[xxiii][1969-70] P. & N.G.L.R. 410.