Nomgui v Administration of the Territory of Papua and New Guinea (re Lae Administration Land) [1974] PGSC 26; [1974] PNGLR 349 (4 September 1972)

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[1974] PNGLR 349 - Gaya Nomgui v The Administration of the Territory of Papua and New Guinea (re Lae Administration Land)

THE ADMINISTRATION OF THE TERRITORY OF PAPUA NEW GUINEA (RE LAE ADMINISTRATION LAND)

REAL PROPERTY - Ownerless acquisition under the law of German New Guinea - Ground Book registration - Evidence, weight to be given to oral evidence compared to contemporary official records - Compulsory acquisition - Evidence, proof of title necessary to justify award of compensation for compulsory acquisition - Land Ordinance 1922-1927, ss. 69-71[cdlv]¹, Lands Registration Ordinance 1924, s. 26 (4)[cdlvi]².

N1>(1) that under the Directions of the New Guinea Company to its officers on the acquisition of land of 10th August, 1887, a careful examination had to precede the acquisition of “ownerless” land. Any land claimed to belong to natives and supported by use or reputed ownership had to be temporarily excluded from acquisition and advice sought as to whether it should be purchased. A bare claim, unsupported by such evidence was not sufficient to prevent acquisition of the land as ownerless. Where, on the other hand, there was no indication that the land was the property of natives or where there were some “existing markings” on the land suggesting apparent native use but it was impossible to get information on the meaning of the markings, the ownerless acquisition could proceed but the officer had to record the result of his observations and inquiries. If it was later found that any parts of the area acquired were used by natives they could be excised out of the larger area as native reserves.

N1>(2) (By Clarkson and Prentice JJ.), that in comparing oral evidence of what happened many years ago with contemporary official documents from that period, special weight must be given to the official records. Traditional history is liable to corruption as a result of self-interest, pride, misunderstanding or mere forgetfulness of any narrator or listener. The contemporary records, on the other hand, reflect the facts as then seen by the recorder; no subsequent event can change what has been written; the only point at which the accuracy of the record can be challenged is at the time of recording. If special weight were not given to contemporary records, there is the danger that they would, with the passage of time and the disappearance of collateral evidence, be discarded in favour of traditional history as propounded by the last listener with the result that claims based on traditional history which would have failed when all the facts were known would succeed when knowledge of most of the facts had been lost.

N1>(3) (By Clarkson J. and semble Prentice J.), that registration in the Ground Book in 1910 created a presumption of ownership in favour of the New Guinea Company and that this presumption was not rebutted by evidence that a claim to customary ownership had existed since about 1935. Held by Frost S.P.J., dissenting on this point, that the Ground Book registration gave no presumption of ownership against natives because of the provisions of s. 26 (4) of the Lands Registration Ordinance 1924 and the scheme in Division 2 of Part III of that Ordinance for bringing Ground Book titles onto the Torrens register.

N1>(4) (By Clarkson and Prentice JJ.), that the documentary evidence established that the land was “ownerless” in 1900 as that term is used in the law of German New Guinea and that the New Guinea Company’s acquisition of it was valid. This evidence outweighed the oral evidence that there were some native gardens on the land at an early but imprecise date. Held by Frost S.P.J., dissenting on this point, that the trial judge was not wrong in concluding that the Company’s acquisition of the land was invalid.

N1>(5) (By Frost S.P.J.), that the trial judge was correct in his reasoning and finding that the 1927 resumption of the land was valid. A resumption notice under s. 69 of the Land Ordinance 1922 (N.G.) must specify the public purpose or purposes for which the land is acquired. Jones v. The Commonwealth [1963] HCA 43; (1963) 109 C.L.R. 475 applied. Where land is resumed for a number of authorized public purposes it is not necessary for the notice to specify which portions of the land are to be used for each of the stated public purposes. The word “hereinafter” in the phrase “or for any other public purpose which may hereinafter be specified” means later or below in the document. As no other public purpose was later specified in the resumption notice, the phrase can be ignored and does not make the notice void for uncertainty.

N1>(6) That to support an award for compensation to the plaintiffs for the 1927 resumption it was necessary for the plaintiffs to prove that they owned the land the subject of the resumption. As each plaintiff group claimed exclusive ownership of a number of plots (with a few exceptions) it was necessary for each group to prove title to the plots it claimed. The evidence did not identify the plots with particularity, there was no evidence given on the ownership of some plots and conflicting evidence given as to the ownership of other plots. The trial judge himself said that it was not possible to make findings as to the ownership of each individual plot of land. On this evidence the plaintiff’s claim to compensation should have failed and the trial judge was wrong in awarding compensation based on general apportionment of land by acreage among the claimants.

In 1966, Gaya Nomgui and others issued a writ against the Administration of the Territory of Papua and New Guinea claiming compensation for 11,933 acres of land on which the town of Lae is built. The history of the Administration’s title was that the land had been acquired by the New Guinea Company in 1900 as ownerless and registered in the Ground Book in 1910. In 1920 the Company was expropriated and its title passed to the Custodian of Expropriated Property. The Administration resumed the land from the Custodian in 1927 under s. 69 of the Land Ordinance 1922-1927. Following the destruction of titles and other land records in World War II, title was restored to the Administration in September 1965 under the provisions of the New Guinea Land Titles Restoration Ordinance 1951-1963 and a certificate of title was registered in the name of the Administration in January 1966.

The plaintiffs claimed that the land was owned by their fore-fathers in 1900 by native custom and that the purported ownerless acquisition by the New Guinea Company and its subsequent Ground Book title were invalid. As the Company had no title, so they claimed, the Custodian gained no title by his expropriation of the Company. The plaintiffs also claimed that the 1927 resumption was invalid and that they were entitled to compensation or mesne profits for deprivation of the land from 1900 to September 1965 or January 1966. Alternatively, if the 1927 resumption was valid, they claimed they were entitled to the compensation for it.

The trial judge found that the plaintiffs’ predecessors in title owned the land by native custom in 1900 and that the Company’s purported acquisition was invalid. Likewise, the Ground Book registration and the 1920 expropriation were invalid and did not deprive the customary owners of their ownership. His Honour held that the 1927 resumption was valid and that compensation for it should be paid to the plaintiffs together with simple interest at the rate of five per cent per annum from the date of resumption to the date of payment. His Honour awarded $2,400 in all plus interest to the fourteen plaintiff groups.

J. F. Kearney Q.C. and with him A. R. Castan and M. Campbell for the plaintiffs.

KELLY J: This action relates to an area of 11,933 acres of land in the Morobe District between the Markham River and the Bumbu River known as “Lae Administration Land” on which the town of Lae is built and of which the defendant is the registered proprietor.

The action is brought by seventeen plaintiffs each of whom sues on his own behalf and on behalf of a named village group. For reasons which will be indicated later, the claims by the last three named plaintiffs are no longer being pursued. Two of the original plaintiffs having died since the commencement of the proceedings, orders were made at the hearing for other persons to represent the two groups concerned. The plaintiffs seek various declaratory orders and monetary compensation.

The subject land (or rather an area slightly smaller in extent than that contained in the present Certificate of Title, although the difference is not material) is said to have been occupied by “The Colonial company The New Guinea Company, of Berlin” (to which I shall refer as “the New Guinea Company”) on 5th April, 1900. On 25th August, 1910, the New Guinea Company was entered as owner of the land in the “Land Register of the Colony of German New Guinea Finch Haven” (to which I shall refer as “the Ground Book”) in pursuance of that occupation and of the Imperial Governor’s Certificate of 15th May, 1903.

In 1920 pursuant to the provisions of the Expropriation Ordinance 1920 the subject land purportedly became vested in the Public Trustee and subsequently in the Custodian of Expropriated Property. In 1927 by a notice dated 27th August, 1927, published in the New Guinea Gazette on 31st August, 1927, the defendant purported to resume the land under s. 69 of the Land Ordinance 1922-1927. The evidence does not show whether or not the land or any part of it was thereafter brought under the Lands Registration Ordinance 1924 (as subsequently amended) although preliminary steps for that purpose were taken in 1934 in respect of part of the land within the then town boundary of the Town of Lae.

Following the making of a provisional order on 9th November, 1953, the Land Titles Commission on 21st September, 1965, made a final order under the New Guinea Land Titles Restoration Ordinance 1951-1963 establishing absolute ownership by the defendant and declaring that there were no native customary rights retained by a native or native community. Pursuant to that order on 18th January, 1966, a Certificate of Title issued and the defendant became registered as registered proprietor of the land pursuant to the provisions of the Lands Registration Ordinance 1924-1962.

The plaintiffs’ claims proceed on several alternative bases. Firstly, they set up that between them the various groups represented in these proceedings as those groups were then constituted were the owners by native custom of the whole of the subject land prior to and as at 1900 and that this being so and also for other reasons in law with which it is not necessary to deal at this stage the New Guinea Company did not validly acquire the land in 1900 as it purported to do and that the subsequent entry in the Ground Book did not operate to create any title to the land in the New Guinea Company. It follows of course that if that claim is well founded the land did not vest in the Custodian of Expropriated Property and the plaintiffs then claim that at the time of the purported resumption in 1927 the various groups were still owners of the whole of the land, each of them owning a defined portion of it.

The groups represented belong to three distinct major groups. The Tumatu, Agatu, Gwatu, Apo, Busuram and Wapigurhu groups, all of whom now reside in Butibum Village, are collectively referred to as “the Butibams” (or “Butibums”). The Luhu, Tia, Kamkumun Uapu, Hiwapa (mis-spelt in the title as Miwapa), Wapi, Mambu No. 1, Mambu No. 2 (the last three named groups being in fact sub-groups of the Wapi clan) and Kamkumunlu, all of whom now reside in Kamkumun Village, are collectively referred to as “the Kamkumuns”. The Labu Tale, Labu Miti and Labu Butu village groups are collectively referred to as “the Labus”. On the third day of the hearing senior counsel who appeared for all the plaintiffs indicated that the last three named plaintiffs representing the three Labu village groups now recognize that at the relevant times the owners of the land that they claim were really the Butibums and that the claim of the Labus fell short of complete ownership and was limited to rights of use and occupation by permission of the Butibums. Thenceforth the Butibums pursued their claim in regard to the land originally claimed by the Labus as owner and in the further and better particulars subsequently furnished by the plaintiffs there is no land shown as having been in the ownership of the Labus.

The plaintiffs further claim that the notice of resumption given in 1927 was wholly ineffective and inoperative and did not operate to effect a resumption of the land from the true owners. Alternatively, they say that if and in so far as the land was properly and effectively resumed by the defendant it thereupon became obliged to pay to the plaintiffs or their predecessors in title compensation for the resumption of the land pursuant to the provisions of s. 71 of the Land Ordinance 1922-1927 and that the defendant failed to pay such compensation.

The next claim by the plaintiffs proceeds on the assumption that the notice of resumption was ineffective and that the plaintiffs or their predecessors in title were still the true owners of their respective areas of the land when the final order of the Land Titles Commission was made in favour of the defendant in September 1965 or alternatively as at January 1966 when the defendant became registered proprietor. Consequently they claim mesne profits from the date of resumption until the date of the final order or alternatively the date of registration on the basis that the defendant had during that period wrongfully trespassed on the land and purported to act as the true owner of the land and had used it for its own purposes. They also claim to be entitled to compensation by reason of their having been deprived of their ownership, interest in and title to the land, as they are compelled to accept the position that the effect of the relevant legislative provisions is that at the institution of the action in April 1966 the defendant had an indefeasible title to the land. In so far as the claim for compensation is based on the final order of the Land Titles Commission it is brought under s. 41 of the Land Titles Commission Ordinance 1951-1963 and alternatively in so far as it results from the actual registration consequent on that order, it is brought under s. 177 of the Lands Registration Ordinance 1924-1962.

The starting point is therefore an examination of the position as at 1900, but before doing so it is necessary to deal with certain evidentiary questions. Objection was taken to a question asked of the first witness Silas Tamake, the leader of one of the groups of the Wapi clan, the question being—”Were there any customary lands of the Kamkumuns between the Bumbu and the Markham?”, it being understood that the witness was being asked to answer this question on the basis of what he was told by his grandfather or grandmother, so that the answer would necessarily be hearsay. It was sought to justify reception of this evidence on two bases; one as constituting evidence of native custom under the Native Customs (Recognition) Ordinance 1963 and so admissible under the terms of that Ordinance and the other as a declaration by a deceased person concerning either public or general rights and so admissible under common law as an exception to what is generally referred to as the hearsay rule. For reasons which I then gave I considered that the Native Customs (Recognition) Ordinance did not authorize reception of hearsay evidence of the type sought to be adduced by the question to which objection was taken. However, on its being established that the declarant was deceased and that he or she had the requisite means of knowledge of the matters on which the declaration was made, I admitted the evidence as a declaration by a deceased person concerning general rights. Following this ruling evidence of this nature was adduced from a number of witnesses from the various groups represented.

Objection was also taken to certain evidence which it was sought to adduce from Mr. A. Kingsley Jackson whom the plaintiffs called for the purpose of giving expert evidence as to customs which prevailed among the people of this area which were said to be relevant to the matters for my determination and also for the purpose of expressing an opinion as an expert on the customary ownership of the land. Mr. Jackson had had some training and experience in this field and as an officer of the Administration had conducted an investigation into this very matter in February 1966. I decided that the evidence should be admitted subject to objection so that I must now determine whether the evidence objected to is admissible and so should form part of the material on which I am to decide this matter.

I see no problem in admitting that part of Mr. Jackson’s evidence which relates to the existence and nature of native custom, even though such evidence is based upon hearsay. Section 8 of the Native Customs (Recognition) Ordinance allows native custom to be taken into account in relation to the ownership by native custom of or of rights in, over or in connexion with native land and by s. 5 in considering the question of the existence and nature of native custom in relation to a matter, hearsay evidence is admissible. The operation of those statutory provisions in this instance therefore makes that part of Mr. Jackson’s evidence admissible.

Different considerations apply, however, to the other part of the evidence objected to in which he gives opinion evidence as to the ownership of the land at a prior point of time and bases that opinion at least in part upon what he was told by other persons, some of whom would necessarily have been recounting what they had been told by their ancestors then deceased. I am satisfied that Mr. Jackson has the necessary qualification to give opinion evidence on this subject as an expert and this aspect is not really in question. This type of evidence coming from Mr. Jackson is not covered by the rule under which declarations by deceased persons as to general rights are admissible as it is not put forward in that form but as an expression of opinion by the witness. The opinion thus expressed is based in part on information which was not within the witness’s own knowledge and which at the time at which he was giving his evidence had not been proved independently by admissible evidence as a matter of fact, nor indeed was he asked to assume as facts the matters which it was subsequently intended to prove through other witnesses. The precise source of the information which Mr. Jackson used in the course of forming his opinion was not made clear. However, by the close of the plaintiffs’ case there was before the Court a considerable body of admissible evidence on matters of fact relevant to the question of ownership and I am prepared to infer that it was material of this nature which Mr. Jackson used along with other matters which he detailed in the course of his investigation for the purpose of forming his opinion. In the circumstances, and not without some doubt, I consider that I should admit this opinion evidence given by Mr. Jackson. I think that ultimately the real question is one of the weight rather than of the admissibility of this evidence and I would say now, and without intending any disrespect to Mr. Jackson, that in arriving at a conclusion as to whether specific areas of the subject land were at any relevant point of time owned by the plaintiffs or their predecessors in title I have preferred to base that conclusion principally upon the direct evidence given by witnesses from the various groups rather than on the opinion formed by Mr. Jackson, although, as will be seen, I have given some weight to his opinion.

The remaining category of evidence which is the subject of objection consists of the statements of three persons now deceased (Mopi-Hegaru, Ahi-Yomkwa and Omba-Aisia) which are annexed to an affidavit sworn by Mr. Jackson which was admitted subject to objection and marked as Exhibit 3. These statements contain some passages which might be construed as declarations as to general rights but these are interspersed with numerous allegations of a factual nature which would not come within that category and in the case of two of the declarants (Mopi-Hegaru and Omba-Aisia) it is not altogether clear whether or not they had competent knowledge of the matters on which they professed to speak. I do not consider that there is any proper basis on which the statements of Mopi-Hegaru and Omba-Aisia could be admitted in evidence and I accordingly exclude them. In the case of the statement by Ahi-Yomkwa, whilst in so far as it contains declarations of general rights it would appear that from his position as the leader of the Gwatu at the time it might be assumed that he would have competent knowledge of such matters, nevertheless taking the statement as a whole I do not think that isolated sentences should be picked out of it and put in evidence so that in this case also I consider that the proper course is to exclude the statement.

The first matter for inquiry is whether the acquisition purportedly made in 1900 by the New Guinea Company gave that company a valid title to the land. The Ground Book records that the New Guinea Company is the owner of “a property on the Markham River under virgin forest, not yet brought under cultivation”; the boundaries are described in a manner which enables the land to be identified as being substantially the subject land and the area is given as 4,743 hectares, 41 ares, 99 square metres (which is approximately 11,721 acres). The time and manner of acquisition are thus described—“Entered on 25th August, 1910, in pursuance of the occupation (Besitzergreifung) on 5th April, 1900, and of the Imperial Governor’s certificate of 15th May, 1903.”

It is first necessary to examine the German law applicable to the purported acquisition. By what is described as an Imperial Letter of Protection (or Charter) of 17th May, 1885, the New Guinea Company was granted permission to exercise certain sovereign rights and also the exclusive right, inter alia, to acquire ownerless land in territory in which the subject land lay. There followed an Imperial Ordinance of 20th July, 1887, pursuant to which regulations dated 10th August, 1887, were enacted and approved by the Reichs-Chancellor dealing with the procedure to be followed in the acquisition of real estate by the New Guinea Company. It is desirable to set out in full the regulations relating to the acquisition of ownerless land which are in the following terms:—

A careful examination must precede the actual acquisition, i.e. whether the land which is to be taken into possession, is land used by the natives for food production or for some other purpose, or whether it is known to belong to an individual or a community, and whether—because of this—it is claimed by particular persons as property.

N1>2. Where such situations become apparent upon examination, investigations must be instituted — which persons have a claim to the properties in question and of what kind these claims are. This is to be done by questioning natives, who settle nearby, particularly questioning the heads of the family, the head man of the communities or similar institutions, wherever they may be available. In the process of questioning and the following discussions an interpreter should be engaged if at all possible. Furthermore a record must be established of these proceedings from which the course of the investigations and particularly the questions and answers relating to claims will become apparent.

Plots which are thus claimed must be temporarily excluded from acquisition, and advice must be sought whether negotiations should be made with the alleged claimants or not. If negotiations should be made, the regulations of paragraph 5 f. are to be applied.

N1>3. If there is no indication that the land is property of natives, or if it is impossible to get information on the meaning of existing markings — because there are no natives in the vicinity or because it is not possible to gain information from them—observations made and the attempts to gain information must be registered in detail—and acquisition may proceed.

N1>4. The taking of possession (acquisition) takes place in the following manner: border posts, stones, fences or other markings will be installed to show that and to what extent the plot has been appropriated by the New Guinea Company. This act must be registered and the following information must be shown therein:

N1>(a) the position of the acquired plots with an indication of possible natural borders, the natural condition or possibly cultivation of the plot and its natural size.

N1>(b) Number, type and kind of the markings used to indicate the take-over of the property (land, plot, real estate).”

The Imperial Ordinance of 20th July, 1887, required the production of a certificate issued by a specified official confirming the acquisition prior to registration in the official title register of properties of the New Guinea Company. The form of the certificate is provided in par. 38 of a decree of the Reichs-Chancellor dated 30th July, 1887.

By a contract made between the Reichs-Chancellor on behalf of the Reich and the New Guinea Company effective as from 1st April, 1899, the Reich withdrew from the New Guinea Company and itself took over the sovereignty over the Protectorate previously granted to the Company. The Company renounced in favour of the Reich the rights of property granted to it by the Letters of Protection in particular the sole right to take possession of ownerless land but it became entitled to acquire within ten years from 1st April, 1899, in Kaiser Wilhelmsland or New Pomerania and the islands belonging thereto a total of 50,000 hectares of its choice without payment, subject to certain limitations which it is not necessary to consider for the present purpose. The Company was required to inform the representative of the Reich about the selection of land in each case and to prove within one year that in agreement with existing regulations the selected land was either acquired as ownerless or from natives. Regulations 1 to 4 of the regulations of 10th August, 1887, as set out above thus continued to apply.

On 8th February, 1900, the Federal Council resolved to grant to the New Guinea Company, inter alia, the power to acquire under its name rights, in particular property and other real rights on land.

The regulations of 10th August, 1887, were cancelled by a decree of the Governor of German New Guinea made on 22nd July, 1904, pursuant to powers given by an Imperial Order of 21st November, 1902, and a decree of the Reichs-Chancellor of 30th November, 1902. The regulations were thus in force as at the date of the purported acquisition which, from the Ground Book entry, would have been 5th April, 1900.

The Imperial Order of 21st November, 1902, provided by par. 21 that if a person is entered in the land register as owner it will be presumed that he is the owner.

In view of the terms of the regulations of 10th August, 1887, the crucial question is whether the subject land was on 5th April, 1900, “ownerless” which in this context particularly in view of the wording of reg. 1, I take to mean land which is not claimed by particular persons as being their property (whether or not it is in fact “owned” by them). As I read the regulations the intention is to permit acquisition, as distinct from purchase, only of land in respect of which after careful investigation it can be said that nobody is asserting any claim to ownership. The regulations draw a distinction between on the one hand “ownerless” land which may be simply acquired and on the other hand land which is the property of natives or claimed by individual natives or communities which has to be the subject of purchase by agreement. There is no definition given in the regulations themselves or any legislative provision elsewhere so far as I am aware of the word “ownerless” and I would with respect share the view of Ollerenshaw A.C.J. in Tolililu and Tolikun v. Director of Native Affairs[cdlvii]³ that ownerless land for this purpose was land which after the prescribed inquiries appeared to be unclaimed and further that whilst a temporary non-user would not necessarily make land ownerless a long and unexplained non-user may well be a factor for consideration.

Evidence on this matter was both documentary and oral. The documentary evidence was reasonably precise as to date and whilst there was no document purporting to deal with the position as at the relevant date there was documentary material relating to periods before and after 1900. As might be expected the oral evidence was imprecise as to date but, as will be seen, it is possible by reference to known events, the dates of which are established, to place at least some of the oral evidence as relating to periods before or after 1900 as the case may be.

The documentary material commences at 1887 with a report by Captain Dreger in which he refers to finding plantations belonging to villages at the mouth of the Markham upstream for a distance of about two miles. He says however that he saw no settlements on the banks of the Markham except those situated quite close to the mouth. In 1893 Kaernbach referred to “the large village of Lugamu at the foot of the Bungberg” which apparently refers to what is now known as Mount Lunaman (also known as the Burgberg) a prominent feature on the subject land, and he says that many crops were grown there.

The next document is dated 26th June, 1903, and is described as forming part of a list dealing with investigations of the Administration (presumably the German Administration) into land claims of the New Guinea Company in Kaiser Wilhelmsland. The original document is said to have been signed by Stuckhardt described as then being the District Commissioner in Friedrich Wilhelmshafen. It seems likely that this was the Judge Stuckhardt referred to by Phillips J. (as he then was) in his judgment in the Jomba Plain case[cdlviii]⁴ as the “Ground Book official”. The authenticity of this document, a copy only of which was before me, was not questioned and I accept it as such. This document records, under the heading “Result of examination on the spot” the following:—

“19/1/1903. All natives living in the vicinity agreed that no settlements were located in the area and that no claims as to ownership existed. From the Burgberg a fence was seen in the distance, this is reason for the reservation regarding plantations. The taking into possession is otherwise approved.”

The reservation referred to relates to the entry in Column I of the Ground Book and states, “reservation only with regard to plantations (not regarding settlements)”. The precise significance of the reference to the “reservation” is not clear.

Next in point of time is a sketch map possibly made in 1906 which shows between the coast and some high ground to the west of the Bumbu River an area marked “gardening area of the Lahe”.

Then comes a report by the District Commissioner in Friedrich Wilhelmshafen of a visit to Logamu (which appears to be approximately the present site of the town of Lae) in August 1907 in the course of which he was told of an attack, apparently recent, made by the Lahe-Womba on the Logamu people. Other evidence to which reference will be made shows that the Lahe-Womba lived further inland to the north of the subject land. In describing an expedition made up the Markham, he refers to passing through “the now deserted gardens of the Logamu people”. The report also refers to a letter received from the Neuendettelsau Mission which showed that the situation on the Markham had deteriorated quite considerably since the Commissioner’s last visit. This would seem to suggest that the situation to which he refers was of comparatively recent origin and almost certainly that it had arisen since 1900.

Another report of the year 1907 was made by Froehlich who it seems was a surveyor employed by the New Guinea Company and was in the area of the Burgberg from September to December 1907. This report speaks of an apparently recent attack on the coastal people by marauding tribes from the interior which resulted in many of the inhabitants of the Logamu villages being killed and the remainder leaving the villages. The writer makes the comment: “It was peculiar that the whole area between the Bumbu and Markham Rivers was uninhabited (that is ownerless). This can be regarded as unusual for Kaiser Wilhelmsland.... On further inquiries I learned that the area had been inhabited in earlier years. It could be thirty years since the inhabitants emigrated, after they had put a strong spell on the place. Until recently none of the natives living in the vicinity dared to enter the area, unless Europeans gave them reason to do so ....” It is of course quite impossible to evaluate the hearsay statements contained in the latter part of this comment.

In 1909 there was a report by a missionary Lehner which deals in a general way with the ravages of the Laewomba on the coastal people in the Lae area, but with no indication as to dates. He concludes by saying: “The villages which were formerly so attractive, but which are now completely deserted, form a depressing sight with their totally neglected paths leading to the creeper covered ruins of their huts.” Assuming this to be an accurate description of the position as at 1909 it provides no clue as to the period over which the desertion and neglect had continued.

In an article published in 1910, the authorship of which is uncertain but which is thought to probably be by a missionary named Oertel, it is said: “There are only ten wretched Lae huts there (i.e. at the Burgberg) and a few more a fair distance further up the beach, whereas all the others still live with the Abo and Bukaua and are still apparently making no move to return to their deserted villages.” Other evidence shows that the Abo and Bukaua lived some distance from the subject land. A report of the same year identified as being by missionary Oertel contains the statement “... the Lae are not very many in number and still have plenty to do themselves in order to settle down here permanently. Moreover, far from all of them have returned yet.” Neither of these documents of course indicates when it was that the Lae who had not yet returned had departed from the area.

In a report dated 8th March, 1911, to the headquarters of the New Guinea Company made by Heine who apparently was an officer of the Company at Friedrich Wilhelmshafen, the writer refers to “belated difficulties” which had arisen in connexion with the property on the Markham River, which obviously refers to the subject land. He said that District Officer Berghausen had established that there were two settlements at the north-west corner on the coast on which people from Logamu were living; it would seem that this refers to an area near the mouth of the Markham. Berghausen is said to have been of the opinion that the settlements had been in existence at the time of survey or at the time of examination by the previous District Officer, respectively, but the writer disagreed with this view, his opinion being that the settlements had only been established lately.

Another 1911 document attributed to Neuhauss is in the nature of an historical survey. It refers to the Lae being driven from their homes by the Laewomba and those who were not slain having settled further east on the north coast of the Huon Gulf. However it gives no indication as to the date at which this occurred and there is nothing to indicate that the material in the document was based on any personal knowledge on the part of the writer.

District Commissioner Berghausen in a report written in 1912 states that: “For years bloody fights have been taking place between the Lae Womba and the coastal tribes”, and he praises the Neuendettelsau Mission for its efforts in bringing about peace. This document also does not assist in placing the time at which these fights took place and is merely confirmatory of a good deal of other evidence as to fighting between the Laewomba and the Lae people.

The final document in this group is one of very recent origin, being part of a letter written by Rev. G. Schmutterer in August 1970. Rev. Schmutterer was a missionary who served in this area from 1910 or thereabout and he is now living in Germany. This document which was admitted without objection appears to refer to the situation in the area at about the time of the writer’s arrival. It contains the statement: “The Lae owned together all the land, from the Markham River to the Bumbu River it belonged to the Butibam people and then the land further on as far as the Buso to the Wogang and Janga people. The land was their property for several hours inland.” He subsequently states that the Lae of Butibam lost all their land through selling it to the New Guinea Company and goes on to give an account of the circumstances of the transaction which he says he obtained from someone present at the sale. I must say that I find myself unable to accept this account, second hand as it is, which is so much at variance with other documentary evidence which indicates acquisition by the New Guinea Company but not a sale to it.

From this documentary material produced both before and after 1900 the position as at that date can only be inferred. It certainly indicates some settlement in at least part of the area prior to 1900, an expulsion of the Lae people from the area at some stage by the Laewomba and their subsequent return commencing in about 1910. Whilst the material does not enable the date of the expulsion of the Lae to be fixed with any certainty the material as a whole points to this having occurred in about 1907. The document closest in point of time to 1900 is Stuckhardt’s report of 1903 which while it expressly states that the natives in the area agreed that there were no settlements there and that no claims to ownership existed also refers to a fence seen in the distance from the Burgberg which would indicate some occupation or use of some part of the land and would also appear to indicate that the condition of the land had been observed from a vantage point rather than from any detailed exploration on foot.

I now turn to the oral evidence of the position as at about 1900. There were four witnesses who would appear to have been alive at that date. Obviously they are all now old men and they were being called upon to recollect events and things which they had observed when they were only boys. I must say however that I was most impressed by their evidence and after making all proper allowances for the lapse of time, the age of the witnesses, the possible frailty of human memory, and the fact that in most cases they had an interest in making the assertions which they did, I accept as substantially accurate the evidence which they gave.

Yaging Kiakop, a member of the Agatu group, was apparently alive in 1900 although it would seem that he would then have been very young, perhaps little more than a baby, and it is not clear just where he was then living. He speaks of having as a small boy seen gardens west of the Bumbu (that is, between the Bumbu and the Markham) although from an answer given in cross examination it would appear that this was at the time when Rev. Schmutterer was there, that is about 1910. He also speaks of there being gardens along the Markham when he was a very small boy which may have been somewhat earlier.

Mindiring Tikandu, a member of the Wapigurhu group, was almost certainly alive in 1900 being then possibly between five and ten years old as he says that he was not big enough to fight in the “big fight”. By the “big fight” was meant the fight between the Laewomba and the Lae (presumably including most if not all of the groups represented in these proceedings) which would seem to have taken place in about 1907. At a time which would appear to have been in the early 1900s he went with his father to gardens which were on the west side of the Bumbu. As his younger brother Kising says that their father was killed in a war with the Laewombas this would indicate that the Wapigurhu at all events had gardens somewhere in this area before the Lae people were forced from the area by the Laewombas. Mindiring does say however that many people did not have gardens on the Markham side of the Bumbu and that he lived on the other (that is the eastern) side of the Bumbu.

Kaharta Wagang of the Hengali clan (who are not claimants to any of the land) was probably alive in 1900 as he says that he was grown up when he saw the first white men whose names were Dammkohler and Oldorp and who from other references to them would seem to have been in the area in about 1908-1909. Although Kaharta says that he was grown up at the time it is likely that he was only a youth. He says that there were gardens between the Markham and the Bumbu before Dammkohler and Oldorp came, but he does not give their extent or exact location.

Nasinom Natu of the Agatu group also was probably alive in 1900 but if so he would only have been a very young child. Before the “big fight” Nasinom had made gardens with his father between the Bumbu and the Markham and had gone fishing in the Markham and hunting in the hills. He also remembers seeing a survey party at work between the time of the fight and the arrival of Dammkohler and Oldorp, and so was apparently in about 1908.

The evidence of these witnesses certainly indicates that in the early 1900s there were some gardens between the Markham and the Bumbu and there is a strong inference that this would have been so in 1900. It seems likely that there was not a great number of gardens and that the villages themselves were on the eastern side of the Bumbu. The evidence is confirmatory of the documentary material referring to the expulsion of the Lae people by the Laewomba and their subsequent return and although this is not precisely spelt out the evidence seems to me to indicate that this exodus was not of long duration and that it occurred at some time during the decade 1900 to 1910.

Whilst there is a recollection of a survey party in about 1908 and no reference by any of the witnesses to having seen any such activity at an earlier date, this does not exclude the possibility that there may have been some marking out of the area before that date. It might perhaps be thought that if any German party penetrated inland to place cement pillars as markers on the back boundary of the land as referred to in the Ground Book entry this would have been seen and have been a matter which might have impressed itself upon the memory of the witnesses had they seen it. On the other hand Stuckhardt and his party were apparently in the area in 1903 and no witness mentions having seen them so I would think that no inference should be drawn from the absence of any reference to these matters.

Taking together the documentary material and the oral evidence to which I have referred, I come to the conclusion that as at the date of the purported acquisition by the New Guinea Company there was no settlement in the sense of established villages between the Markham and the Bumbu but there were some gardens, the exact extent of which is not clear, and some part of the land was used for hunting. The area used for gardens over a period of time would have been much greater than the extent of the gardens actually being cultivated at any one time as a system of rotation was used.

The mere fact that some parts of the land were used in this manner does not necessarily indicate that a claim to the ownership of the land was being asserted with the consequence that the land could not be said to be “ownerless” for the purpose of the regulations under which the purported acquisition was made. However, it seems to me that where land is being used by members of a native community for the purpose of gardens, prima facie it is not “ownerless” and the position is strengthened if by reason of that use a positive claim of ownership by native custom is being asserted.

Whilst there is no direct evidence that such a claim was being asserted at the time of the purported acquisition, there is a body of evidence from which I would consider that it may properly be inferred that this was so. A number of witnesses from the various groups represented by the plaintiffs gave evidence of the situation of the customary lands of those groups, the net result being that customary ownership of the whole of the subject land in the past is now being asserted. Whilst the exact period of time from which such customary ownership was said to exist is understandably not made clear I am in no doubt that it is implicit in the evidence that it went back to some time in the last century which of course for the present purpose is all that is necessary. I shall deal further with this evidence at a later stage; in the present context the relevant question is simply whether ownership was being asserted. Support for the view that, putting it at its lowest, native communities claimed ownership of the subject land or portions of it at the relevant time is also to be found in the evidence of Mr. Jackson. He actually takes it further and expresses the opinion that the Butibum and Kamkumun people had owned the land or portions of it without a break back into the nineteenth century and specifically between the 1880s and 1910.

It is not necessary that such claims to ownership should have actually been brought to the notice of the New Guinea Company when it purported to acquire the land. If, as I am satisfied was the case, ownership of the land was claimed, proper inquiries of the nature required by the regulations should have revealed this so that ignorance of the claim (if such were the case) would not have availed the New Guinea Company.

On the whole of this evidence I therefore find that at the date of the purported acquisition the subject land was not “ownerless” in the sense in which that word is used in the regulations which applied to such acquisition at that time. I do not at this stage consider the question of whether ownership of the whole of the land could then have been established by the predecessors in title of the plaintiffs or by any other native groups, as it is not necessary to go that far for the present purpose. However proper inquiries at the time could hardly have failed to indicate that the whole of the land was at all events being claimed and consequently it could not have been said to be “ownerless”.

I am conscious of the fact that such a finding is in conflict with the statement attributed to Stuckhardt in 1903 that all the natives living in the vicinity agreed that no claims to ownership existed at that date, and any finding which is contrary to a fact asserted in a document, accepted as authentic, and brought into existence at a point of time so close to the relevant time cannot be made lightly. However, after weighing this piece of evidence against all the other evidence to which I have referred, I feel compelled to reach the conclusion which I have. It may well have been that the investigations made by Stuckhardt were not sufficiently extensive and that because of difficulties of interpretation or for some other reason the correct picture was not obtained.

It follows from the finding which I have made that the land was not capable of acquisition by the New Guinea Company in the way in which it purported to do so. This matter has to be determined by German law and as the provisions of the applicable law were not complied with the purported acquisition was not effective. There is nothing to indicate whether or not the taking of possession by the New Guinea Company was in accordance with cl. 4 of the regulations of 10th August, 1887, but on the view which I have taken it does not become necessary to consider this aspect.

The Ground Book entry is prima facie evidence only of ownership as is indicated by par. 21 of the Imperial Order of 21st November, 1902, already referred to whereby there is a presumption of ownership arising from the entry in the Ground Book as owner. As the entry in the Ground Book was not made until 25th August, 1910, the provisions of that order would thus be applicable in this instance. As was pointed out by Phillips J. (as he then was) in his judgment in the Jomba Plain case[cdlix]⁵ at p. 535, registration in the Ground Book did not confer an indefeasible title and in his earlier judgment In re the Mortlock Islands[cdlx]⁶ the same learned judge at p. 638 in the course of a detailed examination of the applicable German law observed that the relevant statute apparently did not give entries in the Ground Book the conclusive character that appertain to registration under a Torrens system. With that view I would, with respect, agree.

Whilst the onus thus rests on those who seek to displace the presumption of ownership thus arising, once it is established by evidence that the transaction on which ownership depends and on which the Ground Book entry was based was ineffective to provide a root of title and a court is satisfied with the necessary degree of persuasion that this is so, then the presumption would be displaced. In this regard reference should be made to two Ordinances of Papua New Guinea although neither in my view takes the matter any further. Section 49 of the New Guinea Land Titles Restoration Ordinance 1951-1968 provides that: “The production of an old document is prima facie evidence that a person named therein was at the date indicated in the old document entitled to the interest attributed to him therein” and “old document” is defined as including an entry in the Land Register (Ground Book), and so this also would make the Ground Book entry only prima facie evidence of title. Section 16 of the Lands Registration Ordinance 1924-1962 (which section was repealed in 1951) providing for the bringing under that Ordinance of land which was registered in the Land Register did no more than take the Ground Book as being prima facie the starting point of title and that section did not of its own force give any conclusive character to the Ground Book entry.

In this case the prima facie presumption of ownership provided by the entry in the Ground Book is displaced by reason of the finding which I have made. In this regard whilst there is no greater burden on the plaintiffs by reason of the extent or nature of the land in question they certainly carry the evidentiary burden of adducing evidence of sufficient cogency to displace the presumption based on a document which at the institution of their action had been acted on for more than fifty years. However, in my view the plaintiffs have discharged the burden thus cast upon them. I would add that the Imperial Governor’s certificate referred to in the Ground Book entry which was itself in evidence does not assist; such a certificate was certainly a prerequisite to registration but it does not establish ownership conclusively any more than does the Ground Book entry itself.

Before reaching the conclusion which I have on this aspect of the case there were various considerations which it was necessary to weigh up, as individually and certainly collectively they seem to me to have a substantial bearing on whether such a conclusion could justifiably be reached. The first of these matters is the apparent failure of the plaintiffs or their predecessors in title to assert through any official channel until about 1966 that they had been wrongly deprived of ownership of the land. Previous complaints had been in the post-World War II period as to the inadequacy of the payment made for the land with one complaint (pre-war) of there having been no payment. I would think however that this could well be explicable by ignorance on the part of responsible persons within the various groups represented by the plaintiffs as to the way in which the land had in fact come into the hands of the Administration and by a failure to understand the legal position and its implications which could in no sense be regarded as easy to comprehend as the hearing of this case has itself demonstrated.

Then there is the apparent absence of any complaint over the years to the Lutheran Mission with whom many members of the native groups concerned have obviously been in close contact, and to whom it might have been thought a complaint might well have been made had the members of these groups considered that they had a genuine grievance. To my mind much the same considerations apply here as in the case of the failure to make earlier official complaints of having been wrongly deprived of ownership.

There is also the probability that all the circumstances relating to the acquisition would have been subject to careful scrutiny by the German Administration before registration in the Ground Book was effected and at the time when presumably all relevant information would have been available. This is certainly a strong factor which weighed heavily with me but I have considered that its strength is not such that it should outweigh the considerable body of evidence which to my mind indicates either that the scrutiny in fact given by the German Administration was insufficient or that all relevant information was not available.

I have already referred to the considerations which I took into account in evaluating the evidence of the witnesses who gave direct evidence of the situation in the early 1900s. On the view which I have taken as to the credibility of these witnesses and after testing their evidence against the documentary material and giving appropriate weight to the opinion evidence of Mr. Jackson and also taking into account the other matters to which I have just referred I am able to reach a clear view on the essential fact for this purpose, namely that at the relevant time the land was not “ownerless”.

It is clear that the title of the New Guinea Company to the land is based on its purported acquisition on 5th April, 1900, as ownerless land and no other basis is shown on which it could make title to the land. It follows from what I have already said that the Company did not have any valid title to the land and that consequently the Custodian of Expropriated Property did not obtain any title to it by reason of the operation of the Expropriation Ordinance 1920-1934.

It then becomes necessary to turn to the position in 1927 when the defendant purported to resume the subject land under s. 69 of the Land Ordinance 1922-1927. The validity of this resumption is challenged by the plaintiffs so that what has to be determined is its validity and the consequences which follow from that determination so far as the plaintiffs are concerned.

The notice of intention to resume given pursuant to s. 70 of the Land Ordinance 1922-1927 by the Deputy Administrator was dated 19th July, 1927, and published in the New Guinea Gazette of that date. It stated that it was intended under the powers conferred by s. 69 of that Ordinance to resume the land described in the Schedule (which was the land the subject of the Ground Book entry already dealt with) “partly for the purpose of native reserves and partly for use as an aerodrome an agricultural depot and a shipping depot or for any other public purposes which may hereinafter be specified by the Administrator”.

The notice of resumption also given by the Deputy Administrator was dated 27th August, 1927, and was published in the New Guinea Gazette of 31st August, 1927. That notice recited that by s. 69 of the Land Ordinance the Administrator is empowered to resume land for the purpose of native reserves or for other public purpose (sic) which the Administrator shall deem to be necessary, that notice of intention to resume had been given in the terms indicated and also that no person had addressed to the Administrator any objection to such resumption. The Deputy Administrator then gave notice and declared that “the said land described in the schedule hereto is hereby resumed partly for the purpose of native reserves and partly for use as an aerodrome an agricultural depot and a shipping depot or for any other public purpose which may hereinafter be specified by the Administrator”.

No point is taken on the respective notices having been given by the Deputy Administrator rather than by the Administrator and I proceed on the assumption that the notices were properly given by the Deputy Administrator pursuant to s. 10 of the New Guinea Act 1920-1926.

Section 70 of the Land Ordinance provided that no acquisition or resumption under s. 69 shall be made until the expiration of one month after notice in the New Guinea Gazette of the intention to resume, and during this time any person feeling aggrieved may address to the Administrator any objection he may have to the land being acquired or resumed. Section 69 (1) provided as follows:—

“The Administrator may by notice in the New Guinea Gazette acquire or resume land for any of the following purposes—

N2>(3) Telegraphs, telephones, railways, roads, bridges, ferries, canals or other works used as a means of communication or for any work required for the purpose of making use of any such work;

N2>(10) Any other public purpose which the Administrator shall deem to be necessary.”

I would consider that the notice of resumption must state the purpose for which the land is being resumed. The terms of s. 69 (1) differ from the legislative provisions considered by the High Court in Criterion Theatres Limited v. The Municipal Council of Sydney[cdlxi]⁷, Jones v. The Commonwealth[cdlxii]⁸, and C.C. Auto Port Pty. Ltd. v. Minister for Works[cdlxiii]⁹. In the Criterion Theatres case (supra) the legislation firstly gave the Council, with the approval of the Governor, power to resume land for certain specified purposes and then provided for the publication of a notice of the resumption, upon the publication of which the land vested in the Council. As Higgins J. pointed out (at p. 562) the legislation did not make a statement of the purpose or purposes of the resumption essential to the validity of the resumption. On the other hand in both Jones v. The Commonwealth (supra) and in the C.C. Auto Port case (supra) there was a specific requirement in the legislation in question that the purpose of the resumption be expressed in the notice. In addition in the C.C. Auto Port case (supra) there was a legislative provision corresponding to the present sub-s. (3) of s. 69 upon which the court placed some reliance as making the specification of a public purpose of importance (see p. 383). That provision is one for the disposal of land not required for the purpose for which it was acquired or resumed. However that consideration does not apply here as the relevant date at which the validity of the resumption has to be considered is August 1927 whereas sub-s. (3) was not added to s. 69 until 1929.

In the result none of the three authorities to which I have referred provides any real guide to the construction of s. 69 (1). However the introductory words of the section “The Administrator may by notice in the New Guinea Gazette acquire or resume land for any of the following purposes” (the small capitals are mine) seem to me to require that the purpose for which the land is being acquired or resumed be stated in the notice as there is a definite linking of the notice and the purpose, so that a notice which, for example, merely sets out that the land was acquired (or resumed) pursuant to s. 69 (1) would not suffice.

The purpose must clearly be one which is sanctioned by the Ordinance and if the notice did purport to resume land for a purpose which was not so sanctioned then as Higgins J. says in the Criterion Theatres case[cdlxiv]¹⁰ at p. 563 “it might be very difficult to support the validity of the resumption”.

In this case the notice does specify purposes sanctioned by the Ordinance; native reserves are specifically referred to in s. 69 (1) and use as an aerodrome an agricultural depot and a shipping depot although not referred to in those exact terms are all purposes which could properly be embraced within one or other of the purposes in the subsection. The fact that the resumption is for mixed purposes is no objection provided that each of the several purposes is one sanctioned by the Ordinance and it does not matter that the parts of the land to be used for each of the purposes is not defined. This would appear to accord with the view taken by Else-Mitchell J. in Collins v. Willoughby Municipal Council[cdlxv]¹¹ and whilst the statutory provision which was applicable there differed in its terms from that under consideration here it seems to me that the same principle applies.

In my view the word “partly” in the notice means no more than that the land is to be used in part for one purpose and in part for another and as I have already pointed out there is no requirement for the notice to state which part of the land is being used for any one of those purposes. This was the approach adopted by Windeyer J. in Tinker Tailor Pty. Ltd. v. Commissioner for Main Roads[cdlxvi]¹² where while again admittedly dealing with a statutory provision in a form which differed from s. 69 (1) the learned judge said, at p. 354, “The contention that the purpose of a resumption must be sufficiently stated is correct. But what has to be stated is that the land is being taken for the purpose of a particular Act authorizing the carrying out of works and the taking of land for that purpose, or that it is being taken for the purpose of a work authorized under the Public Works Act. In other words, the purpose that must appear is a purpose for which Parliament has authorized the Crown to resume private land or appropriate Crown land. But the particular structure or part of a structure to be erected upon a particular piece of land need not appear.”

The next question is the interpretation to be given to the word “hereinafter”. The plaintiffs submit that this word should be interpreted as meaning “at some later time” and that as it is necessary for the notice of resumption to state the purpose for which the land is being resumed, if some of those purposes are to be specified at some later time then that requirement is not met so that the notice is consequently bad.

The ordinary natural meaning of “hereinafter ... specified” is “specified in this document”. Authority is scarcely needed for such a statement but reference might be made for instance to Bonner v. Bonner[cdlxvii]¹³ where in a case where there was both a will and a codicil, the words “legacies hereinafter bequeathed” used in the will were held to refer only to the legacies bequeathed by the will and not to include those referred to in the codicil.

Words are primarily to be construed in their ordinary natural meaning. It was suggested that the word “hereinafter” was interchangeable with “hereafter” but the two words clearly do not mean the same thing and I can see no reason whatsoever to substitute for the word actually used in the instrument some other word having a different meaning. I would add that the use of the word “specified” in conjunction with “hereinafter” is to my mind a further indication that what is meant is specification in that very document.

The adoption of the ordinary natural meaning of the word does mean that the final words in the operative part of the notice are ineffectual and surplusage in that there is no other public purpose specified in any subsequent part of the document. If that is the consequence, as would seem to be the case, then it is one which has to be accepted and the adoption of some other meaning which the word does not ordinarily bear is not in this instance justified merely to avoid that result, at all events without some further indication than is to be found in the language of this particular instrument. Doe d. Spencer v. Godwin[cdlxviii]¹⁴ is authority for the proposition that where there is reference to matters “hereinafter” contained and there are no such matters the word “hereinafter” will not be rejected as surplusage but the whole clause is inoperative and that is the result which ensues here.

It is true that the omission to specify any other public purpose in any subsequent part of the instrument occurs in both the notice of intention to resume and in the notice of resumption itself. However, as the terms of the latter might be expected to follow the terms of the former it is perhaps not to be wondered at that any omission in the former notice was carried forward into the latter. The use of the plural “purposes” in the first notice and the singular “purpose” in the second appears immaterial.

It was further submitted that one reason for which the notice was bad and the resumption consequently invalid was the uncertainty as to the purposes indicated by the use of the word “or”, so that whatever might be the position as to the mixed purposes referred to in the earlier part of the notice, where the resumption was expressed to be partly for one purpose and partly for another, the same would not apply where the purposes were stated in the alternative. There is no question here of the powers of resumption being used for an ulterior object or of any lack of good faith and whatever the position may have been had alternative purposes been specified, in fact they were not so specified and for the reasons which I have already outlined the words after the word “or” are simply of no effect. The result is that all the notice does is to resume the land partly for two specified purposes, which as I have indicated is unobjectionable.

There is a note, the authorship of which is not established, appearing on a file tendered in evidence and marked as exhibit 35 that the resumption was not proceeded with and that the land was purchased by the Administration. However, there is nothing to indicate that the notice of resumption was ever revoked and whatever evidentiary value this file note may have all that it appears to me to mean is that instead of the compensation being assessed pursuant to s. 71 the Administration paid the Custodian a price for the land, presumably by agreement.

In their reply the Plaintiffs pleaded by par. 21 “If the said compulsory acquisition was for the purpose of a native reserve the said purpose has never been put into effect or accomplished and the said compulsory acquisition has thereby lapsed by effluxion of time and is now of no force and effect whatsoever”. I am not aware of any authority for the proposition that a compulsory acquisition or resumption may lapse by effluxion of time and as this was not argued I do not consider it necessary to consider it further.

The land having been validly resumed, s. 71 of the Land Ordinance 1922-1927 then applied. The section as it then stood was as follows: “Subject to any covenants or conditions contained in any grant or lease reserving the right of resumption of land for public purposes compensation shall be paid for land acquired or resumed under section sixty-nine of this Ordinance, and such compensation shall be assessed in the prescribed manner”. There is now a proviso to this section dealing with resumption of land for the purpose of a native reserve but as this was not inserted until 1933 it does not apply to the present case.

N2>“22. Alternatively the said purpose has never been put into effect or accomplished and the plaintiffs and others have acted in reliance upon the fact that the said land was not used or needed for the said purpose and the defendant is now estopped from asserting that the said compulsory acquisition was for the said purpose by reason of the said matters and by reason of the assertion by the defendant’s servant or agent, the District Commissioner at Lae, that the said land was not needed for the said purpose.

N2>23. Further by reason of the allegations contained in par. 31 the defendant is now estopped or precluded from denying that the said compulsory acquisition was for any purpose other than the purpose of a native reserve.

N2>24. Insofar as the defendant concedes in the said par. 31 that the plaintiffs have continued to enjoy the same rights and privileges in respect of the land allegedly compulsorily acquired as were enjoyed by them prior to the said compulsory acquisition, the plaintiffs’ claim to be entitled to such rights and privileges subsequent to the said purported acquisition is thereby deemed to be admitted and is no longer in issue.”

By par. 31 of the defence it was pleaded that the compulsory acquisition was for the purpose of a native reserve and the village groups on behalf of which the plaintiffs sue, continued, after the acquisition, to enjoy the same rights and privileges in respect of the land compulsorily acquired as were enjoyed by them prior to the said compulsory acquisition. This pleading was apparently in reliance on the proviso to s. 71 of the Ordinance which as I have already pointed out had not been enacted at the date of the resumption and, since it was not shown that it was intended to have retrospective application, consequently could not affect rights to compensation which arose prior to its enactment. None of the matters pleaded in pars. 22 to 24 of the reply was argued and whilst the points were not expressly abandoned they would not appear to me to have any substance and I do not propose to deal further with them in this judgment.

The manner in which compensation is to be assessed is prescribed by reg. 25 of the Land Regulations which provides for assessment by a single arbitrator who shall be a judge of the Central Court of the Territory, which is now to be taken as meaning a judge of this Court. At the date of acquisition the regulation provided for assessment by a judge sitting with two assessors, but the provision for assessors which had been inserted in February 1927 was repealed in December 1928. In its defence, the defendant pleaded that this Court had no jurisdiction to assess compensation but this jurisdictional point was not pressed before me and counsel for the defendant conceded, quite properly in my view, that if the situation were reached that compensation fell to be assessed under s. 71 of the Land Ordinance then I should proceed to do so in these proceedings. No doubt the regulation contemplates some separate proceedings for compensation to be assessed by a judge sitting in an arbitral capacity, but I can in no way see that I am deprived of jurisdiction to assess compensation when this matter arises in the course of other proceedings properly before me. The regulations are silent as to any procedural requirements for the purpose of the assessment and it seems to me to be a matter of convenience and common sense that, assuming that I am not otherwise deprived of jurisdiction, I should proceed to endeavour to assess compensation on the material before me.

There is another statutory provision which requires consideration on the question of jurisdiction and that is s. 15 of the Land Titles Commission Ordinance 1962-1970 the relevant parts of which are the first two subsections which are in the following terms:—

N2>“15 (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.

N2>(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 the decision in the land the subject of the decision.”

Whilst s. 71 of the Land Ordinance does not expressly say so, it is clear that compensation is payable only to a person having an interest in the land resumed. There is no provision in this legislation comparable, for example, with s. 10 of the Lands Acquisition Act 1955-1957 of the Commonwealth which, inter alia, provides for vesting in the Commonwealth and with s. 11 of the same Act whereby the interest of every person in the land is converted into a right to compensation, but I would consider that the effect of the resumption is to vest the legal estate in the Administration and to convert the interest held by any person in the land at the date of resumption into a right to compensation.

It follows from this that one of the matters which the Court has to determine in making an award of compensation is whether the claimants had an interest in the land at the relevant time. As I read s. 15 of the Land Titles Commission Ordinance that section does not prevent the Supreme Court from deciding such a question when it arises in compensation proceedings. The task of the Land Titles Commission is to determine the interests existing at the date of the decision and it is as to that matter that its determination is final and conclusive (see s. 15 (2)) and its exclusive jurisdiction does not in my view extend to claims to ownership or rights of user at some prior point of time or disputes as to whether land was native land in the past, as it may be noted that sub-s. (1) refers to whether any land is or is not native land (the small capitals are mine). There is nothing in the decision of the Full Court in Administration v. Blasius Tirupia & Ors.[cdlxix]¹⁵ which compels me to adopt any other conclusion as the Court there was concerned with a present claim to ownership.

I must now turn to the factual question of whether the plaintiffs or persons through whom they claim were the owners of the land as at the date of resumption. In their statement of claim delivered on 7th April, 1970, the plaintiffs had pleaded that:—

N2>“19. From time immemorial and in particular in or about 1900 and until 25th September, 1965, or alternatively 19th January, 1966, each of the persons constituting and residing in each of the said Village Groups was the owner (together with each other of the persons constituting and residing in each such Village Groups) of the respective areas of land traditionally occupied and used by them. The whole of the respective areas so occupied and used and owned were situate within the (sic) comprized the whole or a substantial part of the land now known as ‘Lae Administration Land’ and being the land now more particularly described in Certificate of Title Volume 21 Folio 153 in the Office of the Registrar of Titles (and hereinafter called ‘the said land’).

Particulars of the respective areas so occupied and used and owned by each such Village Group will be supplied.”

In a document delivered on 2nd July, 1971, which was just prior to the commencement of the hearing, particulars of the names of portions of the land and the usage thereof was given and there was also delivered an associated aerial photograph identifying the areas referred to in the particulars in what can only be termed a very broad way.

Subsequently, after the hearing had been in progress for some days, the plaintiffs delivered further and better particulars of the statement of claim under par. 19 in which the areas claimed to have been occupied, used and owned by each of the village groups were named and identified by reference to a map which was tendered in evidence and marked exhibit 60. This map was to a scale of 1:25,000, and on it the various areas were marked using a reference number with the result that no great degree of precision was attained as to the geographical limits of the respective areas. This document dealt only with the groups represented by the first fourteen named plaintiffs as at this stage it had been conceded that the Labus had no claim.

Oral evidence was given by a number of witnesses from certain of the groups as to the location of the customary lands of their respective groups. The witnesses described the boundaries of the land in most cases by reference to existing features both natural and artificial and, as might perhaps be expected, such evidence although it could be followed in a general way was in many instances not altogether easy to comprehend in detail in the absence of a map of suitable scale on which boundaries could be marked. The difficulties of attempting to relate the boundaries of land in its natural state many years previously to the present town of Lae are obvious, particularly with witnesses who although apparently adept at description would almost certainly have been incapable themselves of drawing boundaries on a map. Nevertheless I should have thought that the problem with which the plaintiffs were thus presented in placing material before the Court in a comprehensible form was not insoluble, and I must say that the form in which the evidence ultimately emerged did little to facilitate the Court’s problem in attempting to evaluate that evidence.

This type of evidence was admitted on the basis of declarations by deceased persons as to general rights and I accept that these witnesses were telling the Court what their ancestors who were in a position to have knowledge of these matters had told them and that they were doing their best to convey this to the Court, where appropriate by reference to presently existing features. I was much impressed by these witnesses and, whilst there is some conflict as to the ownership of certain parts of the land, I am nevertheless satisfied that the witnesses were putting before the Court the position as they understood it.

In addition to this oral evidence which related to some only of the plaintiff groups there were a number of affidavits from witnesses representative of the remaining groups (other that is than the Labus) which were admitted in evidence by consent on the basis that it was conceded that the evidence of the deponent if given orally would contain the same degree of inconsistency, inaccuracy and unreliability, if any, as that found in the oral evidence which had already been given by other native witnesses. In these affidavits the land which was said, on the basis of a declaration by a deceased person who was in a position to know such a fact, to have been customarily owned by that particular group was described by name, its location then being found by reference to the further and better particulars furnished and the associated map (exhibit 60), it being accepted that the deponent had provided information to an articled clerk in the employ of the Public Solicitor, who was called as a witness, as a result of which he had drafted the further and better particulars furnished by the plaintiffs and made the markings on the map.

As for the present purpose the relevant inquiry was the ownership of the land as at the date of resumption in 1927, the evidence proceeded in two stages, being designed to establish, firstly, what were the customary lands of the various groups and, secondly, whether such customary lands were still in the ownership of those groups in 1927. A further matter of course is whether the present plaintiffs are the successors in title to any of the groups who owned any part of the land in 1927.

The effect of the material before me as to the customary lands of the various groups may be thus summarized.

Five areas are claimed in the further and better particulars. Of these two (U’-Ho’-Bo’ and Iwambu’-Mangka) were in evidence also claimed as being land of the Gwatu Group, one (Sihu) although claimed in evidence is not shown on exhibit 60 and its location is doubtful, the location of one (apparently Gayo-Apu) was described by a witness (Gaya Nomgui) although he was unable to give its name, whilst the remaining area (Lumkin) as described in evidence corresponded with the particulars.

Sixteen areas were claimed in the further and better particulars and one was subsequently added. Of these one (Aga’-Ung-Atim) is said to be half Gwatu land, one (Sang-Alu) is also said by one witness (Kamdring Bukaun) to be Tumatu land, two (Aha’-Mki and Bu-Alang) are described in evidence as being in substantially different areas from those shown on exhibit 60, and one (Bu-Aplung) appears to be the same area as that also claimed by the Apo group under the name of Bugulung. Eleven other areas are described in evidence and correspond with the particulars; these are Wagata-Ai, Ba-Apu, Bui-Om, Aakeng-Apu, U’tilian, Bu-Igub, Sekabo’Maki’, Nomko, Abong-Sawapip, Apo’Mki and Agayu-Lum (the last named being shared with the Apo Group), whilst the remaining area Lugalu, which was added to the particulars, was not referred to in the evidence.

Three areas are claimed in the further and better particulars. One of them (Bu-Asu) is said by one witness (Yaging-Kiakop) to have been used by other groups but it would appear that this was with the approval of the apumtou (or headman) of the Gwatu Group. One area (Bo’Apu) is also said by Kising Tikandu, a member of the Wapigurhu Group, to be a place where he made gardens, while the only mention of the third area (Asiawi) was as to its having been used by all the Butibum clans.

Fourteen areas are claimed by the further and better particulars. Of these two (Abong-Sangka’ Tigeng, also known as Buala Hankoa, and Tang Apu) are said to be shared with the Agatu Group (although not so shown in the particulars), one (Bugulung) is also claimed by the Agatu Group under the name of Bu-Aplung, one (Angkom-Apu) is said by one witness (Kising) to be land which has now been taken by the sea, although it does not appear when this occurred other than that it was after the Australians had come, two areas (Hungpimki and Wa-Saung) are not mentioned in evidence, one (Nomko) although included in the particulars is not now claimed by the Apo Group, whilst the remaining seven areas are described in evidence and correspond with the particulars; these are Mala’Balum, Awi Dulum, Kaweng (Atu), Kaweng (Saung), Buaka, Segwi and Agayu-Lum (the last named being shared with the Agatu Group). In addition four areas claimed in evidence to be part of the customary lands of this group were not included in the particulars furnished; these are Poko, Aunkian, Poatanghu and Wainlum.

Five areas are claimed by the further and better particulars. These were referred to in affidavit evidence only. Of these one (Alu-Ada-Ka) were said in oral evidence by Kamdring to be Wapigurhu land and another (Poko) was claimed in oral evidence by the Apo Group.

In the further and better particulars this group claims all the Butibum land not claimed by the other Butibum village groups. Perhaps because the claim of this group was framed in this way evidence relating to its customary lands was given by describing its boundaries and did not include the description of particular areas by name. In addition there are two specific areas (Bo-Apu claimed by the Gwatu Group and Alu-Ada-Ka claimed by the Busuram Group) which in evidence is said to have been Wapigurhu land. The area thus claimed by the Wapigurhu Group is very extensive being much greater than the combined areas of all the other groups; it extends further inland than the land claimed by the other Butibum groups and includes hilly areas and an area still covered by rain forest.

In the case of the groups other than the Wapi evidence of customary land holding was by affidavit. The land thus claimed by the Luhu Group corresponded with that in the further and better particulars given, although in respect of one area (Bumneng) there was oral evidence given by Kising that it was partly Kamkumun and partly Butibum land. The affidavits filed by representatives of the Kamkumun Uapu and Hiwapa groups respectively simply claimed that the areas of land therein referred to were the lands customarily owned by that group without any reference to sharing, although in the further and better particulars two such areas, namely Utikom and Awahomki, are said to be shared by these two groups. The lands claimed by the Tia and Kamkumunlu village groups in the affidavit correspond with the lands thus claimed in the further and better particulars.

The Wapi, Mambu No. 1 and Mambu No. 2 groups (collectively referred to as the Wapi) claimed all the Kamkumun land not claimed by the other Kamkumun groups. The situation here corresponds broadly with that in respect of the Wapigurhu Group in relation to the Butibum land. The land although less extensive in area than that of the Wapigurhu was much greater than all the other Kamkumun land and from the map and aerial photograph in evidence included a great deal of land which is still timbered, some of it being hilly.

From an examination of exhibit 60 it appears that if the large areas claimed by the Wapigurhu and Wapi groups are excluded for the moment, approximately one-fifth of the total area of the subject land is claimed as having been in the customary ownership of one or other (or in a few cases more than one) of the remaining plaintiff groups other than the Labus and this area was used mainly for gardens. The total area involved is on a calculation from the map, which I would not claim to be precise, to the order of 2,400 acres. The evidence of Kising shows that the average size of a garden was about one-tenth of an acre, but as a system of rotation was employed the area used by a group for its gardens over a period of time would, as I have previously said, obviously be much greater than the area so used at any one time. It also appears that the land holdings were not equal as between groups. As is shown by the analysis which I have made of the evidence and a comparison of that evidence with the further and better particulars given by the plaintiffs, there is some doubt as to the ownership of parcels of land aggregating about one-third of this total area of some 2,400 acres with which I am now dealing.

As to the meaning of “ownership” in this context I would with respect adopt the view taken by Minogue J. (as he then was) in Tolain & Others v. Administration (In re Vulcan Land)[cdlxx]¹⁶ where after a consideration both of certain Privy Council decisions dealing with Nigerian land and the views of text writers his Honour concluded that “owner” means the person or group of persons in the community which, according to the area and custom concerned, has the right to use the land and exclude others therefrom.

I reach the conclusion that in respect of this area which was basically used for gardens, the groups as then constituted successfully asserted rights to use and enjoy it and to exclude others from the various areas claimed. The boundaries of the land to which such rights were thus asserted may have been somewhat amorphous but I am satisfied that ownership was not limited to the areas on which there were gardens at any particular time. By reason of the rotation of gardens and the intervening areas used for other purposes ownership would have extended over a greater area than that actually cultivated. Furthermore, it does seem that there were some areas of common usage not held by any one group but owned by several groups.

I do therefore find that the whole of this area was customarily owned by one or other of the plaintiff groups, other than the Wapigurhu and Wapi, and of course excluding the Labus. It is not to be wondered at that at this point of time there should be some overlapping between the areas claimed and I think it would have been a matter of greater comment had the claims been as to precise mutually exclusive areas in each case. It is just not possible to make findings as to the customary ownership of each individual piece of ground, but taking the material as a whole and having due regard to its lack of precision and conflicting evidence as to the ownership of some parts of it, I consider that it is possible to make a finding in general terms as to the acreage of the land in the customary ownership of each of these groups. I shall return to this subject later as there are various other matters which require consideration before the necessity of embarking upon this course can be determined.

The area claimed to have been customarily owned by the Wapigurhu Group is approximately three-fifths of the total, that is, to the order of 7,200 acres. The boundaries of this relatively large area were described by Kising in a manner which in part makes them somewhat difficult to identify, although the general limits of the area emerge clearly enough. The evidence shows that various parts of the area were used for hunting, the gathering of fruits and sago and sago thatch and no doubt parts of it in closer proximity to the garden areas of the other groups would likewise have been used for gardens.

I have quite some doubts as to whether the Wapigurhu could properly have been said to “own” the whole of this area, using that word in the sense which I have already indicated. Whilst there is no evidence as to the size of the Wapigurhu Group in earlier times it certainly would have had to be large for its members to have successfully asserted rights to use and enjoy and particularly to exclude others from so extensive an area, having regard to the nature of the terrain in the area so far as this can be spelt out from the oral evidence and the map and aerial photograph in evidence showing much of this land apparently in its virgin state.

I am quite satisfied that the Wapigurhu claimed ownership of the whole of the area and that parts of it at least were “owned” by the group in the sense referred to. The evidence does not enable me to say where the line is to be drawn (if it is to be drawn at all) between those parts of the area clearly “owned” by the group and those parts which, although claimed, might not properly be considered to be so owned. However, after a great deal of consideration it does seem to me that I am justified in reaching the conclusion on the balance of probabilities on the evidence before me that the whole of the area claimed to have been the customarily owned lands of the group is properly to be so regarded and that, notwithstanding the factors to which I have referred, there would be no justification, because of the size and nature of the area, for a finding that such ownership was as to some ill-defined part of it only.

The same considerations apply to the area claimed by the Wapi, which is approximately one-fifth of the total area, or about 2,400 acres. This area is moreover more compact and much smaller than the area claimed by the Wapigurhu and its boundaries are better defined by the evidence. Whilst much of the terrain in the area even today appears comparable with that in the Wapigurhu area I am prepared to conclude that this was an area over which the Wapi could have successfully asserted rights to use and enjoy and to exclude others therefrom. Consequently in this case also I reach the conclusion on the evidence that the whole of the area claimed constituted the customarily owned lands of the Wapi.

The next inquiry is as to whether these customary lands were still in the ownership of the respective groups as at the date of resumption. Direct evidence as to the position in 1927 is somewhat limited. Shortly before 1927, perhaps a year or so previously, an aerodrome had been constructed and this was extended in about 1928. The Administration station at Lae was not opened until 1935 although it seems that there may have been some European settlers in the area prior to this. Mr. Roberts, a former District Officer at Lae, who had opened the station there in 1935 and who prior to that had been in the area at various times between 1928 and 1933 gave evidence. He could not really assist as to the position in 1927 as he spoke of a somewhat later period, namely 1935 to 1938, when he was in charge of the station at which time he said that apart from the gardens made by the Labus there were quite a number of minor gardening operations in the area. Kising said that when Mr. Roberts was there (presumably referring to the period 1935 to 1938) “We had our gardens on the side of the airstrip along the Markham along the Bumbu, they were really everywhere”. Yaging says that when the aerodrome was first built his people made gardens there and also near the Markham, down by the seafront, near the Bumbu on this (that is the western) side and up into the hills by the Markham. Kaharta Wagang says that there were gardens there when the airport was being made and there is evidence from Nasinom Natu to the same effect. Kamdring says that the land was taken away when the airstrip was built, while Balop Nando says that when the airstrip was first built the owners of the gardens were told to remove them, which they did.

The conclusion which I reach from this evidence is that as at the date of resumption the area was still being used in much the same way as in earlier years. It would seem that apart from the land used for the aerodrome itself there was little European settlement prior to the opening of the station in 1935. The picture painted by Mr. Roberts as at that date is not inconsistent with part of the land having been used in 1927 in the manner in which the native witnesses say that it was and in view of the other evidence as to only part of the land of any particular group being used for gardens at any one time this is also not inconsistent with ownership of areas aggregating the whole of the land in what I might term “the garden area”, that is, the area of approximately 2,400 acres used primarily for gardens, by one or other of the native groups continuing to that time. There is indeed nothing in the evidence from which it could properly be inferred that the customary ownership of the land which had previously prevailed had in any way changed not only as to this garden area but also as to the other areas which I have already found to have been in the customary ownership of the Wapigurhu and Wapi respectively.

I therefore find that as at the date of resumption the land was in the customary ownership of the various groups represented by the first fourteen named plaintiffs as then constituted to the extent which I have previously indicated, that is to say, an area of approximately 2,400 acres owned in varying proportions by groups other than the Wapigurhu and Wapi, another area of approximately 7,200 acres owned by the Wapigurhu and a third area of approximately 2,400 acres owned by the Wapi.

The legal effect of the existence of customary ownership by native groups in New Guinea is beyond doubt and the legislative provisions in force in that Territory lead to a different result from that reached by Blackburn J. in the Supreme Court of the Northern Territory in Milirrpum & Others v. Nabalco Pty. Ltd. & Another[cdlxxi]¹⁷ which concerned claims to land on behalf of aboriginal tribesmen of the Gove Peninsula in Arnhem Land. Although his Honour found against the plaintiffs on the fundamental question of fact which arose he also dealt at length with the question of “communal native title”, that is, whether communal occupation of land by the aboriginal inhabitants of a territory acquired by the Crown is recognized as a legally enforceable right. There being no applicable statutory provision his Honour considered the position at common law and after an extensive review of authority at p. 244 of his judgment he expressed his conclusion in these words: “The question whether English law, as applied to a settled colony, included, or now includes, a rule that communal native title where proved to exist must be recognized, is one which can be answered only by an examination of what has happened in the laws of the various places where English law has been applied. I have examined carefully the laws of various jurisdictions which have been put before me in considerable detail by counsel in this case, and, as I have already shown, in my opinion no doctrine of communal native title has any place in any of them, except under express statutory provisions. I must inevitably therefore come to the conclusion that the doctrine does not form, and never has formed, part of the law of any part of Australia.”

The position in New Guinea is otherwise. In the first place New Guinea was at the relevant time a mandated territory administered by the Commonwealth of Australia and the weight of authority is that it did not thereby become part of the Dominions of the Crown (see Jolley v. Mainka[cdlxxii]¹⁸ especially per Evatt J. at p. 278; Ffrost v. Stevenson[cdlxxiii]¹⁹ especially per Latham C.J. at p. 552 and Evatt J. at p. 579 et seq; Wong Man On v. The Commonwealth[cdlxxiv]²⁰ a decision of Fullagar J.). The contrary view taken by Isaacs J. with the concurrence of Rich and Starke JJ. in Mainka v. The Custodian of Expropriated Property[cdlxxv]²¹ must, as Fullagar J. pointed out in Wong Man On v. The Commonwealth (supra) at p. 134, be regarded as at variance with the whole current of authoritative opinion.

In the statute law of New Guinea there are to be found specific provisions which require recognition of communal native title. For instance, there is s. 9 of the Laws Repeal and Adopting Ordinance 1921-1952 which remains in the form in which it was originally enacted, namely:

N2>“9. Nothing in this Ordinance shall affect the right, title, estate or interest, vested, possessory or contingent, of any aboriginal native or tribe of aboriginal natives to any land within the Territory, whether such land has been proclaimed as a native reserve or not, or any customary user by aboriginal natives of market-places and landing-places, or any existing right, privilege or custom of aboriginal natives in relation to cultivation, barter, hunting and fishing.”

Section 10 of that Ordinance provides that native customs and usages shall be permitted to continue in existence in so far as they are not repugnant to the general principles of humanity, while the Native Customs (Recognition) Ordinance 1963 although of more recent origin, requires this Court to recognize and enforce native custom, part of which is of course a system of ownership of land by native custom. The Land Ordinance 1922-1927, although less explicit, certainly appears to contemplate communal native title when it refers in s. 8 to the purchase of land by the Administrator from native owners and again in s. 16 which, subject to certain exceptions, forbids the occupation of land owned by natives by any person other than a native.

The consequence is that in the Territory of New Guinea customary ownership of land by native groups was and is recognized as a legally enforceable right. It follows that the members of the native groups represented by the first fourteen named plaintiffs became entitled to compensation pursuant to s. 71 of the Land Ordinance 1922-1927 as at the date of resumption.

Having reached this conclusion as to the position in 1927 the crucial question now is whether the present plaintiffs and the persons whom they represent are the successors in title to any of the groups who owned any part of the land as at that date. Evidence as to the method of landholding is not particularly satisfactory and depends mainly on that of Mr. Jackson. There is no doubt in my mind as to the admissibility of his evidence on this subject and I accept it as correctly setting out the essential elements of the system, which was one of group land ownership but with individual rights within the group. Mr. Jackson said that ownership in the area was both patrilineal and matrilineal. He explained that within an area there was a head man (apumtou) who could give permission to a person to garden on certain land. He then went on: “He would give permission for clearing a piece of land and then the group would recognize the area cleared and trees—I am not precise there — the groups would recognize trees planted as evidence of ownership later on. So I do believe there is individual ownership within the group and that it went to the descendants of that individual, either patrilineal or matrilineal. But as regards anyone outside the group, it was looked on as belonging to the one group.” Then in answer to the question “You are speaking of the use of usufructuary rights?” Mr. Jackson replied “I do not think so really. I do not know how to express it, but my belief is that within the group it would be recognized that certain trees or areas of land belonged to a certain individual or his descendant, but as regards any outside people the group acted as a group and the land remained, as regards outsiders, as belonging to the group. I am certain an individual could not have the right, anyway without any patrilineal or matrilineal rights, to use the lands. Only the apumtou could do that.” Mr. Jackson later said that a child would inherit his father’s land rights which included the private land rights to which he had previously referred but the child’s matrilineal rights were only to garden within his mother’s group area and he would not have any of her private rights.

It would therefore seem that the rights compensable in 1927 were rights held in common by all the members of the group together with the rights held by individuals. The individual right would appear to be something more than a usufructuary right but fell short of absolute ownership in that while it was heritable it was apparently not capable of alienation inter vivos and was rather a long term allocation of a specific parcel of the group’s land to him and his successors.

If compensation had been claimed in 1927 I can see no reason why a lump sum could not have been paid to the group with any necessary adjustments as between individual members of the group then made within it. The difficulties of attempting to award a separate amount of compensation for each individual interest within the group would appear to be too great to make this a practicable course and would not seem to be necessary. I note that in the Jomba Plain case[cdlxxvi]²² compensation was in effect awarded to native tribes (being ordered to be paid to the Commissioner of Native Affairs as representative of the tribes) and Phillips J. dealt with the question of identification of members of the tribe in this way at p. 588 of his judgment: “To prevent any misunderstanding, I may observe that, when I have referred in this judgment to the natives of any particular tribe, I have meant to include all natives who, by native custom, are regarded as members of or belonging to that tribe, and such of their descendants who, by native custom, are regarded as members of or belonging to that tribe”.

As at the date of the institution of the present action in 1966 membership of each group was inevitably not the same as in 1927. In so far as the rights held in common by the then members are concerned these would pass to the members as at 1966. My concern is with membership as at the institution of the action as in determining whether the plaintiffs can maintain their claim that is the relevant time and for the purpose of this judgment I am not required to concern myself with changes in membership of the groups during the pendency of the action. In so far as rights held by individuals are concerned these would in some cases have passed to persons who were members of the group as at 1966 and in other cases would presumably have been lost. Consequently in a broad sense the members of the group as at 1966 who are represented by the present plaintiffs are the successors in title to the group as at 1927 and, although it may be difficult to identify the extent of the interest to which any individual member would now be entitled by reason of he or she having succeeded to rights held in 1927, I would think that it would not be impossible to do so. However, I am not required to embark on that task and as I see it there is no necessity for the Court to be able to trace the genealogy of each individual member of a group or to know the extent of the individual rights. It is sufficient that I should be satisfied, as I am, that I may properly regard the persons represented by the plaintiffs as being successors in title of the owners of the land as at the date of resumption in 1927. Consequently each of the first fourteen named plaintiffs is now entitled to receive on behalf of the members of the group whom he represents as such group was constituted at the commencement of these proceedings such compensation as would have been payable to the members of that group as at the date of resumption.

Each plaintiff here sues on behalf of himself and the village group of which he is a member, that is, on behalf of all members of that group as at the date of the writ. Whilst no objection was taken to the form of the action I have thought it necessary that I should satisfy myself that the action is properly framed and especially that the judgment given would bind all members of the groups concerned.

Order III, r. 10 of the Rules of the Supreme Court (Queensland, adopted) provides: “When there are numerous persons having the same interest in the subject matter of a cause or matter, one or more of such persons may sue, and the court or a judge may authorize one or more of such persons to be sued, or may direct that one or more of such persons shall defend, in such cause or matter, on behalf or for the benefit of all persons so interested”. Order VI, r. 6 provides: “If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the indorsement shall show, in manner appearing by such of the forms in the First Schedule as is applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued”. Here the representative capacity of the plaintiffs is in each case shown in the title of the writ; there is no form in the First Schedule precisely applicable but the capacity in which the plaintiff sues is shown by a “statement to the like effect” although contained in the title and not in the indorsement. The note to the then corresponding English rule (O. 16, r. 9) in the Annual Practice 1960 states that while the representative capacity ought to be stated in both the title and the indorsement, probably it would be held sufficient if stated in either and reference is made to O. 70, r. 1 corresponding with our O. XCIII, r. 17 whereby non-compliance with any rule is not to render any proceedings void unless the court or a judge so directs. This is the view which I would adopt and I consider Fearnley v. Berry[cdlxxvii]²³ to be distinguishable. In that case the representative capacity was not shown on the writ at all and Lukin J. at p. 296 held that non-compliance with O. VI, r. 6 rendered the whole proceeding a nullity and could not be cured by O. XCIII, r. 17; the other two members of the Full Court did not deal with the matter. The position seems to me to be otherwise where the representative capacity is shown on the writ, although in the title and not by way of indorsement, as the capacity in which the plaintiff sues is thereby being quite plainly indicated and there is no reason that I can see why O. XCIII, r. 17 should not be invoked.

The present case comes within O. III, r. 10 in that all the persons represented have the same interest in the subject matter of the action even though the quantum of individual interest may differ. To apply the tests adopted by the Court of Appeal in Smith v. Cardiff Corporation[cdlxxviii]²⁴ when dealing with the then English rule (O. 16, r. 9), all have a common interest, that is, establishing a right to compensation in respect of an interest in land of which they have been deprived, they all have a common grievance, that is, deprivation of that interest, and the relief sought is in its nature beneficial to them all, even though it may be more beneficial to some than to others. The factual situation in Smith v. Cardiff Corporation (supra), where the Court considered that there were two classes whose interests were not only not identical but were in conflict and the relief sought was not beneficial to them all, led to the result that that case did not come within the strict terms of the rule so that the action was not allowed to proceed as a representative action; that however is not the case here. I would also refer to and adopt a further note which appears on p. 338 of the Annual Practice 1960, that it is not an essential condition to the maintenance of a representative action that there should be no necessity for any supplementary inquiries in order to adjust the rights of the individuals sought to be represented.

In any event I would take the view that this Court should not interpret the Rules so narrowly as to make it impossible to maintain an action in which a claim in this form is brought on behalf of a native clan or group. I note that in Geita Sebea v. Territory of Papua[cdlxxix]²⁵ the appellants who were the plaintiffs in the action claiming compensation under the relevant Papuan Ordinance were the headmen or representatives of the iduhu or clans concerned and as Starke J. said at p. 552: “... it has been assumed in the Supreme Court and before this Court that they sufficiently represent the persons entitled to compensation under the Ordinance already mentioned” and the learned Judge went on to point out that, as is the case here, no objection had been taken to the form of the action or to the parties thereto.

In the result I am satisfied that the action is properly framed and that the judgment given will bind all the members of the groups represented (see Commissioners of Sewers of the City of London v. Gellatly[cdlxxx]²⁶; Templeton v. Leviathan Proprietary Ltd.[cdlxxxi]²⁷ per Starke J. at pp. 76-77 where the authorities are discussed).

I am asked by counsel for the plaintiffs to make one lump sum award for all fourteen plaintiffs, this course almost certainly being taken because of the obvious problems associated with making a separate assessment for each plaintiff on the material before me. I have been able to find two instances in reported cases, one in England and one in Australia, where a lump sum has been awarded in an action by joint plaintiffs and whilst in neither case was the judgment set aside on appeal because of this, nevertheless, in both instances there are statements by the appellate court to the effect that the damages should have been separately assessed for each plaintiff.

In Booth v. Briscoe[cdlxxxii]²⁸ eight plaintiffs joined in an action for libel and a verdict was given for the plaintiffs for forty shillings damages. The Court of Appeal affirmed the judgment and after pointing out that under the Rules the plaintiffs were entitled to join in the one action the Court went on to say (at p. 498) “But although they might all join, I think, as their damages are several, their damages ought to have been severally assessed, instead of which, 40s. has been given to the whole of them. But who is to complain of that? I do not think that the defendant will suffer by it, because the probabilities are that if the damages had been severally assessed there would have been eight times 40s. damages given. At all events, he does not show that he is injured by it; and if the plaintiffs have no objection to take the 40s. and divide it amongst themselves, it seems to me that the defendant has no right to complain.”

In Barnes & Co. Ltd. v. Sharpe[cdlxxxiii]²⁹ an action for defamation was brought by seven limited companies, nine co-partnership firms and two individuals, describing themselves as bringing the action on behalf of themselves and all other members of an unincorporated trade association constituted by the plaintiffs and one other firm which was not otherwise made a party to the action. The jury found a general verdict for the plaintiffs with œ1,000 damages. On appeal the Full Court of the Supreme Court of Queensland ordered judgment of nonsuit to be entered but that decision was reversed by the High Court. The judgments deal with a number of matters not germane to the present question but this was referred to by Higgins J. at p. 483 in these words: “The jury ought to have been told to assess damages separately for each plaintiff; but, as shown in Booth v. Briscoe[cdlxxxiv]³⁰ it is not for the defendants to object if the plaintiffs make the mistake of taking a joint verdict”.

Barber v. Pigden[cdlxxxv]³¹ was a case of separate causes of action by the same plaintiff where the jury returned a general verdict for œ300 against two defendants. Scott L.J. at p. 683 said that he could see nothing in the Judicature Act or the Rules of the Supreme Court to make separate verdicts and judgments invariably necessary in respect of separate causes of action contained in the same writ.

In my view the case of several plaintiffs joining in one action where each has a separate cause of action which under the Rules are permitted to be joined in the same action differs from that of the one plaintiff who has several causes of action so that the present case is not governed by Barber v. Pigden (supra). Statements in Booth v. Briscoe (supra) and Barnes & Co. Ltd. v. Sharpe (supra) indicate that the proper course in an action in which damages are claimed by several plaintiffs is to make a separate assessment for each plaintiff and I would consider that the same principle is applicable where compensation is claimed, as each plaintiff has a separate claim which should be separately dealt with. The fact that the plaintiffs consent to one lump sum being awarded to all of them does not oblige the Court to adopt this course. I would not think that the test is necessarily whether or not the defendant would be prejudiced by the award of a lump sum although obviously if it is possible that it might be prejudiced by such an award this would be an additional reason why such a course should not be adopted. At all events I would think that the defendant is entitled to know the basis on which he is being called upon to compensate each claimant. I therefore am not prepared to accede to the request that I make one lump sum award for all plaintiffs.

The plaintiffs then ask that if I am not prepared to make a lump sum award I should content myself with making such declarations as may be appropriate and then direct the making of inquiries under O. XXXVII, r. 5 on the matter of the quantum of compensation to be awarded to each plaintiff. That rule empowers the court or a judge at any stage of the proceedings in a cause or matter to direct any necessary inquiries or accounts to be made or taken. I do not consider that this is an appropriate case to apply O. XXXVII, r. 5. The obligation of a plaintiff is to prove his case. In this instance the plaintiffs have had ample opportunity to place before the court evidence designed to quantify as well as can be done the landholding of each group. To the extent that this can be determined from the evidence the court will endeavour to do the best it can (see Wheeler v. Riverside Coal Transport Co. Pty. Ltd. and Others[cdlxxxvi]³²), and whilst I must say that I do think the Court could have been better assisted to perform this task, it is not in this instance justified in shrinking from performing it and I can see no warrant for imposing it on someone else.

I most certainly fully appreciate the difficulties facing the plaintiffs in bringing evidence, setting out, for instance, the precise landholdings of each group in terms of acres but, as is apparent, the Court has been left with material on this matter which is most imprecise. However, I propose to do the best I can with this material to arrive at some apportionment as between the various groups. The position differs from the case in which it is necessary to determine present ownership of contiguous parcels of land where precision as to boundaries and areas is obviously essential. Here a monetary award is being made and some “rounding off”, as it were, in apportionment can be accepted.

As I have already found, the approximate area in the ownership of the Wapigurhu Group was 7,200 acres, that owned by the Wapi was approximately 2,400 acres and a further area aggregating approximately 2,400 acres was owned in varying proportions by the remaining groups represented by the first fourteen named plaintiffs. I propose to adopt these areas, which are necessarily in round figures, for the purpose of further apportionment amongst the plaintiffs and thus ultimately for the assessment of the compensation payable to each.

It is clearly impossible for me on the available material to make any finding other than in general terms as to the acreage owned by any group and even in the case of the Wapigurhu where further apportionment does not become necessary the final figure arrived at is necessarily rounded off. For the reasons already given I have not considered it possible to make findings as to the ownership of each individual piece of land and I have approached this matter by making a round figure apportionment between the groups on a percentage basis based primarily on exhibit 60 and taking into account the evidence as to areas owned by various groups the effect of which I have already summarized.

In the result the 2,400 acres owned by groups other than the Wapigurhu and Wapi would be apportioned in this way:—

The Wapigurhu Group I have already found to be the owner of 7,200 acres. I would apportion the 2,400 acres in the ownership of what were collectively referred to as the Wapi, equally among the three component groups which are plaintiffs, that is 800 acres each to the Wapi Group itself (the group represented by Silas Tamake), Mambu No. 1 Group and Mambu No. 2 Group.

Mr. Ogilvy, the Valuer-General for the Territory of Papua and New Guinea gave the value of the land as at 1927 as two shillings per acre. From his subsequent evidence which dealt with the value as at 1965 it appears that some parts of the land would be more valuable than other parts as, for example, it includes areas of swamp and steep mountainous land. However, on the evidence no basis is shown for any differentiation in value between the various parts of the land in 1927 even though this appears to confer an undue advantage on the Wapigurhu and the Wapi groups by comparison with the other groups as much of what might be thought to be the less desirable land is in their areas.

In the circumstances of this case it is not necessary for me to embark on a detailed consideration of the principles to be applied in the assessment of compensation. In this instance there is no evidence to justify the compensation to the owners for the loss they have sustained by being deprived of their land by reason of its resumption being other than its value at the date of resumption. There is no other factor which may properly be taken into account. I need scarcely add that precisely the same principles are to be applied when native owners are dispossessed by compulsory process in the circumstances which prevailed in New Guinea in 1927 as are to be found in the classic authorities on this subject as, for example, Spencer v. The Commonwealth[cdlxxxvii]³³ dealing with resumption elsewhere. I therefore assess compensation on the basis of two shillings, that is, twenty cents, per acre for the whole of the land in respect of which each plaintiff is to be compensated, that is to say the areas which I have detailed above. Because of the “rounding off” to which I have referred the total sum thus resulting is a little more than that which would result by valuing the area as a whole at twenty cents per acre (the exact area in 1927 is not established although the notice of resumption refers to the same area as that shown in the Ground Book entry which is the equivalent of 11,721 acres). However, this appears to be an unavoidable result in the circumstances.

Although there is no provision in the Land Ordinance for allowing interest on the principal sum awarded as compensation, it could not be said that the Ordinance clearly shows an intention that interest should not be allowed. Consequently on the principle enunciated in Inglewood Pulp and Paper Co. v. New Brunswick Electric Power Commission[cdlxxxviii]³⁴ the plaintiffs are entitled to interest upon the principal sum awarded from the date when possession was taken and this would continue until the date of payment. As the actual date of possession does not appear I consider that the appropriate date from which interest should be calculated is that on which the notice of resumption was published in the New Guinea Gazette, namely 31st August, 1927.

In Marine Board of Launceston v. Minister of State for the Navy[cdlxxxix]³⁵ where the question arose whether the court had power to award interest on the amount of the compensation when assessing compensation for the requisition of a ship the property in which had been acquired under the National Security Regulations, it was held by the majority of the High Court that the court had such power. In discussing the principle applicable Williams J., who was one of the majority judges, referred at p. 537 to two statements in judgments of the Privy Council. In one Toronto City Corporation v. Toronto Railway Corporation[cdxc]³⁶ Viscount Cave had said that “the general rule under which a purchaser who takes possession is charged with interest on his purchase money from that time until it is paid is well established, and has on many occasions been applied to compulsory purchases”. In the other, Inglewood Pulp and Paper Co. v. New Brunswick Electric Power Commission (supra) Lord Warrington of Clyffe said that “the right to receive interest takes the place of the right to retain possession and is within the rule”. Williams J. points out that the former statement refers to the interest as interest on the compensation whereas the latter statement includes the interest in the compensation but that the two statements are alike in all substantial respects. On the view that interest is included in the compensation it need not be the subject of a specific claim it being sufficient that compensation is claimed. The consequence is that the statute of limitations not having been pleaded (assuming as would seem to be the case, that the statute could apply to a claim for compensation; see the Statute of Frauds and Limitations Ordinance 1951, s. 23) interest is payable on the principal sum awarded in each case, from the date of resumption (31st August, 1927) to the date of payment. It appears that this is given as a matter of right and is in no sense a matter of discretion so that even though the operation of the rule produces a result in this instance that the total amount payable including interest will be somewhat more than three times the amount of the principal sum awarded it is not appropriate to consider for this purpose the extremely lengthy period that elapsed from the date of resumption to the date of the institution of the present proceedings or the reasons for this.

There is no authority for interest to be other than simple interest on the principal sum, the general rule being that compound interest is not allowed unless there is an agreement, express or implied, to pay it or unless its allowance is in accordance with custom (see, for example, Fergusson v. Fyffe[cdxci]³⁷), none of which circumstances applies here. I consider that having regard to the period involved and the variations which have undoubtedly occurred in interest rates generally over that period an appropriate rate would be five per cent per annum. This was incidentally the rate mentioned by Mr. Ogilvy when referring to interest tables and no challenge was made by either side to this as a rate, assuming that interest was to be allowed. Accordingly I allow interest at the rate of five per cent per annum (simple interest) on the principal sum awarded in each case from 31st August, 1927, to the date of payment.

A more difficult question is whether in addition to the payment of interest on the principal sum allowance should be made for the change in the value of money that has occurred since 1927, the effect of the evidence being that the value of money in 1965-1966 was about one-third of that in 1927. The effect of changes in the value of money in relation to damages is the subject of authority. In the case of damages for property loss the principle has been applied that the measure of damages is the market value of the goods at the time of judgment provided that there has been no unreasonable delay in bringing the action (see Mayne & McGregor on Damages, 12th ed., par. 302; Rosenthal v. Alderton and Sons Limited[cdxcii]³⁸; Sachs v. Miklos[cdxciii]³⁹). In the case of damages for personal injury a successful plaintiff will be compensated in the money of the day, that is, the assessment will in general be made in relation to the purchasing power of the currency at the date of the assessment of the damages. This is, as Barwick C.J. points out in O’Brien v. McKean[cdxciv]⁴⁰, well established in English law. The learned Chief Justice went on to say by way of dicta: “In the case of such personal injuries, though there may be something to be said logically for making the assessment of damages as at the date of the receipt of the injuries, the date of the verdict is, in my opinion, the proper date as at which to make the assessment. It may be that delay on the part of the injured person in bringing or prosecuting his claim could on this basis in some circumstances advantage the plaintiff, though, except in the case of some dramatic change in purchasing power, this possible advantage would be minimal and largely theoretical. However, even if in some case it became necessary to prevent a plaintiff obtaining a substantial advantage by his own dilatory conduct, the date as at which to make the assessment would not, in my opinion, be the date of the injuries but some later date, probably related to the time as at which a diligent plaintiff would have brought his proceedings to a verdict.”

In Mayne & McGregor (op. cit.) par. 304 the position where the plaintiff’s claim is in respect of a failure to pay money, or is for loss of money paid out by himself is considered. The learned authors submit that there is a good argument for basing the award to the plaintiff on the value of the money at the time of breach in the case of contract and at the time that the loss was determined in the case of tort. They point out that this fits the general rule of damages that they are to be assessed as at the date of the wrong rather than the date of trial and judgment, is consistent with the established rule where foreign currency is involved, and provides for the plaintiff a hedge against the inflationary dangers of the law’s delays to which he ought to be entitled, always provided that he is not responsible himself for culpable delay in suing. However they then show that the trend of authority is the other way, and refer to The Baarn[cdxcv]⁴¹ per Scrutton L.J., and Treseder-Griffin v. Co-Operative Insurance Society Ltd.[cdxcvi]⁴² per Denning L.J. (as he then was).

Here the claim is for statutory compensation not damages and so it is difficult to put it into any of the above categories; if anything it would seem to come closest to the situation dealt with in Mayne & McGregor (op. cit.) in the passage last cited but there is no exact parallel and of course there is here no question of fault or breach. The rule is clear that compensation is to be assessed as at the date of resumption. If compensation had been assessed at that date but for some reason had not been paid to the persons entitled and had instead been placed, for instance, in a trust account and thereafter some years later paid out to those persons it could scarcely be suggested that they should receive anything other than the original sum together with interest and no account would be taken of any intervening change in the value of money. In principle the position should not be otherwise because the assessment was not made until some time later by which time the value of money had changed.

In addition to what appears to me to be the correct approach in principle there are other considerations which in this case should on any view of the matter lead to the same result. First and foremost there is the long period, almost forty years, which elapsed from the time at which the entitlement to compensation arose until the time when it was claimed. I am not prepared to say that the plaintiffs are to be blamed for this period of delay in instituting appropriate proceedings (in the sense of its being “dilatory conduct” referred to by Barwick C.J. in O’Brien v. McKean[cdxcvii]⁴³) as it may well have been that in 1927 and indeed for many years afterwards the plaintiffs’ predecessors in title did not appreciate that they had a claim to compensation by reason of the resumption and even in these proceedings such a claim is not in the forefront of those being put forward on behalf of the plaintiffs.

It is of some significance that when a grievance concerning this land was raised before the visiting United Nations Mission in 1956 the allegation appears to have been that the payment for it had been inadequate and this was the belief of Mr. Niall then the District Officer at Lae in 1950. However, Gaya Nomgui says that the complaint in 1941 to Mr. Justice Phillips was that no payment had been made. I am satisfied that the existence of some grievance concerning the land was known to officers of the Administration at Lae during the period that Mr. Niall was District Officer and later District Commissioner there (that is, between 1948 and 1964) but the impression I get is that the matter was treated as concluded and no real attempt was made to get to the bottom of it. Whilst proper investigation at the stage prior to Mr. Jackson’s investigations in 1966 could not have resulted in the plaintiffs or their predecessors in title obtaining title to the land in view of the 1927 resumption, it may at least have resulted in earlier determination of their claims to compensation.

Whilst I certainly do not infer that the plaintiffs stood by with knowledge of their rights I am compelled to say that after making all due allowances for their apparent lack of knowledge of their rights I do not consider that their failure for nearly forty years to assert those rights should now have consequences more adverse to the defendant than if those rights had been asserted at the proper time.

A long period of time has elapsed without any claim being made and meanwhile the defendant’s predecessor, no doubt in good faith, has presumably already paid what apparently was the equivalent of compensation to the person who, on the face of it, was entitled to receive it, namely the Custodian of Expropriated Property. There is no suggestion of the defendant having derived any advantage from the lapse of time and the inflation which has meanwhile occurred and it finds itself in the position of having paid for the land once and is now being required to pay for it again together with interest for over forty years. It would seem unreasonable looking at the matter objectively and having regard to the position both of the plaintiffs and of the defendant to allow the plaintiffs at this point of time to receive not only interest on the original principal sum for some forty years (which results in a total compensation of something more than three times the original sum) but also the present equivalent in money value of that principal sum which would mean that that sum would again be trebled.

I therefore conclude that no allowance should be made for the change in the value of money since the date of resumption.

The plaintiffs claim mesne profits by reason of the wrongful occupation and use of the land by the defendant between 1927 and 25th September, 1965, or alternatively 18th January, 1966. Mesne profits are damages for trespass, a landlord being entitled to receive as mesne profits the damages which he had suffered through being out of possession of the land. On the findings which I have made the plaintiffs were not entitled to possession of the land after August 1927 and there is no evidence that they were out of possession prior to that date; in any event trespass by the defendant is pleaded as having been from in or about 1927. Consequently no claim to mesne profits is made out. The defendant has pleaded the Statute of Limitations to this claim, the effect of which would have been to limit recovery to a period of six years before action brought and the plaintiffs in turn plead that the defendant is estopped from relying on the statute; this was not argued and the matters pleaded as setting up an estoppel are not supported by evidence. However, as for the reasons which I have given the plaintiffs have no claim to mesne profits it is unnecessary to consider the operation of the Statute of Limitations in this instance.

The plaintiffs’ claim to be entitled to compensation by reason of their having been deprived of their ownership, interest and title to the land either by reason of the final order of the Land Titles Commission in September 1965 or by reason of the consequential registration of the defendant as registered proprietor in January 1966 cannot be sustained in view of the findings which I have made. Whilst a great deal of argument was devoted to the claims under these heads, and obviously they were those which if successful were potentially most advantageous to the plaintiffs, the starting point of any such argument was necessarily that the 1927 resumption was invalid and that ownership by the plaintiffs or their predecessors in title continued thereafter.

As I have found that the 1927 resumption was valid and that the interest in the land held by the predecessors in title of the plaintiffs then ceased and was converted into a right to compensation, it follows that the plaintiffs suffered no deprivation by reason either of the final order of the Land Titles Commission or of the subsequent registration of the defendant. The deprivation which the plaintiffs or their predecessors in title suffered was by reason of the resumption and for this they are entitled to compensation under s. 71 of the Land Ordinance.

Section 41 (1) of the Land Titles Commission Ordinance 1962-1965 provides that: “Where, in the opinion of the Supreme Court, by a decision of the Commission, or by any registration, entry in a Register, document or thing made, issued or done in pursuance of any such decision, a person (other than a party to the proceedings or matter) is deprived of any land, and compensation or damages for that deprivation has or have not been recovered and is or are not recoverable under any law in force in the Territory or a part of the Territory, the Supreme Court may make an order for the payment to that person of such sum as the Court thinks just as compensation for the land of which he has been deprived”. Since the deprivation was not by a decision of the Commission or by any registration, entry in a registered document or thing made issued or done in pursuance of any such decision, that section can have no application in the present circumstances.

Section 177 of the Lands Registration Ordinance 1924-1962 provides: “Any person deprived of land or of any estate or interest in land in consequence of fraud, or in consequence of the issue of a certificate of title to any other person, or in consequence of any entry in the Register Book, or of any error or omission in any certificate of title, or in any entry in the Register Book, may bring and prosecute an action in the Court for the recovery of damages against the person who derived benefit by the fraud or in consequence of the issue of the certificate of title or of the entry or of the error or omission”. As the deprivation did not arise under any of the circumstances set out in that section it likewise has no application here.

Consequently it becomes unnecessary for me to deal with the careful and interesting argument presented to me on these two sections and obviously no good purpose is to be served by my doing so.

There were various matters raised in the pleadings which while not expressly abandoned were not argued and do not merit any detailed consideration. The plaintiffs pleaded breach of fiduciary duty, breach of statutory duty, duress, undue influence by the defendant and also reliance upon certain assurances, promises, representations and holding out by the defendant, its servants and agents. It has now been held by the Full Court in Administration v. Blasius Tirupia & Others[cdxcviii]⁴⁴ that no fiduciary duty arose in the circumstances set out in the pleading. There is no evidence to support any of the other allegations to which I have referred other than perhaps the apparent failure by officers of the defendant to properly investigate the plaintiffs’ grievances at an earlier date. I have already dealt with this matter which would seem to have no practical consequences other than that the plaintiffs might have been advised to bring proceedings some few years earlier than they in fact did.

The plaintiffs also pleaded by their reply that the defence of the defendant is unconscionable and inequitable and that they are entitled to be relieved in equity from the consequences of any of the defences in the said defence which are unconscionable and inequitable and in particular certain specified defences. So far as I can see no support can be found for such a “blanket” pleading which likewise was not argued and which in any event does not go to the basis on which I have ultimately determined the matter.

The defendant pleaded laches and delay in pursuing their claims on the part of the plaintiffs and the village groups on behalf of which they sue. As to this I would merely say that there is no question of any conduct on the part of the plaintiffs or the members of the respective village groups which would operate to defeat their claims or any of them on the basis of this equitable doctrine. In any event the doctrine of laches applies only to equitable claims and the claims by the plaintiffs do not fall in that category.

In the course of the hearing it was suggested that I have a view of part of the subject land. I did not encourage this suggestion as having regard to the limited way in which it is permissible to make use of a view and the fact that I was being required to deal with questions relating to the use of the land many years ago prior to much of it being brought to its present improved state it seemed to me that a view would not only not be helpful but might even be considered disadvantageous. Ultimately counsel did not pursue the matter further and no view took place.

It follows from the above reasons that the first fourteen named plaintiffs are entitled to judgment against the defendant and that the defendant is entitled to judgment against the last three named plaintiffs.

I have already dealt with the quantum of compensation to which I have found the respective plaintiffs are entitled and they must have judgment accordingly. The matter of declaratory relief sought however requires consideration in the light of my findings.

The plaintiffs firstly seek a declaration that at all times from in or about 1900 until 21st September, 1965, or alternatively 18th January, 1966, the plaintiffs were the true owners of the whole of the said land or alternatively such parts of the said land as fell within the customary ownership of the plaintiffs as at or about 1900. The only declaration that I could properly make would differ materially from that sought in that firstly it could relate only to the period from in or about 1900 to 31st August, 1927, further it would necessarily relate not to the plaintiffs but to their predecessors in title and finally would have to take account of the fact that various parts of the land were owned by the respective village groups. Such a declaration would differ so widely from that sought that I do not think it appropriate that I should make it.

The next declaration sought is that the registration in the “Land Register of the Colony of New Guinea” of ownership of the said land by “The Colonial company, The New Guinea Company, of Berlin” on 25th August, 1910, did not operate to vest the said land in the said Company or deprive the plaintiffs of their ownership, interest in and title to the said land. As already pointed out it was not the plaintiffs themselves who had ownership, interest in and title to the land at that time but rather their predecessors in title. However, a declaration that the registration of the New Guinea Company in the Ground Book did not operate to vest the land in that company may properly be made and I shall make such a declaration. It follows that the next succeeding declaration sought, namely that the Custodian of Expropriated Property did not take any interest in the said land and was not the owner or entitled to be the owner of the said land should also be made.

On the findings which I have made none of the remaining declarations sought by the plaintiffs can be made.

In view of the unavoidable length of this judgment it will be convenient to set out in summary form my principal conclusions which are as follows:

N2>1. In 1900 the subject land was not “ownerless” and consequently it was not capable of acquisition by the New Guinea Company in the way in which it purported to do so.

N2>2. The New Guinea Company did not have any valid title to the land and consequently the Custodian of Expropriated Property did not obtain any title thereto.

N2>3. The land was validly resumed by a notice of resumption dated 27th August, 1927, and published in the New Guinea Gazette on 31st August, 1927, given pursuant to s. 69 of the Land Ordinance 1922-1927.

N2>4. At the date of resumption parts of the land were owned by the members of one or other of the native groups represented respectively by the first fourteen named plaintiffs as such groups were then constituted and the parts so owned aggregated the whole of the land.

N2>5. At that date no part of the land was owned by the members of the native groups represented respectively by the last three named plaintiffs as such groups were then constituted nor did any of such groups have any interest in the land by reason of which they became entitled to compensation.

N2>6. The members of the native groups referred to in (4) above became entitled to compensation pursuant to s. 71 of the Land Ordinance 1922-1927 as at the date of resumption.

N2>7. Each of the first fourteen named plaintiffs is now entitled to receive on behalf of the members of the group whom he represents as such group was constituted at the commencement of these proceedings such compensation as would have been payable to the members of that group as at the date of resumption.

N2>8. The action is properly framed and the judgment given will bind all members of the groups represented.

N2>10. The proper course is to assess compensation separately for each group. Whilst it is difficult to do this with precision on the material before the Court, it is not impossible and the Court must do the best it can.

N2>11. The areas for which each group is entitled to be compensated as at the date of resumption and the amount of compensation as at that date in each case is then as follows:

N2 align=right style='text-align:right'>12. Interest at the rate of five per cent per annum (simple interest) is payable on each of the above amounts from the date of resumption (31st August, 1927) to the date of payment.

N2>13. No allowance should be made for the change in the value of money since the date of resumption.

N2>15. The plaintiffs are not entitled to compensation under either s. 41 of the Land Titles Commission Ordinance 1962-1965 or s. 177 of the Lands Registration Ordinance 1924-1962.

N1>(1) It is declared that the registration in the “Land Register of the Colony of New Guinea Finch Haven” of ownership of the land described in Volume 1, Folio No. 33 by “The Colonial company The New Guinea Company, of Berlin” on 25th August, 1910, did not operate to vest such land in the said Company.

N1>(2) It is further declared that the Custodian of Expropriated Property did not take any interest in the said land and was not the owner or entitled to be the owner of the said land.

N1>(3) It is ordered that the defendant pay to each of the undermentioned plaintiffs on behalf of himself and all members of the group on whose behalf each sues the amounts set out opposite his name together with interest on such sum at the rate of five per cent per annum from 31st August, 1927, to the date of payment in each case as compensation pursuant to s. 71 of the Land Ordinance 1922-1927.

Stephen Poalu and Karo Ahi (on behalf of Gwatu Group of Butibam Village) the sum of $24.

Kising Tikandu (on behalf of Wapigurhu Group of Butibam Village) the sum of $1,440.

Mindara Masa (on behalf of Kamkumun Uapu Group of Kamkumun Village) the sum of $24.

Omba Kamdring (on behalf of Mambu No. 1 Group of Kamkumun Village) the sum of $160.

Haisie-Puang (on behalf of Kamkumunlu Group of Kamkumun Village) the sum of $24.

And judgment is hereby given for each of the abovementioned plaintiffs accordingly.

N1>(4) Judgment is hereby given for the defendant against each of the undermentioned plaintiffs, namely—

The plaintiffs and the defendant appealed against this decision to the Full Court.

T. R. Morling, Q.C., and with him T. Bredmeyer for the cross-appellant, the Administration of the Territory of Papua and New Guinea.

FROST SPJ: This is an appeal and cross-appeal brought against the judgment of Kelly J. in an action concerning a large tract of most valuable land in the Morobe District, 11,933 acres in area, upon which the town of Lae is built and known as the “Lae Administration land”. The land is bounded by the sea coast of the Huon Gulf and is situated between the Bumbu River on the east and the Markham River on the west and thence inland to the north. The respondent to the appeal became the registered proprietor of the land pursuant to a final order made on 25th September, 1965, under the New Guinea Land Titles Restoration Ordinance 1951-63, and a certificate of title under the Lands Registration Ordinance 1924-62, issued pursuant to such final order on 18th January, 1966.

The action was brought by seventeen plaintiffs each of whom sued on his own behalf and on behalf of a named village group, but at the trial the action was pursued by fourteen only of the plaintiffs. By their Statement of Claim the plaintiffs claimed title by native custom, the allegations in detail being: that the plaintiffs were New Guinea indigenes, being the patrilineal or matrilineal descendants of the indigenes who from time immemorial constituted and resided in the respective village groups; that from time immemorial, and in particular from about 1900 and until the 25th September, 1965, or alternatively 18th January, 1966, each of the persons constituting and residing in each of the said village groups was the owner (together with each other of the persons constituting and residing in each such village group) of the respective areas of land traditionally occupied and used by them; that the whole of such respective areas were situated within and comprised the Lae Administration land; that pursuant to the laws and customs of the indigenous inhabitants of the Morobe District of the Territory each village group held its respective area of land communally; the interest of each member of the group of patrilineal descent in such communal land arose at birth and continued until death; the interest of each member of the group, of matrilineal descent, in such communal land arose at birth and continued whilst such member resided in the village of such group; that the interest of each member of the group in such communal lands was a proprietary interest and was a joint interest with each other member of the group; that pursuant to the said laws and customs the interests of each village group in the land was inalienable and its incidents included the right to occupy and move freely about the said lands; the right to exclude others; the right to plant gardens, etc., on the said lands; the right to live off the waters and the plant and animal life of the said lands; the right to permit others to temporarily occupy portion of the land for limited periods without the plaintiffs thereby forfeiting any rights of ownership to the lands; the right to dig for and use the rocks, earth, etc.; and the right to dispose of the products of the lands by trade or ritual exchange.

In the statement of claim there were then stated the known transactions concerning the land commencing with its occupation on 5th April, 1900, by “the Colonial Company the New Guinea Company, of Berlin” (which it is convenient to refer to as the New Guinea Company), purportedly under German legislation which authorized the Company to acquire “ownerless land”. Thereafter on 25th August, 1910, the New Guinea Company was entered as owner of the land in the “Land Register of the Colony of German New Guinea Finchhafen”, which I shall refer to as “the Ground Book”, purportedly in pursuance of that occupation and of the Imperial Governor’s certificate of 15th May, 1903, given under the German legislation.

In 1920 pursuant to the provisions of the Expropriation Ordinance 1920 the land is said by the Administration to have become vested in the Public Trustee and subsequently in the Custodian of Expropriated Property. Thereafter in 1927 by a notice published in the New Guinea Gazette on 31st August, 1927, the defendant purported to resume the land under s. 69 of the Land Ordinance 1922-27. The final relevant transactions concerning the land are the making of the final order in the restoration proceedings and the subsequent issue of the certificate of title.

The plaintiffs did not dispute the defendant’s title as established in the certificate of title. The substance of their case was that prior to and in the year 1900 and thereafter they were entitled to the land by native custom, that in taking possession of the land in 1900 as ownerless land the New Guinea Company did not validly acquire the land, the subsequent entry in the Ground Book did not operate to confer any title upon the New Guinea Company, and that accordingly the land did not vest in the Custodian of Expropriated Property. The plaintiffs also contended that the steps taken to resume the land in 1927 were not properly taken in accordance with the Land Ordinance and the resumption was therefore invalid, and that accordingly the plaintiffs’ ownership of the land by native custom remained until it was extinguished by the making of the final order under the Restoration Ordinance or alternatively the issue of the certificate of title thereunder.

The relief claimed by the plaintiffs was for various declaratory orders, the principal order sought being a decaration that at all times from about 1900 until the date of the making of the final order or alternatively the issue of the certificate of title, the plaintiffs were the owners of the subject land, a claim for mesne profits by reason of the alleged occupation of the land by the defendant from about the date of the resumption until the defendant obtained title in 1965 or 1966, and claims to compensation for the alleged deprivation of the plaintiffs’ ownership in the land. These latter claims, which were of great magnitude as they were based on the present value of the land which on the evidence was said to be $10,000,000 unimproved and $35,000,000 improved, were made pursuant to s. 41 (1) of the Land Titles Commission Ordinance in respect of the making of the final order, or alternatively under s. 177 of the Lands Registration Ordinance, in respect of the issue of the certificate of title to the defendant.

The matters referred to were the main issues argued before the trial judge in this Court. The trial judge’s principal conclusions, as summarized in the judgment, are as follows:

N2>“1. In 1900 the subject land was not “ownerless” and consequently it was not capable of acquisition by the New Guinea Company in the way in which it purported to do so.

N2>2. The New Guinea Company did not have any valid title to the land and consequently the Custodian of Expropriated Property did not obtain any title thereto.

N2>6. The members of the native groups referred to in (4) above became entitled to compensation pursuant to s. 71 of the Land Ordinance 1922-1927 as at the date of resumption.”

The trial judge then held that the plaintiffs were the successors in title of the persons who were the owners of the land in 1900 and 1927, and entitled to compensation as at the date of resumption in 1927, at the rate appropriate to the value of the land in that year, viz., 20 cents per acre, together with interest at five per cent per annum (simple interest) payable from the date of resumption.

The appellants in this court are the plaintiffs who have submitted that the trial judge was in error in upholding the resumption, and consequently awarding compensation as at the date thereof. The appellants then claim that the learned trial judge should have awarded compensation assessed according to land values in 1965, or alternatively 1966, by reason of the making of the final order or subsequent issue of the certificate of title thereunder pursuant to the relevant ordinances.

The respondents have cross-appealed, the principal grounds being that the trial judge should have held that the New Guinea Company did acquire title to the land on 5th April, 1900, or thereafter and thus the Custodian of Expropriated Property obtained title, and further that the trial judge was in error in holding that the appellants had an interest in the subject land as at the date of the resumption thereof.

I propose to consider the appeal first, the main ground being concerned with the validity of the resumption. The powers which were purportedly exercised were those contained in the Land Ordinance 1922-1927, the relevant provisions in force in 1927 being the present s. 69 (1), s. 70, and the first paragraph of s. 71. The sections are as follows:

N2>“69. (1) The Administrator may by notice in the New Guinea Gazette acquire or resume land for any of the following purposes—

(3) Telegraphs, telephones, railways, roads, bridges, ferries, canals or other works used as a means of communication or for any work required for the purpose of making use of any such work;

(10) Any other public purpose which the Administrator shall deem to be necessary.

N2>70. No acquisition or resumption under the last preceding section shall be made until the expiration of one month after notice in the New Guinea Gazette of the intention to resume, and during this time any person feeling aggrieved may address to the Administrator any objection he may have to the land being acquired or resumed.

N2>71. Subject to any covenants or conditions contained in any grant or lease reserving the right of resumption of land for public purposes compensation shall be paid for land acquired or resumed under section sixty-nine of this Ordinance, and such compensation shall be assessed in the prescribed manner.”

It will be seen that the legislation is much less comprehensive than the provisions usually to be found in modern Australian resumption legislation. In particular there is no specific provision for the vesting of the land resumed in the Administrator, although it was not argued by the appellants that if ss. 69 and 70 were complied with, the land or the interests therein did not vest in the Administration.

The notice of intention to resume dated 19th July, 1927, was published in the New Guinea Gazette on the same day. It was purported to be given by the Deputy Administrator in pursuance of the provisions of s. 70 of the Land Ordinance. The notice was to the effect that “it is intended under the powers conferred by s. 69 of the Land Ordinance 1922-1927, to resume the land described in the schedule hereto partly for the purpose of native reserves and partly for use as an aerodrome, an agricultural depot and a shipping depot or for any other public purposes which may hereinafter be specified by the Administrator”. The schedule to the notice contained the description of the land which is to be found in the entry in the German Ground Book entered on 25th August, 1910, and concluding with the words, “being the whole of the land registered in the Ground Book for Finchhafen, Vol. 1, Fol. 38, in the name of the New Guinea Company”.

The notice of resumption dated 27th August, 1927, which was published in the Gazette of 31st August, 1927, was signed also by the Deputy Administrator. The notice recited that by s. 69 of the Land Ordinance the Administrator was empowered to resume land for the purpose of native reserves or for other public purpose (sic) which the Administrator should deem to be necessary, that notice of intention to resume had been given and the terms thereof, that no person had addressed to the Administrator any objection to such resumption, and then proceeded in these terms that the Deputy Administrator did “hereby give notice and declare that the said land described in the schedule hereto (which followed the description given in the previous notice) is hereby resumed partly for the purpose of native reserves and partly for use as an aerodrome, an agricultural depot and a shipping depot or for any other public purpose which may hereinafter be specified by the Administrator”.

No point was taken before the trial judge or in this court founded on the fact that both notices had been given by the Deputy Administrator.

I find myself in agreement with the trial judge in his judgment that the resumption was valid, and I do not think that I can express my opinion upon this matter more clearly than as expressed by the trial judge. However, I proceed now to consider the appellants’ arguments on this issue. The trial judge was I consider right in upholding the appellants’ contention that the notice of resumption must state the purpose or purposes for which the land was resumed. I consider that the words “by notice” preceding the predicate in s. 69 (1) shows that the notice was intended to state both the acquisition and the purposes. This construction is supported by the reasoning of Dixon C.J. in Jones v. The Commonwealth[cdxcix]⁴⁵, in which the High Court had to consider the validity of a notice of compulsory acquisition of land by the Commonwealth under the Lands Acquisition Act 1955-1957. The Act was held upon its terms to require that the notice should state the public purpose for which the land was being acquired. Dixon C.J. said that there were three reasons which made this essential, and whilst two of those reasons are not relevant in this case, the third reason that “the land owner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose” (p. 483) is applicable, and in my opinion supports the construction I have preferred of the rather bare words of s. 69 (1). The other cases cited in argument before the trial judge and also in this court upon this point I do not find of assistance as each turned on the construction of the particular statute of resumption.

The appellants attacked the validity of the notice mainly on three grounds. First it was contended that the specific purposes, apart from use as native reserves which is specifically found within par. 7, were not authorized by s. 69 (1), but in my opinion, taking each of the purposes in turn, use of the land as an aerodrome is supported as a means of communication under sub-par. 3, or as a public utility under sub-par. 9, which also supports use of the land as an agricultural depot or shipping depot. Each of the three last named purposes could also be supported as a public purpose under sub-par. 10. As counsel for the respondent submitted, the fact that the purposes were so stated in the notice is prima facie evidence that the Deputy Administrator had formed the opinion that such purposes were deemed to be necessary. Western Stores Ltd. v. Orange City Council[d]⁴⁶.

Secondly, it was submitted on behalf of the appellants that whilst the notice of resumption could validly state mixed purposes, if the purposes stated were inconsistent the case was different, and the notice lacks certainty unless specific parts of the land were specified in relation to each inconsistent purpose. The effect of the notice is to resume the land partly for native reserves, and partly for three named purposes, the use for any one of which may well be inconsistent with the use of the land for the other purposes. Counsel for the respondent submitted that on its proper construction the intention was that the land could be used for the purposes stated successively in point of time, so that no uncertainty was involved. But whilst this construction is open on the words of the notice, so also is the construction that different parts of the land were to be used for each of the named purposes. However it is not necessary for me to go further than to state that in my opinion there is no warrant for reading into the section any requirement that specific portions of the land should be designated for each inconsistent purpose. I agree also with the trial judge that the passage in the judgment of Windeyer J. in Tinker Tailor Pty. Ltd. v. Commissioner for Main Roads[di]⁴⁷ supports this conclusion.

The third main ground of attack upon the validity of the resumption was based upon the words “or for any other public purpose which may hereinafter be specified by the Administrator”, which are to be found at the end of the notice of resumption. The trial judge held that “hereinafter” should be given its literal meaning, and as no purposes were specified in the notice of resumption the effect of that final provision was nugatory and could be ignored. The notice was thus supported by the stated purposes. Counsel for the appellants submitted that “hereinafter” should be read as “hereafter”, or as referring to the Gazette considered as a continuing publication and, as the alternative use was thus left for later specification the notice failed because the purposes were not therein specified and also because it was void for uncertainty. Now although the word “hereafter” is, of course, a different word and carries a different meaning from the word “hereinafter”, because the latter is the same word with a syllable added, it could be said that it is possible that “hereinafter” was used in error, whilst “hereafter” was intended to be used. The Concise Oxford Dictionary gives the meaning of “hereinafter” as, “below (in document, etc.)”, which is the same meaning as the trial judge took, that is to say, “in this document”.

It is true that if other purposes were intended to be specified in the schedule to the same document, one would not expect to find the word “may” which implies a possibility. However if further public purposes had been specified at the end of the document it could not be said, in my opinion, that the words in question were inappropriate to refer to those public purposes. I agree with the trial judge that it is useful to refer to the case of Doe d. Spencer v. Godwin[dii]⁴⁸, a case on a deed, but the rule of construction for a statute or statutory instrument seems to be not different. Odgers’ Construction of Deeds and Statutes, 5th ed., p. 237. The headnote is as follows: “Lease for years by indenture rendering rent, and lessee covenants with lessor that he will pay the rent, and will not assign without leave of lessor, provided that if the rent be in arrear, or if all or any of the covenants hereinafter contained on the part of the lessee shall be broken, it should be lawful for lessor to re-enter; and there were no covenants on the part of the lessee after the proviso, but only a covenant by lessor that lessee paying, etc., and performing the covenants hereinafter contained ... should quietly enjoy. Held that lessor could not re-enter for breach of the covenant not to assign, for the proviso is restrained by the word hereinafter to subsequent covenants, and though there were none such yet the court could not reject the word.” The court held that the safest course was to give the word “hereinafter” its literal meaning unless, as Lord Ellenborough said, “we can see a decisive reason for departing from it” (105 E.R., at p. 834). In that case Bayley J. did not consider it too speculative to refer to the possibility of the lease having contained after the proviso certain covenants on the part of the lessee, which before execution had been struck out or erased, the erasure not appearing on the face of the instrument, so that there was no error in the insertion of the words in question but rather in the omission of the covenants. As the learned judge could not see with sufficient certainty what was the intention of the parties, he considered the only safe rule was to adhere to the words. Whilst a similar possibility occurring in this case where two notices are involved seems even more speculative, in my opinion, the case cited does offer guidance in determining whether the mistake lies in the use of the word “hereinafter” or in the omission of “other public purposes”.

Counsel for the respondent referred to Odgers’ Construction of Deeds and Statutes, 5th ed., at p. 252 et seq. A useful citation, in my opinion, is to be found therein from a passage in the judgment of Lord Hewart C.J. in Spillers, Limited v. Cardiff (Borough) Assessment Committee[diii]⁴⁹ where the learned Chief Justice said, “It ought to be the rule, and we are glad to think that it is the rule, that words are used in an Act of Parliament correctly and exactly, and not loosely and inexactly. Upon those who assert that that rule has been broken the burden of establishing their proposition lies heavily. And they can discharge it only by pointing to something in the context which goes to show that the loose and inexact meaning must be preferred.” These words were quoted with approval by Lord Macmillan in New Plymouth Borough Council v. Taranaki Electric Power Board[div]⁵⁰. My conclusion is that it has not been shown with sufficient certainty that the meaning of “hereafter” was intended. Accordingly the word “hereinafter” in the notices is to be given the meaning preferred by the trial judge of “in this document”. As no other public purposes were specified as an alternative in the document, the provision can be ignored, and the effect is that the notice can stand upon the purposes expressly stated, and is thus free from uncertainty. The consideration that if the literal meaning is thus given to the word “hereinafter”, it leads to each notice being valid, is a further reason to support that construction, upon the principle ut res magis valeat quam pereat.

In my opinion therefore the land was validly resumed and the appeal must fail. It is unnecessary to consider the other grounds of appeal which related to the claim for mesne profits or for compensation under the provisions of the Land Titles Commission Ordinance s. 41 or the Lands Registration Ordinance s. 177, for neither of these provisions entitled the appellants to compensation if the land was validly resumed.

I now turn to the cross-appeal. Counsel for the respondent submitted that the trial judge was in error in holding that the appellants had an interest in the land as at the date of the resumption. This submission raises first the question of the validity of the acquisition of the land by the New Guinea Company as ownerless land. If the land was thus validly acquired, it was not disputed, the prior customary title, if any, of the original native owners was brought to an end, and the title of the land became vested in the Custodian at the date of resumption. Upon this part of the case I have had the great advantage of reading the judgment of Clarkson J. in which the relevant provisions of the German legislation so far as it is available to us, are fully set out so that it is unnecessary for me to attempt the same task.

The Court has the function of examining the validity of a title which depends on the ascertainment and application of German law, because under the Laws Repeal and Adopting Ordinance 1921, upon the commencement of civil administration under the New Guinea Act 1920, interests in land were not affected, and questions of law affecting them were to be decided by the law in force in the Territory at the commencement of the Ordinance, which was German law (s. 8 (2)). Onerous as this function is, it is made more difficult by the incomplete German sources of the law, the quality of the translations available to us and also the loss of relevant documents, and upon these matters I fully agree with the observations of Clarkson J. The parties are under great disadvantages—the appellants because the title relied upon is said to have originated in the year 1900 when it is certain that the native communities in the area were unaware of the provisions of the German land laws, and were incapable of producing any written accounts, and the delay in bringing the action must have operated strongly to the disadvantage of the respondent.

At the outset I should refer to s. 26 (4) of the Lands Registration Ordinance 1924 upon which counsel for the appellants strongly relied. He did not challenge that the validity of the acquisition was to be decided in accordance with German law, but he submitted that by reason of s. 26 (4) the entry in the Ground Book showing the New Guinea Company as the registered owner of the land was deprived of evidentiary effect as against possible native titles. That section is to be found in div. 2 of Pt. III of the Lands Registration Ordinance, which provides for the bringing of freeholds already alienated or in the process of alienation under that Ordinance, which in effect set up a system of Torrens title. Division 2 was repealed in 1951 by the New Guinea Land Titles Restoration Ordinance, s. 67 (1)(c), but it was in force at the relevant time, viz., 1927. Under s. 16, which is found in div. 2, it was provided that where any land or interest in land was registered in the Land Register the Registrar should without any application from any person interested proceed to bring the land under the Ordinance. Provision was made for the protection of native rights in the land, for unless the Director of Native Affairs was prepared to certify (inter alia) that he was satisfied that there were no natives or native communities having any rights over the land other than those appearing in the Land Register, he was forthwith to refer the question of native rights in relation to the land to the Court, s. 22 (c). Section 26 provides for the procedure by the Court, upon summons, to determine questions of possible native rights in land referred to it by the Director of Native Affairs. Sub-paragraph (4) provides as follows:-

“The fact that no native rights are registered in the Land Register, or that the registration of any such rights therein has been cancelled, shall not of itself be taken to be any evidence that those rights do not exist.”

Counsel for the appellant submitted that this provision was of general application even although it is to be found amongst provisions for bringing land under the Ordinance. If this view is correct the entry in the Ground Book would be deprived of the effect, so far as native rights in the land are concerned, which it would have had under German law as prima facie evidence of title (Imperial Ordinance, 21st November, 1902, par. 21).

By its plain terms, so far at least as the procedure by summons provided by s. 26 is concerned, s. 26 (4) effected an implied and partial repeal of s. 5 of the Laws Repeal and Adopting Ordinance, for under that section the entry in the Ground Book was one of the instruments receivable and admissible in evidence in the same manner as under the German law in force in the Territory at the date of the commencement of the Ordinance. Counsel’s submission raises for decision whether the entry in the Ground Book was deprived of its force as prima facie evidence of title, generally, so far as native rights to land were concerned, so that the question involves the extent of the implied repeal. In this case limited assistance only, in my opinion, is obtained from the rule that, “Courts lean against implying a repeal”. Odgers’ Construction of Deeds and Statutes, 5th ed., p. 361. It seems to me that this is a difficult question, and not without doubt I have come to the conclusion that counsel’s submission is correct. I am led to this conclusion because of the Registrar’s statutory duty under s. 16 to bring all land under the Ordinance, so that in all cases except those in which a certificate could have been given under s. 22 (c) the rights of natives to or affecting the land would have fallen to be determined by the Supreme Court in accordance with s. 26 (4). The rights to be determined are wide enough to cover a claim to a fee simple interest in the land, and not merely rights of the nature of easements, profits or rights in gross. I do not consider that there was any clear indication in the Ordinance that the unqualified words of s. 26 (4) should not apply in the determination of questions concerning native rights to land arising in proceedings other than in the procedure by summons provided for under s. 26. Accordingly, in my opinion, whilst the matter remains to be determined under the relevant provisions of the German law, the entry in the Ground Book is not prima facie evidence of title, as against possible native rights.

The trial judge concluded that upon an examination of the facts it had been shown that the land was not ownerless and therefore had not been validly acquired. It is thus first necessary to consider the meaning of “ownerless land”. The trial judge accepted the conclusion of Ollerenshaw A.C.J. in Tolililu & Others v. The Director of Native Affairs[dv]⁵¹, that the phrase means land which appears to be unclaimed. This conclusion was based upon the terms of the rules of procedure to be adopted by the New Guinea Company with the sanction of the Imperial Chancellor which were prescribed in the direction dated 10th August, 1887. There is a reference to the rules by Phillips J. in the Mortlock Islands case[dvi]⁵², at p. 639, in these terms:—

“These rules were elaborate and strict and may still be studied with profit; the instructions given, for instance, as to the exhaustive preliminary inquiries that were to be made before the Company occupied land as ownerless do not seem to square with any intention to permit the Company to squat on native land ....”

It was not challenged before us that it was proper to consider the directions for the purposes of arriving at a definition of ownerless land.

The definition adopted by the trial judge was that ownerless land meant land which is not claimed by particular persons as being their property, whether or not it was in fact owned by them. However, I agree with Clarkson J. that the words of the directions require the qualification that a bare claim would be insufficient; a claim must be supported by user or reputed ownership. Understood in this sense the term ownerless land provides a definition less onerous than the natural meaning of the phrase.

The trial judge found that there was sufficient evidence that at the time of the acquisition native communities, which on this issue it was unnecessary for him to identify, were asserting claims to the ownership of the land. His finding was based on the oral and documentary evidence as to the same native occupation of the land, and also as to the inferences to be drawn from oral evidence that the land was traditionally regarded as subject to customary ownership by the various native groups represented by the appellants.

From the documentary evidence admitted by consent can be gathered some evidence concening the use of the land. It commences with Captain Dreger’s account published in 1887, of a visit to the area. The only settlements he saw were those at the mouth of the Markham, with plantations upstream for a distance of about two miles on each bank. In Kaernbach’s account published in 1893, “A Boat Trip through the Huon Gulf in Kaiser Wilhelmsland”, reference is made to many natives on the beach at the mouth of the Adler River, which was the Bumbu, the “large village of Lugamu” at the foot of the Burgberg or Mt. Lunaman, which is on the subject land, and also to the fact that many crops were grown there.

The next recorded visit to the land was on 19th January, 1903, when Stuckhardt, the District Commissioner, was investigating on behalf of the Administration land claims of the New Guinea Company. His report in relation to the subject land of the result of an examination on the spot was, “All natives living in the vicinity agreed that no settlements were located in the area and that no claims as to ownership existed. From the Burgberg a fence was seen in the distance, this is the reason for the reservation regarding the plantations. The taking into possession is otherwise approved.” The entry in column 1 of the Ground Book was specified as follows, “Reservation only with regard to plantations, (not regarding settlements)”. Counsel for the respondent naturally relied strongly on this document. A missionary map which appears to be dated about 1906 refers to the area of the New Guinea Company on the west side of the Bumbu River and further north the area is designated as, “The gardening area of the Lahe”. From the report of a visit on 17th August, 1907, by the District Commissioner, who was not named, it appears that the village of the Lugamu had again been occupied (probably under the influence of missionaries), but it refers also to the Laewomba people, who came from further inland, harassing the coastal people. One Sunday while in church the Laewomba had made a surprise attack, killing twenty-five people and burning down the village. A punitive expedition was organized, and reference is made to it passing through “the now deserted gardens of the Lugamu people”. The same incident is referred to by Froehlich, a surveyor employed by the New Guinea Company, who was upon the Huon Gulf coast also in the latter months of 1907. He stated that after the attack the survivors had left the Lugamu villages and were scattered in all directions, although a number were gradually persuaded to come back. So afraid had the people become of marauders, that they did not dare enter their villages, which lay about half an hour inland, unless in the company of men armed with guns. An instance of the need for caution not only in the weight to be given the documentary evidence, but also in the reliability of the information received by these early explorers, is shown by Froehlich’s statement that, after inquiry, he learned that the area had been inhabited in earlier years but “it could be thirty years since the inhabitants emigrated after they had put a strong spell on the place”. This seems inconsistent with Kaembach’s reference to the Lugamu vilage in 1893. Froelich’s significant statement that “it was peculiar that the whole area between the Markham and the Bumbu was uninhabited (that is ownerless)”, was strongly relied on by the respondent.

The unsettled conditions in the area were also referred to by the missionary Lehner who in 1907 stated that, apparently fifty to sixty years before, quarrels developed amongst the people on the great Markham Plain which became more and more vicious, and led to many lives being destroyed and villages deserted. The Lae people who lived closest to the coast were driven closer and closer to the coast, until finally they had to erect their huts on the beach. These savage attacks were still continuing in 1907. From the report by the missionary Oertel in 1910, it appears that following the disorders referred to, in 1910 there were “only ten wretched Lae huts there (at Mt. Lunaman) and a few more further up the beach, whereas all the others still live with the Abo and Bukaua (off the subject land, to the north-east) and are still apparently making no move to return to their deserted villages”. In a further report dated 28th October, 1910, Oertel states that, “The Lae are not very many in number”, and “far from all of them have returned yet”.

The trial judge considered that this evidence indicated that there was some settlement in at least part of the area prior to 1900 followed by an expulsion of the Lae people from the area at some stage by the Laewomba and their subsequent return, commencing in about 1910. In my opinion this inference was justified. There may have been an expulsion from the land earlier than 1900, but there was certainly some expulsion in 1907 after the arrival of the missionaries.

It is convenient now to turn to the trial judge’s finding as to the state of native occupation at the date of the purported acquisition by the New Guinea Company. Upon all the material, documentary and oral, the trial judge concluded “... there was no settlement in the sense of established villages between the Markham and the Bumbu but there were some gardens, the exact extent of which is not clear, and some part of the land was used for hunting. The area used for gardens over a period of time would have been much greater than the extent of the gardens actually being cultivated at any one time as a system of rotation was used.” In an earlier passage the trial judge stated that it seemed likely that there was not a great number of gardens.

The trial judge reached this conclusion partly from the oral evidence, which he accepted, of four native witnesses who, at the time of the trial, were old men, and who spoke of their childhood recollections as to gardens on the land, the use of some parts of it for hunting and other purposes including the gathering of sago. Counsel for the respondent submitted strongly that such evidence given more than sixty years after the relevant time was unsafe to act upon. I agree that generally a court would take this view, and would be slow to act on such evidence. However, when the facts in question relate to visits to and the use of land for gardens and other useful purposes, visits of no casual nature for the men were armed and alert for any hostile attack from the time they left the village—a witness spoke of guards standing by as others worked in the gardens—I am not prepared to say that this evidence was not worthy of credence. Further it was supported, in my opinion, by the reference in Stuckhardt’s report to a fence seen in the distance, as a sufficient reason for a reservation regarding plantations. I consider that the observation by Kaernbach of gardens before 1900 and references to deserted gardens after 1903 also provides some corroboration of the oral testimony. I have therefore reached the conclusion that the trial judge’s finding of fact is supported by the evidence, and certainly I am not prepared to say that I am convinced that it was wrong.

The question then arises as to what inferences are to be drawn from the presence of some native gardens and the use of some parts of the land for hunting. There seems to be much force in the trial judge’s observation that, “where land is being used by members of a native community for the purpose of gardens, prima facie it is not ‘ownerless’...”. The difficulty is to determine the extended area of land in addition to that actually being used for gardens as to which claims can be supported by user. There is first the consideration referred to by the trial judge that the system in use of rotation of crops means that native claims could not be restricted to the area actually used in any one season. The land under gardens in any one season, it was estimated by Phillips J. (as he then was) in the Jomba Plain case[dvii]⁵³, represents only about one-fifth or one-eighth of the gardening ground used over a period of years. From common observation in New Guinea, as is to be expected, the plots used in succeeding seasons are not contiguous, but can be seen dotted over any particular tract of land. These facts of native land use, in my opinion, would have made it difficult for the German officers administering the rules of acquisition for ownerless land to determine the area of land to be temporarily excluded from the acquisition, when investigations showed the existence of “plots used for food production”. This practical difficulty probably accounts for the apparently usual terms for a future reservation contained in condition 3 of the Certificate of Ownership given by the Imperial Governor Hahl on 15th May, 1903: “Dwelling places and plantations existing at the time of surveying owned by the natives remain their property entirely, in the manner that per head of population of the natives, regardless of age and sex, a minimum of one hectare must be left to them ...”. It is reasonable to suppose that the specification of one hectare per person intended to provide for this situation. In practice, no doubt, in many cases the areas of land used for food production could have been determined by reference to natural boundaries in the locality.

Three main considerations make it wrong in my opinion to draw the inference merely from the facts as to native occupation as found by the trial judge that the whole of the subject land was claimed by native groups. The first is that the garden areas were not great in number and, as I read the judgment, the trial judge was unable from the evidence precisely to identify them. The second is the nature of the terrain, much more than half of which is shown on a map (exhibit 60) dated 1970, as rain forest, and hilly and it seems unfit for occupation. Much of the land is still in its virgin timber state. The third reason is that, in relation to effective occupation, the number of natives living in the area seems to have been few in number (as reported by Oertel), which is consistent with the number of natives recorded for the Lae villages in 1913 — fewer than 400. I do not overlook the facts that various parts of the land claimed by the Wapigurhu and Wapi groups of the appellant land-holding groups were used for hunting and the gathering of fruits, sago and sago thatch, and some at least must have been situated in the hilly terrain, and that some portions of the land must have been traversed by paths. The fact that the settlements were on the western side of the Bumbu, is some indication that the land effectively occupied was on that side of the river. On the whole, in my opinion, the limited use of the land shown by the evidence could not itself have supported an inference that the whole of the land was claimed.

The remaining evidence upon which the trial judge found that ownership was being asserted at the time of acquisition is the body of evidence from a number of witnesses from the native groups represented by the appellants as to the situation of the customary land of those groups, from which the trial judge inferred that at the date of the purported acquisition ownership was being asserted to the whole of the land. The admissibility of this testimony as declarations of deceased persons about matters of public and general rights is supported by the valuable judgment of Blackburn J. in Milirrpum v. Nabalco Pty. Ltd.[dviii]⁵⁴. It is also evidence of reputed ownership which was require to support a claim under the rules of procedure for the acquisition of ownerless land. The trial judge also relied on the evidence of Mr. Jackson as to the ownership of the land at the time of occupation by the New Guinea Company. I share the doubts of the trial judge as to the admissibility of this testimony in view of the fact that the testimony related to the very question the court had to decide. Phipson on Evidence, 11th ed., pars. 1297-1298. However, on the whole I do not consider that it is possible to exclude the element of anthropological science and skill employed by Mr. Jackson in his inquiry, and I am not prepared to say that the evidence was inadmissible. In my opinion, however, in all the circumstances it can carry little weight.

Upon this part of the case, the oral testimony has to be tested against the documents, and particularly Stuckhardt’s report of 1903, and Froelich’s observations of 1907. There are also the considerations that with the establishment of the mission after 1907 native occupation became more settled, and the witnesses may thus be speaking of conditions later than 1900, and native claims to the land were not made until immediately before the second war and thereafter were directed to the fact that insufficient money had been paid for it. These were matters considered by the trial judge. As I have already stated I am not prepared to differ from the trial judge as to the facts of limited native occupation found by him which would support claims to the garden and hunting areas. Further the trial judge’s finding could not be said to be entirely without support from the documents. Whilst the nature of the issue whether the land was ownerless land within the meaning of the German legislation is very different from, for example, the issue of negligence or no negligence in a road accident case, I consider the test laid down by the High Court in Edwards v. Noble[dix]⁵⁵ that an appellate court should not set aside a finding of fact by the trial judge unless it is satisfied that it is wrong, is applicable to the decision of the present issue. For the reasons I have stated, when considering the inferences to be drawn from the facts found by the trial judge as to native occupation, I might have decided that no inference should be drawn from the whole of the evidence other than that various parts of the land were not ownerless, but on the whole I have decided that the trial judge’s conclusion was open to him, and I am not prepared to find that I am satisfied that that conclusion was wrong. Accordingly, I consider that the trial judge’s conclusion should not be disturbed that the land was not validly acquired by the New Guinea Company and consequently did not become vested in the Custodian of Expropriated Property.

The question remains whether the trial judge was right in upholding the appellants’ claim that they were the successors in title to natives who in 1900 owned the land by native custom and that they were entitled to an interest in land upon which, upon the resumption, compensation was payable. I propose to refer first to some preliminary matters which were not fully argued. Under the Laws Repeal and Adopting Ordinance 1921, native possession and interests in the land were saved by s. 9 which provided that nothing in the Ordinance should affect the right, title, estate, or interest of any aboriginal or tribe of aboriginal natives to any land in the Territory. Also under s. 10 the tribal incidents, customs and usages of the aboriginal natives in the Territory were not to be affected by the Ordinance. The words used in s. 9 “right, title, estate or interest” are, of course, familiar concepts of English law. The right to land implies correlative duties binding upon others, such as the duty to refrain from trespassing (Textbook of Jurisprudence by Professor Paton, pp. 206-7). The difficult problem of “the estimation of the rights of aboriginal tribes” in land has been referred to by the Judicial Committee In re Southern Rhodesia[dx]⁵⁶ which in this context was cited by Phillips J. (as he then was) in the Mortlock Islands case[dxi]⁵⁷. See also the opinion of the Judicial Committee in Amodu Tijani v. The Secretary, Southern Nigeria[dxii]⁵⁸. The judgment of Blackburn J. in Milirrpum v. Nabalco; Pty. Ltd.[dxiii]⁵⁹ also appears to me to be relevant on this point, and particularly his Honour’s conclusions that the tribes of Australian aborigines claiming customary title to land in that case had to show a proprietary right to the land, but it was sufficient that such rights existed under “a system of law recognized as obligatory upon them by the members of a community, which, in principle, is definable” (p. 267), and that such community can be constituted by the tribes living in a certain area, it not being necessary that there should be a recognized sovereign to enforce that system of law, op. cit., p. 266. Such a proprietary interest in land, Blackburn J. considered, implied. “the right to use or enjoy, the right to exclude others, and the right to alienate”, at p. 272. In the Territory there has been judicial consideration of this problem. In the Jomba Plain case[dxiv]⁶⁰, Phillips J. gave effect to free and unrestricted rights of ownership in certain land in the Madang District, which he found certain tribes were entitled to, on the apparent ground that the land had “long been the subject of undisturbed native occupation and user” op. cit. p. 521. Such conditions might be said to imply rights and duties in relation to the land recognized as obligatory by the people in the area. Also in Tolain and Others v. The Administration; In re Vulcan Land[dxv]⁶¹, Minogue J. (as he then was) had to consider the meaning of “owner” in the Land Ordinance 1922-1937, s. 11 in relation to land, and concluded that it “must mean the person or group of persons or the community, which, according to the area and custom concerned, has the right to use the land and exclude others therefrom”. This was the definition of ownership adopted by the trial judge in this case. It will be noted that the definition is framed in terms of rights. Further, no problem arises in the Territory in recognizing a communal title to land, having regard to the express reference to the rights of any tribe of aboriginal natives being included in the interests saved under the Laws Repeal and Adopting Ordinance 1921, s. 9. These considerations would seem to raise the question whether the state of native society in the area was sufficiently settled for it to be found that claims to land were recognized by the respective tribes in such a manner as could be “reconciled with the institutions or the legal ideas of civilized society”. In re Southern Rhodesia[dxvi]⁶², at p. 233. Also relevant would seem to be the view of Blackstone that “by the universal law” occupancy was the source of original title so that property both in land and moveables was originally acquired by the first taker, which would seem to make effective occupation the test. Blackstone’s Commentaries, Vol. 2, pp. 8-9. According to the evidence of Mr. Jackson this was the effect of the native custom in the area.

As these matters were not fully argued before this Court, I express no opinion upon them. On this part of the case however I agree with the judgment prepared by Clarkson J., which I have read, that once the trial judge found it was not possible to make findings as to ownership to each individual piece of land that was an answer to the appellants’ claim for the appellants had failed to show that they were entitled to an interest in the land the subject of the resumption.

It is thus unnecessary for me to refer to the other issues argued by counsel for the respondent. For the reasons I have given, in my opinion, the appeal should be dismissed, the cross-appeal allowed, and accordingly, the judgment for the plaintiffs should be set aside and judgment entered for the defendant.

CLARKSON J: The history of these proceedings and a summary of the issues involved on the appeal and cross-appeal are contained in the reasons of Frost S.P.J.

Logically the first major issue which arises in this dispute is the validity of the original acquisition of the subject land by the New Guinea Company which is claimed by the respondent to be its original predecessor in title and it becomes necessary to identify the law by which that validity is to be tested.

The acquisition of the land occurred between 1900 and 1910 when New Guinea was a German colony. The colony was surrendered to Commonwealth troops on 7th September, 1914, and administered by a British Military Administrator during a British military occupation which continued until 9th May, 1921, when civil administration under the New Guinea Act 1920 commenced (see New Guinea Laws, Vol. 1, pp. 33-35).

As to the situation during the occupation, Phillips J. in the Mortlocks case[dxvii]⁶³ says that the terms of the capitulation provided that the existing laws were to remain in force in New Guinea so far as this was consistent with the military situation. The particular term as recorded by Rowley was that “the lives and private property of peaceful residents will be protected, and the laws and customs of the colony will remain in force as far as is consistent with the military situation”[dxviii]⁶⁴.

This was in accordance with rules of international law relating to the military occupation of enemy territory prior to any annexation to the effect that the occupying force should respect, unless absolutely prevented, the laws in force in the occupied country. (Oppenheim’s International Law (6th ed.), Vol. II, pars. 169 et seq.)

It may be arguable that the terms of capitulation without any subsequent legislative action to give them effect could not of themselves affect the then existing law although any such defect may have been cured by the Validating Proclamation of the Military Administrator of 26th August, 1919[dxix]⁶⁵, which was in turn validated by s. 6 of the Indemnity Act 1920 (10 & 11 Geo. V Cap. 48)[dxx]⁶⁶. But in any event substantially the same result would appear to be achieved either by reason of the combined effect of the three texts referred to or by reason of the accepted view relating to the application of English law to overseas possessions that “in conquered or ceded countries that have already laws of their own the King may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain unless such as are against the law of God, as in the case of an infidel country”[dxxi]⁶⁷.

The commencing date of civil administration under the New Guinea Act 1920 was also the commencing date for the Laws Repeal and Adopting Ordinance 1921 which provided for the cessation of German law in the Territory and the adoption of other laws of England, the Commonwealth, Queensland and Papua in its place. The cessation of the application of German law did not affect the validity of any title already acquired, nor did it affect the proof of any past act or thing (s. 4 (2)). All titles, registers, instruments and “generally all acts of authority” under any German law in force at the commencement of the Ordinance continued to be valid and admissible in evidence to the same extent as under German law (s. 5). The Ordinance did not affect any title to land alienated from the Crown at the commencement of the Ordinance and all questions affecting such a title were to be decided by German law as in force at the time of such commencement (s. 8). See also ss. 7 and 9.

A perusal of the ordinances which came into operation at the same time as the Laws Repeal and Adopting Ordinance reveals nothing to affect the operation in this case of the general provisions summarized above and the sections referred to have not been affected by subsequent amendments to that Ordinance.

I shall refer later to a submission that these provisions insofar as they relate to entries in the German Ground Book or land register are affected by later provisions in the Land Registration Ordinance 1924 and the New Guinea Land Titles Restoration Ordinance 1951. I anticipate my later comments to the extent of saying that in my view the provisions, a summary of which I have set out, have operated unchanged from May 1921 to the present day.

The next inquiry, proceeding further into the past, is whether the German law, the operation of which in 1921 was preserved to the limited extent indicated, was the law under which the acquisition occurred. This involves a consideration of the German law relating to acquisitions by the New Guinea Company as in force between 1900 and 1910 and whether any relevant amendment was subsequently made either by the German authorities before or by the British Military Administrator after 7th September, 1914.

I defer the first consideration. As to the second it is clear from the summary of the relevant law as expounded by Phillips J. in the Mortlocks case[dxxii]⁶⁸ that up to the time of the military occupation in 1914 no radical change to the law relating to acquisitions by the Company occurred after 1904.

I should add that any reference as a matter of convenience to “German law” merely indicates the source of that law which at the relevant time was the law of New Guinea and therefore cognizable in this Court without formal proof.

All the proclamations and enactments of the British Military Administrator—including those repealed prior to 9th May, 1921 — are not now available to us for perusal but there is nothing in those available nor in any of the historical accounts or former judgments to suggest that the law in force in the period 1900-1910 relating to the acquisition of ownerless land by the New Guinea Company or the protection of interests so acquired was not still in force in 1921, and these proceedings have continued throughout on this assumption. There was a Land Ordinance 1919 of the Military Administrator repealed in July 1921 which invalidated any transfer sale or lease of land or any agreement therefor made without the consent of the Minister for Defence and which does not assist here[dxxiii]⁶⁹.

It follows from what I have said that by reason of the operation of the Laws Repeal and Adopting Ordinance 1921 the validity of the acquisition of the subject land by the New Guinea Company must be determined by reference to the relevant municipal law of New Guinea as it existed at the time of the acquisition and I turn now to a consideration of that law.

The taking of the land by the New Guinea Company was on 5th April, 1900. At that time, the New Guinea Company had ceased to administer the colony over which from 1st April, 1899, the German Empire had assumed full sovereignty.

However, the Company retained special rights of acquiring land. By an agreement of 7th October, 1898, with the German Empire the Company acquired the right to acquire “in accordance with the legal provisions in force” 50,000 hectares of land by occupation of ownerless land or by purchase from natives[dxxiv]⁷⁰. The Company purported to acquire the subject land pursuant to this agreement.

The legal provisions then in force go back to 1887. The Imperial Ordinance of 20th July, 1887, provided that the acquisition and charging of land in New Guinea was to be regulated by Prussian law. This provision was expressed to be not applicable “to the purchase of lands with no established ownership and not to the properties of the natives” (s. 4). Section 5 in the translation available to us reads:—

N2>“5. The principles based on the Imperial letter of denization of 17th May, which grants the New Guinea Company the exclusive right to obtain property by contract with the natives—or the occupation of land without owner, will be established by the New Guinea Company with permission of the Reichs-Chancellor.

The registration of thus obtained properties of the New Guinea Company in the official title register will be performed once a certificate confirming the purchase (acquisition) issued by the Commissioner or an official authorized by the Commissioner will be produced.”

The matters contemplated by that section were dealt with by two documents. The first, Regulations dated 30th July, 1887, related to the introduction of an Official Title Register or Land Register (the Ground Book). As shown above, s. 5 of the Ordinance of 20th July, 1887, required the issue of a certificate before registration could be obtained of land acquired by the New Guinea Company. Regulation 38 of the Regulations of 30th July, 1887, provided:—

N2>“38. The certificate required for entry of property of the New Guinea Company must—according to paragraph 5, part 2 of the Imperial Order of 20 July, 1887 — state: That the New Guinea Company on grounds of the Imperial letter of denization granting the company the sole right of land purchases, and in compliance with the instructions given hereto, has become owner of the property in question.”

The second document was a set of directions of 10th August, 1887, issued by the New Guinea Company and which related to the acquisition of land by the Company and which stated:

“Directions concerning the procedures related to the acquisition of real estate of the New Guinea Company.

As regards the acquisition of ownerless land and the purchase of real estate (plots, land) from natives—which are the exclusive rights of the New Guinea Company by virtue of the Imperial Letter of Denization of 17th May, 1885—the following regulations, which are based on the Imperial order of 20th July, 1887, and which have been approved by the Reichs-Chancellor, will be enacted.

A careful examination must precede the actual acquisition, i.e., whether the land which is to be taken into possession is land used by the natives for food production or for some other purpose, or whether it is known to belong to an individual or a community, and whether—because of this—it is claimed by particular persons as property.

N2>2. Where such situations become apparent upon examination, investigations must be instituted—which persons have a claim to the properties in question and of what kind these claims are. This is to be done by questioning natives, who settle nearby, particularly questioning the heads of the family, the head man of the communities or similar institutions, wherever they may be available. In the process of questioning and the following discussions an interpreter should be engaged if at all possible. Furthermore a record must be established of these proceedings from which the course of the investigations and particularly the questions and answers relating to claims will become apparent. Plots which are thus claimed must be temporarily excluded from acquisition, and advice must be sought whether negotiations should be made with the alleged claimants or not. If negotiations should be made, the regulations of par. 5 (f) are to be applied.

N2>3. If there is no indication that the land is property of natives, or if it is impossible to get information on the meaning of existing markings—because there are no natives in the vicinity or because it is not possible to gain information from them—observations made and the attempts to gain information must be registered in detail—and acquisition may proceed.

N2>4. The taking of possession (acquisition) takes place in the following manner: border posts, stones, fences or other markings will be installed to show that and to what extent the plot has been appropriated by the New Guinea Company. This act must be registered and the following information must be shown therein:

(a) the position of the acquired plots with an indication of possible natural borders, the natural condition or possibly cultivation of the plot and its natural size.

(b) Number, type and kind of the markings used to indicate the take-over of the property (land, plot, real estate).”

An Imperial Ordinance of 21st November, 1902, which came into force on 1st April, 1903, dealt further with land and land rights in the German colonies.

Existing regulations relating to the acquisition of rights to ownerless land and Crown land were continued in force (par. 5). The acquisition of real property belonging to natives could be prohibited by the Governor or made subject to such conditions as he with the approval of the Chancellor, might impose. Paragraph 21 provides:

N2>“21. If a person is entered in the land register as owner, it will be presumed that he is the owner.”

Finally, reference should be made to the Expropriation Ordinance of 14th February, 1903, which permitted expropriation of land in the interests of the public. Section 32 permitted, where necessary, the expropriation of property which had passed from native ownership to non-native ownership for the purpose of reinstating the natives in the property to ensure the possibility of an economic existence and particularly the right to a home.

The process of acquisition as I have said commenced on 5th April, 1900. The Governor’s certificate was given 15th May, 1903, and entry in Ground Book, or Land Register, was made on 25th August, 1910.

The law which applied during that time is summarized above. In attempting to apply that law to the facts as shown, three substantial cautions must be observed.

Firstly, the indications are that all relevant enactments are not before us. For instance, the Governor’s certificate, an important document, refers in its opening paragraph to enactments which presumably support the issuing of the certificate. Paragraph 38 of the Decree of 30th July, 1887, and par. 2 of the Decree of 20th July, 1887, are identifiable. The third is “Par. 2 of the Decree of the Reich Chancellor of 1st April, 1899”. This is the date on which the Company surrendered to the German Empire the sovereign powers it had been exercising. The agreement for this surrender was dated 7th October, 1898. An Imperial Ordinance of 27th March, 1899, provided for the assumption of sovereign powers by the Empire and for the cancellation of the Company’s Charters as at 1st April. Clearly, the Governor thought the Decree of 1st April, 1899, relevant to the exercise of this power but we do not appear to have it.

Again, the Governor in his letter of l5th May, 1903, to the Foreign Office refers to the right granted by article 7 of the agreement of 7th October, 1898, which has already been referred to and to “Decree N75 of 8th February, 1900”, which is not before us. It was relevant to the present inquiry as appears from the reference to its contents by the Governor in his letter of 15th May, to the District Officer, but again we do not have it.

Secondly, the disputed questions of construction which have arisen, for instance, regarding the directions of 10th August, 1887, as to the acquisition by the Company of “ownerless” land must be approached with considerable caution, if only because of the standard of the translations available to us of the relevant enactments. The translated texts I have earlier referred to have been used in this Court on a number of occasions since they were first produced in 1962 or 1963 in ToLililu & Another v. Director of Native Affairs[dxxv]⁷¹. They appear to me to have been made by someone without legal training and without a satisfactory knowledge of English. Whilst they are valuable as showing the general content of the originals, I approach somewhat sceptically the claim of the appellants that by reference to these translations it can be demonstrated that the officers of the German Administration did not know their own law.

One particular illustration of the difficulties is the use of the words “no man’s land” in the translation of par. 2 of the Governor’s certificate and “uninhabited (that is ownerless)” in the account of Froehilch, a surveyor, both of which appear to be descriptions of what in the directions of 10th August, 1887, is called “ownerless land”. Further doubt is raised by the reference in the translation of the Expropriation Ordinance of 14th February, 1903 (par. 1) to “... the right of taking possession of ownerless land (Crown land — word used in German text)”. There is nothing to show whether or not the same German word was used in the directions nor whether in law Crown land was different from ownerless land. One can only say that since the directions and the Expropriation Ordinance were obviously referring to the same sort of land, it would not be unlikely if the same word to describe it were used in both original documents.

In Mortlock Island[dxxvi]⁷² Phillips J. (as he then was) lists some of the legal works used by him in that case. These works also disappeared during the 1939-1945 war and they — and especially the English translations of them — are apparently thought to be irreplaceable[dxxvii]⁷³. Certainly, they are not available to us. There is little doubt that the English versions of the relevant laws as available to Phillips J. were of a much higher quality than those we now have. Earlier I have set out the translations used before us of s. 5 of the Ordinance of 20th July, 1887, and of reg. 38 of the regulations of 30th July, 1887. With these should be compared the following extract from Jomba Plains[dxxviii]⁷⁴ at p. 533:

“In the Land Ordinance of 20th July, 1887, s. 5, it was provided that the registration of any property acquired by the New Guinea Company was to be made by virtue of a certificate regarding the acquisition by the Administrator or Resident Commissioner, or by his nominee. In reg. 38 of the regulations of the 30th July, 1887, made under the Ordinance of the 20th July, 1887, the form of that certificate was prescribed as follows: ‘that the New Guinea Company, by virtue of the exclusive right to acquire land granted to it by Imperial Charter, and in accordance with the directions issued, has become the owner of the subject property’.”

Thirdly, it is beyond doubt that many relevant documents, including government files and reports relating directly to the subject land, are no longer available. One has only to read the reasons of Phillips J. in Jomba Plains[dxxix]⁷⁵ and Malala[dxxx]⁷⁶ to appreciate the wealth of material which would have been available in a case like the present but for the wartime destruction of records. Reports from and correspondence between the Governor, the Company, Government and Company officials and surveyors should be studied in order to give a complete picture. In German times “it was obligatory, when a property was registered in the Ground Book, to open a land acquisition file and a registration file regarding the property” (Phillips J. Jomba Plains[dxxxi]⁷⁷, at p. 535). In the present case where the procedure from original taking to registration occupied ten years and called for reports and decisions of Government and Company officers and surveyors, it is reasonable to assume that the few documents and extracts before us are but a fraction of what was formerly available.

It will be seen for instance that Stuckhardt’s report of 26th June, 1903, made the approval of the Colonial Section of the Foreign Office in Berlin a condition precedent to registration of the subject land.

“In June 1904, the Colonial Department of the Foreign Office in Berlin advised the Governor that it had, subject to the conditions set down in a memorandum forwarded, approved the registration of certain properties (including Malala) acquired by the New Guinea Company ... notwithstanding that the provisions of the new Ground Book Ordinance had not been strictly complied with: the conditions in the memorandum, however, included provisions for the demarcation of the boundaries of those properties and the manner of such demarcation.” Did this Foreign Office memorandum apply to the subject land?

If not, was it omitted because the Company was at that time having no difficulty in meeting the requirements of the Ground Book legislation and the conditions imposed by Governor Hahl’s certificate of 15th May, 1903? If it were included, did the waiver by the Foreign Office of strict compliance with the Ground Book requirements operate to defeat any objection the natives might otherwise have had by reason of non-compliance?

Counsel for both parties made helpful submissions on the proper construction of the directions of 10th August, 1887, and on the facts relevant to the inquiry whether those directions had been complied with. The directions, insofar as they relate to the acquisition by the Company of ownerless land, are set out earlier in this judgment.

The learned trial judge stated the crucial question as being whether the subject land was on 5th April, 1900, ownerless “which” he proceeds “in this context particularly in view of the wording of reg. 1, I take to mean land which is not claimed by particular persons as being their property (whether or not it is in fact ‘owned’ by them)”. He goes on to adopt what was said by Ollerenshaw A.C.J. in ToLililu & Another v. Director of Native Affairs[dxxxiii]⁷⁹, at p. 24: “It seems (to me) that if, after the prescribed inquiries, land appeared to be unclaimed, then it might be appropriated ... (the emphasis is mine)”, and further that whilst a temporary non-user would not necessarily make land ownerless a long and unexplained non-user may well be a factor for consideration.

“I have looked to see if there were in the German legislation any definition of ownerless land and I have found none. It seems that if, after the prescribed inquiries, land appeared to be unclaimed then it might be appropriated, and, if the responsible official were satisfied he could approve of the appropriation in a proper case.

It appears from the evidence that predecessors of the Tolais, on behalf of whom this appeal is brought, did at some time before the arrival of the Germans use some of the subject land and so I have also looked to see if there was anything in the legislation making a period of time, during which there had been an absence of occupation or user, a statutory element in the question of ‘ownerless’ as there is in some colonial land legislation, e.g., s. 24a of our Lands Registration Ordinance, s. 11 of our Land Ordinance, 1922, amended, the proclamations made thereunder, and the Nigerian Public Lands Acquisition Ordinance No. 9 of 1917.

I have not found any such provision in the German legislation, but, doubtless, time would have been a factor in the approval of an appropriation. In the light of such legislation as there was, a temporary non-user, on the one hand, could not have rendered land ownerless in all circumstances and, on the other, long and unexplained non-user may well have been a factor in the consideration of native claims.”

“The Rules themselves are not set forth in the judgment of his Honour Judge Phillips and were not available at the hearing of this appeal. They, too, or rather a copy of them, have been made available by the Public Solicitor and from them it appears to me that the significant question, as relevant to this appeal, in determining whether land was ownerless was whether it was unclaimed.”

“I find and hold that the land was ‘ownerless’, that is free from any native rights of occupation or use when the Germans first took possession of German New Guinea and that it remained so at all material times during the German regime.”

It is difficult to reconcile these statements, but in spite of the reference at p. 23 set out above, I am not convinced that Ollerenshaw J. would have agreed that a bare claim or assertion of ownership took land from the category of ownerless land.

Having in mind what I have earlier said about the quality of the translations, I approach with some diffidence the task of construing the directions.

I look first at par. 1 and suggest that whatever “claimed” means it means something more than a mere claim or assertion. The object of the examination called for is to determine “whether the land ... is land used by the natives ... or whether it is known to belong to an individual or a community” and then follow limiting words “and whether—because of this—it is claimed by particular persons as property” (the emphasis is mine). This indicates that user or reputed ownership is necessary to support a claim. Paragraph 2 provides that where “such situations become apparent” investigations must be instituted “—which persons have a claim ... and of what kind these claims are”. Then, the paragraph goes on, plots which are “thus claimed” must be “temporarily excluded from acquisition” and the officer is enjoined to seek instructions whether the Company wishes him to endeavour to purchase those plots.

Paragraph 3 deals with the opposite situation, namely where there is “no indication” that the land is property of natives and also with an intermediate situation where there are “existing markings” (presumably some evidence of possible use or occupation) the exact significance of which cannot be ascertained for the reasons then stated. It is important to note that in this intermediate situation the land is not temporarily excluded but “acquisition may proceed”, the officer recording the results of his observations and inquiries.

These three paragraphs deal with what may be called the preliminary investigations.

I have suggested that “claimed” in par. 1 involves something more than a bare claim, and I see nothing in par. 2 or par. 3 which requires a contrary view.

But whatever the proper meaning is, there are two propositions which clearly arise and which I think are of considerable importance. Firstly, it appears that if the Company’s officials, investigating the proposed acquisition of a given area as ownerless land found within that area plots claimed by natives, this did not prevent all acquisition. On the contrary, the clear indication is that while temporarily excluding these plots, acquisition could continue as to so much of the area as fitted the description in par. 3 of land as to which there was no indication that it was the property of natives.

The second, and perhaps more important proposition is that notwithstanding some evidence of apparent native use, if there were no satisfactory explanation of that user immediately available the acquisition procedure could lawfully continue, the officer recording the results of his observations and inquiries.

Counsel for the appellants submitted that the effect of par. 3 was that the only circumstance in which the acquisition of ownerless land could occur was where there was no indication that the land was the property of natives. He went on to argue that the District Commissioner who examined the subject land in 1903 and recommended the making of a reservation for native plantations against the Company because he saw a fence in the distance exhibited a basic misapprehension of the law because, it was argued, it is not possible to carve a reservation out of ownerless land.

In a narrow sense this may be true but, as I have indicated, where plots of land used by natives occurred in a larger area which was otherwise ownerless, those plots might be carved out as reserves, leaving only the ownerless land to be acquired as such.

In my view, the mere fact, if it be the fact, that there was some native user of some of the subject land in April 1900 would not have been sufficient to defeat the Company’s claim to the whole of the subject land. What effect that conclusion should have in the present case will be considered at a later stage.

It should be added that the remaining paragraph of the directions relating to ownerless land is par. 4 which relates to the identification of the area by the placing of physical marks and the recording of particulars. The reference in it to the recording of information as to “the natural condition or possibly cultivation of the plot” is the clearest indication that the possible existence of cultivated areas is contemplated in or adjoining the general area intended to be acquired as ownerless.

It should be remembered that these directions of 10th August, 1887, were instructions of the Company to its officers. They were prepared pursuant to s. 5 of the Ordinance of 20th July, 1887, and — as the heading to the translation before us shows — were approved by the Reichs-Chancellor.

Prior to the alleged taking in April 1900 the Company had, in April 1899, handed over administration of the colony to the German Empire, but apparently the directions continued to apply and, as I have already mentioned, were continued in force by s. 5 of the Ordinance of 21st November, 1902.

In the present case, it seems to have been assumed that a failure to observe strict compliance with the directions would invalidate an acquisition. Certainly the appellants took that view but I do not think such an assumption is correct.

The official records relating to acquisitions as they are described in such cases as Jomba Plains[dxxxiv]⁸⁰ and Malala[dxxxv]⁸¹ show that it was quite usual for the Company having applied for registration to continue to meet or to negotiate regarding requisitions made by Government officials from time to time. For the Company, as a commercial undertaking seeking security of tenure, the object to be achieved was registration in the Ground Book which gave the best title then available. The really important requirements were those relating to registration. The directions set out in effect the steps to be taken to found an application for registration. Once the application had been made it was then necessary to meet any requisitions of the Ground Book officials and these requisitions might, and on occasions did, relate to matters referred to in the 1887 directions. For instance, in Wangaramut[dxxxvi]⁸² a purchase by the Company from natives, the original registration of the whole area was subject to an encumbrance in favour of all natives living on the land giving them free usufruct and the right of dwelling until otherwise determined by the Court. Subsequently, over a period of three or four years, three reserves were created and excised totalling over 40 per cent of the land originally purchased and the Company was left with a clear registration as owner of the balance of the land.

The appellants’ counsel made the point that whether there had been compliance with the directions was not answered by seeing whether the German officials were of the opinion that there had been. No doubt this is true, but at the same time I allow myself the comment that those colonial officials administering what was essentially their own law in their own language and with a full knowledge of the facts were better placed to assess the legal situation than those of us who seventy years later are asked to take the relevant German law, the text of part only of which we have, and that in an unsatisfactory translation, and to apply it to a set of facts only a fraction of which are now known.

This brings me to the provisions referred to earlier regarding registration of land acquired by the Company from natives. In his letter of 15th May, 1903, to the Colonial Office, Governor Hahl explains that while the Ordinance of 20th July, 1887, empowers the making of regulations to impose restrictions on registration in order to protect natives, no such regulation had been made because, as I understand it, the same protection could be given by annexing conditions to the certificate issued by the Governor under s. 5 of the Ordinance which certificate, being authoritative evidence of the acquisition, was essential for the Company to obtain registration. For this reason, the Governor’s certificate of 15th May, 1903, certified that the Company “has become the owner of the ... land described ... under the following conditions ...”. Then follow six conditions. Again I interpolate a comment on translation. This certificate appears to be the same certificate as applied to the Malala lands. Phillips J. states the effect of the certificate as follows:—

“On the 15th May, 1903, the Governor certified that certain specified properties (one of them Malala) which had been acquired by the Company in purported exercise of its rights under the Agreement of the 7th October, 1898, might be registered subject to certain conditions ...” (Malala[dxxxvii]⁸³).

The certificate has been accepted as applying to a number of pieces of land, including the subject land, some of which were purchased. Unfortunately the list attached to the certificate is not available to us but it is obvious that the certificate proceeds on the basis that whatever the land applied for, the final boundaries were to be determined by survey and in accordance with the conditions, the first four of which could immediately affect any boundaries shown on the Company’s application, while the fifth reserves a right to expropriate further portions of the land.

“Dwelling places and plantations existing at the time of surveying owned by the natives remain their property entirely....”

For the purpose of registration then — and that is what the Company sought—the extent of excisions to protect natives was to be determined at the time of survey, not only at the time of the original taking pursuant to the directions and it follows that the areas to be excised may not have been in use by natives at the time of the original taking and may or may not have been excluded or merely noted as doubtful by the Company officials at that time.

It was not argued before us that the only point of time at which land was to be determined as ownerless or not was at the time of survey and I do not consider that suggestion further. I treat the provisions of the directions and those of the certificate as cumulative.

What can be said is that the course adopted by Governor Hahl — apparently approved by at least one official in the Foreign Office in Berlin as appears from the note on the Governor’s letter of 15th May, 1903 — proceeds on the assumption that user by natives of portion of the land applied for and registered does not avoid the whole application but that native user is to be protected by encumbrance or the excision of reserves.

I do not think it necessary to refer at this stage to the other ordinances and regulations I have mentioned. I merely note that while the certificate of 15th May, 1903, authorized the registration of the Company as owner of the disputed land subject to entries being made on the register to protect the conditions, no entry was in fact made until 25th August, 1910, and then no condition was noted. The procedure which should have been followed was the actual inspection and marking out under the 1887 directions with the recording or registration of the information obtained. This would be followed by the application for registration in the Ground Book, the Governor’s certificate authorizing registration but containing the conditions or encumbrances to be recorded and, after survey and government inspection, registration.

I have already indicated I do not think that any failure by the Company’s officials to follow precisely the 1887 directions necessarily avoided the Company’s application; on the contrary, except perhaps where there was no real attempt to comply, I think the indications are that the German Administration took the opposite view. With our incomplete knowledge of the relevant law and facts and with no strong indication to the contrary, I think we should be slow to conclude that the German view represented an incorrect view of the law as it then was.

However, the trial judge has expressly held that “as the provisions of the applicable law were not complied with the purported acquisition was not effective”. I think it clear from the context that the non-compliance referred to was the attempt to acquire land which was not “ownerless”. I have already referred to the relevant provisions so far as they are known and I now examine the assertion that they were not complied with.

Primarily we are concerned with events occurring between 1900 and 1910. The appellants’ version of the factual situation and of events which occurred in this period is supported largely by oral evidence; four witnesses gave direct evidence of events which occurred when they were children and much evidence was given of statements made by persons now dead as to traditional use of the subject land. The trial judge accepted the evidence of the four witnesses I have referred to as substantially accurate. Naturally enough, these witnesses could not specify even the year in which the events they related had occurred.

The respondent’s evidence contained an amount of documentary material. As I have mentioned the whole of the records retained in New Guinea including the official files are not available, but some relevant documents or extracts from them were gathered from various sources. Some of them, being records of or references to acts done in the course of their duty by officials of the German Administration and of the Company in respect to the subject land are of considerable importance.

These documents appear to have been admitted by consent and they were treated both at the trial and before us as evidence of the truth of their contents.

On a review of the oral and documentary evidence the trial judge found the subject land not to be ownerless in 1900 because, firstly, there was evidence of some gardens, although no evidence of any settlement, and secondly, because although there was no direct evidence of a claim to ownership by native custom being asserted in 1900 there was a body of evidence from which it might properly be inferred that this was so.

I should say at once that I think the trial judge reached this position by overlooking the peculiar value which in disputes such as the present attaches to official reports made at the same time as the events under consideration occurred.

Traditional accounts of customary ownership and use of land are admissible with some qualification in this jurisdiction and without qualification in the Land Titles Commission where most disputes involving customary rights in land are heard[dxxxviii]⁸⁴. It would be quite wrong for social groups with no written history or written records to be bound to the same methods of proof as are permitted to those who use writing[dxxxix]⁸⁵. Where traditional histories conflict, the courts test each against known facts[dxl]⁸⁶. But where traditional history conflicts with contemporary official records, the latter must receive special weight[dxli]⁸⁷. The contemporary record reflects the facts as then seen by the recorder; no subsequent event can change what has been written; the only point at which the accuracy of the record can be challenged is at the time of recording.

Traditional history, on the other hand, is in addition liable to corruption as a result of the self-interest, pride, misunderstanding or mere forgetfulness of any narrator or listener.

If special weight were not given to contemporary records, there is the danger that they would with the passage of time and the disappearance of collateral supporting evidence be discarded in favour of traditional history as propounded by the last listener with the result that claims based on traditional history which would have failed when all the facts were known would succeed when knowledge of most of the facts had been lost.

The difficulties sometimes associated with traditional history can be demonstrated in this case. The witness Roberts, then an officer of the Administration, was at Lae from 1935 to 1938. His unchallenged evidence was that during this time, while in constant communication with the plaintiffs and their people he received no complaint that the subject land was native land. He was again stationed in Lae from 1946 to 1949. Again, his unchallenged evidence was that there were no complaints against occupation of the subject land by the Administration but there were complaints about the occupation of native land on the other side of the Bumbu River.

Evidence from both parties showed that in the 1950s complaints were made by the plaintiffs, specifically to a United Nations Visiting Mission in 1956, that the payment received by the plaintiffs for the subject land was not enough. In 1966 the complaint was made that the plaintiffs were wrongly deprived of the subject land.

The question arises as to what weight can be given to a traditional history which appears to assert in 1956 that the land had been sold for an inadequate consideration and in 1966 that it had not been sold at all.

It should also be noted that there were a number of areas of which more than one landholding group claimed exclusive ownership. Also, the Labu Group by abandoning its claim after the hearing had commenced impliedly admitted that its traditional history as it concerned the subject land was wrong.

For the present, I put aside the finding that there were some gardens on the subject land in 1900. I am now concerned with the inference from the oral evidence of native witnesses that native ownership of the subject land has in effect been claimed continuously since some time in the last century.

To reach this conclusion it was necessary, as the trial judge recognized, to reject a report made in 1903 by an official of the German Administration. I have already referred to Governor Hahl’s certificate of 15th May, 1903, dealing with the subject land. One reason for imposing the conditions in it was to safeguard the rights of the natives. The official charged with implementing the conditions was the District Commissioner at Fredrick Wilhelmshaven, Stuckhardt, who thereby became the officer of the Administration directly responsible for safeguarding native rights.

Following the Governor’s certificate of 15th May, 1903, Stuckhardt on 26th June, 1903, filed a report on his investigations into the land claims of the Company. The only part of the report before us is a portion dealing with the subject land which he had inspected on 19th January, 1903. This read as follows:—

N2>19.1.1903. All natives living in the vicinity agreed that no settlements were located in the area and that no claims as to ownership existed. From the Burgberg a fence was seen in the distance, this is reason for the reservation regarding plantations. The taking into possession is otherwise approved.

Comments: as above. (This refers to the comment under No. 9 which reads: Can be registered when approval of the Colonial Section (of the Foreign Office in Berlin) has been received.) “

This strikes me as most cogent evidence. It is an official report made as a result of an on-the-spot examination by an apparently disinterested Administration officer charged with protecting the rights of any native in the area and to that extent at least his position was adverse to the Company’s. It can reasonably be assumed that the officer is now dead but this report remained as far as we know available and unchallenged on the official records until their destruction over thirty-five years later.

“The document closest in point of time to 1900 is Stuckhardt’s report of 1903 which while it expressly states that the natives in the area agreed that there were no settlements there and that no claims to ownership existed also refers to a fence seen in the distance from the Burgberg which would indicate some occupation or use of some part of the land and would also appear to indicate that the condition of the land had been observed from a vantage point rather than from any detailed exploration on foot.”

“I am conscious of the fact that such a finding is in conflict with the statement attributed to Stuckhardt in 1903 that all the natives living in the vicinity agreed that no claims to ownership existed at that date, and any finding which is contrary to a fact asserted in a document, accepted as authentic, and brought into existence at a point of time so close to the relevant time cannot be made lightly. However, after weighing this piece of evidence against all the other evidence to which I have referred, I feel compelled to reach the conclusion which I have. It may well have been that the investigations made by Stuckhardt were not sufficiently extensive and that because of difficulties of interpretation or for some other reason the correct picture was not obtained.”

With the greatest respect to the trial judge the matters he mentions do not persuade me that the report should not be taken substantially at its face value.

The sighting of a fence is consistent with the trial judge’s finding that there were at about this time some gardens in the area, although whether they were there in 1900 is not known. It seemed likely to the trial judge that the District Commissioner Stuckhardt was the Judge Stuckhardt referred to as the Ground Book Official in the Jomba Plains[dxlii]⁸⁸ judgment. He is even more clearly identified as that person by the reference in Malala[dxliii]⁸⁹, at p. 610 to the report of 25th June, 1903, by Judge Stuckhardt which dealt with a number of the Company’s claims including Malala and the subject land. These references show he had been in the Colonial Service in German New Guinea for certainly more than twelve years when he made this inspection in 1903 and interpretation problems, while always possible, are unlikely. Finally, however thorough the physical inspection of the land may have been, this does not affect the record that all natives living “in the vicinity” agreed that no settlements were located in the area “and that no claims to ownership existed”.

Two further points can be made. Firstly, the statement of the natives, confirmed by the officer’s inspection, that there was no settlement on the subject land accords with the trial judge’s findings. Secondly, when one considers the locations where the appellants’ predecessors admittedly lived, it is at the least probable that they were the very people to whom the officer spoke.

There was other documentary evidence, especially two reports by Company officials, adverse to the appellants’ claim to which evidence the trial judge appears to have given little, if any, weight. There was also a map of the general area which it was agreed was prepared in about 1906. The authorship was unknown but from intrinsic evidence it is thought to have been prepared by a missionary. Its importance lies in the fact that whilst it shows a number of native villages outside the subject land it shows none on it.

The first of the two reports to which I refer is that of the surveyor Froehlich, an officer of the Company who was on and near the subject land from 15th September to 21st December, 1907. One paragraph of his report reads:—

“It was peculiar that the whole area between the Bumbu and Markham Rivers was uninhabited (that is ownerless). This can be regarded as unusual for Kaiser Wilhelmsland. Even if there are no villages directly on the coast, settlements are to be found scattered about the hinterland. The latter is mainly the case if the coastal belt is not very suitable for gardens, which, however, does not apply in this case. On further inquiries I learned that the area had been inhabited in earlier years. It could be thirty years since the inhabitants emigrated, after they had put a strong spell on the place. Until recently none of the natives living in the vicinity dared to enter the area, unless Europeans gave them reason to do so....”

The other report by a company official is that of 8th March, 1911, by one Heine:—

“We report that the finalization of the Ground Book affairs, the properties of the N.G. Coy in Huongolf concerning, will probably take some time. Even in connexion with the Property on Markham River, which already has been entered in Ground Book, belated difficulties have arisen. District Officer Berghausen when visiting that part of country established the fact that natives from Labu are living on the property and that also 2 settlements are situated at the north west corner on the coast with people from Logamu living on. As to the plantations Mr. Berghausen told us that he instructed the natives to remove them to some other area, but regarding the two settlements he is of opinion that they have been in existence already at the time of survey or at the time of examination by the previous District Officer, respectively. He informed us that we now will have to consent to a reservate of 30 to 40 hectares being given to those villages. I objected to this conception most decidedly, as I am of opinion that these settlements have only been established lately. I remember that on one occasion of examination of said property, when also Dr. Scholz was present, that newly erected huts were found on the place in question. At that time it was pointed out to the natives that the huts were standing on the property of the company and that they would have to move on at any time if requested. This they were quite conscious of. Therefore the Government cannot force us under any circumstances to surrender an area for reservate. But the question is if it is advisable to expel the natives. It is more than likely that missionaries, hostile to us, would on account of this incite the natives against us. It would be perhaps for this reason advisable to let the natives have voluntarily a small piece of land of say 10 hectares for a village. Of course the Government will have to pay for the survey of such reservate and it should be situated right on the border, so that it would cause no obstacles when we later on are planting our property.”

This is an illuminating passage. It confirms that a native claim or user of part of the land was not treated as avoiding the whole of the Company’s application. Legitimate claims were met by excising reserves. It shows also movements onto the subject land by natives well after 1900 and probably after 1907 when the survey is thought to have occurred, in which event their claim would not be accepted as a legitimate one. The fact that the registration in the Ground Book subsequently remained unaltered would indicate that Heine’s view, that the settlements were only lately established, prevailed.

It is also interesting to note that the Labus, specifically identified as then living on the subject land are the predecessors of those who abandoned their claim in these proceedings. Further, while it is not possible from the evidence to identify precisely the “people of Logamu” whom Heine describes as occupying two settlements on the land, their presence tells against the appellants. If these people were the appellants’ predecessors, apparently they made no claim to the land during the visit of Dr. Scholz’s party and acknowledged the Company’s right to require them to move. If they were not the appellants’ predecessors, the appellants have not explained an open possession adverse to their claims. As appears from the final two paragraphs of Heine’s report, Dr. Scholz was a senior government official.

The contemporary reports of Stuckhardt, Froehlich and Heine indicate that there was no settlement on the subject land in January 1903 nor in the period September to December 1907 and that in March 1911 there were settlements which the Company complained were new—a view which appears to have been officially accepted. There is no direct evidence of the state of affairs in April 1900 because the Company’s original application and supporting documents have been destroyed.

Against these reports, the trial judge preferred to draw, from the present claim that the land was customarily owned by natives, the inference that it was so claimed in 1900. In my respectful opinion in the face of the documentary evidence he was wrong in doing so.

I turn now to the events of 1900 when, according to the Ground Book entry, the Company took possession of the land and its officers would have been obliged to comply with the 1887 directions which required a careful investigation, the recording of observations and a marking out of the land claimed.

With the destruction of the official records no account is available as to what the Company’s officers in fact did, although obviously there was at least an application which led to Stuckhardt’s investigation in 1903 and the subsequent entry in the Ground Book in 1910. That application should have been supported by evidence of the investigation and marking required by par. 4 of the 1887 directions.

The trial judge concluded that there was nothing to indicate whether or not the taking was in accordance with par. 4 of the 1887 directions and that it was not necessary for him to consider the point.

In the circumstances, where events which would ordinarily follow investigation and marking of boundaries are shown to have occurred and where everything which is known to have been done appears to have been done in accordance with the then current requirements and where the records covering the critical period have been destroyed and where there is no indication that an investigation and marking did not occur, then in my view a presumption arises that they did occur (Re Wangaramut[dxliv]⁹⁰).

One further point regarding evidence of activities in 1900 and 1903 should be noted.

In the appellants’ evidence there was no mention of any Company activity in 1900 and the trial judge remarked on the fact that the native witnesses had no recollection of a survey party in the area before 1908. However, he concluded that because the native witnesses also did not mention a party which was certainly in the area in 1903, no inference should be drawn from the absence of any reference to these matters.

I think this view too favourable to the appellants. It assumes against the respondent the very point in issue. If, as the respondent says, the land was unoccupied and unclaimed in 1900, 1903 and in 1907, one would not expect the native witnesses to have seen on the land either the Company officials in 1900 or the District Commissioner in 1903. The fact that they did not is neither neutral nor adverse to the respondent. It supports the respondent’s contention that on these occasions the land was unoccupied and unclaimed.

It could be suggested that because there was some evidence of native occupation before 1900 it is not difficult to infer occupation continuing at that time. But if the occupation was that of the appellants’ predecessors, it is known that it was not continuous. As the trial judge says, the documentary evidence indicates “some settlement in at least part of the area prior to 1900, an expulsion of the Lae people from the area at some stage by the Laewomba and their subsequent return commencing in about 1910”.

The question arises as to when the expulsion took place. The expulsion can be placed after 1903 only by rejecting the official report of Stuckhardt and after 1900 only by assuming that the Company claimed as ownerless, land on which it would be obvious to anyone seeing the area, including Government officers, that there were villages at the mouth of the Markham River and at Mt. Lunaman. There seems to be no good reason why the expulsion could not be said to have occurred before 1900 with spasmodic fighting thereafter until at least 1907 when “fresh wounds” were seen. According to the narrator Neuhauss the fighting continued for “a whole generation”. Furthermore, it does not appear that the trial judge finally found the expulsion to have occurred after 1900. If the appellants’ submission is correct, that the expulsion did not occur until about 1907, then Stuckhardt’s 1903 report was in gross dereliction of his duty, for he must have found settlements, presumably at the mouth of the Markham River and perhaps at Mt. Lunaman. Also the 1906 sketch map would be wrong. But in any event, while the trial judge at first says that the documentary evidence points to the expulsion as having occurred in about 1907 he must be taken not to have found this because his finding, after reviewing all the evidence, is that at the date of purported acquisition—and clearly he is referring to 1900—there was no settlement (as opposed to gardens) on the subject land.

If the appellants are unable to establish either user or reputed ownership at 5th April, 1900, they cannot show the land was not ownerless at that time.

But there is an alternative situation which should be considered and that is if the appellants, while unable to establish reputed ownership at that date were able to establish—as the trial judge found—that parts of the land were then being gardened by them.

This is a situation which the scheme, from the 1887 directions to the requirements relating to registration, was designed to accommodate; the garden areas would have been excised from the land acquired by the Company.

But I do not see how this can now assist the appellants because on my understanding of the position there was no evidence sufficiently precise to enable boundaries to be defined as those of a particular area used in April 1900 as a garden or used at that date as a garden exclusively by a particular claimant group.

As at 1903 a reservation for “plantations” might have been justified on the basis of Stuckhardt’s report but apparently even this was not thought justified in 1910. This is explicable on the basis that further investigation showed that the fence related to native activity which had ceased by April 1900 or which did not commence until after that time and either state of affairs is consistent with the land being ownerless in April 1900.

I come now to consider what assistance registration in the Ground Book gives to the respondent.

The appellants’ counsel argued that the Ground Book entry should not be taken into account when examining whether or not the acquisition by the Company was effective. The significance of the Ground Book entry is determined, it is said, by the Lands Registration Ordinance 1924. But in my view this submission should be rejected. The Lands Registration Ordinance made provision for the court to determine questions of native rights in land being registered under the Ordinance—s. 26 (4) provided that the absence or cancellation of registration of native rights is not evidence that such rights do not exist. In restoration proceedings under div. 1 of Part III of the New Guinea Land Titles Restoration Ordinance 1951 the applicant had the benefit of s. 49 of that Ordinance which made the Ground Book prima facie evidence of title.

I agree with the trial judge that neither of these sections assists us here. We are concerned to know not what the Ground Book can tell us about subsequent proceedings to bring the land under the Torrens system or to restore a destroyed registered title, but what it can tell us about the original acquisition of the land.

In cases such as Jomba[dxlv]⁹¹ where all the records and files were available for scrutiny, any presumption raised by registration could be tested against the details of the events which had occurred. Here however similar records are not available and the absence of them makes it a more difficult task to overthrow whatever presumption arises from registration.

As already stated s. 21 of the Ordinance of 21st November, 1902, provides: “If a person is entered in the Land Register as owner it will be presumed that he is the owner”. We were supplied with extracts from a work by W. Loewy Civil Code of the German Empire as enacted on 18th August, 1896, which came into force on 1st January, 1900.

In the general provisions as to rights to real property appears par. 873 which provides that: “The conveyance of the ownership in a piece of land ... requires, unless the law otherwise provides, the agreement of the party having the right ... and of the other party as to the change of the right and the recording of the transfer upon the Land Register ...”. Paragraph 891 provides:—

“If a right is entered in the Land Register in favour of a party, it is presumed, that he is entitled to the right. If a recorded right is cancelled in the Land Register, it is presumed that the right does not exist.”

We were also referred to E. J. Schuster The Principles of German Civil Law (1907), Chap. II headed “Possession and Registration”. The opening part of par. 320 reads:—

“In the same way as the possession of a movable creates a presumption of its ownership (316), the registration of a right affecting an immovable creates a presumption of the validity of the right and the title of the person in whose favour it is registered; the cancellation of any such right on the register creates a presumption of the release or extinction of such right. B.G.B. 891.”

It seems unnecessary to reproduce par. 316 relating to the presumption that a person in “proprietary possession” of a movable is the owner. I take B.G.B. 891 to be a reference to the par. 891 reproduced above.

It will be seen that according to Schuster, registration created two presumptions, the first that the “right” was valid and the second that the title of the person in whose name the right was registered was valid. In the translations available to us “right” seems to include what we would call an interest in land. The title being allodial, there were of course no estates.

The benefit which the registered owner acquires by registration seems to be something more than that obtained under Australian legislation relating to the registration of deeds which merely gave priority between competing interests and something less than the title acquired under the Torrens system which is indefeasible even where the transfer of the interest to the registered proprietor is shown to have been void.

In spite of our lack of knowledge of the relevant law it seems safe to say at the least that as from 10th August, 1910, there existed rebuttable presumptions that the Company was the owner of the subject land and that the appellants had no interest, customary or otherwise, in it.

In my view, for reasons I have discussed, these presumptions are not displaced by showing that a claim to customary ownership has existed since 1935 or thereabouts and that some unidentified parts of the subject land were used for native gardens for some periods before 1900 and between 1900 and 1910.

I have already explained why I think special value should be given to such of the contemporary documentary evidence as has survived. If this is done and due weight given to the presumption in the respondent’s favour which arose from registration, the appellants face a formidable task in attempting to show that the acquisition was invalid and the destruction of all the other records makes the task even heavier. Naturally enough the appellants were unable to give the precise dates of any of the events referred to and in the absence of such evidence it could only have been by reference to the detailed official records — as was done in Jomba[dxlvi]⁹² and Malala[dxlvii]⁹³—that the propriety of the acquisition proceedings could have been challenged, if at all.

In my view the trial judge was wrong in concluding that the original acquisition of the land was ineffective and the cross appeal to this extent should be allowed.

Strictly, it is unnecessary for me to consider any of the other arguments raised either by the appeal or the cross appeal but there is one further matter which because of its importance I think I should refer to.

The respondent in its cross appeal attacked the trial judge’s findings as to the particular areas claimed by each village group, that is, by each landholding unit. Each of the fourteen plaintiffs represented a named village group and it is important to bear in mind that except in the few cases shown in the particulars the fourteen claims were several and not joint and each claim, subject to the abovementioned exceptions, was to a different piece of land.

It is perhaps not surprising that the boundaries of the areas claimed by each landholding group were not defined precisely. The trial judge remarks that even in the particulars supplied by the appellants “no great degree of precision was attained as to the geographical limits of the respective areas” and the oral evidence of boundaries “although it could be followed in a general way was in many instances not altogether easy to comprehend in detail in the absence of a map of suitable scale on which boundaries could be marked”.

The trial judge made a careful summary of the evidence relating to the claims of each landholding unit. The deficiencies in proof are clearly set out by him and it is unnecessary to list them. By way of illustration, it can be said that in what is called the Butimbum village groups there are six landholding units which claimed a total of forty-five areas. For only twenty-seven of these did the evidence support the claims as shown in the particulars. As to eleven of the areas there was conflicting evidence as to which landholding unit was the customary owner. There was no evidence at all as to three of the areas claimed.

Clearly this situation did not justify any finding that ownership of forty-five identifiable pieces of land had been established.

Of the total area of the subject land about one-fifth, calculated as being of the order of 2,400 acres, was what the trial judge calls garden land. Of this area he says it “is claimed as having been in the customary ownership of one or other (or in a few cases more than one) of” the landholding units other than three which are named. He then goes on to conclude that “there is some doubt as to the ownership of parcels of land aggregating about one-third of this total area of some 2,400 acres”.

After stating that the boundaries may have been somewhat amorphous and that there were some areas of common usage not held by any one group but owned by several groups, his Honour expresses his conclusion in the following paragraph:—

“I do therefore find that the whole of this area was customarily owned by one or other of the plaintiff groups, other than the Wapigurhu and Wapi, and of course excluding the Labus. It is not to be wondered at that at this point of time there should be some overlapping between the areas claimed and I think it would have been a matter of greater comment had the claims been as to precise mutually exclusive areas in each case. It is just not possible to make findings as to the customary ownership of each individual piece of ground, but taking the material as a whole and having due regard to its lack of precision and conflicting evidence as to the ownership of some parts of it, I consider that it is possible to make a finding in general terms as to the acreage of the land in the customary ownership of each of these groups.”

Later, his Honour says: “For the reasons already given I have not considered it possible to make findings as to the ownership of each individual piece of land”. He justifies an award of compensation based on a general apportionment of the land by acreage amongst the landholding units by saying: “The position differs from the case in which it is necessary to determine present ownership of contiguous parcels of land where precision as to boundaries and areas is obviously essential”.

To the evidence already referred to should be added that by Mr. Jackson that in the subject land there definitely was an area of “common land not held by any particular group”.

Whether the trial judge is right in the approach just described is an important question the answer to which may bear directly on other pending and future claims.

It may be inferred from the passage last quoted from the judgment that if the claim had been not for compensation but for the land against, for example, an unregistered interest asserted by the respondent or others the several claims would have failed.

With respect, I think this would have been so. Within the landholding unit there are persons with undivided interests, but as between landholding units, except in respect to a few areas, there was no joint holding of undivided interests. Each unit must show title to its own pieces of land and in my view it is not sufficient to do so by showing only that a number of claimants agree that no-one other than they has any interest in a defined area of land comprised of a number of pieces claimed severally by different units where the pieces cannot be identified with particularity and where the claims of units overlap. Notwithstanding this, the trial judge held that compensation could be awarded to the appellants. With respect I think this conclusion was wrong.

The appellants’ claims to compensation are made under s. 71 of the Land Ordinance or s. 41 of the Land Titles Commission Ordinance. The former requires compensation to be paid for “land acquired or resumed”; the latter provides for compensation in certain circumstances to be paid to a person “deprived of any land”. In each case land includes an interest in land (s. 6 Ordinances Interpretation Ordinance, s. 4 Land Titles Commission Ordinance).

Compensation is not payable unless a claimant can show he has been deprived of an interest in land. He must first show the interest and the defined area of land in which the interest is before there can be any deprivation which entitles him to compensation. This involves an identification of the land concerned with the same precision as that necessary to support a claim for possession of that land. The compensation is merely a substitute for the land in the hands of the person who can first show that he owned the land when it was resumed. Once the trial judge found it not “possible to make findings as to the ownership of each individual piece of land” that was an answer to the appellants’ claims and the fact that at some later date the land had been resumed does not assist the appellants to show they were the previous owners or improve their standing as claimants for compensation.

As I have said, compensation is payable only to a person deprived of an interest in land but not of something less, such as some form of claimed user the nature and area of which are not established.

It will be seen that in my view the matters so far examined disclose objections to the appellants’ claims constituting a complete answer to those claims. In these circumstances I do not propose to deal with the many other arguments addressed to us.

In my view, the appeal should be dismissed and the cross appeal allowed with the result that the judgment in favour of the plaintiffs should be set aside and judgment entered for the defendant.

PRENTICE J: Many complex and interesting arguments were addressed to the Court in this matter in April. Such have been the travel commitments and workload of the members of the Court it is only now in the last days of July that I have been able to attempt to recover the force and meaning of the argument. I have been greatly assisted by the provision by Counsel at the hearing, of typed summaries of submissions on certain aspects. For myself, I would commend the helpfulness of this device, in the absence of court reporting of lengthy submissions.

In these days when we hope we have a better appreciation of native customary ownership of land than was attainable in the eighties and nineties of last century; and when acquisition of land except on just terms has become foreign to our temper; one might wish for complete freedom to reopen and arbitrate land transactions of the past ... But such an approach would no doubt cause grave inconvenience and disturbance to government and society, even if it brought riches to some individuals or clans.

However, as the law stands, one finds oneself confronted here with an inquiry not as to whether the deeds of the relevant past were just and equitable by modern approaches, but whether the law in its then state was properly applied, and if so, what were the consequences under that law of the facts of those days, so far as they can now be ascertained. Such I understand to be the duty of this Court under the Laws Repeal and Adopting Ordinance 1921-1939, in particular ss. 4, 5, 8, 9 and 10 thereof.

As I view the case, unless it can be shown that (a) the land claimed was not “ownerless” in 1900 or (b) that the procedures followed by the New Guinea Company and the German Government in its acquisition were otherwise irregular and not such as could divest the true owners (if any) of their rights; no claim could succeed even at the hands of successors of persons now shown indisputably to have been former owners. No material appears to exist to support, nor do I understand it to have been argued, that irregularities of procedure, other than a mistake as to the fact of “ownerlessness”, occurred such as would invalidate in German law the acquisition of the subject land. I proceed therefore to consider the question of whether the land was “ownerless” within the meaning of the German law.

At the outset, with respect to his Honour the trial judge, I consider that such of the evidence of Mr. Jackson as was directed towards expressing an opinion as to ownership of the disputed land in 1900, should not have been received, as being founded on facts not within his own knowledge but upon facts alleged by others (only some of whom were called as witnesses) and as being expressions of opinion on the very first fact in issue (Taylor, 12th ed., p. 903, par. 1419; p. 904, par. 1421; Phipson 7th ed., p. 380). However, I have approached the evidence for the appellants on the basis that Mr. Jackson’s evidence remains to be considered. I find difficulty in coming comfortably to the conclusion that the Butibum and Kamkumun indisputably owned the land for which their successors now claim compensation; when I consider the setting of the times as evidenced, including the factor that the Laewombas drove both the Labus and the Butibum and Kamkumun tribes away from the very land claimed. To my mind the whole of the evidence establishes that severe fighting took place across this land. The contemporary documents variously estimate the fighting as having gone on as at about 1907 for thirty years or a whole generation. Casualties of 130, 72, 25, 20, 30, 82 are spoken of. These figures may be different estimates of the same incidents. But, as variously reported, they appear to indicate fighting of unusual ferocity. Only one Laewomba gave evidence; he mentioned only one instance of the taking of women as a consequence of fighting—that being from the Ahi or Hengali group “from the other side of the Markham Bridge (sic)”. That being so, it seems at least possible that the dispute was over land ownership or use and that the Missions and New Guinea Company interposed at a time when both sides had agreed to a “no man’s land” situation. The Laewomba witness claims at least that his tribe owned part of the land claimed — that around the wharf. The fact that, after a cessation of hostilities, presumably affected by the interposition of Europeans geographically between the contestants, the appellants made some incursions by way of gardening on some of the land claimed, is of less significance when one considers that the Labus, who have now admitted their lack of ownership, made movements of a similar kind on to part of this land.

Like Ollerenshaw A.C.J. in ToLililu’s case[dxlviii]⁹⁴, I consider that in the case of the very old men here witnessing, “the uncertain testimony of slippery memory is made even more uncertain by the pressures of the economic ambitions of his people”. I find myself the less disposed to rely on the oral testimony when I range it alongside the contradictory claims which appear to have been made to visiting U.N. Missions—one of which asserted a sale where clearly there had been none, and the complaints made in the forties which appear to have been directed not to the subject land on the right bank of the Bumbu but to that on the left bank which had been occupied by the Administration during and following the 1942-45 hostilities.

I find myself persuaded that the documentary evidence admitted without objection, establishes the land as “ownerless” as that word seems to be used in the German law; that it was unoccupied and unclaimed in 1900. With respect, I consider the learned trial judge clearly wrong in accepting the verbal evidence so as to establish contrary to the documentary evidence, that the land claimed was not “ownerless” and that it was occupied by and therefore customarily owned by the appellants, in 1900. Even if it were accepted that the evidence established occupation and user at that date of some portions, or even of the portions numbered on the plan drawn up by the witness McCreanor, I consider this could have done no more than render potential in 1900-1910 the excision of reservations — the acquisition would remain in German law, as I understand it from the translations available, valid.

I consider the appellants have not established that the claimed land was “not ownerless”, and have not displaced the presumption of regularity of the registration of the land in the ownership of the New Guinea Company.

I agree generally in the reasons and conclusions of my brother Clarkson as to a finding of validity of the acquisition. I share his opinion that in any event, general findings of the kind the trial judge made, not being as to designated ground, would not support the order for compensation made by him in respect of former ownership of unidentifiable acreages.

Appeal dismissed. Cross-appeal allowed. Judgment for the plaintiffs set aside and judgment entered for the defendant.

Solicitor for the respondent and cross-appellant: P. J. Clay, Crown Solicitor.

[i]The Criminal Code (Queensland adopted) provides as follows:—

Section 7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:—

N2>(a) Every person who actually does the act or makes the omission which constitutes the offence;

N2>(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

N2>(c) Every person who aids another person in committing the offence;

N2>(d) Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.

[dxviii]C. D. Rowley, The Australians in German New Guinea 1914-1921, p. 3, quoting the “Report by the Minister of State for Defence on the Military Occupation of the German New Guinea Possessions”, 10th October, 1921, pp. 5-6.

[dxxiii]Lands Ordinance 1919 of 24th December, 1919, No. 12, Vol. 6. See also Rowley, op. cit., p. 98.

[dxxxviii]Native Customs (Recognition) Ordinance & Land Titles Commission Ordinance.

[dxli]ToLililu & Anor v. Director of Native Affairs [1965-66] P. & N.G.L.R. 12, at p. 22; Re Era Taora (unreported) Judgment No. 548 of 21st November, 1969, at p. 34.

Tumatu Group	10 per cent	240 acres
Agatu Group	25 per cent	600 acres
Gwatu Group	5 per cent	120 acres
Apo Group	25 per cent	600 acres
Busuram Group	10 per cent	240 acres
Luhu Group	5 per cent	120 acres
Tia Group	5 per cent	120 acres
Kamkumun Uapu Group	5 per cent	120 acres
Hiwapa Group	5 per cent	120 acres
Kamkumunlu Group	5 per cent	120 acres

Tumatu Group	240 acres	$ 48
Agatu Group	600 acres	$ 120
Gwatu Group	120 acres	$ 24
Apo Group	600 acres	$ 120
Busuram Group	240 acres	$ 48
Wapigurhu Group	7,200 acres	$ 1,440
Luhu Group	120 acres	$ 24
Tia Group	120 acres	$ 24
Kamkumun Uapa Group	120 acres	$ 24
Hiwapa Group	120 acres	$ 24
Wapi Group	800 acres	$ 160
Mambu No. 1 Group	800 acres	$ 160
Mambu No. 2 Group	800 acres	$ 160
Kamkumunlu Group	120 acres	$ 24

Supreme Court of Papua New Guinea

Nomgui v Administration of the Territory of Papua and New Guinea (re Lae Administration Land) [1974] PGSC 26; [1974] PNGLR 349 (4 September 1972)

Papua New Guinea Law Reports - 1974