Administration of Territory of Papua and New Guinea v Guba

Administration of Territory of Papua and New Guinea v Guba - [1973] HCA 59 - HCA 1973 case summary — Zoe

[30]

It is perfectly clear from the nature of the proceedings and the fact that neither group of claimants at the date of its application was in possession of the land that it rested upon each applicant to establish the title to the land which he claims as at the date of his application to the Land Titles Commission. This involved each of them in establishing both against the other and against the Administration that their forefathers were the proprietors of the land in 1884, whatever the nature of that proprietorship under their native customs might be. No intervening act of acquisition of the subject land by either applicant or the people he represents is suggested. Thus, proprietorship of the land was an issue which arose primarily between the two claimants: it was an issue to which the Chief Commissioner paid attention and which he purported to resolve. He had before him oral evidence of Papuans who had no personal knowledge of the situation in 1886. Precisely how he chose between the two accounts given to him does not appear. There was, to my mind, no "traditional evidence" given on behalf of Daera Guba but such "traditional evidence" as was given on behalf of Lohia Doriga supported the sale of the land to the Administration in 1886. The question of proprietorship of the land must be decided upon evidence in the sense of material produced before or made available to the Land Titles Commission which, though not being limited by the rules of evidence and being entitled to act upon "information" as distinct from evidence technically admissible before it, could range quite widely in the consideration of facts which were relevant to the question. Both the Supreme Court and, seemingly, this Court are similarly placed, each appellate court also being able to receive information additional to that which was before or available to the Commission: s. 38A (2) (aa) of the Ordinance. In fact the Supreme Court at first instance and on appeal and this Court have done so. But, however wide the area of investigation, the title must be the subject of proof.

[39]

One matter to be noticed is the assertion of the Tubumaga people that they gardened on the subject land in 1884 and before. This does not seem to be borne out by Mr Cuthbertson's survey to which I shall later refer and which does not show any gardens on the subject land though he does show gardens elsewhere. Further, although if the official records are to be accepted the Papuans were unwilling to sell land on which they had gardens, they were not unwilling to part with the subject land, as well as other lands, e.g. the Badili lands to which later reference will be made. Also, the land was said in the official records to be unsuitable for agriculture though possibly usable as low class grazing land. The portion most in dispute in the case, an area referred to in the case as "the inner rectangle", marked WXYZ in the prefaced plan [1] , was said to contain "stony ridges". True it is that at a later time gardens were made in some undefined and unidentified part of the subject land, but conditions both as to the numbers of the population and as to the availability of other areas had by that time probably changed considerably. Although it may be possible that the subject land at some stage and in some seasons in the past may have been used for the making of gardens, whether it was so used by the Motuans exclusively or by the Motuans with the permission of the Koitapu people as the Giakone claim, or by each of them, the Motuans and Koitapuans, as of mutually conceded right, is not capable of resolution at this remote point of time. The relationship between the Motuans and Koitapuans in relation to the land is quite unclear, the Motuans claiming that the only Giakone who gardened on the land were people who had entered the Motu clan by marriage. The Giakone, on the other hand, say that in the course of time they permitted the Motuans to garden on their land, the land remaining in the proprietorship of the Giakone clan. In any case, the fact of the use of land for gardens ought not readily to be accepted as itself evidence and certainly not conclusive evidence of proprietorship of an interest in the land either of the precise area gardened or some area surrounding the gardens. But, of course, such use of land would be confirmatory of a claim, otherwise evidenced, to proprietorship of land in the proximate area of the gardens.

[55]

The Protectorate was proclaimed on 6th November 1884 at Port Moresby, by Commodore Erskine aboard the H.M.S. "Nelson". In fact, a Deputy Commissioner under the Western Pacific Island Order in Council, Mr Hugh Romilly, had purported to declare the Protectorate some little time earlier. The area of land described in the proclamation by Commodore Erskine was extended by him in a second proclamation. As amended, the area of the Protectorate extended from the boundary at 141°E of the area claimed by the Netherlands to East Cape along the southern shores of New Guinea, including all adjacent islands, the islands in the Goschen Straits, the D'Entrecasteaux group and islands adjacent. The declaration of the Protectorate was effected in the presence of a considerable assembly of Papuans. It had the approval of the missionaries under Rev. W. G. Lawes and the acceptance of the chiefs and leaders of the Papuans who were present. Commodore Erskine, in a despatch of 14th November, said that the "Proceedings" (i.e. the declaration of the Protectorate) "have given pleasure to the natives, who place themselves with confidence under Her Majesty's protection". In his proclamation Erskine, in conformity with the policy I have outlined, proclaimed and declared "that no acquisition of land whensoever or howsoever acquired within the limits of the Protectorate hereby established will be recognized by Her Majesty". On leaving the area, Commodore Erskine left Deputy Commissioner Romilly to administer the Protectorate until the Special Commissioner should arrive. A commission was issued to Major-General Peter Henry Scratchley R.E., C.M.G. on 20th November 1884 to be Her Majesty's Special Commissioner for the Protected Territory of New Guinea. In order to give him judicial authority over British subjects he was appointed a Deputy Commissioner for the area of the Protectorate under the Western Pacific Orders in Council. General Scratchley was not long in the area. He arrived on 28th August 1885 and, having become ill, he left on 29th November 1885. He died at sea while on his way from Cooktown to Townsville on 2nd December 1885. However, before he left the Protectorate he was officially informed of the British Government's intention to annex the area comprised in the Protectorate. As well, in that time, according to the report written by G. S. Fort, his official secretary, certain land was acquired by the Special Commissioner acting under his commission and instructions. The commission authorized and directed him "to take all such measures, and to do all such matters and things in the said Protectorate as in the interest of Our Service you may think expedient " In my opinion, the acquisition of land for government purposes and for settlement was included in such matters.

[56]

Mr. Anthony Musgrave Junior was an Assistant Deputy Commissioner during this time. His reports are the source of much information, though challenges have been made on this occasion to their accuracy. As I have indicated, having considered the various criticisms, I am prepared to accept the reports as substantially accurate. From his reports and a report of Rev. W. G. Lawes, the London Missionary Society missionary, we learn that, though the particular clans had headmen or leaders, there were really no chiefs amongst the Port Moresby Papuans who exercised authority over the tribes or clans or who exacted service from them. But it would seem that amongst the headmen, sometimes referred to as chiefs in the official documents, one was by common consent of the Papuans regarded as the principal or senior. Thus Erskine found Boi Vagi to be the most influential chief in the Port Moresby district and to him he presented a stick mounted with a florin as "an emblem of his authority". Amusingly enough, Erskine found that Boi Vagi "was in the habit of flying a Union Jack" which had been given to him on the occasion of the attempted annexation of the area by the Colony of Queensland in 1883. Erskine apparently felt this inappropriate and, as he says, by the use of "a little diplomacy" obtained it from him, replacing it with a blue flag "on which a "Bird of Paradise" was represented in all its gorgeous plumage, on a white ground". Though Boi Vagi was described as "a mild-mannered man" - no doubt a comparative description in relation to his fellow Papuans - it was said that "there was no better person to whom" Erskine "could have given" a " "badge of office" ". Boi Vagi died on 1st April 1885. On 7th April Aoudou - at times spelt Ao-oo-doo - "was promoted to the position" - i.e. of chief - "owing chiefly to a number of the native villagers having signified their desire that he should be so chosen". He too, at forty years of age, was said to be of "a mild and docile disposition".

[87]

A great deal of time and effort has been employed by the officers of the Administration and the tribunals of Papua-New Guinea both in connexion with the present claim and in connexion with earlier claims, in an endeavour to find precise correspondence between areas mentioned in reports and despatches and the survey made of the Port Moresby area by Cuthbertson. I have already indicated the complete improbability that the land acquired corresponded precisely with the rectangular plan of East Granville, or with the actual area included in the four external survey pegs of that rectangle. It is probable to the point of certainty in my mind that the area acquired exceeded the boundaries of that rectangle, e.g. area 5 on the prefaced plan if in truth it ever formed portion of Era Taora. But, as the additional areas beyond the content of that rectangle were likely to be small and insignificant for the purposes of the Crown and as undoubtedly these were not indicated by any fixed points of survey or identification, it sufficed the purpose of the officers of the Crown to speak of the content of the rectangle as the area of land acquired. It will be noticed in this connexion from the material in the case that the boundaries of the Badili lands walked with the vending Papuans enclosed a larger area than that ultimately surveyed. But it is a proper inference, as I have said, that the whole of Era Taora, as now described by Daera Guba, was purchased in 1886. That means that the small areas marked 1 and 7 on the prefaced plan [1] as well as the area marked 5 were acquired, though as now claimed they are outside the boundaries of the rectangle constituting Granville East. It may well be that on this footing the small area no. 1 on the prefaced plan, which is now no longer in dispute, might have been claimed by the Administration and that an area between the boundaries of the rectangle and that small area (area no. 7) need not have been purchased as in fact it was. But so to say is not to criticize the caution exercised by officers of the Administration in times of uncertainty.

[127]

In my opinion, therefore, it is abundantly clear that a Board appointed pursuant to s. 9 of the Ordinance was not limited to dealing with waste lands which had been dealt with or fell to be considered under s. 8. Power was given to the Board to decide ownership in the case of all disputes on that question. "All" in this context means "any" dispute where a Papuan was a claimant. The significant point of s. 9 is that the power is to appoint a Board which is to decide. The obligation to act judicially comes from the power to decide the rights of individuals. The Board was, in my opinion, quite clearly a tribunal which, having power to decide such rights, was a body to which the prerogative writs would have gone. It was bound to observe the rules of natural justice, even though it might act according to equity and good conscience and not be bound by rules of legal procedure. Though freed of technical rules the Board was bound by legal principles in the decision of such a question as the ownership of land. It was not given power to award land to a person who in its opinion did not own it. Its task, if it was to decide ownership, was to ascertain the existing facts and apply the existing law to those facts in order to decide who did own the land. That, to my mind, is clearly work of a judicial nature and a decision as to the ownership must of necessity, subject to appeal, be final as between the parties before the Court or who, being duly notified, could have been before it. I am unable to perceive what relevance questions of judicial power in the constitutional sense have in this connexion. What is central to the Board's power is the power to decide. It may well be that in a system where a separation of powers existed that function could be classed as an exercise of judicial power. But it is quite immaterial in the present connexion to consider such a question or decided cases which deal with it. In my opinion, the purpose of appointing a Board under s. 9 was clearly to resolve a dispute and lay to rest the question of ownership of land to which a Papuan laid claim. It is to be observed that the consequence of the Board's decision was an entry on a register with the intention of giving absolute finality to the matter. See Land Ordinance s. 6. In my opinion, the decision of the Board was binding on the parties to it, their privies and upon those notified of the hearing with opportunity to make their claims, and to that extent upon the Land Titles Commission in considering a claim to the same land by one of those parties or a privy of one of those parties or by a person have had the opportunity of claiming or of being heard.

[140]

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. The expression "native land" means "land which is owned or possessed by a native or native community by virtue of rights of a proprietary or possessory kind which belongs to that native or native community and arise from and are regulated by native custom" (s. 6 (1) of the Ordinances Interpretation Ordinance 1949 (Papua and New Guinea) (as amended)). After the period limited for appeal or review has expired, and after completion of any proceedings on review or after the decision of any appeal, a copy of any decision made by the Commission must be forwarded to the Registrar of Titles "who shall make such entries in Registers kept by him and issue such documents as are necessary, or as are directed by the Commission, to give effect to the decision of the Commission" (s. 15 (2) (formerly s. 15 (6)) of the Land Titles Commission Ordinance). It should for completeness be added that if a decision of the Commission conflicts with a title previously registered under the real property legislation of the Territory of Papua or the Territory of New Guinea the registered title shall, to the extent of the conflict, prevail (s. 16), but in the present case none of the land in question is so registered. The application of 7th February 1966 was made by Daera Guba of Tubumaga Idibana clan, Poreporena village, who applied on behalf of the descendants of Guba Daera, deceased, for an order that the area described in the attached survey plan be registered in the names of the descendants of Guba Daera, deceased. The land shown on the attached plan [1] , which has an area of about 42.64 acres, is irregularly shaped and its boundaries do not coincide with those of any surveyed parcel. According to the application, it is known as Era Taora. On 9th February 1966 a second application in respect of "land known as Era Taora" was made by Lohia Doriga of Geakone clan, Hohodae village, who applied on behalf of the descendants of Iramo Hada, deceased, for an order that "the area described in the attached survey plan" be registered in the names of the descendants of Iramo Hada, deceased. It appears that in fact there was no survey plan attached to this application. Both applications state that the land is also claimed by the Administration of the Territory of Papua and New Guinea. 1. Ante p. 367.

[141]

To explain the position of the rival claimants it is necessary to mention that in 1884, when a British Protectorate was declared over part of what later became British New Guinea and later still the Territory of Papua, the villages in the neighbourhood of Port Moresby were inhabited principally by two tribes, the Motu and the Koitapu (sometimes spelt Koitapo). It appears that the Koitapuans were the original inhabitants of the district, but that of course does not necessarily mean that they were the original owners, or the owners in 1884, of any particular area of land there. The language and customs of the Motuans were originally different from those of the Koitapuans, but the villages of one tribe were often built very close to those of the other and association and intermarriage took place between members of the two tribes. Poreporena was a Motuan village and Hohodae was Koitapuan; together they formed part of a larger collection of villages known as Hanuabada. Within each village there were smaller units called iduhu. An iduhu was a clan or group of people who were, speaking generally, relatives as well as neighbours. The members of an iduhu were (to state the matter broadly and rather imprecisely) the descendants of a common ancestor and the wives of the male descendants (and sometimes, but more rarely, the husbands of female descendants) of that ancestor who lived in one or more of the lines of the houses of which the village was comprised. The houses were built on piles over the sea, and usually an iduhu consisted of two parallel lines of houses (with an anchorage for canoes between them) and in that case the iduhu had two branches, that occupying the houses on the left-hand side being known as Laurina and that on the right, Idibana. The Tubumaga is an iduhu of Poreporena village and the Geakone (more usually in the evidence spelt Giakone) is an iduhu of Hohodae. Daera Guba described himself of Tubumaga Idibana, but he said at the hearing before the Commission that he was representing both branches of the Tubumaga clan.

[152]

By s. 38 (2A) "evidence", for the purposes of s. 38 (2) (aa), is given a wide meaning; it means (omitting a few words immaterial to the present case): all information, facts, matters and things including hearsay evidence, expressions of opinion and the results of any inquiries or investigations made by the Commission under Subsection (1) of Section 15 in relation to the decision appealed against that were properly before or present to the mind of the Commission and which the Commission ought properly to have taken into account in arriving at the decision appealed against, together with all inferences proper to be drawn therefrom. The provisions of s. 38 (2) (aa) and s. 38 (2A) were inserted by the Land Titles Commission (Jurisdiction and Appeals) Ordinance 1968 which came into operation on 20th March 1969 after the decision of the Commission was given, but were expressly rendered applicable to pending appeals by s. 13 (2) of the Ordinance of 1968. The Native Customs (Recognition) Ordinance 1963, after providing, in s. 5 (1), that "questions of the existence and nature of native custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as though they were matters of fact", went on to give a court (which is defined to include any court or person acting judicially - s. 3) powers similar to, although more specific than, those conferred by s. 29 of the Land Titles Commission Ordinance, to act on any relevant matter whether or not it is technically admissible (s. 5 (2) and (3) (a)). Section 5 (3) (b) enables a court for the purpose of deciding a question as to the existence or nature of native custom to call evidence of its own motion. Section 5 (4) provides: Notwithstanding the provisions of subsection (1) of this section, where an appeal is made from a decision of a court, the court which hears the appeal may, if it thinks fit, consider de novo a question referred to in that subsection and which arises in the appeal. Finally, mention may be made of s. 7 (1) of the Land Ordinance 1962 (as amended), which provides: All land in the Territory other than native land is the property of the Administration, subject to any estates, rights, titles or interests from time to time in force under any law in force in the Territory or a part of the Territory.

[153]

In this Court the Administration did not challenge the finding made by Clarkson J. as to area no. 1 on plan "J" and did not claim that land as its property. In respect of areas nos. 2, 3 and 4, it was submitted that the Tubumaga clan was estopped by a decision given on 21st October 1954 by a Board appointed under s. 9 of the Land Ordinance 1911-1953 (Papua) from asserting against the Administration that the land was not the property of the Administration. Estoppels apart, the Administration submitted that on the merits it was entitled to all the land excepting area no. 1; it claimed that areas nos. 2, 3, 4 and 6 were acquired by the Crown in 1886 and that area no. 5 (and also areas nos. 2, 3, 4 and 6 if not already acquired) became vested in the Crown by virtue of an Order in Council made on 19th August 1901 in reliance on the provisions of s. XI of the Land Ordinance of 1899 (British New Guinea). On behalf of Daera Guba all these contentions were assailed and it was submitted that the decision that the land was and remained the property of the Tubumaga clan ought not to be disturbed. On behalf of Lohia Doriga also, the contentions of the Administration were disputed, and in addition the competence of the Administration to be a party to the original proceedings or before this Court was challenged. Moreover, Lohia Doriga asserted that the Commission's finding that the land was Tubumaga land was either erroneous on the material before it or resulted from a failure to make proper inquiries and that the matter should be remitted to the Commission for a further hearing. Of course the admission made by Lohia Doriga in evidence that the land had been sold by the Koitapuans might have seemed fatal to his claim, but before the Supreme Court he sought leave to read an affidavit in which he said that when he had given evidence that Era Taora had been sold he had intended to refer to land known to him as Era Taora which was situated to the north of the subject land, and that the subject land was known to him and to the Koitapuan people as Vanama. Clarkson J. treated his application as one for a new trial and refused it. It appears from the judgment of the learned Chief Justice of the Supreme Court that the Full Court gave counsel for Lohia Doriga an opportunity to submit further material or explanation in support of this application but that counsel did not avail himself of this opportunity. The Full Court also rejected the application for a new trial.

[155]

In 1884 the British Government, under pressure from the Australian colonies, authorized the declaration of a Protectorate over the south coast of New Guinea. On 6th November 1884 Commodore Erskine landed at Port Moresby and proclaimed the Protectorate. In the course of his proclamation he said: "And I hereby proclaim and declare that no acquisition of land whensoever or howsoever acquired within the limits of the Protectorate hereby established will be recognized by Her Majesty." A few days later, on 14th November 1884, he made a further proclamation whereby he directed that the regulations set out in it were to be complied with pending the arrival of the High Commissioner. The relevant regulation read: "No settlement or acquisition of land is on any account to be permitted." The first Special Commissioner to be appointed for the Protected Territory was Sir Peter Scratchley who received a commission dated 20th November 1884 but who died on 2nd December 1885 after only a few months in New Guinea. The provisions of his commission and of the instructions issued to him by the British Government are in my opinion irrelevant since he took no action to acquire any of the subject land. However, some purchases, as they were called, of land at Port Moresby were made during his administration by officers of the Protectorate. In these transactions small plots of land were obtained from the Motuan and Koitapuan people, who claimed to be the owners, in exchange for articles of barter such as tomahawks, tobacco and cloth. I shall refer to similar transactions which occurred during the Protectorate as purchases, although it will be necessary later to consider their legal effect. In 1885 there were a few Europeans living in Port Moresby, including the Rev. W. G. Lawes, a missionary who had been in the district since 1874. Mr Lawes had himself purchased land from the native people for his mission station and in 1885 he assisted Mr Musgrave, then Assistant Deputy Commissioner, to communicate with the natives for the purpose of acquiring the land.

[159]

On 9th January 1886 Instructions were issued to Mr Douglas by the Colonial Office of the British Government. Those Instructions contained the following paragraph: Sir P. Scratchley's Despatches showed that he did not fully understand that unless the territory included in the Protectorate becomes British soil by the declaration of Her Majesty's sovereignty over it, the Queen does not possess, and therefore could not delegate to him, a general power to make laws which will bind persons other than Her own subjects. As regards the latter She may, as you probably are aware, by Order in Council under the Foreign Jurisdiction Acts, establish courts, and make such other regulations as She thinks necessary for their control. The Instructions went on to say that Her Majesty had exercised this power by the Western Pacific Orders in Council which extended to New Guinea and that the Government had caused a commission to be issued to Mr Douglas appointing him Deputy Commissioner for the Western Pacific and that he would thus possess civil and criminal jurisdiction over British subjects but not over foreigners except in such civil matters as they might wish to bring before him. The Instructions continued: In addition to this judicial authority your commission as Special Commissioner empowers you in all respects to represent the Queen's authority, and to do all such things as in the interests of Her service you may think expedient. You are therefore at liberty to make such regulations as you think necessary, compliance with which may be made a condition of residence in the Protectorate, if you are able to enforce them. The Instructions concluded by saying that it had been decided that the Protectorate should in due course be added to the Queen's dominions and that this accession of dominion, when effected, must be regarded as having been acquired by settlement, and not by conquest or cession, and that when the proclamation of sovereignty came to be made there would be delegated to Mr Douglas and to two or more other persons the power to make all necessary laws within the Territory.

[163]

Mr Cuthbertson added that he forwarded with his report "plans of the two townships and a general plan of the whole survey completed". There are in evidence three different plans originally made by Cuthbertson. First, there are a number of copies of a rough eye-sketch dated 20th July 1886 and signed by Cuthbertson, which shows the position of the two township sites later called Granville East and Granville West. It may be surmised that these sketches were made by Cuthbertson at an early stage of his work. The site of Granville East is shown as a rectangle with no internal subdivision and bordered on all four sides by roads. The second plan signed by Cuthbertson which is in evidence is dated 23rd August 1886. This plan in its present form shows Granville East divided into sections I to VIII and section XI, which is immediately to the south of section II. (The position of these sections is shown on plan "J") [1] . To the south of section XI is shown a half-section which is unnumbered. All of the sections are subdivided into allotments but there is evidence that many of the markings on this plan were added subsequently although this was contrary to good surveying practice. The witness who tendered this plan before the Commission (the assistant chief drafting officer of the Lands Department) said that in his opinion the boundaries of sections I to VIII were surveyed by Cuthbertson and that the initial subdivisions of sections III and IV were done at that time. He said that "in addition, a boundary of what is now shown as section XI, the line was turned but never actually run". The third plan signed by Cuthbertson in evidence is dated 9th September 1886. It shows Granville East, not as a complete rectangle, but as it is shown on plan "J", i.e. showing sections I to VIII, half of section XI and another half-section south of section XI (although none of these numbers appears on Cuthbertson's plan), all subdivided into allotments. Thus the inner rectangle marked WXRS on plan "J" is, so far as Cuthbertson's plan shows, not surveyed and there is no line completing the eastern side of the rectangle, i.e. between points W and X. It appears clear that this plan also has had additions made to it since Cuthbertson's time. Cuthbertson's field book shows that he surveyed sections I to VIII, of which sections III and IV were surveyed into allotments. This field book and Cuthbertson's report suggest that the allotments shown in sections I, II, V, VI, VII and VIII, and probably also the two half-sections within the rectangle SRYZ, have been added to his plans since he drew them, and that it is probable that the whole of the large inner rectangle WXYZ was not shown as subdivided on the original plan. Of course, the letters R, S, W, X, Y and Z were not on Cuthbertson's plan - they were first adopted for convenience in the proceedings before the Board. Two of Cuthbertson's plans show an irregularly shaped area of twelve acres, to the west of sections III and IV, and on the western side of Lawes Street. This surveyed area bears a broad arrow; which indicates that it was the property of the Crown. On the plan of 9th September 1886 the words "Granville East" commence on this block, and extend over section IV into the rectangle WXYZ as they do in plan "J" [1] .

[224]

In 1941 barracks were built for the Royal Australian Air Force on sections IV and XI, and at this time complaints were made on behalf of the Tubumaga iduhu that the Government had taken their lands and had not paid for them. After the war, in 1949, there were further claims by the Tubumaga to lands forming part of Granville East. Eventually the then Chief Commissioner, Mr Ivan Champion, held an inquiry and on 5th March 1954 furnished a report, into claims made by a number of natives to various lands at Granville East. One of the areas claimed, called Era Taora, included a considerable part of the land the subject of the present applications although it was not identical with the subject land. No claims were made before Mr Champion to any of these lands by the Giakone - indeed, a Koitapuan witness, Leke Boio, gave evidence as follows: "The rest of the land where Newtown is" (he apparently meant the land not the subject of the sale by the Koitapuans on 5th October 1900) "and the other buildings belonged to the Motu. We gave them the land. We don't know if it was bought by the Government." Mr Champion reached the conclusion that ninety-five acres at Granville East was purchased by the Crown in 1886 but that the area purchased was not all contained in the rectangle formed by Spring Garden Road, Lawes Street, Pullen Street and Castlereagh Street. He held that sections I to VIII, which, as I have said, with roadways amounted in area to 58.8 acres, were included in the purchase. The balance of the land purchased comprised the area of twelve acres which is shown on Cuthbertson's plans to the west of sections III and IV but on the western side of Lawes Street, a further area of four acres adjoining it to the north and west and twenty-two acres of flat land west of Lawes Street to the base of Goldie Law - a total of thirty-eight acres. This thirty-eight acres west of Lawes Street together with the 58.8 acres made a total of 96.8 acres which he considered was roughly equivalent to the ninety-five acres referred to by Musgrave. Mr Champion therefore held that the Crown was entitled to sections I to VIII but not to the lands within the rectangle WXYZ. He held that the lands claimed within that rectangle were native lands, including an area called Era Taora which he held was owned by the Tubumaga Idibana iduhu, of which Daera Guba was the representative head.

[234]

Two witnesses Kora and Kubua recognised, without hesitation, on the ground a mango tree at the north end of the east boundary and an area at its southern end which they said was the south-east corner and the east boundary line joined these points. They stated that the land had originally belonged to the Koitapu people who gave it to the Motu people. The Motu people sold it to "Bob Hunter" for the Government and had received payment (in kind) for it. Possibly the witness Kora is identical with Kora Nek, who gave evidence before the Commission that his father had told him that the whole of Era Taora had been sold - it may be from his other evidence that he meant sold by the Giakone - to Bob Hunter acting on behalf of the Government. Early in its report the Board stated (without explanation) that Leke Boio (area no. 6 on plan "J" [1] ) and another area which is not part of the subject land "are no longer of concern to this Board", and further said that counsel who appeared for the native claimants "announced that all areas which had been claimed by the various native claimants whom he represented and which lay outside a rectangle on the plan lettered W, X, Y, Z were now abandoned by his clients". When addressing the Board, counsel for the native claimants apparently made a further concession; he "made it clear that he could not support their claim to land comprised in the half-sections immediately to the east of sections IV and V". In other words, it appears that counsel for the native claimants abandoned their claim to area no. 4 on plan "J" and did not press their claim to area no. 3. The Board's answers to the questions put to it were as follows: "(1) Yes. (2) The disputing parties are the Government and certain native claimants who are referred to in the opening parts of this report. (3) Yes. (4) The Government." These answers, on their face, would appear to have been applicable to all the land described in the Schedule, including that which the Board said was no longer of concern to it, and that which the claimants had abandoned. 1. Ante p. 367. 2. Ante p. 367.

[236]

It is now possible to return to consider whether any and what land was acquired in 1886 by the officers of the Protectorate on behalf of the Crown. I have no hesitation in accepting that the officers concerned believed that ninety-five acres at Granville East had been purchased from the original owners. In my opinion, Musgrave's report of 9th November 1886 should be accepted as an honest attempt to state what had occurred. Counsel for Daera Guba subjected that report to considerable criticism. They seemed to regard it as sinister that the purchases had been made by Hunter rather than by Musgrave himself, and that Ah-oo-doo, a man of "mild and docile disposition", appointed by the Protectorate rather than by his fellow villagers, should have assisted him. Naturally enough, reliance was placed on the absence of any memorandum recording the details of the purchases at Granville East, when it appears that a memorandum had been executed in respect of the Badili lands. Further, it was said that Musgrave favoured compulsory acquisition if necessary, and that since in November when he wrote his report he must either have known of the contents of the cable sent by the Colonial Office on 18th October, or, if that had not yet arrived at Port Moresby, at least must have apprehended that the Colonial Office would forbid the compulsory acquisition of native lands, he would have been likely to refer to the acquisitions as voluntary, whether they had been or not. Finally, reliance was placed on the difficulty of finding in the lists of expenditure attached to the annual reports any reference to the trade goods used in effecting the purchases of land at East Granville. Of these criticisms, that relating to the absence of a memorandum is the most serious, and must be given due weight. I cannot find it surprising that Musgrave should have delegated to Hunter the duty of effecting the purchases, although I do not agree with the suggestion that it can be inferred from the report that Musgrave had no personal knowledge of what was going on. Similarly I regard it as natural for the Protectorate to have appointed Ah-oo-doo to a position in which he might serve as an intermediary between the Protectorate and the natives, since the native chiefs, as the reports show, had little authority of their own. I find it difficult to accept that Musgrave would have had sufficient motive to act contrary to what he believed would be the instructions of the Colonial Office and to disguise that fact by a false report, and the purchase of the Badili lands was inconsistent with an intention to make a compulsory acquisition, for the main object in purchasing those lands was to provide an alternative if the natives at Port Moresby should prove unwilling to sell. The doubts raised by an examination of the financial statements in the annual reports might easily enough have been dispelled if they had been raised at the time, when those who prepared the reports were available to answer them, and it is not insignificant that the persons whose duty it was to consider the reports do not seem to have questioned them. However, put bluntly, all these criticisms amount to the suggestion that Musgrave falsified his report. In my opinion there is nothing in the evidence that substantiates such a suggestion. He had no motive to concoct a false story. There is no contemporary evidence that casts the slightest doubt on his veracity. At the time when he wrote there were very few Europeans in Port Moresby, and it is highly probable that they were in a position to know whether land had been purchased on behalf of the Crown, and if so in what circumstances. In particular the Rev. Lawes, who, having lived for ten years in Port Moresby, was in a position to have won the trust of the natives, and who had acquired a familiarity with their languages, would undoubtedly have learnt the truth from them if the supposed purchase had been a sham and it is not likely, with his known views on land policy, that he would have kept his knowledge to himself. In the circumstances it would have been most foolish for Musgrave to attempt to deceive Douglas, and if he had tried to do so the probability was that Douglas would have learnt the truth from others. However, Musgrave's report was accepted as correct not only by Douglas, but also by Sir William Macgregor, as his first annual report shows. The Administration's subsequent actions show that it was believed that the Crown had acquired, by purchase, lands at Granville East including sections I to VIII. Moreover, the fact that there was a sale to Hunter has become part of the native tradition. I am satisfied that there was a purported purchase of about ninety-five acres at Granville East from the natives by the officers of the Protectorate on behalf of the Crown.

[240]

Since the total area of a rectangle bounded by, and including Spring Garden Road, Lawes Street, Pullen Street and Castlereagh Street is 96.6 acres or thereabouts, it is tempting to say that Musgrave's reference to ninety-five acres at Granville East township was a reference to this complete rectangle, the area of ninety-five acres being intended to be an approximate statement of its total area. The evidence of Kora and Kubua would support this conclusion, but there are a number of factors that cast doubt upon it. Musgrave reported that "all the lands required within the surveyed portion of the settlement, newly entitled "Granville"," had been secured. Although Cuthbertson's rough eye-sketch suggests that he had originally intended to survey a complete rectangle at Granville East, it is clear that this intention was not effectuated, and that an entire rectangle, bounded by the four named streets, had not been surveyed in 1886, and indeed, was not surveyed for many years afterwards. Castlereagh Street had then been surveyed only along the eastern boundaries of sections I and VIII, so that there was no completely surveyed boundary on the eastern side of the so-called rectangle. Even the western boundary was not completely surveyed, because the survey of Lawes Street was not carried as far north as Spring Garden Road. Certainly none of the lands within the rectangle WXRS had been surveyed, and for reasons I have already given it is probable that the land within the smaller rectangle SRYZ had not been surveyed. If the ninety-five acres included the rectangle WXYZ, they were then strictly not all "within the surveyed portion", although in one sense they lay within the bounds of the survey. The lands within the rectangle WXYZ were shown by Cuthbertson as rough flint and limestone hills and may for that reason have been considered unsuitable for a township, at least in the early stages of its development. Having regard to the fact that acquisition took place from a large number of native vendors it is unlikely that the total land acquired would have been perfectly rectangular in shape. Further, there is some discrepancy in Musgrave's figures. According to his summary, 219 acres were purchased at Port Moresby in addition to the Badili lands. Of these 219 acres some few were purchased before Douglas became Special Commissioner. On the other hand, earlier in the report it is stated that about 222 acres were purchased after Douglas arrived at Port Moresby. The difference may be small but it casts doubt on the complete accuracy of the figures given in Musgrave's report. If the figure of ninety-five acres was not correct, it becomes impossible to conclude that the complete rectangle was acquired. The doubt about Musgrave's accuracy is not removed by the impossibility of reconciling his figures with the report made by Fort and the figures given by Douglas in his despatches and report. The area of the land in the complete rectangle could only have approximated ninety-five acres if all surrounding roads, complete and incomplete, were included. The total area of the roads would amount to over twenty acres. The subsequent purchases by the Administration of the whole of Pullen Street and half of Castlereagh Street are inconsistent with its claim that it had acquired those roads in 1886. Similarly the acquisition of the well which lay somewhere within the rectangle WXYZ is inconsistent with the claim that the whole of that rectangle had been acquired. On the other hand, the 96.6 acres within the notional rectangle were the lands that best answered to the description of ninety-five acres at Granville East. It is true that the twelve-acre block west of Lawes Street which had been surveyed was within the third division of the town of Granville whose boundaries were given in the proclamation dated 1st July 1886. However, Cuthbertson's report and field book showed that he at least regarded Granville East as bounded on the west by Lawes Street, on the north by the northern boundary of Spring Garden Road and on the south by the southern boundary of Pullen Street. It is thus doubtful whether the twelve-acre block would in 1886 have been regarded as part of Granville East. There is also the evidence of Taumaku-Madai that this block was already Government land, although I would not regard that evidence as of great weight. The other two areas west of Pullen Street which Mr Champion considered might have fallen within the ninety-five acres seem not to have been surveyed and the twenty-two acres at least could not appropriately have been regarded as part of Granville East I therefore do not consider that Mr Champion was correct in his conclusion that the ninety-five acres comprised sections I to VIII exclusive of roadways and the three areas west of Lawes Street. On the whole, the evidence inclines me to think that it is likely that Musgrave's reference to the ninety-five acres was intended to refer to the whole rectangle. However, although it seems probable that there was a rough equivalence between the area acquired and the rectangle bounded by the four named streets, I am unable to be satisfied, having regard to the matters that I have mentioned, that every portion of that rectangle was acquired. It is in my opinion satisfactorily established that the whole of sections I to VIII formed part of the lands purchased. "All the lands required within the surveyed portion of the settlement" were secured, sections I to VIII were of course surveyed at the time Musgrave wrote, and it would be impossible to find an area of anything approaching ninety-five acres at Granville East which would not include sections I to VIII. The Administration has consistently acted on the assumption that sections I to VIII are not native lands, both Mr Champion and the Land Board have found that those sections were purchased in 1886, and the Commission has found that those sections formed part of the land the subject of a purported sale to the Administration, albeit by the wrong people. I regard it as probable that, in addition, a considerable part, at least, of the rectangle WXYZ was purchased by the Administration in 1886, but I cannot be satisfied what part of that inner rectangle was so purchased.

[242]

The protected country remains in regard to the protecting State a foreign country; and, this being so, the inhabitants of a Protectorate, whether native born or immigrant settlers, do not by virtue of the relationship between the protecting and the protected State become subjects of the protecting State. If the Crown had intended in the exercise of its sovereign power to seize the lands of the natives, its acts, done against aliens outside British territory, could have been upheld as acts of State: Sobhuza II. v. Miller [1] . However, not every act done by the Crown in relation to aliens abroad is an act of State. In particular, where the Crown has purported to acquire the property of an alien outside British territory, the question whether there has been an act of State will depend on "the real character of the act done" - was it "a seizure by arbitrary power on behalf of the Crown" or was it "a possession taken by the Crown under colour of legal title"; if it were the latter, it could not be justified as an act of State: Secretary of State in Council of India v. Kamachee Boye Sahaba [2] ; Nissan v. Attorney-General [3] . If the Crown intends to purchase property from an alien abroad, and goes through a form of sale, it has done an act which professes to be justified by law, rather than one effected as an exercise of arbitrary power, and such an act has not the character of an act of State. The validity of such a purported purchase must therefore depend on the law applicable to it, and it is not open to the Crown to say that its validity is not examinable. In the present case it is clear that the Special Commissioner and his officers did not purport to expropriate the natives by the exercise of an arbitrary power - they purported to acquire the legal title by voluntary acts of sale and purchase. The acquisitions did not have the character of acts of State, and can be upheld only if they were valid purchases. 1. [1910] 2 K.B. 576, at p. 620. 2. [1926] A.C. 518. 3. (1859) 13 Moo. P.C. 22, at p. 77; [15 E.R. 9, at p. 29]. 4. [1970] A.C. 179, at pp. 218, 226, 232, 238-239.

[249]

There was thus some evidence that sales were recognized by native custom and, although one would have wished that fuller and more satisfactory evidence had been adduced on this point, the evidence was all one way. On behalf of the applicants it was submitted that the evidence did not show whether or not the rules of native customary law permitted alienation outside the iduhu to strangers such as officers of the Protectorate, or what the customary rules required as the essential elements, or as the necessary formalities, of a binding alienation, so that assuming that alienation in perpetuity was a concept which the natives understood, there was no evidence as to whether or how such an alienation to the Crown could validly have been effected. If a deficiency of this kind had existed in the evidence it would have been open to the Supreme Court and to this Court to receive further evidence as to native custom: s. 5 (3) (b), (4) of the Native Customs (Recognition) Ordinance 1963 (Papua and New Guinea). However, having regard to the conduct of these proceedings, and to the earlier history of the dispute as to the ownership of these lands, I do not think that such a course is necessary. Both Mr Champion and the Board had found that there had been a valid sale of part of the subject land - they differed only as to the area proved to have been sold. The native claimants were represented by counsel before the Board and before the Commission and it was to be expected that if it was contended that the native customary law either forbade sales or rendered them subject to the observance of formalities or to the fulfilment of conditions that were not observed or fulfilled, evidence to support such a contention would have been put before the tribunals. However, nowhere was it suggested that the purported sales were invalid except on the ground (first raised before the Commission) that they were made by persons who did not own the land. There can be no doubt that the native witnesses who gave evidence that sales took place meant sales that were effective to divest the natives of their interests. It is a proper conclusion from this evidence that sales such as those made in 1886 - by free agreement coupled with the handing over of consideration - were recognized by native law as valid.

[253]

The next objection to the validity of the Order in Council was that the land to which it applied was not of the description which under s. XI, as properly construed, alone can be the subject of an Order in Council under that section. The section applies to "land which has never been alienated by the Crown and not being land used or required or reasonably likely to be required by native-born Papuans for building agricultural or other industrial purposes". It was submitted that on the evidence it should be held that in 1901 some of the land within the boundaries contained in the schedule to the Order in Council, including parts of Era Taora if they fell within those boundaries, was land which was either used or required or reasonably likely to be required by native-born Papuans for agricultural purposes and that the Order in Council could not validly apply to that land. There is certainly evidence that at various times there were native gardens on different parts of Era Taora. I have already referred to the evidence of Daera Guba to that effect and to the documentary evidence that shows that in 1886 and again in the 1920's there were gardens on part of that land. Moreover, there were some gardens on the neighbouring land acquired from the Koitapuans on 5th October 1900. There is, however, no evidence that any of the land within the boundaries in the schedule to the Order in Council, however construed, was used for gardens at the time when the Order in Council was made. It is quite probable that as a result of the transactions in 1886 the natives had ceased gardening in the area and that they did not resume gardening there again until after Governor Murray had given them permission to do so, that is, after 1907. There is, further, no evidence that in 1901 the lands were either required, or reasonably likely to be required, for agricultural purposes. The applicants in effect suggested that any land on which gardens could be made should be held to be land likely to be required for agricultural purposes, but it must be remembered that in 1901 the pressures of population and the demand for land that exist today had not become manifest, particularly in British New Guinea. The following words of Sir Hubert Murray, quoted by Prentice J., which were written a decade after 1901, show that an able and sympathetic Administrator could well have believed in 1901 that lands suitable for agriculture, but not in fact so used, were not reasonably likely to be required for that purpose:

[256]

The Administrator is to the utmost of his power to promote religion and education among the native inhabitants of the Possession; and he is especially to take care to protect them in their persons and in the free enjoyment of their land and other possessions This article was a direction to the Administrator; it was not a limitation on the power of the Legislative Council. The powers of the Legislative Council depended upon the Letters Patent of 8th June 1888 by which the Queen, in pursuance of s. 3 of the British Settlements Act of 1887 U.K. delegated to the Legislative Council (inter alia) full power and authority to establish all such laws and institutions as may be necessary for the peace, order, and good government of Our subjects within the Possession Subject, nevertheless to all such conditions, provisions, and limitations as We shall see fit to prescribe from time to time by Our Order in Our Privy Council, or by this or any other Instrument under Our said great Seal, or by the Instructions under Our Sign Manual and Signet (art. X). The Instructions contained provisions as to the form of Ordinances and provided that the Administrator should not assent to Ordinances of certain classes (including Ordinances authorizing the purchase of land by private persons, except from the Administrator or purchasers from him - art. XXIII (11)) and required that all Ordinances be transmitted to the Queen "for Our final approval, disallowance, or other direction thereupon" (art. XXV). There was no relevant condition, provision or limitation to which the law-making power delegated to the Legislative Council was subject and s. XI of the Land Ordinance of 1899 was plainly within the power of the Legislative Council to make. It follows that an Order in Council made in pursuance of the power given by the section would not be invalid for non-compliance with art. XXXI. In any case, having regard to the provisions in s. XI designed to protect the rights of owners, the Order in Council could not properly be said to amount to a failure to protect the natives in the free enjoyment of their land assuming that those words could ever be applied to an Order in Council made under an Ordinance.

[258]

Finally it was submitted that the Order in Council was void for uncertainty. Before considering that submission it will be convenient to consider what are the external boundaries of the land described in the Schedule to the Order in Council. The applicants submit that even if the Order in Council is valid its boundaries do not include sections I, II, V, VI, VII and VIII of Granville East. The boundaries set out in the Schedule, so far as they follow the seashore, of course admit of no doubt. The Commission saw some difficulty in finding the line of the prolongation of the eastern boundary of Lawes Street, because the present Lawes Road does not coincide with the former Lawes Street, but in my opinion Cuthbertson's surveys enable the line of Lawes Street to be determined easily enough. The question however is, what is meant by "the most south-western point of the surveyed allotments"? According to the Administration, this point is at the south-western corner of section VI but the applicants contend that it is at the south-western corner of section IV, and justify their contention by submitting that the only sections which in 1901 had been surveyed into allotments were sections III and IV. It is true that they were the only sections which were then subdivided and that the subdivisions were referred to as "allotments", not only by Cuthbertson but also in one of the annual reports. On the other hand, the word "allotment" in its ordinary sense simply means a share or portion of land allotted to a special person or purpose and in the absence of statutory definition the word has no technical signification in relation to a subdivision: it can refer to a large subdivision or to a small one. In the circumstances it is true that the word "allotments" creates an ambiguity. However, in the Order in Council the "surveyed allotments" must refer to the surveyed sections rather than to the subdivisions of sections III and IV. If the words are not given that meaning, the description of the boundaries would be completely uncertain. Sections III and IV are so subdivided that some of the allotments have their "back or inland boundaries" on Hely Street whereas others have such boundaries within the sections themselves. There are many different "back or inland boundaries" of the allotments within sections III and IV, and if the Order in Council refers to the boundaries of those internal allotments it does not indicate which are the allotments whose boundaries should be followed; it would be possible to take many routes from the south-western point of section IV to the north-eastern point of section III by following the eastern boundaries of the internal allotments of those sections. On the other hand, there is only one line that connects the south-western point of section VI with the north-eastern point of section III by following the "back or inland boundaries" of sections I to VIII - the only sections then surveyed. This circumstance, in my opinion, provides strong reason for holding that on the proper construction of the section "the surveyed allotments" referred to are sections I to VIII; on ordinary principles of construction, the ambiguity should be resolved by adopting that construction which will render the instrument efficacious rather than insensible. Some support for this conclusion can, I think, be derived from the fact that the words describing the boundaries in the Order in Council are the same as those that describe the boundaries of Port Moresby in the proclamation of 28th September 1898. No one construing that proclamation in the light of the circumstances existing at the time could doubt that it was intended to include within the township all the sections (namely I to VIII) which had then been surveyed for the very purpose of providing lands for the township. The proclamation, in my opinion, constituted part of the circumstances surrounding the making of the Order in Council and in the light of which the Order in Council ought to be construed. It is probable that the words used in the later instrument were intended to have the same meaning as those of the earlier instrument from which they were obviously taken.

[264]

However, another alleged ground of uncertainty was suggested. It was said that the description "Paga Hill and Mount Goldie" is inapt to refer to so much of the land within the boundaries as was not "comprised within any transfer from natives to the Crown" - what I shall call "the remaining land". That description would appropriately refer to parts of the remaining land but, it was said, not to all of it, for example, not to area no. 5 on plan "J" [1] . It may of course be that some parts of the remaining land were not usually described by any name, and it has not been established that the names are inappropriate to the whole of the relevant area, but I am prepared to assume that they are not appropriate. Further, the total area within the boundaries is about 475 acres, and it is difficult to determine exactly what is the remaining land that makes up the area of about 328 acres mentioned in par. 3. It is in fact possible that 328 acres is a fair estimate of the area of the remaining land, but for the purposes of the argument it may be assumed that it is not. On these assumptions, the description contained in pars. 2 and 3 does not aptly fit the remaining lands. There is then in the schedule to the Order in Council a description which defines with certainty the land intended to be affected, and an additional description, in pars. 2 and 3, which is erroneous. It is apparent from the form of the Order in Council that this additional description was not intended to control and limit the generality of the description in the schedule. Also there do not appear to be lands properly described as "Paga Hill and Mount Goldie" which amount in area to about 328 acres, for according to Musgrave's report the unpurchased lands at Paga Hill and Goldie Law totalled 286½ acres. On the assumptions made, there was no land which answered the whole description contained in the schedule read together with pars. 2 and 3, whereas there was land which satisfied the description given with sufficient certainty in the schedule. In these circumstances, on established rules of construction, the error in the additional description in pars. 2 and 3 should not be allowed to vitiate the instrument, but should be rejected as a falsa demonstratio. It is enough to refer by way of authority to the passage cited by Lord Sumner in Eastwood v. Ashton [1] :

[268]

The submission by the Administration that the decision of the Board created an estoppel was controverted by counsel for the applicants on numerous grounds. At the threshold it was put that the Board lacked jurisdiction to make its decision. Three reasons were given for this. In the first place, it was submitted that s. 9 of the Land Ordinance 1911-1953 (Papua), under which the Board was appointed, allowed the Lieutenant-Governor to appoint a Board to decide only questions concerning lands which were, or were alleged to be, waste and vacant or alternatively, only questions arising under s. 8 of that Ordinance. I must confess myself unable to appreciate the force of the submission that s. 9 was confined to questions as to waste and vacant lands or lands alleged to be waste and vacant, because the section clearly refers to two types of matters, namely, "questions as to waste and vacant lands or lands alleged to be waste and vacant" and "cases of disputed ownership of land in which a Papuan native is a claimant". The further submission that s. 9 is merely ancillary to s. 8 depends in part on the view that it is necessary to place some limitation on the generality of the words of s. 9 so that they would not, for example, enable a Board to be appointed to determine a question of disputed ownership which had arisen in pending criminal or civil proceedings, and in part on the position in which the section appears in the Ordinance and on the heading to Pt I in which it appears. It may be conceded that some limitation may have to be placed on the words of s. 9 but there is nothing in the section itself that would indicate that it is intended to be merely ancillary to s. 8 or to the provisions of any other section contained in Pt I. Section 8 reproduced, with significant variations, the provisions of s. XI of the Land Ordinance of 1899, but instead of referring to "any land which has never been alienated by the Crown and not being land used or required or reasonably likely to be required by native-born Papuans " s. 8 referred to "any land which has never been alienated by the Crown and of which there appears to be no owner". Section 8 contained a proviso, similar to that in s. XI, requiring the Lieutenant-Governor to take into consideration any claims made to the land described in an Order in Council made under that section. No doubt if a native claimed ownership of land described in such an Order in Council and the claim was disputed, the Lieutenant-Governor could have appointed a Board to decide the case, but there is nothing to suggest that the operation of the section was intended to be confined to such cases and indeed, as I have said, it also applies where a question arises as to waste and vacant lands. The words "waste and vacant lands" do not appear in s. 8 - they do appear in the marginal note to that section but the marginal note is not deemed to be part of the Ordinance (see the Ordinances Interpretation Ordinance 1911-1940 (Papua), s. 13 (3) whose modern equivalent is the Ordinances Interpretation Ordinance 1949-1971 (Papua and New Guinea), s. 27 (3)). The heading of a Part of an Ordinance is deemed to be part of the Ordinance (Ordinances Interpretation Ordinance 1911-1940, s. 13 (1) and Ordinances Interpretation Ordinance 1949-1971, s. 27 (1)) but the heading to Pt I ("Acquisition of Land from Natives") certainly does not support the view that s. 9 is merely ancillary to s. 8, because s. 8 cannot appropriately be described as a section dealing with the acquisition of land from natives. Indeed, the heading to Pt I seems inappropriate to ss. 7 and 8 as well as to s. 9, and it throws no light on the meaning of the latter section. The case before the Board in 1954 was a case of disputed ownership of land in which Papuan natives were claimants. The question arose independently and not as incidental to other pending litigation. In my opinion there is no justification for so reading down the words of the section as to exclude the jurisdiction of the Board in such a case.

[274]

It is not readily concluded that an earlier statute is impliedly repealed by a later statute which does not expressly refer to it: R. v. Connell; Ex parte Hetton Bellbird Collieries Ltd. [1] . The question is whether "the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one, that the two cannot stand together" or, in other words, whether the two enactments "are so plainly repugnant to each other, that effect cannot be given to both at the same time": Hack v. Minister for Lands (N.S.W.) [2] . In my opinion the two Ordinances now under consideration are not inconsistent in this way. The jurisdiction given to the Board by s. 9 of the earlier Ordinance was wider than that given to the Commission under s. 8 of the later. For example, the Board might decide questions as to waste and vacant lands in which natives claimed no interest, whereas although the Commission might decide such questions incidentally (s. 37) it seems to have had no jurisdiction to do so directly - see s. 8. Further, whereas the Board could decide a dispute between a native, on the one hand, and the Administration or a European, on the other, it appears doubtful whether the Commission had a similar power. It appears from ss. 10, 12, 13, 16 and 22 of the Native Land Registration Ordinance that only a native could make application to the Commission, and certainly only a native had a right to appeal (s. 33). Although the jurisdiction of the Board in part depended on the fact that a Papuan native was a claimant to the land whose ownership was disputed, it did not follow that only a Papuan native might apply to the Board to resolve such a dispute, and the right of appeal from the Board was not restricted to natives. Although there was some duplication of function between the Commission and the Board both bodies could have operated at the same time. In my opinion there was not such an inconsistency or repugnancy between the two enactments as to require it to be held that the Native Land Registration Ordinance 1952 impliedly repealed s. 9 of the Land Ordinance 1911-1953.

[278]

The rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on Res Judicata, p. 3). The use of the phrase "judicial tribunal" in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative: see Caffoor v. Commissioner of Income Tax, Colombo, per Lord Radcliffe [3] . A fairly obvious example is the case of a court-martial, whose sentence might in some circumstances be pleaded as an estoppel (Hannaford v. Hunn [4] ), although not made in the exercise of judicial power (cf. R. v. Bevan; Ex parte Elias and Gordon [5] ; R. v. Cox; Ex parte Smith [6] ). The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc: see Halsbury's Laws of England, 3rd ed., vol. 15, pp. 212-214; Spencer Bower & Turner on Res Judicata, 2nd ed. (1969), pp. 21-28. It will accordingly not be necessary to canvass the authorities to which we were referred, and which deal either with issue estoppel or with the nature of judicial power. 1. Ante p. 367. 2. [1967] 1 A.C. 853, at p. 933. 3. [1961] A.C. 584, at pp. 597-599. 4. (1825) 2 C. & P. 148, at p. 155 [172 E.R. 68, at p. 71]. 5. (1942) 66 C.L.R. 452, at pp. 466-468. 6. (1945) 71 C.L.R. 1, at p. 23.

[285]

Finally, the applicants denied that there was an identity of parties before the Board and the Commission. The native claimants before the Board included the Tubumaga Idibana and the Tubumaga Laurina, but it was the former branch of the iduhu that claimed Era Taora. The application to the Commission was made by Daera Guba on behalf of the descendants of Guba Daera but it emerged at the hearing that Daera Guba was representing both branches of the Tubumaga iduhu. It was submitted that the relevant party before the Board was the Tubumaga Idibana - a communal group - whereas before the Commission the applicants were a number of individuals, represented by Daera Guba, and that if the individuals were members of the group, they were nevertheless proceeding in a different capacity, and that a decision given against them by the Board in one capacity would not estop them in the other. Of course, neither tribunal had any strict rules of pleading, and before the Commission there was some disconformity between the application, which described the persons represented by Daera Guba as the descendants of Guba Daera, and the statement made by Daera Guba that he was representing the whole clan, but there is not the least doubt, when the evidence is regarded, that his case before the Commission was advanced on the basis that he was representing the whole Tubumaga people - both branches of the iduhu. However, it was then submitted that the decision of the Board could not estop the Tubumaga Laurina, since that branch of the iduhu had laid no claim before the Board to Era Taora. In fact both branches of the iduhu were represented before the Board, and by the same counsel. In my opinion, if there was not an estoppel per rem judicatam between the Tubumaga Laurina and the Administration, the former were estopped by their conduct from relitigating the issue of the ownership of the subject land. The Tubumaga Laurina, being a party, and knowing that the Board was required to decide who was the owner of the land in question, stood by, and allowed the Tubumaga Idibana, the other branch of the iduhu, alone to assert its claim against the Administration. In those circumstances, justice and common sense would require the Tubumaga Laurina to be bound by the result: the case is within the general principle on which the decision in Nana Ofori Atta II. v. Nana Abu Bonsra II. [1] rests, although not within the precise formulation of that principle in Wytcherley v. Andrews [2] which was cited in Nana Ofori Atta II. v. Nana Abu Bonsra II. [3] .

[287]

A final argument put by the applicants was that the Commission could not be estopped from carrying out its duty, under s. 15 of the Land Titles Commission Ordinance 1962 (as amended), to hear and determine the dispute before it. Section 44 of that Ordinance provides that "the Commission shall accept findings of the Native Land Commission under the Native Land Registration Ordinances 1952, subject to any appeal under that Ordinance", and it was said that this provision indicates that it was not intended that the Commission should "accept" the decision of any other tribunal, and in particular of the Board. It was further said that the only case in which the discretion of the Commission to inquire into and determine the existence of native custom relating to land is limited to that mentioned in s. 42 (1) (c), which has no present relevance. I am quite unable to accept that if the Commission held that a native claimant before it was estopped from asserting his claim it would thereby be refraining from carrying out any duty imposed on it by statute, or would otherwise be going in the face of a statute. Its duty is to determine the dispute and in doing so it should give effect to the ordinary principles governing res judicata, unless some statutory provision overrides them. There is no provision which has that effect. Section 44 does not touch the doctrine of estoppel; it requires the Commission to accept the findings to which it refers whether or not they would otherwise operate as an estoppel, and it is impossible to find in that section any indication of an intention that the decision of another tribunal, which in accordance with general principles would bring about an estoppel, should not be allowed that effect. Section 42 seems to me to have no relevance to the question whether the parties to a hearing before the Commission should be precluded from disputing an earlier decision of the same question. The Commission can carry out its statutory duty to hear and determine a dispute, notwithstanding that it makes its determination on the ground that the matter in dispute is res judicata. It is no less desirable that there should be an end to litigation in respect of the ownership of land in Papua and New Guinea than in relation to any other issue arising elsewhere, and it is not necessarily conducive to justice to allow disputes as to whether land is or is not native land, once finally decided, to be reopened many years later, when memories may have faded or become distorted and evidence has become more stale. It would require words very much clearer than those contained in the Land Titles Commission Ordinance 1962 (as amended) to satisfy me that it was intended to preclude the Commission from giving effect to the doctrine of res judicata.

At a glance

Court

Decision date

Before

Source

Judgment (298 paragraphs)

Parties