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

• Jurisdiction: Papua New Guinea
• Judge: Prentice J:
• Judgment Date: 04 September 1972
• Court: Supreme Court
• Citation: [1974] PNGLR 349
• Year: 1974
• Judgement Number: FC36

Full Title: Gaya Nomgui and Others v The Administration of the Territory of Papua New Guinea (Re Lae Administration Land) [1974] PNGLR 349

Full Court: Frost SPJ, Clarkson J, Prentice J

Judgment Delivered: 4 September 1972

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GAYA NOMGUI AND OTHERS

V.

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

Lae & Port Moresby

Kelly J Frost SPJ Clarkson Prentice JJ

5-9 July 1971

12-16 July 1971

19-23 July 1971

28 October 1971

26-28 April 1972

1-3 May 1972

4 September 1972

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. 69-71Infra, p. 414.1, Lands Registration Ordinance 1924, s. 26 (4) Infra, p. 420.2.

Held:

(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.

(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.

(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.

(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.

(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) 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.

(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.

Decision of Kelly J. reversed.

Cross Appeals from Kelly J.

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.

The facts are fully set out in the judgment of Kelly J.

Counsel

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

T. R. Morling Q.C. and with him T. Bredmeyer and R. Woods for the defendant.

Cur. adv. vult.

28 October 1971

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...