Sacred Heart Mission (New Britain) Property Trust v Nambumutka Simbali on behalf of the Denangi Lineage and The Director of District Administration (Re Toriu)

• Jurisdiction: Papua New Guinea
• Judge: Frost ACJ, Kelly J, Raine J
• Judgment Date: 14 January 1972
• Citation: (1972) FC29
• Year: 1972
• Court: Supreme Court
• Judgement Number: FC29

Full Court: Frost ACJ, Kelly J, Raine J

Judgment Delivered: 14 January 1972

1 Land titles—East New Britain Province

2 Mission society held title in fee simple; reversed Sacred Heart Mission (New Britain) Property Trust v Nambumutka Simbali (Re Toriu) [1971–72] PNGLR 26; vested title properly registered under Land Titles Restoration Act 1951; judge erred in recognising native claims under s67(3); Full Court upheld by High Court [1973] PNGLR 590; (1973) 47 ALJR 666; 2 ALR 203

___________________________

By the Court: This is an appeal against a judgment of Prentice J dismissing an appeal by the appellant against a final order of the Land Titles Commission under the New Guinea Land Titles Restoration Act concerning land known, as Toriu Residue. In the proceedings before the Land Titles Commission there were separate claims by the appellant in respect of three pieces of land upon the western coast of the Gazelle Peninsula of New Britain, being known respectively as Toriu on the Beach, Toriu Residue and Toriu Plantation, which was a plantation area surrounded on all sides by Toriu Residue. Final orders were made upholding the interest of the appellant in respect of the land Toriu on the Beach and Toriu Plantation, subject to the payment of compensation, and no appeal is brought against such orders. In the case of Toriu Residue, the subject of this appeal, the Land Titles Commission held and declared that no interest was owned by the Mission therein.

There are very few details in the transcript of the hearing before the Land Titles Commission. The appellant appears to have relied on its formal claim which was stated to be based on a vesting order of the Administrator, the copy being attached thereto, which was obviously a vesting order made under s4 of the German Missions Act 1926. There was tendered a copy purporting to be a folio of the Land Register or German Ground Book, with English translation, showing that the appellant had been entered as the owner of Toriu Residue on 20 December 1904, "in pursuance of the contract of 3 November 1904". Counsel referred the Commission to the vesting order and s4 of the German Missions Act, and pointed out that in the schedule of the vesting order Toriu Residue was shown as one of the freehold properties vested in the appellant. That was the appellant's case in relation to documentary evidence. It will be necessary to refer later to the provisions of the vesting order and of the Act. Counsel on behalf of the Director of District Administration appeared on behalf of the first respondent, who was mentioned in the reference under s36 of the New Guinea Land Titles Restoration Act, as a claimant to the land on the ground that it was never alienated nor any payment made for it. Counsel called the first respondent, aged approximately 42, and another witness called Simon Amarandin, aged approximately 75 years. Both witnesses had made statements which were tendered in evidence which obviously show the hand of the Administration officer to whom they were made. In the course of his statement Nambumutka said, "I was told that the Germans came to Toriu and put cements and planted lemon trees on the corner of the land known as Toriu and said it belonged to the Mission (Catholic)." Simon Amarandin's statement particularly seems to give a probable account of the arrival of the Germans as seen through the eyes of primitive people:

"My name is SIMON–AMARANDIN, I am the eldest member of the DENANGI line of MANDARAMBIT village. I can remember, that when I was a boy, my people used to fight with the KAVUDENKI people. I did not take in any part in any fighting as I was only a boy. When the clan fighting ceased I lived in MANDARAMBIT at the rear of the land known as TORIU. At this time my people used TORIU land and TORIU on the beach for hunting and cooking salt.

Between the time that the clan fighting ceased, and the first Germans appeared at TORIU, I saw a very bright star with a tail. At this time 1 had reached puberty but a beard had not began to grow on my face.

I was present when the Germans came and marked out the boundaries and planted cements on TORIU. I had just commenced to grow a beard at this time. None of my people understood what the cements, that the Germans planted, meant, and because of the language barrier we were not informed. At no time did the Germans attempt to establish the owners of the land, TORIU, or make payment for the land.

A German came and set up a sawmill on TORIU and cleared the area which is now TORIU Plantation. My people made no attempt to eject the Germans as they could not converse and also they feared the guns of the Germans.

When the timber was cleared, the Germans planted the area with coconuts and impressed a number of MANDARAMBIT men into working on the plantation. My people made no resistance as they were still afraid of the German guns.

When some of my people were able to converse with the German Brothers on the plantation, they made it clear to them that the MANDARAMBIT people considered that all TORIU land belonged to the MANDARAMBITS, nothing was done however, as regards payment for the land. When the plantation was being established my people continued to hunt and fish and cook salt on TORIU land

No further complaints were made.

When the Second World War reached us, my people hid in the Baining Mountains. We returned to MANDARAMBIT at the conclusion of the war and resumed using TORIU land for hunting and TORIU on the beach for cooking salt.

Immediately after the war, a 'Masta Laurie' came to manage TORIU Plantation. At this time my people were content to allow the white man to remain on the plantation as it seemed that no attempt would be made to extend the boundaries of the plantation. My people still did not know the significance of the cements on the rest of TORIU (TORIU RESIDUE).

When Mr Reg Wiles came to TORIU and began cutting timber, my people complained to him that he had no right, that the land belonged to the MANDARAMBITS, and that no payment had ever been received for the land. It was then that Mr Reg Wiles explained the significance of the cements on TORIU RESIDUE, Prior to this, the reason for the existence of the cements was unknown.

The Mandarambit people have continually used TORIU land, for hunting and cooking salt, from before the time of the first non native intrusion right to the present time."

The evidence of these witnesses was that the land was never purchased by the Mission, and, presumably as evidence of acts of ownership, that it had been used for hunting, fishing and cooking salt, although it appeared that the two latter activities were confined to Toriu on the Beach. In cross–examination in answer to a leading question Simon also said that Toriu Residue had been used by his clan for making gardens.

The Chief Commissioner's reasons are as follows:

"In this matter the bulk of the Mission's claim lies in copies of documents from German times plus a mention of the properties in the Vesting Order in the German Missions' Act. There is no evidence of any attempt to process the land under the Lands Registration Act. Having seen and heard the witnesses, I am satisfied that the particulars of the land as entered in the copy of the Ground Book would have been altered if the matter had been processed by Dr Hahl in German times or Mr Justice Phillips in Australian times before the war. Looking at all the facts I feel that either of these gentlemen would have ordered some form of compensation and also would have excised some of the areas concerned. My view on the evidence is that to do justice, I should now order that with regard to the Planted up area, the portion known as the Plantation having an area of about 381.6 acres and the portion known as Toriu on the Beach having an area of about 10 acres that provided the Mission pays the sum of $500 to Nambum–Utka on behalf of his clan on or before the 30 November 1967, a Final Order restoring the Freehold Title shall be issued in favour of the Mission. With regard to the balance of the land known as Toriu Residue included in the three Provisional Orders there should be a Final Order of No Interest."

It is now necessary to turn to the provisions of the New Guinea Land Titles Restoration Act. The purposes and general effect of the legislation was stated by the High Court in Custodian of Expropriated Property v Tedep (1964) 113 CLR 318 at 332–333 as follows:

"Its long title is 'An Act to provide for the compilation of new Registers and Official Records relating to...