Custodian of Expropriated Property and Phoebe Kroening v Commissioner of Native Affairs (Re Mortlock Islands) [1971–72] PNGLR 621

• Jurisdiction: Papua New Guinea
• Judge: Phillips J
• Judgment Date: 29 April 1930
• Citation: [1971–72] PNGLR 621
• Court: Central Court
• Year: 1930
• Judgement Number: No 205

Central Court: Phillips J

Judgment Delivered: 29 April 1930

1 Land titles—North Solomons Province; Statutory interpretation; Common law—land title; International law

2 Title by prescription not available to non–natives in New Guinea; preliminary issue in dispute between Mortlock people and heirs of Queen Emma; purchased in 1886; German law; common law

3 REAL PROPERTY—Acquisition of title by prescription by non–natives in New Guinea—Applicability of the law of German New Guinea to the mandate territory of New Guinea—Lands Registration Act 1924–1929, s24, s26(2), s27C—Laws Repeal and Adopting Act 1921–1929, s4, s8, s9, s10, s16—Land Act 1922–1929, s16.

The Commissioner of Native Affairs referred the question of possible native rights affecting land known as the Mortlock Islands to the Court by way of summons under s24 of the Lands Registration Act 1924–1929. The Custodian of Expropriated Property and Mrs Phoebe Kroening (called Calder in the summons) claimed to own the islands by virtue of a purchase document made by their predecessor in title with the chiefs and rulers of the Mortlock Islands dated 7th June, 1886. On the hearing of the summons and before the evidence had been concluded, the custodian and his co–owner raised the point that, irrespective of the validity or otherwise of the 1886 purchase, they had acquired title by prescription as against the native claimants by virtue of the fact that they had been in continuous and undisturbed possession of the islands since 1886. The Court gave a ruling on the assumed facts that the custodian and his co–owner, or their predecessors, had entered into a purchase agreement with certain chiefs and rulers dated 7th June, 1886, for the purchase of twelve or thirteen islands and had been registered in the Ground Book as owners of ten of those islands; that they had been in continuous occupation of the islands since 1886; and that the Mortlock Islanders or some of them had continued to live there also.

Held:

(1) The question of whether non–natives could acquire title by prescription against natives prior to 9 May 1921, is to be determined according to the laws then in force in the Colony of German New Guinea by virtue of s8 of the Laws Repeal and Adopting Act 1921–1929. That law is local law of the mandate territory of New Guinea and not foreign law and accordingly the Court may take judicial notice of it.

Secretary of State for Foreign Affairs v Charlesworth, Piling & Co [1901] AC 373, cited with approval.

(2) The Court is not prepared to give a decision on the question of whether the ownership of land in New Guinea might be acquired by prescription under the German laws in force before 9 May 1921, because the translations of the German laws before the Court were made by one who did not have the legal training to translate German legal terms into English legal terms. The following views expressed on the German law are therefore tentative and subject to revision if better translations become available.

From 1885 to the end of German rule restrictions were placed on the acquisition of land by non–natives: they could only acquire native owned land by agreement with the native owners or ownerless land. After 1904 it was provided that areas necessary for the livelihood of natives were precluded from acquisition. There was no provision that non–natives could acquire native owned land by prescription. The Ground Book system established in New Guinea was subject to Prussian law prior to 1903 and thereafter to the German Civil Code of 1900. The Prussian law expressly provided that title to land by usucapion could not take place against a registered owner. But s900 of the Civil Code provided that if a person was wrongly registered in the Ground Book as the owner of land, he nevertheless acquired good title if his registration had stood unchallenged for thirty years and if he had been in proprietary possession during that period. S927 of the Civil Code provides that the owner of land might be excluded from his rights if the land had been in the proprietary possession of another for thirty years. But the application of the Civil Code was subject to the provisions of an Imperial Act of 21 November 1902, and orders made under it by the governor which did not include acquisition of title by prescription. Accordingly, the Imperial Act ousted the relevant provisions of the Civil Code and non–natives could not acquire title against natives by prescription. Even if this conclusion be incorrect, the thirty–year period of s900 and s927 of the Civil Code had not expired when the German laws ceased to apply on 9 May 1921, and the provisions of the Civil Code had no retrospective effect in New Guinea.

(3) The question of prescription after 9 May 1921, is to be determined according to the principles and rules of common law and equity by virtue of s16 of the Laws Repeal and Adopting Act 1921. There is no legislation in New Guinea similar to the English Prescription Act. Although the Court has a discretion under s27C of the Lands Registration Act to depart from the principles and rules of common law and equity, it will not do so unless they clash with the principles of right and good conscience referred to in that section. In view of the fact that the Land Act 1922–1929 limits the ways in which land can be acquired from natives and makes it an offence for non–natives to occupy land owned by natives without authority, it is not appropriate in this case to depart from the common–law rules of prescription and invent a new doctrine of prescription under the principles of right and good conscience.

(4) The custodian and his co–owner cannot establish title by the common law rules of prescription for two reasons. First, to allow them to acquire title by prescription against natives would be in contravention of s16 of the Land Act 1922–1929 which makes it an offence for non–natives to occupy land owned by natives without authority under that Act, and the Court will not presume the existence of a lost grant which, had it existed, would have contravened a statute or involved illegality.

Rochdale Canal Co v Radcliffe (1852), 18 QB 287, and Neaverson v. Peterborough Rural District Council [1902] 1 Ch 557 at 573 followed. Second, the common–law rules require the Court to presume a lost grant from the existence of long, open, undisturbed and unexplained possession and the Court cannot presume a lost grant in this case when it has before it the 1886 purchase agreement which purports to explain the non–native possession.

(5) Although long non–native possession as against natives does not of itself give title in New Guinea, it does not follow that long non–native possession has no importance. It may be of the greatest importance as evidence of a duly acquired title.

(6) The reference of the question of possible native rights to the Court by the Commissioner of Native Affairs was most unsatisfactory for it failed to clearly or fully set out the nature, extent and basis of the claims and the natives on whose behalf the claims were made. The Court must therefore exercise its powers under s26(2) of the Lands Registration Act and adjourn the hearing of the summons to the Mortlock Islands and there inform itself of the native rights or claims in respect of the land.

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Phillips J: In the present proceedings the Commissioner of Native Affairs has, by summons, and under the provisions of s24 of the Lands Registration Act 1924–1929, referred to the Court the question of possible native rights affecting land at the group of islands known as the Mortlocks.

When the matter was last before me on 24 March, legal questions arose which were of considerable importance not only in this particular case but in general. It appeared that the Court's decision on these questions might have the effect of shortening the hearing and so saving expense, and learned counsel expressed their desire that a ruling be given.

In the ensuing observations I shall assume that the undisputed facts are as follows:

The Custodian of Expropriated Property and Mrs Kroening (who was formerly Mrs Phoebe Calder and is so called in the summons), claim to own the Mortlocks as co–owners and to trace title, through others, from a document dated 7 June 1886. This document purports to be an indenture by which certain named "chiefs and rulers of the Mortlock Island Group . . . acting for themselves and all their relations and followers, constituting the entire population of the said Group of Islands" in consideration of sixty–eight dollars in trade bargained and sold to Emma Eliza Forsayth all the "certain pieces and parcels of land known as the Mortlock Islands . . . being the true and lawful separate owners thereof, said Mortlock–Island Group consisting of twelve separate islands . . .". Further on in the same document, however, thirteen islands are named (including a double island) while the sketch plan drawn on the document shows...