Daera Guba on behalf of himself and the Tubumaga Clan of Poreporena v The Administration of the Territory of Papua and New Guinea; Lohia Doriga on behalf of himself and the Giakone Clan v The Administration of the Territory of Papua and New Guinea and Daera Guba on behalf of himself and the Tubumaga Clan of Poreprena (In Re Era Taora Land)

• Jurisdiction: Papua New Guinea
• Judge: Prentice J:
• Judgment Date: 31 May 1971
• Citation: (1971) FC18
• Year: 1971
• Court: Supreme Court
• Judgement Number: FC18

Full Court: Minogue CJ, Frost SPJ, Prentice J

Judgment Delivered: 31 May 1971

1 Land titles—National Capital District; Land Titles Commission—National Capital District; Estoppel; Statutory interpretation; International law

2 Lohia Doriga v Daera Guba (Re Era Taora Land) (1969) No548 overruled; Land Titles Commission order for ownership by clan restored; ad hoc board appointed to decide ownership in 1954 was illegal; estoppel based on it was invalid; reversed by High Court [1973] PNGLR 603; detailed history of British foreign jurisdiction acts, colonial laws in Papua; interpretation of Land Act 1911; headings of portions determined the sense of any doubtful expression; no owner meant no native owner

3 Appeal of Daera Guba allowed. Appeal of Lohia Doriga dismissed. Judgment of Clarkson J reversed insofar as it amended the Order of the Land Titles Commission. Order of the Land Titles Commission restored.

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Minogue CJ:

These are two appeals from a decision of Clarkson J sitting as an appellate judge under the Land Titles Commission Act 1962–1968 and handed down on 26 November 1969.

It is a matter for regret that this Court has taken so long to pronounce upon these important matters before it, the more so as the land the subject matter of the appeal has now merited the attention of five tribunals over a period of nearly 17 years. However, this delay has been unavoidable because of both the difficulties experienced by the legal profession in this Territory and the conditions under which this Court functions. The hearing of the appeal, which lasted for 23 sitting days, had to be split into two periods and on the conclusion of the argument each of the members of the Court had to divert his attention to urgent [Page 2] nisi prius work in order that a breakdown in the functioning of the Court system would not occur.

The Land Titles Commission in the person of its Chief Commissioner upheld a claim by Daera Guba of the Tubumaga idibana clan on behalf of the descendants of Guba Daera deceased and declared that an area of land consisting of some 42 acres situated in the urban census division of the Port Moresby Subdistrict was owned by the Tubumaga clan the present leader of which is the appellant Daera Guba. The land was known to the claimants as Era Taora and is situated in the Newtown area of Port Moresby. The Commission also rejected claims by Lohia Doriga of the Giakone clan on behalf of the descendants of Iramo Hada (whom I take to be the members of that clan) and by the Administration to be registered as owners of the said land.

When the matter came on appeal before Clarkson J he ordered that the order of the Land Titles Commission be amended in effect to award to the appellant Daera Guba on behalf of the Tubumaga clan only a very small portion of Era Taora and to award the balance of the land to the Administration. As to the major portion thereof he held Daera Guba and his clan estopped from asserting ownership by virtue of the decision of a Board set up by the Administration in 1954; and as to the remainder he held that part was the subject of a valid purchase by or on behalf of the Crown in 1886. and that the balance had been properly acquired by the Crown by virtue of a Proclamation made in 1901. The learned appeal judge rejected the appeal of Lohia Doriga who now has appealed to the Full Court against this rejection.

The evidence which fell for consideration in this case ranged over a wide span of time, to say nothing of a vast mass of documentary material, and I think it convenient to deal with such evidence as far as possible segmentally in its relation to the grouping of the grounds of appeal. And so I begin by setting out, of necessity in some detail, the relevant history of events and the law bearing on the alleged acquisition of the subject land insofar as I can piece it together from the material before the Court.

The Acquisition

In June 1834 Queen Victoria declared portion of the southern coast of New Guinea to be a Protectorate of the Crown. On 6 November 1884, at Port Moresby, Commodore Erskine read a Proclamation in which the Protectorate was stated to be over the [Page 3] southern shores of New Guinea extending from the 141st meridian of east longitude to East Cape. Some years previously the Reverend Mr Lawes, a member of the London Missionary Society, had with other members established a Mission Station at Port Moresby and he interpreted the proclamation to such of the native population as was present. According to him those present were given the assurance that their lands would be secured to them and he took the view that they were also being impressed with the belief that no large influx of foreigners would be permitted. No intimation was given either Her Majesty would require the people to part with large tracts of land to the Government nor that a large influx of white men was likely to spread over the land. Amongst regulations made by Erskine for the governance of the Protectorate, was one (No 4) which stated: "No settlement or acquisition of land is on any account to be permitted."

In 1885 Major–General Sir Peter Scratchley was appointed as Special Commissioner for the Protectorate. He arrived in Port Moresby on 22 August of that year but a few months later became ill and he died at Cooktown in December 1885. In the, same month The Honourable John Douglas was appointed Special Commissioner. He arrived in Port Moresby in June 1886. His Commission recited that the Queen had been pleased to take under Her protection and jurisdiction the southern and south–eastern shores of New Guinea from the 141st meridian of east longitude eastward as far as East Cape, and the boundaries set out therein surrounded an area which is equivalent to the present mainland Papua together with the Trobriand, Woodlark, D'Entrecasteaux and Louisiade Islands. This forwarded to Douglas from London on 8 January 1886 and on the following day was sent to him a despatch from Colonel Stanley (who was then Secretary of State for the Colonies) in which it was stated that Sir Peter Scratchley's despatches showed that he did not fully understand that unless the territory included in the Protectorate became British soil by the declaration of Her Majesty's sovereignty over it the Queen did not possess and therefore could not delegate to him a general power to make laws which would bind persons other than her own subjects. Douglas was reminded that Her Majesty could by Order in Council under the Foreign Jurisdiction Acts establish courts and make such other regulations as she thought necessary for the control of her own subjects. He was further informed that the Queen had exercised this power in respect of the, South Seas by means of the Western Pacific Orders in Council and Orders extended to New Guinea and the adjacent Islands it was unnecessary to issue a fresh Order specially affecting the Protectorate, at any rate not until experience of the actual localities should have enabled the Special Commissioner to [Page 4] furnish the Secretary of State with some indication of the points to which attention should be specially directed. Apparently Douglas was also issued with another Commission as Deputy Commissioner under the Western Pacific Orders in Council to the intent that he should be invested with judicial authority so far as was conferrable by those Orders. Paragraph 6 of Stanley's despatch to Douglas was as follows:

6. It was considered that these powers would meet the requirements of the case on the first arrival of Sir Peter Scratchley, but it was not contemplated that they would be permanent, and, after consulting the Law Officers, Her Majesty's late Ministers decided that the Protectorate should in due time be added to the Queen's dominions, and I am advised by the Law Officers that this accession of dominion when effected must be regarded under the circumstances as having been acquired by settlement, and not by conquest or cession."

I shall refer later to the Report of the Law Officers.

On Douglas' arrival he had the services of Mr Anthony Musgrave as Deputy Assistant Commissioners an office which apparently the latter also held in the time of Sir Peter...