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: Kelly J:
• Judgment Date: 28 October 1971
• Court: Supreme Court
• Citation: [1974] PNGLR 349
• Year: 1974
• Judgement Number: No649

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

Supreme Court: Kelly J

Judgment Delivered: 28 October 1971

1 Land titles—Morobe Province; Compensation

2 Ownership by native custom upheld; 1927 resumption valid; $2,400 compensation plus interest ordered; reversed in FC36; [1974] PNGLR 349 at 410

___________________________

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 land (or rather an area slightly smaller in extent than that contained in the present Certificate of Title, although the difference is not material) is said to have been occupied by "The Colonial company The New Guinea Company, of Berlin" (to which I shall refer as "the New Guinea Company") on 5 April 1900. On 25 August 1910, the New Guinea Company was entered as owner of the land in the "Land Register of the Colony of German New Guinea Finch Haven" (to which I shall refer as "the Ground Book") in pursuance of that occupation and of the Imperial Governor's Certificate of 15 May 1903.

In 1920 pursuant to the provisions of the Expropriation Act 1920 the subject land purportedly became vested in the Public Trustee and subsequently in the Custodian of Expropriated Property. In 1927 by a notice dated 27 August 1927, published in the New Guinea Gazette on 31 August 1927, the defendant purported to resume the land under s69 of the Land Act 1922–1927. The evidence does not show whether or not the land or any part of it was thereafter brought under the Lands Registration Act 1924 (as subsequently amended) although preliminary steps for that purpose were taken in 1934 in respect of part of the land within the then town boundary of the Town of Lae.

Following the making of a provisional order on 9 November 1953, the Land Titles Commission on 21st September, 1965, made a final order under the New Guinea Land Titles Restoration Act 1951–1963 establishing absolute ownership by the defendant and declaring that there were no native customary rights retained by a native or native community. Pursuant to that order on 18 January 1966, a Certificate of Title issued and the defendant became registered as registered proprietor of the land pursuant to the provisions of the Lands Registration Act 1924–1962.

The plaintiffs' claims proceed on several alternative bases. Firstly, they set up that between them the various groups represented in these proceedings as those groups were then constituted were the owners by native custom of the whole of the subject land prior to and as at 1900 and that this being so and also for other reasons in law with which it is not necessary to deal at this stage the New Guinea Company did not validly acquire the land in 1900 as it purported to do and that the subsequent entry in the Ground Book did not operate to create any title to the land in the New Guinea Company. It follows of course that if that claim is well founded the land did not vest in the Custodian of Expropriated Property and the plaintiffs then claim that at the time of the purported resumption in 1927 the various groups were still owners of the whole of the land, each of them owning a defined portion of it.

The groups represented belong to three distinct major groups. The Tumatu, Agatu, Gwatu, Apo, Busuram and Wapigurhu groups, all of whom now reside in Butibum Village, are collectively referred to as "the Butibams" (or "Butibums"). The Luhu, Tia, Kamkumun Uapu, Hiwapa (mis–spelt in the title as Miwapa), Wapi, Mambu No 1, Mambu No 2 (the last three named groups being in fact sub–groups of the Wapi clan) and Kamkumunlu, all of whom now reside in Kamkumun Village, are collectively referred to as "the Kamkumuns". The Labu Tale, Labu Miti and Labu Butu village groups are collectively referred to as "the Labus". On the third day of the hearing senior counsel who appeared for all the plaintiffs indicated that the last three named plaintiffs representing the three Labu village groups now recognise that at the relevant times the owners of the land that they claim were really the Butibums and that the claim of the Labus fell short of complete ownership and was limited to rights of use and occupation by permission of the Butibums. Thenceforth the Butibums pursued their claim in regard to the land originally claimed by the Labus as owner and in the further and better particulars subsequently furnished by the plaintiffs there is no land shown as having been in the ownership of the Labus.

The plaintiffs further claim that the notice of resumption given in 1927 was wholly ineffective and inoperative and did not operate to effect a resumption of the land from the true owners. Alternatively, they say that if and in so far as the land was properly and effectively resumed by the defendant it thereupon became obliged to pay to the plaintiffs or their predecessors in title compensation for the resumption of the land pursuant to the provisions of s71 of the Land Act 1922–1927 and that the defendant failed to pay such compensation.

The next claim by the plaintiffs proceeds on the assumption that the notice of resumption was ineffective and that the plaintiffs or their predecessors in title were still the true owners of their respective areas of the land when the final order of the Land Titles Commission was made in favour of the defendant in September 1965 or alternatively as at January 1966 when the defendant became registered proprietor. Consequently they claim mesne profits from the date of resumption until the date of the final order or alternatively the date of registration on the basis that the defendant had during that period wrongfully trespassed on the land and purported to act as the true owner of the land and had used it for its own purposes. They also claim to be entitled to compensation by reason of their having been deprived of their ownership, interest in and title to the land, as they are compelled to accept the position that the effect of the relevant legislative provisions is that at the institution of the action in April 1966 the defendant had an indefeasible title to the land. In so far as the claim for compensation is based on the final order of the Land Titles Commission it is brought under s41 of the Land Titles Commission Act 1951–1963 and alternatively in so far as it results from the actual registration consequent on that order, it is brought under s177 of the Lands Registration Act 1924–1962.

EVIDENTIARY QUESTIONS

The starting point is therefore an examination of the position as at 1900, but before doing so it is necessary to deal with certain evidentiary questions. Objection was taken to a question asked of the first witness Silas Tamake, the leader of one of the groups of the Wapi clan, the question being—"Were there any customary lands of the Kamkumuns between the Bumbu and the Markham?", it being understood that the witness was being asked to answer this question on the basis of what he was told by his grandfather or grandmother, so that the answer would necessarily be hearsay. It was sought to justify reception of this evidence on two bases; one as constituting evidence of native custom under the Native Customs (Recognition) Act 1963 and so admissible under the terms of that Act and the other as a declaration by a deceased person concerning either public or general rights and so admissible under common law as an exception to what is generally referred to as the hearsay...