Simbali, Nambumutka v Sacred Heart Mission (New Britain) Property Trust [1973] PNGLR 590; (1973) 47 ALJR 666; 2 ALR 203 [17/1972]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: McTiernan J:
• Judgment Date: 12 December 1973
• Citation: (1973) 47 ALJR 666; 2 ALR 203 [17/1972]
• Year: 1973

High Court: Barwick CJ, McTiernan J, Menzies J, Gibbs J, Mason J

Judgment Delivered: 12 December 1973

1 REAL PROPERTY—Land of former German missions vested in property trust—Absolute nature of title—Claim by natives—Duty of Land Titles Commission where claim by natives—Treaty of Peace 1919, art. 438—German Missions Act 1926 (New Guinea)—Lands Registration Act 1924 (New Guinea)—New Guinea Land Titles Restoration Act 1951 (Papua and New Guinea), s9, s10, s67—Roman Catholic Archdiocese of Rabaul Act 1969 (Papua and New Guinea).

Certain land in New Guinea in respect of which a Roman Catholic mission property trust claimed to be entitled to an estate in fee simple and to be registered as owner in accordance with s9 of the New Guinea Land Titles Restoration Act 1951 (Papua and New Guinea), as amended, was also claimed on behalf of a New Guinea native lineage. S9 provides for the making of claims by persons who claim to have been entitled to an interest in land and to be registered or entered in a register lost during the Japanese invasion of New Guinea. Before the first world war a Roman Catholic mission society was registered as owner in the register book kept by the German administration. This register book did not afford conclusive evidence of title. After the war the land was vested in a board of trustees by an order pursuant to the German Missions Act 1926 (New Guinea), which gave effect to art. 438 of the Treaty of Peace 1919 whereby the property which German missions possessed should continue to be devoted to missionary purposes and should be handed over to boards of trustees composed of persons of the same faith. By the German Missions Act a vesting order was in itself sufficient to vest property belonging to or held by a mission in the board of trustees and on the application of the board of trustees the vesting order was to be registered under any law for the time being in force relating to the registration of dealings with land and given effect to as if it were a grant or conveyance or memorandum or instrument of transfer of the land. Neither the vesting order nor the title of the board of trustees was registered under the Lands Registration Act 1924. The board of trustees was subsequently incorporated.

Held:

(1) By the vesting order the board of trustees acquired an absolute title to the land even if the German mission society did not have an indefeasible title.

(2) The board of trustees was a person entitled to be registered or entered in the lost register as owner within the meaning of s9 of the New Guinea Land Titles Restoration Act 1951, and a person who would have been entitled to registration but for the destruction of the register within the meaning of s10, and hence was entitled to registration independently of s67 of the Act.

Observations made on s67(3) of the New Guinea Land Titles Restoration Act 1951 and reference made to (a) the duty of the Land Titles Commission to form its own judgment on a question which arises for determination, and (b) the relative strengths of a claim based on registration in the German land register together with possession over a long period of time and a claim by natives supported by oral testimony.

(3) The conclusions were not affected by the Roman Catholic Archdiocese of Rabaul Act 1969. Semble, that Act did not have the effect of dissolving the Sacred Heart Mission (New Britain) Property Trust, but even if it did it did not follow that the proceedings in the Supreme Court abated.

The action of the appellant in filing, after argument had been completed, written submissions unrelated to the argument presented in the course of the appeal, by arrangement with the respondent without having obtained leave of the Court, disapproved.

Decision of the Supreme Court of Papua New Guinea (Full Court) affirmed.

Appeal from the Supreme Court of Papua New Guinea (Full Court).

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Barwick CJ, Menzies J, Gibbs J, Mason J:

This is an appeal by the representative of the Denangi lineage and the Director of District Administration against a judgment and order of the Full Court of the Supreme Court of Papua New Guinea declaring that the respondent Sacred Heart Mission (New Britain) Property Trust was at the appointed date, 10 January 1952, entitled to an interest in fee simple in certain lands at Toriu, New Britain, and to be entered in the Land Register Book in respect of that interest.

On 23 July 1952, the respondent made a claim that in accordance with s9 of the New Guinea Land Titles Restoration Act 1951 (hereinafter called "the Restoration Act"), it was a person claiming to have been entitled at the appointed date to a freehold estate in three parcels of land at Toriu and to be registered as the owner of those estates. The three parcels of land are known as Toriu Plantation, Toriu on the Beach and Toriu Residue. This appeal relates to the third parcel, Toriu Residue. The respondent's claim was considered by the Land Titles Commission under the Restoration Act. After a provisional order was made in 1966 in favour of the respondent in relation to each of the three parcels, the Director of District Administration referred to the Commission under s36 the question of native customary rights to which the Denangi lineage claimed to be entitled at the appointed date in each of the three parcels. We should mention that the order relating to Toriu Plantation declared that the respondent was entitled to an interest as a lessee only under an agricultural lease for ninety–nine years commencing on 1 July 1930, but this is a circumstance not material to the appeal.

The conflicting claims of the respondent and the indigenous claimants were determined by the Chief Commissioner. He held that the respondent was entitled at the appointed date to an estate in fee simple to Toriu Plantation and Toriu on the Beach (although he excised some areas from the parcels claimed by the respondent), subject to the payment of $500 to Nambumutka–Simbali on behalf of the indigenous people. As to Toriu Residue he held that the respondent had not established that it had an interest at the appointed date. The Chief Commissioner's decision was upheld by Prentice J on appeal to the Supreme Court, subject only to a variation in the date on which the payment of the sum of $500 was to be made. The respondent then paid that sum in accordance with the order of the Court and appealed against the judgment and order of the learned judge in so far as they related to the third parcel of land, Toriu Residue. It was on that appeal that the Full Court made its order in favour of the respondent.

The respondent's claim to a freehold title was based on the existence of a vesting order dated 24 December 1926, by which the Administrator of the Territory of New Guinea vested property of the Catholic Mission Society of the Most Sacred Heart of Jesus (hereinafter called "the mission society") in a board of trustees, the respondent's predecessors in title, pursuant to the German Missions Act 1926. The evidence of the respondent's title before the Land Titles Commission consisted of the vesting order, copies of entries relating to the three parcels of land in the official land register (Grundbuch) which was established and maintained by the German Colonial Administration in accordance with the laws of the German Empire and a copy of a German survey report dated 28 August 1907.

The land register consisted of four parts:

(a) a description of the property entered in the Register;

(b) particulars of the time and manner of acquisition by the owner of the property (the First Division);

(c) the permanent burdens and limitations of ownership (the Second Division); and

(d) particulars of charges and hypothecations (the Third Division).

It was common ground between the parties that under German laws in force in the colony registration in the register of the interest of an individual owner constituted evidence, but not conclusive evidence, that he was the owner of that interest. The materials upon which this proposition rests have been discussed in detail in an unreported judgment of the old Central Court of the Territory of New Guinea—Custodian of Expropriated Property and Phoebe Kroening v Commissioner of Native Affairs (Re Mortlock Islands) [1971–72] PNGLR 621 (29 April 1930).

A predecessor in title of the respondent, the mission society, was shown in the register as the owner of three parcels of land at Toriu. The three parcels and the information relating to them, contained in the register, were:

(1) A property lying on the Toriu River, having an area of 1,100 hectares, "uninhabited, uncultivated and surrounded on...