Tolililu and Tolikun v Director of Native Affairs [1965–66] PNGLR 12

JurisdictionPapua New Guinea
JudgeOllerenshaw ACJ
Judgment Date26 August 1963
Citation[1965–66] PNGLR 12
CourtSupreme Court
Year1963
Judgement NumberNo238A

Full Title: Tolililu and Tolikun v Director of Native Affairs [1965–66] PNGLR 12

Supreme Court: Ollerenshaw ACJ

Judgment Delivered: 26 August 1963

1 Land titles—East New Britain Province; Evidence—land title; Trusts

2 Commissioner of Titles' ruling overturned; Director of Native Affairs did not hold lands in trust for Sulka people; never a native reserve; ownerless discussed; Administration land; preliminary rulings in Re Sulka Land Reserve (Sulka No 1) (1961) No190 and No238; [1963] PNGLR 65

REAL PROPERTY—Ownerless land under German and other colonial legislation—Recognition of usufructuary rights—Abandonment of land by Tolais in Gazelle Peninsula—Appropriation by Fiscus—"Native reserve"—Land held or vested "on behalf of or for the benefit of any natives"—Succession to title by Director of Native Affairs—Succession by Administration—Declaration of trusts—Registration of trusts where Director trustee and otherwise—Position of Director in relation to natives under land legislation—Equitable interests in case of permitted occupation by Sulka refugees—Registration in German Land Register (Grundbuch) and cancellation thereof—Use of proclamations, reports and other formal and informal records in questions of title to land—Powers and practice of Commissioner of Titles in making orders—Appeal from Commissioner—Laws Repeal and Adopting Act 1921, s6, s9—Land Act 1922–1950, s4, s11, s68, s72—Lands Registration Act 1924–1939, s15, s16, s23, s24A, s27C, s38, s39 s132A, s145, s146—New Guinea Land Titles Restoration Act 1951–1955, s9, s13, s36, s38, s42—Laws of the Territory (Proof and Printing) Act 1951.

The Director of Native Affairs claimed to be trustee of certain lands in New Guinea on behalf of natives generally and not any particular community of natives. The Director claimed that the land was held by him under the Land Act 1922–1950 and alleged that, although he had not been registered as owner during the Australian administration of the Territory of New Guinea before the Japanese occupation, the Director who then held office had been entitled to such registration. The Director had not been appointed a trustee of the land under s72 of the Land Act and s15(2) of the Lands Registration Act 1924, but claimed that the Director was the successor in title of the German Fiscus in pursuance of s39 of the Lands Registration Act, contending that the Fiscus held the land on behalf of or for the benefit of natives. The Director claiming that he held the land as a trustee for natives generally, also claimed that he was entitled pursuant to s39(2) to have a Certificate of Title in which he was described "as a trustee for natives" and entitled pursuant to subs. (3) of the section to have the land described therein as a "native reserve".

The Commissioner of Titles under the New Guinea Lands Restoration 1951–1955 upheld the Director's claims that the Fiscus was the unregistered owner of the land and that the Director was the successor in title of the Fiscus. The Commissioner did not expressly find that the land was a "native reserve" or that it was held by or vested in the Fiscus "on behalf of or for the benefit of any natives". He found, however, "that the area was considered to be Government land devoted to the use of the Sulka immigrants", the Sulkas being native people encouraged by the German and Australian Administrations to use the land. The Commissioner thereupon proceeded, contrary to the Director's claim, to "declare" that the Director held the land in trust for the Sulkas, confining this trust to the Sulkas who were living on the land on the appointed date and their descendants. This declaration of trust was incorporated by the Commissioner in his Final Order and a memorial thereof was entered on the draft Certificate of Title which was annexed to the Order.

Certain Tolai natives appealed against the Commissioner's decision to the Supreme Court to obtain a discharge of the Final Order and a declaration that they were entitled, at the appointed date, to an equitable interest in the land as cestuis que trust, or, alternatively that they were owners of the land or a portion thereof under native customary rights.

Held:

(1) The land was "ownerless", that is free from any native rights of occupation or use when the Germans first took possession of German New Guinea and that it remained so at all material times during the German regime.

(2) That the subject land did not come within s39 of the Lands Registration Act 1924, as amended, as a "native reserve" or as "land which is held by or vested in the Fiscus . . . on behalf of or for the benefit of any natives" and that, therefore, the Director's predecessor did not succeed to the land as claimed by the Director. In fact the land was owned by the Fiscus in the sense that it held the full title to the land free from any usufructuary or other rights in natives and it had gone into possession or appropriated the land and put or encouraged the Sulkas to go upon it because its ownership of the land was so unencumbered. The Australian Administration in fact succeeded to the land and did not place it under the control of the Director as it could have done.

(3) The declaration of trusts and the endorsement on the Certificate of Title of a memorial or notification of these trusts was without justification in law or in fact.

Other matters discussed are indicated by the catch–words.

Cases referred to:

St Catherine's Milling and Lumber Company v R 14 App Cas 46; Amodu Tijani v Secretary for Southern Provinces, Nigeria [1921] 2 AC 399; Powell v Streatham Manor Nursing Home [1935] AC 243; Stool of Abinabina v Chief Kojo Enyimadu [1953] AC 207; Geita Sebea v The Territory of Papua (1941) 67 CLR 544; Attorney–General v Wheeler (1944) 45 SR (NSW) 321; Rogers v Rogers (1962) 3 FLR 398; Custodian of Expropriated Property and Phoebe Kroening v Commissioner of Native Affairs (Re Mortlock Islands) [1971–72] PNGLR 621; Bitapaka Virgin Land case, 13 July 1931 (Phillips CJ); Re Jomba Plain [1971–72] PNGLR 501 (Phillips CJ); Tedep v Custodian of Expropriated Property (Re Varzin Lands) (1963) No262A.

Appeal from Commissioner of Titles.

The facts are sufficiently stated in the judgment.

___________________________

Ollerenshaw ACJ: This is an appeal by way of rehearing brought by the appellants on behalf of the Tolai natives of the villages of Mar Mar and Ralabang. They appeal against the whole of a Final Order made on 28 July 1959, by the Commissioner of Titles under the New Guinea Land Titles Restoration Act 1951–1955, upon a claim by the Director of Native Affairs under s9 of that Act to have been entitled on the 10th January, 1952, the date appointed under the Act, to an estate of freehold as trustee in certain land lying not far to the south of their villages in the Gazelle Peninsula of New Britain.

The Director claimed that the land was held by, or vested in, him as a trustee on behalf of natives generally and not any particular community of natives. S13 of the New Guinea Land Titles Restoration Act, the section which provides for the cases in which the Director is to take steps to establish a title to land held by him for the benefit or on behalf of, or as trustee for, natives does not provide for such a case. That is, however, a small thing in the consideration of this curiously drafted Act.

In the proceedings in which he made his Final Order the learned Commissioner had before him also a reference of native rights under s36 of the New Guinea Land Titles Restoration Act 1951–1955 (which I shall call the "Restoration Act"). This, too, was made by the Director but on behalf of these Tolai natives of the villages of Mar Mar and Ralabang, who, in opposition to the Director's claim to be entitled as owner of the freehold, claimed that they were entitled to rights of ownership over the land, asserting as the basis of their claim that the land had never been alienated by their predecessors in title.

Although such a situation in which the Director and natives are asserting conflicting claims is not anywhere contemplated by the Act, its machinery has served, without objection, to have the issues between them presented and determined. S38 of the Act makes express provision for the Director to represent natives in proceedings under the Act and requires him to present their case. In the circumstances, this section has been ignored and before me the Tolais have had their case presented and argued by Mr Dudley Jones, a private practitioner, and they were represented before the learned Commissioner by a practitioner from the office of the Crown Solicitor.

It is, perhaps, not surprising that the draftsman overlooked the possibility of a conflict between natives and their Director because under all the relevant legislation he is their representative and the protector of their rights. Under the Lands...

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