Topalanaua and Tonason v The Custodian of Expropriated Property and The Administration of the Territory of Papua and New Guinea (Re Nonga Lands) (1973) No754

• Jurisdiction: Papua New Guinea
• Judge: Prentice J
• Judgment Date: 31 July 1973
• Citation: (1973) No754
• Court: Supreme Court
• Year: 1973
• Judgement Number: No754

Full Title: Topalanaua and Tonason v The Custodian of Expropriated Property and The Administration of the Territory of Papua and New Guinea (Re Nonga Lands) (1973) No754

Supreme Court: Prentice J

Judgment Delivered: 31 July 1973

1 Land titles—East New Britain Province; Evidence—land title; Civil procedure; Evidence—fresh evidence

2 Fresh evidence admitted; appeal to be full rehearing, per New Guinea Land Titles Restoration Act, which was in force at time of original hearing; certificate of title issued since hearing could provide conclusive proof of ownership

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Prentice J: Certain preliminary arguments as to the competence of this appeal having been ruled upon, Mr K Ross for the respondent Custodian indicated that he would wish to tender further evidence consisting of a Certificate of Title issued in 1962 (but purporting to date from 1928), and documents from the Custodian's file showing the listing for sale and subsequent sale by the Custodian of the subject property. Mr Adams for the appellants stated that he did not wish to call fresh evidence.

I indicated that I would entertain the respective submissions, record the evidence, and then reserve my decision on the admissibility point.

In support of the application reliance is placed on s44(b) of the Acts Interpretation Act 1949 which states:

"Where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not... (b) affect the previous operation of the Act so repealed, or anything duly done or suffered under the Act so repealed; or (c) affect any right, privilege, obligation or liability acquired, accrued, or incurred under the Act so repealed . . . "

The effect of this section is, it is said, that the appeal procedures are to be those allowed for by s55 of the New Guinea Land Titles Restoration Act 1951 as it was as at 21 September, 1960, the date of initiation of the appeal–despite the repeal of that section in 1963 by s40 of the Amending Act of 1963 (in effect from 23 May 1963).

S55 provided formerly as follows:

"(1) An appeal under the last preceding section [i.e. from a final order of the Commissioner] shall be by way or rehearing. (2) On any such appeal the Supreme Court may (a) receive further evidence; and . . ."

As I understand...