[1973] PNGLR 34

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

BLASIUS TIRUPIA AND OTHERS

V

THE ADMINISTRATION OF THE TERRITORY OF 
PAPUA AND NEW GUINEA

AND

BLASIUS TIRUPIA AND ANOTHER

V

THE ADMINISTRATION OF THE TERRITORY OF 
PAPUA AND NEW GUINEA

AND

ISAK TANDE

V

THE ADMINISTRATION OF THE TERRITORY OF 
PAPUA AND NEW GUINEA
(RE JAPLIK AND VUNAPALADIG, NO. 2)

Port Moresby
Frost SPJ Clarkson Prentice JJ

24 April 1972
26 April 1972
4-5 May 1972
7 July 1972

REAL PROPERTY - Jurisdiction of Supreme Court - Declaration as to Title - Registered proprietor may seek relief in Supreme Court without first going to Land Titles Commission for declaration as to title.

INTERPRETATION OF STATUTES - No genuine dispute concerning ownership to land by native custom exists when a party is precluded by law from raising such a claim - Land Titles Commission Ordinance 1962-1970, s. 15[xix]1.

INTERPRETATION OF STATUTES - Section 16 of the Land Titles Commission Ordinance removes from its field of inquiry and thus its jurisdiction any interest in land the subject of a registered title - Land Titles Commission Ordinance 1962-1970, s. 16[xx]2.

INTERPRETATION OF STATUTES - The effect of s. 2 of the Land Titles Commission (Declaratory) Ordinance was to make final the order made by Commissioner of Titles decisions of the Land Titles Commission - Land Titles Commission (Declaratory) Ordinance 1969, s. 2[xxi]3.

COURTS AND JUDGES - Jurisdiction of Land Titles Commission - A claim to registered title with no reference to customary rights cannot be brought within jurisdiction of the Land Titles Commission by an ineffective and inadmissible reference to customary rights.

In these three actions the respondent sought against the appellants possession of lands of which it claimed to be the registered proprietor under the Lands Registration Ordinance 1924-1969. The appellants did not admit that the respondent was the registered proprietor of the subject land and in addition by way of defence and also counterclaim set up that they were the true owners of the land by virtue of native customary right. To these additional matters the respondent demurred and the demurrers were referred to the Full Court which gave its decision on 1st July, 1971. The Full Court allowed the demurrers to the defences by holding in effect that upon registration under the Lands Registration Ordinance any native land rights survived against the registered proprietor only to the extent that they were recognized on the title and that the rights the appellants sought to set up were not so recognized. The demurrers against the counterclaims were also allowed on the ground that the appellants’ claims asserting native customary ownership were within the exclusive jurisdiction of the Land Titles Commission.

Subsequently, the appellants were allowed to amend their defences by setting up that the Supreme Court had no jurisdiction to hear and determine the respondent’s claims.

As the matters came before the trial judge, the respondent was claiming in ejectment the right to possession of certain lands in right of ownership through a registered title. At the date of hearing the sole defences consisted of assertions that the title was “not admitted” and of a claim that the Supreme Court had no jurisdiction to hear the claim. The denial of jurisdiction was based upon s. 15 of the Land Titles Commission Ordinance 1962-1968, by which exclusive jurisdiction to determine disputes as to whether land is or is not native land and as to ownership by native custom or right by native custom to use land is vested in the Land Titles Commission. His Honour decided the issue as to jurisdiction upon a consideration of the pleadings before him and the issues to be decided thereunder; he came to the conclusion that the determination of a dispute which fell within s. 15 would not be involved in a decision of those issues and that he had jurisdiction to continue to the making of orders.

Held

By the Full Court, that the appeals be dismissed and the orders of the trial judge be affirmed:

(1)      (Frost S.P.J. and Clarkson J. (Prentice J. concurring).) A registered proprietor may seek relief in the Supreme Court in respect of a registered interest in land and need not first go to the Land Titles Commission for a declaration as to title to that interest in the land.

(2)      (Frost S.P.J. and Clarkson J.) Where the respondent sets up a registered title and the appellants are precluded by law from putting in opposition to it a claim based on native customary right it is unreal to say that there is a genuine dispute concerning ownership by native custom or whether the land is or is not native land.

(Per Prentice J.) Where the effect of legislation and a title issued thereunder is that “no native rights can be said to exist” then no “dispute” within the meaning of s. 15 of the Land Titles Commission Ordinance can exist.

(3)      (Frost S.P.J. and Clarkson J.) The proper construction of s. 16 of the Land Titles Commission Ordinance is that it removes from the Land Titles Commission’s field of inquiry and therefore from its jurisdiction any interest in land the subject of a registered title. It does not give the Land Titles Commission the privilege of undertaking a pointless inquiry and of making an ineffectual order and thus needlessly delaying the enforcement of the registered proprietor’s rights.

(Per Prentice J.) In so far as s. 16 of the Land Titles Commission Ordinance predicates a decision of the Land Titles Commission which is in conflict with a title previously registered and enunciates that to the extent of the conflict the title shall prevail, it clearly contemplates the possibility of an inquiry into the extent to which the title shall prevail and the procedures enabling it to prevail against the Land Titles Commission decision. It seems clear that such inquiry and procedures are contemplated in a form other than the Land Titles Commission.

(4)      (Frost S.P.J. and Clarkson J.) A claim based on registered title and containing no reference to customary rights is outside the Land Titles Commission’s jurisdiction and cannot be brought within its jurisdiction by reference to an ineffective and inadmissible defence based on customary rights.

(5)      (Frost S.P.J. and Clarkson J.) The Land Titles Commission (Declaratory) Ordinance applies to all final orders under the New Guinea Land Titles Declaration Ordinance 1951-1968 whether made before or after the 1962 amending Ordinance.

(Per Prentice J.) (Frost S.P.J. and Clarkson J. concurring.) The word “such” in s. 2 of the Land Titles Commission (Declaratory) Ordinance means “of the same kind as something mentioned, of the like kind, similar, in the same category” and this includes final orders of the Commissioner of Titles made before 1963 as well as decisions of the Land Titles Commission.

Dictum of Kelly J. in Director of District Administration v. Administration of the Territory of Papua and New Guinea (Re Madina) [1971-1972] P.N.G.L.R. 304, not followed.

Appeals

The relevant facts and arguments of counsel appear sufficiently in the judgments below.

Counsel

R. Gyles, for the appellants.
A. Croft, for the respondent.
Cur. adv. vult.

7 July 1972

FROST SPJ CLARKSON J:  In these three actions the respondent sought against the appellants possession of lands of which it claimed to be the registered proprietor under the Lands Registration Ordinance 1924-1969. The appellants did not admit that the respondent was the registered proprietor of the subject land and in addition by way of defence and also counterclaim set up that they were the true owners of the land, by virtue of native customary right. To these additional matters the respondent demurred and the demurrers were referred to the Full Court which gave its decision on 1st July, 1971. The Full Court allowed the demurrers to the defences by holding in effect that upon registration under the Lands Registration Ordinance any native land rights survived against the registered proprietor only to the extent that they were recognized on the title and that the rights the appellants sought to set up were not so recognized. The demurrers against the counterclaims were also allowed on the ground that the appellants’ claims asserting native customary ownership were within the exclusive jurisdiction of the Land Titles Commission.

Subsequently, the appellants were allowed to amend their defences by setting up that the Supreme Court had no jurisdiction to hear and determine the respondent’s claims.

As the matters came before the trial judge, the respondent was claiming in ejectment the right to possession of certain lands in right of ownership through a registered title. At the date of hearing, the sole defences (setting or aside those alleging laches and delay—which were not proceeded with), consisted of assertions that the title was “not admitted” and of a claim that the Supreme Court had no jurisdiction to hear the claim. The denial of jurisdiction was based upon s. 15 of the Land Titles Commission Ordinance 1962-1968, by which exclusive jurisdiction to determine disputes as to whether land is or is not native land and as to ownership by native custom or right by native custom to use land is vested in the Land Titles Commission. His Honour decided the issue as to jurisdiction upon a consideration of the pleadings before him and the issues to be decided thereunder; and he came to the conclusion that the determination of a dispute which fell within s. 15 would not be involved in a decision of those issues and that he had jurisdiction to continue to the making of orders.

The appellants’ principal contention on the appeal was that there was a dispute as to whether the land is or is not native land; that this dispute fell within the exclusive jurisdiction of the Land Titles Commission and for that reason the Full Court in the demurrer proceedings had said that the Supreme Court had no jurisdiction to deal with the appellants’ counterclaim. But, say the appellants, this is one dispute between two parties and if one party to it can obtain no standing before the Supreme Court, nor can the other party, and the trial judge should have held he had no jurisdiction to consider the respondent’s claim in the same way as the Full Court held the Supreme Court had no jurisdiction to entertain the appellants’ claim.

The respondent’s first submission was that on the pleadings and the evidence the situation was not one falling within s. 15 of the Land Titles Commission Ordinance. If it were, the respondent said, the trial judge has not purported to exercise any jurisdiction reposed exclusively in the Land Titles Commission. If there is any doubt, the problem should be approached on the basis that the clearest words should be required to deprive the Supreme Court of jurisdiction and with the knowledge that, granted jurisdiction, the Land Titles Commission could not, and the Supreme Court could give the sort of relief claimed.

The argument as to jurisdiction raised by the appellants was not put forward as a final answer for all time to the respondent’s claim but rather as a delaying action. The appellants’ contention was that the respondent, armed with its registered title, should first have gone to the Land Titles Commission for an order in its favour—which for reasons discussed by the Full Court could not have been successfully opposed nor refused—and should then have instituted proceedings in the Supreme Court for the relief now claimed, relying on the final and conclusive order of the Land Titles Commission.

The learned trial judge when considering whether he had jurisdiction saw the first question as being whether on the pleadings it could be said that there was a final and conclusive determination that the land was not native land. Having found there was no such detemination he went on to consider what he described as the real question, namely, whether on the pleadings there could be said to be a dispute on any matter over which the Land Titles Commission could be given exclusive jurisdiction. He rightly described the ejectment proceedings as determining who was entitled to possession and pointed out that the respondent, being out of possession, was compelled to show it was the true owner notwithstanding that judgment would not be conclusive as to the title of the parties. He held that the respondent’s claim, based on its registered title, and the appellants’ merely putting the respondent to proof of that claim did not thereby raise a dispute as to ownership by native custom nor as to whether the land is or is not native land.

The Full Court had held that the appellants’ claim to ownership and possession derived from native customary right was no defence to the respondent’s claim based on its registered title. The Full Court said, “whatever the events preceding the issue of the certificate of title, upon registration native land rights survive against the registered proprietor only to the extent that they are recognized on the title.”

The extent to which the Land Titles Commission is inhibited by s. 16 of the Land Titles Commission Ordinance is substantial. It cannot make an effective order in conflict with a certificate of title. It could not allow a challenge to a registered title on the grounds of fraud or recognize an unregistered right of way or give effect to any of the other exceptions listed in s. 68 of the Lands Registration Ordinance as exceptions to the paramountcy of a registered interest. Before the Commission a certificate of title is inviolable and as to any matter of which the certificate of title speaks the Commission can say no more and no less.

In our view the appellants’ argument that this Court has no jurisdiction until an order is obtained from the Land Titles Commission is answered by the fact that the registered title cannot be challenged nor denied and, therefore, cannot be disputed by reference to unregistered native land rights. It was for that reason the demurrers to the defence were allowed and what then remained on the pleadings was not a dispute of the nature described in s. 15 (1) of the Land Titles Commission Ordinance.

We do not overlook that a dispute may have many facets, nor that “a dispute may exist though it may be plain enough that in point of fact it is certain to be resolved against the party raising it.” Plucis v. Fryer[xxii]4. But where the respondent sets up a registered title and the appellants are precluded by law from putting in opposition to it a claim based on native customary right it seems to us unreal to say that there can be any genuine dispute concerning ownership by native custom or whether the land is or is not native land. The very matter which is said to be the subject matter of the dispute cannot be raised. That, as we see it, is the position here.

There is a further criticism to be made of the submission that the respondent should first have gone to the Land Titles Commission for a declaration as to title. The claim, based as it would be on the registered title and containing no reference to customary rights would, standing alone, appear to be completely outside the Commission’s jurisdiction and it could not be brought within the Commission’s jurisdiction by reference to an ineffective and inadmissible answer based on customary rights.

These remarks refer only to the situation with which we are now concerned, where the registered proprietor has sought relief in the Supreme Court in respect to a registered interest and no proceedings have been instituted in the Land Titles Commission. It is unnecessary here to consider what the position might have been if proceedings had been instituted in the Land Titles Commission or if the Administration’s interest was not the subject of a registered title.

At first sight, s. 16 of the Land Titles Commission Ordinance appears to contemplate the making of orders by the Land Titles Commission in conflict with a registered title and s. 2 of the Declaratory Ordinance contains the same notion. However, we think that on a proper construction s. 16 should be recognized as removing from the Commission’s field of inquiry and therefore from its jurisdiction any interest in land the subject of a registered title, rather than as giving the Commission the privilege of undertaking a pointless inquiry and of making an ineffectual order, and thus needlessly delaying enforcement of the registered proprietor’s rights.

The appellants’ counsel thought some difficulty arose from this approach in view of the decision of the Full Court in the demurrer proceedings relating to the counterclaim. If the respondent’s present claim for possession were within the jurisdiction of this Court so, it was argued, should be the counterclaim of the appellants for trespass; but this was denied by the Full Court. In the demurrer proceedings the Full Court without elaboration allowed the demurrer to the counterclaim on the ground that s. 15 of the Land Titles Commission Ordinance deprived this Court of jurisdiction to entertain the counterclaim.

It must be remembered that at that stage no question had arisen as to the jurisdiction of the Supreme Court to entertain the respondent’s action. But the Full Court in allowing the demurrer to the defence founded on the conclusiveness of the respondent’s registered title. Section 16 was referred to in support of this conclusion but it was not then necessary to go further.

The Full Court said in effect that this Court had no jurisdiction to entertain the appellants’ claims for a declaration as to customary title and for damages for trespass. But this conclusion was not based on any view that whilst possession was cognizable, title was not. It depended entirely on the fact that the appellants’ claims to ownership and to possession were separate claims by way of cross-action, both founded on native customary right, and therefore were claims respectively to ownership by native custom and to the right by native custom to use land, as described in s. 15 of the Land Titles Commission Ordinance. These were matters clearly excluded by s. 15 from the jurisdiction of the Supreme Court, and the Full Court on the pleadings before it did not proceed beyond this initial stage.

A preliminary question arose as to the admissibility of certain affidavits tendered by the appellants. These were prepared by the respondent for use in interlocutory proceedings. The relevant effect of them was to show that prior to the commencement of proceedings the respondent was aware that its registered title to the subject land was disputed by the appellant who claimed to own the land by virtue of customary native right.

We were told that the trial judge declined to look at the affidavits. This Court admitted them conditionally and reserved its ruling on their admissibility. Counsel for the appellants submitted that on the basis that the affidavits were admissible he sought leave to amend the notice of appeal by adding the ground that the trial judge wrongly rejected them. Reference was made to the use in other proceedings of affidavits when a question of jurisdiction arises. See R. v. Nat Bell Liquors, Ltd.[xxiii]5 where the Judicial Committee adopted the statement of Lord Denman in R. v. Bolton[xxiv]6; R. v. Patents Appeal Tribunal Ex parte Baldwin & Francis Ltd.[xxv]7.

However, having regard to the views which we have expressed, it is unnecessary to decide whether they should have been admitted by the learned trial judge or as fresh evidence before this Court.

Counsel for the appellants referred us to a number of decisions relating to the ouster of the Supreme Court’s jurisdiction and we do not think there is anything in these submissions with which we disagree although we doubt their relevance to the critical issue. He also referred to the doctrine of issue estoppel and argued that by analogy, and as a result of the trial judge’s decision, the appellants could be estopped from disputing the respondent’s title in the future.

It is true that so long as the respondent retains its registered interest and the appellants’ claims are for unregistered interests based on native customary rights, the appellants are precluded from setting up their claims against that of the respondent in any forum, but this follows from the provisions of the Lands Registration Ordinance and s. 16 of the Land Titles Commission Ordinance without recourse to the doctrine of issue estoppel or anything analogous to it.

There is a further aspect which we think should be commented on and that is the standing of an order such as that here, made under the New Guinea Land Titles Restoration Ordinance 1951-1968 by the Commissioner of Titles, before the constitution of the Land Titles Commission. Little attention was given to this matter at the hearing but it is of direct relevance in that it provides further support for the conclusion we have reached.

It will be recalled that the appellants’ contention was that only a final and conclusive order in the respondent’s favour made by the Land Titles Commission could give the Supreme Court jurisdiction. In our view the three final orders of 21st November, 1953, made by the Commissioner of Titles are orders which meet this description.

When the restoration procedure was introduced, no special force was attributed to an order made. The 1951 Ordinance provided merely (s. 47) that the Registrar of Titles should give effect to a final order of the Commissioner of Titles made under the Ordinance. When this had been done, a successful applicant had a title registered under the Registration Ordinance with the indefeasibility conferred by that Ordinance. In 1962 by an amendment which came into operation in 1963 the Restoration Ordinance was amended by substituting the Land Titles Commission for the Commissioner of Titles as the body authorized to make orders under that Ordinance. At the same time, the Land Titles Commission was given exclusive jurisdiction to determine disputes and claims of the nature described in s. 15 (1) of the Land Titles Commission Ordinance and a decision of the Land Titles Commission on these matters only was given special force by virtue of s. 15 (2).

Whatever the true effect of s. 15 (2), it did not apply to any order of the Land Titles Commission made under the Restoration Ordinance which merely declared an entitlement to registration but which did not determine a dispute or claim of the kind referred to in s. 15 (1) of the Land Titles Commission Ordinance.

Thereafter then, there existed two sorts of decisions under the Restoration Ordinance: those of the Commissioner of Titles made prior to the 1962 amendment, and those of the Land Titles Commission subsequently made under the same legislation, and neither sort necessarily had the standing conferred by s. 15 (2) of the Land Titles Commission Ordinance on orders made pursuant to s. 15 (1). Section 51 of the 1962 amending Ordinance provided, in terms relevant to this inquiry, that a final order made by the Commissioner of Titles under the principal Ordinance (the Restoration Ordinance) before the commencement of the amending Ordinance “shall be deemed to have been made . . . . under the principal Ordinance as amended by this Ordinance”, i.e. as amended by the 1962 amending Ordinance. We defer comment on the effect of this provision to refer to the Land Titles Commission (Declaratory) Ordinance 1968, s. 2 (1) of which provides:

“(1)    For the avoidance of doubt, it is hereby declared that, except as provided by s. 16 of the Land Titles Commission Ordinance 1962-1968, a decision of the Land Titles Commission is for all purposes and as against all persons conclusive evidence of the ownership, as at the date of the decision, of the land the subject of the decision, and of rights, titles, estates and interests in the land, as set out in the decision.”

Subsection (2) of the same section reads:

“(2)    In sub-s. (1) of this section, the reference to a decision of the Land Titles Commission includes a reference to any such decision under the jurisdiction conferred by the New Guinea Land Titles Restoration Ordinance 1951-1962, as in force from time to time.”

The position then is that orders of the Land Titles Commission made in its jurisdiction conferred by s. 15 (1) of the Land Titles Commission Ordinance have the benefit of the cumulative force of s. 15 (2) of the Land Titles Commission Ordinance and s. 2 (1) of the Declaratory Ordinance, and orders of the Land Titles Commission made in its jurisdiction conferred by the Restoration Ordinance have the force attributed to them by s. 2 of the Declaratory Ordinance. But what of the orders of the Commissioner of Titles made under the Restoration Ordinance prior to the 1962 amendment?

The object of the 1968 Declaratory Ordinance was to quieten disputes as to title and many existing registered titles would still depend on final orders made by the Commissioner of Titles prior to 1963. It would seem unlikely then that final orders made after the 1962 amending Ordinance would be given a force not given to final orders made earlier.

In our view no such distinction was intended nor effected; on the proper construction of the legislation the Declaratory Ordinance applies to all final orders under the Restoration Ordinance whether made before or after the 1962 amending Ordinance.

The Land Titles Commission when constituted in 1963 took over the jurisdiction of the Commissioner of Titles under the Restoration Ordinance and the Native Land Commission, which had been charged with determining what land was held by native customary right and by whom, was abolished by the repeal of the Native Land Registration Ordinance 1952 and the Land Titles Commission thereafter exercised the jurisdiction conferred by the Land Titles Commission Ordinance.

It is noteworthy that in neither case was the jurisdiction of the existing body allowed to run down, so to speak. No provision was made for existing matters to be determined by the authority already dealing with them. On the contrary, the processes were brought to a complete halt. Section 4 of the Native Land Registration Ordinance (Repeal) Ordinance 1963 provided that all proceedings pending before a Native Land Commission should be dealt with by the Land Titles Commission “as though they were disputes as to ownership by native custom of, or the right by native custom to use, land.”

Similarly, in respect to the jurisdiction of the Commissioner of Titles exercised under the Restoration Ordinance, s. 50 of the 1962 amending Ordinance provided in effect that any application pending before the Commissioner of Titles should by force of the section be transferred to the Land Titles Commission and continued before the Commission “as if it had originated before the Commission”. It was obviously desirable that something should be said, as to the continuance or otherwise of the orders already made under these two Ordinances, and it was. As to orders of the Native Land Commission, s. 44 of the Land Titles Commission Ordinance stated that “for the purposes of this Ordinance, the Commission shall accept findings of the Native Land Commission . . .:” As to orders of the Commissioner of Titles under the Restoration Ordinance, s. 51 of the 1962 amending Ordinance provided as already noted that, inter alia, a final order of the Commissioner of Titles made before the amending Ordinance “shall be deemed to have been made” under the Restoration Ordinance as amended by the 1962 amending Ordinance.

The section does not expressly say the final order shall be deemed to have been made “by the Land Titles Commission” but in our view this addition is necessarily implied because under the Restoration Ordinance as amended by the 1962 amending Ordinance, i.e. the legislation under which the order is deemed to have been made, the body with exclusive power to make final orders was the Land Titles Commission. Only that body could make a final order under the amended legislation and any order purportedly made under the amended legislation by the Commissioner of Titles would have been a nullity. The concept of an order of the Commissioner of Titles becoming an order of the Land Titles Commission for the purposes of particular legislation will not surprise any lawyer familiar with the draftsman’s use of the process of deeming. Barton J. in Muller v. Dalgety & Co. Ltd.[xxvi]8 quotes Cave J. in R. v. Norfolk County Council[xxvii]9 as saying:

“Generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is deemed to be, and that, notwithstanding it is not that particular thing, nevertheless, for the purposes of the Act, it is to be deemed to be that thing.”

Therefore, when looking at the Restoration Ordinance as it stood at the time of the Declaratory Ordinance in 1969 one is required to treat a final order which had, before 1963, been made by the Commissioner of Titles as, for all purposes relevant to the legislation, a final order of the Land Titles Commission. The interpretation given by Prentice J. to the word “such” and the construction in the phrase “any such decision”, with which interpretation we agree, leads to the same result.

It will be seen that on this point we disagree with the conclusion reached by the learned trial judge and repeated by him in Re Madina[xxviii]10. We feel nevertheless that we should express our view that there is already in existence a final order deemed to be that of the Land Titles Commission and therefore conclusively denying the appellants’ claim. As we understand the appellants’ argument, this would satisfy their requirement that the respondent, before instituting these proceedings, should have the equivalent of a final order of the Land Titles Commission.

For the reasons given, the appeals should be dismissed. To give the appellants an opportunity to consider their position, further proceedings on the trial judge’s orders should be stayed for one month from today.

PRENTICE J:  In this matter I have had the advantage of reading the reasons for judgment of the other members of the court with which I concur. In deference to the interesting arguments of counsel I would wish to add some words of my own.

The appellants argued before this Court that his Honour the trial judge’s decisions in making orders for possession, necessarily involved the determination of a dispute under s. 15 of the Land Titles Commission Ordinance; and submitted that this Court is entitled to look at certain earlier pleadings which were struck out on demurrer by a differently constituted Full Court. (Incidentally, when in his judgment at page 4 of the appeal book, Kelly J. states that “the defendants by their defences asserted . . .”, I consider he was having regard to the question of parties—(1) whether those sued were properly sued, and (2) to the question of the time that ought to be allowed for vacating the lands claimed. I do not understand him to be saying he had had regard to the pleadings which had been struck out for the purpose of deciding the question of jurisdiction). They also ask this Court to regard certain affidavits filed in interlocutory proceedings between the parties. From a perusal of these materials they say, materials which his Honour the trial judge should have considered, it becomes apparent that his Honour’s orders were made without jurisdiction.

In making such submissions, the appellants concede that the result they seek would be the reference of a question of native customary title to the Land Titles Commission, but that this, as I understand their concession, must be decided adversely to them because of the statutory provisions regarding registered titles. They say in effect, that the only result could be one of delay in eviction—that following the decision of the Land Titles Commission against them, the Supreme Court could then be approached in ejectment proceedings. One finds difficulty why such second proceedings could not then be met by similar pleas to the jurisdiction, assuming the appellant natives did not accept the justness of the Commission’s then decision.

This Court was informed that his Honour the trial judge was asked to receive the above-mentioned affidavits on the issue of jurisdiction, and that he declined to do so. The affidavits should have been received it is said, and if necessary the grounds of appeal amended to allege an error by his Honour in so rejecting it. In my opinion his Honour was required in deciding the claim as to jurisdiction, to have regard to the issues before him, and in declining to entertain the material in these affidavits, even if one were to assume affidavit evidence to be admissible and appropriate, his Honour was in effect holding, and with respect I consider rightly (for reasons that will follow), that the affidavits were irrelevant to the question of the jurisdiction of the court to entertain the issues tendered. I would reject the affidavits.

Alternatively to the submission that Kelly J.’s decision directly involved the determination of a s. 15 “dispute” as to customary title to native land, it is said that the decision would work an issue estoppel on the question of title (ownership) that would inferentially determine such a “dispute”—inasmuch as the claim to possession (the direct issue involved) was founded on registered title.

As a further alternative the appellants contend that his Honour should have had regard, and therefore this Court should do so, to the counterclaims as they stood before the decision of the demurrer. They showed the appellants seeking a declaration of title, damages for trespass and an equitable declaration of trust. In so far, it is said, as the order of the Full Court on demurrer can be said to hold that each such counterclaim by the appellants raised a matter of dispute under s. 15, then this issue of ejectment, being like the claim in trespass founded on a right to possession, should also be held to raise a s. 15 dispute, being part of the one dispute that the court held to be justiciable only in the Land Titles Commission. Appellants’ counsel submits that the Full Court’s decision striking out the counterclaim, caedit questio in his favour. As I understand the argument, it stated that in so far as the Full Court decided that questions of declaration of trust, trespass and title, from the appellants’ side, raised a s. 15 dispute; then it should be held that the raising of a question of ejectment by the other side—the Administration, also raised a dispute that could only be decided in the Commission—because natives were involved. The claims from both sides as to title constituted one dispute which should be decided together in one forum, the Commission.

Dealing with this last submission first, I consider there is an essential difference between the claims. That of the appellants, including that in trespass, involved a claim to present possessory title, so expressed as to be based on claims to ownership by native custom of and the right by native custom to use, land, and that the land is native land (that is importing the definition from the Ordinances Interpretation Ordinance “land which is owned or possessed by a native or native community by virtue of rights of a proprietary or possessory kind which belongs to that native or native community and are regulated by native custom”). That of the respondent, on the pleadings, and in law, because of s. 16 of the Land Titles Commission Ordinance, (to which I shall refer later) involves an inquiry only as to whether a registered title to the land such as would support a claim to possession by the title holder—exists. In so far as s. 16 predicates a decision of the Land Titles Commission which is in conflict with a title previously registered and enunciates that to the extent of the conflict the title shall prevail; it clearly contemplates to my mind, the possibility of an inquiry into the extent to which the title shall prevail and procedures enabling it to prevail against the Land Titles Commission decision. It seems clear that such inquiry and procedures are contemplated in a forum other than Land Titles Commission (and of course the Commission is not expressly given powers equivalent to those available in the Supreme Court by way of damages for trespass, injunction and ejectment).

The case of Bobby Gaigo v. Logae Enai and The Administration; In re Hitau[xxix]11, is an example of the way in which ownership could be declared in favour of native claimants only to be nullified by the subsequent discovery of a registered certificate of title.

I consider there is much force in addition in the submission of counsel for the respondent, that it needs the clearest words to take away a power (such as that in ejectment) which a superior court basically has, particularly where that power does not appear to be vested as an alternative in another tribunal (here, in the Land Titles Commission) (cf. Troup v. Ricardo[xxx]12). Applying and adopting the words of Cranworth L.C. in Fleming v. Self[xxxi]13—the total absence of adequate machinery for enabling the Land Titles Commission to enforce a right of ejectment, affords cogent evidence that such an aspect of a land dispute is not within its competency.

There are other areas in which jurisdiction in the Supreme Court must be found—e.g. in any attempt to strike out for fraud, a title otherwise effective to eliminate native customary claims to land by virtue of s. 16 of the Land Titles Commission Ordinance, and ss. 57 and 60, of the Lands Registration Ordinance 1924-1939.

As to the submission based on estoppels, it is to be remembered as his Honour pointed out, that the essential matter for decision between the parties on the pleadings as they stood, was the immediate right to possession of the land claimed (Cohen v. Lapin[xxxii]14 and Scruby v. Hoggan[xxxiii]15). It is not without significance that by their pleadings the appellants were merely putting in issue the registered title and were not themselves asserting possession and relying on possession. The outcome of the demurrer proceedings was that a claim to native customary ownership could not be ventilated before the trial judge. It could not be put in issue before him. For this reason, firstly, it appears to me that no question of issue estoppel contrary to the claim of customary title could be erected by the decision of the trial judge. The second reason why no such estoppel could be worked lies in the wording and effect of s. 16 of the Land Titles Commission Ordinance. To my mind the force of the section is such that once a registered title has been shown as was claimed to be possible in these matters on the one hand and denied on the other, then s. 16 operated rather than an estoppel, to bar any effective claim to any customary title being raised. The same result is achieved, it seems to me, from the effect of s. 68 of the Lands Registration Ordinance, and ss. 36 and 37 of the Land Titles Restoration Ordinance. As the High Court has pointed out in a decision in a case involving a title resulting from a decision of the Commissioner of Titles in 1960, as this one is (Custodian of Expropriated Property v. Tedep[xxxiv]16) “production of a clean certificate of title is to be accepted as conclusive of the existence of native rights . . . if a claimant can produce a clear certificate of title no native rights can be said to exist in the land . . . unless . . .” (a qualification not here relevant). I am of the opinion that where the effect of legislation and a title issued thereunder is that “no native rights can be said to exist” then no “dispute” within the meaning of s. 15 of the Land Titles Commission Ordinance can exist.

Alternatively, applying Frost S.P.J.’s and Clarkson J.’s reasoning that a final order made by the Commissioner of Titles is for all purposes relevant to the restoration legislation a final order of the Land Titles Commission, then it would seem the Land Titles Commission could not be approached again. No “dispute” could be said to exist.

Finally there is one further consideration which I feel requires the rejection of the appellants’ submissions. With respect, I am of the opinion that his Honour the trial judge was incorrect in regarding s. 2 of the Land Titles Commission (Declaratory) Ordinance 1968 as limited by the use of sub-s. (2) of the word “such”, to decisions of the Commission only. It appears to me that the word “such” is used therein not as meaning “the previously described or specified . . .” but as indicating “of the same kind as something mentioned, of the like kind, similar, in the same category”. As Dixon J., as he then was, pointed out in H. Jones & Co. Pty. Ltd. v. Kingborough Corporation[xxxv]17 “difficulties caused by the ill-considered resort of draftsmen to the use of the word ‘such’ are to be met by a readiness on the part of the courts to mould the application of that not inflexible relative word so as not to defeat the intention gathered from the context.” That this subsection provides “an occasion when the relative ‘such’ ought to be referred not to all the characteristics contained in the previous description of the antecedent but to the more general characteristics to which the context appears properly to attract it,” is indicated by the reference to the New Guinea Land Titles Restoration Ordinance 1951-1962 “as in force from time to time.”

Section 15 (2) of the Land Titles Commission Ordinance on its face, is protective only to a decision as to customary native titles under s. 15 (1). By the Declaratory Ordinance of 1968 the legislation in s. 2 (1) intended to declare effective for all purposes, all decisions of the Land Titles Commission (including Restoration Ordinance decisions). Having achieved that purpose by sub-s. (1), then sub-s. (2) would have no meaning or effect if it were to cover only Restoration Ordinance decisions of the Commission, and not Restoration Ordinance decisions of another authority viz.: The Commissioner of Titles. The reference in sub-s. (2) to the New Guinea Land Titles Restoration Ordinance 1951-1962 as in force from time to time, is significant because a proper reference at the time of passing the Declaratory Ordinance (1968) would have been “1951-1968”, if it were intended that the Declaratory Ordinance by this subsection was to operate only on decisions thereafter under the Restoration Ordinance.

The Restoration Ordinance “1951-1962” is the Ordinance as in force at the time the Commission took over the Restoration jurisdiction, but had as yet made no decisions under it. The only decisions under the Restoration legislation at that time were those by the Commissioner of Titles. The only work that can be given to sub-s. (2) is in relation to Restoration Ordinance decisions between 1951 and 1962—all made by the Commissioner and not by the Commission; unless it was intended to effect only decisions made between 23rd May, 1963, (date of commencement of No. 8 of 1963 which changed the citation to “. . . Restoration Ordinance 1951-1962”) and 5th March, 1964, (date of commencement of No. 58 of 1963 which effected a change of title to “. . . Restoration Ordinance 1951-1963”); a result for which no purpose is apparent.

I am of the opinion that thereby the Land Titles Commission (Declaratory) Ordinance was intending to declare a conclusive effect for “like decisions” under the New Guinea Land Titles Restoration Ordinance—any such decision in the period 1951-1962 ex necessitate being those of another authority.

If my conclusion in this regard be correct, it would seem that the section should be read so as to debar further contest in the Land Titles Commission for the purpose of setting up titles to ownership contrary to those declared by a Commissioner of Titles which have become the subject of a registered certificate of title.

I am of the opinion that his Honour made no error of law in holding that s. 15 of the Land Titles Commission Ordinance did not operate so as to deprive the Supreme Court of jurisdiction in ejectment in these actions.

I would dismiss the appeal.

Appeals dismissed.

Orders of the trial judge affirmed.

Further proceedings stayed for one month.

Solicitor for the appellants: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[xix]Section 15 of the Land Titles Commission Ordinance 1962-1970 is as follows:—

(1)        The Commission has, subject to this Ordinance exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by native custom of, or the right by native custom to use, any land, water or reef, including a dispute as to whether any land is or is not native land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.

(2)        After the period limited by Part V of this Ordinance for review of or appeal against a decision of the Commission has expired, and any proceedings on review have been completed and any appeals have been decided—

(a)        a determination of the Commission under this or any other Ordinance is, subject to Section 16 of this Ordinance, for all purposes and as against all persons conclusive evidence of the ownership, as at the date of the decision, of the land the subject of the decision and of rights, titles, estates and interests in the land as set out in the decision; and

(b)        the Commission shall forward a copy of its decision to the Registrar of Titles, who shall make such entries in Registers kept by him and issue such documents as are necessary, or as are directed by the Commission, to give effect to the decision of the Commission.

[xx]Section 16 of the Land Titles Commission Ordinance 1962-1970, is as follows:—

16.        Subject to this section, where a decision of the Commission is in conflict with a title previously registered under the Real Property Ordinance 1913-1955 of the Territory of Papua or the Lands Registration Ordinance 1924-1955 of the Territory of New Guinea, that registered title shall, to the extent of the conflict, prevail.

[xxi]        Section 2 of the Land Titles Commission (Declaratory) Ordinance 1969 is as follows:—

2.         (1) For the avoidance of doubt, it is hereby declared that, except as provided by Section 16 of the Land Titles Commission Ordinance 1962-1968, a decision of the Land Titles Commission is for all purposes and as against all persons conclusive evidence of the ownership, as at the date of the decision, of the land the subject of the decision, and of rights, titles, estates and interests in the land, as set out in the decision.

(2)        In Subsection (1) of this section, the reference to a decision of the Land Titles Commission includes a reference to any such decision under the jurisdiction conferred by the New Guinea Land Titles Restoration Ordinance 1951-1962, as in force from time to time.

[xxii](1967-68) 41 ALJR. 192, at p. 195.
[xxiii][1922] 2 AC. 128, at p. 153.
[xxiv](1841) 1 QB. 66, at p. 72; 113 E.R. 1054.
[xxv][1959] 1 QB. 105, at pp. 112-113.
[xxvi](1909) 9 CLR. 693, at p. 696.
[xxvii](1891) 60 LJQB. (N.S.) 379, at p. 380.
[xxviii] [1971-1972] PNGLR. 304.
[xxix] (1971-72) PNGLR. 150.
[xxx]4 De G. J. & S. 489, at p. 498; (1864) 46 E.R. 1008, at p. 1012.
[xxxi]3 De G. M. & G. 997, at p. 1030; (1854) 43 E.R. 390, at p. 400.
[xxxii](1924) 35 CLR. 247, at p. 254.
[xxxiii](1955) 55 S.R. (N.S.W.) 2, at pp. 11-12.
[xxxiv](1964) 113 CLR. 318, at pp. 336-337.
[xxxv](1950) 82 CLR. 282, at p. 319.