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Administration of the Territory of Papua and New Guinea v Tirupia, In Re Vunapaladig and Japalik Land [1971] PGLawRp 18; 1971 PNGLR 229 (1 July 1971)

[1971-72] PNGLR 229

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

THE ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA

V

BLASIUS TIRUPIA AND OTHERS
IN RE VUNAPALADIG AND JAPALIK LAND

Port Moresby
Minogue CJ Clarkson Kelly JJ

27-28 April 1971
1 July 1971

TORRENS SYSTEM - Registration of title - Indefeasibility of registered interest - Native land rights - Survival to extent that registered on title - Registered proprietor protected in absence of fraud - Duties of Director of District Services and Native Affairs - Duties of Administration-Director as agent of Administration - No legal or equitable duties imposed by Mandate - No fiduciary duties imposed by Statute - Validity of legislation - Land Registration Ordinance 1924-1969 ss. 57[cclxiii]1, 68[cclxiv]2, 69[cclxv]3.

TORRENS SYSTEM - Title by adverse possession - No title in New Guinea.

PRACTICE - Demurrer - Whether non-joinder of parties can be subject of demurrer.

PRACTICE - Equity - Conduct after action - What disentitles party to remedy sought - Immediate or necessary relation to equity sued for.

PRACTICE - Supreme Court - Jurisdiction - Native customary rights - Questions of ownership of land - Land Titles Commission Ordinance 1962-1970 s. 15[cclxvi]4.

The plaintiff, the Administration, claimed to be entitled as registered proprietor under the Torrens System to possession of two parcels of land in the East New Britain District known as Vunapaladig and Japalik respectively. The plaintiff claimed that the defendants wrongfully entered upon the respective parcels of land and wrongfully remained thereon. It issued writs claiming injunctions to restrain the defendants from repeating or continuing the trespasses complained of and also claiming possession of both parcels of land.

The plaintiff delivered statements of claim and the defendants delivered defences and counter-claims in all three actions. The plaintiff demurred to all the defences and counter-claims. The demurrers were set down for argument before the Full Court of the Supreme Court and by consent were all heard together.

By their defences the defendants sought to rely on a legal interest flowing directly from their uninterrupted possession from “time immemorial” and from the laws of the Territory and an equitable interest from their long and notorious possession which amounts to notice and an interest of such a nature that notwithstanding registration under the Torrens System it calls for recognition by the Court. The defendants submitted that the registration of the plaintiff’s predecessors in title was effected in breach of a fiduciary duty owed by the plaintiff to the native owners of the lands and that the plaintiff, having through its negligence, error or neglect brought about a situation where registration took place, could not now assert any rights thought to be flowing from its registration in derogation of the rights possessed by the defendants and the other members of their kinship groups which in effect amounted to rights of absolute ownership. The defendants also pleaded that an agreement had been reached between the plaintiff and the Custodian of Expropriated Property which resulted in an amendment to the Land Registration Ordinance 1924 whereby the rights of the defendants or their predecessors in title could be defeated. The defendants further relied on conduct by the plaintiff prior to and during the course of the action as disentitling it to a decision of the Court. The actions were also said to be defective by reason of the nonjoinder of all present members of the respective kinship groups.

By the counter-claims the principal relief sought in each case was a declaration that the defendants and the living members of the kinship group are the owners of the land and entitled to undisturbed and peaceful possession thereof or alternatively a declaration that the plaintiff holds its interest (if any) in the land upon trust for the group.

Held

(1) evat if nn the performancemance of statutory duties imposed upon him aimed at the protection of native rights to land the Director of District Services and Native Affairs was acting as the agent of the Administration it would not follow that the Ordinance which imposed those duties on him thereby imposed on the Administration a fiduciary duty towards persons who might possess native land rights, nor that the failure of the Director to carry out his statutory duties would amount to a breach of fiduciary duty on the part of the Administration.

(2) that whatever breach of duty there may have been by the Director or vicariously by the Administration could not avail the defendants against the clear and conclusive sionss. 5768 ofLaegistration Ordinandinance 192> 1924-1964-1969 whi9 which are supported by s.16 of the Land Titles Commission Ordinance 1963 and the effect of which is to confer an indefeasible legal title on the registered proprietor so that, 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 recognised on the title. Custodian of Expropriated Property v. Tedep [1964] HCA 75; (1964), 113 C.L.R. 318 applied;

(5) that the Supreme Coart c inot inquire as to the circumstances of the passage of legislation or deny its effect because of some course of conduct of which the Court may not approve. Principle in v.he Queen, [18> [1893] A93] A.C. 1.C. 104 and Hoani v. Aotea District Maori Land Board, [1941] A.C. 308 applied;

(6) noatitletby adverse possesossession could be established in the Territory of New Guinea. Miscamble v. Phillips and Hoeflich, [1936] St. R. Qd. 136 applied;

(7) inat e athencesof fraud s.ud s. 69 of the Lands Registration Ordinance 1924-1969 protects the registered proprietor from being affected by actual or consive n of aaim rtitlenterest other than than such such as apas appearspears in t in the register book;

Dicta in Templeton v. Leviathan Pty. Ltd. [1921] HCA 55; (1921), 30 C.L.R. 34 at p. 69 and in Friedman v. Barrett; Ex parte Barrett, [1962] Qd. R.498 at pp. 503, 512 applied;

(8) &#16at the conduct of the pthe plaintiff in attempting after action brought to enforce the rights which it was seeking to persuade the Court that it had, even if unlawful, did not disentitle it torelieght i action as t as the cohe conductnduct complained of did not have an immediate or neccessary relation to the equity sued for;

(9) s.at5 of1the Land TitleTitles Commission Ordinance 1962-1970 deprives the Supreme Court of jurisdiction to entertain a claim that certain land is owned by native customary rights.

Semble

That non-joinder of parties cannot be the subject of a demurrer.

Cases Referred To

The Custodian of Expropriated Property v. Tedep [1964] HCA 75; (1964), 113 C.L.R. 318;
Labrador Company v. The Queen, [1892] UKLawRpAC 47; [1893] A.C. 104;
Hoani v. Aotea District Maori Land Board, [1941] A.C. 308;
Vajesinji Joravarsingji v. Secretary of State for India, [1924] L.R. 51 I.A. 357;
Buck v. Attorney-General, [1965] 1 Ch. 745;
Miscamble v. Phillips and Hoeflich, [1936] St. R. Qd. 136;
The Belize Estate and Produce Company, Limited v. Quilter, [1897] UKLawRpAC 16; [1897] A.C. 367;
Ward v. Kirkland, [1966] 1 W.L.R. 601;
Inwards v. Baker, [1965] EWCA Civ 4; [1965] 1 All E.R. 446;
Friedmann v. Barrett; Ex parte Barrett, [1962] Qd. R. 498;
Templeton v. Leviathan Proprietary Limited [1921] HCA 55; (1921), 30 C.L.R. 34.

Demurrers

In May 1970 the Administration of the Territory of Papua New Guinea issued writs claiming injunctions to restrain the defendants from trespassing on two parcels of land called Vunapaladig and Japalik respectively and also claiming possession of those two parcels of land.

The plaintiff claimed that Vunapaladig which it had acquired by contract of purchase in September 1968, had been brought under the provisions of the Land Registration Ordinance (New Guinea) on 23rd August, 1934, whilst Japalik which it had likewise acquired by purchase in January 1969 had been brought under the provisions of that Ordinance on 21st May, 1928.

Statements of Claim were delivered on 16th September, 1970. To each statement of claim the defendants delivered a defence and counter-claim in identical terms on 2nd November, 1970. The defendants in their defences did not admit the allegations of original registration under the Lands Registration Ordinance, of restoration of title under the Land Titles Restoration Ordinance 1951, of subsequent purchase nor of transfer to and registration of the plaintiff as proprietor nor did they admit the allegations of trespass and wrongful possession. However they went further to allege what amounted to ownership and a right to possession of the parcels of land. The relevant portions of the defence and counter-claim delivered in respect of Vunapaladig are set out below:

“2. I thernlteve,tif thi land land known as Vunapaladig was registered in the Register Book as alleged and is the same land as hereinafter referred to as the native thensaid tratis broabout by breach of h of fiducfiduciary iary duty duty by thby the Administration.

Particulars

(a) ;ټ The Adme Administrnistration, by virtue of the mandate, conferred upon His Britannic Majesty for and on behalf of the Gment e Commonwealth of Australia on the 17th day of December, 1920, and by virtue of t of the prhe provisions of the Land Registration Ordinance 1924 by its servants or agents owed the fiduciary duty to the Defendants and their predecessors in title, which fiduciary duty they failed or neglected to fulfil in that:

(i) ; No propqr en iiry into nato native rights in the said land was made as required by the Land Registration Ordinance.

(ii) &ـ Noing o natiaims to the land wand was mads made as e as requirequired bred by the said Ordinance.

(iii) &##160; No noof prd rprd registrawion was served upon the Defendants or the predecessors in title occupyccupying ting the said land as required by the said ance.

(iv) reementement was reached bhed between the said Adminisministration and the Custodian of Expropriated Property who sought to be registered contrary to the interests of the defendants or their predecessors in title which said agreement resulted in an amendment to the Land Registration Ordinance 1924 whereby the rights of the defendants or their predecessors in title could be defeated.

. . .

4. ټ&##160; T60; The defe defendant, Bilasius Tirupia, is the customary head of the kinship group descended from a common ancestor named Vunapaladig and the other defendant has customary land r arisrom the customaryomary law law relating to such kinship group.

5. ـ Tie sans kinship group is p is and has been from time immemorial the owner in accordance with native custom of land known as Vunapaladig (hereinafter c &#82e natand&#) and the defendants are in t in the owhe ownershnership ofip of the said land.

6. & T60; The said kinship group has been in obvious and notorious possession of the said native land from time immemorial and the defendantmembe thathip ghave,irtue of their cust customary rights shared in this communal unal possepossessionssion and and were at the time of the alleged acquisition of the land by the plaintiff and at the date of issue of the writ and now remain in actual possession of the said native land and rely on such possession.

7. ټ&##160; T60; The defe defendants and their kinship group and predecessors in title have expended much time, effort and money or money’s worth in improving the said land.

80;҈ &160; #160; The said iinshoup andp and the defendants have never alienated their ownership or possession of the said native land.

9. ҈& T60; The thee then living members of the said kinship group had not at any relevant time power to alienate the said native land or any part of it.

10. If the plaintrff o aitsgedleged presors in title claim title ptle pursuant to any purported grant of an estate in fee simple prior to 1962 the defendants say that thereno sutate le ofg granted and such grant was was and iand is of s of no fono force or effect.

11. & In the alternlternative the defendants say that if the plaintiff has become the registered owner of the said native land the said plaintiff is not led iity tsession of the said land and holds the the said land upon trust for the aforesairesaid kind kinship group by reason of:

(i) ـ T6e breach of fiducfiduciary duty by the plaintiff to the defendants.

(ii) &#1he long and uninterrupterupted possession of the defendants and their kinship group.

12. ټ Tnt that thatplainilainis not entitled to any equitable relief in this action by reay reason oson of:

>

. . .

(ii) &##160;uct b plhentifi prio prior to and during the cour course ofse of this action disentitling to a decision of the Court.

Parars

(ii) ـ The plae plaintiff did by its servants or agents on the 22nd July, 1970, and succeeding days unlawfully set fire d otherwise destroy numbers of houses belonging to the said kinship group.

(iii>(iii) &##160;plaintiffntiff did [did [sic] by its servants or agents subsequent to the events in (i) and (ii) above have [sic] attempted to interfere withposse of the defendants and members of the kinship grop group.

(iv) &#16e plafntif bhas by its its servants and agents continued throughout the currency of this action to endeavour to interfere with the possession of the kinship grnd hauallynterfered with the said possession by e by encourncouragingaging persons to whom the plaintiff has purported to allocate a lease of the land to enter on and take possession of the said land.

13. &#160 defendant say that that the plaintiff’s action is defective for want of parties by reason of the non-joinder of all present members of the said kinship .

And by way of counterunter-clai-claim them the defendants say as follows:

1. ҈ The defendants repe repeat the facts contained in paragraphs 4-13 of this defence and rely upon them by way of counter-clai>

(i) ـ҈ A60; A decladeclaration that the defendants and the living members of the said kinship group are the owners of the said native land and entitled to undisturbed and peaceful possession thereof.

(ii) ҈& In the the alternlternative a declaration that the plaintiff holds all its right title and interest (if any) in the said e lann trust for the said kinship group.

(iii) ټ Damages ages ages fges for aggravated trespass to the said native land and members of the kinship group.

(iv) &&#160ts in the the actionction.

(v) ;ټ Such furtherrther or otherother order or orders as to the Court shall seem appropriate.

The plaintiff demurred ch pa the ce as is sets set out and to the counter-claim. The demurrers were set down for argumergument bent before the Full Court and by consent all were heard together.

Counsel

Jeffrey Q.C. (with him Kinna), for the plaintiff.
Enderby (with him Fingleton), for the defendants.
Cur. adv. vult.

1 July 1971

MINOGUE CJ CLARKSON KELLY JJ: [After referring t mate matters set out above their Honours continued:]

The substance of the plaintiff’s case is that the subject lands were lands brought under the Lands Registration Ordinance; that final orders were made under the restoration legislation and certificates of title issued; that the plaintiff was a purchaser who became a registered proprietor by transfer; that it was a bona fide purchaser for value without notice of any other right title or interest and that consequently it was entitled to the relief sought, either an injunction on the footing that it was in possession of the lands or, alternatively, to what in effect was an order of ejectment if the plaintiff was not in possession.

As we understand the defendants’ case they rely on a legal interest flowing directly from their uninterrupted possession from “time immemorial” and from the laws of the Territory and an equitable interest from their long and notorious possession which amounts to notice and an interest of such a nature that notwithstanding registration under the Torrens system it calls for recognition by the court. The claim is of having acquired a right of ownership or some right of possession which detracts from or perhaps wholly extinguishes the plaintiff’s right. It was submitted that the registration of the plaintiff’s predecessors in title was effected in breach of a fiduciary duty owed by the plaintiff to the native owners of the lands. The plaintiff Administration had through its negligence, error or neglect brought about a situation where registration took place and it could not now assert any rights thought to be flowing from its registration in derogation of the rights possessed by the defendants and the other members of their kinship groups which in effect amounted to rights of absolute ownership. Mr. Enderby for the defence sought to show that by a combination of the Mandate granted to the Commonwealth of Australia over the Territory of New Guinea in 1920, of the terms of the New Guinea Act of that year and of the provisions of the Laws Repeal and Adopting Ordinance of 1921, of the Land Ordinance of 1922 and of the Lands Registration Ordinance of 1924, there was a duty cast on the Administration of the Territory of New Guinea to protect native land rights which were in effect to be regarded as inalienable. More specifically he argued that assuming the truth of the facts asserted in the defence (which of course we must do on this demurrer) it was clear that the Director of District Services and Native Affairs had not carried out the duties imposed upon him by the Lands Registration Ordinance. Those duties were to refer the question of possible native rights in relation to any land to the Central Court for enquiry and determination in every case where he was of opinion that there were natives or native communities having rights of any description over any land owned occupied or used by or for any person other than a native, and where he had been served with a notice that it was proposed to bring land under the Ordinance to cause careful enquiries to be made as to the existence of native rights to that land and to refer the question of native rights in relation to land to the Central Court for determination. (See ss. 22 and 24.) If he had carried out these duties, so it was said, registration could not have been effected in the face of the obvious native rights which existed in and over the lands. He further went on to argue that the Administration was responsible for the neglect errors and omissions of the Director and consequently was in breach of a fiduciary duty. True it is that the Director had a number of statutory duties imposed upon him and it is clear that those duties were aimed at the protection of native rights to land. However, even if it be the case that in the performance of those duties the Director was acting as the agent of the Administration it would not follow that the Ordinance which imposed those duties on him thereby imposed on the Administration a fiduciary duty towards persons who might possess native land rights, nor that the failure of the Director to carry out his statutory duties would amount to a breach of fiduciary duty on the part of the Administration. In any event whatever breach of duty there may have been by the Director or vicariously by the Administration cannot avail the defendants against the clear and conclusive provisions of ss. 57 and 68 of the Lands Registration Ordinance, the effect of which is to confer an indefeasible legal title to land on the registered proprietor: The Custodian of Expropriated Property v. Tedep[cclxvii]5 makes this propositiear beyr beyond doubt. As was said in that case, at pp. 331-2: “The indefeasibility of the title of a registered proprietor under systems of title such as erected by the Lands Registration Ordinance . . . d. . depends, . . . upon the provisions of the Ordinance itself, and particularly upon s. 68, . . . by virtue of which, at the moment of and by the act of registration, the estate of the registered proprietor became absolutely free from any prior asserted legal interest not noted on the register.” And see also at pp. 336-7.

The conclusiveness of a title under the Lands Registration Ordinance receives further support if any is needed from s. 16 of the Land Titles Commission Ordinance 1962 which provides that where a decision of the Land Titles Commission is in conflict with a title previously registered under the Lands Registration Ordinance that registered title shall to the extent of the conflict prevail. We note of course that there is no allegation of fraud in these cases and in our view the submission of Mr. Jeffrey is correct that, 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. In the circumstances we do not find it necessary to determine the legal relationship between the Administration and the Director in this context as whatever that relationship may be the position of the Administration as registered proprietor is not affected.

With regard to paragraph 2(iv) of the defence we did not understand Mr. Enderby to dissent from Mr. Jeffrey’s assumption that the amendment to the Lands Registration Ordinance referred to was that effected by the addition of s. 24a which came into operation in April 1933. This section enabled the Administrator to instruct the Director to certify to the Registrar that the question of native land rights would not be referred to the Court. We assume it to be implicit in the paragraph that a predecessor in title of the plaintiff was the Custodian of Expropriated Property and also that consequent upon a direction by the Administrator under s. 24a the question of native rights in the subject land was not referred to the Court. We cannot see how the allegation of the agreement between the Administration and the Custodian of Expropriated Property alleged could have any relevance to the Japalik land title to which was registered in 1928. But leaving that aside we are of opinion that this Court cannot enquire as to the circumstances of the passage of legislation or to deny it effect because of some course of conduct of which the Court may not approve. As was said by the Judicial Committee of the Privy Council in Labrador Co. v. The Queen[cclxviii]6 at p. 123: 0;Even if it cout could be proved that the legislature was deceived, it would not be competent for a court of law to disregard its enactments. . . . The courts of law cannot sit in judgment onlegislature, but must obey obey and give effect to its determination.” And in Hoani v. Aotea District Maori Land Board[cclxix]7 there is a dct statement thnt that the Statute Book contains the entire enactment of the legislative will and that examination of circumstances preceding legislation although it may raise a political quesdoes not raise a justiciablciable question in a court of law. There it was held that it is not open to the court to go behind what has been enacted by the legislature and to inquire how an enactment has come to be made, whether it arose out of incorrect information or, indeed, actual deception by someone on whom reliance was placed by it. The court was bound to accept the enactment as the law and so could neither inquire whether the Land Board had been guilty of breaches of duty which were alleged nor whether the enactment of legislation affecting Maori rights in land was the reasonable and natural consequence of those breaches. This case too disposes of such reliance as Mr. Enderby was able to place upon the Mandate. The Judicial Committee applying the principles summarised in Vajesingji Joravarsingji v. Secretary of State for India[cclxx]8, held that any rights purporting to be conferred by such a treaty of cession (in that case the Treaty of Waitangi) could not be enforced in the courts. It seems to us that the acquisition of control of the Territory of New Guinea by the Commonwealth under the Mandate is an Act of State just as is the acquisition of a Territory by conquest, or cession following on a treaty, or occupation of a Territory hitherto unoccupied by a recognized ruler. The Mandate itself made no reference to native land rights but conferred upon the Commonwealth of Australia full power of administration and legislation over the Territory as an integral portion of the Commonwealth. By the acceptance of the Mandate the Commonwealth was to promote to the utmost the material and moral well-being and social progress of the inhabitants of the Territory. In our view it did not impose on the Administration as a matter of municipal law any legal or equitable duties and we think it impossible to place reliance upon it to support the “fiduciary duty” in the pleading. See also Buck v. Attorney-General[cclxxi]9 and in particular Wilberforce J. (as he then was) at p. 758 et seq. As the learned judge said in that case although in law it is possible for the Crown to assume the position of a trustee, the language of the grant under consideration by him was quite insufficient to support the assumption by the Crown of any equitable contractual or innominate obligation. That seems to us to express the position upon the assumption by the Commonwealth of the Mandate.

Paragraphs 4 to 9 of the defence seem to assert a legal ownership in the defendant and the kinship group of which he is the customary head. They contain an allegation that the kinship group and the defendant had never alienated their ownership or possession of Vunapaladig and it may be too that there is implicit in this allegation a denial of any knowledge of the bringing of the land under the Registration Ordinance. Be that as it may the paragraphs assert that the defendant and the kinship group have at all relevant times owned the land and have been in actual possession of it, that their possession has been open and notorious and that the ownership is in effect equivalent to a full legal estate in the land. There is also an allegation that the defendants and their kinship group and their predecessors in title have expended much time effort and money or money’s worth in improving the land. As to whether this gives rise to some sort of equitable interest we will discuss later. In support of the demurrer Mr. Jeffrey argued that the allegations in these paragraphs if they could support any legal right at all could only support a title by adverse possession. And he went on to submit that such a title could not be acquired in New Guinea. He founded principally on the conclusive effect of ss. 57 and 68 of the Ordinance and relied on the decision of the majority of the Full Court of Queensland in Miscamble v. Phillips and Hoeflich[cclxxii]10. Indeed as he pointed out although it was held in that case that the plaintiff could not succeed the facts were much more in favour of a person seeking to establish a title by adverse possession than were those alleged by the defendants in this case. Mr. Enderby said that he was putting the defendants’ case a little differently from adverse possession although he sought to rely on The Belize Estate and Produce Co. Ltd. v. Quilter[cclxxiii]11 in support s argument. Howe However, we have come to the clear view that no title by adverse possession could be established in the Territory of New Guinea. The doctrine of adverse possession was not kno the common law but derivesrives from statute. See Megarry and Wade The Law of Real Property, 3rd ed., pp. 996 et seq. There is no Statute of Limitations such as was, for example, the Distress Replevin and Ejectment Act of 1867 of Queensland, adopted or imported into New Guinea and without some such statute there can be no limitation of a right to bring action for the recovery of land.

But it was said by Mr. Enderby that the relevance of paragraphs 4 to 9 of the defence is that therein are recited facts which as matters of law and of equity defeat the plaintiff’s claim. The legal rights he said come from the ordinances. Reference was made by him to the New Guinea Act 1920, to the Laws Repeal and Adopting Ordinance of 1921 and to the Land Ordinance 1922 (none of which is relied on in the defence). We must confess that we are not entirely clear as to how he based these legal rights. If it was on s. 9 of the Laws Repeal and Adopting Ordinance of 1921 in which it was enacted that nothing in that ordinance should affect the right title estate or interest . . . of any Aboriginal native or tribe of Aboriginal natives to any land within the Territory that section cannot prevail in our view against the later provisions of the Registration Ordinance, power to enact which was within the power to make ordinances for the peace order and good government of the Territory conferred upon the Governor-General in Council by the New Guinea Act 1920.

If it was on a policy to be spelled out of the Ordinances that native rights were to be paramount we can only say that we cannot spell out such a policy. The Ordinances lay down precise rules and procedures to be followed to safeguard native rights to land and seek to ensure that there will be no fraudulent deprivation of those rights; the Lands Registration Ordinance charges the Director with a careful investigation into those rights; but it is clear that in 1924 when the Lands Registration Ordinance was enacted the policy was to provide for indefeasibility or unimpeachability of title to land to which the Ordinance applied both for natives and non-natives alike. We cannot see anything in the provisions of the legislation to which we were referred which can be said to create or assist in the creation of or to indicate the fiduciary duty the existence of which is essential to the defendants’ case. On the assumption that registration of the land was effected and no fraud alleged it is not possible now for the Court to consider an assertion that the kinship group and the defendants have never alienated their ownership or possession of the subject. Section 68 of the Lands Registration Ordinance provides that notwithstanding the existence in any other person of any estate or interest whether derived by grant from the Administration or otherwise which but for the Ordinance might be held to be paramount or to have priority a registered owner of land or of any estate or interest in land shall except in case of fraud hold it free from all encumbrances whatsoever except in the cases mentioned in the section, none of which are material in this case. The Custodian of Expropriated Property v. Tedep[cclxxiv]12 shows that in the ingationstions required to decide whether a lost or destroyed title should be put back on the register (which happened in the case of the subject lands) the Commissioner of Titles once the fact of registration was proved could not go behind that registration and enquire into or pronounce upon competing interests.

As we understood the argument for the defence the facts asserted in paragraphs 7 to 11 support some sort of equitable interest in the defendants. Mr. Enderby submitted that the allegations would permit an equitable defence of the type successfully pleaded in Ward v. Kirkland[cclxxv]13 and Inwards<. Baker[cclxxvi]14. However, even allowing for the allegations in paragraph 7 to carry an extended meaning that the registered proprietor of the lan requested or even allowed owed the defendants to expend money on the land under an expectation created or encouraged by the proprietor that they would be able to remain there, we cannot see that any such permission or creation of expectation on the part of the former proprietor or proprietors can create any equity against the plaintiff. The paragraph cannot in our view be read as an allegation that the money time and effort has been expended since January 1969. What we think Mr. Enderby was really putting forward as the combined effect of paragraphs 2 and 4 to 9 of the Defence is that the Administration had imposed a duty on itself in that it accepted a fiduciary relationship to the defendants, that it defaulted in the performance of its duty, permitted the land to be registered notwithstanding the presence of the defendants thereon, then obtained for itself the title in the wrongful issue of which it had somehow connived and was seeking to profit from its breach of duty by now seeking ejectment. Neither at law nor in equity can such a case succeed. It seems to be implicit in this argument that some claim which arose against the Administration at the time land was brought under the Ordinance in some way survived to defeat the Administration title when it became the registered proprietor—that it was somehow subject to equities which had either been suspended until then or then arose and which enabled the defendants to resist a claim for possession. Fraud was not alleged and s. 69 of the Lands Registration Ordinance in the absence of fraud protects the plaintiff from being affected by actual or constructive notice of any claim right title or interest other than such as appears in the Register Book. See Friedman v. Barrett: Ex parte Barrett[cclxxvii]15 and Templetonv. LeviaLeviathan Pty. Ltd.[cclxxviii]16.