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Custodian of Expropriated Property v Director of District Administration (re Tonwalik) [1969] PGSC 9; [1969-70] PNGLR 110 (2 June 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 110 - Custodian of Expropriated Property v Director of District Administration (re Tonwalik)

[1969-70] PNGLR 110

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CUSTODIAN OF EXPROPRIATED PROPERTY

V.

DIRECTOR OF DISTRICT ADMINISTRATION (RE TONWALIK.)

Rabaul & Port Moresby

Clarkson J

17-19 April 1969

22 April 1969

2 June 1969

REAL PROPERTY - Restoration of titles - Appeal from Land Titles Commission to Supreme Court - �No restorable interest� final order - Claim for initial registration of title based on notional completion of procedure prescribed by repealed legislation - Lands Registration Ordinance 1924 - New Guinea Land Titles Restoration Ordinance 1951-1968, ss. 9[clxxii]¹, 17(1) [clxxiii]², 49[clxxiv]³, 67[clxxv]⁴�.

Section 9 of the New Guinea Land Titles Restoration Ordinance 1951-1968 applies to a person who claims to have in fact been registered as owner of or a person entitled to an interest in land.

Custodian of Expropriated Properties v. Tedep (Varzin case) [1964] HCA 75; (1964), 113 C.L.R. 318, followed.

It is a sufficient compliance with s. 17(1) if the Commission declares in the final order that it is established that on the appointed date no restorable interest was owned by the claimant. The Commission is not obliged to determine both the claim and any reference asserting native customary rights to the land claimed.

Varzin case [1964] HCA 75; (1964), 113 C.L.R. 318 and Tolain v. The Administration (Vulcan case), [1965-66] P. & N.G.L.R. 232, referred to.

Section 67(3) empowers the Commission to grant applications for initial registration of title where the applicant would have been entitled to registration if, under the repealed provisions and with all relevant documents available, proceedings completed before the appointed date to bring the land under the Lands Registration Ordinance 1924 would have established entitlement to registration.

St. Aubyn v. Attorney-General[1951] UKHL 3; , [1952] A.C. 15; Barclays Bank Ltd. v. Inland Revenue Commissioners, [1961] A.C. 509; Muller v. Dalgety & Co. Ltd. [1909] HCA 67; (1909), 9 C.L.R. 693; Reg. v. County Council of Norfolk (1891), 60 L.J.Q.B. 379; Vulcan case, [1965-66] P. & N.G.L.R. 232; and Varzin case [1964] HCA 75; (1964), 113 C.L.R. 318, referred to.

Such an interpretation of s. 67(3) accords with the Vulcan case and is not inconsistent with the Varzin case.

Section 49 assists a claimant under s. 9 of the Ordinance who may thus rely on an entry in the Ground Book (which is an old document). However, where the claim is made under s. 67(3) of the Ordinance the claimant cannot, because of the application of s. 26(4) of the Lands Registration Ordinance 1924 to the proceedings, oppose a claim that native rights existed over the land by relying merely on either the cancellation of registration or the absence of registration of native rights in the Ground Book.

Appeal from Land Titles Commission.

This appeal is reported only on the interpretation of various provisions of the New Guinea Land Titles Restoration Ordinance 1951-1968. The relevant facts and the arguments of counsel appear from the judgment hereunder.

Counsel:

Bredmeyer, for the appellant.

Ley, for the respondent.

Cur. adv. vult.

2 June 1969

CLARKSON J:� This is an appeal against the final order of the Chief Commissioner made on 21st April, 1965 under the New Guinea Land Titles Restoration Ordinance 1951-1968 in respect to a claim by the appellant to an island known as Tonwalik in the Duke of York Islands. The appellant�s claim to an unencumbered freehold interest was opposed by the Director of Native Affairs (now the Director of District Administration) on behalf of the people of Kerawara village on the ground that the land had never been alienated by the customary owners.

The final order made by the Chief Commissioner declared that �it is established that on the appointed date no restorable interest was owned by the Custodian of Expropriated Property�.

The burden of the appellant�s first complaint is that the order made failed to declare whether the appellant was entitled to an interest in the land and also failed to declare whether customary native rights were retained by natives. In fact the challenge is to the use of the phrase �no restorable interest� as being ambiguous and as containing the seeds of further disputes. Secondly, the appellant says that the Chief Commissioner in dealing with the claim failed to apply properly the provisions of s. 67(3) of the New Guinea Land Titles Restoration Ordinance and, thirdly, it is claimed that the finding that the appellant was not entitled to a certificate of title was against the weight of the evidence.

The history of dealings with this land and proceedings in relation to it commence with entries in the German Ground Book. These show that the land was registered therein as �Duke of York Islands volume 1 folio 24�. The land is described as �the Island of Tonwalik on the western side of the Island of Kabakon with an area of 50 ares�.

In the first division of the register the owner is shown as �the firm of Engelhardt & Co. Open partnership, KABAKON� and under the heading �Time and Manner of Acquisition� appears �In pursuance of the Transfer of 2nd December 1910 and of the notice to claimants of 3rd of the same month. Entered on 8th May 1911�.

The second division headed �Permanent Burdens and Limitations of the Ownership� reads:

N2>�(a)��� Caution for the maintenance of the right to re-transfer in case of irregular commencement of operations on the land, and to re-transfer of portions of land which are required for the exploitation of minerals or for public purposes, and also�

N2>�(b)��� An obligation on the owner for the time being to maintain the public roads passing through or touching the property, and to suffer the drainage of rain water over the property. Entered on 8th May 1911 with reference to the consent of 2nd December 1910 for the Fiscus of the Colony of German New Guinea.�

I pause here to note that there is no record of negotiations or transactions prior to 2nd December, 1910; that a notice to claimants is recorded as having been given on 3rd December, 1910; that the consent by the Fiscus was apparently given to the transfer of 2nd December, 1910 on that date subject to the imposition of the burdens referred to in (a) and (b) above; and that all these entries were made on 8th May, 1911 and no further entries appear in the register.

Although it was not formally proved before the Chief Commissioner the proceedings before him and on appeal have been conducted by the parties on the basis that the status of the registered owner was such as to attract the operation of the Expropriation Ordinance 1920 whereby the land of German nationals was expropriated and vested on 10th January, 1920 in the Custodian of Expropriated Property, the present appellant. See also the Treaty of Peace (Germany) Act 1919-1920 of the Commonwealth.

The then laws of the Territory, under which the Ground Book was established and operated, continued in force until 9th May, 1921 by virtue of s. 4(1) Laws Repeal and Adopting Ordinance 1921.

The Lands Registration Ordinance 1924 came into operation on 1st June of that year whereby the Registrar of Titles, without any application from the persons interested and using the Ground Book entries as a starting point, issued a draft certificate of title as the first step in bringing land under the Ordinance, which provided for a Torrens system of title registration.

That the Registrar issued a draft certificate of title for Tonwalik Island appears from a notice in the New Guinea Gazette, No. 129, 1st February, 1926, p. 847. By s. 21(3) of the Lands Registration Ordinance, the Registrar was required to give this notice in the form of the Second Schedule to the Ordinance. The notice was dated 11th January, 1926 and is headed �General Notice of Bringing Land Under the Ordinance� and follows the prescribed form. It referred to six properties including Tonwalik Island and stated that draft certificates of title might be inspected at the Office of Titles at Rabaul and that objectors should lodge caveats, and that if none was received on or before 28th February, 1928 registration would be proceeded with forthwith.

The following particulars are then given:

By this time s. 22 of the Lands Registration Ordinance had been amended to require the Director, when served with a notice from the Registrar under s. 21(3), to himself give notice calling for claims. This the Director did by notice dated 23rd July, 1926 published in the New Guinea Gazette, No. 145, 2nd August, 1926, p. 918. This notice acknowledges receipt of the Director�s notice and of a copy of the draft certificate of title and called for claims by natives or native communities to be lodged within three months. Substantially, the notice repeats the information given in the Registrar�s notice but under the heading �Native Rights Registered in Ground Book (if any)� is entered �Nil�.

The Custodian�s file which forms part of the record indicates that a draft certificate of title was issued in January 1926 and this is consistent with the two Gazette notices to which I have referred.

A further notice appeared in the New Guinea Gazette, No. 209, 15th August, 1928, p. 1562. This was an invitation by the Custodian for tenders for the purchase of Tonwalik Island. It is dated 6th August, 1928 and contains the following amongst the particulars given: �Title: Freehold. The successful tenderer will be required to pay the costs of bringing the land under the provisions of the Lands Registration Ordinance.� On 21st April, 1931 the Custodian wrote to the delegate at Rabaul requesting �a copy of the Draft Certificate of Title issued in January 1926 in respect of Tonwalik Island�. This was acknowledged by the delegate�s letter of 9th May, 1931 sending the copy requested. Both this letter and the draft certificate of title to be found on the Custodian�s file carry the Custodian�s date stamp of 21st May, 1931. The draft certificate of title is in common form and under the plan of the island the following words appear: �. . . originally granted by the Fiscus of the Colony of German New Guinea and registered in the Land Register of the said Colony.� The draft certificate of title is undated and unsigned. The second page of it contains two encumbrances, each in favour of the Administration of the Territory and each affecting the whole of the land. The first headed �E� refers to mining and minerals and the obligation of the owner to recognize any public roads or rights of way or landing places. The second, headed �B�, is set out hereunder:

N2>�1.����� The obligation to re-transfer to the said Administration without compensation any land required for roads, railways, telegraphs, telephones, wireless-stations, sea-marks, lighthouses, landing-places, or other public purposes, provided always that where land is claimed under this provision the clearing or improvement of which has already been begun, the expenses proved to have been incurred in such clearing or improvement shall be made good, in so far as the value of the land is thereby increased.

N2>2.(a)�� The owner is obliged to commence the clearing and cultivation or other agricultural working of the land within one year from the date of this Certificate in default whereof he is bound to re-transfer the whole of the said land to the said Administration.

N2>(b)����� The owner is further obliged within fifteen years from the same date to clear and plant or otherwise put to some permanent use in accordance with the rules of tropical agriculture or tropical grazing at least three-quarters of the said land and to keep the same permanently in that state, provided always that in calculating the area put to use any areas covered with buildings of permanent value are to count tenfold.

N2>(c)����� Unless the said owner upon being required thereto brings proof in the first half of the sixteenth year at latest that he has fulfilled the abovementioned obligations or has been prevented from fulfilling them by circumstances for which he is not responsible, he must re-transfer to the Administration without compensation the whole of the then uncleared portion of the said land without any claim to a rebate for the purchase price paid or the expenses incurred in the acquisition of the land.

N2>3.(a)�� The obligation to suffer the drainage of water from public roads upon and through the registered land, without any claim to compensation therefor.

N2>(b)����� The obligation to recognise as such any public roads or rights of way or landing-places subsisting upon the said land.�

It will be seen that the covenants for development contained in par. 2 do not commence to operate until one year �from the date of this Certificate� which would in effect be the date of registration of the certificate of title.

The Custodian, on 26th May, 1931, wrote to the delegate drawing attention to the fact that it was proposed to indorse �standard encumbrance �B� on the Certificate of Title to Tonwalik Island�. He points out that the encumbrance obliges the owner to commence cultivation within a year of the date of the issue of the certificate of title and to have at least three-quarters of the land cleared and cultivated within a period of fifteen years. He points out also that the island is only half a hectare in area and of rock formation and entirely unsuitable for agriculture. He adds, �the only reason I can see for the encumbrance is that the Island was acquired during the period when the conditions contained in the encumbrance applied generally to lands taken up in the German Protectorate�. He requests the delegate to discuss the matter with the Registrar of Titles and if necessary with the Administrator �with the view of securing the waiver of paragraphs 2(a), (b) and (c) of the encumbrance under review�. This letter was not acknowledged until 18th February, 1932 when the delegate replied stating that the matter had been taken up as directed and that on 12th November, 1931 advice had been received that the acting Administrator had approved of the conditions in pars. 2(a), (b) and (c) of the encumbrance being waived and that the Registrar of Titles had been notified. He goes on: �The Registrar of Titles now writes to say that the Governor-General is the proper authority to release an encumbrance of this nature. Apparently it is contended that such a release can only be effected by a grant in fee under Section 13 of the Lands Ordinance.� The delegate concludes his letter by stating: �. . . as the Administrator has already approved of the waiver, you may decide to allow the clauses to remain, accepting the approval already given as a guarantee against the possibility of enforcement.� This letter contains two significant indorsements, obviously made in the Custodian�s office. The first reads:

�Custodian

As there are other cases involved I think the matter should be taken up again with the Administrator. I do not think Section 13 was meant to cover such a case as this.�

The second reads:

�Custodian has seen. Put away for present.�

And then follows a further notation which appears to be either �b/f 17.1� or �b/f 17.9�.

And there the matter lay for almost twenty years.

The next document on the file is a letter of 14th September, 1951 acknowledging an inquiry from a solicitor in Rabaul regarding the subject land �which was purchased from the Custodian of Expropriated Property by Mr. S. Barker in 1928�. It concludes, �there is no evidence in the records of the Custodian that the land has been registered under the Lands Registration Ordinance and no reference to title is available�. At this stage, the Restoration Ordinance, which came into effect on 1st November, 1951 and under which the appointed date was fixed as 10th January, 1952, was not in operation.

Subsequently, however, the Custodian made a claim under the Restoration Ordinance. This is dated 17th October, 1952. The nature of the interest claimed is freehold as a result of expropriation on 10th January, 1920. A photostat of the copy draft certificate of title with the standard encumbrances E and B thereon is annexed to the claim and, in answer to Question 17, �Was the subject land affected by any native rights?�, the answer is �No�. In response to a question for any further information which might be of assistance to the Commissioner is stated: �. . . advertised for sale in Rabaul Times No. 175 of 24th August 1928. Purchased by Mr. Sydney Barker. Fully paid.� The other documents annexed to the claim are copies of the Custodian�s letter of 26th May, 1931 to the delegate and the reply of 18th February, 1932, both of which I have referred to earlier.

Again there is a long period of inaction broken by a further letter from the solicitor at Rabaul on 28th November, 1955. This was followed closely by the issue of a provisional order on 19th December, 1955 which was gazetted on 12th January, 1956. Thereafter there is a further delay until a letter of 8th March, 1961 in which the Custodian inquires of the Commissioner of Titles whether he is in a position to issue a final order. Apparently the claim was set down for hearing at Rabaul on 22nd November, 1961 but was adjourned pending completion of a survey.

A further inquiry by the Custodian on 27th December, 1962 to the Administrator brought the reply from the clerk to the Commissioner of Titles: �There was no action which could be taken at the hearing to which you refer. The present position with this property is that a Certificate or Reference is still awaited from the Director of Native Affairs.�

On 15th August, 1964 a patrol officer, Mr. W. H. Muskens, made an investigation regarding native customary rights and reported that the natives of Kerawara Island claimed full customary rights. On 20th October, 1964 a reference was filed by the Director. Particulars on the reference are as follows: �. . . people of Kerawara Village on the grounds that the land was never alienated.� The Crown Solicitor informed the Custodian of this development by letter dated 23rd October, 1964.

On 23rd March, 1965 the claim was heard by the Chief Commissioner who on 21st April, 1965 issued the final order, the subject of this appeal. Notice of appeal to the Supreme Court was given on 13th July, 1965.

The transcript of the proceedings on 21st March, 1965 shows that the Custodian�s file was tendered as evidence by counsel for the claimant and the report of Mr. Muskens was tendered by counsel for the Director who also called one witness, Thomas of Kerawara. Thomas claimed that the two Vunatarais of Kerawara Island owned Tonwalik Island. He stated that no one had ever lived on the island, which was a place for fishing. He had heard no talk of a Mrs. Parkinson owning the island or going to it. He claimed that it was used when fishing four or five times a week, and in answer to the question, �You said you are claiming by customary rights. What custom is it?�, he answered: �It is called a resting place.�

Counsel for the Custodian then submitted that the Custodian was entitled to be restored on the Register. The submissions of counsel for the Director are recorded in the transcript as follows:

�I submit there is no evidence of the issue of a Certificate of Title. I submit that in the absence of a Certificate of Title the Custodian must establish a solid basis to his claim of Title going back to the period of suggested Register. The natives do not deny there was a sale. They say they never heard of it and continued undisturbed. I submit the onus is on the Custodian to say it was validly alienated by the natives.�

The Chief Commissioner then gave his decision to which I refer in detail later and this, as I have said, was followed by the final order of 21st April, 1965.

Section 9 of the New Guinea Land Titles Restoration Ordinance reads:

N2>�9.����� A person claiming to have been entitled as at the appointed date�

(a)����� to an interest in land; and

(b)����� to be registered or entered in a lost register as the owner of or the person entitled to that interest (whether or not he was, before the loss or destruction of that register, so registered or entered),

may make a claim in respect of that interest.�

This section is not easy to construe. It clearly applies to a person who claims: (a) to be entitled to an interest at the appointed date, and (b) to be entitled to be registered at the appointed date. At first sight it might not appear to apply to a person who claims: (a) to have been entitled to an interest at the appointed date, and (b) to have been registered prior to the loss of the register and to be entitled to be registered at the appointed date.

However, it seems to me that the person who claims to have been registered is covered, perhaps awkwardly, in that he is a person who: (a) claims to have been entitled as at the appointed date to an interest in land, and (b) claims to have been entitled as at the appointed date to be registered in a lost register as the owner of that interest and that he was before the loss or destruction of that register so registered.

This view is confirmed by the High Court in Custodian of Expropriated Property v. Tedep (Varzin case)[clxxvi]⁵�where, referring to this provision, the Court said[clxxvii]⁶: �This description embraces those who had, in fact, been registered in the destroyed register and who had not dealt with the land in the period of ten years between the destruction of the registers and the appointed date.�

The first ground of appeal relates to the form of the declaration made in the final order. The final order in effect says that the Commission declares that �in connection with the claim to reestablish ownership as at the appointed date of interest in or in respect of the claimed land it is established that on the appointed date no restorable interest was owned by the Custodian . . .�.

The form of claim made by the Custodian was one �to have been entitled as at the appointed date to the interest specified in the answer to Question 1 hereunder in or relating to land in the Territory of New Guinea and to be registered or entered in a lost register as the owner of or the person entitled to that interest�. The interest specified in the answer to Question 1 is �freehold�. It will be seen then that the Custodian�s claim did not include a claim that he had at any time in fact been registered but it is implicit in the claim that the Custodian and his predecessors in title had been entitled to a freehold interest since at least 1911, and from this it follows that the description of the Custodian�s claim as it appears in the final order is not strictly correct in that it is described as a �claim to re-establish ownership at the appropriate date of an interest�.

This misdescription is not of great significance because the important part of the final order is the substance of the declaration made not the description of the claim. At the same time this is not just idle criticism because the description of the claim indicates some misunderstanding on the part of the draftsman of the form used as to the purpose of the proceedings. A claimant under the Restoration Ordinance is not endeavouring to re-establish ownership. His claim is that having held ownership at all material times and, having been registered or entitled to be registered as owner in the lost register, he seeks recognition of the fact that he was so registered or entitled. The danger created by this misdescription is that if a declaration is then made refusing the claim the impression might arise that it is necessarily a claim to ownership which has been refused.

The form of the declaration made in the final order is also open to criticism. The Commission declares that it is established that on the appointed date �no restorable interest was owned by the Custodian�. It is true that the word �restoration� occurs in the short title of the relevant Ordinance and that the phrase �restorable interest� is commonly used in relation to proceedings under the Ordinance, but I have been unable to find any use of it in the Ordinance itself.

The claim in these proceedings was to an entitlement to an interest and an entitlement to registration, both at the appointed date. If nothing more appeared in the declaration than that on the appointed date �no restorable interest� was owned by the Custodian it is difficult to see exactly how the issues raised by the claim have been resolved.

The Custodian claims that at the end of the proceedings he does not know whether his claim failed because he did not establish entitlement to an interest or because, notwithstanding that he had an interest, he did not establish entitlement to registration of it, nor does he know whether the Director is entitled to an interest registrable or not registrable. Relying on s. 17 and other sections to which I will refer he goes on to say that the Commission does not discharge its obligation by declaring merely that the claim has failed. Section 17(1) reads:

N2>�17(1) In a provisional or final order, the Commission shall declare�

(a)����� whether it is established that a person was, at the appointed date, entitled to an interest in the land the subject of the order and to be registered or entered in a lost register as the owner of or the person entitled to that interest;

(b)����� the boundaries of the land the subject of the interest;

(c)����� the nature and extent of�

(i)������ the interest established in that land; and

(ii)����� the native customary rights (if any) which, at the appointed date, were retained by a native or native community in respect of that land; and

(d)����� any other matter which the Commission thinks necessary.�

The appellant says in effect that the Commission was obliged to declare:

N2>(1)����� Whether it was established that the Custodian was at the appointed date entitled to an interest in the land (s. 17(1)(a)).

N2>(2)����� Whether it was established that the Custodian was at the appointed date entitled to be registered as the owner of that interest (s. 17(1)(a)).

N2>(3)����� The boundaries of the land (s. 17(1)(b)).

N2>(4)����� The nature and extent of any interest found to have been established under (1) (s. 17(1)(c)(i)).

N2>(5)����� Any native customary rights which at the appointed date were retained by a native or native community (s. 17(1)(c)(ii)).

Reliance is placed on s. 16(1) which requires the Commission before making a final order to �investigate, hear and determine all . . . references . . .�. In this case a reference was made under s. 36 of the question of native customary rights which by definition (s. 4) are rights of a proprietary or possessory kind.

It will be noted that s. 42(1) of the Restoration Ordinance also refers to final orders but for the purposes of this appeal would appear to add nothing to the argument based on s. 17.

The appellant�s submission is that the Commission must determine both the claim and the reference. There is, he says, no presumption that the land is subject to native customary rights or otherwise. There is an onus on the claimant and an onus on the Director and just because the claim under the Ordinance fails the Commission cannot declare the land to be subject to native customary rights. It must then proceed to determine the reference. The appellant also pointed out that this procedure should be adopted to give certainty, to put an end to litigation and to save expense. If it were not, further proceedings could result under s. 15 of the Land Titles Commission Ordinance 1962-1968 or possibly s. 83 of the Land Ordinance 1962-1966.

The respondent argued that s. 17 must be read with ss. 9 and 10. They are all concerned with claims to registration or entitlement to registration and if the answer to any part of the initial inquiry posed by s. 17(1)(a) is �No�, then there is no necessity to go on with the inquiries in (b) and (c). This contention gains some support from the use of the word �retained� in s. 17 (1)(c)(ii) which is only apt if an interest is first declared.

On the respondent�s submissions, unless a registrable interest in the claimant is established then the Commission cannot deal with any alleged native customary rights and for that reason the respondent did not seek to argue that the Commission�s declaration in the present case amounts to a finding that the land was subject to native customary rights.

But whatever the strength of these arguments the answer to the appellant�s submission lies, as the respondent contends, in the main purpose of the Ordinance which is, as it is put in the preamble, �to provide for the compilation of new registers . . . in place of those lost or destroyed�.

In the Varzin case[clxxviii]⁷�the High Court, after discussing ss. 9 and 10, says[clxxix]⁸:

�This is a clear indication that what was intended was the replacement of the lost registers in the condition in which it was presumed they would have been had they not been destroyed, and, not the preparation of new and different registers giving effect to claims by persons who were unable to establish a right to registration accruing before the appointed date.�

In the Vulcan case[clxxx]⁹�Minogue J. concluded that this statement taken in its proper context referred to a registered interest and did not prevent the Commission considering under s. 67(3) of the Ordinance applications for initial registration. I shall return to this matter later but even accepting this extension of the purpose of the Ordinance it still relates to registration of interests in land.

In my view, in a case such as this, once the Commission concludes that there was no registration nor entitlement to registration it is not required to pursue its inquiries further.

No doubt the reasons for the decision given by the Commission will in many cases show whether the claim fails because there was no interest or because there was no registration or entitlement to registration. But I do not think if the Commission declares that it is not established that the Custodian was at the appointed date entitled to an interest in the subject land in respect to which interest he was registered or entitled to be registered as owner, that the Commission has failed to fulfil the obligations imposed by ss. 17(1) and 42(1). This view is confirmed by the history of the relevant legislation. Under the Lands Registration Ordinance the Director was empowered to refer any question of native rights to the Central (now Supreme) Court and by s. 26 of that Ordinance jurisdiction was conferred on the Court to determine any question so referred.

By sub-s. (3) of that section:

�The order to be made upon the hearing of any such summons shall either�

(a)����� declare that no native rights exist affecting the land; or

(b)����� define the nature and extent of the rights which the Court finds to exist, and direct that those rights shall be protected by the necessary entries in the Register Book and on the certificate of title. . . .�

That provision was repealed by the New Guinea Land Titles Restoration Ordinance and its effect has not in my view been reproduced by s. 17 of that Ordinance.

In the present case the Commission declared it to be established that on the appointed date no restorable interest was owned by the Custodian. This goes further than required by s. 17 but clearly if the Commission had confined itself to the question �Is it established that the Custodian on the appointed date was entitled to an interest in such land in respect to which interest he was registered or entitled to be registered as owner?�, it would have answered, �No�.

I appreciate that the view I take of the proper construction of s. 17 leaves a gap in the processes for determining rights in and title to land which s. 15 of the Land Titles Commission Ordinance and s. 83 of the Land Ordinance may not adequately fill, but if that be so any remedy is a matter for the legislature and not this Court.

That the Commission should restrict its decision to the issues before it and form its decision precisely in terms of the relevant legislation has been made doubly important by the Land Titles Commission (Declaratory) Ordinance 1968 which provides in effect that a decision of the Commission (including a decision under the Restoration Ordinance) 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.

Whether, if the Commission declared it to be established that there was no interest instead of using the negative form of s. 17 and declaring it to be not established that there was an interest, the former declaration would for the purposes of the 1968 Ordinance be read down to the latter is a question which for reasons which will appear I need not decide in this case and on which therefore I express no opinion.

The second ground of appeal which alleges that the Commission failed to apply properly the provisions of s. 67(3) of the Restoration Ordinance raises a matter of considerable importance for as part of his submissions on this ground counsel for the respondent stated that I should not follow the decision in the Vulcan case[clxxxi]¹⁰�because it is inconsistent with the decision of the High Court in the Varzin case[clxxxii]¹¹�.

Section 67 is in Pt. VI�Miscellaneous. Subsection (1) makes several amendments to the Registration Ordinance including the repeal of ss. 16 to 43 which related to registration of freeholds already alienated or in the process of alienation at the time the Registration Ordinance came into effect, namely 1st June, 1924.

Subsection (2) re-enacts as s. 189a of the Registration Ordinance the provisions of the repealed s. 41. Then comes sub-s. (3) which reads:

N2>�(3)��� For the purposes of this Ordinance, a person shall be deemed to have been entitled, at the appointed date, to an interest in land, and to be entered or registered in a lost register as the owner of, or person entitled to, that interest if, in the opinion of the Commission, it would have been so entitled if�

(a)����� the provisions repealed by this section had remained in force;

(b)����� no relevant document or register had been lost or destroyed; and

(c)����� the procedure prescribed by those provisions had, before the appointed date, been completely applied in relation to that land.�

After reference to s. 9 it will be seen that sub-s. (3) is saying in general terms that a person is deemed to qualify as a claimant under s. 9 if in the opinion of the Commission he would have so qualified if the conditions in pars. (a), (b) and (c) of the subsection had been satisfied.

In St. Aubyn v. Attorney-General[clxxxiii]¹²�Lord Radcliffe said:

�The word �deemed� is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.�

These words were quoted with approval in Barclays Bank Ltd. v. Inland Revenue Commissioners[clxxxiv]¹³�by Lord Reid.

Similar remarks have been made in the High Court in Muller v. Dalgety & Co. Ltd.[clxxxv]¹⁴. Griffith C.J. speaking of a provision of the Immigration Restriction Act 1901 (Cth) said:

�The first question for determination in this appeal is whether s. 9d is to be read as an interpretation clause in the sense of an exhaustive definition, as suggested by the marginal note, or it is to be read as extending sub modo the sense which would otherwise be given to that word as used in s. 9a.

�The word �deemed� may be used in either sense, but it is more commonly used for the purpose of creating what James L.J. and Lord Cairns L.C. call a �statutory fiction� (see Hill v. East and West India Dock Co.[clxxxvi]¹⁵�), that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate.�

In the same report Barton J.[clxxxvii]¹⁶�quotes the following remark of Cave J. in Reg. v. County Council of Norfolk [clxxxviii]¹⁷:

�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.�

In this case there may be room for argument as to the sense in which �deem� is used in s. 10 of the Restoration Ordinance but there can be no doubt that in s. 67(3) it is used to include, for the purposes of the Ordinance within s. 9, claimants who would otherwise not qualify under ss. 9 or 10.

For myself I accept the conclusions reached in the Vulcan case[clxxxix]¹⁸�and do not find any difficulty in reconciling them with the decision in the Varzin case[cxc]¹⁹. The crucial question in Vulcan whether there was an entitlement to registration did not even arise in Varzin where it was clear that registration had in fact been effected, and it is for that reason that in Varzin the artificial extension effected by s. 67(3) was not relevant and in fact is not even mentioned in the High Court�s judgment nor in the reported arguments of counsel.

As a result of the repeal of ss. 16 to 43 of the Registration Ordinance no provision existed for bringing under the Registration Ordinance land which had been alienated prior to 1924. Section 67(3) gave a right to obtain registration to an owner of such land who was prepared to make and pursue an application and prove his entitlement under that section.

There was, however, an essential difference between the claimant in the Varzin case who claimed under s. 9 and the claimant in the Vulcan case who claimed that by virtue of s. 67(3) he was deemed to be a claimant under s. 9. The former had only to show he had in fact been registered and continued until the appropriate date to be entitled to registration. The latter, however, had to show that although he had never been registered and was not entitled at the appointed date to be registered he would have been entitled to registration if under the repealed provisions and with all relevant documents available proceedings, completed before the appointed date to bring the land under the Registration Ordinance, would have established his entitlement to registration.

It must be remembered that proceedings to bring land under the Registration Ordinance were initiated by the Registrar and not by the person claiming to be entitled to registration. Delays caused by the Registrar or by the Director could have occurred which resulted in no entitlement to registration being established by June 1942 when the Register closed. Thereafter, with the destruction of many relevant documents including the Ground Book, for at least most if not all of those who had not already established it, it would have been extremely difficult if not impossible to establish an entitlement to registration under the Registration Ordinance. It was only just therefore when in 1951 the Restoration Ordinance was introduced to provide machinery for the compilation of new registers that some provision should be made for those cases in which, perhaps through no fault of the person claiming to be the owner, proceedings to bring the land under the Registration Ordinance had not commenced or had not advanced to the stage where an entitlement to registration had been established. This I think may well have been the purpose of s. 67(3). The reduction in the administrative burden on the Registrar reffered to in Vulcan[cxci]²⁰�could on this analysis be not a further reason for the enactment of s. 67(3) but a result.

But whatever the correct approach may be I agree entirely with the conclusions of Minogue J. in Vulcan at p. 264, �that s. 67(3)(c) can only be explained on the basis that it was envisaged that the procedure prescribed by the repealed provisions might not have been completed or even begun for some land the subject of claims before the Commissioner�. And at p. 263: �s. 67(3)(c) could have no other purpose than to enable the Commissioner to consider applications for initial registration of title.�

It follows that in my view Vulcan was rightly decided and is not inconsistent with Varzin[cxcii]²¹. The two decisions complement each other.

I think that the joint effect of ss. 9, 10 and 67(3) of the Restoration Ordinance is that claimants, excluding the claimant who can produce his duplicate certificate of title (ss. 17(5), 35 and 37), may be conveniently separated into four classes not necessarily mutually exclusive.

The first is the claimant who seeks to establish that he was in fact registered before the destruction of the register and still remained entitled to be registered as at the appointed date (s. 9).

The second is the claimant who maintains that before the close of the register he was entitled to be registered in the sense that all formalities having been completed nothing remained but for the Registrar to register the certificate of title and that he continued so entitled to the appointed date (s. 9).

The third is the claimant who, in the absence of s. 10, would have been prevented from claiming a present entitlement to registration because of one of the matters therein referred to, but who is notionally included in the second class by s. 10.

The fourth is the claimant under s. 67(3) whose position I have described earlier.

It could perhaps be argued that there is not sufficient justification for separating the second and third classes because with the destruction of all the Registrar�s documents it would be necessary for a claimant in the second class to rely on s. 10(a) to establish his entitlement to registration on the appointed day. No doubt for many claimants this would be so but I conceive that it would be possible to have a case where an entitlement to registration had not matured into registration for some reason other than any of the circumstances referred to in s. 10. I think that to provide for such a case s. 10 should be read as extending s. 9 and not as providing an exclusive definition.

I now turn to a consideration of the present case in the light of what I have said. The Chief Commissioner stated:

�On the evidence before me I am not satisfied that the procedure prescribed by the provisions of ss. 16 to 43 of the Lands Registration Ordinance were complied with before the appointed date.

I find:

(a)����� That no Certificate of Title had issued before the appointed date.

(b)����� That the Applicant was not entitled to a Certificate of Title.

I direct that a Final Order will issue that the Applicant had no restorable interest as at the appointed date.�

As to the observation that the procedure prescribed by ss. 16 to 43 of the Registration Ordinance had not been complied with before the appointed date the appellant says that it was never part of his case under s. 67(3) that those provisions were complied with. And as to finding (a) above, the appellant says that it is correct but irrelevant.

Part of the difficulty in the present case is that it was not made clear before the Commission into which class or classes the claimant maintained he fell. In the transcript counsel for the Custodian is quoted as saying:

�I would like to quote p. 17 of the Varzin decision . . . I submit that on the evidence I produced we are entitled to be restored on the Register.�

I take the reference to p. 17 of the Varzin decision to be to the roneoed copies supplied by the Court before any report appeared in the journals. Neither on p. 17 nor for that matter in any other part of the Varzin decision, as I have already said, is there any reference to s. 67(3).

I must say that the transcript does not show clearly that counsel for the Custodian did not claim that ss. 16 to 43 had been complied with. This hearing took place in March 1965 which was after the decision in Varzin[cxciii]²²�but before the hearing and decision in Vulcan[cxciv]²³. What counsel for the Custodian is recorded as saying is perhaps less consistent with a submission based on s. 67(3) than with a submission that an entitlement to registration at the appointed date had been established without recourse to s. 67(3). However, the appeal was argued before me, without any objection from the respondent, on the basis that the Custodian had relied on s. 67(3) before the Commission.

The Chief Commissioner refused the claim because he was not satisfied that the provisions of ss. 16 to 43 of the Registration Ordinance had been complied with before the appointed date but to a claim based on s. 67(3) as construed in Vulcan and which presupposes that there had not been compliance with those provisions this was no answer. As I understand the section the Chief Commissioner was required to accept that those provisions had not been complied with and then, having made certain other assumptions, he was required to form an opinion as to what would have been the result if the repealed provisions had been complied with before the appointed date. It seems clear that he did not do this. He made only the basic inquiry posed by s. 9 whether or not the procedure under the Registration Ordinance had in fact advanced to the stage that registration or an entitlement to registration had been established.

On a proper application of s. 67(3) he would have started with the knowledge that ss. 16 to 43 of the Registration Ordinance had been partially applied. He knew that the Registrar had issued a draft certificate of title, that the Registrar had advertised as required by s. 21(3) and that the Director had advertised pursuant to s. 22. He was then obliged to assume that service of a copy of the draft certificate of title had been effected on the persons specified in s. 21(1) and then having considered the various courses which the proceedings might then have taken to form an opinion whether or not the claimant would have been able to establish an entitlement to an interest and to registration of that interest.

The respondent objects that on this construction of the section the Commission is required to indulge in a number of speculations. This may well be so but it is what I think the section requires.

It is unnecessary to set out the detail of the procedure which the Commissioner was then obliged to follow. Briefly, if he concluded that the Director would have certified under s. 22(c)(i) that there was no native claim then presumably he would form an opinion that the certificate of title would have issued free of any encumbrance protecting native customary rights.

If, however, he concluded that the Director would have referred the question of native rights to the Court or the Administrator, he would have gone on to consider the possible application of s. 22(c)(ii) and (iii) of the Registration Ordinance and of ss. 24, 24a and 24b. I exclude from consideration the possible later application of s. 27e by the Court because, as the respondent�s counsel pointed out, the land is unimproved and the claimant would have been unable to establish hardship.

The practical result would be that the Chief Commissioner could have formed any one of three opinions. Firstly, that the claimant would have obtained registration free from any encumbrance in favour of natives; secondly, that the claimant would have obtained registration subject to an encumbrance in favour of natives; or thirdly, that the claim to an entitlement to an interest which was registered or registrable would have failed.

[His Honour then considered and rejected a submission that the finding of the Commission was against the weight of evidence. He continued:]

The final question which arises is whether the claimant can succeed by calling in aid s. 67(3) of the Restoration Ordinance. The remarks of the Chief Commissioner when giving his decision show that he did not embark on the inquiry which in my view the section obliged him to undertake, and there is therefore no guide as to what his conclusion might have been.

For myself, I think it likely on the evidence that the Custodian would have been deemed entitled at the appointed date to an interest and to be registered as owner thereof. There was, as I have said, evidence of ownership by predecessors in title from at least 1911 which was really not challenged. Counsel for the Director conceded before the Commission that the natives could not say the land had never been sold and in effect he put the claimant to proof of his claim.

I should add that I reach this conclusion without any reliance on the possible application of s. 49 of the Restoration Ordinance to the Ground Book entries. That section does assist a person who qualifies as a claimant under s. 9, but if as here a claimant must rely on s. 67(3) then ss. 16 to 43 of the Registration Ordinance must notionally be completely applied and in deciding what conclusion the Court would have reached it must be remembered that the Court would have applied s. 26(4) which provided:

N2>�(4)��� The fact that no native rights are registered in the Land Register, or that the registration of any such rights therein has been cancelled, shall not of itself be taken to be any evidence that those rights do not exist.�

The result is that a claimant under s. 67(3) is entitled to rely on an entry in the Ground Book which shows him as the owner of the land to the same extent as he could have in proceedings under the Registration Ordinance, but he cannot oppose a claim that native rights existed over the land by relying merely on either the cancellation of registration or the absence of registration of native rights in the Ground Book.

But I think it equally likely that if the registration procedure had been �completely applied� an encumbrance in favour of the natives would have been indorsed to permit their continued use at least of the foreshore, for fishing and as a resting place while fishing.

This is not a case where registration before the destruction of the register is proved with the result that unregistered interests, even if then existing, are defeated. Here there was no registered certificate of title and there is evidence of native user of land not occupied by the owner before the commencement of the registration proceedings and it is reasonable to assume that the complete application of the provisions relating to those proceedings including s. 26(4) would have resulted in the formal protection of that user.

My concern has been whether I should, in the circumstances, make an order giving effect to the views I have just expressed. After consideration I have decided I should not. I propose to set aside the final order made because I am satisfied that the Commission did not make the inquiry required of it by s. 67(3) of the Restoration Ordinance; but it seems to me that even after the proper inquiry is made the question whether an entitlement would have arisen in the conditions stipulated is one which the Ordinance commits to the opinion of the Commission and there appears to be no reason why that opinion should not be sought.

The order of this Court will be:

N2>(a)����� that the appeal be allowed and the final order quashed;

N2>(b)����� that the case be remitted to the Commission for rehearing;

N2>(c)����� that liberty be reserved to either party to apply as to the costs of this appeal.

Ordered accordingly.

Solicitor for the respondent: W. A. Lalor, Public Solicitor.

Solicitor for the appellant: P. J. Clay, Acting Crown Solicitor.