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Director of Native Affairs v Custodian of Expropriated Property (re Admosin Island) [1971] PGSC 14; [1971-72] PNGLR 483 (3 December 1971)

Papua New Guinea Law Reports - 1971-72

[1971-72] PNGLR 483 - Director of Native Affairs v Custodian of Expropriated Property (re Admosin Island)

[1971-72] PNGLR 483

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DIRECTOR OF NATIVE AFFAIRS

V.

CUSTODIAN OF EXPROPRIATED PROPERTY (RE ADMOSIN ISLAND)

Madang & Port Moresby

Williams J

21 October 1971

2-3 December 1971

REAL PROPERTY - Restoration of title - Insufficient evidence to establish interest in land under ss. 9[dxxv]1 and 10[dxxvi]2 of the New Guinea Land Titles Restoration Ordinance 1951 - Insufficient evidence to establish that certificate under s. 17[dxxvii]3 Lands Registration Ordinance did or could have issued - Proper application of s. 17 (1) (c)[dxxviii]4 of the New Guinea Land Titles Restoration Ordinance.

In order to succeed in a claim based on ss. 9 and 10 of the New Guinea Land Titles Restoration Ordinance, 1951 a claimant must produce evidence directly proving his entitlement to registration of an interest in the land or evidence from which such entitlement may properly be inferred. A claimant cannot succeed merely on the basis that the case put forward by him is to be preferred to that raised by an objector.

Dictum of Clarkson J. in Custodian of Expropriated Property v. Director of District Administration (Re Tonwalik), [1969-70] P. N.G.L.R. 110, approved.

Where, upon the evidence before the Land Titles Commission it cannot be properly concluded that a certificate under s. 17 of the Lands Registration Ordinance did in fact issue or could properly have been issued, and to find otherwise would involve making assumptions or inferences quite unsupported by proper foundation, a claim based on s. 67 (3) of the New Guinea Land Titles Restoration Ordinance breaks down and must fail.

Opinion expressed that it is open to very serious doubt whether there is jurisdiction to make a declaration under s. 17 (1) (c) of the New Guinea Land Titles Restoration Ordinance in cases where it is not established that a person was, at the appointed date, entitled to an interest in land and to be registered and entered in a lost register as the owner of, or person entitled to that interest. A declaration made pursuant to s. 17 (1) (c) (ii) must be a declaration of the nature and extent of �the native customary rights (if any) which, at the appointed date were retained by a native or native community in respect of that land�. The phrase �that land� must, in the context in which it appears, refer to land in respect of which an affirmative declaration has been made under s. 17 (1) (a).

Re Adolfhafen Land, [1971-72] P. & N.G.L.R. 326, distinguished.

Additional case referred to:

Tolain v. The Administration of the Territory of Papua and New Guinea; In re Vulcan Lands, [1965-66] P. & N.G.L.R. 232.

Appeal from the Land Titles Commission.

On 31st October, 1952, the Custodian of Expropriated Property claimed entitlement to be registered in the register book in respect of a fee simple interest in the subject land. On 4th October, 1954, the Commissioner of Titles made a provisional order provisionally restoring the claimed interest to the Custodian subject to certain encumbrances in favour of the Administration. He also provisionally declared that at the appointed date no native rights prevailed over the subject land.

A certificate under s. 36 of the New Guinea Land Titles Restoration Ordinance 1951 was filed by the Director of Native Affairs to the effect that to the best of his knowledge and belief there were no native claims to the subject land. In April 1964 the Director lodged an objection to the making of the final order on the grounds that the land had not been purchased from the owners of the land, namely the Kitapain clan.

The claim and objection were heard before the Land Titles Commission in October and December 1964 and on 30th December, 1964, the Land Titles Commission made a final order declaring that the Custodian had proved his claim and that no native rights prevailed over the land.

The Director on behalf of the native claimants appealed to the Supreme Court and relied upon the following ground of appeal:

N2>�2.����� The first ground of appeal is that the Land Titles Commission exceeded its jurisdiction in proceeding to investigate hear and determine the claim made by the respondent under the provisions of the New Guinea Land Titles Restoration Ordinance when there was no evidence or no sufficient evidence before it that the respondent was entitled to make such a claim.

N2>3.������ The second ground of appeal is that the Land Titles Commission was wrong in law in finding:

(a)����� that the respondent had established that at the appointed date he had an interest in the said land in that there was no evidence or no sufficient evidence before it to support such a finding;

(b)����� that the respondent had established that as at the appointed date he was entitled to be registered on a lost register as the owner of the said land;

(c)����� that the question of radical title was relevant to the determination of a claim made under the provisions of the New Guinea Land Titles Restoration Ordinance;

(d)����� that the Administration of the Territory of Papua and New Guinea had a radical title to the said land and that such a finding led to the conclusion that the respondent had established as at the appointed date an interest in the said land and entitlement to registration on a lost register as the owner of that interest.

N2>4.������ The third ground of appeal is that the Land Titles Commission was wrong in law in making the said final order in that it failed to apply the provisions of Section 67 (3) of the New Guinea Land Titles Restoration Ordinance 1951-1963 to the facts of this case or alternatively that it failed properly to apply the provisions of the said Section 67 (3) to the facts of this case.

N2>5.������ The fourth ground of appeal is that the Land Titles Commission was wrong in law in rejecting the evidence of the circumstances of the purported sale.

N2>6.������ The fifth ground of appeal is that the Land Titles Commission exceeded its jurisdiction in rejecting the evidence of the circumstances of the purported sale.

N2>7.������ The sixth ground of appeal is that the decision of the Land Titles Commission was against the weight of the evidence in that the weight of the evidence tended to indicate either that the respondent had failed to establish an interest in the said land or alternatively that the respondent had failed to establish entitlement to registration on a lost register in respect of that interest.�

The relevant facts and arguments of counsel appear in the reasons for judgment.

Counsel:

O�Neill, for the appellant.

Woods, for the respondent.

Cur. adv. vult.

3 December 1971

WILLIAMS J:� This is an appeal against a final order by the Chief Commissioner of the Land Titles Commission made under the New Guinea Land Titles Restoration Ordinance 1951-1963 concerning land known as Admosin Island, District of Madang.

[His Honour after referring to the history of the litigation and the grounds of appeal then continued:]

On the claim by the Custodian the task facing the Chief Commissioner was to determine whether, at the appointed date (i.e. 10th January, 1952), the Custodian was entitled to an interest in the land, the subject of the claim and was entitled or deemed to be entitled to be registered or entered in a lost register in respect of that interest: ss. 9 and 10 of the Restoration Ordinance. Alternatively, it was necessary for the Chief Commissioner to consider whether, pursuant to s. 67 (3) of the Ordinance, the Custodian was deemed to have been entitled, at the appointed date, to an interest in the land and to be entered or registered in a lost register as the owner of or person entitled to that interest.

The Chief Commissioner gave reasons for his decision, which I set out hereunder:

�It seems to me the evidence is fairly slender on both sides. We will have to decide which is the less slender. As far as the claim by the Custodian is concerned I would like to state some thing which I think in this instance it is automatic that the Administration has a title to all land. There must be some positive evidence to establish an interest by way of a grant to power, especially where it involves interest by the native customary tenure. I will mention these to give an idea what I consider to be the large plots to these particular interests in land throughout the Territory in general. What I mean in regard to native customary tenure is if a native says so I would believe him if he said his father gardened there. In this case there is some evidence that there was some sort of sale. Whether it was a sale because of a family row we do not know and I do not think it is important. Australian families have been known to indulge in this expensive method of getting their own back on each other and it is sometimes in a more refined way by getting support from the legal profession. I think in this case there is evidence of a sale by someone to the Germans and I do not think I will have to go into the question. It was sold at some rate. The Custodian�s evidence is extremely slender. There will be an order in favour of the Custodian. It will just have to be the whole of the Island above high-water mark as there is no survey.�

The basis upon which the Chief Commissioner reached his conclusion in favour of the Custodian is by no means clear. He opened with the words: �It seems to me that the evidence is fairly slender on both sides, we will have to decide which is the less slender.� Later, he said: �I think in this case there is evidence of a sale by someone to the Germans. I do not think I have to go into the question. It was sold at some rate. The custodian�s evidence is extremely slender. There will be an order in favour of the Custodian.�

From the words quoted above it seems to me that the Chief Commissioner reached his conclusion on the basis that there were before him two competing claims, that the evidence presented on each side was slender and he was called upon to decide between two slender competing claims. He found some evidence of a sale by someone (unnamed) on behalf of the native objectors to �the Germans� which tipped the scales against them in favour of the Custodian.

If, as appears to be the case, this was the approach of the Chief Commissioner, then it seems to me that it was an incorrect one. It was for the Custodian to establish an interest in the land and an entitlement to registration of that interest under the Restoration Ordinance. As was said by Clarkson J. in Re Tonwalik[dxxix]⁵: �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 is so registered or entitled.�

It seems to me that a claimant in order to succeed in a claim under the Restoration Ordinance must produce evidence directly proving his entitlement or from which his entitlement may properly be inferred. He cannot, in my view, succeed merely on the basis that the case put forward by him is to be preferred to that raised by an objector.

I turn now to the evidence before the Chief Commissioner. In the claim form the Custodian claimed an estate in freehold, which, he asserted, was acquired by him by expropriation on 10th January, 1920. He further stated that the interest had not been registered, entered or notified in the register book, the land register (Grundbuch) or in any other record. Of the documentary evidence attached to the claim form the earliest is a sheet of paper containing the text of several radio messages passing, in 1926, between the Custodian and his representative in Rabaul, which are concerned only with the area of Admosin Island. To the question in the claim form �Can you give any other information likely to be of assistance to the Commissioner concerning the land the subject of the interest, or the whereabouts of documents or any other matter or thing affecting this claim, if so give details?� appears the answer �Advertised for sale in Rabaul Times No. 175 of 24/8/28, and No. 177 of 7/9/28 present purchaser estate of T. V. Wallace fully paid�. The next document in chronological order is annexure �C�, which is a note bearing the initials �W.C.T.� and bearing date 2nd June, 1931, stating that the property is not entered in the groundbook, but that the records of the Custodian�s office at Rabaul show that permission to acquire the island was given by the German fiscus. The note adds that freehold title should be issued under s. 17 of the Lands Registration Ordinance 1924 of New Guinea. The note does not reveal the identity of its author �W.C.T.�; however, I observe that annexure �D� purports to be signed �W. C. Thomas, Custodian of Expropriated Property�, so that I assume that �W.C.T.� can be identified as W. C. Thomas, Custodian of Expropriated Property. Annexure �D� is an inquiry from the Custodian of his delegate in Rabaul as to the position concerning the issue of title to the island, whilst annexure �E� is a report from the Delegate to the effect that no progress could be made in the matter as the relevant file had been mislaid. Annexure �F� is a copy of a letter, dated 21st November, 1931, from the Delegate in Rabaul to the Custodian, stating that the file had been located and that �it seems fairly certain that a section 17 certificate will issue in due course�. The latter annexure adds that there was a German survey of the area and there was every possibility that it may be found sufficiently accurate for the purposes of a s. 17 certificate, in which case �an early decision as to the title may be expected�.

This is the total of the documentary evidence before the Chief Commissioner. It is to be noted that there was no entry in the groundbook in relation to the subject land, and that the earliest document produced in support of the claim is dated 16th October, 1926.

At the hearing before the Chief Commissioner at Madang on 6th October, 1964, oral evidence was given by Mr. R. J. Wilson, a cadet patrol officer. He stated that he had made an investigation into the history of Admosin Island. From what he had been told, the people from the mainland had been driven by tribal fighting to nearby islands and had occupied Sek and Kitapain Islands. Whilst living on Sek Island they gardened on Admosin Island. It is also said that one Aui destroyed the fruit trees of one Tangis, who then went to the German missionaries and said he would sell them the island. The Germans came to live on the island, and agreed to buy it, but that was as far as the transaction went. As far as Mr. Wilson had been able to ascertain no one had received any payment. Mr. Wilson went on to relate that he was told that the Germans went away and that at the present time (that is October 1964) Peter Amam, a mixed blood, who works for the Catholic Mission at Sek village, is living on the island. Mr. Wilson was informed that in 1947 the natives had gardens on the island and that Amam�s pigs raided the gardens, causing the natives to leave. Mr. Wilson stated that he believed that Mrs. L. F. Carter of Brisbane owned the island, because she wrote a letter to the mission. He added that the natives claim that the coconuts on the island were planted by their forefathers.

There was also before the Chief Commissioner, a statement by Panu Galagal, the head of the Kitapain land-owning group. This statement was obtained by a Mr. Chester, when, in 1963, he investigated native claims to the island. Panu claimed his group was the owner of a number of islands, including Admosin Island. After giving an account of the founding of his line, he stated that, when the Germans first arrived, his group was living on Sek Island and gardening on Admosin Island. The Germans acquired some land at Sek Point, on the mainland, from another group, and settled there. As to Admosin Island, he claimed that this was sold to the Germans by a man named Tangases, who, he said, was not a real member of the Kitapain land-owning group. He stated that one Aiu had a garden on Admosin Island in which were planted some fruit trees. An unknown person lit a fire which got out of control and destroyed the trees in Aiu�s garden. Tangases, who was a relative of Aiu, became very angry and in revenge, and without telling anyone, sold the island to the Germans for one bag of rice, one blanket and an axe, which were not shared amongst the Kitapain group. Panu said that, when his forefathers heard about the sale, they were very angry, but did not complain because of fear of the white men. In effect, Panu claimed that the purported sale was invalid because Tangases had no authority to make a sale.

Panu also gave evidence before Commissioner Page, who was requested by the Chief Commissioner to take this evidence. In his evidence Panu claimed that his people owned Admosin Island, he said that his ancestors resided on the nearby island of Sek and used Admosin Island for gardening. The first Europeans to come to the area were Germans. One European man came to the island and �marked� land, saying that he would return later and build a �hospital or something� on this island. He did not return and Panu�s people continued to use the island for gardening until the Japanese war. His people had not used the island since the Japanese war, and the island has been used by two mixed bloods from a nearby mission, for raising pigs, and fowls. His people still use the waters surrounding the island for fishing and go ashore �to get the pepper vine and edible greens�. In answer to questions by Commissioner Page, Panu stated that the land presently occupied on the nearby mainland by the mission, was sold to the mission by Futol, a member of the Panuadan group. He did not know whether Futol had also sold Admosin Island to the mission.

The Custodian asserts entitlement to an estate in freehold in the land by expropriation, that is to say that, by force of the Expropriation Ordinance 1920-1934, there became vested in him property formerly belonging to a prescribed company, a prescribed national or a prescribed estate. It was said by counsel for the Custodian that there was evidence of expropriation in that the assertion was made by the Custodian under statutory declaration in the claim form. However, it seems to me, that before any weight can be attached to this assertion it is necessary to examine the surrounding circumstances to see if there is any basis for it.

It was contended for the Custodian that there was evidence of a sale by the original native inhabitants and that the Chief Commissioner had so found. This, coupled with the fact that between the years 1926 to 1931 the Commissioner was taking some steps to obtain title gave rise, it is said, to a presumption that an interest in the subject land had come into existence and had passed to the Custodian.

As to the �sale� it was found by the Chief Commissioner that: �I think in this case there is evidence of a sale by someone to the Germans. I do not think I will have to go into the question. It was sold at some rate.� Presumably, the Chief Commissioner is referring to the statement of Panu to the effect that the island had been sold to the Germans by Tangases, for one bag of rice, a blanket and an axe. It was said by Panu that Tangases had no authority to effect the sale of the island and in fact the objection of the respondent in this proceeding was that there was no purchase because there was no transaction between the German Administration and the heads of the Kitapain clans owning the land. But even if it be accepted that a transaction as described by Panu took place and that Tangases had authority to enter into the transaction the question still remains whether it was one sanctioned by the German authorities and which resulted in someone obtaining an interest in the land capable of registration. It appears that, both in the time of the control of the area by the New Guinea Company and of the German Imperial Government, strict rules were laid down in connexion with the acquisition of land from the natives. Whether or not the transaction described by Panu was one sanctioned by the relevant authority does not appear. It has been said in annexure �C� to the Custodian�s claim that records of the Custodian�s Delegate in Rabaul show that permission to acquire the land was given by the German fiscus, and this indicates that the transaction was approved by the German authorities. The transaction said to have been approved by the fiscus is not identified, nor does it appear whether the permission was a conditional or an unconditional one.

In the circumstances which I have detailed above, there does not seem to me to be any evidence to show that any identifiable person had acquired an interest in the subject land nor any evidence of the nature or extent of any interest which may have been acquired by and which passed to the Custodian under the Expropriation Ordinance 1920. In the evidence of Panu concerning the sale of the land no mention is made of the time of the alleged transaction. It may have been in the time of the control of the area by the New Guinea Company or in the time of the control of the German Imperial Government. The identity of the person who entered into the transaction with Tangases is not revealed. He may have been a representative of the company, the German Government, or a mission, or he may have been a private individual. Whoever he was, he could not have acquired an estate in fee simple from the native people, as they would have had no such estate to confer. To obtain an interest cognizable under the German law it would have been necessary for the purchaser to have met all the strict requirements of whatever law was applicable at the relevant time. The transaction described by Panu is surrounded by so much uncertainty and obscurity that no conclusion could properly be drawn from it.

In my view the claim of the Custodian, in so far as it is based upon ss. 9 and 10 of the Restoration Ordinance must fail.

It was also contended on behalf of the Custodian that if no entitlement arose under ss. 9 and 10 of the Ordinance, then an entitlement arose under s. 67 (3) of the Ordinance.

Whether or not the Chief Commissioner directed his mind to the provisions of s. 67 (3) does not appear in the reasons for the decision given by him, although it does appear that s. 17 of the Lands Registration Ordinance was canvassed in argument before him.

Division 2 of Pt. III of the Lands Registration Ordinance was concerned with bringing under the provisions of the Ordinance land, or interests in land, alienated or in process of alienation before the Ordinance came into force on 1st June, 1924. In effect it provides machinery for the issue of title under the Ordinance to persons who are either registered in the Land Register (Grundbuch) or entitled before 9th May, 1921, to be registered therein.

By s. 67 (1) of the Restoration Ordinance, ss. 16-43 inclusive, contained in div. 2 of Pt. III of the Lands Registration Ordinance were repealed. At the same time sub-s. 3 was enacted in the following terms:

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 Commissioner he 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.�

Section 67 (3) has received consideration in previous decisions of this Court. Tolain v. The Administration[dxxx]⁶; Re Tonwalik[dxxxi]⁷; Adolfhafen Land Case[dxxxii]⁸. As was said in the latter case, it is for the Chief Commissioner, having regard to the evidence then before him, to apply the repealed provisions of the Ordinance assuming that they had remained in force and the proper procedure had been applied and to form an opinion as to whether the claimant had proved that he was entitled to be registered in the lost register as entitled to an interest in the land.

I turn now to the repealed sections. Section 16 plainly has no application to the present case because, as conceded by the Custodian in his application, there had not been any entry in the Land Register (Grundbuch) concerning the subject land. The starting point in the procedure to bring the subject land under the provisions of the Lands Registration Ordinance must therefore be found in s. 17. That section provided for the issue of a certificate by the Commissioner of Lands to a person who was, before 9th May, 1921, entitled, either immediately or in the future, and either absolutely or contingently under the law then in force to be registered in the Land Register as the owner of any estate or interest in land.

For the Custodian it was submitted that the Chief Commissioner could properly have found that a s. 17 certificate had issued. This submission is based on the contents of annexures �C� and �F� to the claim form. The former, dated 26th March, 1931, contains a statement over the initials of W.C.T., who, presumably, was the Custodian, that �freehold title should be issued under s. 17�. The latter is a copy of a letter dated 21st November, 1931, from the Custodian�s Delegate at Rabaul to the Custodian wherein it is stated that a file of papers dealing with the acquisition of Admosin Island had been located in the lands department from which �it seems fairly certain that a s. 17 certificate will issue in due course�. The letter went on to say that: �there is a German survey of the property which is now being checked, although the survey was made with a compass, there is every possibility that it may be found to be sufficiently accurate for the purposes of a s. 17 certificate. In that case an early decision as to the title may be expected.�

It is said for the Custodian that in the light of these statements that an inference may properly be drawn that in all probability a s. 17 certificate did ultimately issue. There is of course no evidence that a certificate did issue, but it is said that there was a presumption arising from the statements of the public officials to which I have referred that a s. 17 certificate would have issued, and that the loss or destruction of records in Rabaul precluded the giving of more positive proof.

The purpose of the document annexure �C� is not explained. It is probably a file note intended to be a direction by the Custodian to his subordinate officers to take steps in an endeavour to obtain a s. 17 certificate. The document annexure �F� contains statements which, in my view, could be put no higher than the expression by the Rabaul Delegate of the Custodian of an opinion, or the expression of a hope or expectation that a s. 17 certificate would issue. He was not the person charged with the duty of issuing a certificate but was, in fact, a person with an interest in obtaining one. The function of issuing a certificate was conferred by the statute upon the Commissioner for Lands. Had the latter expressed the opinion that it was probable that a certificate would issue, much more weight could be attached to the statement.

Nearly ten years elapsed between the writing of annexure �F� and the loss or destruction of records in Rabaul due to enemy action. If, as has been suggested, a certificate did eventually issue, then it is surprising that there is no record of it. While the loss or destruction of records in Rabaul is readily explainable, it nevertheless seems to me that, at all material times, the office of the Custodian was located in Australia and the documents which are annexed to the claim form came, presumably, from that source. If the matter of the issue of a certificate progressed, as has been suggested, then I find it difficult to understand why the Custodian�s records kept in Australia did not disclose the outcome of the matter.

Upon the evidence before the Chief Commissioner I do not see how it could properly be concluded that a s. 17 certificate did in fact issue, or indeed could properly have been issued. To say otherwise would, in my view, involve the making of assumptions or inferences quite unsupported by any proper foundation.

On my view of the matter, the claim by the Custodian based on s. 67 (3) breaks down at this point and must fail also.

The question now arises as to the form of the order I should make. Counsel for the appellant submitted that, in the event that I should find that the Custodian�s claim failed, I should declare that native customary rights in the Kitapain group prevailed. Counsel for the respondent opposed this submission.

It is to be noted that before the Chief Commissioner there was an objection to the making of a final order on the ground that �the land was not purchased in that there was no transaction between the German Administration and the heads of the Kitapain clan owning the land�. There was no reference to the Chief Commissioner under s. 36 of the Restoration Ordinance of the question of customary native rights in the land so that strictly the issue of the existence or otherwise of customary native rights in the land was not raised before the Chief Commissioner.

But in any event it seems to me that it is open to very serious doubt whether there is jurisdiction to make a declaration under s. 17 (1) (c) of the Restoration Ordinance in cases where it is not established that a person was, at the appointed date, entitled to an interest in land and to be registered or entered in a lost register as the owner of, or the person entitled to that interest. A declaration made pursuant to s. 17 (1) (c) (ii) must be a declaration of the nature and extent of �the native customary rights (if any) which, at the appointed date, were retained by a native or native community in respect of that land�. The phrase �that land� must, I think, in the context in which it appears, refer to land in respect of which an affirmative declaration has been made under s. 17 (1) (a). The main purpose of the Restoration Ordinance must also be kept in mind.

This question was considered by Clarkson J. in the Tonwalik Island Case (supra) who held that, once the Commission concludes that there was no registration nor entitlement to registration it is not required to pursue its inquiries further. Counsel for the appellant referred me to the decision of Frost S.P.J. in the Adolfhafen Land Case (supra) where the claim of the Custodian failed and a declaration regarding native customary rights was made. However it appears, in that case, the point was not argued and the declaration was made without objection. In these circumstances I do not think that assistance can be gained from that case.

I order that the decision of the Chief Commissioner be quashed and that in lieu I order that the Custodian has not established that he was, at the appointed date, entitled to an interest in the subject land. I reserve liberty to apply as to the form of order.

Appeal allowed. Final order quashed. Declarations accordingly. Liberty to apply.

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

Solicitor for the respondent: P. J. Clay, Crown Solicitor.