Guba v Administration of the Territory of Papua and New Guinea [1971] PGSC 51 (31 May 1971)

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IN THE FULL COURT OF
THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

DAERA GUBA ON BEHALF OF HIMSELF AND THE
TUBUMAGA CLAN OF POREPORENA
Appellant

THE ADMINISTRATION OF THE TERRITORY OF
PAPUA AND NEW GUINEA
1^st Respondent

DAERA GUBA ON BEHALF OF HIMSELF AND THE
TUBUMAGA CLAN OF POREPORENA
2^ndRespondent

Judgment of Clarkson J. reversed insofar as it amended the Order of the Land Titles Commission. Order of the Land Titles Commission restored.
1970
May 29, Jun 1, 2, 3, 4, 5, 8, 9, 10, 11, 12.
Aug 26, 27, 31, Sep 1, 2, 3, 4, 7, 8, 9, 10, 11

These are two appeals from a decision of Clarkson J. sitting as an appellate judge under the Land Titles Commission Ordinance 1962-1968 and handed down on 26^th November 1969.

It is a matter for regret that this Court has taken so long to pronounce upon these important matters before it, the more so as the land the subject matter of the appeal has now merited the attention of five tribunals over a period of nearly 17 years. However, this delay has been unavoidable because both of the difficulties experienced by the legal profession in this Territory and the conditions under which this Court functions. The hearing of the appeal, which lasted for 23 sitting days, had to be split into two periods and on the conclusion of the argument each of the members of the Court had to divert his attention to urgent nisi prius work in order that a breakdown in the functioning of the Court system would not occur.

The Land Titles Commission in the person of its Chief Commissioner upheld a claim by Daera Guba of the Tubumaga idibana clan on behalf of the descendants of Guba Daera deceased and declared that an area of land consisting of some 42 acres situated in the urban census division of the Port Moresby Sub-District was owned by the Tubumaga clan the present leader of which is the appellant Daera Guba. The land was known to the claimants as Ere Taora and is situated in the Newtown area of Port Moresby. The Commission also rejected claims by Lohia Doriga of the Giakone clan on behalf of the descendants of Iramo Hada (whom I take to be the members of that clan) and by the Administration to be registered as owners of the said land.

When the matter came on appeal before Clarkson J. he ordered that the order of the Land Titles Commission be amended in effect to award to the appellant Daera Guba on behalf of the Tubumaga clan only a very small portion of Era Taora and to award the balance of the land to the Administration. As to the major portion thereof he held Daera Guba and his clan estopped from asserting ownership by virtue of the decision of a Board set up by the Administration in 1954; and as to the remainder he held that part was the subject of a valid purchase by or on behalf of the Crown in 1886, and that the balance had been properly acquired by the Grown by virtue of a Proclamation made in 1901. The learned appeal judge rejected the appeal of Lohia Doriga who now has appealed to the Full Court against this rejection.

The evidence which fell for consideration in this case ranged over a wide span of time, to say nothing of a vast mass of documentary material, and I think it convenient to deal with such evidence as far as possible segmentally in its relation to the grouping of the grounds of appeal. And so I begin by setting out, of necessity in some detail, the relevant history of events and the law bearing on the alleged acquisition of the subject land insofar as I can piece it together from the material before the Court.

In June 1884 Queen Victoria declared portion of the southern coast of New Guinea to be a Protectorate of the Crown. On 6th November 1884, at Port Moresby, Commodore Erskine read a Proclamation in which the Protectorate was stated to be over the southern shores of New Guinea extending from the 141st meridian of east longitude to East Cape. Some years previously the Reverend Mr. Lawes, a member of the London Missionary Society, had with other members established a Mission Station at Port Moresby and he interpreted the proclamation to such of the native population as was present. According to him those present were given the assurance that their lands would be secured to them and he took the view that they were also being impressed with the belief that no large influx of foreigners would be permitted. No intimation was given either that Her Majesty would require the people to part with large tracts of land to the Government nor that a large influx of white men was likely to spread over the land. Amongst regulations made by Erskine for the governance of the Protectorate, was one (No. 4) which stated: "No settlement or acquisition of land is on any account to be permitted."

In 1885 Major-General Sir Peter Scratchley was appointed as Special Commissioner for the Protectorate. He arrived in Port Moresby on 22nd August of that year but a few months later became ill and he died at Cooktown in December 1885. In the same month The Honourable John Douglas was appointed Special Commissioner. He arrived in Port Moresby in June 1886. His Commission recited that the Queen had been pleased to take under Her protection and jurisdiction the southern and south-eastern shores of New Guinea from the 141st meridian of east longitude eastward as far as East Cape, and the further boundaries set out therein surrounded an area which is approximately equivalent to the present mainland Papua together with the Trobriand, Woodlark, D'Entrecasteaux and Louisiade Islands. This Commission was forwarded to Douglas from London on 8th January 1886 and on the following day was sent to him a despatch from Colonel Stanley (who was then Secretary of State for the Colonies) in which it was stated that Sir Peter Scratchley's despatches showed that he did not fully understand that unless the territory included in the Protectorate became British soil by the declaration of Her Majesty's sovereignty over it the Queen dial not possess and therefore could not delegate to him a general power to make laws which would bind persons other than her own subjects. Douglas was reminded that Her Majesty could by Order in Council under the Foreign Jurisdiction Acts establish courts and make such other regulations as she thought necessary for the control of her own subjects. He was further informed that the Queen had exercised this power in respect of the South Seas by means of the Western Pacific Orders in Council and as those Orders extended to New Guinea and the adjacent Islands it was considered unnecessary to issue a fresh Order specially affecting the Protectorate, at any rate not until experience of the actual localities should have enabled the Special Commissioner to furnish the Secretary of State with some indication of the points to which attention should be specially directed. Apparently Douglas was also issued with another Commission as Deputy Commissioner under the Western Pacific Orders in Council to the intent that he should be invested with judicial authority so far as was conferrable by those Orders. Paragraph 6 of Stanley's despatch to Douglas was as follows:

" 6. It was considered that these powers would meet the requirements of the case on the first arrival of Sir Peter Scratchley, but it was not contemplated that they would be permanent, and, after consulting the Law Officers, Her Majesty's late Ministers decided that the Protectorate should in due time be added to the Queen's dominions, and I am advised by the Law Officers that this accession of dominion when effected must be regarded under the circumstances as having been acquired by settlement, and not by conquest or cession."

On Douglas' arrival he had the services of Mr. Anthony Musgrave as Deputy Assistant Commissioners an office which apparently the latter also held in the time of Sir Peter Scratchley. In the Queensland Government Gazette of 27th August 1886 there was published as a supplement the following notice:

It is hereby notified for public information, that certain Township lands, now under survey, comprising the south-eastern shores of Port Moresby, and bounded on the north by a line running easterly from a point north of the Island of Elevara to the summit of the coast range, thence due south to Ila Beach, facing the Basilisk Entrance, shall hereafter be known and designated by the name "Granville".

1. It is further notified that the Northern Division of such lands from the aforesaid Northern Boundary to a line running east and west between the Argus Villa and the southern extremity of the Native Villages - from the summit of the ranges to the sea - shall be at present, created and known as a "Mission and Native Reserve", set apart from mission premises and holdings, both cultivated and uncultivated, for the separate use of the Missionaries and native inhabitants, and only subject to claims for necessary public purposes, such as roads and similar objects.

2. Between the southern boundary of the Mission and Native Reserve and a road called Spring Garden Road, also running east and west between the summit of the range and the harbour, the second division of Granville shall be included and known as the "Government and Botanic Gardens Reserve".

3. From the Spring Garden Road to Paga Point, and thence to Ila Beach to the Badili Reserve, forming the third division of Granville, shall be appropriated to Township Allotments and other Government Reserves for future settlement.

The land referred to in the third paragraph of this notice is virtually the whole of the land upon which the town of Port Moresby at present stands and within it is Era Taora. No evidence as to Musgrave's authority nor the reason for the publication of this rather extraordinary document was given.

It is convenient at this point to include a map of the land referred to in paragraph 3. The detail thereon I have selected to illustrate matters to which I will refer hereafter.

Editor's Note: Refer to page 6 of the above attached PDF for map of the land above-mentioned.

In November 1886 Musgrave wrote a long memorandum to Douglas setting out what he described as the acquisition of certain Government lands. In this memorandum he began with the first acquisition made in September 1885 and then went on to deal seriatim with purchases made during or just after the term of the first Special Commissioner. In the first purchase which appears to have been of about 9 acres he noted that he had secured the land from the Motu and Koitapu people of the villages adjacent to the London Mission Station. The two competing sets of native claimants before the Land Titles Commission were respectively Motuan and Koitapuan. At the time of the sale he noted that none of the land purchased was in cultivation and that the natives had declined to sell event a small plantation. He remarked that the late Special Commissioner was in a doubtful and difficult position with regard to his powers either to acquire or alienate land. He saw an implication in the Commissioner's instruction (which were not before the Court) that land purchases might understanding that the Commissioner and instructions gave him sufficient discretionary power to act for the general good and upon well-approved principles of settlement and in this sense to relax Erskine's Regulation No.4 to which I have referred. The memorandum then went on to deal with each successive purchase, the last in 1885 being that of an area of 333 acres at Badili. This purchase is not shown on the map (above) and is generally to the east of Lawes Street. He stated that the main object in securing this area was to be able in the event of Port Moresby natives proper being reluctant to sell or making excessive demands for lands urgently needed for settlement to substitute other holdings equally suited for cultivation but not equally monopolizing wharf frontages, etc.

"9. No further purchases of land were made until after Your Excellency's arrival here in June last. Acting upon your memorandum of instructions with regard to the acquisition of lands in conjunction with the surveys at Port Moresby, which it was most important to have effected, Mr. Robert Hunter, as an agent for the Government, accompanied by the Government interpreter and the present chief of the local village, Ah-oo-doo, made purchases from time to time, as other duties permitted, to the extent of about 222 acres. All the cultivated grounds that interrupted the road reserves have been bought at a full price, but the natives have had it explained to them that in future, when the Government make roads for their benefit as well as for the foreigners' convenience, they ought to grant land free for that and other public purposes.

Mr. Hunter began purchasing on the 8th July, and ceased by my direction on the 8th October, having secured all the lands required within the surveyed portion of the settlement, newly entitled "Granville". The recent acquisitions may therefore be summarised as follow:

Government domain and bungalow site, &c., of 9 acres	... ...	52
Granville East, township	... ...	95
Ila Beach, suburban lands	... ...	22
Granville West, township	... ...	50
Badili lands		333
		552

Paga Hill Reserve	... ...	50
Goldie Law Reserve	... ...	236 ½
Cemetry (assumed for public purposes, within Native Reserve	... ...	3
Government Station (late Mr. A. Goldie's holding)	... ...	2 ½
Total acreage	... ...	844

The purchase lands have cost £339 19s. 1d. from the first transaction in 1885 to date, at Port Moresby, and inclusive of the block at Badili. The country lands in Dora and Suau cost £7 0s. 10d.

Your Excellency was an interested eye-witness of the purchase of a portion of garden ground, and is fully aware of the exceptionally troublesome and tedious nature of acquiring land by the present method. The lands purchased at Port Moresby, already stated at 552 acres, involved twenty-seven different transactions on as many different days, and compelled negotiation with, and payment of, 1258 different vendors or rather more than half-an-acre from each native. It seems evident, therefore, that any such process as has been adopted during this season would be too expensive and cumbrous to continue, and it is most desirable that another and more convenient mode of adjusting the relative positions of foreigners and aborigines in respect of land may be settled shortly."

Robert Hunter had been in the Protectorate for about 3 ½ years having had what Musgrave described as "considerable experience of Australian bush life" and in 1886 seems to have been styled "Superintendent of Natives". Musgrave obviously placed great reliance on him in the settlement of violent tribal disputes which were then common.

On 7th July 1886, the day before Hunter began his purchasing, a strong difference of opinion arose between Douglas and Lawes with regard to the acquisition of land in the Protectorate. Lewes took the view that the projected acquisitions implied compulsory purchases where they might be thought necessary and that if the proclamation of sovereignty (which must at this time have been in everybody's mind) would involve such an acquisition of land the Government would be breaking faith with the native people. Douglas in a letter to Lewes of that date wrote:

"3. In reference to the further acquisition of land for the purpose of settlement, and in accordance with my instructions, it will be necessary that I should, on behalf of Her Majesty's Government in this Protectorate, acquire land from time to time from the natives, and in doing so I shall hope to make the most careful provision for their interests in the future. I feel bound, however, to add that, having due regard to the interests of Her Majesty's subjects who may settle in New Guinea when the contemplated sovereignty is proclaimed, It will be necessary to survey and set apart considerable areas of land, the acquisition of such land from the natives being made a matter either of treaty, or purchase, or by such other means as may be approved of by the representatives of Her Majesty's authority. "

Douglas asked Musgrave to state his views on the matter in controversy and the latter wrote a strong memorandum upholding the legality of and necessity for acquisition. In the penultimate paragraph of his memorandum I understand him to be advocating compulsory acquisition if necessary - on the basis of its being for the general good. Douglas on the day following the receipt of this memorandum (11th July 1886) despatched his correspondence with Lawes and Musgrave's memorandum to the Earl Granville. This elicited a telegram to Douglas dated October 18th enjoining him to take no steps pending instructions for the compulsory purchase of land unless required for public purposes. And on October 22nd a despatch was sent to Douglas from London confirming the telegraphic instructions and containing this paragraphs "You will of course understand that the land question is the cardinal one on which almost everything connected with British policy within the Protectorate will turn. Full instructions on this point will in due course be received from Her Majesty's Government pending which no action must be taken or conclusions announced which might in any way prejudice the consideration of the subject. "Both the telegram and the letter were of course received well after Hunter had completed the purchases referred to in the Musgrave November memorandum.

In July, too, Douglas wrote to the Earl Granville a letter seeking permission to name township lands then under survey "Granville". In this letter he referred to the purchases of some 700 acres by Musgrave in the vicinity of Port Moresby in the time of the previous Special Commissioner.

This clearly seems to be an over-statement. He advised the Earl that he had instructed Musgrave to follow up these purchases and if possible to acquire certain small portions of cultivated grounds immediately adjoining the Government buildings. According to his letter it was found that on opening negotiations with native proprietors for this land, they had been advised not to sell these portions at any price, and feeling satisfied that the advice proceeded from the Mission Stations he broached the subject in conversation with Mr. Lawes. This led to the correspondence which he had previously forwarded on 11th July. He went on to state that he had never by any expressions of his led Lawes to suppose that he contemplated any extensions or wholesale acquisitions of land from the natives though he had no doubt that considerable purchases would have to be made, and to express the desirability that surveys should be made in order to define correctly the land already purchased as well as for the general delineation of the immediate neighbourhood even if the settlement at port Moresby should "at present" be limited to the missionary and trading purposes which Lawes regarded as its ultimate use. A despatch was sent on 23rd October advising Douglas that Earl Granville had pleasure in assenting to his proposal for the name of the town. It is to be noted that the Douglas letter makes no reference to the acquisitions referred to in Musgrave's November memorandum which at the date of the writing of the letter must have been under way.

At some time before the 8th July Douglas had secured the services of an experienced surveyor, Mr. W.R. Cuthbertson. The former expressed the view that he thought it desirable that lands purchased before that date by Musgrave together with the portion of ground upon which the Government buildings at Port Moresby were erected should be surveyed and he also stated that he contemplated the laying out of a small township area available for European settlement. On 21st September 1886 Cuthbertson reported on the completion of a survey which he had made at the instigation of the Special Commissioner. This survey included what lie described as the townships of Granville West and Granville East. Granville West was stated to be of an area of approximately 50 acres but there is no mention of the area of Granville East, and it is Granville East with which we are concerned. This latter township Cuthbertson reported was at the date of his report cut up into eight sections with only two sections, Nos. III and IV, cut up into quarter-acre allotments. The others he stated could easily be done with a chain should it be required. He had laid out the township's roads etc, so he said, as nearly as possible according to instructions received from either Musgrave or Douglas. It is difficult, firstly, to assess the area of Granville East surveyed by Cuthbertson, secondly, to precisely specify its relationship to Era Taora and, thirdly, to relate it to the 95 acres set out in Musgrave's November memorandum and described as Granville East Township. The eight sections said to be surveyed together with their attendant roads comprise approximately 67 ½ acres. If one takes Granville East as a complete rectangle (and I am confident that Cuthbertson did not survey it as such) the area of the rectangle is 96.6 acres. The plan of Port Moresby attached to the Annual Report on British New Guinea for the year 1886 and printed by the authority of the Government of the Colony of Victoria in 1887 shows a block of 12 acres to the west of Granville East and what appears to be two additional half-sections immediately east of the roadway adjoining Sections III and IV. On this map no acreage is given for Granville East and there is nowhere any reference to the purchase of the 12-acre block. It is also difficult from the memorandum to see how the 222 acres referred to in paragraph 9 is made up. Excluding the Badili lands, the Government bungalow site of 9 acres (which was purchased in 1885) and the other small 1885 purchases it seems that Musgrave could only have been responsible for the purchase of about 208 acres, and still less if he were wrong in his estimate of 95 acres for Granville East. However, these are matters which will require further consideration hereafter.

In the 1886 Annual Report compiled as at the end of December 1886 Douglas reported that the late Special Commissioner had authorized Musgrave to purchase certain portions of land from the natives. These instructions he had somewhat enlarged and, as he put it, "have resulted in the acquisition of a continuous block of land amounting to more than 900 acres. This would be quite sufficient at present for purposes of immediate settlement whenever it is deemed expedient to authorize it."

Musgrave's figure of 552 acres seems an obvious overstatement and I can in no wise discern how the figure of 900 acres is arrived at. Although Musgrave in his November memorandum stated that no form of memorandum of land purchase had ever been supplied to him a form of memorandum of purchase was executed for the Badili lands and the original document is held in the Registrar-General's office. There is no evidence of any such memorandum or memoranda having been made out in respect of the 95 acres said to have been purchased and it has been assumed throughout these proceedings that none ever existed. Consequently there is no record of vendors, boundaries, nor consideration paid. No further acquisitions of land appear to have been made during Douglas' tenure of office. In June 1888 sovereignty was proclaimed over British New Guinea and it thereby became a British Possession. In September of that year Sir William Macgregor took up appointment as Administrator.

No further mention of Granville East township appears to have been made until 1898 when its boundaries were proclaimed in Gazette No.26 of 8th October. The further history of the land I will deal with hereafter.

Dr. Hookey's initial submission for the appellant Daera Guba was that Special Commissioner Douglas had no power to acquire land in New Guinea in 1886 and that insofar as Era Taora fell within his purported acquisitions such acquisitions were null and void. He then went on to assert that there was nothing in the subsequent events relating to the subject land which in law served to vest ownership in the Administration. The power and jurisdiction of the Special Commissioner was in his submission ultimately controlled by parliamentary enactment and statutory Order in Council and his Commission must be examined in the light of the provisions which Parliament had prescribed. These provisions were contained in the Foreign Jurisdiction Acts 1843 to 1878, the Pacific Islands Protection Acts of 1872 and 1875 and the Western Pacific Order in Council 1877 as amended. In his submission the Court could and should enquire whether the Crown had power to grant a Commission authorizing the purchase or acquisition of native land in the Protectorate of British New Guinea and the Commission is to be construed as being controlled by Statutes and Orders in Council limiting British power and jurisdiction in the Protectorate. The effect of these Statutes was to limit the jurisdiction of the Crown in the Protectorate to British subjects. The crux of Dr. Hookey's submission was that unless and until any of the Western Pacific Islands referred to in the Order in Council (and New Guinea one of these) were annexed so as to become British territory then jurisdiction could not be asserted in them save over British subjects. In these submissions he was supported by Mr. Hoods for Lohia Doriga.

Mr. Clay, for the Administration, submitted that if the 1886 transactions were government acquisition accompanied by payment of compensation in kind (and he favoured this analysis of them) then they involved the exercise of jurisdiction over the former owners of the land, and the Court could not enquire into the question of whether the Crown had power to exercise such jurisdiction within a Protectorate such as that of British New Guinea nor was there anything in the Imperial Statute Law in force in 1886 to prevent the Crown from exercising jurisdiction over non-British subjects in a protectorate. And he went on to argue that the Special Commission to Douglas authorized both purchase and acquisition of the land, and alternatively that the acquisition was an Act of State the authority of which could not be questioned in a Court of law.

The preamble and first section of the Foreign Jurisdiction Act 1843 are as follows: "WHEREAS by Treaty, Capitulation, Grant, Usage, Sufferance, and other lawful Means Her Majesty hath Power and Jurisdiction within divers Countries and Places out of Her Majesty's Dominions: And whereas Doubts have arisen how far the Exercise of such Power and Jurisdiction is controlled by and dependent on the Laws and Customs of this Realm, and it is expedient that such Doubts should be removed.

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same. That it is and shall be lawful for Her Majesty to hold, exercise, and enjoy any Power or Jurisdiction which Her Majesty now hath or may at any Time hereafter have within any Country or Place out of Her Majesty's Dominions, in the same and as ample a Manner as if Her Majesty had acquired such Power or Jurisdiction by the Cession or Conquest of Territory."

In 1872 as a consequence of the by then notorious activities of blackbirders in the Pacific the Pacific Islanders Protection Act of that year (originally known as the Kidnapping Act) was enacted. In 1875 this Act was added to, inter alia, by the inclusion of Section 6: "It shall be lawful for Her Majesty to exercise power and jurisdiction over her subjects within any islands and places in the Pacific Ocean not being within Her Majesty's dominions, nor within the jurisdiction of any civilized power, in the same and as ample a manner as if such power or jurisdiction had been acquired by the cession or conquest of territory, and by Order in Council to create and constitute the office of High Commissioner in, over, and for such islands and places, or some of them, and by the same or any other Order in Council to confer upon such High Commissioner power and authority, in her name and on her behalf, to make regulations for the government of her subjects in such islands and places, and to impose penalties, forfeitures, or imprisonments for the breach of such regulations.

It shall be lawful for Her Majesty, by Order in Council to create a court of justice with civil, criminal, and Admiralty jurisdiction over Her Majesty's subjects within the islands and places to which the authority of the said High Commissioner shall extend,..............

It shall be lawful for Her Majesty, by any Order or Orders in Council, from time to time to ordain for the government of Her Majesty's subjects, being within such islands and places, any law or ordinance which to Her Majesty in Council may seem meet, as fully and effectually as any such law or ordinance could be made by Her Majesty in Council for the government of Her Majesty's subjects within any territory acquired by cession or conquest.

In 1877 the first Western Pacific Order in Council was made, expressly by virtue and in exercise of the powers vested in the Queen in Council by the Pacific Islanders Protection Acts of 1872 and 1875 and by the Foreign Jurisdiction Acts 1843 to 1875. The part of the island of New Guinea eastward of the 143rd meridian of longitude was included in the islands and places in the Western Pacific Commission to which the Order extended and by Article 6 the Order was stated to apply to:

(1) all British subjects for the time being within the Western Pacific Islands whether resident there or not;

(2) all British vessels for the time being within the waters within three miles of every island mentioned in the Order; and

In 1878 Parliamentary concern at the criminal activities of British subjects in the Congo and other parts of Africa led to the enactment of a further Foreign Jurisdiction Act containing Section 5:

"5. In any country or place out of Hex Majesty's dominions, in or to which any of Her Majesty's subjects are for the time being resident or resorting, and which is not subject to any government from whom Her Majesty might obtain power and jurisdiction by treaty or any of the other means mentioned in the Foreign Jurisdiction Act, 1843, Her Majesty shall by virtue of this Act have power and jurisdiction over Her Majesty's subjects for the time being resident in or resorting to that country or place, and the same shall be deemed power and jurisdiction had by Her Majesty therein within the Foreign Jurisdiction Act, 1843. "

In his analysis of the legislation Dr. Hookey first contended that Section 1 of the Foreign Jurisdiction Act of 1843 was limited to countries or places in which Her Majesty had acquired power and jurisdiction by consensual means. In his submission "other lawful means" in the Preamble should be read ejusdem generis with the words "treaty, capitulation, grant, usage and sufferance" which he argued all referred to a consensual acquisition of power and jurisdiction. Section 5 of the 1678 Act must be regarded as a conferring of a new jurisdiction where previously there was a vacuum, and as dealing with the situation where Her Majesty could not be said previously to have had jurisdiction. It was a proper use of the maxim expression unius personae vel rei est exclusio alterius to construe the section as implying that before its enactment there was no jurisdiction over any British subjects in such countries or places as were mentioned in the section. His proposition was strengthened he submitted by the specific enactment of Section 6 of the 1875 Pacific Islanders Protection Act. This conferred a particular or exclusive jurisdiction on Her Majesty in Council and to that extent the Prerogative was circumscribed.

It is reasonably clear that the Foreign Jurisdiction Act of 1643 was enacted following upon the Report on British Jurisdiction in Foreign States made by Mr. Hope-Scott, Q.C., in January 1843, which is printed as an appendix to Sir Henry Jenkyns "British Rule and Jurisdiction Beyond the Seas" (1902). And it is equally clear that in 1843 the types of situations which arose subsequently in what were termed the "barbarous" States of Africa and the virtually unknown islands of the Pacific were not in the minds of the legislators and the assumption of jurisdiction in countries where there were no Sultans or recognized chieftains who could cede or suffer jurisdiction had not been thought of.

The view of the law which Dr. Hookey was putting appears to have been held by the Law Officers of the Crown (who later became Lord Herschell, L.C., and Lord James of Hereford) and was expressed by them in a Report to Lord Derby on 11th December 1884. They opined that legal jurisdiction over persons other than British subjects could not be acquired within the Protectorate of British New Guinea short of its becoming British soil, and their opinion was in part based on the assumption that there was not in New Guinea any government from whom Her Majesty might obtain power or jurisdiction by any of the means set out in the Preamble to the Foreign Jurisdiction Act of 1843. The better view of that Act is I think that it did not itself confer power or jurisdiction but was an enabling Act to clarify how any jurisdiction which Her Majesty had or might acquire by virtue of the Prerogative should be exercised. The Law Officers were also acting on the assumption that there was sufficient power in the Foreign Jurisdiction Acts, which at this time of course included the Act of 1878, to control the actions of British subjects but that that jurisdiction conferred no protection on British subjects against the acts of natives nor any protection on either natives or British subjects against the acts of foreigners subject of civilized states; and this power it was assumed did not meet the necessities of the case. At this time the acquisition of sovereignty was -being considered, not, as was said, with any desire for the acquisition of the soil but as the best means of securing effective and legal control over all persons resorting to the Protectorate. And the Law Officers took the view that if Her Majesty were to appoint an officer to administer and govern the territory over which the Protectorate had been declared and to send him in pursuance of that appointment to such territory that would amount to an assumption of possession on behalf of Her Majesty. If such officer were to proclaim the extension of Her Majesty's sovereignty then such proclamation coupled with the possession of which they spoke would amount to the Protectorate becoming part of Her Majesty's Dominions.

Dr. Hookey relied on The Laconia (^[1]) for the proposition that even though foreign jurisdiction may be transferred informally in countries not members of the original family of nations it was nevertheless an essential requirement of the Foreign Jurisdiction Acts that a local government should be in existence in the country concerned if jurisdiction was to be acquired over non-Britons. And further, that the government should know of and con-sent to the transfer of jurisdiction. This was supported in his submission by expressions of opinion by Dr. Lushington in The Ionian Ships (^[2]). But both those cases were dealing with situations where jurisdiction had been acquired by usage or treaty and I do not understand Dr. Lushington to be laying down any general proposition that these are the only means by which jurisdiction could be acquired. In fact I have been unable to discover any case law of the mid or late nineteenth century dealing with a situation analogous to that in this country at that time.

Until at least the time of the Berlin Conference in 1884-1885 the Austinian view of the indivisibility of sovereignty prevailed in English legal thinking and it was generally thought that unless territory were actually acquired by the Crown no extra-territorial jurisdiction could be exercised except over British subjects (e.g. see W.E. Hall "Foreign Powers and Jurisdiction of the British Crown" (1894) pp. 221-2). Indeed it seems to me that it was not until after the Brussels Conference of 1890 that it can be said that so far as Protectorates were concerned the power and jurisdiction to be exercised -therein was thought to be similar to that exercised in a ceded or conquered territory. Sir Henry Jenkyns, writing in 1699 and referring to protectorates where there is no sovereign or organized government, had this to say at p.174: "a very large amount of internal sovereignty has been assumed and exercised. As regards the position of British subjects in a protected state of either type the internal sovereignty is only a matter of British municipal law, and no difficulty arises about it in either type of protectorate if the municipal law is in fact made sufficient......" And at pp.179-180:

"Thus a protected state is a territory for the purpose of giving effect to the external sovereignty acquired by the protector.

If this view is sound, the jurisdiction will depend on the existence in fact of the assumption of the protectorate, and not on the question whether some naked chief living in the country is or is not sufficiently civilized to cede jurisdiction, or has or has not by some informal agreement in fact ceded it. It really seems absurd that the question of the jurisdiction of a British court should depend upon such points." And at p.181:

"It is difficult to see why sovereignty in each case can be acquired by one alone of the above modes, namely, conquest, cession, or occupation. A strong power may have acquired by conquest one part of certain territory, or a protectorate over certain tribes in it, and the natives of the adjoining part of that territory, or other tribes in it, may yield obedience to that power on account of fear without any actual cession. In such a case the sovereignty of the protectorate may be acquired partly by conquest and partly by sufferance without there being the possibility of determining under which head the acquisition is to be placed.

If, in a region like New Guinea or the centre of Africa, a British officer enters and assumes control of the territory in the name of the King, either with or without agreements with the tribes dwelling there, is not that to all intents and purposes as much a conquest as if the territory was acquired by the defeat of the former sovereign and the consequent annexation of the country?"

This change of view can be seen also in the differing content of the Orders in Council shade between 1889 and 1892 in relation to the East African Protectorates (see Roberts-Wray, "Commonwealth and Colonial Law"(1966) pp.115-6).

It was strongly urged upon us that we should accept the views contained in the Law Officers Report as correctly stating the law. I regard this aspect of the case as a matter of considerable complexity and difficulty but in the light of the twentieth century cases I have come to the conclusion that I should not accede to Dr. Hookey's persuasive argument. The Prerogative was not limited in the way he argued it to be. I did not understand him to suggest that the Queen could not assume a protectorate over British New Guinea and in my opinion she clearly could. Such an assumption was an exercise of the Prerogative by "lawful means" and an Act of State which could not and cannot be questioned in the courts. However, a protectorate neither then nor now can be said to fall into any particular category of constitutional classification. In Ex parte Mwenva (^[3]) Lord Evershed, M.R., said at p.298: "Equally it is, I think, clear that if 100 years ago the notion of a protectorate was exemplified by the case of the Ionian islands, as regards this country were limited to matters of the nature of protectorates may vary where the protecting power assumes in well as external relations) which is exclusive of other jurisdiction and is for practical purposes indistinguishable from the power or jurisdiction exercised over colonies or conquered countries." - a statement which I respectfully adopt.

I agree with Mr. Clay that there is no such genus discoverable in the Foreign Jurisdiction Acts as propounded by Dr. Hookey. True it is that capitulation, treaty etc, were the only means then contemplated for the acquisition of jurisdiction but the expression "other lawful means" is of the widest import. In Sobhuza II v. Miller (^[4]) Viscount Haldane at p.522 in delivering the opinion of the Privy Council had this to say:"The question which at once presents itself is, what is the meaning of a protectorate? In the general case of a British Protectorate, although the protected country is not a British dominion, its foreign relations are under the exclusive control of the Crown, so that its Government cannot hold direct communication with any other foreign power, nor a foreign power with its Government. This is the substance of the definition given by Sir Henry Jenkyns at p.165 of his book on British Rule and Jurisdiction Beyond the Seas. Their Lordships think that it is accurate, and that it carries with it certain consequences. The protected State becomes only semi-sovereign, for the protector may have to interfere, at least to a limited extent, with its administration in order to fulfil the obligations which international law imposes on him to protect within it the subjects of foreign powers. A restricted form of extra-territorial sovereignty may have its exercise called for, really involving division of sovereignty in the hands of protector and protected. But beyond this, it may happen that the protecting power thinks itself called on to interfere to an extent which may render it difficult to draw the line between a protectorate and a possession", and. "The Foreign Jurisdiction Act thus appears to make the jurisdiction, acquired by the Crown in a protected country, indistinguishable in legal effect from what might be acquired by conquest. It is a statute that appears to be concerned with definitions and secondary consequences rather than with new principles." (p.524). The Foreign Jurisdiction Act to which he referred was that of 1890, Section 2 of which is in substance the same as Section 5 of the 1878 Act. And after referring to Rex v. Earl of Crewe ex parte Sekgome (^[5]) and In Re Southern Rhodesia (^[6]), Lord Haldane went on to say: "Both of these cases imply that what is done may be unchallengeable on the footing that the Order in Council, or the proclamation made under it, is an act of State. This method of peacefully extending British dominion may well be as little generally understood as it is, where it can operate, in law unquestionable."

There were in 1884 British protectorates where the powers to be exercised by the Crown were spelled out by treaty or witnessed by usage or sufferance but none over uncivilized states where a body of constitutional doctrine as to the internal sovereignty or jurisdiction to be exercised had grown up. However it seems to me that the power to exercise jurisdiction within the protectorate as if it were a conquered or ceded colony did exist at that time although the general view then held was that it did not. See also Nyali Ltd. v. The Attorney-General (^[7]).

The real difficulty lies in deciding what legal consequences flow from such assumption of the Protectorate. The years 1884-1888 seem to me to be years in which there was a sort of legal limbo in British New Guinea. No courts were established and reference to Musgrave's diary attached to the Annual Report of 1886 shows that difficulty was being experienced in trying to maintain law and order along the coast, and of course there was no tribunal to deal with disputes concerning the acquisition or purchase of land or the rights to possession of land nor to settle questions of disputed native ownership. No register of land transactions seems to have been established. It was evident that a proclamation of sovereignty and consequent settlement was contemplated at the time of Douglas' appointment but that the practical implications of such an important constitutional step had not as yet been fully thought out; and in particular the land policy to be adopted was seen as a difficult question. From the documents before the Court one could hazard a guess that the authorities in England were slowly being impelled to take a much greater interest in and control of the affairs of British New Guinea than was originally intended

I have come to the conclusion that once Her Prerogative to assume the Protectorate of British New implicit in Section 5 of the Foreign Jurisdiction Act of the Pacific Islanders Protection Act 1875 with its Council ceased to have application and that by virtue Act Her Majesty could exercise power and jurisdiction in the same manner as she could in a ceded or conquered colony, so that if she were so minded she could confer power upon her Special Commissioner to acquire land.

However, such a conclusion begs the question of what power in fact was conferred by Douglas' Commission. Here I think the instructions accompanying the Commission which reflect the views of the Law Officers are of the Law Officers are of great assistance. In 1884 the Law Officers were of the view that jurisdiction could only be exercised over British subjects. And I would think that the Commission was framed with their advice in mind. It empowered Douglas to "take all such measures and to do all such matters and things in the Protectorate as in the interest of Our Service you may think expedient." But he was especially enjoined to protect the native inhabitants in the free enjoyment of their lands and of course the earlier proclamation made by Erskine proclaimed and declared "that no acquisition of land whensoever or howsoever acquired within the limits of the Protectorate hereby established will be recognized by Her Majesty." It is to be noted, too, that Douglas' Commission did not contain any words enabling ordinances or laws to be made for the peace, order and good government of persons within the Protectorate. In deciding the interpretation to be put on the words empowering Douglas to act I think it of importance and assistance to have regard to paragraphs 2,4, 5, 6 and 7 of the advice and instructions contained in Stanley's despatch of 8th January 1886. Douglas is informed that he will possess civil and criminal jurisdiction over British subjects but not over foreigners except in such civil matters as they may wish to bring before him. He is told that he can make regulations compliance with which may be made a condition of residence in the Protectorate if he is able to enforce them. This cannot have any reference to the native inhabitants. And he is advised also what his powers will be (and these would of necessity relate inter alia to regulating the acquisition of and dealings with land) when sovereignty should be eventually proclaimed. True it is that at the time of the issue of the Commission it must have been known that Sir Peter Scratchley had acquired land for the erection of the government bungalow and for the service of such administration as was then thought necessary in the Protectorate and I would assume that it must also have been known that the Badili lands had somehow been acquired. And the command contained In that document "to take all such measures and to do all such matters and things in the said Protectorate as in the interest of Our Service you may think expedient" would in my view empower Douglas to acquire land necessary for the conduct of government; but I can see no warrant in any of the language of the Commission to direct or empower Douglas to acquire land for the purpose of a settlement nor of laying out a township for the use and enjoyment of settlers if and when settlement should be permitted.

The instructions conveyed to Douglas not to acquire land compulsorily fortify the view I have taken. The purchases or however the transactions may be described which were effectuated between 8th July and 8th October 1888 I cannot see as having been made under the' authority of Douglas' Commission. And for this very short reason I do not think they can be justified as an Act of State. Consequently I find it unnecessary to deal further with the interesting and able argument and with the wealth of citation put before the Court seeking to justify or refute the acquisition as such an Act of State.

That of course does not conclude the matter for I have no doubt that Douglas' action in acquiring land, insofar as it was thought in England to have been acquired by private treaty or by some free consensual transaction had the acquiescence of the home authorities if not their actual approval.

Dr. Hoockey, in the event that this purchase of land was not regarded as same species of compulsory acquisition, then went on to submit that the proper law governing the purchase was the local customary law. There were, he said, sufficient indicia before the Land Titles Commission to show that no attempt had been made to acquire or alienate consistently with the requirements of the applicable native custom and indeed that native custom did not recognize permanent alienations to Europeans or a Government.

He submitted alternatively that if English law applied the applicable rules governing transactions included the Statute of Frauds and he cited Ashabi Okoleji v. M.A. Okupe (^[8]). It was not contested that there had been no compliance with the Statute.

Mr. Clay agreed that if the transactions were purchases they must be shown to be valid under some system of law and he submitted there were four possibilities, adoption of any of which would show that the purchases were validly made. Firstly, he submitted, the transaction accorded with the rules of natural justice (Calvin's case (^[9])). Here there was a vacuum of law and the only requirement was for the consent of the parties as the only essential to a valid contract. Alternatively, the transaction could be supported by the rules of English law which were imported insofar as they were applicable to the circumstances of the Protectorate. Thus, in his submission, the Statute of Frauds and the Real Property Act would not have been applicable and even if they were they did not bind the Crown in the absence of express provision or necessary implication. The common law rules for the essential validity of a contract would be applicable and these required the consent of the parties and the lack of any vitiating element. His next alternative was customary law either by analogy with a conquered territory or by an application of the English law requiring custom to be applied, it being law of the lex situs. And his final alternative was that the Special Commission gave Douglas legislative power so that his orders had the force of law.

The first and last alternatives I discard without elaboration, and whilst there is authority for the proposition that settlement in a country by English settlers attracts an importation of English law so far as it is applicable to such settlement I cannot see that in fact any settlement had begun in or around tort Moresby by the end of 1886. There was an air of expectancy abroad, fanned locally by Musgrave, but as yet the authority to begin had not been given. Douglas knew that the proclamation of sovereignty was imminent but he also must have known of his predecessor's difficulties in regard to land acquisitions; and whilst he had clear advice on the legal situation on the proclamation of sovereignty he was given very little guidance and apparently no clear instructions pending that event. In my view the only satisfactory conclusion is that transactions must be tested by customary law. I agree with the premise from which Dr. Hookey began, viz. that before the proclamation of the Protectorate all land in the Port Moresby area owned by the native inhabitants.

In the hearing before the Land Titles Commission very little time or attention seems to have been devoted to the ascertainment of the customary law. The only evidence is contained at p.140 of the Appeal Book. This lists a number of questions which apparently Mr. F.E. Lawes, a son of the Reverend Mr. Lawes and in 1893 the Resident Magistrate and Secretary for Native Affairs at Port Moresby, posed to six of the oldest men of Hanuabada, Tanabada and Elevara villages, these being villages in the Port Moresby area. From the tenor of the answers to his questions it does appear that in 1893 individual ownership of land was recognized and that on death it descended from either the father or the mother to the eldest child. Land was apparently sold or exchanged although the growing crops on the land belonged to the person who planted them, not to the owner of the soil. On marriage a woman's land reverted to her nearest relatives, but the answers seem to conflict in the case of a woman on marriage. No questions were asked of those old man nor is there any material to show whether any custom existed in relation to sale to non-natives. However, from the fact that who at the Reverend Mr. Lawes who at the time of the first sale in September 1885 had been in the Possession for 11 years, was present at and assisted in that sale, I would assume that he at least was satisfied that native custom did not preclude such a sale. On the other hand he was not a lawyer and how far he would be able to convey to the vendors the idea of something equivalent to a fee simple in perpetuity is a matter of some doubt. I imagine this was a question which when sovereignty was proclaimed exercised the minds of the legal authorities; for it was not until the Land Ordinance of 1899 that there appeared a provision enabling the Crown to acquire an indefeasible title.

What then is the proper view to be taken of the purchase of Era Taora? The Chief Land Titles Commissioner held that the members of the Giakone clan (the predecessors of Lohia Doriga) purported to sell the subject land but that they held no title and the land in fact belonged to the members of the Tubumaga clan. There is nothing in his reasons for judgment to show any concern for or investigation of the precise area of the land. Be that as it may he held that Daera Guba's predecessors had not sold. My mind has fluctuated but I have in the end come to the conclusion that there was no evidence or certainly none upon which any reliance could be placed that Era Taora was validly acquired. From 1954 three bodies have investigated this question and each has come to the conclusion that there was a purported sale. In the case of both the Native Land Titles Commissioner, Mr. Champion, and of the Board appointed in 1954 to consider the question of Era Taora and other lands in Granville East this conclusion was based as far as I can see solely on Douglas' memorandum of November 1886 that 95 acres of land were purchased. Cuthbertson's survey cannot in my view be relied upon as evidence of purchase or of title. The Attorney-General v. Swan (^[10]) cited by Mr. Clay goes no further than saying that an entry by a surveyor on behalf of the true owner may in some cases afford sufficient evidence to show an intention to dispossess the occupant. But all the circumstances must be taken into account including the understanding of the occupant and I do not think it can be presumed that the meaning of the survey was understood by the Papuan people in 1886, and in any event I am not satisfied that the survey was to mark the boundaries of lands then acquired. All that can be said is that Cuthbertson was instructed to survey sites for, inter alia, two townships and when he forwarded to Douglas the plan of these two townships in September 1886 Granville East consisted only of the eight sections shown in the map set out earlier. The area comprised in these sections is at most 67.5 acres. It might be thought that the two sections (III and IV) which he surveyed into allotments contained all the land which it was at the time of his survey considered necessary to purchase.

I am unable to discover any material upon which Musgrave could base his estimate of 95 acres unless it were that he drew a rectangle on paper and calculated from that rectangle. Something was made of the fact that in the 552 acres purchased some 1,258 different vendors were involved and, 27 transactions on as many different days were carried out. From this it was argued that the total population of Port Moresby was involved but it does not seem to me that these figures can be relied upon to prove anything. 1,258 different vendors does not necessarily mean 1,258 different individuals and it is easily conceivable that the same individuals or some of them could be involved in transaction after transaction. The first sale involving 8 acres in September 1865 seems to have required negotiation with over 80 natives. The Badili lands required negotiation with 128 vendors and these vendors were not necessarily residing in Port Moresby. The area from which the vendors of Granville West township came is not stated nor the number of persons involved in the sale, and the same comment applies to the Ila Beach suburban lands. I find it impossible to know what village groups were involved over-all or the number in each village group.

However, a much stronger factor militating against both the proof and the legitimacy of the acquisition of Era Taora in Granville East is the failure to record the names of the vendors, the interests involved and the area, location and boundaries of land sold by each vendor or group of vendors. Despite the care taken in the small land purchase adjacent to Government House, Mr. Lawes is not shown to have been present at the 1886 acquisitions and it appears that Musgrave wrote his memorandum acting on information given him by Hunter, the actual purchaser, who was accompanied only by a Government interpreter and Ah-oo-doo, described as the present chief of the local village - a man according to Musgrave "of a mild and docile disposition". There is no evidence that explanation was made as to the effect of any transfer of ownership in land, and in view of the strong attitude adopted by Musgrave in the contretemps with Lawes early in July I think it reasonable to suppose that Musgrave's instructions to Hunter would tend to reflect his own attitude towards compulsory purchases. It seems, too, from Douglas' letter to the Earl Granville with regard to the naming of the town he was not at that stage contemplating any acquisition on the scale which Musgrave stated Hunter to have effected. In the light of there being no way of identifying the sale and purchase of Era Taora which was partly in the southern half of the surveyed portion of Granville East and in that portion furthest away from the Government House precincts it seems to me impossible to hold that it was in fact sold. Accordingly I would hold that there is no evidence upon which reliance could be placed of acquisition of this land in 1886.

In support of this conclusion I think it of great significance that when in 1890 provision for registration of land acquisitions was made no steps at all were taken to register any of the land in Granville East. One of the first ordinances enacted in the new Possession was No. II of 1888 which prohibited any person from purchasing land from any native, but allowed the Administrator to purchase land in the public interest after he had satisfied himself that it was not required or likely to be required for native use. In 1889 the Queensland Statute of Frauds and Limitations of 1867 was specifically adopted into the Possession so far as it should be applicable to its circumstances; and in November 1890 there was enacted the Crown Lands Ordinance of 1890. Section XVIII of that Ordinance provided that where a fee simple in land was acquired by the Crown from the owners the acquisition by and the transfer to the Crown of such land should be taken in the name of Her Majesty and should be attested by an instrument in writing under the hand of the Administrator and the Seal of the Possession and the instrument was to be recorded in the office of the Registrar-General. Section XX declared Section XVIII to have retrospective effect insofar that it should apply to all purchases of land or acquisitions of interests in land made on behalf of the Crown by any officer of the Crown at any time prior to the passing of the Ordinance whether such purchase or acquisition was made during the period of Her Majesty's protectorate over the Territory or at any time subsequent to the proclamation of sovereignty over the Possession. Section XXI directed that the instrument of attestation was to set forth a description of the land purchased or in which an interest had (if any) the English name of the land, its position and its boundaries, an estimate of its area and some delineation of its shape. The name or names of the vendors, its condition to be paid and to whom paid and in whose presence payment had been made, and the name of the interpreter employed (if any) in the transaction (if any) in the transaction between the parties were also to be stated as well as such further information as the Administrator should think fit. The 1890 Ordinance was in operation until repealed by the Land Ordinance of 1899 enacted on 31st October of that year but in which the restrospective attestation and registration provisions did not appear. It was argued by Dr. Hookey that failure to obey the mandatory provisions of the Ordinance rendered any purported purchases invalid. Whilst I do not think this argument is sound, the failure to comply with its provisions during the nine years of the operation of the Ordinance cannot but lead one to suspect either that the alleged purchases had not been properly carried out or that no-one had any real idea as to precisely what lands were purchased. Musgrave was in the employment of the Government during the whole of the period. If Hunters purchases were validly made in 1866 I find it inconceivable that these would not have been properly attested and registered between 1890 and 1899.

Apart from the assertion by Daera Guba that before the missionaries came his grandfather and later his father and he made gardens on Era Taora there is a dearth of evidence concerning both this land and Granville East generally until well after the turn of the century. In the Government Gazette of 8th October 1898 there appears a proclamation by the then Deputy Administrator by virtue of which the Township or Town of Port Moresby was brought under the operation of three New South Welsh Acts for regulating police in towns, for removing and preventing nuisances and obstructions and for the better alignment of streets therein, which had been adopted in Queensland and thence into British New Guinea. This proclamation was signed by Musgrave as Government Secretary. For the purposes of these Acts the boundaries of the town were proclaimed to be: "all that piece of land that is bounded by the waters of the sea and by the following line, that is to say.

Beginning at the point on the seashore of Ela Beach that would be made by a prolongation of the eastern boundary of the road called Lawes Street; thence by such boundary northwards to the most south-western point of the surveyed allotments of Granville East; thence by a line following the back or northern boundary of the said allotments to the most north-eastern point; thence by a straight line following the most northern boundary of such allotments and prolonged to the seashore of Port Moresby Harbour."

On 5th October 1900 a transfer to the Colonial Government of British New Guinea of 74 acres to the south and southeast of Granville East was executed by over one hundred natives of the village of Hohodae (a Koitapuan village). Musgrave was a party to the agreement on behalf of the Government. It is curious that this transfer included the whole of the southern roadway bordering Granville East as surveyed bit Cuthbertson, the area of which was about 4 acres. I note that the form of transfer expressed the transaction as a sale and transfer to the Government of the whole of the land and of all the vendors rights therein and it also contained a declaration that the vendors were the sole owners and had full right to sell the land and, further, that the price paid was the price asked far, that it was a fair price and that each of the vendors had received such portion of the article representing the price as was specified opposite his mark. The document also contained a certificate by two interpreters that they had pointed out the boundaries of the land shown therein, and that they were certain that the vendors understood what was being transferred and that they knew that they were selling the land "out and out" to the Government. And there was a further certificate by Musgrave as Resident Magistrate as to execution by the vendors and as to the fact that the document had been interpreted to them. Musgrave also included in the document a note that some portion of the land was partly occupied by gardens. This land was adjacent to and outside the town boundaries set out in the 1898 proclamation.

In the Government Gazette of 28th December 1901 was published the Order in Council which now falls for consideration. This somewhat unusual document read as follows:

THE Deputy Administrator in Council, under Section XI of "The Land Ordinance of 1899" doth hereby order and declare as follows:-

1. That the lands, the boundaries of which are given in the Schedule to this Order in Council so far as can be ascertained, are lands not used nor required nor reasonably likely to be required by native-born Papuans for building, agricultural or other industrial purposes.

4. That a sketch plan of the said lands is open to inspection by the public at the Lands, Survey, and Works Department, Port Moresby.

5. That the said lands have been unused by natives for a period exceeding fifteen years.

6. That unless cause be shown to the contrary before the 31st day March, 1902, the said lands will on such date become Crown lands.

All those pieces or parcels of land not comprised within any transfer from natives to the Crown that are situate within the following boundaries:-

Commencing at the point on the sea-shore of Ela Beach that would be met by a prolongation of the eastern boundary of the road called Lawes Street; thence by such boundary northwards to the most south-western point of the surveyed allotments of Granville East; thence by a line following the back or inland boundaries of the said allotments to the most north-eastern point; thence by a straight line following the most northern boundary of such allotments and prolonged to the sea-shore of Port Moresby harbour; thence on all other sides by the waters of the sea to the point of commencement.

Made in Council this nineteenth day of August, one thousand nine hundred and one.

It will be noted that apart from some transposition of words the boundaries set out in the Proclamation of 1898 and in the Order in Council are identical.

Both appellants took as a ground of appeal that the learned judge's finding that the Order in Council applied to part of the subject land and was validly made was wrong in law. The part of the land in question is about 5 acres to the west of Lawes Street adjacent to Sections V and VI and to a very small portion of Section IV in the Cuthbertson survey. It was conceded by Mr. Clay that this land was not the subject of acquisition by Douglas in the Hunter purchases of July/October 1886 and that the Administration has to rely on this Order in Council for its original title to the land. However, it does not seem to me that this concession absolves us from considering whether it was intended by the framers of the Order to be included in the purchase.

The Order was made in purported reliance on Section XI of the Land Ordinance 1899 which reads:

"XI. The Administrator in Council may from time to time by Order in Council published in the Gazette declare that any land which has never been alienated by the Crown and not being land used or required or reasonably likely to be required by native-born Papuans for building agricultural or other industrial purposes will unless cause be shown to the contrary within the period specified in such order become Crown land.

Every such Order in Council shall set forth the name or names (if any) by which such land is known wide a description thereof made from an Actual survey or a diagrammatic sketch of the same the position of the land an estimate of its area and a statement showing as far as known how long it has been unused by natives.

From and after the expiration of the time limited by such Order in Council the lands referred to therein shall be and be deemed to be absolutely vested in Her Majesty and to be Crown Land:

Provided that the Administrator in Council shall at any time before the expiration of the time so limited and may at any time thereafter take into consideration any claim to such land or any interest therein made by or on behalf of any alleged owner thereof and if he allows such claim may either by another Order in Council published in the Gazette declare that the Crown disclaims its title to such land in which case the land shall not then vest in Her Majesty or become Crown land or if it has so vested shall be divested from Her Majesty and cease to be Crown Land; or he may acquire the right of such owner in which case an instrument of title shall be executed sealed and recorded in manner hereinbefore provided. "

The Order in Council it will be observed was made by the Deputy Administrator in Council and it was submitted that there was no legislative warrant for such a functionary to make such an Order. I agree with Mr. Clay that by virtue of Section III of the Interpretation Ordinance of 1891 "Administrator in Council" is to be understood as "the officer administering the Government of the Possession with the advice of the Executive Council of the Possession", and that so read unless there was evidence to show that the Deputy Administrator was not the officer administering the Government at the time of the making of the Order in Council the presumption of regularity should apply and that the Order cannot be struck down on this ground.

The next argument was that the Order in Council was invalid because a jurisdictional fact upon which it depended was absent. On its face the section required four conditions to enable an Order to be made:

(b).that the land was not used by native born Papuans for building, agricultural or other industrial purposes;

(d) that it was not reasonably likely to be required by native born Papuans for such purposes.

Before the learned appeal judge it was argued that the Court could go behind the fact that the formal requirements for vesting had apparently been complied with and examine whether at the time the land really answered the description given it in the Order in Council. The argument proceeded that if the land did not answer the description there was a defect which a mere formal compliance with the procedure sot out in the section could not cure and no vesting in fact occurred. Clarkson J. in dealing with this argument said this: "Assuming for the present that the facts behind the Order in Council are examinable as suggested it is I think quite clear that the argument does not assist the claimants until such time as they have shown that the land did not in fact fit the description given it in the Order in Council. Although the point was not expressly referred to I think it obvious that the claimants carry that burden." This in my opinion was clearly the correct approach and I agree with his conclusion that on the evidence before the Land Titles Commission it could not be said that in 1901 the land was not of the description specified in (a) to (d) above.

Before us Dr. Hookey submitted that on the proper construction of the section a further requirement was the fact that the land was unowned. If the section were not construed so as to require the absence of ownership before the land could vest in the Crown, in his submission, it would be invalid and in this case non-ownership was neither alleged in the Order nor did the condition of non-ownership exist. The steps by which he sought to show that the section required such a construction to save it from invalidity, as I understand him, were these.

Papuan tenure although in nature different was equivalent to full ownership in fee simple - see Geita Sebea v. The Territory of Papua (^[11]). Era Taora was at all relevant times owned by the Tubumaga clan. This was implicit in the decision of the Land Titles Commission. The Protectorate of British New Guinea was constituted a Possession by Order in Council of 8th June 1888 made by virtue of the British Settlements Act 1887 and the inhabitants of the Possession thereafter became British subjects.

Dr. W.L. Macgregor was appointed as the first Administrator (I assume as in September 1888 he began to ordain ordinances with the advice and consent of a Legislative Council that either by Commission or Letters Patent Her Majesty had delegated to him her powers under the Act to make laws for the Possession). By Article XXXI of the Instructions under the Royal Sign Manual and Signet to the Administrator of British New Guinea, also of 8th June 1888, the Administrator was instructed specially to take care to protect the natives in their persons and the free enjoyment of their land and other possessions. It was submitted that this Article operated as a guarantee of land rights and to prevent a compulsory acquisition without compensation of land which was owned. If the section were not construed so as not to give the Crown power to acquire land which was owned it would be ultra vires for the rights of British subjects as land owners in a British colony could be taken away without compensation in time of peace, which the law does not allow. For this proposition Dr. Hookey relied on various dicta in Burmah Oil Co.Ltd. v. The Lord Advocate (^[12]). That case however dealt with the extent of the Prerogative in time of war and with the right to compensation where property was acquired or destroyed by virtue of the Prerogative. And whilst it made clear that in most cases the Prerogative could not be used to justify acquisition or destruction without compensation and that there appeared to be no instance where legislative warrant for acquisition was not accompanied by provision for compensation I cannot see that there is anything in the dicta of their Lordships to support the proposition put forward by Dr. Hookey.

Section 2 of the British Settlements Act empowers Her Majesty in Council to establish all such laws as may appear to be necessary for the peace, order and good government of her subjects and others within any British settlement, and Section 3 empowers the Queen to delegate to any three or more persons within the settlement all or any of the powers conferred by the Act on the Queen in Council. As Mr. Clay pointed out, when the Land Ordinance of 1899 was enacted G.R. Le Hunte was Administrator of the Possession and neither his Commission nor any Instructions given to him were before the Court. Mr. Clay's submission was that to construe Section XI as requiring non-ownership as a basic jurisdictional fact would be to rewrite the section and this the Court cannot do. In my view this submission is correct. The section is in marked contrast to Section B of the Land Ordinance of 1906 where the concept of non-appearance of ownership is introduced for the first time. On the face of it it would appear that the section does enable an acquisition of owned land without compensation but I would hesitate to declare it ultra vires on the material before the Court.

Next the Order in Council was said to be uncertain, both geographically and terminologically, the latter uncertainty contributing to the former.

I must confess that I have found great difficulty in comprehending what it is that the Order in Council covers and my difficulty begins in determining what is the boundary involving Lawes Street and Granville East. There is no evidence that Cuthbertson or anyone else before December 1901 surveyed other than Sections III and IV of Granville East into allotments. If "allotments" in the description in the Schedule is to be read as sections, Cuthbertson surveyed eight sections with their attendant roads. The boundaries described in the Order exclude the roads on the south-east and north boundaries of Granville East. Those roads would account for an area of approximately 20 acres. The sketch plan referred to in Clause 4 was net before us. However, acting on what appears to be a mistaken view of the requirements of the legislation F.R. Barton, the Administrator in 1905, executed a document headed "Instrument under Part III of the Land Ordinance of 1899 Attesting the Acquisition by the Crown of Waste and Vacant Lands" in which he certified that on 31st March 1902 land called by the name of Paga Hill and Mount Goldie was taken possession of by the Crown as Grown land, it being then waste and vacant land. He further certified this area as 328 acres approximately and set out its boundaries following the warding used in the Schedule to the Order in Council. In this instrument he did not exclude lands not comprised within any transfer from natives to the Crown that were situated within those boundaries. The instrument contained a sketch of the land from which it is apparent that the surveyed eight sections were included although it is impossible to say from the imprecise nature of the sketch whether it also included the outside roads of Granville East within the boundaries. I think it reasonable to assume that this sketch must have been roughly copied from the sketch plan referred to in Clause 4 of the Order. The instrument was entered in the Register of Titles on 17th March 1905. One cannot escape the suspicion that the real intention of the Order in Council was to proclaim any land within the town boundaries that had not been acquired by purchase as Crown land, without being aware just what lands had been purchased. There was no information before the Court as to the situation with regard to Granville West and the Ela Beach lands, and at the risk of tiresome repetition it is clear that no record was kept of whatever purchases were made in Granville East. In 1898 it seems to have been thought that the southern boundary road had not been purchased, a view which still existed when it was included in 1900 in the purchase from the Hohodae natives.

Assuming that the eight sections and the Lawes Street boundary of Granville East were included in the description the area enclosed in the boundary set out in the Schedule was something over 475 acres. Within that area has to be found the lands "usually described as Page Hill and Mount Goldie" of a total area of "about 328 acres". There was no description of these areas made from an actual survey or diagrammatic sketch as required by the section. It is difficult to understand the description of Boundaries as being "so far as can be ascertained". There seems to have been no attempt to ascertain the boundaries of Granville West nor of the Ela Beach lands and the former were clearly included in Cuthbertson's first plan. From the 475 acres there has to be excluded or excised all those pieces or parcels of land comprised within a transfer from natives to the Crown. Dr. Hockey submitted that the word "transfer" must be given its technical meaning and as there were no such transfers, at any rate within Granville East, it was uncertain whether the Order was attempting by describing this land as waste and vacant to acquire what it had not lawfully done by transfer. If this was the situation then even assuming that the Granville West lands of 50 acres and the Ela Beach lands of 22 acres had been comprised within a valid transfer or transfers the area remaining would be over 400 acres. However, I agree with Mr. Clay's contention that in the statutory context existing in 1901 the word "transfer" was not used in a formal technical sense and the expression "transfer from natives to the Crown" means a dealing in the nature of a sale and purchase. But adopting such a construction does not resolve the uncertainty. The question remains what were those dealings and at the time of the publication of the Order where would a Motuan or Koitapuan go to ascertain what land was included in the Order - assuming he could read the Order or have a missionary translate it for him? There was no record of any of the dealings of July/October 1806 of whatever nature they were. Mr. Clay asked us to assume that the Order excluded the 95 acres acquired by Musgrave. But where was the 95 acres referred to as Granville East lands? Did Musgrave, or rather Hunter on his behalf, in fact acquire 95 acres? And does any speculation on these matters assist in deciding whether Era Taora was included in the acquisition? Apart from n steep hill in the south-east section of Era Taora which has no relation to Mount Goldie the land is virtually flat and of low elevation and it does not seem to me that it could fit into the description "Mount Goldie".

As a good deal of the subject land was land which could be used for gardening and as it appears from the Annual Reports gardening land was scarce throughout the Port Moresby area it seems to me probable that it would not be thought of as being part of the 323 acres assumed to be the area of Mount Goldie and Paga Hill. In the result I do not think I need to pronounce upon the validity of the Order in Council I cannot see that it was intended to cover this land. The Chief Land Titles Commissioner found that Era Taora did not lie within the boundaries of the land included under the Order. If he meant that it did not lie within the actual physical boundaries set out in the Schedule he is clearly wrong. However, I cannot see how on the evidence before him he could have come to a conclusion that the area of 5 acres at present being considered is affected by the Order and in my opinion the Administration cannot justify a title in the Crown in reliance on this Order.

Before considering the question of estoppel I propose next to trace as far as can be the history of Era Taora and the lands in its vicinity subsequent to 1901.

In July 1910 a lease was granted of two allotments (17 and 18) in Section IV. It appears also that a lease must have been granted of allotment 16. A public notice was published in Gazette No.22 of 20th September 1910 stating that all the allotments comprising sections 1, 2 and 11 Township of Granville East, with the exception of allotments 4, 5, 16 and 17 of section 11 had been surveyed and were open to applications for lease. The form of notice suggests to me that the survey had been recent. The notice contains the first reference to section 11 which apparently adjoins section IV on the east. It is impossible to say whether it was included in the proclamation of the town boundaries or in the acquisition intended to be effected by the Order in Council. In October 1910 allotment 18 of Section XI (sic) was granted to one Butterworth and this allotment seems to have been subsequently taken over in connection with the Wireless Station to which I will shortly refer.

In July 1911 the Lieutenant-Governor directed that leases of the following allotments be, forfeited - allotments 1, 2, 15, 16 and 20 of section II - for non-fulfilment of the required improvement conditions. No material was before the Court as to the granting of these leases.

In 1912 the Lieutenant-Governor by a proclamation reserved from lease what was stated to be certain Crown land which in his opinion might be required for telegraphs. This land comprised unsurveyed allotments 1, 2, 3, 14, 15, 16, 17 and 18 of section V and also two acres of land to the west of section V. The land was occupied in 1912 and a building erected thereon for wireless telegraphy purposes. It seems that the original occupation was by the Commonwealth Government in the person of the Postmaster-General but in 1922 Amalgamated Wirless (Australasia) Limited took over and conducted wireless operations in Port Moresby and the land was leased to the Company. However, it surrendered its leases in 1932 including the lease of allotment 18 section XI which it had also acquired. Section V is part of Era Taora. The evidence shows that in at least 1911 and for many years thereafter native gardens existed on section V to the south of the building used as a radio station and also on and to the south of the two-acre area to the west of section V. There was evidence from a Koitapuan witness that Daera Guba was gardening on this land in 1911.

In August 1928 the Government granted permissive occupancy of sections VII and VIII together with other land to the Port Moresby Golf Club. This followed a recommendation from the then Chairman of the Land Board that the application for permissive occupancy be granted of any of the land applied for that was not occupied by native gardens. A sketch plan made at that time showed native gardens extending ever five allotments in the south-western quarter of section V and on and to the south of the two acres previously referred to, and further gardens extending over what was drawn in the sketch plan as a half-section to the east of section V and gardens extending over practically the whole of section VI. The latter two gardens were fenced.

Permissive occupancy was sought in June 1931 for the two acres and also for section VI, part of section V and some land adjoining section IV to the west. This was not granted at that time but seems to have been granted in 1934. In 1931 a lease was granted by several individuals including Daera Guba of land described as being called in the native language, Erataura, to the Crown. It consisted of .875 acres and one of the difficulties has been to determine precisely where this area of land is. It was apparently granted for the purpose of allowing a well to be sunk and is described as allotments 4 and 5 of Section X. However, section X has proved difficult of location. There is a departmental backsheet or file cover showing a half-section X immediately to the north of section VII and adjoining section V. There is also in inter-departmental minute of June 1932 containing the statement that certain land belonging to the natives which was situated on the opposite side of Holy Street was leased for the purpose of a well which had been sunk. Hely Street is the street shown on the original survey separating sections II and III, bounding sections IV and V on the east and separating sections VI.arr1 VII. The lease was expressed to be for the period of 30 years from the 30th November 1931. I am satisfied that it was of land in the inner rectangle which was not surveyed by Cuthbertson in 1886. It seems probable, too, that Daera Guba regarded this as a lease of the whole of Era Taora.

In July 1941 members of the Tubumaga iduhu complained to the Resident Magistrate that the Government had taken lands at Konedobu and had not paid for them. At this time the Royal Australian Air Force had begun building barracks on sections IV and XI of Granville East and in August 1941 land south-east of section XI and extending from the southern corner of allotment 9 of section IV was declared a prohibited place. Natives claimed that this area was on native land. There was evidence that the Resident Magistrate had told them on their complaining of the Air Force building operations that their land would be returned to them after the War.

Up to the cesser of civil government in Papua no native claims appear to have been made to land in sections I, II or IV. In 1949 leaseholds were surveyed on Granville East and the position of Lawes Street was altered. There were further claims by natives to land in Granville East but the then Secretary for Lands decided to regard the whole area as Crown land and took the view that it was the responsibility of the Department of District Services to take legal action to establish the native claimants title to the land. No further action was taken until the appointment of a Board in 1950 to consider claims to land in the vicinity of the Government House reserve, and then until 1952 when Mr. Ivan Champion was appointed under the provisions of the Native Land Registration Ordinance of that year to enquire as to the ownership of land including the ownership of Era Taora. He conducted an enquiry and reported that an area of 7 acres 3 roods 17 perches belonged to Daera Cuba and the Tubumaga clan. He based his report on the acceptance of the Annual Report of 1886 and of the statement therein that 95 acres of land had been acquired on Granville East. He concluded that no acquisition had taken place in the inner rectangle unsurveyed by Cuthbertson and this area of 7 acres was within that rectangle. For reasons upon which it is unnecessary to enter but which in my view are correct Mr. Champion subsequently took the view that he had no jurisdiction to enter upon the enquiry which he did, and it was thereupon decided to constitute the Board, the report and findings of which are said to create an estoppel.

There was no evidence before the Commission nor before the Court of the subsequent history of Era Taora save the production to both tribunals of a plan of the land claimed as Era Taora, on which were printed in certain areas the words, "J. Stubbs", "South Pacific Printing Company" and "Government Printery". The name J. Stubbs has been for many years associated with a well-known building firm in this Territory.

"8. The Lieutenant-Governor may from time to time by Order in Council published in the Gazette declare that any land which has never been alienated by the Crown and of which there appears to be no owner will unless cause be shown to the contrary within the period specified in such Order become Crown land.

Every such Order in Council shall set forth the name or names (if any) by which such land is known with a description thereof made from an actual survey or a diagrammatic sketch of the same the position of the land an estimate of its area and a statement showing as far as known how long it has been unused by natives.

From and after the expiration of the time limited by such Order in Council the lands referred to therein shall be and be deemed to be vested in His Majesty for an estate in fee simple:

Provided that the Lieutenant-Governor shall at any time before the expiration of the time so limited and may at any time thereafter take into consideration any claim to such land or any interest therein made by or on behalf of any alleged owner thereof and if he allows such claim may either by another Order in Council published in the Gazette declare that the Crown disclaims its title to such land in which case the land shall not then vest in His Majesty or become Crown land or if it has so vested shall be divested from His Majesty and cease to be Crown land or he may acquire the right or such owner in manner hereinbefore provided.

9. It shall be lawful for the Lieutenant-Governor by Proclamation in the Gazette to appoint a Board or Boards to decide all questions as to waste and vacant lands or lands alleged to be waste and vacant and all cases of disputed ownership of land in which a Papuan native is a claimant. The Board in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure.

An appeal shall lie from the Board to the Central Court. The practice regulating such appeals shall be as laid down in regulation to be made by the Chief Judicial Officer and published in the Gazette. "

In purported reliance on Section 9 the Administrator by two proclamations in September 1954 appointed and constituted a Board consisting of Messrs. Cromie, Fairfax-Ross and Baldwin, the former of whom was a solicitor of this Court. As the proclamation expressed it, the Board was to "decide

(1) whether there is a dispute as to the ownership of any of the areas of land described in the Schedule hereto;

(3) where a dispute exists is one or more of the disputing parties a Papuan native, and

(4) if a dispute exists and one or more of the disputing parties is a Papuan Native who is the owner or who are the owners of the land the subject of the dispute. "

Eight areas of land were listed in the Schedule and each one was described by reference to a native name and to boundaries expressed in bearings and distances. All of these areas with the exception of a very small portion of Era Taora were within what has been previously described as the large rectangle of Granville East. Era Taora as set out in the Schedule appears to have comprised a small portion of Section IV, the whole of Section V, Portions of Sections VI, VII and VIII, and approximately 8 acres to the east of Section V and to the north of Sections VII and VIII of Granville East. It did not include the 5-acre portion earlier dealt with as being the subject of the Order in Council of 1901. The area appears to have consisted of somewhere between 30 and 35 acres. The Board stated this area to have been claimed by the Tubumaga Idibana clan which is one of the two branches of the Tubumaga clan. One other of the eight areas scheduled was claimed by this branch, another by the Tubumaga Laurina clan (the other branch) and yet another by certain members of the Tubumaga Laurina. Daera Guba gave evidence but in what capacity is unstated.

The Board on 21st October 1954 issued its findings in the form of a report - to whom does not appear but I assume that it was made to the Administrator. In the course of that report it was stated that two of the areas scheduled were no longer of concern to the Board. No reason was given as to why this was so nor does it appear at what stage of the proceedings they became of no concern. A portion of one of such areas contained part of Era Taora as claimed later before the Land Titles Commission. It was also stated that Mr. Sturgess of Counsel appeared for all of the native claimants with whom the Board was concerned. At the beginning of the report it was noted that Mr. Sturgess abandoned claims to all areas outside a rectangle which in effect was that portion of the large rectangle of Granville East which had not been cut up into the eight sections referred to by Cuthbertson in his report of 1886, and is the rectangle WXYZ as shown by the learned appeal judge in the diagram attached to his reasons for judgment. In the result the Board considered only a claim by the Tubumaga Idibana clan to a portion of Era Taora comprising 7 acres 3 roods 17 perches. This took in part of Hely Street but otherwise was in the unsurveyed portion of the Granville East rectangle. I should say also that this precise area was found by Mr. Champion, in the earlier abortive enquiry in 1954, to belong to the Tubumaga Idibana clan and that Daera Guba was the representative head of that part of the clan. The Board concluded its report in these terms.

Questions	Answer
1. Whether there is a dispute as to the ownership of any of the areas of land described in the schedule hereto	Yes
2. Where a dispute is found to exist who are the dispute parties?	The disputing parties are the Government and certain native claimants who are referred to in the opening parts of this report
3. Where a dispute exists is one or more of the disputing parties a Papuan Native?	Yes
4. If a dispute exists and one or more of the disputing parties is a Papuan Native who is the owner or who are the owners of the land the subject of the dispute?	The Government

No appeal was brought to the Central (in 1954, Supreme) Court against these findings. Neither in the Board's report nor in the previous report made by Mr. Champion is there
Any reference to the constitutional issues raised in this Court, and I think it fair to assume that these issues were not argued.

I should add that neither Lohia Doriga nor any member of the Giakone clan is recorded as having been concerned in the Board's enquiry.

The Land Ordinance of 1911 and its subsequent amendments were repealed by the Land Ordinance of 1962. No equivalent of Sections 8 or 9 appear in the latter Ordinance. In the same year was enacted the Land Titles Commission Ordinance which set up a Land Titles Commission for the Territory, and by Section 15 gave the Commission exclusive jurisdiction to hear and concerning and claims to the ownership by native custom of or the right by native custom to use any land, water or reef, including a dispute as to whether any land is or is not native land. It was under this section that Daera Guba and Lohia Doriga lodged their claims to Era Taora in February 1966. On this occasion the claim embraced all that area originally claimed before the 1954 Board and took in somewhat more of Sections VI, VII and VIII as well as the 5 acres to the west of Lawes Street. Daera Guba described himself in the claim as being of the Tubumaga Idibana clan and applied to the Commission on behalf of the descendants of Guba Daera deceased. The Chief Land Titles Commissioner seems to have regarded the claim to Era Taora as being made by the whole Tubumaga clan (indeed he sought to clarify Daera Guba's position vis-a-vis the Clan at the outset of the hearing before him in May 1968) and it is an order of the Commission in favour of the whole clan which Dr. Hookey seeks to have restored. His notice of appeal to this Court is in the name of Daera Guba and the Tubumaga clan.

Before the Chief Commissioner it was sought to found an estoppel based on the findings of the 1954 Board but hee rejected the argument. However, the argument succeeded before the learned appeal judge who after a careful and comprehensive review of the authorities came to the conclusion that the decision of the Board raised an estoppel which operated in respect of the Tubumaga claim to such of Era Taora as falls within the Granville East rectangle. His view was based principally on the conclusion that of all, the possible attributes of judicial function referred to in the authorities it seemed to him that the only one which the Land Board was shown not to have had was power to enforce its decision. This in his opinion was not an essential characteristic of judicial function and the Board was in fact a judicial body exercising judicial power and that its decision was a judicial determination.

As I read His Honour's reasons for judgment he began with the basic premise that Section 9 of the Land Ordinance 1911 empowered the Administrator to appoint a Board or Boards "to decide...all cases of disputed ownership of land in which a Papuan native is a claimant" and the present was such a case. To decide a dispute as to ownership of land, he thought, was typically a judicial rather than an administrative function.

Dr. Hookey attacked His Honour's judgment root and branch. The Board, he submitted, was not a judicial tribunal. There was no identity of parties in the two proceedings; the Board had no express or implied power to decide the fundamental constitutional issues in those proceedings nor in any event were those issues raised distinctly or specifically so as to invoke the doctrine of judicial estoppel; the Board was a tribunal of limited jurisdiction and its decisions could create no estoppel on the constitutional issues; there was insufficient identity of subject matter and the Land Titles Commission Ordinance excluded the operation of judicial estoppel arising from prior Board proceedings. Finally, as the result of some doubt expressed by my brother Frost during the argument both he and Mr. Clay submitted further argument on the proper construction of Section 9 and on the power of the Administrator to set up a Board in the circumstances of this case. In the result I have the misfortune not to be able to accept the basic premise upon which His Honour proceeded and for reasons which I will attempt to elaborate I have come to the conclusion that the appointment of the Board in this particular case was ultra wires the Administrator and that consequently it was not a judicial tribunal and it had no jurisdiction to pronounce any decision, let alone one which would be final, binding or conclusive.

To me the paramount question is: what was the role envisaged by the legislature for the Board or Boards permitted by Section 9 to be set up in the uncertain field of land policy in Papua in 1911 - a field in which policy had fluctuated up to that year, which has become no less uncertain in later years and which has now produced a crop of problems which bedevils both Territories.

From the time that sovereignty was assumed over the Possession of British New Guinea the Administrator on behalf of Her Majesty was empowered to purchase land from the native inhabitants. It was not, however, until 1899 that he was given specific power to vest what was compendiously known as waste or vacant land in the Crown. That power was contained in Section XI of the Land Ordinance of 1899 which I have considered previously in connection with the Order in Council of 1901. Earlier, in 1889 Sections XXIII and XXIV of the Crown Lands Ordinance of that year assumed that the Crown could take possession of waste and vacant land as Crown land and required an instrument attesting the fact of possession to be made out and to be recorded by the Registrar-General. However, provisions existed in both these sections for the Administrator in Council to take into consideration any claim that might subsequently be made by or on behalf of alleged native owners.

In the 1899 Land Ordinance Part II was headed "Dealings with Natives" and its provisions were obviously designed to protect natives from unconscionable land transactions. Section VII empowered the Administrator on behalf of the Crown to purchase or lease from natives provided that he was satisfied that the land or the use or usufruct thereof was not required or likely to be required by the native owners. The heading to Part III was "Acquiring and Recording the Acquisition of Crown Lands and Leases to the Crown" and it is in this part that Section XI appears. The Section empowered the Administrator in Council to declare land which had never been alienated by the Crown and not being land used or required or reasonably likely to be required by native-born Papuans for building, agricultural or other industrial purposes to be Crown land. By the proviso to the section the Administrator in Council was directed to take into consideration any claim to such land or any interest therein made by or on behalf of any alleged owner. Other parts of the Ordinance went on to deal with alienation in fee simple and leases of lands etc.

In 1906 (after the Commonwealth of Australia had formally taken over the administration of what by then had become known as Papua) land policy was significantly altered and the granting of estates in fee simple or other estates in freehold was forbidden. The 1899 Ordinance was repealed and in its place was enacted the Land Ordinance of 1906 - "An Ordinance to regulate the dealing with lands in the Territory." Parts II and III of the former Ordinance were condensed into a new Part I which was headed "Acquisition of Land from Natives". Section XI of the old Ordinance became Section VIII of the new, but with this significant changes that instead of land the subject of a proclamation of future vesting being unused and unrequired for future use it now had to appear to the Lieutenant-Governor to be ownerless. The proviso for considering the claims of alleged owners remained in the same form as in the previous Ordinance. In 1908 a short Ordinance to amend the Land Ordinance of 1906 was enacted and it added a new Section 4 which was in identical terms to Section 9 now under consideration.

In 1911 the Land Ordinance of that year repealed all previous ordinances then in force. Its heading stated it to be "An Ordinance to amend and consolidate the law regulating the dealing with lands in the Territory and for other purposes." After short definition and saving sections it was divided into four parts. Part I was headed "Acquisition of Land from Natives", Part II dealt with Leases by the Crown, Part III with the Reservation and Acquisition of Land for Public Purposes, and Part IV with a few general matters. Part I contained substantially the same sections as in Part I of the 1906 Ordinance except that Section 7 was a considerably expanded version of the former Section VII. Section 4 of the 1908 Ordinance was enacted in this Part as Section 9. And it is under this section that the Administrator constituted the Board in 1954.

In the view I take this section is to be read as ancillary and not as alternative to Section 8. The heading of a Part is to be deemed part of the Ordinance (Ordinance Interpretation Ordinance 1911-1940 Section 13 and Ordinances Interpretation Ordinance 1949-1969 Section 27) and it is legitimate to refer to the headings of different portions of a statute to determine the sense of any doubtful expression in a section ranged under any particular heading. See The Directors etc. of the Hammersmith and City Railway Company v. Brand (^[13]). In that case words which were apparently quite general in their import were read down to conform to the purpose disclosed in the headings to the relevant sections. In the Land Ordinance 1911 clauses 3 to 7 need no such assistance for their purport is clear beyond doubt. Section 7 may at first sight seem oddly placed but on tracing it back one can find its genesis in Section XXII of the Grown Lands Ordinance of 1890 where it is included in Part II, "Acquiring and Recording the Acquisition of Crown Lands and Leases to the Crown", which follows upon the elaborate provisions in Part I for testing and adjudicating upon claims to have acquired lands from natives and for the conversion of those lands into Crown lands fox the purposes of issuing Grown grants. It seems to me that the section's justification for inclusion in Part I of the 1911 Ordinance is that it deals with lands which must in the first place have been acquired from natives.

Section 8 is not easy to construe. It is expressed to apply to land which has never been alienated by the Crown, but it must also surely apply to land which has never become vested in the Crown - otherwise the section would be otiose. It may be that it could apply to land taken possession of by the Crown under the provisions of Section XXIII and XXIV of the Crown Lands Ordinance of 1890; but in such a case the Crown's possession would be that either of truly ownerless land or of land owned by a native owner.

The lieutenant-Governor was not specifically required to consider whether the land which he proposed to proclaim as Crown land was land used or required or reasonably likely to be required by native-born Papuans, but to consider whether there appeared to be no owner of the land. The owner referred to here can I think only mean a native owner. My view is strengthened by the second paragraph of the section with its requirement of publishing the length of time that the land had been unused by natives. And it appears to me that the first part of the section empowered the Lieutenant-Governor to declare what may in fact be native land to be Crown land. The last paragraph of the section imposed a number of duties on the Lieutenant-Governor. If a claim were made to the land or any interest therein by or on behalf of an alleged owner before the expiration of the time limited in the Gazette notice then he was bound to consider that claim and to allow or disallow it. If on the other hand such a claim were made after the land had become vested in the Crown he could or could not in his discretion consider such a claim. If he did consider it then it followed that he had then to allow or disallow it. In either case if he decided to allow the claim of ownership then further matters would arise for his consideration. He would have to decide whether to disclaim title or to divest the Crown of title (as the case may be) or whether it would be desirable to acquire the right of the owner, and if he should decide the latter then he could only acquire subject to supposed an owner willing to dispose of the land satisfaction by the Lieutenant-Governor that the or likely to be required by the owner. He might also both in deciding whether there was an owner and whether that owner was willing to sell have to consider conflicting claims by Papuan natives as to ownership of the land. Section 7 of course in these circumstances did not enter into consideration because it referred only to land already alienated by the Crown and with such land Section 8 had no concern. In all of the foregoing cases it would be convenient for the Lieutenant-Governor to have the advice of a person or body specifically charged with the task of sorting out for him and reporting on the difficult questions of fact and law which could arise.

When one turns to Section 9 it is at once apparent that it must be read down to some extent. It cannot mean that all questions as to waste and vacant lands or lands alleged to be waste and vacant and all cases of disputed ownership of land in which a Papuan native was a claimant could be referred to a Board; for example in my opinion the section could not ,empower the Lieutenant-Governor in Council by the stroke of a pen to take away the jurisdiction of the Central Court which in its criminal jurisdiction had cognizance and jurisdiction of and over all kinds of offences against laws and in civil cases the like jurisdiction as the Supreme Court of Queensland. It would be inconceivable that in a criminal case where a claim of right over land was involved and the question raised as to whether it was waste and vacant or whether it was owned by a Papuan native that the Lieutenant-Governor could withdraw that question from the Court for decision by a Board. It would be similarly inconceivable that such a procedure could be adopted in an action of trespass or ejectment or for a declaration of ownership or in consideration of questions of succession where ownership of land by Papuan claimants could be involved. Nor could the section be brought into operation when the Native land Commission was enquiring into a dispute as to ownership of land between native claimants under Section 14 of the Native Land Registration Ordinance 1952, It seems that in such a case another of the, functions of the Board was invested in this Commission by Section 37 in its direction to the Commission to report to the Administrator recommending action to be taken to declare land as Crown or Administration land when the Commission in the course of any enquiry should be satisfied that any land was waste and vacant within the meaning of the Land Ordinance.

It was implicit in Mr. Clay's argument that the word "all" must in some way be qualified and he submitted in effect that the section was not to be construed as meaning that if a Board or Boards were appointed it or they would have to decide all questions of waste and vacant land and all cases of disputed ownership. Rather the section meant that it was lawful to appoint a Board to decide all such questions or cases arising in respect of a particular area or piece of land. Dr. Hookey on the other hand argued that on its proper construction the section did not authorize the constitution of Board or Boards unless it or they were charged with the task of deciding all questions and cases where the acquisitions of land from natives was in question; and he took some comfort from the dicta of Lord Greene, M.R. In re Wellstead's Will Trust(^[14]) and submitted that there was no compelling context requiring "all" to be read down to allow the appointment of an ad hoc Board to deal with one particular dispute so that the Board to be validly constituted in 1954 should have been granted a jurisdiction over all questions as to waste and vacant land and over all disputes embraced by Section 9. I think there is something to be said for the view put by Dr. Hookey but I prefer to base my conclusion on what I take to be the limited nature of the function of any Board appointed under the Section. Adopting the approach of Lord Chelmsford in The Directors etc. of the Hammersmith and City Railway Company v. Brand (supra) (^[15]) I am of the view that the expression "all questions as to waste and vacant lands or lands alleged to be waste and vacant and all cases of disputed ownership of land in which a Papuan native is a claimant" must be construed in the light of the heading to Part I and be governed by it.

I ask then, what questions and cases can be confided to a Board? The answer in my opinion is, questions and cases arising in the operation of Part I. The kind of question that can arise as to waste and vacant lands I have dealt with in discussing Section S. Cases of disputed ownership could arise under that section and also under Section 8. The Ordinance is a consolidating Ordinance and the position of Section 9 therein supports the view I take that it is ancillary to the other sections of Part I. Were it designed to have a wider operation I would at least expect to find it in Part IV. I cannot regard the section as being truly alternative to Section 8 and exclusive of it once the Lieutenant-Governor in Council decided to appoint a Board. In one sense it does provide an alternative mode of procedure in that the lieutenant-Governor may instead of conducting an investigation himself appoint a Board to conduct that investigation for him, but the ultimate decision is still his. This is clearly so if he were to set up a Board to decide a question of waste and vacant land or a disputed claim to ownership after the publication of a Section 8 Order in Council. Notwithstanding the Board's "decision" there is nothing to preclude the Lieutenant-Governor from allowing Section 8 to take its course and the land to vest in the Crown. Indeed if the period named in the Order in Council had expired before the Board were able to conclude its enquiries there would be nothing to decide as to ownership for that would have already vested in the Crown. There is nothing in the Ordinance which compels the Lieutenant-Governor to publish another Order in Council divesting the Crown's ownership of land and a number of administrative or policy considerations might have to enter into the decision whether to so publish or not.

For the foregoing reasons I do not consider that the questions (or cases if such they should be called) referred to the Board in 1954 were questions within the scope of Part I of the Land Ordinance and accordingly it was ultra vires the Administrator in Council to appoint this Board to decide the ownership of Era Taora. It follows that the decision of the Board was a nullity and could create no estoppel.

Although what I have said is sufficient to dispose of this branch of the case, both in deference to the comprehensive arguments so ably presented to us and in case my conclusions on a submission which was made for the first time before us should be wrong, I propose to shortly state my views on the other submissions made. I have carefully considered these arguments and in relation to them have had the advantage of reading the reasons for judgment about to be published by my brother Frost. I agree generally with his reasons for concluding that the report of the Board was not a final decision pronounced in accordance with judicial principles by a judicial tribunal of competent jurisdiction and that its decision in this case was not binding or authoritative. The recent case of United Engineering Workers Union v. Devanayagam (^[16]) where the Judicial Committee of the Privy Council had to consider a provision requiring a labour tribunal to give such relief as appears just and equitable illustrates the difficulty in deciding whether such a tribunal is a judicial one; and it is with some hesitation that I agree also with my brother's conclusion that in the light of the direction contained in Section 9 to be guided by the principles of equity and good conscience a Board would be completely un-fettered by legal principles and not bound to act in accordance with law in coming to a decision. In Romni Mond & Ors. v. Robertson (^[17]) I came to a different conclusion with respect to a similar section in the Native Employment Ordinance 1958-1966, although in the result I also concluded that there was some room for the exercise of an unfettered discretion by the magistrate. But in that case I was dealing with a District Court normally accustomed and compelled to act in accordance with well-defined legal principles. I am persuaded that a Board under the Land Ordinance was in a different situation. It is unfortunate that whatever the reason for providing for a Board or Boards in 1908 and 1911 and despite the making thereafter of several Orders in Council with respect to waste and vacant land no Board was ever appointed in the 32 years prior to the collapse of civil government in this Territory in 1940, nor was any judge of the Court called upon to consider the scope and proper interpretation of Section 9. It seems that a Board was appointed in 1950 to decide a dispute between two groups of native people as to ownership of land but this was followed in 1932 by the Native Land Commission Ordinance which provided a Commission to settle such disputes.

The provision for appeal to the Supreme Court has caused me some concern. At first sight it might seem to support the argument for a Board's being truly a judicial tribunal, and once a question or case were referred to it, empowered to give a judicial decision. But after anxious consideration I do not think the argument can succeed on this basis. Amongst a number of propositions set out by Lord Sankey in Shell Company of Australia v. Federal Commissioner of Taxation (^[18]) he stated that a tribunal is not necessarily a Court because there is an appeal from it to a Court. In the circumstances of the Territory of Papua in 1911 one can understand provision being made for a judge to review cases which might involve difficult questions of law and in which the Lieutenant-Governor would need the best possible legal advice. No professional qualifications were required of a Board which could in fact consist of a single individual conducting an enquiry in some remote part of the country and it is understandable that the legislation would provide for some judicial review of such an individual's conclusions. It is significant that in 1912 when the Justices Ordinance was enacted the circumstances in which an appeal could be brought to the Central Court and the powers of the court on appeal were specified. And it is of some significance too I think that whereas nothing appears in the Land Ordinance as to any enforcement or recording of a Board's decision, specific provision exists in the Arbitration Ordinance of 1913 for an enforcement of an award. In my opinion the functions of a Board and of the Central Court when they were called upon to act under Section 9 were advisory only and that even in cases which were within their proper purview a decision of either of these bodies could not set up an estoppel.

Although I have come to the conclusion that there was no sufficient evidence before the Land Titles Commission to base a finding that any part of Era Taora was validly acquired by the Crown in 1886 or by the Order in Council of 1901 and that the Land Titles Commission was not estopped by the Board's finding of 1954, these conclusions do not of themselves dispose of these appeals.

At this point it is necessary to consider the strong submission by Mr. Clay that the onus lay on the appellants to displace the decision of the learned appeal judge and a related submission that this Court could not or should not depart from concurrent findings of fact made by the two previous tribunals.

As to the first submission in my opinion the law is correctly stated by Turner J. in Boots (N.Z.) Ltd. v.Tews Pharmacy Ltd. (^[19]) where he said at p.914: ".....When the second of two successive appellate Courts undertakes an inquiry as to whether the Court of hearing had decided correctly a question of fact, or a mixed question of fact and law, I think that the position must be that the opinion of the second appellate tribunal is substituted for that of the first, there being no onus upon the appellant to show that the earlier appellate tribunal was in error. The question is the same before each of the two appellate tribunals. The first of them enjoys no advantage over the second, for neither of them has had any opportunity of hearing the evidence or seeing the witnesses. In these circumstances there is no room for the second of the appellate tribunals to defer to the first. I so approach the appeal before this Court." See also McCarthy J. to the same effect at p.922. I do not think that anything said by Lord Denning in delivering the judgment of their Lordships in Adjeibi Kojo II v. Bonsie (^[20]) conflicts with the view above set out. The powers of this Court on appeal include a power to give such judgment as ought to have been given in the first instance - see Supreme Court (Full Court) Ordinance 1968, Section 21. A similarly expressed power in the High Court was understood by Windeyer J. as involving that court's considering the judgment of the learned trial judge not so much to determine whether the High Court would have come to the same conclusion on the facts but rather to determine whether or not the Full Court of Western Australia should have disturbed it. See Da Costa v. Cockburn Salvage & Trading Pty. Ltd. (^[21]). It is in this manner that I think we should approach this case.

Mr. Clay relied on the concurrent findings of the Land Titles Commission and the learned appeal judge that there had been a sale of the subject land to the Government. In S.S. Mendip Range v. Radcliffe (^[22]) the majority of the lords sitting on appeal in that case held that there having been concurrent findings of fact substantially on the same grounds by the courts below their decisions ought not to be disturbed. Lord Atkinson at p.576 adopted the principle laid down by Lord Herschell in The Owners of the P Caland v. Glamorgan Steamships Co. (^[23]) that a more finding of fact in which both the courts below have concured ought not to be disturbed unless it can be clearly demonstrated that the finding was erroneous. Perhaps more closely related to the type of case such as the present was the decision of Napier and Richards JJ in Riedel v. Freeman Motors Limited (^[24]) which was an appeal from the decision of a single judge sitting as an appellate court from the judgment of a magistrate of the Local Court. Their Honours referred with approval to what was described by Lord Hobhouse in Moung Tha Hyneen v. Moung Pan Nyo (^[25]) as "the valuable principle.....commonly observed in second Courts of Appeal, that such a Court will not interfere with concurrent judgments of the Court below on matters of fact, unless very definite and explicit grounds for that interference are assigned." They thought that greater latitude may be allowed where the first appeal has succeeded but where that has failed they were of opinion that there was grave danger of the multiplication of appeals in relatively trivial cases unless the Full Court were to lay down the rule that it would not interfere unless the appellant could establish some clear miscarriage of justice or a serious violation of law or procedure.

It is at once to be observed that this is an appeal from a court which in its ultimate decision has disagreed with the tribunal of first instance. In any event in my opinion there were no true concurrent findings. The learned appeal judge said that he accepted the finding of the Land Titles Commission that there was in 1886 a purported acquisition from the natives of a substantial area of land in the Port Moresby area. Further he accepted that at least part of the land dealt with lay in the Granville East rectangle and in his view the Land Titles Commission by implication concluded that the land dealt with included land in the internal (unsurveyed) rectangle. However as I understand the finding of the Land Titles Commission it dealt only with Era Taora and the Chief Commissioner whilst holding that the Giakone clan purported to sell that land held they had no rights in it and so there was no sale. His Honour concluded that at least the 58 acres of Granville East identified by Mr. Champion as being the subject of the Cuthbertson survey were acquired by Government officers, but the Land Titles Commission made no finding to this effect. It was only necessary for His Honour to make a finding with regard to a small portion of the southern part of Era Taora.

I approach the further consideration of this appeal on the basis that it has to be shown to this Court that the Land Titles Commission was wrong and that its findings were against the weight of the evidence. That is not to say that the views of the learned appeal judge who is both experienced and expert in this field should not be given careful consideration, but in my opinion those views do not have in law any special persuasive quality to which we should defer.

Although the evidence is sketchy I repeat my agreement with the premise from which Dr. Hookey began, i.e. that Era Taora in 1886 was native land. The learned appeal judge thought the documentary evidence was of particular value in this case but I cannot agree that it really assists in determining what if any land was validly bought by the Crown in the vicinity of Era Taora. The Chief Commissioner found that the Giakone clan purported to sell Era Taora to the Administration and that the clan as such had no rights in this land. It is a matter of some surprise that at the hearing before the Commission most of the witnesses called in Lohia Doriga's claim, including Lohia Doriga himself, testified to such a sale. We were not made aware of the argument in support of the claim and can only guess that the validity of the sale must have been attacked. However, there was ample evidence that a purported sale was effected. The evidence was of necessity hearsay for there was no witness called who was alive at the time of the transaction and it could well be that there was some confusion brought about by the sale of some 74 acres of substantially adjoining land in 1900 - a sale it will be remembered by Hohodae people. But in my opinion the finding of the Chief Commissioner cannot be said to be against the weight of evidence. Such a finding is of course fatal to Lohia Doriga's claim.

The principal witness for the Giakone clan was Lohia Doriga himself. He was then a comparatively young man aged about 46 but was able to give a fairly coherent account of the history of his clan and of its land occupation. His major assertion was that the Giakone land in effect embraced the whole of Granville East, Mount Goldie and Paga. However, both in his evidence-in-chief and in cross-Examination he asserted that Robert Hunter had bought Era Taora on behalf of the Government and had bought it from Koitapu people.

When Lohia Doriga appealed against the decision of the Land Titles Commission his contentions were that the findings of the Commission were wrong in law in that there was no evidence to support such findings. Alternatively, that the findings were against the weight of the evidence in that the whole of the evidence tended to show that the members of the Tubumaga clan were not the sole and original owners of the subject land or at least that they did not hold rights in the subject land to the exclusion of him and his clan and, further, that in his evidence before the Land Titles Commission he had made a serious mistake in that when he referred to the sale of Era Taora to the Government he was referring to land to the north of the subject land which was known to him and his clan as Era Taora, the subject land being in fact known to them as Vanama.

The claim by Daera Guba was lodged with the Land Titles Commission on 7th February 1966. It stated the subject matter of the application to be land known as Era Taora and it was accompanied by a statutory declaration by one Kevin Ewart Hollamby, an Assistant District Officer of Port Moresby, verifying two plans which were lodged with the claim, the first of which set out the surveyed boundaries of the area claimed and the second contained a super-imposition of these boundaries over the streets and allotments now existing. Lohia Doriga's application was signed on 9th February 1966, the land the subject matter of the application therein being also referred to as Era Taora. The claim referred to an attached survey plan but no such plan appears to have been lodged or filed nor was there any explanation that I can recall for its absence.

Throughout the hearing before the Land Titles Commission the land the subject of the hearing was consistently referred to as Era Taora. There is no record of the Commission having physically inspected the boundaries and the case was argued before us on the assumption that such an inspection was not carried out. The Chief Commissioner after hearing inter alia a body of evidence from members of both clans made the findings to which I have earlier referred together with findings that at all relevant times the Tubumaga clan were the owners of the land the subject matter of the applications and that subject to transactions in 1956 and 1957 concerning a small portion of the land it was never sold by the clan. He went on to find also that the Order in Council of 19th August 1901 does not apply to the land and that Era Taora is native land (other than the parcels included in the 1956 and 1957 transactions which are Administration land). These transactions were three purchases of land made by the Administration. The first in 1956 was of a long strip of land the eastern and western boundaries being 4,400 links and 4,300 links respectively and the northern and southern boundaries 100 links and 140 links respectively. On the plan attached to the transfer the land was bounded by Castlereagh Street on the west. Daera Guba was amongst a number of vendors of this land but received a very small portion of the purchase money, maybe in respect of some portion of Era Taora but there was no evidence to clarify this matter. In 1957 and 1958 there were two further sales to the Administration within what was agreed to be Era Taora, each of a small portion containing slightly over one rood and to the east of Granville East. Daera Guba did not appear as a vendor in either of these sales.

Before the learned appeal judge an affidavit of Lohia Doriga was tendered to support his application for a new trial on the ground of his mistaken evidence. In that affidavit he deposed that in February 1966 he heard on the radio of the lodgment of Daera Guba's claim, that he went to the Sub-District Office at port Moresby and Mr. Hollamby of that office took him in his car and pointed out the boundaries of the land claimed by Daera Guba. He told Hollamby that the land was Koitapu land and that he wanted to lodge a claim to it and he also told him that its name was Vanama. He went on to depose that he had signed a claim form in blank and handed it to Hollamby to process. This form he did not see again until it was shown to him by his solicitor in connection with the appeal.

His Honour refused the application on the ground that the evidence sought to be adduced could not satisfy the tests which it must in order to justify the order for a new trial. As he pointed out the appellant gave his evidence during the hearing on 20th March and neither in re-examination nor on the 21st, the following day of the trial, was any attempt made by the appellant or his counsel to correct an apparent admission which in itself appeared sufficient to destroy his claim. His Honour was also moved by two further points affecting the weight of the evidence. There were other Giakone witnesses who gave evidence of the sale which the appellant on the appeal sought to deny and, furthers even a finding that the appellant's ancestors had not purported to sell the disputed land did not touch the Commissioner's first finding that the land was owned by the rival Tubumaga claimants.

During the course of the hearing we allowed Mr. Woods to amend his Notice of Appeal to this Court by adding grounds alleging that the judgment of the learned appeal judge was wrong in law in that he refused an application for a new trial on the grounds that the appellant had given evidence at the trial which was mistaken and further that he was wrong in law in finding that the evidence sought to be adduced did not satisfy the tests which would justify an order for a new trial. We gave the appellant the opportunity to seek support from Mr. Hollamby for the assertions in the affidavit of the appellant's dealings with Hollamby but no such support was forthcoming nor was any application made to correct mistaken evidence by the three witnesses who had supported Lohia Doriga's evidence of sale. Further no explanation on the part of the solicitor who appeared for him at the hearing was put before us. We then during the course of the hearing rejected the application for a new trial on the additional grounds for the same reasons as had moved the learned appeal judge.

The real question is whether the Chief Land Titles Commissioner's finding that the subject land was never Giakone land and at all times Tubumaga land is wrong in law because there was no evidence to support it or whether that finding was against the weight of the evidence. His two findings are not necessarily interdependent. That he finds the Giakone claim not to be made out does not necessarily result in the success of the Tubumaga claim and vice versa. The record of the hearing is open to criticism and the evidence which is in large measure traditional is sketchy.

The learned appeal judge was of opinion that the finding of the Commission that the Motuan people were not involved as parties in the sale was against the weight of evidence. For the reasons which I have set out earlier and hope that I have made clear there was no direct evidence and I do not think that in fact there was any evidence from which the inference can be drawn that Era Taora was purchased from any member of the Tubumaga clan.

There is no traditional evidence that the Tubumaga people sold and great reliance was placed on the absence of any traditional story to this effect. Mr. Clay relied on possession by the Crown as evidence of title. He did not, nor could he in my opinion, rely on the Distress Replevin and Ejectment Act of 1867 (Queensland, Adopted) for this could not apply to lands held by custom and adverse possession in the sense understood by English lawyers is a concept foreign to the Papuan. Hawdon v. Khan (^[26]), relied on by Mr. Clay, goes no further in my opinion than to support the proposition that possession may be evidence of title. In that case Ferguson J. at p. 712 said. ".....Possession is prima facie evidence of seisin in fee. There is a presumption that a person in possession of land had an estate in fee simple, that he is the true owner. Let us see what this presumption involves, bearing in mind that no person can acquire an estate in fee simple except in one of two ways - by Crown grant to himself or to a predecessor in title, or by possession adverse to the true owner for twenty years (or by sixty years as against the Crown). I disregard what text-writers have called seisin in fee by wrong, with which the presumption is not concerned. If A, then, is possessed of land, to say that is evidence of his seisin in fee means that his possession tends to prove in fact that a grant of the land has been made to him ox his predecessors or that it has come to him or them by virtue of twenty or sixty years' possession. There is necessarily implied the further presumption that if anyone else has been in possession as owner within twenty years, then by conveyance or some other lawful means his title has been transferred to A.

Of course, possession does not necessarily establish any of these things. It merely gives rise to a presumption - a rebuttable presumption. It supplies evidence with which, like other evidence, the jury must deal in the light of the surrounding circumstances, the probabilities, the common experience of human affairs. Presumptions of this kind are not something substituted by law for the actual facts; they are intended, as evidence, to aid the jury in ascertaining what the actual facts are. If a witness testifies that A was in possession of land ten years ago, the jury may believe or disbelieve his evidence. If they accept it, it establishes the fact of A's possession. From that they may go on to infer that he was the owners but they are not bound to do so. The surrounding circumstances may confirm the inference; they may weaken it; they may be such that no reasonable man could possibly draw the inference at all. The nature and extent of the acts of ownership accompanying the possession, the presence or absence of persons who might be concerned in challenging A's title, the existence of facts suggesting something other than ownership to account for his possession, the absence of documents or evidence which one would expect to find, his unexplained abandonment of possession - any of these things might help the jury in determining whether they ought to draw the inference that he was there as owner of the fee simple.

Then the possession of land has another important effect of a different kind. It is not merely evidence of title, it actually confers a title upon the possessor - a substantive right in the nature of property. By mere virtue of his possession he has a title to the land effective against everybody except the real owner, a title of which he can make a valid conveyance, and which will pass like other property under his will or upon his intestacy. This title, which is treated by possession, must be distinguished from the title to the fee, which, once created, exists independently of the possession, but of which the possession is evidence."

I have quoted at length from this judgment because I think that even if one were to apply English law to the solution of this case the possession relied on by the Administration tested in the light of the considerations set out therein could not be sufficient to establish its ownership. The Chief Commissioner said that generally speaking he accepted the evidence of the Tubumaga clan. There is evidence which he must have accepted which shows long possession of parts of Era Taora by the Tubumaga people.

It is true that Daera Guba's evidence as to the land sold in and after 1956 might well have called for further enquiry into the precision of the boundaries claimed by him and to have cast some doubt upon his accuracy. But as the area outside Granville East save for the small claimed by the Administration apparently no great attention was paid to it. The learned appeal judge thought there was nothing to justify disturbing the finding of the Land Titles Commission that this area was Tubumaga land. It is true also that there appeared on the record some confusion as to the land boundaries when reference was made to the land occupation by Stubbs in evidence concerning the boundaries between Tubumaga and Giakone land, but it seems that at different times Stubbs occupied different pieces of land and it is to be remembered that the Commission was sitting in Hanuabada which is to the noth of the subject land. I would assume that the Chief Commissioner with evidence of location expressed in terms of "this side of" or "that side of" would be able from his own local knowledge to satisfactorily resolve for himself to which actual area of land the witness was referring.

In 1912 both the Crown and members of Tubumaga clan were sharing possession of Section V, the Crown alleging it was Crown land the natives that it was theirs but that they acquiesced in the Crown's possession because in their view that possession was for their benefit. For some time after the First World War the Tubumaga people seem to have gardened freely where they willed on Sections V and VI although the advent of the next War brought a change because of the necessities of war. It seems clear that from about the time of the last War the Tubumaga people were out of possession of the land which they allege was theirs in Granville East and there were complaints made from time to time, although I find it difficult to identify before 1953 the land about which complaint was made.

In the post-war period I am of impression that there was considerable building activity on Era Taora. Mr. Clay as I understood him sought to use this in two ways. In the first place relying on Nchirahene Kojo Ado v. Buoyemhene Kwadwo Wusu (^[27]) (an appeal to the West African Court of Appeal, I think from the Gold Coast) he submitted that as the appellants had stood by for a long period and allowed improvements to be made on the land and money to be spent on it they should be estopped from setting up their claim to ownership. It was held in that case that if a defendant could show over a lengthy period of occupation he had been led to regard the land as his own and had spent money on its improvements the plaintiff was estopped from setting up his claim to ownership, but if the defendant could not show this the plaintiff was entitled to a declaration of title.

However, that was a case in which the defendant had been in undisturbed occupation for nearly 200 years without any tribute to the plaintiff. In the judgment of the Court it was stated that there was a long series of decisions (in the Gold Coast) in which it had been laid down that the court should not allow the strict native land custom to be invoked because the effect in equity was unjust. However, whilst this Court may at some time have to consider whether equitable principles or the rules of equity are applicable in respect of native customary land I do not think that the circumstances of this case call for such consideration. Despite the fact that it was assumed that there are buildings on the I and there was no evidence relating to present possession nor to any possession in the post-war period nor to what if any expenditure has been made, and the claim before the Land Titles Commission did not deal with the right to present possession. For this reason, too, I do not think that we should consider Mr. Clay's other argument based on a line of cases culminating in Inwards v. Baker (^[28]) that the laches and acquiescence of the Tubumaga clan in the Crown's occupation of Era Taora should somehow estop the clan from alleging title. I agree with Dr. Hookey's submission that the equitable doctrines relating to laches and acquiescence would be relevant if at all after the determination of the ownership by native custom issue. They might conceivably operate to prevent or hinder enforcement of the customary law title. Here, I think it should be stated also that I cannot agree with Dr. Hookey's argument that the Administration's remaining in possession of the land leased to it (the well site) in 1931 estopped it from asserting ownership of that area. I find it unnecessary to consider such cases as Harrison v. Wells (^[29]) and whether or not the Administration is a tenant at will or by sufferance because there was no evidence that I can discover dealing with the present possession of the well site. This is not to say that the entry into the lease by the Administration was not strong evidence of an acknowledgment of ownership in Daera Guba and his clan of the land the subject matter of the lease which I am satisfied was within the unsurveyed portion of the Granville East rectangle. I am inclined to think that he regarded this lease as covering the whole of Era Taora, which would in part serve to explain the failure to take any positive steps to establish ownership until 1954.

FROST, S.P.J. These are two appeals against the decision of Clarkson, J. on appeal from an order of the Land Titles Commission in respect of claims a piece of land of about 42 acres known as Era Taora, at Newtown. It is just north of Tuaguba hill, which separates Newtown from the town of Port Moresby. The claims to the land were brought under the Land Titles Commission Ordinance 1962, Section 15(1) which confers jurisdiction on the Land Titles Commission to hear and determine disputes concerning claims to ownership of land by native custom. On 25^th March, 1968 the Commission held that the land was native and upheld the claim of Daera Guba of the Tubumaga clan. The Chief Land Titles Commissioner stated in his judgment that having seen and heard the witnesses, he found that all relevant times the Tubumaga clan were the owners of the land the subject of the application, and subject to certain later transactions as to part of the land, it was never sold by them; that from time to time members of other clans were permitted to use the said land because they were married into the Tubumaga clan; that the Giakone clan, (which Lohia Doriga represented) as such, had no rights in the said land, and that it had purported to sell the land to the Administration.

Clarkson, J. held that the appeals of Lohia Doriga on behalf of the Giakone clan failed and he allowed the appeal of the Administration except as to a small portion of the land which he numbered No.1 on a plan showing the land in six sub-divisions as to which different legal considerations applied.

The Administration case before the Land Titles Commissioner and this Court was that in 1886, during the Protectorate and before the annexation of Papua in 1888, certain land comprising 95 acres, called Granville East, had been purchased from the native owners by the Hon. John Douglas, Her Majesty's Special Commissioner, and that Era Taora was included in that purchase except for two small portions. One portion, being the eastern tip of the land, was the land numbered (1) which the Administration conceded remained native land, as it had not been purchased, and the other was the piece of land numbered (5) being a narrow strip of land, at unsurveyed, upon the western portion of Era Taora and immediately to the west of Granville East, the Administration's Title to which was based upon an Order in Council, dated 19th August, 1901. As to the pieces of land which Clarkson, J. numbered 2, 3 and 4, all of which it appears from 3 map, 'Exhibit B', form part of both Era Taora and the sub-division Granville East, Clarkson, J. held that an order of the Land Board set up in 1954 to determine the ownership of certain land, including Era Taora, awarding the land to the Administration, estopped the appellant, Daera Guba, from disputing that those portions of the land were owned by the Administration. The piece of land number (6), Clarkson, J. held was not subject to the estoppel but was Administration land on the ground that it had been validly acquired by Douglas in 1886 as a part of Granville East.

It is convenient first to consider the appeal of Daera Guba against the Administration dealing first with the land numbered (6) which will determine the appeal upon the issue whether there was valid acquisition, then the question of estoppel, which will determine whether the decision as to the land numbered (6) is applicable to the land numbered (2), (3) and (4), and finally the validity of the Order in Council, which determines the appeal as to the land numbered (5). It will then be necessary to consider the appeal brought by the appellant Lohia Doriga as to the whole of the land, including the land numbered (1).

At the outset I desire to state that I have found the full and comprehensive judgment of Clarkson, J. of the greatest assistance, for the case raises a number of matters, some of them novel to Australian lawyers, which I have found complex and difficult. This Court has also had the assistance of able argument by all counsel in this complex case. It is unusual that a case should be heard which depends so much on facts which took place as long ago as 1886. But the Administration raised before the Land Titles Commission no claim by prescription, nor does it appear that the Commission, which gave no reasons for its findings, considered whether the facts supported any presumption of ownership in the Administration by reason of possession of the land or the exercise of acts of ownership in the long period subsequent to the alleged acquisition.

Was there a valid purchase of the land? - The Law. The first question is whether the Special Commissioner had power to purchase land. By Proclamation dated the 6th November, 1884, Her Majesty assumed the Protectorate of portion of the Southern coast of New Guinea which was to become by annexation in 1886 part of the Possession of British New Guinea. The power of the Special Commissioner, the Honourable John Douglas, to purchase land within the Protectorate depends upon the terms of his Special Commission dated the 26th December, 1885. By the Commission it was recited that Her Majesty had taken the country under her protection and jurisdiction, and Douglas, as Special Commissioner for the Protectorate was appointed, "in all respects to represent our Crown and authority in matters occurring therein, and further to take all such measures, and to do all such matters and things in the said Protectorate as in the interests of our service you may think expedient, subject to such instructions as you may from time to time receive from Us or through one of our Principal Secretaries of State."

It seems plain that both the Proclamation of the Protectorate, on 6th November 1884 by Commodore Erskine, and the appointment of the Special Commissioner constitute an exercise of Sovereign power and hence an act of state which is beyond challenge. Salaman v. Secretary of State for India (^[30]) But the extent of the powers thereby conferred can be enquired into by the Court. Ex parte Mwenya (^[31])

In considering the powers conferred by the Commission, I agree with Dr. Hookey that the Commission must be examined in the light of the Imperial statutes applicable to the Protectorate and, in particular, the Foreign Jurisdiction Acts 1843 to 1878, the Pacific Islanders Protection Acts 1872 and 1875, and the Western Pacific Order in Council made there-under.

The Foreign Jurisdiction Act 1843 was passed to remove doubts which had been thrown on the legality of the jurisdiction which the British Crown had exercised in its dominions abroad. The accepted view of the legislation is that it did not extend the jurisdiction of the Crown, it only provided for the manner of the exercise of the jurisdiction. "It says that the Crown can exercise its jurisdiction in the Protectorate 'in the same and as ample a manner' as it exercises its jurisdiction in a country which has been conquered or ceded. This means that the Crown can exercise its jurisdiction by means of Order in Council or otherwise, just as ceded country, but it does not enlarge the area of its jurisdiction" Nyali Limited v. Attornery General (^[32]). Accordingly, it is necessary to look at the extent of the jurisdiction conferred and in British New Guinea.

The view and practice of Great Britain as to the extent of jurisdiction lawfully to be exercised within a protected country in fact did undergo change in the present century. It is referred to by Evershed M.R. in Ex parte Mwenya (supra) (35), citing Mr. W. E. Hall's Treatise on the Foreign Powers and Jurisdiction of the British Crown, (1894). It seems that all States represented at the Berlin Conference of 1884 - 1885, except Great Britain, maintained that a Protectorate included the right of administering justice over the subjects of other civilized States. This was not then the British view which limited jurisdiction outside British dominions to British subjects. However, under English law it was eventually recognised, as it had been in the Continent, that the British Crown was entitled to exercise jurisdiction in a protectorate over all persons within it, including the native inhabitants, in the same way as in a conquered country. So far as the Protectorate of British New Guinea is concerned (which it is to be borne in mind came to an end in 1888), as it happened, an opinion was obtained from the law officers of the Crown as to the extent of the jurisdiction of the British Crown within that Protectorate. In their opinion dated the 11th December, 1884, the law officers, F. Herschell, Esq. (latex Lord Herschell L.C.), who was Solicitor General, and H. James, Esq. (later Lord James of Hereford), who in that year was Attorney General, gave as their opinion that legal jurisdiction over persons other than British Subjects could not under the circumstances be acquired within the Protectorate of New Guinea, if it did not become British soil. It must thus be taken that at the relevant period, the British Crown did not accept that it had the right to exercise jurisdiction over the native inhabitants of Papua, and, in my opinion, Douglas' Commission should be construed accordingly.

The same limitation of jurisdiction is to be found in the Pacific Islanders Protection Act 1875, to which accordingly only brief reference is necessary. That Imperial Act conferred power upon Her Majesty to exercise jurisdiction over British Subjects in the Pacific Islands, to erect a Court of Justice for British subjects in those islands, and to make Ordinances for the Government of British subjects, Section 6. Further it was expressly enacted that nothing In the Statute or in any Order in Council contained should extend to invest Her Majesty with any claim or title to dominion or sovereignty over such islands or to derogate from the rights of the tribes and people inhabiting such islands or places, Section 7.

Thus the Western Pacific Order in Council of the 13th August, 1877, which extended to the island of New Guinea eastward of the 143rd meridian of longitude, was expressly limited in its application to British subjects for the time being within the Western Pacific Islands, and foreigners, a term which was defined to mean a subject or a citizen of a State in amity with Her Majesty according to the conditions specified, which involved submission to the jurisdiction (Section 6).

Under that Order in Council a Court was constituted called the High Commissioner's Court in which all Her Majesty's jurisdiction in Criminal and Civil matters was vested - Sections 12 and 17, and the High Commissioner was given power to make regulations for the government of British subjects - Section 24.

That the powers conferred upon Douglas were limited as provided in the Order in Council quite clearly appears from Stanley's Despatch dated 9th January, 1886. It appears also that Douglas was appointed, as was Sir Peter Scratchley before him, Deputy Commissioner for the Western Pacific, so as to invest him with judicial authority, under Sections 19 and 20 of the Western Pacific Order in Council. The despatch expressly stated that the Queen did not possess, and therefore could not delegate a general power to make laws which would bind persons other than British Subjects. Thus in accordance with these instructions, during the Protectorate, no laws were made relating to, or legal jurisdiction exercised over the natives, nor was any Court established.

Turning to the terms of the Commission, there is no express power to purchase land and any such power must depend upon the general power conferred upon Douglas to do all such matters and things as he might think expedient. In my opinion, having regard to Douglas' task to act on behalf of the Crown in an uncivilised country beyond the seas, this general power should be given full effect and is wide enough to include a power to purchase land, so I shall turn to Dr. Hookey's submissions that the words are to be read down by reason of other circumstances. He argued that the injunction to Douglas to protect the Native inhabitants of the Territory in the free enjoyment of their lands and other possessions, indicated that there was no power of purchasing land at all, and that this was confirmed by the provision contained in the Proclamation by Commodore Erskine in 1884 that "no acquisition of land whensoever or howsoever acquired within the limits of the Protectorate hereby established will be recognised by Her Majesty": But the right to sell land, in my opinion, is an incident to the free enjoyment of it, and the particular words contained in Douglas' Commission are not inconsistent with a power to purchase land. The Proclamation seems to refer to the activities of undesirable persons purchasing lands especially from the native inhabitants, and was not intended to bind the Crown, so that this submission fails.

Dr. Hookey's main argument was that if the Commission did confer a power to purchase land, it did not extend to the purchase of land for the purpose of a township to be settled when the legal position of the Protectorate changed, and it became a Possession. But Stanley's Despatch indicates that it was contemplated that the Protectorate would in due time be added by annexation to the British dominions, and in all the circumstances, I consider that the power to purchase land is wide enough to extend to the purchase of lands reasonably necessary for that particular purpose, and that having regard to the total area alleged to have been acquired at Port Moresby and Badili, that is, 552 acres, the land involved was not unduly excessive in extent.

Turning to the limitation of Douglas' jurisdiction under the Imperial Statutes I have referred to, I consider that the mere purchase of land does not amount to the exercise of either jurisdiction or power over the native inhabitants, for the jurisdiction over natives which the officers of the Protectorate were prohibited from exercising was confined to legislative and judicial jurisdiction, and "power", in my opinion, defined as included, by definition, in the meaning of "jurisdiction" in the Foreign Jurisdiction Acts, does not include entering into a contract of purchase of land with natives.

The next question is whether having regard to the absence of any governmental institutions and, in particular, a legislature, or a legal system to enforce private rights, Douglas' Commission is to be read down so as to exclude the power of purchase of land. The existence of such power in such circumstances is indeed anamalous, but on the whole, I consider that the rudimentary state of government in the Protectorate was a matter which was to be considered by Douglas in deciding whether as a matter of prudence he should purchase land, rather than a limitation upon his powers. Whilst any rights obtained under a purchase could be fully enforced only if the normal institutions of government were later established in the country, it was a reasonable assumption that the expected annexation would be accompanied by the establishment of a legislature and courts of law.

Finally, if the Commission does not, on its proper construction, confer power to purchase land for a township, I consider that it is proper to infer from the terms of Douglas' Despatch, dated 16th July 1886, seeking approval "that the name 'Granville' should be given to the new township at Port Moresby", which, he stated, consisted of lands already purchased from natives and about to be surveyed, followed by approval given in October 1888, to use the name, that the purchase of the lands, including Granville East, already purchased was ratified. Ratification of the latex purchases of land, in my opinion, is to be implied from those documents followed by the inaction and silence of the Crown after receipt of the 1886 Annual Report with full knowledge of the circumstances, including the payment of money on its behalf by Douglas. The City Bank of Sydney v. McLaughlin (^[33]). Bank Melli Iran v. Barclays Bank (^[34])

This general conclusion is consistent with the later recognition by the Legislature, to be found in the early land legislation of the Possession, that the officers of the Protectorate had power to purchase and the natives to sell lands. The enactments are the Crown Lands Ordinance of 1890, Sections V, VI, XVIII and XX, to which I shall have occasion to refer later.

The law applicable to a purchase during the Protectorate. There appears to be no authority concerning the law applicable in a Protectorate which has no properly constituted Government and legal system. Roberts-Wray Commonwealth and Colonial Law 1968, at p.543. The author states the position as follows:-

"The acquisition of rights of protection certainly does not ipso facto affect the general law of the country concerned. If it becomes a Protected State, having a properly constituted Government and legal systems English law could be introduced by the competent legislative authority, either generally or with limited application. But with less developed countries, the situation in a Protectorate is, for practical purposes, virtually identical with that in a Territory acquired by cession or conquest - in the case of need, there would have been good grounds for holding that a British subject (or anyone else for whom the local law was unsuitable) was subject to English law; but the necessity was probably always forestalled by specific enactment."

So far as New Guinea is concerned, populated as it was by uncivilized tribes having no system of laws the only solution, it seems to me, is that English law was applicable to a purchase by the Crown as in the case of an uninhabited Colony acquired by cession or settlement. Yeap Cheah Neo v. Ong Cheng Neo (^[35]). This was a case of "ceded or newly settled Territory".

But English law is applicable only so far as the circumstances of the Territory admit (op. cit.).

At this stage before I consider the facts the argument comes down to this, whether the Statute of Frauds and the Real Property Act of England were applicable, for there was certainly no note or memorandum or deed in this case to satisfy the requirements of those Statutes. Mr. Clay argued that having regard to the illiterate population of New Guinea, neither Statute could be considered applicable. This was apparently the view taken in Manitoba. Sinclair v. Mulligan (^[36]) cited Roberts-Wray (supra) 552. Dr. Hookey relied on a Nigerian case Okoleji v. Okupe (^[37]), in which it was held that the Statute of Frauds should be applied to an alleged sale of land by an illiterate woman to a literate registered money lender. But it had been held in Nigeria that the question whether the Statute of Frauds was applicable depended upon the particular facts of the case in which it was pleaded, which, in my opinion, is not the Common Law test and the case is thus distinguishable. Roberts-Wray considered the authority "very dubious" op, cit at page 552. The fact that in 1889, so promptly after the Proclamation of the Possession the Legislature considered it appropriate to adopt the Queensland Real Property Acts, which introduced the Torrens system for alienated land as the law of Possession, has caused me some doubt, but, on the whole, I consider that following Sinclair v. Mulligan (supra) (^[38]) the English statutes were not applicable to the circumstances of the Protectorate. No argument was directed before this Court as to the effect of the provision that the Land Titles Commission is not bound to observe strict legal procedure or apply technical rules of evidence, having regard to the settled (if doubted) interpretation of the Statute of Frauds that it relates to procedure: and not substance and whether that provision itself rendered the statute inapplicable. Land Titles Commission Ordinance Section 29 (1); Leroux v. Brown(^[39]).

The relevant requirements of English Law so far as the purchase is concerned, were thus the substantive requirements that there should be an agreement supported by consideration to sell the land in question for an estate in fee simple, a concept which in the early Ordinances is explained by the use of the words "in perpetuity". (Crown Lands Ordinance of 1890, Section V).

Dr. Hookey argued that there was insufficient evidence whether by native custom the vendors of land in the Port Moresby area had power to convey it in perpetuity. However, Mr. Clay referred to the Land Ordinance 1962 Section 24, which provides that "a person seised or possessed of, or entitled to, land ....... particularly (a) a native in relation to native land ....... is empowered and shall be deemed always to have been empowered, by force of this Ordinance, and notwithstanding anything to the contrary in any law, custom, etc. (j) to lease, sell, transfer or convey to the Administration the land or an interest in the land", and, in my opinion, this provision has an express retrospective operation sufficient to support a sale by a native in relation to native land during the Protectorate.

Was the purchase invalidated b the earl land legislation of the Possession? By the Land Regulation Ordinance of 1888, dealings in land with natives were prohibited (Section I), and any dealings in native lands were rendered void (Section III). Only the Administrator was empowered to purchase native lands, (Section IV) but he was first to ascertain that the land was not required by the native owners (Section V). Purchases prior to September, 1888, were recognized under the Crown Grants Ordinance of 1889, the Administrator in Council being empowered in its absolute discretion to issue to any person who prior to September, 1888, had acquired land from the native owners, a Crown Grant in fee simple of such land - Section II. Such a Crown Grant was valid and effectual to vest the land in such person for an estate in fee simple - Section III. The Crown Grant was to be registered by the Registrar General (Section X).

Under the Crown Lands Ordinance of 1890, a comprehensive scheme was enacted to provide for the issue of Crown Grants. Under Part 1 of that Ordinance, applications for the issue of Crown Grants for land alleged to have been purchased from the native owners, both prior to the Proclamation of the Protectorate, and during the Protectorate, were to be considered by the Administrator in Council who was given power to determine the matter in various ways. Thus he might order a Crown Grant to issue or disallow the claim or direct further payment, or effect a compromise with the vendors (XIV). There was, in effect, a right of appeal to the Secretary of State, Section XVI. The Administrator in Council was also empowered to issue a Crown Grant on any sale made or any bona fide transaction entered into by an officer of the Crown acting under the authority of Her Majesty's Special Commissioner for the Protectorate. Section VI.

Part II of the Crown Lands Ordinance of 1890 prescribed a procedure for acquiring and recording the acquisition of Crown Lands and leases to the Crown, and the provisions, in my opinion, are of great importance in this case. Section XVIII provided that where the fee simple in land in respect of which no Crown Grant has ever been issued was acquired by the Crown from the owners of such land the acquisition by and the transfer to the Crown of such band should be taken in the name of Her Majesty and should be attested by an instrument in writing under the hand of the Administrator and the Seal of the Possession which was to be recorded in the Office of the Registrar General.

Under Section XX, the provisions of Section XVIII (and Section XIX, which dealt with leases), it was enacted, should have retrospective effect in so far as they were to apply to all purchases or leases of land or acquisitions of interest in land made on behalf of the Crown by any officer of the Crown at any time prior to the passing of the Ordinance, whether such purchase etc. was made during the period of the Protectorate or any period subsequent to the Proclamation of sovereignty over the Possession. But when the Crown Lands Ordinance of 1890 was repealed by the Land Ordinance of 1899, Section XX was not re-enacted.

Section XXI provided for an instrument of attestation to be made out and the particulars to be set forth in that instrument of attestation. Such instruments were to be recorded by the Registrar General in a separate Register in the manner that other instruments were directed to be recorded under the Real Property Ordinance of 1889.

There was provision under Section XXIII for waste and vacant land to be taken possession of by the Crown, the fact being required to be attested by an instrument which was to be recorded in the same manner as the acquisition of land by the Crown as before provided.

Provision was made for registration of the dealing upon land being alienated in fee under the Real Property Ordinance of 1889, whereby the provisions of the Real Property Act of 1861 and the Real Property Act of 1877 of the Parliament of Queensland were adopted, (Section I) and it was further provided that unalienated lands, including waste lands, should when alienated in fee be subject to the provisions of the Ordinance (Section III).

The issue now to be decided is, as Dr. Hookey argued, whether the failure by the Administration to comply with Section XX of the Crown Lands Ordinance 1890 invalidated the acquisition and purchase of the land by Douglas. Although the effect of all these provisions was to provide a complete register of the land acquired by and alienated by the Crown, it was not argued that that consideration alone was sufficient to render any unregistered purchase invalid. If any purchase made in 1886 was invalidated, that must follow from the provisions of Section XX. Dr. Hookey relied on Cullimore v. Lyme Regis Corporation (^[40]), in which Edmund Davies, J. states the law as follows:-

'"I agree with Mr. Squibb to this extent: that the first question, namely, whether these provisions are mandatory or directory, depends on the Act as a whole without reference to the particular facts in this case. I agree with him further that the second question, whether, assuming the provisions are directory only, there has been substantial compliance therewith, cannot be answered without reference to the facts of this particular case. A number of cases have been helpfully cited to me by counsel, but every case where questions of the kind raised here come before the court has to be determined primarily by looking at the statute which is under consideration and examining the whole scope and purpose thereof. Other cases may provide some assistance in determining what the general principles to be applied are, and those general principles are conveniently stated in summary form in Maxwell on Intepretation of Statutes, 10th ed. (1953), p.376 et seq. I quote therefrom certain passages. "It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequences in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment." "A strong line of distinction may be drawn between cases where the prescription of the Act affect the performance of a duty and where they relate to a privilege or power. Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact rigorous observance of them as essential to the acquisition of the right or authority conferred and it is therefore probable that such was the intention of the legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative."

Dr. Hookey argued that the section conferred a privilege, presumably to clothe with legality transactions otherwise invalid. But I do not consider that the section can be so construed. Nor do I consider that this is a case in which the rule based on absence of substantial compliance, is applicable. It is proper to consider the effect of any invalidation on the rights of a vendor under the transaction and particularly to any unpaid purchase money. Thus injustice might be caused to a party who had no control over the officers of the Administration upon whom the duty of registration in effect was imposed. If invalidation was intended, in these circumstances, I consider that express provision to that effect would have been made and, in my opinion, the section is to be considered as "a mere direction or instruction involving no invalidating consequences" per Edmund Davies, J., (op. cit.). This conclusion is also justified by the rule of constructions that a Statute "is not to be construed as having any greater retrospective effect than its language renders necessary". Lauri v. Renad (^[41]). However, as will be seen, in my opinion the operation of this Section is of crucial importance in the decision of this case.

Act of State - The Crown Solicitor also sought to support the purported acquisition as an act of state. He submitted that it was either a government acquisition accompanied by payment of compensation in kind, which I take to be a compulsory purchase irrespective of the consent of the owners of the land, or that alternatively, following the annexation of British New Guinea 1888, which he submitted was in itself an act of state, private rights were only recognised to the extent allowed by the government of the Possession, which he submitted would exclude Era Tora. Sir. J. Fitzjames Stephen's description of an act of state in relation to the application of the criminal law thereto, is as follows:

"I understand by an act of state an act injurious to the person or to the property of some person who is not at the time of that act a subject of Her Majesty; which act is done by any representative of Her Majesty's authority, civil or military, and is either previously sanctioned or subequently ratified by Her Majesty". - cited per Lord Reid, Nissan v. Attorney General. (^[42]). Lord Morris considered that an act of state "denotes some act or course of action done or embarked upon as a result of a positive decision of the Sovereign or the executive". ibid. p. 218. These passages stress that for an act to be justified as an act of state, "the prior authority" or "subsequent ratification" of the Sovereign is essential.

As there was no unequivocal evidence of ratification of a compulsory purchase of Granville East, the Administration must prove the previous sanction of the Crown which can be found only in Douglas' Commission. Now I do not doubt that for essential government purposes a compulsory acquisition of land could be supported by the terms of the Commission, for example, for the purposes of a cemetery, a subject discussed in correspondence by Musgrave and the Rev. Lawes. But, in my opinion, the acquisition of land for the purpose of a future settlement does not fall within this category. This view is consistent with the subsequent instructions in October 1888 to Douglas from the Colonial Office, enjoining him to take no steps pending instructions for the compulsory purchase of land unless required for public purposes. The argument on the purported acquisition therefore fails in limine.

The Crown Solicitor next argued that the annexation in 1888 was itself an act of state and that thereafter private rights were only recognised to the extent recognised by the government. He relied on Cook v. Sprigg (^[43]) and Nireaha Tamaki v. Baker (^[44]). It is convenient to deal at the same time with the view expressed by Clarkson, J. that it was "a sufficient answer to the claimants to say that the acquisition of the Territory as a Protectorate was an act of state by sovereign power and that existing private rights continued only so far as they were recognised. See the dictum of Lord Dunedin in Vajesinqji v. Secretary of State for India(^[45]) as quoted by Viscount Simon in Hoani v. Aotea Land Board (^[46]). That dictum is as follows:

"When a territory is acquired by a sovereign state for the first time that is an act of state. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal courts. The right to enforce remains only with the high contracting parties. This is made quite clear by Lord Atkinson when citing the Pondoland case of Cook v. Sprigg (3), he says (Secretary of State for India v. Kamachee Bai Rajbai(4) at p.268). "It was held that the annexation of territory made an act of state and that any obligation assured under the treaty with the ceding state either to the sovereign or to the individuals is not one which the municipal courts are authorised to enforce"."

Dr. Hookey sought to distinguish both those cases for the reason that the ground on which the claims therein failed was that the cause of action in each case was a treaty, which if it had any validity at all, was in the field of international law which yielded to the municipal law, and that the relevant law is as stated by Viscount Haldane in Amodu Tijoni v. Southern Nigeria (^[47]). In my opinion these submissions are correct. In that case it was held that the usufructuary title invested in certain chiefs to land at Lagos was not affected by the cession to the British Crown in 1861 of "the Port and island of Lagos with all the rights, profits, territories and appurtenances thereto belonging". The passage is as follows:

"The chiefs were stated, in a despatch from the then Consul, to have been satisfied that the cession would render their private property more valuable to them. No doubt there was a cession to the British Crown, along with the sovereignty, of the radical or ultimate title to the land, in the new colony, but this cession appears to have been made on the footing that the rights of property of the inhabitants were to be fully respected. This principle is a usual one under British policy and law when such occupations take place. The general words of the cession are construed as having related primarily to sovereign rights only."

In my opinion this applies to both the Protectorate and the annexation of British New Guinea, and the decision of the High Court in Geita Sebea v. The Territory of Papua (^[48]) supports this conclusion. Thus Williams, J. in that case, citing Amodu Tijoni v. Southern Nigeria (supra) (^[49]), held that the native appellants' title to the land, on the evidence was a communal usufructuary title equivalent to full ownership of the land, so that they were entitled to be compensated on that footing for its acquisition (at p.557), and the judgment of Starke, J. proceeds on the basis that that interest remained in the appellants, each judgment proceeding implicitly on the basis that such interest was unaffected by the proclamation of the Protectorate and the annexation. There is no evidence after the purported acquisition of Era Taora of any act by the Crown extinguishing native rights to Granville East, or the land adjoining, or asserting that such rights would not be recognised, which would be necessary to displace the application of the general rule Nireaha Tamaki v. Baker (^[50]). Indeed the later refusal to recognise compulsory sales by the British Government is evidence to the contrary. The Administration case based on act of state therefore fails.

Dr. Hookey submitted that a compulsory seizure of the land even with compensation could not found any title, but on the view I have taken it is unnecessary for me to consider this argument or whether the defence of act of state would bar an action for ejectment on the grounds of wrongful seizure of land, leaving the Grown with a possessory title.

On the weight of evidence was a valid purchase established? Dr. Hookey's main argument was that the Administration case for a purchase was based on Era Taora at the beginning of 1886 being native land, and he then argued that there was insufficient evidence for Clarkson, J. to hold that the land was ever voluntarily sold by the native owners to the Administration. But before considering the evidence there a number of preliminary matters which I should advert to.

The Crown Solicitor submitted that there was a concurrent finding of fact by both the Land Titles Commission and the learned appeal judge that the land had been validly purchased by the Administration, and that the law was that this concurrent finding should not be disturbed unless it could clearly be demonstrated that the finding was eroneous. Owners of P. Caland v. Glammorgan Steamship Co. (^[51]) S.S. Mendip Range v. Radcliffe (^[52]). But there is no find=ing by the Land Titles Commission as against the appellant Daera Guba that his clan had sold the land to the Administration; the Land Titles Commission's finding was that there had been a purported sale by the Giakone clan who were not the owners. Further I agree with Dr. Hookey's submission that on the whole of the judgment of Clarkson, J. it is not cleat that he held that the acquisition by the Administration of the land which he found had taken place was a voluntary purchase from the true owner. It is true that in dealing with the land numbered 6, Clarkson, J. held that "each clan sold whatever portion of Era Taora it owned", but these words must be considered in the light of the following passage earlier in the judgment which I take from page 207 of the Appeal Book. The passage is as follows:-

"For myself I think it a sufficient answer to the claimants to say that the acquisition of the Territory as a Protectorate was an Act of State by sovereign power and that existing private rights continued only so far as they were recognised ...... The officer acquiring the land was empowered to do so by his Commission. In effect by executive act the land was taken possession of by the Crown for its own purposes and to that extent it refused to recognize pre-existing rights in the land as against the Crown. The true nature of the acquisition would to a large extent be concealed by the obviously prudent and politic course followed of taking only such land as the inhabitants were prepared to give up and of paying compensation which was agreed with the inhabitants as reasonable".

From this passage and the references to an "acquisition" of the land (Appeal Book, p.219), it appears to me that the learned appeal judge stopped short of finding a voluntary sale, and held that the acquisition was a compulsory one.

The next preliminary matter is the basis upon which the learned appeal judge was able to depart from the Land Titles Commission's finding of fact that the land had never been sold by the true owners, a finding of fact which was based expressly upon the oral evidence, and no doubt also after consideration of the contemporary written records submitted before the Commission. But the oral evidence before the Land Titles Commission was necessarily confined to traditional history. The witnesses called on behalf of Daera Guba either did not know of any sale to the Administration, or stated that their fathers had not told them of it; the traditional history of the Giakone clan gave some support for a sale, for some of Lohia Doriga's witnesses (but not all) knew of a sale to Robert Hunter on behalf of the Administration of the land in dispute.

Now I agree with Clarkson, J. that the test to be applied is that stated by Denning, L.J. in Adjeibi Kojo II v. Bonsie (^[53]): "The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable. That is how both the native Courts approached the matter and their Lordships think that they were right in so doing". This method of evaluating accounts of traditional history should be applied not only because in the transition from generation to generation, as Denning, L.J. said, mistakes may occur, but also as Clarkson, J. said: "because of the dangers that an account can be coloured by a desire to represent the actions of one's ancestors in the best light and the danger that an account may be reconstructed to meet the immediate self interest", with which I agree.

Clarkson, J, thus examined the oral evidence in the light of this test and came to the conclusion that as to the land numbered b, the Land Titles Commission was wrong in holding that the land had not been acquired by the Administration on the ground that the Land Titles Commission had failed to apply the test laid down by Denning, L.J. and had not given the official contemporary records their due weight.

At this stage it is necessary to refer to the onus of proof in the original proceedings. The Crown Solicitor submitted that the appellants being the sole claimants to the land by native custom carried the onus of proof before the Land Titles Commission. Whilst this is the normal rule, if the proceedings were required to be conducted in accordance with the rules of strict legal procedure and evidence, in cases such as this the application of the rule is affected by other considerations, thus evidence as to acts constituting possession of the land and of the exercise of acts ownership would have been relevant to determine whether there was a presumption of ownership (which would of course have been rebuttable) on the analogy of the reasoning in Hawdon v. Khan (^[54]).

But Dr. Hookey submitted that the concept of onus of proof is not directly applicable to the Land Titles Commission on the ground that the Commission is not bound to observe strict legal procedure or apply technical rules of evidence, Land Titles Commission Ordinance Section 29(1). In my opinion, this submission is correct. I consider that the function of the Court upon this part of the case is to determine whether the Land Titles Commission's finding as to there being no sale by the rightful owners was against the weight of evidence that being the relevant ground of appeal relied on under the Land Titles Commission Ordinance, Section 38 (2) (aa). Mr. Clay's submission departs from the Administration's grounds of appeal to the Supreme Court from the order of the Land Titles Commission, ground 4 being that there was not sufficient evidence to sustain the relevant findings, and that the Commission's findings were "against the weight of the evidence in that on the whole of the evidence it was established that the appellant had acquired full rights of ownership to the land known as Era Taora, and that any native rights to that land which had formerly existed had ceased to exist at the date of the decision of the Commission". This Court can only found itself on the words of the finding that the Tubumaga Clan were the owners of the land, and it was never (at the relevant time) sold by them. These words are more appropriate to express the fulfilment by the Tubumaga Clan of the burden of proof of both matters than the failure of the Administration to sustain any of the burden of proof, but it seems to me that it would be placing too fine a construction on those words to assume that the Commission was adverting to the burden of proof at all. But in so far as the words are consistent with a conclusion by the Commission that the Administration had failed to sustain the burden of establishing both matters, having regard to Section 29(1), supra, it could not be said that the Commission was wrong in law. However, I consider that in seeking a determination by the Commission interest in the land under Section 15 (2) of the Land Titles Commission Ordinance, the proof of its title was on the Administration and that that onus is to establish that on the whole of the evidence it was made out that there was a valid purchase of the land by the Administration and the finding to the contrary was against the weight of evidence. Indeed this was the onus that Clarkson, J. decided that the Administration had fulfilled.

In his submission that the Commission's finding was against the weight of the evidence, the Crown Solicitor relied mainly on the contemporary records supported by the later acts showing, as he submitted, possession and acts of ownership by the Administration. The contemporary records are to be found in the Annual Reports for 1886 and 1889 and the annexures thereto. It is plain from those Reports and in my opinion Clarkson, J. was right in accepting that there was in 1886 a purported acquisition from the native people of a substantial area of land in the Port Moresby area. The question is not whether the evidence establishes on the balance of probabilities that Era Taora was part of the land dealt with and that it was the subject of a valid sale by the lawful owners to the Administration; it is whether the Commission's finding is shown to be wrong upon an examination of the oral evidence in the light of the Annual Reports. It is not enough that this Court would draw a different inference from the facts. The test applicable is stated by Barwick, C.J. as follows:

"No doubt where the conclusion of the trial judge is not based upon or in any respect influenced by his opinion of witnesses orally examined before him, the appellate court is in an equal position with the trial judge as to what inferences can be drawn from the facts as proved before him. But this does not mean that the appellate court should treat the appeal as a hearing de novo. The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion vies wrong. Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge's decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong." Whiteley Muir and Zwanenberg Limited v. Kerr and Another (^[55]).

Turning to the Annual Report, there are obvious gaps, thus there is no record of the names of the vendors, the identity of the area sold by each, the price paid to each owner or the interest acquired. The account of the acquisition is given by Musgrave, the Government Secretary. There is no first-hand report by Hunter who, with the Government interpreter "Ah-oo-doo", is reported to have made the purchases. It is important to bear in mind that there is no reported contemporary account of the transaction by any native person involved. There are some textual difficulties as Dr. Hookey stressed. Thus as to the area reported to have been acquired, Musgrave's memorandum of 9th November, 1886, refers to Hunter "having secured all the land required within the surveyed portion of the settlement, newly entitled Granville", and stating the area of the land purchased at Granville East as 95 acres. No area of land of precisely 95 acres has been identified, although it is approximately the area of the rectangular site of the township shown on the sketch plan made by Cuthbertson dated the 21st day of July 1886. But in fact when the survey was completed by Cuthbertson by the 21st September 1886, only eight sections had been surveyed, being fifty-eight acres in all, so that if Musgrave's memorandum is relied on there is doubt whether more than fifty-eight acres were acquired. It is significant that those surveyed eight sections form a U-shaped piece of land with the east side open and not joined by survey, which may indicate that further observations were required to complete the survey of the rectangle. Further, the fact that the Administration on 30th November 1931 leased from natives, one of whom was the appellant Daera Guba, a small portion of land less than an acre in area for a water-hole, the precise position of which is difficult to fix, but which was outside the surveyed sections but within the proposed rectangular site for the township, indicates that it was the Administration's view that no land outside those eight sections had been acquired by the officers of the Protectorate.

The records contain no evidence of any explanation made to or appreciation by the alleged vendors that the sale involved rights to the land in perpetuity. This consideration is a very real one, first because Musgrave's Memorandum of 10th July 1886, with respect to letters from the Rev. W.G. Lawes, shows that his mind was concerned with the possibility that lands might more conveniently and lawfully be acquired by compulsory sale, and also having regard to the primitive condition of the people at the time, and their complete ignorance of the English land law. This difficulty was clearly appreciated by the Colonial Office as appears from the extract from the letter quoted by Musgrave in that Memorandum. Referring to the acquisition of land by private persons from natives (but it cannot be said that the same considerations did not apply to contracts with the Administration) the letter contains this passages "There is no evidence whatever of the power of the natives to enter into contracts which would be intelligible to them, or binding upon them, or of their willingness to allow private settlers to occupy their country. But if there were no objection from a native point of view to so extensive an appropriation of the Territory, it would be impossible that any acquisitions, or ostensible acquisitions, of land could be sanctioned and confirmed in the event of the Territory hereafter becoming British ......... "

The Crown Solicitor submitted that these deficiencies in the contemporary accounts can be explained, having regard to the whole tenor of those accounts. Thus Hunter is said to have had considerable experience with natives and also experience of previous sales. He had conducted the purchase of the Government Bungalow site on the 8th of September, 1885, and of eight acres of land in the vicinity on the following day. On the 14th and 15th of October, 1885, the Badili lands of 333 acres in area were acquired. In each of these transactions he had had the assistance of Ruatoka, the mission teacher, who had been in Port Moresby for twelve years, as an interpreter. The annexure to the Annual Report shows that the Rev. Lawes was present on the first sale and also present upon the purchase of the Badili land; and it is to be assumed that he would have made a full explanation of the significance of the transaction to the native people concerned. Thus the report for the year 1866 mentions the purchase of a considerable area of land from the natives and continues, "In summoning together the claimants for this land, and in obtaining their assent to parting with their property in perpetuo, and thus securing a sound title for the Government, the assistance rendered by the Mission was invaluable ........." There is am inference that so far as the Badili lands are concerned the transaction involved a perambulation of the boundaries. The price in trade goods for all the Port Moresby lands is stated in Musgrave's memorandum of the 9th November, 1886, as being an average of £1.8.0 per acre, which is some evidence of the payment of a valid consideration for Era Taora. There is the consideration which weighed strongly with the learned appeal judge that purchases of such magnitude involving so far as the Port Moresby lands were concerned, exclusive of the Badili lands, 1130 vendors, must have involved great publicity and the participation of almost the whole able-bodied population of Hanuabada, so that it was improbable that the transaction could have occurred without the knowledge of the true owners of the land. That was an object also to be desired by the Administration. There is also to be taken into account that the Annual Reports were published and available for public inspection and provided a contemporary account by persons under a duty to report upon matters in which they had no personal interest and before any controversy arose, which, I agree with Clarkson, J., are of great significance.

But there are matters which give room to doubt. The validity of the whole transaction depends upon the understanding and accuracy of the interpreter. The village chief, Ah-oo-Do, was not in the same independent position as Ruatoka, nor would he have had the Mission teacher's knowledge of the nature of the transaction. He might well have been unwilling to embark upon too strict an explanation of the nature of the transaction which might deter the native people concerned from accepting the tomahawks, tobacco and gaudy cloths offered as the consideration. As some of the lands must have been gardens, it is remarkable that there is no record in the contemporary records of any man refusing to sell, for the Administration was prepared for the natives being reluctant to sell or making excessive demands for lands urgently needed for settlement, that being the main object in securing the Badili lands. Thus, also, on the 8th September, 1885, Musgrave noted that the natives declined to sell even a small plantation which intervened between the Governor's bungalow and the sea, the early purchases being of lands not in cultivation. It is not known how many days of the total 27 days which were devoted to the acquisition of the Port Moresby lands, excluding the Badili lands, were devoted to the acquisition of Granville East. If the Badili lands (333 acres bought for £30.0.0. in trade) were worth £10.0.0 per acre or £3250, there is room for the inference that to get the desired land at Port Moresby, close to the harbour, for £1.8.0 per acre was a favourable transaction for Hunter to complete. Despite the publicity which must have attended the transaction, it is difficult to be satisfied that none of the native vendors was absent on the date of the sale, either hunting or fishing or because of illness. A great deal depended on the maintenance by Hunter and the interpreter of a continued sense of responsibility in view of the "exceptionally trouble-some and tedious nature of acquiring land by the present method", as remarked upon by Musgrave. There is no evidence of the date of the completion of the survey of Granville East or of date of the sales at Granville East. It is known that Hunter began purchasing on the 8th July and ceased on the 8th October 1886. It is possible that the survey of Granville East and Granville west and the purchases went on concurrently. Yet if the alleged sale of Era Taora took place before such survey it would be difficult to define the boundaries of the parcels of land to be bought. The availability of the Annual Report to the native vendors would depend upon the Mission advising the natives of it, and in the circumstances I do not consider that any weight should be attached to the Annual Reports being communicated to those vendors.

There are thus considerations tending both ways as to whether there was a valid purchase of individual areas of land comprising Era Taora, but it seems to me that there is one consideration which turns the balance and that is the failure of the Administration to comply with Section XX of the Crown Lands Ordinance 1890 (supra) taken in conjunction with the fact that a Deed of Attestation was registered in respect of the Badili lands. This failure, in my opinion, throws doubt upon the whole transaction. The provisions of that Ordinance show that the Administration was well aware of the difficulties arising in any transaction with natives. Thus Section V required the Administration to be satisfied, in deciding whether a Crown grant should be issued to an applicant who based his claim on a purchase after 1884, inter alia, that the alleged vendors were the rightful owners and that they understood they were alienating the land in perpetuity. There is a strong probability that the omission to register was due to the officers of the Administration being aware of facts which rendered the validity of the purchase doubtful, or to the fact that no memorandum of land purchase having been completed there was no record of the necessary particulars to enable an instrument of attestation to be prepared. If this was the manner in which the acquisition was conducted, it is insufficient to persuade me that the degree of care was taken which would be required in dealing with primitive natives to identify the vendor of the land and to ensure that the vendor understood that he was disposing of rights to the land in perpetuity. (It is very significant to note the meticulous wording of all the matters essential to a sale in the Deed of Attestation of the 1900 transaction with the Hohodae people). Accordingly, I have reached the conclusion that the refusal of the Land Titles Commission to find upon the contemporary records that there was a valid sale to the Administration could not be said to be wrong or against the weight of evidence.

The Crown Solicitor then relied on the evidence of subsequent possession and acts of ownership on the part of the Administration. This is a most important part of the case for the doubt arising from the matters I have referred to might have been removed by evidence, for example, of long and undisturbed possession, the erection by the Administration or its lessees of buildings on the land, the lack of objection over the years by any of the native people and their acquiescence, express or implied, in the Administration's occupation of the land, which would support the presumption of ownership. But in my opinion, the evidence before the Commission in this case is not strong enough to alter the position. The statement in the Annual Report far 1888-9 that the lands at Port Moresby had been "partially fenced for pastoral purposes" cannot be specifically related to Granville East. Acts done by the Administration upon the land outside Era Taora but within Granville East do not assist, for whilst the Administration itself may have purported to have bought according to the survey plan, the transactions were conducted with individual native vendors of unstated areas of land, not bounded by any common geographical features, so that there was no common character of locality which is required to be established before an inference of ownership can be drawn from the possession of other lands. Jones v. Williams (^[56]). Having regard to the lapse of time, more than 26 years from the date of the alleged acquisition, the lease of the Wireless Telegraph Station in 1912 and the grant to the Golf Club of the permissive occupancy in 1928 of Sections 5, 7 and 8, and subsequently Section 6, shows only, in my opinion, that the Australian Administration believed from the contemporary records that there had been a valid purchase by the officers of the British Protectorate. In view of the evidence of lack of protest by the appellants because of an expected public benefit arising from the Wireless Telegraph Station, no inference of acquiescence in the erection of the Station by right of ownership can be drawn. As against these acts by the Administration, there is evidence that the native claimants had used portion of their lands for gardens during the whole of the period (including in the vicinity of the Wireless Telegraph Station), and indeed from a map dated in August 1928 it is shown that native gardens had been made down Sections 5 and 6 and east of Section 5. Mr. Champion referred to the natives having been in "undisputed possession for so long". The learned appeal Judge reached the conclusion that this user was explained by the evidence, in particular, of an old man named Ravura Eava, who in cross-examination stated that he had heard the Lieutenant-Governor tell the people that the land belonged to the government but that people could garden upon the land until the government wanted it, when he was asked had he heard of that incident. But I do not consider that this evidence should be acted upon for a number of reasons. Other witnesses stated that they had not heard of the incident. There was no finding upon this matter by the Land Titles Commission or independent evidence of what was said by the Lieutenant-Governor. Further the witness was deposing to an incident which must have occurred 40 or 50 years before; but giving it full weight, in my opinion, it only explains the user of the land after the appointment of "Murray as Lieutenant-Governor in 1908 and does not affect the weight to be given to the user by the native people of the land in the preceding 20 years and more.

I do not consider that any use to which the land was put by the Administration during and after the Second World War can be regarded as evidence in favour of the Administration's title in view of the repeated complaints which began to be made, about 4th July, 1932, by the natives that the Administration was encroaching upon native land. Finally, the Crown Solicitor relied upon the doctrine of Ramsden v. Dyson (^[57]), Willmot v. Barber (^[58]) and Inwards v. Baker (^[59]), to found an equity in the Administration, having regard to the expenditure by the lessee and licensee of the Administration of money upon the land with the acquiescence of the native owners, and submitted that such an equity was applicable to lands held by native custom. Necirahene Kojo Ado v. Buoyemhene Kwadwo Wusu (^[60]). But in my opinion there was insufficient evidence before the Land Titles Commission to support the necessary findings of fact to make out such a claim, which was not apparently made before the Land Titles Commission.

Accordingly, in my opinion, the finding that Era Taora was native land was not shown to be contrary to the evidence, but I shall defer my final conclusion as to the owners of this land until I consider the appeal of Lohia Doriga.

ESTOPPEL. The question to be considered under this ground of appeal is whether Daera Guba, on behalf of himself and the Tubumaga clan was estopped by the decision of the Land Board of 21st October, 1954, from claiming so much of the Era Taora land as was affected by that decision, viz. the land numbered 2, 3, and 4. The Land Board's decision was based on its conclusion that all the land within the Granville East rectangle was the property of the Administration. The many questions of law raised in these proceedings were not argued before the Board and thus were not adverted to. The Board acted on the written evidence and concerned itself with identifying the land purchased. The Land Board was appointed under Section 9 of the Land Ordinance 1911. That Ordinance was repealed by the Land Ordinance 1962, and Section 9 was not re-enacted.

Dr. Hookey made a preliminary short point that no estoppel could arise as Section 9 did not empower the Administrator to appoint a Board to decide a single particular case of disputed ownership of land, the Board's power being to decide "all questions as to waste and vacant lands or lands alleged to be waste and vacant and all cases of disputed ownership of land." He submitted that the use of the plural "lands" supported this interpretation. He relied on a passage from the judgment of Lord Greene in Re Wellstead's Will Trusts (^[61]), that "the word 'all' in construing a statute is extremely recalcitrant and if the word 'all' is to be cut down so as to exclude certain things which might come under the description that must be done in the clearest possible language. The proper way of construing a word like the word 'all' in such context as this is to say that all means all, and it does not mean 'some' unless you find a compelling context which forces you to place some limitation on the word."

The matter is one of first impression and I do not depart from my first impression that there is much to be said for Dr. Hookey's argument. But in the circumstances of the Territory in which the cases arising would be few with the practical necessity of reconstituting Boards, I do not consider that the interpretation placed upon the Section by the proper authorities that the Section contemplated a plurality of Boards and so justified ad hoc appointments, which is open on the language of the Section, should be held wrong.

There were many aspects of the law of estoppel which were argued before this Court, including whether the Land Board's decision operated as an estoppel of issues such as the legality of the alleged purchase by the protectorate government, which would involve a consideration of the law as to the limits of issue estoppel as laid down in Carl Zeiss Stiftung v.Rayner & Keeler Ltd. (No. 2) (^[62]), and whether it was applicable to the circumstances of the Territory. Whether there was a sufficient identity of parties and subject matter were also argued. But at the outset it is necessary to consider whether the decision of the Land Board was such as in law to constitute an estoppel.

It is established that the decision must be a final decision pronounced in accordance with judicial principles by a judicial tribunal of competent jurisdiction, Those elements are referred to in the following statements of principle:

"The doctrine of estoppel per rem judicatem is reflected in two Latin maxims, (1) interest rei publicae ut sit finis litium, and (2) nemo debet bis vexari pro una et eadem causa. The former is public policy and the latter is private justice. The rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a 'judicial tribunal of competent jurisdiction over the parties to and the subject matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits"(Spencer. Bower on Res Judicata. p.3).

"As originally categorised, res judicata was known as 'estoppel by record.' But as it is now quite immaterial whether the judical decision is pronounced by a tribunal which is required to keep a written record of its decisions, this nomenclature has disappeared and it may be convenient to describe res judicata in its true and original form as 'cause of action estoppel'. This has long been recognised as operating as a complete bar if the necessary conditions are present. Within recent years the principle has developed so as to extend to what is now described as 'issue estoppel', that is to say, where in a judicial decision between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided, then that may create an estoppel per rem judicatam." Carl Zeiss Stiftung v. Rayner & Keeler Ltd. No.2 (^[63]) (supra) per Lord Guest at pp.933-4

"It is of no avail to prove that the alleged res judicata was a decision, or oven that it was a judicial one, in the sense that it was pronounced according to judicial principles, unless it be also established that it emanated from a judicial tribunal in the exercise of its judicial functions; nor, on the other hand, is it sufficient to shew that it was pronounced by a judicial tribunal, unless it be shewn that it was a decision, and a judicial one, as distinguished from a termination of the proceedings otherwise than by a judicial decision." Spencer Bower & Turner - Res Judicata, 2nd Edition at page 20.

For the purposes of estoppel a judicial tribunal includes an arbitrator or persons invested with judicial authority to hear and determine a particular dispute or class of disputes by the provision of a statute. Spencer Bower & Turner (supra) at page 29. At common law an action could be brought to enforce an arbitrator's award, and indeed, in early times this was the only way to enforce the award. Duke of Buccleuch v. Metropolitan Board of Works (^[64]). Where an action will not lie at all, no question of conclusiveness or estoppel will arise (Spencer Bower & Turner (supra) at p.73), and this must follow if upon the proper construction of the statute constituting the tribunal concerned, the decision is not given the force or effect of a judgment. Thus the report of a judge on an election trial was held on the proper construction of the Parliamentary Elections Act 1868 not to be final and conclusive and thus not to raise an estoppel, Stevens v, Tillett, Norwich Election Petition (^[65]) (cited Spencer Bower & Turner (supra) at page 32). Accordingly, it will be a matter of construction of Section 9 to determine whether the Legislature intended the decision of the Land Board to be conclusive and binding on the parties.

It is more difficult to find authority for the requirement that the decision must be one which is pronounced in accordance with judicial principles. According to Spencer Bower & Turner, such a decision "for the purposes of estoppel means a decision or determination or adjudication of some question of law or fact" (ibid. at page 29), which I take to be an application of the law to the facts as determined. This in my opinion, is implicit in the judgment of Blackburn, J. in Duke of Buccleuch v. Metropolitan Board of Works (^[66]) (supra, at pp.231-2). Thus in Blair v. Curran (^[67]), which was referred to by the learned appeal judge, Dixon, J. as he then was, referred to the estoppel as follows: "A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue,, so that it cannot afterwards be raised between the same parties or their privies", at p.521. On this point it will be necessary to have regard to the words of Sec. 9 that "the Board in giving its decision shall be guided by the principles of equity and good conscience" to determine whether such a decision is one pronounced upon judicial principles within the meaning of the requirement as I have endeavoured to state it.

At this stage it is convenient to refer to the constitutional cases which before the learned appeal judge and this court counsel cited to throw light on the meaning of the requirement of a judicial decision pronounced by a judicial tribunal. These were decisions of the Privy Council and the High Court of Australia on the meaning of judicial power under the constitutions of Ceylon and the Commonwealth of Australia. In Ceylon the question arose whether the president of a labour tribunal was the holder of a judicial office. If so, as he had not been appointed in the manner which the Constitution of Ceylon required for the appointment of judicial officers, the tribunal was not properly constituted. The Privy Council decided, for reasons to which I shall refer later, that labour tribunals did not perform judicial duties. United Engineering Workers' Union v. Devanayagam (^[68]). In Australia the question has arisen in a number of cases in which the constitutional validity of the statutory tribunal has been challenged on the ground that the tribunal concerned was exercising part of the judicial power of the Commonwealth, and was thus not properly constituted having regard to Chapter III of the Constitution of the Commonwealth of Australia which requires persons exercising that power to be appointed for life. But, as Mr. Clay submitted, those authorities must be applied with caution, for a tribunal may be a judicial tribunal and pronounce a judicial decision without necessarily exercising every element of judicial power. Thus from the Australian cases one element which may, but not conclusively constitute judicial power is the power of a tribunal to enforce its own decisions. Reg. v. Davison (^[69]). Reg. v. The Trade Practices Tribunal & Others; ex-parte Tasmanian Breweries Pty Ltd. (^[70]). But, in my opinion, the leaned appeal judge was right in in holding that the absence of such a power is not conclusive in determining whether the decision of the tribunal concerned can raise an estoppel. It is sufficient to refer to the award by an arbitrator at common law, and an award which can be enforced under Workmen's Compensation Acts of England 1897 and 1906, which it is well established raise an estoppel although the arbitrator has no power to enforce the award. (See the cases cited by Spencer Bower & Turner, supra at p.25).

There is also a case in which the Privy Council declined to apply the test whether a tribunal was exercising judicial power to determine whether the decisions of that tribunal raised an estoppel, Caffoor v. Income Tax Commissioner (^[71]). That decision is apt in view of the right of appeal to the Supreme Court under Sec. 9 of the Land Ordinance. The question was whether a decision of the Board of Review under the Income Tax legislation of Ceylon relating to an assessment for a year previous to the year of assessment before it, raised an estoppel. If the test of judicial power was to be applied, there would be no estoppel if the decision had been given by the Board of Review and that tribunal was found to perform administrative and not judicial functions, but on the same issue there would be an estoppel if the decision was given by the Supreme Court on a case stated. Accordingly, their Lordships had regard to the legislation to determine what was the precise issue to be decided, whether by the Board of Review or the Supreme Court, and held it was limited to the assessment for one year only.

One of the tests of judicial power is that which distinguishes it from the legislative and administrative power and this was much canvassed by both counsel. It was recently stated by Kitto, J. in Reg. v. Trades Practices Tribunal (^[72]) (supra) as involving the notion "even if in the background, of arbitrament upon a question as to whether a right or obligation in law exists ....". His Honour continued: ".... In other words, the process to be followed must generally be an enquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes to the observance of the rights and obligations that the application of law to facts has shown to exist ..." supra at p.129.

Whether the relevant legislation embodied the notion of arbitrament and the application of the law to the facts was examined by the Privy Council in United Engineering Workers' Union v. Devanayagam (^[73]) (supra) which was the sheet anchor of Dr. Hookey's case.

Under the Industrial Disputes Act 1950 of Ceylon, provision was made for the prevention, investigation and settlement of industrial disputes and for the reference of industrial disputes to arbitration, and labour tribunals were established for the purposes of the Act. The key provision was that these tribunals were required to give such relief as appeared just and equitable. It was held (Lord Guest and Lord Devlin dissenting) that the effect of the legislation was that a labour tribunal was not restricted to giving effect to legal rights, but was required to do what was just and equitable; that labour tribunals were created as part of the machinery for preventing and settling industrial disputes, and not in substitution for or as an alternative to the ordinary courts, and that accordingly such a tribunal was not exercising judicial power and did not need to be appointed by the Judicial Services Commission. The words "just and equitable" were held to confer an "unfettered discretion to do what the tribunal considered to be right and fair" (ibid. at p.373).

The effect of that decision was stated by Windeyer, J. in Reg. v. Trades Practices Tribunal (^[74]) (supra) (which was decided after the learned appeal judge's decision). The relevant passage also refers to the same concept of judicial power as referred to by Kitto, J. (supra) and exemplifies it by reference to powers not included in that concept, as follows:-

"..... Lord Guest and Lord Devlin, the dissentients in the Privy Council, considered that the industrial tribunal whose jurisdiction was there in question was established to exercise judicial power. That was because in their view its determinations were not the creation of new rights but the declaration and enforcement of existing rights. It was directed by statute to make such award as appeared "just and equitable". That, they thought, predicated existing ascertainable standards. The majority of their Lordships did not take that view: and, so far as that case is pertinent for this, it is the majority view that we should accept." at p.138.

The particular point which the Ceylon case bears upon is whether the Land Board was given an unfettered discretion and whether, if that is the effect of the section, its decision was a judicial one.

I consider that these two recent decisions of the Privy Council and the High Court by analogy illustrate the same requirement of a "judicial determination" as referred to in Blair v. Curran (^[75]) (supra) and, as stated by Spencer Bower & Turner, that a judicial tribunal must exercise judicial functions for that decision generally to raise an estoppel, and are thus relevant to this appeal. But it is to be noted that even if the tribunal concerned does not follow the process of "an enquiry concerning the law as it is and the facts as they are, followed by the application of the law as determined to the facts as determined" (per Kitto, .J. supra) that it is not necessarily entirely conclusive against an estoppel. The decision itself may be binding if so provided by statute, and thus, in effect, constitute a cause of action estoppel. Thus the decision of the labour tribunal in Ceylon was made final by statute; it could not be called in question by any court and the legislation went further and provided that where a workman applied to a labour tribunal, he was debarred from any other legal remedy, even though it was not a judicial decision.

It is upon this point also that Moses v. Parker (^[76]) is relevant. In that case by an Act of the Colony of Tasmania, disputes concerning lands yet ungranted by the Crown were referred to the Supreme Court whose decision and report was to be final; and by Sec. 8 the Court was directed to be guided by equity and good conscience only, and by the best evidence procurable, even if not required or admissible in ordinary cases, and not to be bound by strict rules of law and equity or by any legal forms. It was held by the Privy Council that the Crown's prerogative to grant special leave to appeal was inapplicable to a decision so authorised. Lord Hobhouse in giving judgment said "The Court is to be guided by equity and good conscience and the best evidence. So were the commissioners (the previous tribunal). So every public officer ought to be. But they are expressly exonerated from all rules of law and equity, and all legal forms. How then can the propriety of their decision be tested on appeal? What are the canons by which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong? It seems almost impossible that decisions can be varied except by reference to some rule; whereas the Court making them is free from rules. If appeals were allowed, the certain result would be to establish some system of rules; and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unfettered in each case" (at p.248). His Lordship concluded, "that these affairs have been placed in the hands of the judges, as persons from whom the best opinion may be obtained, and not as a Court administering justice between litigants;..." (ibid. p.249).

Thus where the decision in question is not a decision pronounced in accordance with judicial principles because, for example, it is given in the exercise of an unfettered discretion, then if by statute it is made binding and conclusive, the fact that it was not pronounced in accordance with judicial principles, cannot affect the binding nature of the decision (although it may be relevant as to whether the decision raises an issue estoppel). But if upon the proper construction of the legislation it appears that the legislature did not intend the decision to be binding and conclusive there would be no estoppel. But in the middle position where the Legislature's intention upon the matter does not clearly appear, then the matter is to be determined in accordance with the principles I have referred to.

Sec. 9 is the last section in Part I of the Ordinance which is headed "Acquisition of Land from Natives", and it is necessary to refer briefly to the preceding sections contained in Part I at the relevant date. These sections are derived from the early legislation of the Possession to which I have already referred. Sec. 3 provided that natives should have no power to deal in land, except land which had been alienated by the Crown (Sec. 4). Sec. 5, however, provided that the Lieutenant-Governor may purchase land from natives, if he has become satisfied that the land was not required by the owners. Sec. 6 provided that "Leases and purchases of land by the Crown from natives shall be authenticated by such instruments and in such manner as maybe prescribed by regulations to be made under this Ordinance. Until such regulations are made the practice prescribed by the Second Schedule to this Ordinance shall be followed." This section was in effect similar to Sec. IX of the Land Ordinance of 1899, but the particular provisions were set out in the body of the earlier Ordinance. In fact, no regulations mere made under Sec. 6, so that the Second Schedule applied. That Schedule contained provisions that where an estate in fee simple or a leasehold estate in land was acquired by the Crown, the acquisition by and transfer in the case of the fee simple was to be taken in the name of Her Majesty (paragraphs 1 and 2); for every transfer or other transaction relating to any such acquisition to be authenticated by an instrument in writing under the hand of the Administrator etc. and under the hand of the owner of such land estate or interest etc. and for the various matters to be set forth in such instrument. (Para. 3) Paragraph 7 of the Schedule is an important provision which goes beyond the manner of authentication of instruments and its provisions would more appropriately have been retained within the enacting provisions of the Ordinance. It provided that, "Every such instrument when sealed with the seal of the Territory and duly recorded as aforesaid shall be conclusive evidence of the facts therein set forth and of the title of the Crown to the lands or the estate or interest therein referred to." Sec. 7 is not relevant. Sections 8 and 9 conclude Part I.

The Crown Lands Ordinance of 1890 had contained provisions expressly referring to any waste and vacant land "being land not used or required or reasonably likely to be required by native-born Papuans for building, agricultural or other industrial purposes" (Sec. XXIII). A section similar to Sec. 8 supra (but not in the same terms) was first introduced into the Land Ordinance of 1899, as Sec. XI, but Sec. 8 was first enacted in 1906 and in 1908 Sec. 9 (already set out) was introduced into Part I. It is evident that Sec. 9 in referring to waste and vacant land must refer to land which complies with the description contained in Sec. 8, the sidenote to which refers to "waste or vacant lands", and that the provisions of Sec. 9 may be brought into operation if a declaration is made under Sec. 8.

Sec. 8 contains no procedural provisions for the making of claims or for any person to indicate his intention of showing cause, nor for the hearing by the Administrator of any such claims to the land by any claimant. It is important to note the express provision in the section that if the Administrator by Order in Council makes a declaration under Sec. 8, after the expiration of the time limited by such Order in Council the land becomes vested in the Crown for an estate in fee simple. If by reason of cause shown after the Order is published or information subsequently received, the Administrator is not satisfied that the land is ownerless, the Ordinance makes no express provision (although it would seem open) for the Administrator, by a further Order in Council, to disclaim the Crown's titles. The only case expressly provided for is the case in which a claim is made to the land and the Administrator allows the claim. The means by which the Administrator's decision is to be given effect to is for the Administrator to declare, by another Order in Council, that the Crown disclaims its title to such land, which prevents the land vesting in or divests it from Her Majesty. Alternatively the Administrator may acquire the rights of any owner by "purchase in manner provided" which must refer to Sec. 5 of the Ordinance, but such purchase would require to be made either before the expiration of the time limited in the original Order in Council because on that date by reasons of the terms of the section the fee simple would vest in the Crown and thus the rights of the owners would be extinguished, or alternatively after the publication of another Order in Council disclaiming the Crown's title, which would divest that title.

Turning now to Sec. 9 there are significant omissions in its provisions. There is no provision for any qualifications, legal or otherwise, to be held by a member of the Board, the remuneration, the number of members of the Board, a quorum, majority decision or for an oath of office. Both counsel accepted that the Administrator had a discretion whether to appoint a Board or not. It was not his duty to exercise the power. Ordinances Interpretation Ordinance 1949, Sec. 5. There is no provision that the Board's decision is to be final and indeed the section is silent as to the effect of any such decision. The Board is not to be bound by rules of evidence or legal procedure, and it is only be reason of the provisions of the Ordinances Interpretation Ordinance 1949, Sec.33 that the Board has authority to receive evidence and examine witnesses and to administer an oath to all witnesses legally called.

A guide to the crucial question of the effect of a decision made by the Land Board, seems to me to be given by having regard to certain types of cases to decide which the Administrator was given power to appoint a Board. If the Administrator desired to determine whether certain lands were in fact ownerless, the words of the section seem wide enough to enable him to appoint a Board to determine that question even before the making of an order in Council but certainly after the publication of an Order in Council, declaring the land to be waste and vacant land. Similarly, if after the making of an Order in Council under Sec. 6 a claim was made to the land by an alleged owner who was a Papuan native the words of the section would enable a Board to be appointed on the ground that a question had arisen as to waste and vacant land or because a case had arisen of disputed ownership of land in which a Papuan native was a claimant. But if the Board decided that the land could not be said to be land of which there was no owner or upheld the claim by the Papuan native claimant, in my opinion, unless the Administrator exercised his powers under Sec. 8 either by way of disclaimer or by purchase, the Board's decision could not prevent the land vesting in the Crown after the publication of the Order in Council under Sec. 8, or if the land had vested in the Crown prior to the Board's decision being made, that decision could not operate to divest the Crown of its title. In practice no doubt the Administrator could be expected to act on the Board's decision, but the appointment of a Board under Sec. 9 in my opinion does not divest the Administrator of his discretion to allow or disallow a claim under Sec. 8. Further if the Board decided in favour of the Administration, the land would remain vested in the Administration pursuant to Sec. 8. Accordingly I consider that so far as waste and vacant land is concerned the function of the Board was only to advise the Administrator in the exercise of his powers under Sec. 8.

In the present case, a Board was expressly appointed to decide a case of disputed ownership of land in which a Papuan native was a claimant. It was not a question concerning waste and vacant land. After the matter had been mentioned during the hearing Dr. Hookey argued that the words conferring the power to appoint a Board to decide a case of disputed ownership should be read down and confined to land the subject of an Order in Council made under Sec. 8, or alleged to be waste and vacant, so that Sec. 9 should be interpreted as a provision ancillary only to Sec. 8. This interpretation is supported by the fact that Sec. 9 was inserted later. Alternatively, he argued that having regard to the position of Sec. 9 in Part I of the Ordinance, which is concerned with the acquisition of land from natives, the words of Section 9 should be read down and confined to cases arising under Part I, for example, to land which the Administration was negotiating to purchase from a Papuan native under Section 5, so that the decision of a Land Board might be taken to determine the true native owner of the land, as incidental to the purchase of it, and so as to ensure that the rights of a third party who was in fact the true owner would not be destroyed by the indefeasible title acquired by the purchaser.

My mind has fluctuated upon this point, but I have come to the conclusion that the doubts I first expressed were well founded, and that the Board was not validly appointed. It is sufficient for me to say that I agree generally with the reasoning of the learned Chief Justice, and with his conclusion that the operation of Section 9 is to be confined to questions and cases arising under Part I of the Ordinance.

Although this is enough to decide that there was no estoppel, in view of the full and able argument before us, I propose to consider the legal effect of the Board's decision, assuming that the Board was validly appointed. Clarkson, J. took the view "that if the decision was not a judicial determination which bound the parties, then the whole proceeding was pointless and the right of appeal expressly conferred by Section 9 was completely unnecessary." Mr. Clay cited Spackman y. Plumstead District Board of Works (^[77]) as supporting this conclusion. In that case Lord Selborne expressed the view that where it is provided that a matter is to be decided by an authority, "prima facie that would mean determination so as to bind those who are to be affected by it."(at page 235) with the effect, in that case, the decision was not subject to review. But depending on the context, in relation to a Court the word "decision" may carry the meaning of being given in a consultative capacity. Ex parte Council of Kent and Council of Dover (^[78]), which was cited by Dr. Hookey, seems to me a helpful authority. In that case Lord Halsbury, giving the decision of the Court of Appeal considered that in enacting a provision for certain questions to be submitted for decision by the High Court, the legislature had "used a popular and not a technical or legal word", which in the particular statute conferred a consultative function, and on that ground excluded any right of appeal. Lord Halsbury relied particularly on the fact that the questions to be submitted for decision might include questions which might arise (ibid. at page 729). Now under Section 9, a Board might be appointed to decide a question as to land alleged to be waste or vacant, which, in my opinion, is not limited to questions which have arisen under a declaration under Section 8, but which may be about to arise under a contemplated declaration and "can therefore only be decided in the sense of expressing the opinion of the Court how it ought to be decided when it does arise" (per Lord Halsbury op. cit. p. 729).

In other respects Section 9 does not perhaps point so strongly to a consultative capacity as the statutory provision considered by Lord Halsbury. Thus an obligation by the Board to hear the parties to the dispute can perhaps be inferred from the terms of Section 9, whereas it was not to be inferred from the English statute. But the importance of the case is that the use of the word "decision" can be equivocal for the purpose of founding an estoppel.

Further, express words would seem to be required if under Section 9 it was intended to take away the right of a Papuan native to bring an action in the Supreme Court to determine the ownership of land claimed by him in accordance with the law of the Territory, or to make a claim under the Native Land Registration Ordinance 1952. Lord Halsbury considered that was significant that under the provision before the Court of Appeal questions could be submitted for decision independently of the parties interested in the decision. Under Section 9 there is no right conferred on any citizen to require a Board to be appointed. The appointment is entirely within the Administrator's discretion. As Dr. Hookey submitted, it would be strange if a judicial estoppel could be founded on the exercise of this wide discretion in any particular case. Upon these considerations I have reached the conclusion that the legislature could not have intended that a Board in deciding cases of disputed ownership of land was exercising any different function from the advisory function it exercised in deciding questions as to waste and vacant land, and thus no estoppel arises.

I consider that this conclusion is supported also by the whole tenor of Section 9. There seems to me much force in the reasoning of Bovill, C.J. Stevens v. Tillet, Norwich Election Petition (^[79]) (supra), in considering the conclusiveness of a report of a judge at an election trial, under legislation which, it must be admitted, pointed more certainly to a conclusion than Section 9 of the Land Ordinance. The passage from the judgment is as follows:

"There is nothing which says that the report is to be final for any purpose whatever, except in the particular cases that are expressly mentioned; and the present is not one of them. If Parliament had intended, not only that the determination of the question of the seat was to be final, but that the report was to be final in other respects, it would have so enacted." (at pages 160-1).

I consider that the same reasoning applies in the present case, particularly as the decision may relate to land already vested in the Crown under Section 8.

I thus regret that I am unable to agree with the learned appeal judge for, in my opinion, upon the construction of Section 9 the Land Board's decision in this case is not a binding or authorative one.

As the matter was argued at length, I propose also to consider the meaning and effect of the provision that, "the Board in giving its decision shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure." A similar Section was considered by Minogue, J. (as he then was) in Romni-Mond & Ors v. Robertson (^[80]) Section 164 of the Native Employment Ordinance 1958-1966, which provides that in determining any question (other than in a criminal proceeding) under the Ordinance, a Court (which is defined to mean the District Court) shall be guided by equity and good conscience and is not bound by rules of evidence or legal procedure. Minogue, J. after reviewing the authorities, and especially the Tramway's case (^[81]), said that the effect of the Section is that "the court can only depart from the principles and rules of common law and equity where its power to do so is stated expressly or by the clearest implication. Section 164 of itself, in my view, does not contain that power. All it does is to free the court procedurally. It does not allow the court to act on no evidence at all, although it may inform itself in the best way it can of the factual situation with which it is dealing."(at page 148). In the Tramway's case (^[82]) (supra), the High Court considered Section 25 of the Commonwealth Conciliation and Arbitration Act 1904-11, which provided that, "in the hearing and determination of every industrial dispute ......the Court shall act according to equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal powers, and shall not be bound by any rules of evidence, but may inform its mind an any matter in such manner as it thinks ...,... just". Isaacs, J. dealt with the question of the enforcement of an award under the Act, as distinct from the exercise of the Courts' arbitral powers, and he considered it within the judicial power (at page 71). His Honour continued, "in this domain the Court is well constituted, and none the less by reason of the wide provisions of Sec. 25 of the Act. That section should be read as a procedure section, and it does not except 'rules of law', as was the case in Moses v. Parker (^[83])(supra), a circumstance that seems to me to have been the real point of the judgment of the Privy Council ....... . The legislature, so far from contemplating the Court being free from any rules of law, clearly intends that the rights of the parties shall be fixed by the award, and that those rights are to be enforced by the methods prescribed; See, for instance, "secs 32 and 48" (at pages 71-72). Isaacs, J. thus gave three reasons for holding that Section 25 dial not preclude the Court from exercising judicial power, holding that Section 25 was a procedural Section, distinguishing Moses v. Parker (^[84]) (supra) and then supporting his conclusion by reference to the other Sections of the Act. The only other reference made specifically to Section 25 was by Griffiths, C.J. who considered the Section only in relation to the arbitral functions of the Court of Arbitration and following Moses v. Parker (^[85]) (supra) was disposed to think that the Court was in respect of those functions acting as a Court properly so called.

Now the words of the Tasmanian statute were different and stronger than Section 9. As in the case of Section 25 considered in the Tramway's case (^[86]) (supra), it also does not except "rules of law", and the structure of the two provisions is similar. There are, however, no other sections in the Ordinance defining the rights of the parties in relation to the decision, and I consider that, in the context of Section 9, the provision cannot be read merely as a procedural section. I consider that there is insufficient warrant to read into the Section the meaning that the Board should be bound by rules of law. But although the provision that the Board is to "be guided by the principles of equity and good conscience" is perhaps weaker than a provision that such relief was to be given as appeared "just and equitable", as to which the majority in the Privy Council in the United Engineering Worker's Union case (^[87]) (supra), said:- "No other criterion is laid down. They are given an unfettered discretion to do what they think is right and fair" (at page 370), in my opinion, the effect of the Territory provision is the same and the Privy Council's decision determines the matter.

It is true that the legislation considered by the Privy Council was also stronger in that it was provided that any relief or redress may be granted a workman by a Labour Tribunal "notwithstanding anything to the contrary in any contract of service between him and his employer" (ibid. p.373). But the Privy Council does not seem to have considered that provision as alone determining the matter of doing any more than making clear the meaning of "just and equitable" (see page 373). Further, the conclusion of the majority that a tribunal may "be informed of the terms of the contract, but it is not restricted to giving the effect to legal rights", does not appear to be limited to legal rights arising under the contract. Nor did their Lordships find it necessary to refer to the different language of the Section considered by the Privy Council in Moses v. Parker (^[88]) (supra). Finally, Windeyer, J. in the passage I have already quoted, seems to have taken the view that the ratio of the decision depended on the meaning of "just and equitable". I thus conclude that the relevant words of Section 9 are not only procedural but also provide a criterion for decision.

Accordingly, in my opinion, the Land Board was not limited to the legal rights of the parties. Being guide, by equity and good conscience it could refuse to give effect to those rights, nor was it limited to the strict process of determining the law and applying it to the facts. In the context of Section 9, the Legislature may well have considered, especially in disputes in which the Administration and possibly Europeans were involved, that is should not confine a Papuan native to his strict legal rights. It follows, in my opinion, that a decision made on such grounds is not made in accordance with judicial principles, and in the absence of a clear intention by the Legislature that the decision was to be binding on the parties, it would not therefore support an action at common law, and accordingly cannot support an estoppel.

I should not leave this branch of the case without referring to the provision for an appeal to the Supreme Court, although it is not strictly necessary to my decision. It is clear that such a provision does not necessarily constitute the tribunal appealed from a judicial tribunal. Shell Company of Australia v. F.C.T. (^[89]). On the view I take of the legislation it may well be that the decision of the Land Board, and in carrying out its appellate functions, the Supreme Court judges were to deal with the matter in the same way as first the Commissioner and later the
judges of the Supreme Court of Tasmania under the legislation considered in Moses v. Parker (^[90]) (supra), that is, "as persons from whom the best opinions may be obtained, and not as a Court administering justice between litigants" (ibid. p.249), or in a consultative capacity as in Ex parte Council of Kent v. Council of Dever (^[91]) (supra). It would be an unusual result that the decision of the Supreme Court should not be binding, but the reason would lie in the special nature of the jurisdiction and the rudimentary state of administration in Papua when the legislation was introduced.

Dr. Hookey advanced other arguments against an estoppel. It is unnecessary for me to deal with all his submissions, but I shall refer to his submission that the necessary element of identity of parties was absent. He relied on the facts that before the Land Board the land Era Taora was claimed by the idibana branch of the Tubumaga clan, whilst before the Land Titles Commission the claim was made by Daera Guba on behalf of the descendants of Guba Daera deceased and it was made clear in evidence by Daera Guba that he represented both "sides" of the clan, the idibana and Iaurina, there being always two sides of a Motuan clan. At the Land Board hearings the Iaurina branch appeared and claimed land known as Vanama, so that its members must have known of the claim by the idibana branch, and it appears to be a fair inference that in those hearings evidence was led as to Tubumaga ownership generally, and it was not confined to a claim by the idibana branch. Accordingly, I consider that Mr. Clay's submission was sound, that the principle applied to these proceedings, that "if a person knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to reopen the case." Wycherley v. Andrews (^[92]), and that there was no reason why this principle should not be applied to the conditions of British New Guinea, just as the Privy Council has held it is appropriate to similar conditions of West Africa. Nona Ofori Atta II v. Nona Abu Bonsa II (^[93])

Native Land Registration Ordinance 1952. The effect of the Native Land Commission's decision in 1954 was that the portion of Granville East which had been surveyed into sections was held to be Administration land, whilst the remainder of the Granville East rectangle shown on Cuthbertson's sketch of 21st July 1886 was held native land. Neither Dr. Hookey nor the Crown Solicitor put forward any alternative argument that the Commission's decision set up an estoppel. However, Dr. Hookey submitted that that part of the decision awarding land to the natives was intra vires. The Crown Solicitor then submitted that the decision was void on the ground that the Commission's jurisdiction was confined to land which was acknowledged to be native land or the only claimants to which were native claimants, and the generality of the words contained in section 8 empowering the Native Land Commission to enquire into and determine what land was native land, that is, owened by virtue of native customary right, should be cut down accordingly. He relied particularly on Section 33 which conferred a right of appeal to a Native Land Appeal Court upon "a native claimant". The view I take of the Commission's decision, however, is that the finding of the Native Land Commission that certain land was native land was a matter preliminary to its having jurisdiction to go on and determine the natives or native communities by whom the land was owned under Section 8(b), so that the case is one of the type in which the Legislature intended that it was not for the tribunal to decide conclusively whether such a state of facts existed. R. v. Commissioner for Special Purposes of the Income Tax (^[94]). This conclusion is supported by the width of the power conferred under Section 8(a), which must have„ extended to land claimed by non-natives and also waste and vacant land (Section 37), and a decision as to which could never have been intended to be conclusive against non-natives, in view of the right of appeal being restricted to native claimants.

Accordingly I agree that the Native Land Commission's decision cannot bind either the Administration or the Tubumaga clan. As no entry was made in the Register of Native Land under Section 23 (1), and the Ordinance has been repealed (Native Land Registration (Repeal) Ordinance 1962 Section 1), it is unnecessary to consider the effect of Sections 23 and 24.

Dr. Hookey also submitted that the Native Land Registration Ordinance 1952 effected an implied repeal of Section 9 of the Land Ordinance, or at least that part of Section 9 which enabled a Board to be appointed to decide all questions of disputed ownership of land in which a Papuan native was a claimant, but having regard to the view I have taken of Section 9 this question does not arise.

The order in Council. I now propose to consider the land number (5) which, although it has not been finally surveyed, the parties agreed was to the west of Granville East and the title to which the Administration claims under the Order in Council, dated 19th August 1901, made under Section II of the Lands Ordinance 1889. (The order was in fact published in the Government Gazette on two occasions, the 14th and 28th of December 1901). Although the land is a narrow strip small in area, this issue is of great importance in view of the many leasehold interests, which have apparently been created over the last seventy years, in respect of land upon Paga Hill and Goldie Law (Tuaguba, as it is now called).

Dr. Hookey first attacked the validity of Section XI under which the order was made, on the ground that it was contrary to Article 31 of the Instructions under the Sign Manual and Signet to the Administrator of British New Guinea dated the 8th of July 1888, referred to in the argument in Geita Sebea v. Territory of Papua (^[95]), whereby the Administration was enjoined to take care to protect the natives in the free enjoyment of their lands and other possessions. However, even assuming that the instructions of Le Hunte (the Administrator of the day), as to which there is no material, did not operate to change those instructions when the only material before the Court is a passage from counsel's reported argument in another case, and there is no evidence as to the remainder of the instructions, I consider that there is insufficient material before the Court to hold that the provisions of Article 31 operated to impose such a condition upon the power which was delegated (under the British Settlements Act 1887, Section 3) to make laws. I also am of the opinion that in the circumstances of the Territory, in which there must have been large tracts of land which appeared ownerless, Section XI cannot be considered so unreasonable as to be beyond the power of the Administrator in Council pursuant to the British Settlements Act, Section 3. I agree with the Chief Justice that the dicta in Burmah Oil Ltd. v. The Lord Advocate (^[96]) (supra) are inapplicable.

The Order itself was attacked on a number of grounds. First it was submitted that the Order in Council was made by the wrong person. Under Section II the power was conferred upon the Administrator in Council. Dr. Hookey's argument was based upon the statutory definitions under the Interpretation Ordinance of 1891, Section 3. "Administrator" was defined to mean "The Administrator of the Possession and shall include any officer for the time being administering the Government of the Possession", and the expression "The Administrator in Council" was defined to mean "The officer administering the Government of the Possession with the advice of the Executive Council of the Possession". In fact the Order was made by the Deputy Administrator in Council. In my opinion the Crown Solicitor's submission is correct, that in the absence of evidence that the Deputy Administrator was not the officer administering the Government of Possession at the time, it follows from the presumption of regularity that, in spite of the use of the phrase Deputy Administrator rather than the more appropriate "Acting Administrator", the Deputy Administrator was that officer. Further, from the words which appear upon the face of the order "Present: the Deputy Administrator in Council", there is sufficient evidence, in my opinion, that the Council was regularly constituted by three persons being present as required by the British Settlements Act 1887, Section 3.

Dr. Hookey's main submission was that the Order was void for uncertainty as to the land the subject of the order. He submitted that it was not clear precisely upon what land the Order operated. At one stage of the argument he submitted that the Order was also subject to attack on the ground that it was made with the ulterior motive of establishing a title to the whole of the land from the extension of Lawes Street to Paga Point, an area exceeding 500 acres. (There is some support for this argument in the Instrument of Attestation signed by F.R. Barton, the Administrator, on 17th March 1905, which shows a sketch of the whole of the land as the land concerned.) Now it must be said at once that the terms of the Order and in particular the provisions of the schedule are remarkable, and inevitably raise such a question, but I do not consider that there is sufficient basis of fact for the submission in view of the description of the land to be affected as Paga Hill and Mount Goldie of an estimated area of 328 acres, an area considerably less than the total area referred to within the Schedule, over 475 acres.

Dr. Hookey's argument was based upon the meaning of the words contained in the Schedule which excepted the land "not comprised within any transfer from natives to the Crown that are situated within the following boundaries", the boundaries then being set out as all the land to Paga Point from a line from Lawes Road extended to Ela Beach to the east, and to the waters of the harbour to the west. Dr. Hookey argued that the word "transfer" carried a technical meaning which refers to a written instrument of transfer, that "transfer" is a technical word and therefore it is to be assumed it was used in its technical meaning and in the context of property law means "the document by which property ....... is made over by one person to another", Earl Jowitt, The Dictionary of English Law, 1959, p.1771. He referred to the Land Ordinance of 1899 and particularly Section IX, as determining the meaning of the word, for the Order in Council was made under Section 7 of that Ordinance. Thus, the provision in Section IX (1), that the "acquisition by and transfer to the Crown" shall be taken in the name of Her Majesty does seem to refer to a written document. But it is not clear that the word carries the same meaning when used in Section IX (3) - "Every transfer or other transaction .... shall be authenticated by an instrument in writing ......", in view particularly of sub-section (4) which provides the particulars to be set out in that instrument, without further reference to any transfer.

The Crown Solicitor argued that transfer meant "dealing" and did not connote any written document, and he submitted this was supported by the meaning of the word when used in the Crown Lands Ordinance 1890. I do not consider it necessary to examine these provisions, for I agree with his submission that the meaning must be determined by the context. I have found helpful a passage from Lord Reid's judgment in Lyle & Scott Limited v. Scott's Trustees (^[97]), a case which was concerned with the meaning to be given to the words "transfer" and "transferring" in an Article of Association of the Company as applied to shares. Lord Reid said: "They (the respondents) say that "transfer" and "transferring" only apply to a complete transfer of the ownership of the shares by acceptance and registration of deeds of transfer .... . I see no reason for reading the article in that limited way. Transferring a share involves a series of steps, first an agreement to sell, then the execution of a deed of transfer and finally the registration of the transfer. The word transfer can mean the whole of those steps. Moreover, the ordinary meaning of "transfer" is simply to hand over or part with something and a shareholder who agrees to sell is parting with something. The context must determine in what sense the word is used. In article 7 (under which a Director might decline to register any transfer of any share) it clearly means a deed of transfer. In article 8, which authorises certain dealings "by way of transfer or bequest" it must, I think, refer to the sale or gift of the shares." Similar views were expressed by Lord Keith who, in the particular context, considered that "transfer" was used in the broad sense as meaning "dispose of". (ibid. at page 785).

Now, in the context of the Order in Council, as the purpose of the Schedule is to give the boundaries of the land the subject of the Order, there is good ground to suppose that a written instrument is indicated. But as there was no instrument of transfer in existence respecting any portion of the land, then if the words of the Schedule are alone looked at and if transfer means a written instrument, the Order must operate upon the whole of the land which is inconsistent with the express description of the land as Paga Hill and Goldie Law, and its estimated area of 328 acres. Such a meaning would thus render the Order in Council void for uncertainty. Accordingly, I have reached the conclusion that it is proper to apply the maxim ut res magis valeat quam pereat, so as to give effect to all the provisions of the order and construe transfer in its broad meaning of "disposed of".

The Crown Solicitor then submitted that by the Schedule, so construed, it was intended to exclude the areas of Granville East and Granville West and the Ela Beach Lands, the declared area comprising Paga Hill 50 acres, Goldie Law 236 acres being 258 acres less the 22 acres of the Ela Beach lands, and including the areas around the coast and northwards of Goldie Law, and also including the area of 12 acres west of Granville East, which he submitted gave a total area of approximately 328 acres, as stated in the Order in Council. To obtain these acreages it is necessary to go to the Annual Report and Cuthbertson's plan. He submitted that the fact that a purchase might later be held invalidated did not deprive the expression of certainty, and that although the purchase was not defined by survey in the Order as each was capable of ascertainment by survey there was thus sufficient certainty as to the area of land affected. In any event, he submitted, it is not now open to the appellants to raise such an argument on appeal for the first time as the matter would depend on evidence. Suttor v. Gundoowds Pty. Ltd. (^[98]). However, the Administration relies on the Order and must establish its validity.

If "transfer" bears the meaning of "disposition" in the Order in Council, not only does the issue of certainty turn on this interpretation, but also that of the formal validity of the Order. The appellants did not argue that the Order did not comply with the formal requirements of Section XI, and particularly provision in Section XI that "the Order in Council shall set forth the name or names (if any) by which such land is known with a description thereof made from an actual survey or a diagrammatic sketch of the same, the position of the land, an estimate of its area ..." The Crown Solicitor's argument is that the words of the Schedule are a sufficient compliance, as the outer boundaries has been surveyed.

Now the Order in Council does set forth the names by which the land is known (Paga Hill and Goldie Law) and an estimate of its area (about 328 acres). It may be that the position of the land is sufficiently "set forth" by the statement of the outer boundaries contained in the schedule. But the question arises whether the Order sets forth "a description of the land made from an actual survey or a diagrammatic sketch of the same." I do not consider that it was a sufficient compliance with the Ordinance for reference to be made to a sketch plan which was stated to be open for public inspection of a government department at Port Moresby. In any case no such sketch plan was put in evidence or identified as the one open for public inspection, and I do not consider that any assumption can be made that the sketch plan was a copy of Cuthbertson's survey of 9th September 1886 (which in any case omits the Ela Beach purchases.) In view of the drastic effect of the order upon private rights in land, in my opinion the Ordinance should be strictly construed so as to require that the Order contain, as part of it, such a sketch.

So the Order must depend for certainty and formal validity upon the description of the lands affected which is contained in the provisions of the Schedule. The general description of Paga Hill and Mount Goldie is plainly too wide. The Schedule does not specify the pieces or parcels of land not comprised within any transfer (construed as "disposition") from natives to the Crown, some such parcels have to be deducted to arrive at the estimated area of 328 acres. The Crown Solicitor submitted that such lands were readily ascertainable by reference to the Cuthbertson surveys and that the maxim, "Id cerium est quod certum reddi potest" applied. But such an ascertainment, it seems to me, would have required not only recourse to the surveys, and there is no evidence that these showed the Ela Beach purchases, but also enquiries of Government officers and the natives concerned (fifteen years after the alleged dispositions), and opinions to be reached, as to the validity of the dispositions, a process which in my opinion cannot be said to ensure the reduction to a certainty of the extent of those dispositions.

As to the formal requirement of the section, that the Order should set forth a description of the land made from an actual survey, in my opinion, the description required is one which shows a fixed starting point and states the boundaries by reference to fixed positions or to bearings and distances. No such description is given upon the face of the Order, and if transfer is given the meaning of "disposition" because of the lack of certainty as to the areas involved, no such description can be obtained by reference to extraneous sources.

I therefore come to the conclusion that the Order is void for uncertainty. The effect of formal non-compliance with Section XI was not argued before this Court and accordingly I express no opinion upon it. In view of the uncontraverted native description of Paga Hill and Goldie Law as referred to by Musgrave as "rocks and stones" and his description also uncontraverted, of these lands, that the "elevations are very rugged and somewhat steep and not cultivated by the natives. They are in fact practically useless to the latter and it seemed unnecessary, at any rate at present, to buy them", both Paga Hill and Goldie Law would seem naturally to fall within the class of land contemplated for acquisition under the Ordinance. But the boundaries as stated in the Schedule, which are the basis of the defects I have referred to, cannot be excluded from consideration and there is no sufficient description of those places, and accordingly (although Mr. Clay submitted no such argument) I agree with Dr. Hookey that it is not possible for these areas to be severed and the Order validly confined to them.

I should also add that there is a difficulty in Mr. Clay's argument's that an estimated area of approximately 328 acres can be arrived at. The argument depends on the inclusion in the land as named and affected by the Order of the land north of Goldie Law and west of Granville East. The diffulty is the inclusion in the description of Goldie Law, of the 12 to acres north thereof which Cuthbertson referred to as swampy flat, and also the other areas north of Goldie Law which Mr. Clay relied on to reach an approximate total area of 328 acres.

I also agree with the Chief Justice that even assuming the validity of the Order in Council, there is no evidence that the small piece of land to the west of Lawes Road can be described as part of Goldie Law or part of the land the subject of the Order, and on this ground also is not therefore shown to be Crown Land.

Dr. Hookey also sought to go behind the Order and submitted that on the weight of the evidence the land was not ownerless which he submitted was one of the conditions for the exercise of the powers conferred under Section II, and that it was also against the weight of evidence that the land, which he submitted was subject to the Order, was not used or reasonably likely to be required by native born Papuans for building, agricultural or other industrial purposes, which were, he submitted, also conditions for the exercise of the power.

As these matters were fully argued before us, I propose briefly to consider them. First I should state that I agree with the learned Chief Justice that it is not a condition of the exercise of the power conferred by Section XI that the Administration must show that the land in question was ownerless, and also with Clarkson, J. that on the evidence it could not be said that in 1901 that the alleged piece of land was not of the description required by that Section.

As to Dr. Hookey's argument that this Court can go behind the Order, Section XI expressly provides that from and after the expiration of the time limited by the Order in Council, the land referred to therein shall be deemed to be absolutely vested in Her Majesty and to be Crown Land. I consider that this provision is similar to the statutory provisions which were before the High Court in Criterion Theatres Ltd. y. Municipal Council of Sydney (^[99]) and Motor Wheel Company v. Commissioner for Railways (^[100]), which in the former case Isaacs and Rich, J.J. and in the latter case Roper, C.J. in Equity held were such "that if the formal conditions for vesting were present, the vesting took place by force of the Act and the Courts could not canvass the matter" per Roper, C.J. at p.210 (op. cit.). Although on the several occasions on which the Motor Wheel case has been referred to by the High Court, the High Court has expressly not found it necessary to consider the correctness of that decision, I consider that this Court should follow it. Howarth & McMahon (^[101]), Baiada v. Baulkham Hills Shire Council (^[102]).

The cases cited are all cases of the compulsory acquisition of land in which the question was whether the Court could go behind the purpose of the acquisition as specified to determine whether it fell within the provisions of the legislation. In the Motor Wheel case the notification was the decision of and made by the Governor in Council; by force of the statute upon due publication of such notification the land vested in the Constructing Authority on behalf of the Crown under the Public Works Act 1912 Section 43 (N.S.W.). In the present case as the Administrator in Council was the Executive Government of the Possessions and the land became vested in the Crown, the declaration made by the Order in Council carries the same force and effect as that of the Governor in Council in the Motor Wheel case.

Dr. Hookey argued that the basis of the law acted upon by Roper, C.J., in Equity was, as later expressed by the High Court, "If a direction of the Governor in Council specifies a purpose as being the purpose of the acquisition, no Court will go behind the statement, for the good faith of the Governor in Council cannot be questioned in the courts." State Electricity Commission of Victoria v. McWilliams (^[103]). W.H., Blakeley & Co. Pty. Ltd. v. The Commonwealth of Australia (^[104]). Dr. Hookey then argued that the present case is distinguishable on the ground that the issue is whether this Court can go behind the decision of the Administrator in Council, that the land was not used or required or reasonably likely to be required for the purposes stated, and that to examine these matters is not to question the good faith of the Administrator in Council. But, in my opinion, the nature of the issue is the same in each type of case, that is, whether the decision as to the purpose or the user can be supported by the facts, as appears by the process of examination of the facts made by the Court in each of the cases referred to. Accordingly, in my opinion, the issue whether the land answered the statutory description as declared in the Order in Council, is a matter which is not to be canvassed once it appears that the formal conditions for vesting are present. For the reason that under Section XI the land declared therein is to become Crown Land, in my opinion, the legislation considered by Minogue, J., as he then was, in Tolain and Ors v. the Administration (^[105]) is different and his decision allowing examination of an opinion formed by the Administrator of a Mandated Territory is distinguishable.

I am accordingly of opinion that the Order in Council is void and can confer no title upon the Administration to the land numbered 5 west of Granville East. Mr. Clay also argued that there was some evidence of a prior acquisition of the land, but the land is referred to as "unpurchased" by Musgrave, the doctrine of act of state does not, in my opinion, avail the Administration, a possessorty title was not relied on, and it was not argued that there could be abandonment by the true owners of the land, or any evidence of it in relation to the particular area of land concerned.

The appeal of Lohia Doriga. Mr. Woods supported many of the grounds of appeal relied on by Dr. Hookey, but his main submission was that the Commission's finding that the Giakone clan, as such, had no rights in the land, and that it purported to sell the land to the Administration was against the weight of the evidence. He also sought a new trial on the ground of the new evidence he had relied on before Clarkson, .J. but this Court agreed with the learned judge and rejected that application during the hearing. If this Court did come to the conclusion that the finding of the Land Titles Commission was against the weight of the evidence, Mr. Woods sought a declaration that the land was native land and an order remitting the question of native customary ownership for determination by the Land Titles Commission.

On this branch of the case the written records are of no assistance. Necessarily the only evidence was traditional evidence subject to the weaknesses inherent in that type of evidence. I agree with Mr. Woods that the way in which important parts of the evidence was elicited and recorded is subject to criticism. Important matters were put to witnesses in evidence in chief without objection by leading questions, the corroboration of previous witnesses was weakened because witnesses were permitted to remain in Court, ambiguous references to land titles and boundaries were not explained in evidence or in the transcript, and references were made to maps and plans without any note being made of the documents referred to. Much of the evidence is unsatisfactory. Mr. Woods submitted that no weight could be placed on the Tubumaga evidence because of the inconsistencies in it, and the Giakone evidence should have been preferred because that clan's traditional history was more probable, and the Tubumaga evidence lacked any historical detail as to the entry of the clan upon the land.

At the outset it is useful to analyse the findings of the Commission. Having regard, I assume, to the evidence of the purported acquisition in the Annual Report and also evidence of the Giakone clan the Commission held that there was a sale by the Giakone clan. Because of the close ties between the clans, (who live at Hanuabada), it is curious that the Tubumaga witnesses should not have heard of any such sale.

The Commission was not bound to accept the evidence of either clan, the rejection of one claim did not itself entitle the other to succeed. Each claimant had to prove his title. If the Commission considered the evidence called by each claimant was so inconsistent and confused that it could not act on it or having heard all the witnesses was unable to say which clan owned the land, then it was bound to reject each claim. Thus there is a heavy onus on the appellant Lohia Doriga to satisfy this Court that the Giakone evidence was wrongly rejected and outweighed the evidence of the Tubumaga clan.

Lohia Doriga's account was that the Tubumaga clan in fact used to occupy the land and make gardens upon it, but the true owners were the Giakone clan who permitted the Tubumaga clan to occupy it by inter marriage and friendship. He went on to tell of a fight which was provoked by a Tubumaga man going on the land and taking grass for thatching, as a result the Koitapos (the Giakone clan) forbade the Tubumaga (who were Motuan) to make gardens there. Eventually, however, the clan became friendly and the Tubumagas were permitted to take the land including Era Taora, which was by the sea, whilst the Koitapos, who were inland people, gardened on land further away from the sea. The Tubumaga evidence did not deal with this historical account, and no evidence was led before the Commission as to any subsequent recorded history of the Koitapo and Motuan peoples. However, the Giakone evidence was subject to the weakness that having come before the Commission to support the claim, it was admitted at the hearing that the land had been sold to the Administration. Thus Lohia Doriga said, "the Koitapo people knew that Hob Hunter had bought this land and consequently appeared to testify to that effect before the Commission". There is also his curious statement that "Ahuia Ova was a friend of the Government and they made a document relating to the title of this land. Khuia Ova, a Koitapo man, was angry because the land had been sold by the Koitapo people to Bob Hunter and he managed to secure the document giving title of this land to the Tubumaga people". Further the Giakone case was put to the Tubumaga witnesses in cross examination and rejected - the true position they said was that each clan gardened on its own land. Although I agree with Mr Woods that there are obvious criticisms of Daera Guba's evidence, I am unable to say that the Commission wrongly accepted it. I agree with Clarkson, J. that it is not possible to disturb the Commission's finding that no portion of the land was owned by the Giakone clan, and the fact that the Giakone clan made no claim in either of the hearings prior to the proceedings before the Commission, supports this finding. In testing the two competing histories the finding is also supported by the evidence of possession by the Tubumaga clan in the use made of the land for gardening during the Australian Administration.

Accordingly, in my opinion, the appeal by Lohia Doriga fails, and the appeal by the appellant Daera Guba on behalf of the descendants of Guba Daera deceased succeeds. The order of the Land Titles Commission should be restored.

The effect of this decision may depend upon the operation of Section 16 of the Land Titles Commission Ordinance, which was not referred to before this Court.

PRENTICE. J. I have had the advantage of reading the judgments of the Chief Justice and my brother Frost herein; I find I have the misfortune to disagree with their conclusions. I shall therefore state my findings briefly. I do not propose to deal with all the grounds argued by counsel.

I would respectfully agree with Frost, S.P.J. in holding that Mr. Commissioner Douglas was Empowered by his commission to purchase land for purposes necessary to the conduct of his office, and that this would include power to buy land for appropriation as a township site. Should I err in this conclusion I would yet find in the train of events clear evidence of ratification by the British Colonial authorities of the acquisitions purportedly made.

In considering whether a sale of any of the subject land was made in 1886 I have scrutinised the evidence in the light of what I take to be matters of notoriety, viz, that at that time, as now, the Koitapu (or Koipatu) people of whom the Giakone are one clan, were untermingled as to villages with the Motu (of whom the Tubumaga are one clan).

A complex of almost contiguous villages Hohodae, Poreporena (or Badiagua), Tanobada, Kuria and Elevara - formed and forms the one Hanuabada (Big Village). Of these five sub- villages, Hohodae, that nearest and indeed almost adjoining the subject land on the north, and Kuria the fourth in succession (proceeding north ) were Koitapu, the others Motu. Baruni, further again to the north, and Koke ("Badili land") to the south, were also Koitapu. (See J.H.P. Murray "Papua and British New Guinea 1912".)

I agree with my brother Clarkson, the appeal judge, and indeed, as I understand it, with all the tribunals to date, that there was a sale of land in 1886 to the Administration, which sale included land now claimed as Era Taora. I am persuaded that the land then sold was sold by its true owners who held individual rights which were capable of alienation in perpetuity. The many factors drawing me to this finding include the occurrence of the earlier sales with independent advice and interpretation, the contiguity of the peoples involved, the number taking part as vendors in comparison to the total population, the publicity and length of proceedings, the manifold changes in the assertion of rights by the Tubumaga people (see the evidence of Daera Guba particularly; before the various tribunals), the abandonment of rights in the Land Board proceedings, the failure to appeal therefrom to the Central Court, the nature of the claims in the Government House Reserve dispute, the subsequent dealings by individuals with land, the inter-position of Governor Murray in 1911-1912; as well as the documentary evidence, and those portions of the oral evidence (principally Giakone, but to some extent Tubumaga) substantiating an. actual sale. I agree with Clarkson, J. that the probabilities are that both peoples were involved in the sale of the Granville East lands. I consider the finding of the Land Board that the purchase was of the whole rectangle was correct. I would hold that the finding of the Land Titles Commission to the effect that the Tubumaga clan were the owners of the land claimed, that it was never sold by them, but purportedly (fraudulently) sold by the Giakone clan was clearly wrong, and a verdict against the weight of the evidence, within the principle of Whiteley Muir and Zwanenberg Limited v Kerr and Another (^[106]) and Da Costa v. Cockburn Salvage & Tdg. Pty. Ltd. (^[107])

I would respectfully agree in the judgment of Frost, S.P.J. that neither the Statute of Frauds nor the Real Property Act (U. K.) are applicable to the situation of this sale and that subsequent non-compliance with Sec. XV of the 1890 Land Ordinance was not sufficient to invalidate the sale. I consider speculation as to the reasons why no deed of attestation was registered is not helpful - particularly as the only piece of evidence relating to this matte specifically, in annexures El and E2 to Mr. Archivist K.A. Green's affidavit of 28th August 1970, was rejected by a majority of this Court. I would conclude that the evidence establishes a consideration and an agreement such as to constitute a sale either under such English law as would be imported by the declaration of the Protectorate, or the customary law then obtaining (as to which the only evidence appears to be the memorandum of the Resident Magistrate, Mr. Lawes, considered in the light of sales of land both previous to and subsequent to, that of the Granville East lands).

I am of the opinion that the Land Board appointed in 1954 was validly appointed. The heading to that chapter of the Lands Ordinance of 1911 in which Sec. 9 appears ("acquisition of land from natives") does not to my mind control Sec. 9 so as to limit the Lieutenant Governor's power to the appointment of a board only in relation to acquisitions from natives. Other sections in the chapter, for example, that relating to the declaration of land as waste and vacant in so far as a finding of non-ownership would be involved, cannot, I think, be said to amount to "acquisition from natives".

I consider a land board duly appointed to decide a question of disputed ownership of land under Sec. 9, its decision being subject to appeal to the Central Court, was a judicial body of competent jurisdiction charged with giving a final decision in accordance with legal principles. The nature of the issue to be decided - ownership of land, is of cardinal importance. The fact that the Lieutenant Governor in deciding certain of the questions dealt with by Sec. 9, could have proceeded otherwise than by appointing such a board, or could elect as to what administrative action he should take on a board recommendation or finding as to waste and vacant land; does not to my mind detract from the essential nature of its proceedings in regard to cases of ownership of land. I view the provision that it shall be guided by the principles of equity and good conscience and shall not be bound by rules of evidence or legal procedure, as being evidentiary and procedural only. It does not release the Board from the rules of law, from applying legal principles to the determination of existing rights. The Board's function is to decide on past facts whether a right exists in law, not to re-allocate land in accordance with some question of policy. Its decision, subject as it was, to appeal to a court, was intended to be final and decisive, not advisory. It seems to me to fit the test "a decision settling for the future as between defined persons or classes of persons a question as to the existence of a right or obligation so that the exercise of its power creates a new charter by reference to which that question is in future to be decided as between those persons."

The Board decides the case (in a disputed ownership matter). There is no provision for a review other than by an appeal to the Central Court. On this aspect of its jurisdiction, I consider there is no scope for the view that the Board's decision on the case constitutes mere advice to the Lieutenant Governor, on which he may or may not act. As it would be impertinent to argue that a decision of the Privy Council would not work an estoppel between parties because it was in form merely advisory of the Sovereign; so I consider it is inconclusive to argue that because some of the decisions arrived at by a land board might be advisory only (for example, in regard to waste and vacant land), therefore all the Board's decisions (including those on a question of ownership of land - being subject to an appeal to a court) could be advisory only. Its decision on an ownership question I consider, would be binding and final.

I do not accept the appellant's argument that the appointment of an ad hoc board is an invalidity. If a board must be invested with power to decide "all" disputes - then the appointment of each of say, two boards, could be said to invalidate the other - in that each board could not decide "all" disputes.

The decision of the Board is declaratory only. But a declaratory judgment can be final even though action to enforce its decision may have to be taken in the courts. A decision of the Land Board could, I envisage, be sued on to secure specific relief such as possession, and could, I think, be used to work an estoppel to an action for possession by the party unsuccessful before the Land Board (cf. a decision of the Land Titles Commission under Sec. 15 Land Titles Commission Ordinance 1962-1969).

I would with respect agree with Frost, S.P.J. in accepting Mr. Clay's submission that there was a sufficient identity of parties through the representations of the Tubumaga clan at the Land Board and Land Titles Commission hearings, with Daera Guba standing by, within the principle of Wytcherley v. Andrews (^[108]) as applied in Africa in Nana Ofori's case (^[109]), to allow an estoppel. For the reason enunciated by Clarkson, J. at pp. 187 and 188 of the appeal book in his reference to the advice of the Judicial Committee in Leeder v. Ellis (^[110]), I consider that the conditions in this Territory and the attitude of its peoples to litigation render it of critical importance that the common law rules as to estoppel should be nurtured and cultivated, and adapted when necessary to the particular setting of tribal and clan representations (Nyali's case (^[111])). I: understand that principle of Hoystead's case (^[112]) referred to by the appeal judge to have been undisturbed by subsequent decisions. In my opinion Clarkson, J.'s application of the doctrines of estoppel to the decision of the Land Board as to certain portions of Era Taora within the Granville East rectangle, viz, those numbered 2, 3 and 4 on the diagram at p. 225 of the appeal book - was correct.

I understand from the learned appeal judge's reasons for judgment that it was conceded before him that the area numbered 5 on the diagram (appeal book p. 225) was within the boundaries described in the Order in Council. As to the Order in Council, two points only were argued before him - (1) that the order on its face was defective, and (2) that the land did not meet the required Sec. XI description of land not being used or required or likely to be required by native-born Papuans. Before this Court the submissions have covered a wide area, and the concession as to location, presumably, is sought to be withdrawn.

With respect I adopt the approach and conclusions of Clarkson, J. and Frost, S.P.J. to the question of examinability of the user of the land the subject of the order. I agree in Frost, S.P.J.'s conclusions as to (1) the validity of Sec. XI of the Lands Ordinance 1899, (2) the validity on its face, of the making of the order, (3) the meaning of the word "transfer" in the order.

The second paragraph of Sec. XI has caused me much concern. Are there two alternatives described (a) a description from an actual survey, and (b) a diagrammatic sketch: - one of which must be set forth? I incline to the view that the "or" is intended to provide an alternative form of description, that is, "a description from a diagrammatic sketch". On this basis I would be satisfied that the incorporation of a reference to a sketch plan kept at the Department fulfilled the requirements of the section. Alternatively, I would be satisfied that the description in the schedule in following the proclamation as to Town boundaries and incorporating references to surveyed points on the boundaries and relating this to a coastline was a compliance with the requirement of "a description from an actual survey."

In applying the maxim, that is certain which can be made certain, to the Order in Council, as I am satisfied should be done to test the question of possible invalidity on the ground of uncertainty; one must consider the factual situation at the time of the proclamation (1901). It is, I consider, impossible to say now that certainty could not have been arrived at in 1901. Rather the Court should presume that all had been done in a correct manner - that certainty could have been arrived at. For these reasons I would not be prepared to find the order void for uncertainty.

I adopt as correct Mr. Clay's submissions that the lands intended to be covered by the order were Paga Hill, Mount Goldie (less the 22 acres of Ela Beach lands) plus the areas around the coast and northwards of the 258 acre area shown on map Exhibit "A", as far as the prolongation of the northern boundary of the Granville East purchase to the seashore; an area approximating 328 acres.

I would conclude that area 5 in the diagram at p. 225 of the appeal book was included in the area purportedly declared waste and vacant by the Order in Council of 1901 - a conclusion apparently conceded by the appellants until this stage of the litigation. I would add that I am of the opinion that it was not open to the appellants to have raised the matter of geographical uncertainty for the first time in the Full Court proceedings, this being a matter possibly susceptible of having been defeated by the calling of evidence in the actual hearing (Sutton v. Gundowda Pty.Ltd. (^[113]). In my opinion area 5 is Crown land.

I would concur in what I understand to be the unanimous opinion of the appeal judge and of my brothers in this Court for the reasons stated by them, that the appeal of Lohia Doriga must fail.

In my opinion both appeals fail. I would confirm the order made by Clarkson, J. and would order the appellants to pay the respondents' costs of appeal.

I would wish to say before leaving the conclusions I have come to on the matter in the appeal books in relation to the question of sale or no sale appear to me to be in keeping with certain passages in Sir Hubert Murray's book "Papua and British New Guinea" published in 1912, (cf. Kora-Nek's evidence at p. 74 appeal book, as to the author's intervention in a Motu-Koitapu dispute on the subject land in 1911-1912) – the learned author having then been Lieutenant Governor and Chief Judicial officer, for some four or five years. At page 71 he reports Rev. Dr. Lawes's account, circa 1874, on the commercial spirit of the Motu: "the children insisted upon being paid for learning the alphabet, and ...", and at p. 342, referring to the restricting land ordinances and their intention of protecting native ownership of lands: "This (the ordinances) placed the natives in a position to block white settlement almost entirely if they had wished it, and for some time it looked as if they would avail themselves of the power, in which case the most liberal land legislation would have, of course, been futile. Fortunately, however, the native owners thought better of it, and in practice no difficult has been found in purchasing as much land as is required..." (His Honour is here referring to the position under the 1906 Ordinance.)

At page 343 op. cit. the following occurs: "Over a million acres have been acquired by the Crown in Papua, and it is gratifying to note that it has never been seriously suggested that there is a single case in which an injustice has been done to the native owners; and though by an ordinance passed in 1908 provision was made for the appointment of a board to decide questions of disputed ownership in which a Papuan is a claimant, no board has ever been appointed, because whenever a native has made a claim the Government allows it rather than run the risk of even appearing to do an injustice. After a purchase of land has been completed it has sometimes occurred that a native, who has hitherto made no claim, comes forward and says in effect: 'You have bought this land from the wrong man, it really belongs to me'; upon which his statement is accepted, he is treated as the owner, and the land is bought and paid for over again - rather a dangerous practice, which has the advantage of saving time and avoiding even the appearance of injustice, but the disadvantage of encouraging false claims.

There is no doubt that there is a great deal of land which is now treated as belonging to the natives but to which they have not the slightest right, and which really is the property of the Crown. Before the Government influence was established there was constant war in Papua, and there would often be a strip of land, sometimes of considerable extent, between two tribes, which would be regarded as no man's land, neither tribe, from fear of the other, daring to occupy it. Such land would, on annexation, become the property of the Crown, but no sooner was peace established than natives would come forward from one tribe or the other, or from both, and claim this no man's land as their own, and, on the principle already outlined, their claims would be allowed. I have sometimes heard it said by charitable people who know nothing about Papua, but who are always ready to imagine the worst, that the Government has robbed the natives of their land, but, as a matter of fact, so far from the Crown robbing the natives, it is really the natives who, in these cases, have robbed the Crown."

One imagines that if this statement had been put in evidence for the consideration of the earlier tribunals adjudicating this claim, litigation might have been considerably shortened in some respects. The next succeeding statement of Six Hubert Murray - "Papua is sparsely populated, and there is far more land than is ever likely to be wanted either for natives or for Europeans, so that the land problems which have caused so much trouble elsewhere are not likely to arise" - establish the learned author in my mind as the super-optimist of all times.

Solicitor for Daera Guba and the: Tubumaga Clan	Dr. J.F. Hookey
Solicitor for the Administration:	P.J. Clay, Crown Solicitor
Solicitor for Lohia Doriga and: the Giakone Clane	Miss M.R.J. Campbell

Supreme Court of Papua New Guinea

Guba v Administration of the Territory of Papua and New Guinea [1971] PGSC 51 (31 May 1971)