THE PREMIER

UNIVERSITY OF
THE PACIFIC

LAND

ADMINISTRATION AND POLICY LAW ASSIGNMENT

NAME: Samson Kandata

ID #: 20080035

PROGRAM: LLB TWO

LECTURER: PROF. R. JAMES

DUE DATE: 24TH JULY 2009

QUESTION ONE

1
Compare and contrast a registration of document and registration of title system
and discuss the relevance, if any, of both systems in reforming customary land
tenure.

The system of registration of documents was established and practiced especially in

other jurisdictions of the world like England and Australia which adopted it in the 19 th
century. It mainly concerned with dealings in land and the guarantees of deeds
registration are negative therefore, unregistered deeds may lack legal support but
registration does not itself guarantee the validity of the transaction. It has multiple
names as registration of documents, deeds and instruments but they all mean the
same. It was established to record deeds affecting land in a certain public register. The
register only keeps the record of the subject matter but never transferred any land title
to the proprietors. The system does not give the proprietor the indefeasible title of the
land which is in contrast to the Torrens system in the jurisdiction of Papua New
Guinea and only keeps the record of his or her registration of the land. The system
makes easier for persons searching title of the vendor and more importantly, though
registration of the deeds was not necessary for validity, it had the advantage that a
registered document prevailed over unregistered earlier documents and those recorded
after it. Thus, a person who wishes to deal in land needs only to search for the
registered deeds.

However, the main defect or problem that had been confronted in this system of
conveyance is that, the registration of documents did not cure or guarantee its validity.
Therefore, a forged deed remained invalid in spite of its registration. The system of
registration of deeds was inherited in all Australia; and the need was felt in the United
Kingdom to device a new system which would guarantee security of it. Registration
of deeds or agreements might be considered too vague to be worth trouble, too much
like the outdated clan land usage. Nevertheless, if preceded by appropriate practical,
administrative stops, it is likely to prove very useful in specific situation, especially in
scattered or isolated places where the full facts of absolute ownership are hard to
define. The system was adopted in Australia in the mid 19 th century but it never
introduced in Papua New Guinea.

2
In addition, where as the registration of title system was introduced in Papua New
Guinea jurisdiction where it is commonly known as Torrens system of title
registration. The Land Registration Act maintains the Torrens system of registration
of title to land and all dealings in alienated land, including state leases upon
registration are subject to the provisions of the Act. The unalienated land converted
into freeholds under the Land (Tenure Conversion) Act 1964 (PNG) may also be
registered under the Land Registration Act.
The system has two characteristics and they are,
1. Titles by Registration
2. Indefeasible title

Under this system conveyance of interest in land are created or transferred not by
execution of documents as under the common law but by registration of the
transaction in the manner prescribed or given under the Land Registration Act.
According to section 17(1) of the Land Registration Act, it stipulates that, accept for a
lease for a term which does not exceed three years interest until the instrument is
registered in accordance with this Act1. Therefore, the title of the land is transferred
upon the registration of the land meaning registration is done before the title and the
interest on the land is transferred to the proprietor.

According to the case of Administration of the Territory of Papua New Guinea v

Blasius Tirupia and Others in Re Vunapalaiog and Japalik Land, justice Minogue had
mentioned that the registration of tiles exhibits the nearest approach in form which
has yet been made to allodial ownership of land by any system based on the principles
of Feudal tenure. The most prominent feature is that, the title necessity for registration
to the due creation or transfer of any interest in land, causes the system to appropriate
to one of allodial ownership and he regards the system as technically consistent only
with allodial ownership2.

In addition, the moment of registration and by virtue of registration , the state of the
registered proprietor becomes absolutely free from any prior rival claim and it is easy
enough to create interests in them like mortgage or leases that can be dealt in except

1
S17 of Land Registration Act
2
[1971-72] PNGLR 229

3
as prescribed by Land Registration Act or some other overriding statutory provisions .
The principle of indefeasibility of the title has been applied in several cases in Papua
New Guinea. The leading authority was Mudge v Secretary of State for Lands and
others. The court held that, even though the lease may have been issued irregularly
and in breach of the provisions of the Land Act, registration under the Land
Registration Act conferred on the proprietor an indefeasible title subject only to the
exceptions enumerated in section 33 of the Act3.

The individual ownership of the land in the societies in Papua New Guinea has
illustrated an underdevelopment. Since the land is under the name of the indigenous
people of the place and it makes it hard for development for they expect high payment
of compensations on the land use without realizing that, the development was for their
own benefit. Also, there are more than one land owners and the land developers were
confused and not sure who is the real land owner who has the true title of the land
which makes the development very slow in the area. The transformation policy (other
policies being the preservation of the status quo and the transformation policies)
which the Australian Administration initiated in Papua New Guinea on the
assumption that respect for indigenous custom will not meet the needs of the society
in which to an increasing extent as a result of rapid economic progress, the native
people are planting tree crops such as coffee, cocoa and copra and engaging in cash
farming. It was also assumed that native customary tenures were suitable for
subsistence agriculture in which the land was required only for a short term cropping
or food gathering.

In order to reverse this state of affairs, in 1962 the Australian Administration

introduced a system which inaugurated a legislative mechanism for individuality
registered titles controlled centrally by the Administration Land Titles Commission. It
was hoped (this policy) would facilitate the better use of the land by the native people
of the available land, the more orderly handling of all land, the more orderly handing
of all land transaction and the better use of natural resource of the territory. In respect
of the customary land, under Land (Tenures Conversion Act 1963) it provides that, the
citizen has the right to apply in his or her own name for registration of any customary
land or interest in customary land. Provide that, the government acquire the land by
3
[1985] PNGLR387

4
acquisition or conversion of title, compensation must follow in respect of the
extinction of rights held under native custom. The moment after the registration, the
indefeasible title of the land is being applied to the citizen and also he or she has the
overriding interest on the land. This registration also gives the legal ownership of the
land and has all legal rights on all the registered land.

Communal Land may be registered under the Land Registration (Communally Owned
Land Act) 1962 for the same purpose. It must be noted, however, that the tenure
conversion mechanism operates to transform customary land into alienated land
accept in cases involving succession to customary land under customary law.

However, all these Acts have been passed to effect the Transformation Policy were
not fully implemented, therefore Mr Simpson was invited to review the machinery or
the policies. His study and the review were directed towards overcoming the delays in
the system and inefficiency of the machineries. He applied some changes from the
Kenya model and adds some major elements that constituted the Transformation
Policy. He employed elements like Land Adjudication and Demarcation which was
designed to clarify the cloudy titles and bring both state and private owned land to
register to be registered and the Minister would declare an adjudication area in which
all titles, rights and interests in the land will be finally and authoritatively ascertained.

After this process is completed, registration of title or registration follows the

conversion process and the scheme provides for the registered owners as individuals
and given the indefeasible titles to them. From there they have the ownership and the
interest in the land. So, when registration is complete and the proprietor has the tile
and the ownership, there comes the land control which through Land Control Act was
intended to avoid land fragmentation, speculation in land and rural indebtedness.
Through Simpson’s review and policy or the model had changed the Land Tenure
System in Papua New Guinea and it is the current situations of the Land Tenure
System.

5
 BIBLIOGRAPHY

1. Amankwah, H, Mugambwa, J and Muroa, G, Land Law in Papua New Guinea,

Law Book Company Information Service, Sidney 2001.

2. James, R W, Land Law and Policy in Papua New Guinea, Law Reform
Commission Monograph No.5 (Port Moresby.

3. Larmour, Peter Customary Land Tenure; Registration and decentralisation in

Papua New Guinea (IASER 1999)

4. Review of Incorporated Land Groups and Design of a System of Voluntary

Customary Land Registration