Judicial Assault on the Citadel of Indefeasibility of Title under the Papua New Guinean Torrens System of Conveyance (Article) [2001] JSPL 10; (2001) 5 Journal of South Pacific Law

Article 2 of Volume 5, 2001

Judicial assault on the citadel of indefeasibility of title under
the Papua New Guinean Torrens System of conveyance

By John Mugambwa*

The principle of indefeasibility of title is one of the main features and attributes of the Torrens System of conveyance. It involves the proposition that once a person is registered as proprietor of a certain estate or interest in land he or she acquires a title that cannot be vitiated except as prescribed in the legislation establishing the system.[i] The indefeasibility principle was designed not only to protect title of the registered proprietor from unregistered interests, but also to save persons dealing with registered land from the trouble and expense of going behind the Register Book in order to investigate the validity of title or possible rival claims to the land.[ii] The aim was to simplify and expedite the process of transfer of title to land. Yet, almost thirty years ago one William Kaputin, then a recent law graduate of the University of Papua New Guinea, made a scathing attack against the operation of the principle of indefeasibility of title in his country.[iii] He claimed that the Tolai people of New Britain's Gazelle Peninsula viewed the principle of indefeasibility with contempt because it frustrated all their attempts to recover land they lost at the hands of the colonial administration. Kaputin charged that the doctrine of indefeasibility was deliberately introduced in PNG by the Australian colonial administration in order to protect foreigners' land titles, which both the administration and the courts knew were acquired by dubious means. He demanded that in the interest of justice for the indigenous people it was necessary to review the operation of this doctrine in Papua New Guinea.