Division 2 of Part XV of the Land Registration Act is where indefeasibility meets the action for possession.
Section 146(1) — the certificate is an absolute bar
Subject to subsection (2), a certificate of title is an absolute bar and estoppel to an action of ejectment against the person named in the certificate as seised of or entitled to the land.
Section 146(5) reinforces it from the other direction: for the purpose of bringing an ejectment action against a registered proprietor, the registration of that person is equivalent to possession by him of the land.
So you cannot sue a registered proprietor for possession simply because you say you have the better right. The certificate answers the claim, unless you fall within one of the exceptions.
Section 146(2) — the eight exceptions
| Who may sue | Against whom |
|---|---|
| (a) a mortgagee | the mortgagor |
| (b) a chargee | the chargor |
| (c) a lessor | a lessee or tenant |
| (d) a person deprived of land by fraud | a person registered as proprietor through fraud |
| (e) a person deprived of land by fraud | a person deriving from or through a person registered through fraud — subject to subsection (3) |
| (f) a person deprived of land by wrong description of land or boundaries | the registered proprietor |
| (g) a registered proprietor under a prior certificate of title | where two certificates cover the same land |
| (h) a registered proprietor under a prior State lease | where two State leases cover the same land |
The list tracks the section 33 exceptions closely: fraud, wrong description or boundaries, and a prior instrument of title. Paragraphs (a) to (c) are different in kind — they are the ordinary enforcement rights of a secured lender or a landlord.
A mortgagee’s action of ejectment is one of the five Part VII remedies, available under section 74(1)(c) before or after exercising the power of sale or entering into possession.
A lessor’s right sits alongside the implied power of re-entry under section 50(b), which arises after six calendar months of arrears or continuing breach.
Sections 146(3) and (4) — the good faith purchaser is safe
This Act does not subject to an action for ejectment a purchaser or a mortgagee acting in good faith and for valuable consideration.
And section 146(4): that protection is not affected by the fact that the vendor or mortgagor was registered through fraud or error, or derives from or through a person registered through fraud or error — whether by wrong description of land or boundaries or otherwise.
This is the provision that decides most cases. Even where land was taken by fraud, once it has passed to a purchaser or mortgagee in good faith for value, ejectment does not lie against them. The chain is broken at that point.
That is why paragraph (e) — suing someone deriving through a fraudulent proprietor — is expressed to be subject to subsection (3). It reaches a volunteer or a party who was not acting in good faith; it does not reach an innocent purchaser for value.
What this means for a dispossessed owner
- Move before the land reaches an innocent purchaser. Once it does, recovery is effectively over.
- Lodge a caveat immediately to stop further dealings — and diarise the three-month lapse, which requires proceedings and written notice to the Registrar.
- Identify your exception precisely. Fraud under (d) or (e); wrong description under (f); a prior title under (g) or (h).
- Plead fraud specifically if that is the ground — it means actual dishonesty brought home to the registered proprietor or their agent, not irregularity.
- If the land cannot be recovered, the claim converts into one for damages under Division 3, ultimately payable out of the Assurance Fund.
Recovering possession from an occupier who is not the proprietor
Section 146 is about suing a registered proprietor. Recovering possession from a tenant, a former tenant or a trespasser is a different question, governed by the general law and by the Summary Ejectment Act (Chapter 202), with the Landlord and Tenant (Miscellaneous Provisions) Act (Chapter 189) in the background.
- Under section 33(1)(f) and (g), a tenancy of three years or less, and a tenancy document where the tenant is in actual occupation, bind you whether or not registered. You may not be able to remove an occupier you did not know about.
- On Government or customary land, unlawful occupation is separately an offence under sections 145 and 146 of the Land Act 1996 — and it is expressly no defence that the entry was under a claim of right.
Customary land
None of this applies to a dispute about customary land, which is not on the Register. Those disputes go to mediation and then the Local and Provincial Land Courts under the Land Disputes Settlement Act (Chapter 45).
Sources
- Land Registration Act (Chapter 191) — ss 33, 50, 74, 82, 146, 150; Part XV
- Land Act 1996 — ss 144–146
- Summary Ejectment Act (Chapter 202)
- Mudge v Secretary for Lands [1985] PGSC 13; [1985] PNGLR 387
- Paga No 36 Ltd v Eleadona [2018] PGSC 17; SC1671
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.