The Registrar of Titles is not a filing clerk. Part XVII of the Land Registration Act gives the office real investigative and corrective powers, and they are exercised regularly.
Section 155 — refusing to receive an instrument
Where the Registrar is of the opinion that an instrument submitted for registration:
- (a) contains matter contrary to law;
- (b) by reason of an omission or misdescription has not been duly completed;
- (c) does not comply with a provision of this Act; or
- (d) contains an error, alteration or erasure,
the Registrar may refuse to receive it, or request that it be amended or completed and re-submitted, or that a fresh instrument be submitted.
Paragraph (a) is the widest. An instrument giving effect to a dealing that is void — for example a transfer of a State lease without Ministerial approval — contains matter contrary to law.
If you disagree with a refusal, the remedy is section 145: require written grounds, and if necessary summon the Registrar to court.
Section 156 — production, evidence and oaths
Where a transaction is about to be effected, the Registrar may:
- require production of all instruments in a person’s possession or control relating to the transaction;
- summon a person to appear and give evidence; and
- administer an oath, or require a declaration of the truth of statements made on examination.
Refusing or neglecting to produce an instrument or allow inspection, refusing or neglecting to give evidence, or knowingly misleading or deceiving the Registrar, is an offence.
Section 157 adds a power to require a plan to be prepared, certified as the Registrar directs and deposited within a period he directs. If a proprietor fails to comply, the Registrar is not obliged to proceed with the registration. Plans so deposited are retained and registered, and the allotment numbers on them may be used to describe the land in later dealings.
Section 158 — dispensing with production of a title
Ordinarily a dealing requires production of the duplicate instrument of title. Where the Registrar sees reasonable cause, he may dispense with production for the purposes of sections 22 and 25 — and may then require proof, by statutory declaration or otherwise, that the person dealing with the land is the registered proprietor.
Where production is dispensed with, the Registrar notes in the memorial that no endorsement has been made on the duplicate, and the transaction is then as valid and effectual as if the endorsement had been made.
The Registrar must give at least 14 days’ notice of his intention to dispense with production, by advertisement in the National Gazette and in at least one newspaper circulating in the country.
This is the protection for anyone holding the duplicate — commonly a mortgagee. Lenders should watch for these notices.
Section 159 — registering an informal document
A notably practical power. Where, in the Registrar’s opinion, significant loss or inconvenience would otherwise be likely to arise, he may register an instrument signed by a registered proprietor even though it is not in the approved form or otherwise in accordance with the Act — and it then takes effect as if it were in registrable form.
Two conditions must both be met (s 159(3)). The document must:
- (a) purport to create an estate or interest for which the Act provides registration; and
- (b) be one which in equity, apart from this Act, would be regarded as vesting the estate, interest or encumbrance in the person intended to take under it.
The reference to a registered proprietor includes a person claiming through or under that proprietor. The Registrar may register the applicant immediately or at the expiration of a period he determines, and may direct other entries, notices and advertisements as he thinks necessary.
Section 159 can rescue a transaction where the paperwork was done badly years ago but the substance is clear and equitable. It is discretionary, and it is not a substitute for doing it properly — but it is worth raising where the alternative is significant loss.
Section 160 — getting an instrument back
Where it appears to the Registrar that an instrument has been wrongly issued or is wrongly held, he may summon the holder to deliver it up. The escalation is unusually strong:
- If the person refuses, neglects, or cannot be found, the Registrar may apply to the Court for a summons to show cause why the instrument should not be delivered up.
- If the person fails to attend, the Court may issue a warrant to have them apprehended and brought before it.
- On appearance, the Court may examine them on oath and order delivery up.
- If they still refuse, the Court may commit them to a corrective institution for up to six months, unless the instrument is sooner delivered up.
Where a person has absconded or cannot be served, or has refused to comply with an order, the Registrar shall — if the circumstances require — issue a fresh instrument to the proprietor as in the case of a lost or destroyed certificate of title, and enter notice in the Register of the issue, the circumstances, and such other particulars as he thinks necessary.
Section 161 — correcting errors
The Registrar may cancel or correct an instrument delivered up under section 160, and in any other case, on such evidence as appears to him sufficient, correct errors or omissions in the Register or an entry in it, or in the duplicate certificate of title.
The Registrar shall not erase or render illegible any words, and shall affix the date of the correction with his initials. The corrected Register or duplicate then has the same validity and effect as if the error had not been made — except as regards an entry made in the Register before the correction.
That final exception matters: correction is not fully retrospective against intervening entries. Someone who dealt with the land on the faith of the Register before the correction is not simply undone.
Section 161(3) adds that where the Registrar is satisfied a matter in a certificate of title does not affect the land, he may record its cancellation.
The limits on the Registrar
- The Registrar cannot override indefeasibility. Section 161 corrects errors and omissions; it is not a power to divest a registered proprietor of a title validly obtained.
- Decisions are subject to the section 145 summons, and to judicial review under section 155(3) and (4) of the Constitution.
- The principles of natural justice under section 59 of the Constitution apply.
Sources
- Land Registration Act (Chapter 191) — ss 22, 25, 33, 145, 155–162; Parts XV, XVI and XVII
- Land Act 1996 — ss 127–129
- Constitution — ss 59, 155
- Mudge v Secretary for Lands [1985] PGSC 13; [1985] PNGLR 387
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.