LSAGH Publications

Monday, 12th June, 2017Author: LISAGH

Some Criticisms Of The Land Registration Law

First there are provisions on maps and surveys: section 6 empowers the Chief Registrar to direct that the boundaries of any land in a registration district be demarcated. Section 15 makes it mandatory to attach to an instrument for registration "a plan of the land which has been approved and duly signed by the Director of Surveys;" and section 20 enables the registrar to reject an application for first registration if the plan supplied is unsatisfactory to him.

Now, how accurate need the plan be? Who will bear the cost of the survey and preparation of the plans showing the boundaries of the lands in a district? Where a decision of the registrar is based on a map which is found later to be inaccurate is that decision subject to review? Section 121 (1) (c) attempts to deal with this last query; but is that provision adequate? Perhaps reliance will then have to be placed on section 122. But is that avoiding litigation? Section 127 expressly protects the government against any claim for indemnity on account of any error in a survey or in the registry map. Also, it does not, as between a proprietor and any person from or through whom he acquires the land, permit a claim for indemnity in respect of any error in a survey or in the registry map until after a period of six months from the date of registration of the instrument under which the proprietor acquired the land. Why is that? While most of us will agree that some such provisions are necessary for the system to work, can it not be foreseen that the provisions as they are will lead to such a cascade of litigation as to bog down the system in practice?

Secondly, are the provisions on adjudication likely to ensure that the law on land is developed evenly throughout the country? It has long been recognised that the principal difference between the Torrens system and the system we are adopting is that whereas Torrens titles are often governed by a radically different code of substantive law from that which relates to unregistered property, in our system the substantive law of real property is substantially similar in both registered and unregistered conveyancing. Is it going to be possible, for example, as in England to have a transfer by a registered proprietor holding under a void title who can nevertheless transmit a sound title to a purchaser for value?

27 Thirdly, section 19 which lists who may be registered as proprietor of land, and the registrable interests, is one that is commendable. But its sub-section (2) (c) states that the Land Registrar "shall register the State as proprietor of all lands not held by any other proprietor." Does this mean that he may do so if and when the State applies for registration or that the registrar suo motu can proceed to register the State whenever he is satisfied that a piece of land is not held by any other proprietor (ie, where no one is named in the register as such)? I hope it is the former; for it has been established for a long time that every piece of land in this country is owned by someone or some community.

28 Fourthly, the provisions on group ownership may well cause much litigation. Examples may be mentioned here. Section 110 says that a stool, skin or family may be registered as the proprietor of a stool, skin or family land. That seems harmless enough. But the Law here goes on to mention who may represent the group as "its representative for this purpose." It is, of course, well known that a conveyance by the head of any such community without the requisite consents and concurrences of the principal members is voidable and not void.

29 So perhaps it would have been better to reform the law on the communities first. There is a likelihood of some practical problems here causing expensive litigations soon. Allied to this is the case of execution of instruments. Section 93 seems adequate. But shall an instrument be deemed properly executed by the trustees registered under the Trustees (Incorporation) Act, 1962 (Act 106) if it "is sealed with the common seal of that body corporate. . . and attested by the secretary or any other officer... "(as per section 93 (1)(c))if that body's own constitution requires that due execution shall be by the chairman and two other trustees? All these are not difficulties of the kind that should stop us from introducing registration of title now. The regulations under section 134 have not yet been published. They may well aid us to see the way out when they come out.