‘Indefeasibility not an excuse’

IN many instances, the Department of Lands and its management has defended its actions or lack of them on a little known area known as indefeasibility.
The PAC undertook to take a closer look at it and its application to Lands Department matters.
Indefeasibility basically means the title, right or claim cannot be annulled or made void.
The secretary for the Department of Lands, Pepi Kimas and his senior officers gave sworn evidence that land given by way of State lease, even if it was done “unlawfully, fraudulently or by reason of misrepresentation or malpractice” could not be reclaimed on the basis that it was indefeasible.
Mr Kimas was of the view that “the State lost all power over both the land and the lessee by reason of the law of indefeasibility”.
In his testimony on Nov 29, Mr Kimas told the PAC: “What I have maintained is that as and when a title is registered by hook or by crook that title remains indefeasible until and unless it is challenged.
“as and when the title is given it is indefeasible and that is the power that neither I nor the minister can cancel.”
The PAC found contrary to this opinion by the secretary. After studying case law over the last 10 years with regard to the law of indefeasibility, the PAC concluded that while this area of the law is a developing one, indefeasibility could not be relied upon in all cases particularly where land leases had been granted “fraudulently or unlawfully”.
Said the PAC: “The National and Supreme Courts have struck down fraudulently or unlawfully issued State leases where such conduct has occurred. In other words, a registered lease obtained or issued in breach of the statutory requirements, does not confer indefeasible title.
“In this sense, the courts have increasingly become the guardians of last resort of the National Estate against the incompetent and/or unlawful conduct of its own department.”
The PAC depended for its conclusion the consideration by Justice Sir Arnold Amet (former chief justice).
Sir Arnold said: “I do not accept that quite clear irregularities and breaches of the(Land Act) provisions should remain indefeasible.
“I believe that, although those irregularities or illegalities might not amount strictly to fraud, they should, nevertheless, still be good grounds for invalidating subsequent registration, which should not be allowed to stand.”
The effect of this ruling and other judgments was to “deprive the Department of Lands and Physical Planning of the ability to hide or excuse its conduct and failures to act, behind the cloak of indefeasibility”, the PAC concluded.