Amuzu Vrs Okukah [1997] GHASC 1 (26 March 1997)

[1998-99] SCGLR Supreme Court Ghana Law Reports I AMUZU v OKUKAH SUPREME COURT, ACCRA 26 March 1997 AIKINS, CHARLES HAYFRON-BENJAMIN, AMPIAH, ATUGUBA AND SOPHIA AKUFFO J JSC Land registration - Instruments affecting land - Registration - Equitable doc­ trine o f notice and fra u d - Equitable doctrine not abolished by Land Reg­ istry A ctf 1962 (Act 122) - Courts cannot ignore equitable doctrine o f notice in respect o f unconscionable conduct and unjust transactions - L and Registry Act, 1962 (Act 122). Land registration - Instruments affecting land - Registration - Effect - Whether registered document conferring state-guaranteed title - Act 122. Land registration - Instruments affecting land - Registration - Priorities - When later registered instrument having priority over earlier unregistered in­ strum ent - Later purchaser o f land having actual notice that same land in some w ay encum bered by earlier purchase - Later purchaser deemed in equity to have constructive notice o f earlier grant - Purpose o f Land Reg­ istry Act, 1962 (Act 122), s 24(1) - Act 122, s 24(1). Land registration - Instruments affecting land - Registration - Fraud - Defence o f - F raud constituting defence fo r avoiding incidence o f registration if specifically plea ded in terms o f Order 19, rr 6 and 16 - Duty o f appellate court w hen defence not specifically pleaded but clear unpleaded evidence available - H igh Court (Civil Procedure) Rules, 1954 (LN 140A), Order 19, rr 6 an d 1 6 - Evidence Decree, 1975 (NRCD 323), ss 5, 6 and 11. It is provided by section 24(1) o f the Land Registry Act, 1962 (Act 122), that: ”24.1 Subject to sub-section 2 o f this section an instrument other than (a) (b) a will, or a judge’s certificate; first executed after the commencement of this Act shall be of no effect until it is registered." In N ovem ber 1987 Q agreed to sell his land, which had an uncompleted building thereon, to the defendant for 09,000,000. The defendant paid the agreed deposit of 04,500,000, which was to be used by Q to complete the building. The balance o f 04,500,000 was to be paid on completion of the building and the property was thereafter to be transferred to the defendant. The whole transaction was re­ duced into writing. The defendant did not register the document. After a few months when the vendor failed to carry on with the building, the defendant took Supreme Court o f Ghana Law Reports [1998-99] SCGLR possession o f the land and continued with the construction o f the building at his own expense. Subsequently, in or about July 1988, Q, unknown to the defendant, sold the same land for 06,500,000 to the plaintiff, who was a friend o f the defendant's principal and who was not only aware that the defendant had earlier bought the land in question but also aware o f the fraud perpetrated on the defendant by the vendor. A conveyance, exhibit B, was hurriedly prepared and executed for the plaintiff who had the document stamped and registered as required by section 24(1) o f the Land Registry Act, 1962 (Act 122). He then attempted to go into possession but was resisted by the defendant. The plaintiff, relying on the registered conveyance, sued at the circuit court for, inter alia, a declaration of title to the land. The circuit court gave judgm ent for the plaintiff but dismissed the defendant's counterclaim for title and possession to the disputed land. The defendant appealed to the Court o f Appeal, which, applying Asare v Brobbey [1971] 2 G LR 331, CA, unanimously dismissed the appeal on the grounds that the plaintiffs title had, by its registration, become absolute and impregnable, because the provision in section 24(1) o f Act 122 was categorical and rendered ineffective and invalid any instrument or conveyance, like that o f the defendant, which was unregistered; and that the common law principle o f notice and fraud could not be invoked by the defendant to create an exception to the statutory provision. The defendant further appealed to the Supreme Court. Held, unanimously allowing the appeal and granting possession o f the disputed land to the defendant: (1) the Land Registry Act, 1962 (Act 122), did not abolish the equitable doctrines o f notice and fraud; neither did it confer on a registered instrument a state-guaranteed title. Consequently, a later instrument (such as exhibit B in the instant case) could only obtain priority over an earlier one by registration under section 24(1) o f Act 122 if it was obtained without notice and fraud o f the earlier unregistered instru­ ment. Since, in the instant case, the plaintiff had actual notice that the land was in some way encumbered, he would be held to have constructive notice o f the earlier grant to the defendant. The Court o f Appeal had erred in holding otherwise. Crayem v Consolidated African Trust Ltd (1949) 12 WACA 443 and Hochman v Arkhurst (1920) 1 FC 102 applied. Boateng v Dwinfour [1979] GLR360, CA cited. Per A ikins JSC. Since the plaintiff admitted that prior to the sale of the property to him he was aware that the house was being occupied by persons other than the vendor, he was in duty bound to investigate fully the title o f the vendor. Failing such investigation, he must be deem ed in equity to have had notice o f all that a reasonably prudent purchaser would have discovered. Per Charles Hayfron-Benjamin JSC. Asare v Brobbey [1971] 2 G LR 331, CA cannot stand since it did not take into consideration any equitable doctrine or rule which could ameliorate the harshness o f the statute ... While a party with an unregistered document may be unable [1998-99] SCGLR Amuzu v Oklikah to assert a legal title in court, nevertheless the document will take effect in equity and will defeat all claims except the holder of the legal title ... True, the principle of registration has blunted the edge of the doctrine o f notice with respect to transfers of the legal estate in land. Neverthe­ less ... the equitable doctrine of notice cannot be ignored by the courts in circumstances in which the transaction is patently unjust. A court cannot ignore evidence of unconscionable conduct on the part of a subsequent purchaser and decree title in such purchaser even though he has notice - actual, constructive or imputed - of third-party rights and interests in the property he seeks to acquire. Per Ampiah JSC. It is said that equity follows the law, but equity would not permit an Act to be used as an instrument of fraud. Any conduct that borders on fraudulent behaviour should be frowned upon; it must not be encouraged. Per Atuguba JSC. It is manifestly clear that the purpose of the Land Registry Act, 1962 (Act 122), is to provide certainty of informa­ tion about land transactions so as to avoid fraud and the like. It is contrary to this policy objective to allow fraud rather to flourish. Per Sophia Akuffo JSC. Although the need to be a bona fide purchaser without notice is not expressly stipulated in Act 122, once it is accepted that the object of the Act is to afford and facilitate notice to the public o f pre-existing interest in any piece of land, then, it can be validly argued that the objective is achieved when the purchaser has prior notice of such interest even if the instrument covering the interest is unregistered. (2) Per Aikins, Ampiah, Atuguba and Sophia Akuffo JJSC. Fraud would constitute a defence for avoiding the incidence of registration o f title to land. However, to have effect, it must be pleaded specifically as required by Order 19, rr 6 and 16 of the High Court (Civil Procedure) Rules, 1954 (LN 140 A). Per Aikins JSC. Though the issue of fraud was not raised by either counsel in the trial court, this court (as well as the Court of Appeal) has the record and all the evidence at its disposal, and it is entitled to make findings on the issue, and interpretation of any legis­ lation relevant to the issue. Dictum of Adade JSC in Nasali v Addy [1987-88] 1 G L R 143 at 150, SC cited. Per A tuguba JSC. In this case, fraud has not distinctly been pleaded as the practice requires. But in view, especially of the provisions of sections 5,6 and 11 of the Evidence Decree, 1975 (NRCD 323), regard­ ing the reception o f evidence not objected to, it can be said that where there is clear but unpleaded evidence of fraud, like any other evidence not objected to , the court cannot ignore the same, the myth surround­ ing the pleading of fraud notwithstanding. Asamoah v Servodzie [1987- 88] 1 G L R 67, SC andAttavAdu [1987-88] 1 GLR233, SC cited. Supreme Court o f Ghana Law Reports [1998-99] SCGLR Cases referred to: s Okine [ 1987-88] 2 GLR 1, CA. B o a t e n g s Dwinfour[1979] GLR 360, CA. D o n k o r s A lhassan[1987-88] 2 GLR 253, CA. Lysaght v Edwards (1876) 2 Ch D 499. (1) (2) Botchway (3) (4) O d o i\ H am m ond[1971] 1 G LR375,CA . (5) (6) H adley (7) Crayem (8) (9) Amefinu (10) (11) Odametey \C lo c u h [1989-90] 1 GLR 14, SC. (12) Clerical M edical & General Life Assurance Society Carter (1889) s Odametey [1977] 2 GLR 135, CA. H o c k m a n s Arkhurst(1921) FC '20-'21,101. NasalisAddy [1987-88] 1 GLR 143, SC. s London Bank ofScotland L td (1863)3 D J& S M 63. s C onsolidated African Trust Ltd (1949) 12 WAC A 443. 22Q B D 444. C A . (13) Fanny M Carvill River Wear Commissioners Adamson (1876) 1 QBD546. North British Rail Co(1881) 6 AC 114, HL. o s Darko [1977] 1 GLR 476, CA. s Calidonian Rail C A s a r e s Brobbey[1971 ] 2 GLR 331, CA. H am m onds Odoi[1982-83] GLR 1215, SC. (14) (15) (16) (17) Hadleky v London Bank o f Scotland Ltd (1865) 3 D J& SM 70. (18) Ussher (19) (20) Khoury (21) Nartey (22) (23) (24) Akrofi (25) C r o w l y s Bergthail[1899] AC 374. (26) Ashanti Construction Corporation v Bossman [1962] 1 GLR 435, N te m s Ankwandah[1977] 2 GLR 452, CA. M ansah\Asamoah[1975] 1 GLR 225, CA. s Wiresi (1957) 2 WALR 257, WACA. K h o u r y s Khoury(1952) 12 W ACA261,PC. s Azar (1952) 12 WACA 268, PC. s Mechanical Lloyd Plant L td [ 1987-88] 2 GLR 314, SC. SC. (27) (28) Kuenyehia s Archer, Supreme Court, Suit No 5/93, 25 May 1993, H am m onds Odoi[\9&2-&3]2 GLR. 1215; [1982-83] G LR D 129, SC. unreported. (29) National Assistance Board s Wilkinson [1952] All ER 255. (30) A h u m a h sA k o rli(N o 2 ) [1975] 1 G L R 473. (31) Adu v Kyereme [1984-86] 1 GLR 1; [1984-86] GLRD 1, CA. (32) In Re Markham (Deed); Markham sA feku [1987-88] GLR 1; [1987- 88] GLRD 9. D jom oas Amargyei[\96Y] 1 GLR 170, SC. (33) (34) Okofoh Estates L td s Modern Signs Ltd [1996-97] SCGLR 224. (35) (36) (37) Samarasinghe s Sbaiti [ 1977] 2 GLR 442, CA. AsamoahsServordzie[19S7-SS] 1 GLR67; [1987-88] GLRD 10,SC. AttasAdu[1987-88] 1 GLR 233; [1987-88] GLRD 26, SC. [1998-99] SCGLR Amuzu v Oklikah (38) SchandorfvZ eini[1976] 2 GLR418,CA. (39) Abdilm asiahv Am arh[1972]2GLR414. (40) Surakatu v Dende (1941) 7 WACA 50. (41) Greaves v Tofield (1880) 14CRD563. (42) Wyattv Barwell(\%\5) 19 Ves435. (43) , M a h a m a vS o li[1977] 1 GLR205,CA. (44) Maclean vA kw ei[ 1991] 1 GLR54,CA. (45) Fretete Odomankoma Jewellery Ltd v Bannerman [1989-90] 1 GLR 534, CA. Appeal from the unanimous decision of the Court of Appeal, dismissing an appeal by the defendant from the decision of the Circuit Court, Accra, which had granted, inter alia, the plaintiffs claim for declaration of title to and posses­ sion o f the disputed land and had thus dismissed the defendants counterclaim for title to and possession o f the same land. The facts are sufficiently stated in the judgm ent o f Ampiah JSC. / Kwami Tetteh (with him Dr Baku) for the defendant-appellant. Amesimeku and Nyahe (led by EDKom) for the plaintiff-respondent. A IK IN S J S C . O n 5 M arch 1997 this court gave a unanimous judgment, allo w in g th e ap peal o f the defendant-appellant (hereafter called the de­ fendant), settin g aside th e ju d g m en t o f the Court o f Appeal together with th a t o f th e trial c irc u it court, and granting possession o f the disputed h ou se to th e d efe n d an t and perpetual injunction restraining the plaintiff- re sp o n d e n t (h e re a fte r called the plaintiff) his agents, privies and assigns from in te rfe rin g in any w ay w ith the disputed property. I now give my reaso n s fo r co n cu rrin g w ith the decision o f the court. T h e p la in tiff in this case secured judgm ent in the Circuit Court, Accra, on 16 F e b ru a ry 1994. T he learned trial j udge based his j udgment on the fa c t th a t th e title d eeds o f the plaintiff, exhibit B, had fully described his ro o t o f title , w a s stam ped and registered under the Lands Registry Act, 1962 (A c t 122), w h ile th e defendant's document, exhibit D, had not de­ scrib ed h is ro o t o f title in full, and, though duly stamped, had not been re g istered u n d e r A c t 122, and, therefore, was caught by section 24(1) o f th e A ct. H o w ever, th e trial ju dge found as a fact that the plaintiff was aw are o f th e defendant's^ prior interest in the property at the time the p la in tiff p u rc h a se d it. D is sa tis fie d w ith th e decision o f the trial judge, the defendant ap­ p ealed to th e C o u rt o f A ppeal, w hich unanimously dismissed the appeal; an d , as a resu lt, th is court is called upon by the defendanfto overturn the d e c isio n o f th e C o u rt o f A ppeal. The Court o f Appeal held that: Supreme Court o f Ghan^JLaw Reports [1998-99] SCGLR ( a ) e x h ib it D w a s a n in stru m e n t u n d e r sectio n s 24( 1) and 36 o f A c t 122, a n d s in c e it w a s n o t re g istered , th e p la in tiffs deed had priority; th o u g h th e p la in tiff h a d n o tice o f th e defen d an t's interest (b ) a n d p o s se ss io n , y e t th e p ro v isio n s o f 2 4 (1 ) are so categorical th a t th e c o m m o n law p rin c ip le s o f n o tic e and fraud cannot be in v o k e d to c re a te e x ce p tio n s; and ( c ) e v e n th o u g h B oateng v D winfour [1979] G L R 360, CA a n d B otchw ay v Okine [1987-88] 2 G L R 1, C A also establish th a t th e e q u ita b le d o c trin e s o f n o tic e and frau d have n ot been a b o lis h e d , th e y a re d istin g u ish ab le , in th e sen se th a t th e defend­ a n t c a n n o t p ro p e rly b ase his case on frau d in th e absence o f p lead in g and particularising the fraud during the trial or by am end­ m e n t b e fo re it co u ld b e re lie d upon. Secondly, th o u g h th e con­ d u c t o f th e p la in tiff m ay b e d e sc rib e d as b ein g unconscionable o r w ith o u t sc ru p les h e can h ard ly be said to have acted fraudu­ len tly, an d th a t th e c o n d u ct o f th e v en d o r could n ot be attributed to th e p lain tiff. H o w e v e r, th e C o u rt o f A p p eal fo und as a fact that: (i) th e plaintiff, h is re p re s e n ta tiv e in G h an a, and ag en t had p rio r know ledge o f D otse's p u rc h a s e th ro u g h th e d e fe n d an t, and p o ssessio n o f th e disputed prop­ erty ; a n d (ii) w h e n th e d e fe n d an t stated c ateg o rically th a t "the p la in tiff w a s a w a re th a t D o tse b o u g h t th e p ro p e rty in d isp u te," he w as not cross- e x a m in e d o r in an y w ay c h allen g e d on th ese averm ents. T he C ourt o f A p p e a l th e re fo re re c o m m en d e d th a t A c t 122 d eserv es urgent attention an d re v ie w "th at w o u ld m eet th e hardships encountered by innocent pur­ c h a s e rs o f lan d w ith o u t d oing vio len ce to th e integrity o f the L and R egis­ try re g im e ." T h e d e fe n d a n t raised very im p o rtan t thought-provoking legal issues in hi s first fiv e g ro u n d s o f appeal, nam ely: (a ) th e C o u rt o f A ppeal erred in hold in g that the p la in tiff w as e n title d to th e reliefs so u g h t even though he had notice o f the p rio r in te re st and p o ssessio n o f th e defendant; (b ) th e C o u rt o f A p peal m isd irected its e lf by non-direction on th e p rin c ip le th a t even if an eq uitable interest in a property is c o n ta in e d in an un reg istered docum ent, a subsequent purchaser w ith th e n o tice o f such eq u itab le interest takes the legal title su b je c t to equity; [1998-99] SCGLR Amuzu v Oklikah - Aikins JSC (c ) the C ourt o f Appeal erred in not applying the principle that section 24 o f A ct 122 did not render an unregistered docum ent void and that the equity recorded therein also did not becom e void and a purchaser with notice o f such interest would become charged w ith notice o f the equity; (d) the C ourt o f Appeal erred in overlooking the principle that registration under Act 122 does not confer title where there is none and that a subsequent buyer acquires no interest w hatso­ ever in law unless he is a bona fide purchaser for value w ithout notice; and the C ourt o f Appeal erred in holding that Act 122 protects a (e) purchaser w ho buys with notice o f prior purchase o f the same property. L ater tw o further grounds o f appeal were filed by the defendant, namely: the learned judges below erred in holding that exhibit D is (i) an instrum ent w ithin the meaning and ambit o f Act 122; and the C ourt o f Appeal erred in raising suo motu the pleading (ii) p o in t th at the defendant ought not to be heard on fraud because he did not plead fraud. T he m ain reason for the C ourt o f Appeal’s dismissal o f the appeal is th a t th e defendant's document, exhibit D, is an instrument under sections 24(1) and 36 o f A ct 122, and that it was caught squarely under A ct 122 as it w as not registered vis-a-vis the plaintiffs title deed w hich w as reg­ istered. B robb ey JA said in his judgment: "M r K w am i Tetteh was right in his contention that the de­ cided cases seem to draw a distinction between the tw o m ean­ ings assigned to the word "affect" in section 36. In Donkor v Alhasscm [1987-88] 2 GLR 253, CA this court held that a re­ ceipt did not transfer interest. At least that provided an instance o f th e circum stance when a document may be said to relate to or concern land but will not necessarily transfer interest in the land. In the instant case, exhibit D is explicit on its face by the words used that title in the disputed property will be passed in future." (The emphasis is mine.) T he learned ju stic e continued later: "This is a clear case in which law and equity conflict. T he Supreme Court o f Ghan^JLaw Reports [1998-99] SCGLR e q u ity in th e c a se is th e re su ltin g tru st w h ich gave rise to the e q u ita b le in te re st u p o n p a y m e n t o f th e c4.5 m illion by D otse to th e vendor. T h e e q u ita b le in te re st w as in w ritin g b u t it w as not re g istered . a nd A c t veys no valid title even though it was prior in time. T he equi­ ta b le in te re st c re ate d in e x h ib it D th e re fo re conveyed no valid title ." (T h e e m p h asis is m in e.) B y all 122, section 24(1), that unregistered interest con­ the authorities referred to in this judgm ent O n th e sa m e issue, A freh JA h as th is to say: v "E xhibit D is an agreem ent to transfer an interest in land. T h e d e fe n d a n t re lie s u p o n it for his counterclaim for a d e c la ra tio n o f title to th e d isp u te d property. A nd in argum ent in th e c o u rt b e lo w and b e fo re th is court, co unsel for th e defendant a rg u e d th a t th e im m ed iate e ffe c t o f e x h ib it D as a bind in g con­ tra c t w a s to p ass th e eq u ita b le title in th e land to the purchaser, th e d efen d an t. In m y o pin io n , even applying th e interpretation o f th e w o rd s "affe ctin g land" as m ean in g tra n sfe rrin g o r "m oving title ," e x h ib it D is an in stru m e n t u n d er section 36 fo r it purports to create an interest in land. (T h e e m p h a sis is m in e.) C learly , th e re is a co n fu sio n o f th o u g h t here. W hile B robbey JA is saying th a t e x h ib it D is e x p lic it o n its face th a t title in th e disputed property w ill b e p a s s e d in fu tu re , A fre h JA says th a t e x h ib it D is an agreem ent to tra n s fe r a n in te re s t in land, and th a t th e e x h ib it is an in strum ent under s e c tio n 3 6 fo r it p u rp o rts to create an in terest in land. W hich dictum is c o rre c t in law ? S e c tio n 36 o f A c t 122 sim ply d efin es "instrum ent" as "any w riting a ffe c tin g lan d situ a te in G hana." T h e q u estio n is: does ex h ib it D purport to tra n s fe r an in te re st in land? To m e it do es not. A cco rd in g to th e inter­ p re ta tio n o f A freh JA , because e x h ib it D is a w ritin g affecting land situ­ ate in G h a n a, b y h is in terp retatio n o f section 36 o f th e A ct, th e ex hibit c re a te s a n in te re st in land. T h is is a statem en t based on fallacy. The le a rn e d ju d g e su p p o rts his arg u m en t w ith th e dictum o f A zu C rabbe JA a t p 391 o f h is ju d g m e n t in Odoi v Ham mond [1971] 1 G L R 375, CA. E v en th o u g h it m ay be said th at ex h ib it D is a docum ent in w riting affect­ ing lan d situ a te in G hana, it is n o t a deed o r a conveyance. It does not p u rp o rt to c re a te an in terest in land. P aragraph 1 o f the agreem ent (ie [1998-99] SCGLR Amuzu v Oklikah - Aikins JSC exhibit D ) talks about the purchase money of the property, ie c9,000,000; paragraph 2 the undertaking o f the vendor to complete the house within tw o m onths from the date o f the agreement; paragraph 3 talks about the purchaser paying the balance o f the purchase money, ie c4,500,000 to top up th e c4,500,000 down payment on completion of the house. The paragraph continues: "The purchaser paying the balance of this purchase- m oney shall be let into possession o f the said property." Then comes paragraph 4 w hich states: "4. The vendor shall within fourteen days from the date h e re o f deliver and surrender to the solicitors for the purchaser M essrs Fugar and Company of Kuottam House, Kojo Thompson Road, Tudu the title deeds on the property." (T he em phasis is mine.) It is clear from the foregoing that exhibit D relates to the surrender o f the title deeds on the property at a future date, ie fourteen days after the purchaser has been let into possession, as correctly stated by Brobbey JA , vis-a-vis a conveyance (or title deed) in writing by which an interest in land is transferred. Azu Crabbe JA deals with the latter in the passage quoted by A freh JA, ie at p 391 o f the judgment in Odoi v Hammond (supra). T he passage reads: "In section 36 it is provided that, unless the context other­ w ise requires, 'instrument' means any writing affecting land situ­ ate in G hana, including a judge's certificate and a memorandum o f deposit o f title deeds. Surely, exhibit E is a "writing affecting land situate in G hana,"for it purports to confirm or revive an interest in land, and, therefore, it is caught squarely by section 24." (T he em phasis is mine.) B y this reasoning, Azu Crabbe JA is not saying that because exhibit E is a "w riting affecting land situate in Ghana", it necessarily purports to confirm or revive an interest in land, and, therefore it is caught squarely by section 24. W hat I understand him to be saying is that because exhibit E purports to confirm or revive an interest in land, is a writing affecting land situate in Ghana, and therefore caught by section 24. Exhibit D in the instant case does not purport to confirm or revive or create an inter­ est in land. H ence Afreh JA was in error when he stated in his judgment Supreme Court o f Ghana-Law Reports [1998-99] SCGLR that: "E x h ib it D is an in stru m en t u n d e r sectio n 36 fo r it purports to create an in te re st in land." B ro b b e y JA 's d ic tu m w a s n o t free from e rro r either. T he learned ju d g e cited D onkor v Alhassan [19 87-8 8] 2 G L R 254, C A to show that u n lik e e x h ib it D , a re c e ip t did n o t tra n sfe r interest, stressin g th at that case p ro v id e d an in sta n ce o f th e c irc u m stan c e w h en a d o cu m en t m ay be said to re la te to o r c o n c e rn land b u t w ill n o t n e ce ssa rily tra n sfe r interest in th e land. In o th e r w o rd s, if e x h ib it D had been a re c eip t or had not b een re d u c e d into w ritin g , it w o u ld have been tak en o u t o f th e am bit o f se c tio n 2 4 (1 ) o f A c t 122. In D onkor v Alhassan (su p ra) it w as held (as stated in th e h e a d n o te a t p 2 5 4 ) that: "(1) th e receip ts, e x h ib its A and B, w ere not m eant to trans­ fe r b y th e m se lv e s any in terests in land b u t only evidenced pay­ m e n t in p u rsu a n c e o f an ag re em e n t to tra n sfe r an interest in la n d . T h e y w e re th e re fo re n o t req u ired to be registered under th e L a n d R e g istry A ct, 1962 (A c t 122), s 2 4(1) to be effective. (2 ) S in ce th e a g re em e n t b etw een th e p arties w as one for th e tra n s fe r o f an in te re st in land its en fo rceab ility depended u p o n w h e th e r o r n o t it w as in w ritin g and satisfied the require­ m e n ts o f section 2(a) o f th e C onveyancing D ecree, 1973 (N R C D 175). On the evidence, the receipts exhibits A and B, showed the paym ent o f money by the respondent to the appellant fo r the transfer o f the appellant's interest in the house, both had b e e n sig n ed by th e ap pellant, and w ere clear as to th e intention o f th e p a rtie s ... (4 ) S ince th e re had b een full p ay m en t for an identifiable h o u se an d all th a t w as left to be done w as th e execution o f an in stru m e n t o f tran sfer to th e respondent, provided there had been no frau d , duress or unconscionability, the court could enforce the c o n t r a c t ..." T h e p a rtic u la rs o f the re c eip t in the Donkor case can be gleaned from th e fo reg o in g holdings, nam ely, holdings (1), (2) and (4). A nd the particu­ lars fit in h a rm o n io u sly w ith th e p articu lars in ex h ib it D in the instant case, n am ely : e x h ib it D w as n o t m eant to tran sfer by its e lf any interest in (i) th e d isp u ted p rop erty b u t only evidenced paym ent in pursuance o f an ag reem en t to tra n sfe r an interest in land; [ 1 9 9 8 -9 9 ] S C O J L R A m u z u v O k lik a h - A ik in s JS C (if)the agreement between the defendant and the vendor was o n e fo r the transfer o f an interest in land, i f certain conditions are fulfilled, but does not per se transfer an interest in land; and (iii) there had been part payment for the identifiable house, and all that was left was for the vendor to complete the house w ithin t w o m on th s from the date o f the agreem ent, paym ent o f the bal­ a n c e and the execution o f an instrument o f transfer to the d e­ fe n d a n t. W h a t then is the differen ce betw een the receipts in the Donkor case a n d e x h ib it D in the instant case for the receipts to qualify to be taken o u t o f th e a m b it o f section 24(1) o f A ct 122 and not exhibit D? In m y v ie w , in a sm u ch as the receip ts are not caught by section 24(1) o f the A c t, e x h ib it D to o ca n n o t be caught b y that section, and for that alone the a p p e a l m u s t su c c e e d . H o w e v e r , th e r e a re o th e r is s u e s to be c o n s id e r e d . F o r e x a m p le w h e th e r th e p l a i n t i f f h a d p r io r n o tic e o f the defendant's e q u ita b le in te re s t in th e d i s p u t e d p r o p e r ty a n d a lso o f th e fraud p e r p e tr a te d b y th e v e n d o r. T h e r e is a m p l e e v i d e n c e o n re c o rd th a t the p la in tiff a n d /o r h is r e p r e ­ s e n t a t i v e o r a g e n t w e r e a w a re o f th e p rio r p u rc h a se o f th e p r o p e r ty in d i s p u t e b y t h e d e fe n d a n t, a n d th a t th e d e fe n d a n t w a s in o c c u p a tio n o f th e h o u s e a t t h e t i m e th e p l a i n t i f f n e g o tia te d to b u y th e p r o p e r ty . Y v o n n e O d o i e y S a c k e y ( t h e f i r s t p l a i n t i f f w itn e s s ), a g e n t o f th e p l a i n t i f f , p u t it d e a r l y in t h e f o l l o w i n g d ia lo g u e : "Q Did you ask the vendor to give you the identity of w h o h a d made part payment? A He told us he was a friend to Dr Oklikah. Q D id you ask him? A Yes but he was reluctant to give us the name. And on hear­ ing that the person who was purchasing the property was [the friend of] the plaintiff [we] told the vendor to try and get him the house next door to buy. rhe vendor (the second plaintiff witness) also made the following state- ent: "Q In any case it was Mr Dotse who first made a request... in respect o f the payment o f that property and no one else? It was M r Dotse. A Q A Yes A m uzu on behalf o f D otse." B y C ol Amuzu on behalf o f Mr Dotse? Supreme Court o f Ghana . Law Reports [1998-99] SCGLR T h e e v id en c e o f th e d e fe n d a n t b e fo re th e trial co u rt w as to the ef­ fe c t th a t in re sp o n se to an a d v e rtise m e n t by him th a t he and one M r Y om egbe w e re look in g fo r lan d ed p ro p e rty to p u rch ase, th e vendor, M r C le m e n t Q u a rte y -P a p afio , to o k th e m to th e d isp u ted pro p erty ; and after in sp ec tio n th e y c am e b a c k to A c c ra to b arg ain fo r th e p u rch ase o f the prop erty. T h e d e fe n d a n t said inter alia: "W e settled on c9 m illio n as th e p u rch ase price w hen it w as fu lly c o m p le ted . Q u a rte y -P a p afio w as to fix th e m aterials into th e b u ild in g fo r com pletion. W e a g re ed to p ay c4.5 m illio n a t th e tim e; and the balance o f c4.5 m illio n a fte r all th e se h av e been fixed. W e p u t th e m in to w ritin g an d th e law yer signed it (exhibit D )." T h e law is se ttle d th a t th e m o m e n t such a v alid c o n tra ct for sale is c o n c lu d e d , th e v e n d o r b eco m es in e q u ity a tru stee fo r th e p u rch aser o f th e e sta te so ld a n d th e b en eficia l o w n e rsh ip passes to th e purchaser. H o w e v e r, th e v e n d o r h a s th e rig h t to th e p u rch ase m oney (a charge or lie n o n th e e s ta te fo r th e sec u rity o f th a t p u rch ase), and also a right to re ta in p o s s e s s io n o f th e p ro p e rty u n til th e p u rch ase m oney is paid, o f c o u rs e p ro v id e d th e re is no e x p re ss c o n tra ct as to th e tim e o f delivering p o sse ssio n : se e th e dictu m o f Jesse l M R in Lysaght v Edwards (1876) 2 C h D 4 9 9 a t p 5 06. A t p 507 o f th e re p o rt th e M aster o f R olls explained w h a t a "v a lid c o n tra c t" is. H e said: "... 'V alid c o n tract' m ean s in every case a co n tract sufficient in fo rm a n d in su b stan ce, so th a t th e re is no ground w hatsoever for s e ttin g it a sid e as b etw een th e v en d o r and p u rch aser - a contract b in d in g on both parties." T h e law is a lso c le a r th a t upon en terin g into such clear valid contract for sale, th e c o u rt w ill n o t allow th e v e n d o r to tra n sfe r afterw ards the legal e sta te to a th ird p e rso n , though such th ird person w ould be affected by l is p en d en s. T h e p ro p e rty is in such a situation (in equity) transferred to th e p u rc h a se r b y th e co n tract, and th e v en d o r w ill not be perm itted to d eal w ith th e p ro p e rty so as to inconvenience him: see also the dictum o f T u rn e r L J in Hadley v London B ank o f Scotland Ltd (1865) 3 D J & SM 63 at p 70, w h ich w as cited w ith approval in Lysaght v Edwards [1998-99] SCGLR Amuzu v Oklikah - Aikins JSC T h e learn ed editors o f Snell's Principles o f Equity (27th ed) at p •A 188 also clarifie d th e situation as follows: 11 A s soon as a specifically enforceable contract for sale o f land is m ade, the purchaser becomes the owner o f the land in equity, and the vendor becomes a constructive trustee o f the land fo r th e purchaser, subject in each case to their respective rig h ts and duties under the contract." T his has been given statutory authority by primary legislation in section 3(1 )(b) o f o u r C onveyancing D ecree, 1973 (NRCD 175), which dis­ penses w ith th e requirem ent o f evidencing such contract for sale in writ­ ing signed b y th e person against whom the contract is to be proved, for it to be en fo rc ea b le in a court o f com petent jurisdiction. It is n e ce ssa ry fo r this court to emphasize that a later instrument can only o b tain p rio rity over an earlier one by registration as required by section 2 4 (1 ) o f A ct 122 if it w as obtained without fraud and without notice o f th e e arlier unregistered instrument. Where a party has actual notice th a t th e p ro p erty w as in some way encumbered, he would be held to have c o n stru ctiv e notice o f all that he would have discovered. In the instan t case, since th e p la in tiff adm itted that prior to the sale o f the prop­ erty to h im h e w as aw are th at the house was being occupied by persons other than th e vendor, he w as in duty bound to investigate fully the title o f the vendor. F ailin g such investigation before purchasing the property, he m ust be d eem ed in equity to have had notice o f all that a reasonably prudent p u rc h a se r w ould have discovered. The plaintiff cannot be said to be an in n o c en t pu rch aser for value w ithout notice. The property was encu m bered by th e contract for sale, and as that contract had not been term in ated , th e p ro p erty could not be deemed to be legally or properly back to tender. T h e case o f Crayem v Consolidated African Trust Ltd (1949) 12 W A CA 443 review ed a num ber o f cases (including Hockman \Arkhurst (1921) F C *20-'21 ,1 0 1 ), w hich dealt with priority between two leases o f the sam e land b y th e sam e grantor to two different persons, and arrived at th e co nclusio n th a t a later instrument could by registration obtain prior­ ity o v e r an e a rlie r one only if it w as obtained without fraud and w ithout n otice o f th e e a rlie r unregistered instrument. Lemey JA, w ho delivered the ju d g m e n t o f th e court referred to, with approval, the following dic­ tum o f N e ttle to n J relative to the law on the subject at p 105 o f the Hockm an c ase : Supreme Court o f Ghana. Law Reports [1998-99] SCGLR "N ow it is an e le m e n ta ry p rin c ip le o f law th a t dat quod non habit, in o th e r w o rd s a v e n d o r o f land can give no b e tte r title th a n h e p o sse sse d h im self, an d if th e Stool had as a fa c t sold to th e P la in tiff as he alleg es in 1914 (rem aining in law a c o n stru c tiv e tru ste e fo r him un til h is legal estate w as perfected by c o n v e y a n c e ) a su b se q u e n t co n v ey an ce b y th e sam e Stool o f th e sam e p ie c e o f lan d to a n o th er party, ie, th e D efendant, w ould c le a rly n o t av ail th e latter. B u t if th e D e fen d a n t bought the land as th e D e fe n d a n t co n ten d s, fro m th e Stool w ith o u t notice actual o r c o n stru c tiv e o f th e sale to th e P la in tiff, and obtained a proper a ss u ra n c e in th e sh a p e o f a c o n v ey a n c e as a bona fid e pur­ c h a s e r fo r v a lu e , an d w ith o u t b e in g a p arty to any fraud, and w ith o u t n o tic e a n d re g istered it in th e L and Registry, the position is a lte re d In th e Hockm an case, H o ck m an bo ught a p lo t o f land from th e O m anhene o f S e k o n d i in 1914 a n d p a id fo r it, b u t he g ot no deed th en , and he w ent u p c o u n try le av in g th e p lo t ly in g vacant. In 1918 th e O m anhene's deputy so ld th e sam e la n d to A rk h u rst an d e x ecu ted a deed in his favour, w hich d e e d w a s re g is te re d as N o 4 4 8 /1 9 1 8 . H o ch m an returiied in 1919 to find A rk h u rs t in p o sse ssio n . H e th e n o b ta in e d a deed from th e O m anhene w h ic h h e re g is te re d as N o 4 0 7 /1 9 1 9 . H o ch m an sued A rkhurst in the n a tiv e trib u n a l an d o b ta in e d ju d g m e n t. A rk h u rst appealed to the P rovin­ cial C om m ission er, w ho reversed th e decision o f th e tribunal on the ground th a t th e e v id e n c e did n o t ju s tify th e trib u n al fin d in g th a t A rkhurst pur­ c h a s e d w ith n o tic e o f H o ch m an 's claim to th e property. T he Full C ourt a g re e d w ith th e d ecisio n o f th e P ro v in cial C om m issio n er and held that, a s A r k h u r s t p u rc h a s e d a n d re g is te r e d h is d e e d w ith o u t n o tic e o f H o c h m a n 's c la im , th e p rio r re g istratio n o f A rkhurst's deed gave him pri­ ority. I a m n o t u n m in d fu l o f th e d ictu m o f A nnan JA , w ho delivered the ju d g m e n t o f th e c o u rt p 144, w h e re h e said: in Am efinu v Odametey [1977] 2 G L R 135, C A at "T h e p o in t o f sig n ifican ce is th a t section 24 o f A ct 122 is a n e w p ro v isio n and th ere w as no eq u iv alen t enactm ent in previ­ o us legislation and it is this innovation w hich invalidates the basis o f th e d e c isio n in Crayem v Consolidated African Selection Trust (s u p ra ).” [1998-99] SCGLR Amuzu v Oklikah - Aikins JSC H is d ictu m o u g h t to be approached w ith caution. I must point out that the Crayemju d g m e n t w as no t based only or simply on priorities o f registra­ tion o f th e instru m en ts. T here w ere other issues which were taken into co n sid eratio n . T h e case held, inter alia, as reported in the headnote that: "(i) T h e language o f the Gold Coast Land Registry Ordinance c a n n o t b e construed as giving absolute priority to an instrument b y re a so n only o f its registration; (ii) a later instrum ent can by registration obtain priority over an e a rlie r one o nly if it w as obtained w ithout fraud and w ithout n o tic e o f th e earlier unregistered instrument; (iii) a ten an t's occupation or possession is constructive notice o f th a t te n an t's rig ht to a purchaser, mortgagee or lessee o f the property; (iv) w h e re a ten an t in possession holds under a lease, a party w h o p ro p o ses to take a lease o f the same land is bound to en­ q u ire on w h a t term s th e lessee is in possession, and the fact that th e landlord m isinform s him o f the contents o f the lease does not re lie v e h im o f th at onus." E ven a casu al exam ination o f the provisions o f the A ct and those o f its p re d e c e sso r w ill show that section 24 o f the A ct is not a com plete inno vation. S ectio n 21 o f th e Land Registry Ordinance, Cap 133 states: "2 1 (1 ) E very instrum ent executed on or after the 24th day o f M arch , 1883 (except a w ill, and except a judge's certificate sig n ed b efo re th e com m encem ent o f this Ordinance) shall, so fa r as regards any land affected thereby, take effect as against o th e r instrum ents affecting the same land from the date o f its reg isratio n : P rovided that every such instrument shall take ef­ fe c t from th e d ate o f its execution, if registered w ithin such o f th e fo llo w in g periods as shall be applicable to it, that is to say - In the case o f an instrum ent executed at a place w here (a) it is registered, the period o f ten days from its date; (b) G old C oast, the period o f sixty days from its date; In th e case o f an instrum ent executed elsew here in the In the case o f an instrum ent executed out o f the Gold (c) C oast, the period o f three months from its date ... (2 ) N o th in g in this O rdinance contained shall operate to Suprem e Court o f G hana Law Reports [1998-99] SCGLR p r e v e n t a n y i n s tr u m e n t... w h ic h , u n d e r th e e x p re s s p ro v is io n o f a n y O rd in a n c e ... ta k e s e ffe c t fro m th e d a te o f its e x e c u tio n , fro m s o ta k in g e f f e c t ..." A n d s e c tio n 2 4 o f A c t 122 a lso s tip u la te s : " 2 4 (1 ) S u b je c t to s u b -s e c io n (2 ) o f th is s e c tio n , an in stru ­ m e n t o th e r th a n , ( a ) a w ill, o r (b ) a ju d g e 's c e rtific a te , f ir s t e x e c u te d a fte r th e c o m m e n c e m e n t o f th is A c t s h a ll b e o f no e f f e c t u n til it is re g is te re d . (2 ) N o th in g in th is A c t sh a ll o p e ra te to p re v e n t a n y in stru - m e n t w h ic h b y v irtu e o f a n y e n a c tm e n t, ta k e s e f f e c t fro m a p a r tic u la r d a te fro m so ta k in g e ffe c t." — A n d a s p o in te d o u t b y A n n a n J A in h is ju d g m e n t in the A m efinu c ase , s e c tio n 2 6 o f A c t 122 (w h ic h d e a ls w ith th e e ffe c tiv e d a te o f re g is tra tio n o f in s tru m e n ts d e p e n d in g o n w h e n a n d w h e re it w a s e x e c u te d a n d re g is ­ te r e d a n d o th e r m a tte rs ) h a s n o t, in s u b s ta n c e , c h a n g e d th e ru le s o f p r io r ity o f r e g is te r e d in s tru m e n ts as s e t o u t in s e c tio n 21 o f th e L a n d R e g is tr y O rd in a n c e , C a p 133. F ro m th e fo re g o in g p ro v isio n s, h o w c a n o n e sim p ly b e ju s tifie d to say th a t s e c tio n 2 4 o f A c t 122 w a s so n e w a p ro v is io n th a t th e re w a s no e q u iv a le n t e n a c tm e n t in p re v io u s le g is la tio n fo r it to in v a lid a te th e d e c i­ s io n in C rayem v C o nsolid ated A frica n Trust (s u p ra ) b y its in n o v a tio n ? In m y v ie w , w h a te v e r in n o v a tio n w a s in tro d u c e d b y A c t 122, s 2 4 , c a n ­ n o t h a v e th e e ffe c t th e le a rn e d ju d g e s e e m s to p u t a c ro ss. H o w ev e r, to m e , a s fa r a s th e o th e r h o ld in g s o f th e C rayem c a s e a re c o n c e rn e d ( p a rtic u la rly on th e q u e s tio n o f fra u d a n d n o tic e ), th a t c a s e is p e rfe c tly g o o d law , a n d I w o u ld u p h o ld it. H a v in g said th a t I w o u ld like to p o in t o u t th a t A c t 122, like its p re d e c e s s o r, C a p 133, d id n o t a b o lis h th e e q u ita b le d o c trin e s o f n o tic e a n d fra u d ; n e ith e r d id it c o n fe r o n a re g is te re d in s tru ­ m e n t in th e n a tu re o f e x h ib it B in th e in s ta n t c a se , a sta te -g u a ra n te e d title . C o n se q u e n tly , th e le arn ed tria l ju d g e and th e ir lo rd sh ip s o f th e C o u rt o f A p p e a l e rre d in h o ld in g th a t th e p la in tif f s title b e c a m e a b so lu te and im p re g n a b le w ith re g is tra tio n ; for, th e p la in tiff w a s a ffe c te d w ith c o n ­ s tru c tiv e n o tic e a n d w a s b o u n d b y th e c o n tra c t fo r s a le b e tw e e n th e d e fe n d a n t a n d th e v e n d o r (th e s e c o n d p la in tiff w itn e ss): see B oateng v D w infour [19 79] G L R 3 60. W h a t is m o re , it is c le a r fro m th e e v id e n c e th a t th e p la in tiff w a s a w a re o f th e fra u d e a rlie r p e rp e tra te d by th e v e n ­ th e d e f e n d a n t ; h e b e c a m e d e e p ly im p lic a te d in th e frau d and d o r o n [1998-99] SCGLR Amuzu v Oklikah - Aikins JSC could be ch arg ed w ith conspiracy to defraud under section 34 o f Act 122. A s B ro b b ey JA put it: "The position of the plaintiff in the instant case is w o rse because on the facts, he behaved and acquired the prop­ erty u n d er p erh ap s unconscionable circumstances.” A d m itted ly, by O rder 19, rr 6 and 16 o f the High Court (Civil Proce­ dure) R u les, 1954 (L N 140A), fraud must be specifically pleaded and p articu lars given in the pleading. The defendant did not plead it. It was raised by th e defendant's counsel in his argument in the Court o f Appeal and again in this court, and counsel for the plaintiff has contended that as the issu e o f frau d w as raised on appeal, it must be dismissed. I must say th a t th o u g h th e issue w as not raised by either counsel in the trial court, this co u rt (as w ell as the C ourt o f Appeal) has the record and all the eviden ce a t its disposal, and it is entitled to make its own inferences and to m ake fin d in g s on the issue, and interpretation o f any legislation rel­ evant to th e issue: see the dissenting voice o f Adade JSC in Nasali v Addy [1987-88] 1 G L R 143, SC, w ith which I agree. H ow ever, I do not propose to decide this appeal solely on this ground. T he m ain c u lp rit is th e vendor o f the disputed property, but the plaintiff can n o t ju s t b e d escribed as being unconscionable or without scruples (as the C o u rt o f A p p eal pu t it). T he record clearly shows that by his freely parting w ith a low er purchase money when he knew that his own friend had alread y m ade part-paym ent for the same property, he must be deemed to have b een aw are o f the fraud perpetrated by the vendor and as such a particeps criminis. I do not see how he can be said to have been taken by su rp rise w h en th e issue w as raised, judging from the part he played. In sum , since th e p lain tiff admitted, in his evidence, prior knowledge o f th e d efen d an t's purchase o f the disputed property, he must be deemed to have h ad co n stru ctiv e notice of, and to have been bound by, the con­ tract fo r sale betw een the defendant and the vendor, and the terms o f the con tract, in c lu d in g equities w hich under the contract the defendant had again st th e vendor. Secondly, th e vendor, not having terminated the contract for sale and the d efen d an t's subsistin g contractual obligation/interests arising there­ under, c o u ld n o t convey vacant possession to the plaintiff. In other words, the p la in tiff c an n o t n ow be heard to say that he bought the house without n o tice o f th e defendant's prior estate or interest in possession. The de­ fen d an t can tak e advantage o f the nemo dat rule. T hirdly, th e L and R egistry Act, 1962 (Act 122), like its predecessor, the L and R eg istry O rdinance, Cap 133 (1951 Rev), did not abolish the eq u itab le d o ctrin es o f notice and fraud, neither has it conferred on a Supreme Court o f Ghana-Law Reports [1998-99] SCGLR registered instrum ent like ex hib it B a state-guaranteed title. In other words re g istra tio n d o e s n o t c re a te ab so lu te title. Fourthly, n e ith e r A c t 122 n o rth e O rdinance, C ap 133 sought to abol­ ish co n tra cts fo r sale o f lan d w ith th e ir c o n seq u en tial equitable reliefs, and fo r th a t m a tte r b o th statu tes did n o t give prio rity to a registered c o n v e y a n c e o r in stru m e n t o v e r a p rio r c o n tra ct fo r sale w here part- p a y m en t h as b een m ad e o r w h e re th e p u rc h a se r has undertaken devel­ o p m e n t o f th e p roperty. In th e fifth p la ce , w h e re a p a rty to a c o n tra ct fo r sale is in possession o f th e e sta te , a la te r p u rc h a se r o f th e sam e pro p erty is bound to enquire on w h a t te rm s th e p a rty to the c o n tra c t is in p o ssessio n an d /o r his iden­ tity, an d th e fa c t th a t th e v e n d o r d id n o t d isclo se th ese particulars does n o t re lie v e h im o f th e o n u s to in v estigate. T h e C o u rt o f A p p eal in th e in sta n t case expressed grave concern a b o u t th e e ffic a c y o f th e o p e ra tio n o f A c t 122 and stated th a t if there is e v e r a s ta tu te th a t n e ed s v e ry u rg e n t atten tio n and review , it is A ct 122, e s p e c ia lly s e c tio n 2 4 (1 ) . B ro b b e y JA , w h o e x p re s s e d th is view , c o n tin u e d as follow s: "A s it sta n d s now , th e A c t clea rly facilitates fraud to be perpe­ tra te d in c o n n ec tio n w ith th e sale and acquisitio n o f lands. The law w h ic h w ill ta k e aw ay a h o u se in resp ect o f w hich a first b u y e r h a s paid as m u ch as fifty p ercen t o f the purchase price to a v e n d o r as d e p o sit, j u s t becau se th e purchaser's friend w ould m o v e fa st to pay even a lesser am o u n t to the vendor and pro­ c e e d e x p e d itio u sly to re g iste r a docum ent on the second sale o b v io u sly leaves m uch to be desired." In m y view , i f th e fo reg o in g is th e o nly reason w hich should com pel th e le g isla tu re to re v ie w sectio n 24 o f A c t 122, or if th e concern o f the c o u rt in O dam etey v Clocuh [1989-90] 1 G L R 14, SC is for innocent p u rc h a se s a n d n o t fra u d u le n t d eals as con tain ed in holding (6) o f the co u rt's ju d g m e n t, th en , it is incum bent upon this court to so interprete the se c tio n to ta k e c a re o f th e c o n cern s and not to press fo r th e interference o f th e leg islatu re. T aking fo r g ran ted th a t section 24 o f A ct 122 is harsh an d u n c o n sc io n a b le as th e C o u rt o f A ppeal seem s to hold, it is incum bent u p o n th is c o u rt to so interprete it as to avoid any absurdity, injustice and h a rd sh ip , and n o t to d e sp e ra te ly p u t its hand up and do a hand's turn but sim p ly seek conso latio n in legislative am endm ent. A s the learned authors o f M axw ell on Interpretation o f Statutes (11th ed) rightly put it at p 221: i [1998-99] SCGLR Amuzu v Oklikah - Aikins JSC "W here the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction o f the apparent purpose of the enactment, or to some inconven­ ience or absurdity, a construction may be put upon it which modifies the meaning o f the words, and even the structure o f the sen­ tence." The Court o f Equity would go to the extent of tackling this issue m uch more seriously. It would not permit a statute to be used as an instrum ent o f fraud or inequitable conduct, and would strive hard to interprete the statute in a way as would do justice. Equity would further invoke its wide jurisdiction to grant relief against fraud, even though this m eant "decorously disregarding an Act of Parliament:" see Megarry & Wade: Law o f Real Property (2nd ed) p 554-555. Surely, the legislature did not intend that the ordinary meaning of section 24(1) should lead to a manifest contradiction o f the apparent purpose o f the Act, or to some inconvenience or absurdity, hardship or injustice, as the section seems to produce. In the circumstance, this court may, in duty bound, have to put such construction upon it which modifies the m eaning o f its words. T he section states that an instrument under consideration first executed after the commencement o f the Act shall be o f no effect until registered, and this has been interpreted to mean that where there are tw o or more purchasers of the same land, each having such instrument, priority is given to the one first registered under the Act. It means there­ fore that the A ct envisages that each one o f them should not have notice o f the other having purchased the same land or property. This does away w ith any contradiction o f the purpose o f the section or inconvenience or absurdity, hardship or injustice. But where, as in this case, the Act facili­ tates fraud perpetrated in connection with the sale and acquisition o f lands, especially, as the Court o f Appeal puts it, "the law which will take aw ay a house in respect o f which the first buyer has paid as much as fifty per cent o f the purchase price to a vendor as deposit, ju st because the purchaser's friend would move fast to pay even a lesser amount and proceed expeditiously to register a document on the second sale", then, there is clearly injustice and hardship done to the first purchaser. The question seems to me to be whether the legislature intended that to hap­ pen. In my view, the legislature did not intend such state o f affairs to be imported within the meaning o f the section. After all we must construe the w ords o f the section according to the ordinary canon o f construcion, Supreme C ourt o f G hana. Law Reports [1998-99] SCGLR th a t is to say, b y g iv in g th e m th e o rd in a ry m e a n in g in th e E n g lish lan­ g u ag e a s a p p lie d to su c h a s u b je c t-m a tte r, u n le s s so m e g ro ss a n d m a n i­ fe st a b s u rd ity o r in ju s tic e o r h a rd s h ip w o u ld th e re b y be p ro d u c e d . O n lo o k in g a t th e p ro v is io n s o f th e A c t in th is re s p e c t, it s e e m s to m e tru e to say th a t th e in te n tio n is th a t, as fa r as p o s s ib le , w h e re a w o u ld -b e p u r­ c h a s e r h a s p rio r k n o w le d g e o f a n e a r lie r p u rc h a se b y so m e o th e r p e rso n o f th e s a m e p ro p e rty , o r w h e re to h is k n o w le d g e th e v e n d o r h as n o t te rm in a te d th e c o n tra c t fo r s a le b e tw e e n h im a n d th e fir s t p u rc h a se r, o r th e fir s t p u rc h a s e r is in p o s s e s s io n o f th e e sta te , o r w h e re fra u d is p e rp e ­ tra te d , a la te r in s tru m e n t c a n n o t, b y re g is tra tio n , o b ta in p rio rity o v e r an e a r lie r u n re g is te re d in s tru m e n t. In o th e r w o rd s , th e la n g u a g e o f th e se c ­ tio n , th o u g h g e n e ra l, m u s t b e in te rp re te d w ith re fe re n c e to th e d o c trin e s d a t non quod o f e q u ity a n d th e w e ll k n o w n e q u ita b le p rin c ip le o f h a b et. T h e m o re lite ra l c o n s tru c tio n o f s e c tio n 2 4 (1 ) o u g h t n o t to p re v a il, if it is o p p o s e d to th e in te n tio n s o f th e le g is la tu re as a p p a re n t b y A c t 122, a n d " i f th e w o rd s a re s u ffic ie n tly fle x ib le to a d m it o f s o m e o th e r c o n ­ s tru c tio n b y w h ic h th a t in te n tio n w ill b e b e tte r e ffe c tu a te d ," o r if it w ill le a d to th e r e s u lt th a t th e p e rs o n w h o h a d c o n s tru c tiv e n o tic e o f a p rio r p u rc h a s e o r is im p lic a te d in a fra u d m ig h t m a k e a n in n o c e n t p e rso n w h o h a d g e n u in e ly p u rc h a s e d th e sa m e p ro p e rty e a r lie r s u ffe r in ju s tic e and h a rd s h ip . T h is w ill lead to s ta rtlin g a n d a b su rd re s u lts a n d to a n u p h eav al o f c o n s titu tio n a l rig h t: se e C lerical M ed ica l & G eneral Life A ssu r­ ance S o c iety v C arter (1 8 8 9 ) 2 2 Q B D 4 4 4 , C A a t p 4 4 8 ; F anny M C arvill R iver Wear C om m issioners v A dam son (1 8 7 6 ) 1 Q B D 546, a t p 5 4 9 ; a n d C alidonian R a il Co v N orth B ritish R a il C o (1 8 8 1 ) 6 A p ­ p e a l C a s 114, H L a t p 122. T h e a p p e a l is th e re fo re a llo w e d , th e ju d g m e n t o f th e C o u rt o f A p ­ p e a l, to g e th e r w ith th a t o f th e c irc u it c o u rt, is s e t a sid e . T h e p la in if f fails in h is a c tio n . T h e d e fe n d a n t is e n title d to p o sse ssio n and is also e n title d to a p e rp e tu a l in ju n c tio n re s tra in in g th e p la in tif f a n d h is a g e n ts, p riv ie s and a ss ig n s fr o m in te rfe rin g in a n y w a y w ith th e d is p u te d p ro p e rty . C H A R L E S H A Y F R O N - B E N J A M I N J S C . In th e q u a rte r o f a c e n ­ tu ry o r so s in c e Asare v B robbey [1 9 7 1 ] 2 G L R 3 3 1 , C A b u rs t u p o n th e decidendi in th a t c ase ju d ic ia l firm a m e n t, it se e m s to m e th a t th e h a s b e e n re lig io u s ly fo llo w e d b y o u r c o u rts. E x a m in in g th e s u b se q u e n t c a s e law o n th e p o in t, it is c le a r th a t th e c o u rts h a v e re s iste d a n y a rg u ­ m e n ts w h ic h see m to u n d e rm in e th e v a lid ity o f th a t ratio a n d o p te d fo r w h a t, fo r w a n t o f a b e tte r e x p re ss io n , I m a y call th e m a in te n a n c e o f th e [1998-99] SCGLR Amuzu v Oklikah - C Hayfron-Benjamin JSC status quo in judicial reasoning - the principle of stare decisis. Thus, in the instant appeal Brobbey JA could say with some confidence that he w as o f the view: ’’that the provisions of section 24(1) are so categorical in rendering ineffective and invalid any instrument which is un­ registered that the common law principle of notice and fraud cannot be invoked to create an exception to those statutory pro­ visions, in the absence of clear intendment on the part o f the legislature to that effect." (The emphasis is mine.) The ratio decided in Asare v Brobbey (supra) upon which great reliance has been placed is per Archer JA (as he then was) at page 337, w hich reads thus: "It follows therefore that when section 24(1) o f the Land Registry Act, 1962, provides that a document shall be of no ef­ fect until it is registered, it means that the document and its con­ tents cannot have any legal effect until registration has been completed. This also means that the document is not valid for all purposes because the formality of registration is necessary to complete its validity. In this respect a clear distinction should be drawn between what is void and what is invalid. What is void or null is always regarded by the law as never having taken place. What is invalid has taken place but something remains to be done to validate it or to give it legal force. I f a document is deemed to be valid then it must be valid for all legal purposes but where the law will not give it any effect then clearly the document is invalid." (The emphasis is mine.) M y purpose for making a contribution in this appeal is, so to speak, to exorcize the ghost o f certain attitudes injudicial thinking which since that decision have led to the inflexible application of section 24(1) of the Land Registry, A ct 1962 (Act 122). Then, also, this inflexible attitude towards section 24(1) has led to great trepidation about the application o f the rules and principles o f equity in respect o f conveyances of land by our courts, w ith the result that it is now recognised that great injustice is being caused to unsuspecting litigants who suddenly are beset in court w ith the strong arm o f the statute. Supreme Court o f Ghana Law Reports [1998-99] SCGLR T h e c o m m o n law o f th is c o u n try h a s fro m th e in c e p tio n o f th e c o u rt s y ste m a lw a y s in c lu d e d : "th e ru le s g e n e ra lly k n o w n as th e d o c trin e s o f e q u ity :" s e e th e 1 9 6 9 ,1 9 7 9 a n d 1992 R e p u b lic a n C o n s titu tio n s o f In d e ­ p e n d e n t G h a n a . It se e m s to m e th e re fo re o d d th a t in ste a d o f th e c o u rts a p p ly in g th e p rin c ip le s o r d o c trin e s o f e q u ity to e x p o u n d th e law and a d v a n c e th e re m e d y in fa v o u r o f u n s u s p e c tin g p u rc h a s e rs , th e re a re ra th e r s e a s o n a l c a lls b y o u r c o u rts fo r a m e n d m e n ts to b e m a d e o f th e L a n d R e g istry A c t, 1962 (A c t 122). T h u s in h is o p in io n , B ro b b e y J A w a s e n a b le d to s a y o f A sare v B robbey (s u p ra ) th a t: " T h e th e n C o u rt o f A p p e a l to o k p a in s to s p e ll o u t th e e x a c t m e a n in g a n d c o n n o ta tio n o f s e c tio n 2 4 (1 ) ..." In m y re s p e c tfu l o p in io n , it is th is "p a in s to sp ell o u t th e e x a c t m e a n in g a n d c o n n o ta tio n o f A c t 122 s 2 4 (1 ) " th a t u n w ittin g ly d e ­ n u d e d A sare v B robbey (s u p ra ) o f a n y e ffic a c y as b in d in g a u th o rity . T h e in tro d u c tio n o f e x p re s s io n s su c h as "v o id " a n d "in v a lid " re a lly c o n fu se d th e in te n d m e n t o f s e c tio n 2 4 (1 ). T h e c o n fu s io n b e c o m e s m a rk e d w h e n o n e re a d s th e f in a l s e n te n c e in th e p a ss a g e q u o te d fro m (s u p ra ) w h ic h , fo r th e sa k e o f re g u la rity I w ill re s ta te h e re u n d e r: " If a d o c u m e n t is d e e m e d to be v a lid th e n it m u s t b e v a lid fo r all legal p u rp o se s v b u t w h e re th e la w w ill n o t g iv e it a n y e ffe c t th e n c le a rly th e d o c u m e n t is invalid." It m u s t b e n o te d th a t th e e x p re ss io n "v alid " o r " in v a lid " d o e s n o t o c c u r in s e c tio n 2 4 (1 ) o f A c t 122, y e t s u b se q u e n t d e c is io n s o f o u r c o u rts, re ly in g o n th a t a u th o rity a p p ea r to have su b stitu ted th e ex p ressio n "invalid" fo r th e e x p re s s io n " in e ffe c tiv e ." In th e re s u lt, so rig id h a s its a p p lic a tio n b e e n th a t o u r c o u rts h a v e e ith e r ta c itly re fu s e d o r s e rio u sly n e g le c te d to a p p ly th e d o c trin e s o f e q u ity in th o s e c a s e s w h e re fo r s o m e re a s o n o r o th e r th e u n s u s p e c tin g p a rty in litig a tio n o u g h t to b e re lie v e d fro m th e a p p lic a tio n o f th e s ta tu te . T h u s B ro b b e y JA , h a v in g d is c u s s e d m o st o f th e a u th o ritie s s in c e th e d e c is io n in A sare v B robbey (su p ra ), c o n c lu d e d th a t: "O n th e s e a u th o ritie s e x h ib it D c o n v e y e d n o valid in so fa r as it h a s n o t b e e n re g is te re d . T h e o n ly va lid docum ent on th e d is p u te d p ro p e rty is e x h ib it B ." (T h e e m p h a s is is m in e .) E x h ib it D is th e a g re e m e n t m a d e b e tw e e n C le m e n t Q u a rte y -P a p a fio a n d F red K w a s h i D z o tse p e r his law fu l a tto rn e y C o lo n e l A n d re a s K w a k u A m u z u (R td ) d a te d 3 0 N o v e m b e r 1987 in re s p e c t o f all th a t p lo t o f land a n d th e b u ild in g th e re o n s itu a te ly in g an d b e in g a t M p e h u n se m n e a r L e g o n , A c c ra . E x h ib it B is th e in d e n tu re m a d e on 11 J u ly 1988 b e tw ee n C le m e n t Q u a rte y -P a p a fio an d D r & M rs K K w a b la O k lik a h in re sp e c t o f all that p ie c e o f la n d together w ith th e b u ild in g th e re o n s itu a te and ly in g a n d b e in g a t M p e h u a s e m , A c c ra . [1998-99] SCGLR Amuzu v Oklikah - C Hayfron-Benjamin JSC It would seem that Brobbey JA took his cue from Taylor JSC in his opinion expressed in Hammond v Odoi [1982-83] GLR 1215 at 1279, SC w here his lordship stated: "I agree completely with this view. In my opinion, exhibit E as an unregistered document was clearly incapable of confirm­ ing any grant or transferring any interest in land. A contrary conclusion will be tantamount to what Archer JA (as he then w as)in the concluding passage of his judgm ent in Asare v Brobbey (supra) at p 340 designated as: '... a judgment contrary to the express provision o f sec­ tion 24(1) of the Land Registry Act, 1962, by conferring rights when the statute provides that no legal rights can arise from an unregistered document affecting land.' Clearly exhibit E while unregistered is ineffective to create legal rights or liabilities or to have any legal validity whatsoever. I am aware that in Ussher v Darko [1977] 1 GLR 476 at p 489, CA Apaloo JA (as he then was) held that an unregistered con­ veyance because it described the premises, stated the price and w as signed by the proper vendor satisfied section 4 of the Stat­ ute o f Frauds, 1677, as preserved by section 19 o f the Contracts Act, 1960 (Act 25), and is on that account capable o f operating to confer an equitable title to a purchaser. With respect, I think this contradicts the clear and unambiguous provisions o f section 24( 1) o f Act 122 and the interpretation of it in Asare v Brobbey (supra) where Archer JA (as he then was) said: "since Novem­ ber 1962 all documents relating to land must be registered in order to have any legal effect at all." A conveyance giving an equitable interest is one also giving a legal effect to the docu­ ment." 'A The learned judge (as stated) concludes that: "A conveyance giving an equitable interest is one also giving a legal effect to the document." With the greatest respect to his lordship, that statement cannot be cor­ rect. N or can the learned judge's^astigation o f Apaloo JA (as he then w as) when he writes that an unregistered document may operate to confer an equitable title to a purchaser be warranted. It is trite learning that w here for some technical reason a contract for the sale o f land which may otherwise be specifically enforced fails to convey the legal title, it may take effect in equity. Thus in Snell's learned treatise entitled Principles o f Equity at page 188 thereof, the learned editor states that: Supreme Court of Ghan^Law Reports [1998-99] SCGLR "A s so o n as a sp ec ific a lly en fo rceab le co n tract for sale o f lan d is m ad e, th e p u rc h a se r b ecom es the ow ner o f the land in equ ity , and th e v e n d o r becom es a constructive trustee o f the lan d fo r th e p u ch aser, su b jec t in each case to th eir respective rig h ts an d d u tie s u n d e r th e contract." It is a m a tte r o f sem a n tic s w h a t the learned ju d g e m eant by "legal e ffe c t." It is said th a t a perso n in p o ssessio n o f land can m aintain his title to p o s se ss io n a g a in st all p erso n s b u t th e h o ld er o f the legal estate. Since th e law re c o g n ise s on ly tw o estates, it cannot be denied that there is e ith e r a leg al e sta te o r an e q u itab le estate, and the courts recognise these tw o e sta te s o r in te re sts in litigation before them . In the E nglish case o f H adleky v London B ank o f Scotland L td (1 8 6 5 ) 3 D J & SM L ord J u s tic e T u rn e r at p ag e 70 o f th e R ep o rt expressed h im se lf on this point thus: "I h av e alw ay s u n d e rsto o d th e rule o f the C ourt to be that if th e re is a c le a r c o n tra c t fo r sale, th e C o u rt w ill not perm it the v e n d o r a fte rw a rd s to tra n sfe r th e legal estate to a third person ... I th in k th is ru le is w ell founded in principle, for the property is in e q u ity tra n sfe rre d to th e p u rch aser by the contract; the ven­ d o r th e n b e co m e s a tru ste e fo r him and cannot be expected to d e a l w ith th e e sta te so as to in convenience him ." T h e re fo re , w ith th e g re a te st re sp e c t to T aylor JSC , his statem ent in H am m ond v Odoi (su p ra ) at 1279 that: "E quity and law have coalesced fo r so lo n g n o w th a t lik e th e h usb an d and w ife o f the old com m on law th e y a re n o w o n e," c a n n o t be co rrect. C ertainly the doctrines o f equity h a v e b e en d e v e lo p e d and fu sed w ith the law to alleviate the hardships o f th e a p p lic a tio n o f th e law and n o t as "the b etter h a lf o f the law." I there­ fo re fail to a p p re c ia te the kind o f sup p o rt being given to Asare \ Brobbey (su p ra ) by c o n d em n in g th e v iew s o f A paloo JA (as he then w as). A s w ill so o n be o b serv ed , in Ussher v Darko [1977] 1 G L R 476 at page 493, C A th e le a rn e d ju d g e n o t o n ly p u rp o rte d to ex p lain w hat the real in te n d m e n t o f the d ecisio n in Asare v Brobbey (supra) should have been, he also p ro v id e d h o w the p rin cip le upon w hich the effectiveness o f a c o n v ey a n c e, reg istered o r u n registered, is to be determ ined. A s I h a v e said, in Asare v Brobbey (supra) the error arose when the le arn ed ju d g e , A rc h e r JA - d eliv erin g the ju d g m e n t o f the court - substi­ tu te d th e e x p re ssio n "invalid" fo r "ineffective." B ut there w as am ple au- [1998-99] SCGLR Amuzu v Oklikah - C Hayfron-Benjamin JSC thority w hich should have been his guide. I refer to the two cases of Khoury v Khoury (1952) 12 WACA 261, PC and Khoury v Azar (1952) 12 WACA 268, PC. In these cases one of the issues for consideration w as section 22 o f the Kumasi Lands Ordinance, the words o f which w ere in pari materia with section 24(1) of Act 122. The exact point for determ ination was the meaning o f the expression "ineffective.” Their lordships at page 262 thereof stated: "We agreed with the submissions of Counsel for the Claim­ ants that the provisions o f section 22 of the Ordinance do not destroy the equitable mortgage nor render it null and void. They do no more than defer its effect till registration. It was open to the claimants to avail themselves of it as effective security at anytime by causing it to be registered. " (The emphasis is mine.) A t the Privy Council the issues for determination were narrowed. At page 274 o f the Report their lordships wrote: "There remains only the question whether the appellants had a valid equitable mortgage on PLOT 571 or whether the Undertaking was ineffective at the relevant date, by reason of sections 22(1) and (2) of the Kumasi Lands Ordinance 1943. This equitable mortgage was not registered, at any material time, in accordance with section 22 of that Ordinance. Accordingly it was o f no effect at any material time by reason of the provision o f the same section." It m ust be noted that their lordships in the Privy Council did not reverse their lordships o f the West African Court of Appeal (WACA). They only varied the judgm ent o f WACA. Notable among the variations w as the one in which their lordships o f the Privy Council stated that: "The appellants had no effective mortgage or charge on Plot 571 Old Town Section"B" Kumasi on the 24 December 1946." Speaking for m yself, I prefer the more indigenous version o f the WACA. Non- com pliance with the provisions of section 24(1) does not render a docu­ m ent null, void or invalid. Its effectiveness at law is deferred until or unless it is so registered. In this respect, I agree with learned counsel for the appellant, M r Kwame Tetteh, that the legal effect is held in abeyance pending registration. At the risk o f repeating myself I hold that where for Supreme Court o f Ghana_Law Reports [1998-99] SCGLR o n e o r o th e r reaso n a d o c u m en t fa ils to convey th e legal title, the accep­ to r o f th a t d o c u m e n t o b tain s th e eq u ita b le in terest or title and the con­ v e y o r o f th e d o cu m en t beco m es th e tru ste e o f the legal title w hich he w ill b e b o u n d to give o v e r to th e eq u ita b le o w n er in o rd er to perfect the latter's title. T h e eq u ita b le rem ed y o f sp ecific perform ance is available to him . Asare v Brobbey (su p ra ) c an n o t stand since it did n o t take into c o n sid e ra tio n any e q u ita b le d o c trin e o r rule w hich could am eliorate the h a rsh n e ss o f th e statu te. In m y resp ectfu l o pinion, th at decision m ust, to th e e x te n t th a t it re q u ire s th e stric t ap p licatio n o f section 24(1) o f A ct 122, b e o v e rru le d . In m y re sp ec tfu l opinion, the p ro p er authority for de­ te rm in in g su ch p ro b le m s as arise in o u r courts m ust be the dictum o f A p a lo o JA (as he th e n w a s) in Ussher v Darko [1977] 1 G L R 476 w h e re h is lo rd sh ip in a d efin itiv e statem en t w ro te at page 493 thereof: "T he decision in Asare v Brobbery (supra) implies that where th e re is n o th in g intrinsically invalid ab out an instrum ent, sec­ tio n 2 4 (1 ) o f th e L and R eg istry A ct 1962 (A ct 122) does no m o re th a n d e n y it legal effic a cy until it has been registered. The L a n d R e g istry A ct, 1962, did not prescribe a tim e lim it by w hich a n in stru m e n t m u st b e reg istered . This means that the plaintiff can p e rfe c t his title by the form ality o f registration at any tim e. " (T h e e m p h a sis is m in e.) In m y resp ectfu l opinion, therefore, registration o f a docum ent w hich sh o u ld b e so reg istered is purely evidential in litigation, and w hile a party w ith an u n re g iste re d d o c u m en t m ay be unable to assert a legal title in c o u rt, n e v e rth e le s s th e d o cu m en t w ill tak e effect in equity and w ill de­ fe a t all c la im s e x c e p t th e h o ld e r o f the legal title. W here, how ever, both p a rtie s h o ld eq u itab le titles the m axim in equity is that the first in tim e will p re v a il. N o r is th is all. R eg istratio n does not co n fer a state-guaranteed title . In N artey v M echanical Lloyd Plant L td [1987-88] 2 G L R 314 A m u a -S e k y i JS C is cred ited w ith the statem ent in his dissent (as stated in th e h e a d n o te a t 3 1 7 ) that: "N o n -reg istratio n being a d efect w hich can be cured, its absence w ill n o t deprive a party o f the protection o f the courts. In a proper c ase th e co u rts can o rd er th a t docum ent w hich has been regis­ te re d be rem oved from the reg ister and one w hich has been re fu se d re g istra tio n be registered." [1998-99] SCGLR Amuzu v Oklikah - c Hayfiron-Benjamin JSC I agree w ith his lordship. In respect o f the "intrinsic invalidity" referred to in JJssher v Darko, (supra) my respectful view is that that expression connotes the existence o f some internal evidence which is made available to the court and which conclusively demonstrates that the court should uphold the registration or relieve a party from the operation o f the statute - in this case the Land R egistry A ct, 1962 (Act 122). In the present appeal, Brobbey JA succinctly summed up the facts w hen he w rote that: "The position o f the plaintiff in the instant case is worse because on the facts, he behaved and acquired the property un­ der perhaps unconscionable circumstances. I make these com­ m ents for three reasons, namely, that (1) before he bought the house, he had prior knowledge of the sale of the same house to his own friend; (2) that his friend was already in possession of the house; and (3) his agents and representatives acted reck­ lessly." The evidence on record showed that the plaintiff, a close friend o f the defendant, had set out with the aid of others to, as it were, do him out o f a bargain. The evidence showed further that the plaintiff had notice of the prior transaction between the defendant and the common vendor, Mr C lem ent Q uartey-Papafio and that the plaintiffs agents were aware that the defendant had placed people in occupation o f the premises. Yet the p la in tiff had proceeded to register his document and, being so armed, assert his title to the land against the defendant. It was indeed "the most unkindest cut o f all." Aff eh JA in his supporting opinion was certain that: "The plaintiff is not a bona fide purchaser because he had notice o f the equitable title of the defendant and the circum­ stances in which plaintiff acquired his title smacks o f equi­ table fra ud " (The emphasis is mine.) M r Kwam i Tetteh, counsel for the defendant, submitted before their lordships in the Court o f Appeal that, the equitable doctrines o f notice and fraud had not been abolished by Act 122 - relying on Boateng v Dwinfour [1979] GLR 360, CA and Botchway v Okine [1987-88] 2 G LR 1, CA. Brobbey JA conceded the submission but contended that in Supreme Court o f Ghana Law Reports [1998-99] SCGLR the c ase o f th e fraud, th a t m a tte r h ad n o t been pleaded w ith particulars as w as re q u ire d by th e ru les o f co u rt and th erefo re could n ot be counte­ n an ced . W ith th e g re a te st re sp e c t to his lordship, he could n ot be right. A fte r e x a m in in g th e e v id en c e a t length his lordship stated: "This is a c le a r c ase in w h ic h th e law and eq u ity co nflict." H is L ordship then re­ tu rn ed to his p rin cip al th em e o f assertin g the inflexibility o f the principle in Asare v Brobbey (su p ra ), sectio n 2 4 (1 ) o f A ct 122 and Hammond v Odoi and c o n c lu d e d that: "T h e h ack n ey ed p rin c ip le is th a t w here equity and law con­ flict, th e law p rev ails. In any case, as M r K om rightly pointed o u t, e q u ity fo llo w s th e law." I th in k h is lo rd sh ip c o n fu sed th e eq u itab le m axim s w hich w ere open to h im to a p p ly in v ie w o f his ow n adm issio n th a t in this appeal the doc­ trin e s o f e q u ity an d th e p rin c ip le s o f law w ere in conflict. H ow ever, the tru e m a x im o f e q u ity is that: "w h en ev er th e rules o f law and equity are at v a ria n c e on so m e p a rtic u la r po in t, the rules o f equity shall prevail:" see Cheshire's M odern R eal Property (9th ed) page 350. A t variance, o f c o u rs e ,c o n n o te s a co n flic t. In th e p re sen t appeal, th e point in conflict w a s w h e th e r th e law (th e statu te) sh o u ld be rigidly applied or the "equi­ ta b le fra u d ", as c le a rly fo u n d by Afireh JA , should be vindicated by the a p p lic a tio n o f th e re le v a n t m axim . It is a w ell-know n principle o f equity th a t e q u ity w ill n o t p e rm it a statu te to be used as an instrum ent o f fraud. T h a t, in m y re sp e c tfu l o p in io n , w as th e p ro p er m axim to have been ap­ p lie d in th is c ase to re lie v e th e d e fe n d an t o f th e fraud w hich had been p e rp e tra te d o n him . M r E D K om , learned counsel fo r th e plaintiff, could n o t b e rig h t in su b m ittin g th a t in th e p resen t appeal equity follow ed or m u st fo llo w th e law. I k n o w o f no eq u itab le m axim o r rule w hich can be a p p lie d in aid o f frau d . T h e re is none. T h e re re m a in s th e issue o f notice. T he evidence w as clear that the p la in tiff a n d h is a g en ts had no tice o f the d efen d an t’s agreem ent and oc­ c u p a tio n o f th e d isp u te d h ouse and plot. B robbey JA , how ever, so tena­ c io u sly c lu n g to th e Asare v Brobbey p rin cip le th at he could say: "T h ere is no decided case anyw here in w hich notice has been u sed as a ground fo r avo id in g the application o f A ct 122, an d th e re a so n for th at lies in th e w ay section 24(1) has been co u ch ed ." [1998-99] SCGLR Amuzu v Oklikah - C Hayfron-Benjamin JSC His lordship m ay w ell be right that there is no decided case in which the equitable doctrine has been applied in order to avoid the rigours of sec­ tion 24(1) o f A ct 122 as heretofore been held out. But that does not m ean the doctrine does not exist and may not be applied in appropriate circum stances. True, the principle o f registration has blunted the edge of the doctrine o f notice with respect to transfers of the legal estate in land. N evertheless, w ithin our municipality where estate contracts are not registrable, the equitable doctrines o f notice cannot be ignored by the courts in circum stances in which the transaction is patently unjust. A court cannot ignore evidence o f unconscionable conduct on the part of a subsequent purchaser and decree title in such purchaser even though he has notice - actual, constructive or imputed - of third party rights and interest in the property he seeks to acquire. In other jurisdictions, where estate contracts, otherwise equitable interests, are registrable, a purchaser w ill be affected with such notice, and the legal interest which he acquires w ill be subject to such equitable interest and may even be postponed. H ow ever, w ithin our municipality where there is no provision for the registration o f estate contracts and other equitable interests, the court could decree the cancellation o f a registered document or order the reg­ istration o f an unregistered document: see per Amua-Sekyi JSC in Nartey v Mechanical Lloyd Plant Ltd (supra). Taylor JSC in Odametey v Clocuh [1989-90] 1 GLR 14 at p 41, SC recognised the "disgraceful practice" of some "dishonest landowners" w ho convey the same land to different purchasers and the "glaring hard­ ship" thus suffered by purchasers. His lordship at p 41 thought that Apaloo CJ had: "Invent(ed) the doctrine o f constructive registration in the in­ terest o f somewhat extra-judicial concept of justice so as to circum vent and avoid the provisions of section 24(1) of Act 122 in order to protect such innocent purchasers." In my respectful opinion, Apaloo CJ had invented no such doctrine. If I understand His Lordship the Chief Justice correctly, when in Ntem v Ankwandah [1977] 2 GLR 452 at 459, CA he said there should be a "doctrine o f constructive registration", he meant that the courts ought not to be unm indful o f the doctrines o f equity in assessing the rights and interests o f contending parties before them and be prepared to give ef­ fect to the proper document which the law or equity will support. If, as I have said, the court can nullify registration, it must be prepared to permit Supreme Court of Ghaneu-aw Reports [1998-99] SCGLR th e ru les o f eq u ity to b e ar u pon th e qu ality o f th e docum ents so pre­ sented. In th is w a y a "b lam eless p u rc h a se r w ho has in com pliance w ith th e law ... d o n e all th a t th e law decrees he should (shall) obtain title." In m y re sp ec tfu l o p in io n th is appeal epitom ises the hardships en­ d ured by in n o c e n t p u rc h a se rs and th e insensitive attitude o f the courts to th e ir d e fe n c e in situ a tio n s in w h ich th e co u rts discard the doctrines o f e q u ity in fa v o u r o f th e fa c ele ss ap p licatio n o f statute. I w o u ld also a llo w this appeal and subscribe to th e orders to be made. A M P I A H J S C . O n 5 M arch 1997, th e co u rt unanim ously allow ed this a p p eal an d re serv e d its reasons. I now p roceed to give reasons for com ­ ing to m y co n clu sio n . T h is is an a p p ea l from th e d ecisio n o f th e C ourt o f A ppeal, dism iss­ ing an a p p e a l fro m a d ecisio n o f th e C ircu it C ourt, A ccra. T he action re la te s to a p lo t o f land w ith an un co m p leted building thereon situate at a p la c e c a lle d M p eh u n se m in A ccra. T h e identity o f the land itse lf is not in d isp u te ; it is a b o u t 0.28 acre in size. In O c to b e r 1987 o r th e re ab o u t, one F red K w ashie D otse, a man w h o lives m o st o f his tim e ou tside th e country, obtained through his attor­ n ey (th e d e fe n d a n t in th is a ctio n ) th e land in dispute from one C lem ent Q u a rte y -P a p a fio . T h e re w as an u n co m p leted building on the land. The p u rc h a se p ric e w as a g reed a t 09 m illio n , 04.5 m illion o f w hich w as paid le a v in g a b a la n c e o f 04.5 m illio n to be settled on the com pletion o f the b u ild in g on th e land and th e tra n sfe r o f th e property to th e purchaser. It w a s fu rth e r a g re e d th a t th e v e n d o r should use the am ount paid to him to c o m p le te th e b u ild in g . T h e w h o le tran sactio n w as reduced into w riting. T h is w as te n d e re d in e v id en ce as ex h ib it D by the defendant; it w as d a te d 3 0 N o v e m b e r 1987. A fte r a few m onths w hen the vendor w as not c a rry in g on w ith th e w o rk on th e building, th e d efendant decided to go into p o sse ssio n o f th e land and com plete th e building h im se lf on the con­ d itio n th a t th e v e n d o r w o u ld release to him the building m aterials then on th e land. F u rth e r e n q u iries by th e defendant, how ever, revealed that the v e n d o r h ad sin ce left th e co u n try and rem oved the building m aterials fro m th e land. T h e d efen d an t, how ever, took possession o f the land and c o n tin u e d w ith th e co n stru ctio n o f the building at his ow n expense. O n o r a b o u t 11 Ju ly 1988 w h ile the d efendant w as still in possession o f th is land, th e v endor, unknow n to th e defendant, granted the same p iece o f land to th e p la in tiff for 06.5 m illion. A conveyance w as hurriedly p re p a re d an d e x ec u te d fo r th e plaintiff, w ho had it duly stam ped and r e g is te r e d w ith th e L a n d R e g is try w ith T itle N o 2 7 5 7 /8 8 . T his [1998-99] SCGLR Amuzu v Oklikah - C Hayfron-Benjamin JSC w as te n d ered in evidence by the plaintiff as exhibit B. An attem pt by the plaintiff, how ever, to enter the land m et with resistance from the defend­ ant. T h is actio n w as therefore instituted by the plaintiff on 8 February 1989 to assert his title to the property. He claimed jointly with his wife for a d eclaratio n o f title to the land, damages for trespass, ejectm ent and an order o f p erp etu al injunction against the defendant. The circuit court gave ju d g m e n t in th e p la in tiffs favour and declared title in him. It also ordered e jec tm e n t and perpetual injunction but refused to award dam­ ages fo r trespass. T he counterclaim by the defendant claiming title to the sam e land w as dism issed by the trial court. The Court o f Appeal dis­ m issed an appeal filed by the defendant against the decision o f the lower court b u t com m ented exhaustively on the unsatisfactory conduct o f the plaintiff. B u t fo r th e p ecu liar circum stances o f the case, on the statutory posi­ tion o f th e law as settled authoritatively by decisions o f the Superior C ourts, th ere w ould have been no problem in coming to a similar conclu­ sion as th e C o u rt o f A ppeal. B esides, it is now trite learning that concur­ ren t fin dings o f fa c t by courts o f com petent jurisdiction should not be e a s ily o v e rtu rn e d e x c e p t in sp ecial circum stances: see Mansah v Asamoah [1975] 1 G L R 225, CA and v Wiresi [1957] 2 WALR 257, W A CA . S ectio n 2 4 (1 ) and (2) o f the Land Registry Act, 1962 (A ct 122) provides: "24(1) S u b ject to sub-section 2 o f this section an instrument o th e r th a n (a ) (b) a w ill, or a ju d g e's certificate; first execu ted after the commencement o f this A ct shall be o f no e ffe c t until it is registered." (2 ) "N o th in g in this A ct shall operate to prevent any instrum ent w h ich , by virtue o f any enactment, takes effect from a particular d ate from so taking effect." A n "in strum ent" has been defined under section 36 o f the sam e A ct as: "... an y w ritin g affecting land situate in Ghana, including a judge's certific ate and a m em orandum o f deposit o f title deeds." A lth o u g h assen ted to on 14 June 1962, A ct 122 becam e operational on 2 N o v e m b e r 1962: vide LI 234/62. Both the courts below found that Supreme Court o f Ghan^_Law Reports [1998-99] SCGLR both ex h ib its B and D w ere in stru m en ts w ith in th e defin itio n o f section 36 o f A c t 1 2 2 .1 h av e no stro n g re a so n s to d ispute th is finding. Though c o u n sel fo r th e a p p ellan t (h e re a fte r called th e defendant) argued force­ fu lly and p ersu asiv ely th a t e x h ib it D w as only an instrum ent w hich trans­ ferred in te re st in land in fu tu re, I h av e no d o u b t th a t it w as an instrum ent a ffe c tin g land an d th a t it so u g h t to tra n sfe r th e in terest o f th e vendor in th e lan d a lb e it in th e fu tu re. A s d o cu m en ts m ade after 2 N ov em b er 1962 a ffe c tin g lan d , th e se d o cu m en ts had to be registered to becom e effec­ tive. W h e n th e n d o es a d o c u m en t b eco m e effective? In Asare v Brobbey [197 1] 1 G L R 331 a t p ag e 337, th e C o u rt o f A ppeal in its ju d g m en t observed: "... It fo llo w s th e re fo re th a t w hen section 24(1) o f the Land R e g istry A ct, 1962 p ro v id es th a t a do cu m en t shall be o f no ef­ fe c t u n til it is re g istered , it m eans th a t th e docum ent and its con­ te n ts c a n n o t h av e an y legal e ffe ct until registration has been c o m p leted . T h is also m eans th a t th e d ocum ent is n ot valid for all p u rp o se s b e ca u se th e fo rm ality o f registration is necessary to c o m p le te its validity. In th is re sp ec t a clear distinction should be d ra w n b etw ee n w h a t is v o id and w h at is invalid. W hat is void or n u ll is a lw ay s re g a rd ed by th e law as nev er having taken place. W h a t is in v alid has taken p lace b ut som ething rem ains to be d o n e to v a lid a te it o r to g ive it legal force. If a docum ent is to be v alid it m u st be valid fo r all legal purposes but w here the law will n o t g iv e it a n y e ffe c t th en c learly th e docum ent is invalid." W ith d u e re s p e c t to th e C o u rt o f A ppeal in the above case, even though I a g re e th a t w ith reg ard to th e effectiv e en fo rcem en t o f a docum ent, the d o c u m e n t n e ed be re g istered , save fo r fraud, to take priority over all o th e r u n re g iste re d docum ents, I do no t think an unregistered docum ent is " n o t v a lid fo r all p u rp o se s ..." It is required under section 1(1) o f the C o n v e y a n c in g D e cre e , 1973 (N R C D 175), th a t a tran sfer o f an interest in lan d sh all b e u n e n fo rc ea b le save for certain exceptions unless it is e v id e n c e d in w ritin g : vide section 2 o f N R C D 175. It follow s that if a d o c u m e n t a ffe c tin g land is in w riting, it could be enforced even if not re g istered . T h e d o c u m en t co uld be used against a vendor w ho seeks to o v e rre a c h th e in te re st o f th e h o ld er o f th at docum ent and the holder o f th a t d o c u m e n t can also use th e un reg istered docum ent in evidence in an a ctio n fo r sp ec ific p erform ance. H ow ever, apart from the observaion [1998-99] SCGLR Amuzu v Oklikah - Ampiah JSC m ade herein, I think the proposition or observation is valid for the deter­ m ination o f priority under the Land Registry Act, 1962 (Act 122). In th e instant case, Brobbey JA, delivering the lead judgment in the appeal, in m y opinion, dealt exhaustively with the relevant authorities on the issue o f registration o f documents and its effect. The legal position has so crystallised in the cases to the extent that it is highly impossible to displace it, save for fraud. That fraud is a defence for avoiding the inci­ dence o f registration cannot be denied. But for fraud, on the authorities, to have effect, it m ust be pleaded specifically.lt may also be possible to avoid the effect o f registration where the conveyance has been regis­ tered in priority, if the registration has been done with intent to defeat creditors, in w hich situation, however, the creditors would have to bring an action to have the said conveyance set aside: see also, the provisions o f section 3(1)(Z?) o f NRCD 175, which makes the effect of registration inapplicable to certain oral interests: see Boateng v Dwumfuor [1979] G L R 360, CA. This principle would apply even if the registration was done w ith actual notice o f a prior purchaser: see Asare v Brobbey (su­ pra); Amefinu v Odametey [1977] 2 GLR 135, CA. In m ost o f these cases, the courts have lamented over the unsatis­ factory state o f the statutory provision. In Odamtey v Clucuh [1989-90] 1 G L R 14, SC Taylor JSC at p 41 observed: "I cannot, however, end this judgment without responding to the disgraceful practice by which some dishonest land owners con­ vey the same land to different purchasers. It is the glaring hard­ ship the first purchasers suffer that induced Apaloo CJ in an adm ittedly honourable exercise of his judicial power to invent the doctrine o f constructive registration in the interest of a some­ w hat extra-judicial concept o f justice so as to circumvent and avoid the provisions o f section 24(1) of Act 122 in order to pro­ tect such innocent purchasers. Innocuously conceived as a pro­ tective device, it equally inadvertently creates intolerable hard­ ship on an equally blameless puchaser who had in compliance w ith the law rather done all that the law decrees he should do to obtain title. Surely in such a situation it is obviously inequitable to perm it a legal estate to be defeated by an equitable interest." H olding (6) o f the headnote at p 17 in Odametey v Clucuh (supra) admits: Supreme Court o f G han^Law Reports [1998-99] SCGLR "T h ere w as n eed fo r a refo rm in th e law as to title registration that w ould m eet the hardships encountered by innocent purchasers o f land w ith o u t doin g v io len ce to th e integrity o f th e Land R egis­ try regim e." In th e c a se o f Crawly v Bergthail [1899] A C 374, in an appeal from the S up rem e C o u rt o f N atal, th e Ju d icial C om m ittee o f the Privy C ouncil had c au se to s e t asid e a re g iste re d d o c u m en t on grounds o f dolus ; th a t w a s a d e c isio n on R o m an - D utch law. Q u ery : I f th e p rin c ip le o f nemo dat quod non habet could be ap­ p lie d to an e a rlie r c u sto m a ry g ra n t to d e fe at a sub seq u en t grant w hether re g iste re d o r n o t, w h y w o u ld th e m axim not apply to tw o grants by the sam e v e n d o r to tw o d iffe re n t p erso n s even though both are registrable b u t th e la tte r o n e h a p p en s to h av e been reg istered earlier? D oes the v e n d o r h a v e a n y m o re in te re st in th e p ro p erty a fte r th e first grant to m a k e a se c o n d g ra n t o f th e sam e p ro p erty ? A lso, w h y should an oral g ra n t n o t b e a ffe c te d b y a su b se q u e n t g ran t w hich is registered earlier in tim e w h ile an o ral g ra n t w h ic h has been red u ced into w riting be so af­ f e c te d .? T h e c o u rts a re e n jo in e d by law not only to do ju s tic e in a case but a lso to see to it th a t ju s tic e is m an ifestly seen to be done. D epending on th e p a rtic u la r c irc u m stan c es o f a case, th e co u rt m ust n ot necessarily c lin g to th e s tric t p ro v isio n s o f a statu te but m u st be able to m odify those p ro v is io n s p ro v id e d no in ju stice is caused to any o f the parties. It is said th a t e q u ity fo llo w s th e law, b ut e q uity w ould n o t perm it an A ct to be used as an in stru m e n t o f fraud! A ny c o n d u ct th a t borders on fraudulent be­ h a v io u r sh o u ld b e fro w n ed upon; it m u st not be encouraged. In th e in sta n t case, th e re is e v idence that: (i) not only did the plain tiff h a v e n o tic e o f th e sale to th e d efe n d an t o f th e disputed plot but he even a rra n g ed th a t th e d efen d an t be given th e p lo t nex t to the disputed one; (ii) th e p la in tif f w a s aw are th a t th e d e fe n d an t had taken possession o f the u n c o m p le te d b u ild in g on th e land and w as carrying on w ith further con­ stru c tio n to co m p le te it; (iii) th e p la in tiff purchased his plot on 11 July 1988. O n 25 Ju ly 1988 w hen th e d efen d an t w ho had contracted on 30 N o v e m b e r 1987 for th e p urch ase to him o f th e plot realised that his v e n d o r w a s d e lay in g in p erfo rm in g his p art o f the agreem ent, he took actio n a g a in st him . T his action w as p ending w hen the p la in tiff purported to re g is te r h is conveyance; he did so w ith the connivance o f the vendor w h o w as a w a re o f th e action p en d in g against hini. T he p la in tiffs docu­ m en t, a lth o u g h d ated 11 Ju ly 1988, w as in fact presented for registration [1998-99] SCGLR Amuzu v Oklikah - Ampiah JSC on 13 D ecem ber 1988! The plaintiff cannot therefore escape blame for the co ndu ct o f his vendor. Instead of the plaintiff joining in the defend­ ant's action to contest his title, he decided to issue a fresh writ on 8 February 1989 to assert his title. Section 34(c) of Act 122 makes it a crim inal offence for any person who knowingly "makes conflicting grants in resp ect o f the same piece o f land to more than one person." The evidence show s know ledge also on the part of the plaintiff; he cannot be allow ed to benefit from or take advantage of his tainted conduct. T he above behaviour o f the plaintiff, some aspect of which was com m ented upon unfavourably by the Court of Appeal in its judgment, if allow ed to prevail, would result in injustice to the defendant and other innocent purchasers o f land. Even if exhibit D was a registrable docu­ m ent w hich th e defendant had failed to register and was therefore ineffective,the defendant was still in possession. Possession is said to be nine-tenth o f the law and, in circumstances such as the one in question, I think the possession o f the defendant needs to be protected so that jus­ tice is not only done, but manifestly seen to be done. In the particular circumstances o f the case, I would also allow the appeal, and set aside the judgm ent of the Court of Appeal as well as that o f the court below. In its stead, I would dismiss the plaintiffs claim. I do adm it and appreciate that this is a revolutionary stance against settled authorities. But as stated before, if justice is to prevail in the m anner our lands are disposed of, the courts must be bold to avoid too strict an application o f the provision of the Land Registry Act, 1962 which gives blessing to fraudulent land dealers. In other words, justice must not be sacrificed on the altar o f strict adherence to provisions of laws which at tim es create hardship and unfairness. C oncerning the defendant's counterclaim, I am not able to grant it. The evidence show s that the defendant has not as yet completed pay­ m ent for the land, although not through any fault of his, it is the breach of the agreem ent by the vendor which has resulted in all this chaos. The defendant has taken action against the vendor for specific performance. The action is still pending. Until he has obtained that relief, he would be entitled to protection o f his possession. A T U G U B A J S C . The facts o f this case have been stated amply in the jud g m en ts that have preceded mine and I need not repeat them, save w here necessary. The legal question arising in this case is whether section 24(1) o f the Land R egistry Act, 1962 (Act 122), is so rigid that no matter the compel­ Supreme Court o f G han^Law Reports [1998-99] SCGLR ling ju s tic e o f a situ atio n it m ust, like S hakespeare’s M erch an t o f Venice, e x ac t its pou n d o f flesh. In short, is th e re any pro tectio n fo r a victim o f frau d o r u n ju st en ric h m en t u n d e r th a t pro v isio n ? It m u st be c o n ce d e d th a t on a strict ad h eren ce to the case law, the a n sw e r to th is q u e stio n is p lain ly in the negative. T he principle has been laid d o w n w ith m uch c o n siste n cy from early tim es to date th a t an earlier grant, if n o t re g iste re d , is o f n o effect, and th e re fo re a m uch later grant, if re g iste re d , can d e fe a t it, p ro v id ed the g ran to r otherw ise had title to convey. B u t b e fo re d e lv in g into th is qu estio n , I tu rn to th e argum ent o f the a p p e lla n t (h e re a fte r c alled th e d efen d an t) th a t his agreem ent for sale o f th e lan d in th is c ase o n ly c o n cern s b u t does not affect the land in dispute a n d th e re fo re is n o t a re g istra b le in stru m en t w ithin the m eaning o f sec­ tio n 2 4 (1 ) o f th e L a n d R eg istry A ct, 1962 (A ct 122). T h e w ord ’’instru­ m e n t” to w h ic h th a t sectio n relates, is defined in section 36 o f the A ct as fo llo w s: " in stru m e n t m ean s any w ritin g a ffectin g land situate in G hana, in cluding a ju d g e ’s certificate and a m em orandum o f deposit o f title deeds." T h a t a rg u m e n t is ap tly answ ered by the follow ing passage from M egarry a n d W ade The Law o f R eal Property, (3rd ed) at p 137: ”(a) E sta te s co n tracts. E qu ity w ou ld decree specific perform ­ a n c e o f c ertain c o n tracts w hich w ere rem ediable only by dam ­ a g es a t C o m m o n Law. O f th e se th e m ost im portant w ere con­ tra c ts fo r th e sale o r lease o f land, now called estate contracts. A p u rc h a se r u n d er co n tra ct to buy land had therefore at com ­ m o n law o n ly a rig h t to dam ages if his vendor broke the con­ tra c t. B u t in equity he had a right to com pel his vendor to convey th e lan d itself. This right to specific performance created a right in the land a species o f equitable property right. There­ fore, i f A agreed to sell land to B, but instead later sold and conveyed it to C, B could recover the land from C i f C had no tice o f B 's contract when he obtained the land. B was equitable owner from the time o f the contract and could en­ fo rce his equitable right to the land against anyone except a bona fid e purchaser o f a legal estate without notice o f the c o n tra ct. " (T h e em p h asis is m ine.) T h e statu te ta lk s o f an instrum ent a ffecting land and not one transferring an in terest in land. A n agreem en t for sale o f land clogs the land, in equity [1998-99] SCGLR Amuzu v Oklikah -AtugubaJSC in an estate particular. I therefore hold that the defendant's contract for sale o f th e land in this case is a writing affecting land, manifestly situate in G hana and a registrable instrument within the meaning of section 24( 1) o f A ct 122. A s I said earlier, there is a considerable body of case law establish­ ing th e ineffectiveness o f an instrument registration. These range from A shanti Construction Corporation v Bossman [1962] 1 GLR 435, SC d ecid ed under section 23(1) of the Kumasi Lands Ordinance, Cap 145 as then am ended, through Tiarev. Bro&£ey[ 1972] 2 GLR 331, CA; Am efm u v Odametey [1977] 2 GLR 135, CA; [1982-83] 2 G L R 1215, SC; L td [1987-88] 2 G L R 314, SC to [1989-90] 1 GLR 14, SC. A s th ese decisions have stood for long, they ought to be adhered to by th is co u rt particularly in view of the stare decisis provisions of article 129(3) in so far as at least the previous decisions ofthis court are concerned. v Narteyy M I am , how ever, o f the view that, with the greatest respect, those decisions too stringently and literally applied the provisions of section 24(1) o f A ct 122 and, for the reasons that follow, ought to be modified and th a t th is is not a fit situation to apply the maxim communis error fa cit ju s (universal error amounts to law). The said decisions treated generis. To some extent that section 2 4 ( 1) o f A ct 122 as a provision, approach is ju stifiab le. For, as Professor GR Woodman states in his arti­ cle "T he R egistration o f Instruments Affecting Land" (1975) 7 RGL 46 at p 54 co n cern in g the prior registration as required by statutory law, under th e su b-headin g "The weakness o f the Ordinance:1' "It has been seen that the Ordinance affected the rights of claim an ts to land in only a small class of cases. Frequently reg­ istration o r failure to register made no difference to the rights of a g rantee ... In particular, if a grantee expected to take posses­ sion o f the land, he might well consider that he had no need to register, because his possession would constitute notice of his in terest, and the case law established that a subsequent pur­ ch aser w ith notice could not gain priority by registration. C onsequently many instruments were not registered, and th e system did not go far towards its objective of increasing certainty. B y 1962 it was decided that a stricter system was necessary." Supreme Court o f Ghana_Law Reports [1998-99] SCGLR B ut as th e late d istin g u ish ed P ro fesso r B entsi-E nchill sum m ed up in his in v alu ab le book, Ghana Land Law, at pp 327-328 concerning the effect o f A c t 1 2 2 ,1 9 6 2 : "... It is indeed open to co n stru ctio n as a race statute, 'giving ab so lu e p rio rity to an in stru m en t by reason only o f its registra­ tio n .' R edw ar, as has been observed above, took such a view even o f th e re p ealed enactm ent. T his w ould be because o f the u n q u a lifie d p ro v isio n th a t an instrum ent shall be o f no effect until it is registered, in co n ju n ctio n w ith the provision giving p rio rity (a fte r th e p eriod o f grace) according to the tim e o f reg­ istration. B u t to ta k e th is v ie w w ou ld be to ignore (a) the valid com ­ p a riso n s m ad e in Crayem's case w ith the w ording o f the Irish, M id d le se x and Y orkshire A cts, in the light o f w hich it is reason­ able to conclude fro m the language o f both the old and the new enactments that there was no intention to exclude alto­ gether the application o f the doctrine o f notice; (b) the fa ct that the new enactm ent does not significantly depart from the provisions o f the repealed enactments as interpreted by the courts and that upon a reasonable construction the two new provisions in this p a rt o f the new A ct appear to do no more than to articulate the interpretation placed on the old enactm ent by Brandford Griffith C J and follow ed in subse­ quent decisions." (T h e em phasis is m ine.) T h is a rg u m e n t o f B entsi-E nchill is supported by the C ourt o f Appeal d e c isio n in B oateng v Dwinfour [1979] G L R 360, C A w herein the lucid ju d g m e n t o f A n in JA (as he th en w as) exam ined the com m on law and le g islativ e an ce stry o f th e L and R egistry A ct, 1962 (A ct 122). In the light o f th a t A n in JA stated a t p 366 as follow s: "T he g eneral p rin c ip le o f eq uity is th at a purchaser is deem ed to h av e n o tic e o f all th a t a reasonably prudent purchaser w ould h a v e disco v ered . T hus w h ere th e purchaser, like the p lain tiff in th is case, had actual n otice th at th e property w as in som e w ay e n cu m b e re d , she w ill be held to have constructive notice o f all th a t sh e w o u ld h av e d isco v ered i f she had investigated the in c u m b ra n ce ... 'A p art from investigating th e deeds, a prudent purchaser w ill in spect the land itself. I f any o f the land is occupied by [1998-99] SCGLR Amuzu v Oklikah - Atuguba JSC any person other than the vendor, this occupation is con­ structive notice o f the estate or interest o f the occupier, the terms o f the lease, tenancy or other right o f occupation, and o f any other rights o f his, except... a mere equity."’ Then at p 369 he stated: "In the fourth place, the Land Registry Act, 1962 (Act 122), like its predecessor, the Land Registry Ordinance, Cap 133 (1951 Rev), did not abolish the equitable doctrines o f notice and fraud; neither has it conferred on a registered instrument like exhibit B herein a state-guaranteed title. Reg­ istration does not create absolute title; and the learned trial judge erred by virtually holding that the plaintiffs title be­ came absolute and impregnable with registration. Notwith­ standing her registered deed o f sale, the plaintiff is affected with constructive notice o f and is bound by, the defendant's parol customary tenancy. Her claim for possession and ejectment and other ancillaiy reliefs must accordingly fail and be dismissed." (The emphasis is mine.) B ut o f this a caveat later. Though this dictum on the effect o f the Land Registry Act, 1962 (Act 122), might be considered obiter, it has some persuasive force. It is sometimes said that the predecessor legislation o f Act 122 only related to priority o f competing instruments affecting land, but the point to note carefully is that even there, there was no express provision ex­ em pting fraud and notice from the purview o f the provisions relating to priority o f registered instruments. Fraud and notice were, nonetheless, as earlier shown, exempted by the construction placed on them by the courts. It is a settled rule o f the construction o f statutes that an enactment is deemed not to alter the general existing law save by express words or necessary implication. Thus in Kuenyehia v Archer, Supreme Court, Suit N o 5/93,25 May 1993, SC unreported, Francois JSC said: "Tedious though it may appear, one must repeat the well-known canon o f construction that the courts will presume that the law giver would use clear and unmistakable words if the inten­ tion were to abrogate a long standing rule o f law." (The emphasis is mine.) Supreme Court of G han^Law Reports [1998-99] SCGLR S ee a lso M axw ell, Interpretation o f Statutes, (12th ed) (1969) at p 116. T h is h a s b e e n e x p re sse d by D ev lin J in his inim itable w ay in National A ssistance B oard v Wilkinson [1952] A ll E R 255 at 260: "It is a w ell established principle o f construction that a stat­ ute is not to be taken as affecting a fundam ental alteration in the general law unless it uses words that point unmistak­ ably to that conclusion," (T he em phasis is m ine.) A g a in , it is a se ttle d rule o f co n stru ctio n th a t statutes in pari materia w h e th e r e x p ire d o r n o t sho u ld be tak en and construed together, as ex­ p la n a to ry o f e ac h other. To th is end, A d ad e JSC in Kuenyehia v Archer (su p ra ) said: "All statutes made in p a ri materia should be construed to­ gether, as one system and as explanatory o f each other, so that when there is an ambiguity in one, it may be explained by reference to another statute in the same system. In con­ struing a statute, it is therefore legitimate to refer to an ear­ lier statute in p a ri materia even i f it has expired or has been repealed." (T h e em phasis is m ine.) T h e se ru les o f construction buttress the argum ent o f Professor Bentsi- E n c h ill re fe rre d to e a rlie r in this ju d g m e n t to the effect that the Land R e g istry A c t, 1962 (A c t 122), can n o t be construed w ithout regard to the c o n stru c tio n p la c e d on its p re d e ce sso r statutes relating to registration in th is country. F u rth e rm o re , th e long title to A c t 122 is as follow s: "An A ct to con­ solidate with amendments the law relating to the registration o f in­ strum ents affecting land. " (T h e em phasis is m ine.) O d g e rs in his b o o k , The Construction o f Deeds and Statutes, (5th ed), sta te s a t p 349 as fo llow s: "A consolidating statute ... w ill almost certainly adopt lan­ guage w hich has already received ju d ic ia l interpretation; the case law; therefore, on this language will be most valu­ able. " (T h e em p h asis is m ine.) A s C h itly J said in c o n sid erin g a section o f a consolidating A ct, viz, the B an k ru p tcy A ct, 1883: [1998-99] SCGLR Amuzu v Oklikah “ Atuguba JSC "I think it is legitimate in the interpretation of the section in this amending and consolidating Act to refer to the previous state o f the law fo r the purpose o f ascertaining the intention o f the legislature." (The emphasis is mine.) Then, later at this same page the learned author states: ”Again... where a particular judicial construction has been put upon the words o f a statute, the legislature, being pre­ sumed to know the law, will be taken to have used those words in subsequent legislation in the sense judicially de­ termined. " (The emphasis is mine.) It is conceded that section 24( 1) of Act 122 is a new provision in our registration legislation. Nonetheless, it must be stressed that the local case law that preceded its inception dealt with cognate provisions o f the English and Irish statutes and taught beforehand how the doctrines o f fraud and notice can be legislatively excluded, if that is the intendment of the legislature. As most of these previous decisions were extensively review ed as Bentsi-Enchill demonstrated (supra) in the case of Crayem v Consolidated African Trust Ltd (1949) 12 WACA 443, a few ex­ cerpts therefrom will bear out the point in issue here. At p 445 o f the Report, Lewey JA who delivered the judgment of the court said: "It is not necessary to deal at any length with the Irish Act. Its provisions were more extensive than those o f the English Acts, and its language clearly excluded the application o f the doctrine o f constructive notice ... The Act provided that every deed registered under the Act was to be deemed and taken as good and effectual "both in law and equity" ac­ cording to the priority o f time o f registration and that unreg­ istered deeds were to be "judged fraudulent and void" not only against registered deeds but also against judgment credi­ tors. It would not appear, therefore, that any useful purpose would be served in making a detailed comparison o f such far-reaching provisions with those o f Cap 112.” The m essage from this is very clear, that is to say, when the legislature uses such radically clear language, equitable notions o f fraud and notice cannot stand in its way. By contrast when Ghana’s legislature in section 24(1) o f A ct 122 mildly provides that: ”an instrum ent... shall be o f no Supreme Court of Ghan^JLaw Reports [1998-99] SCGLR e ffe c t u n til it is re g istered ," it p aten tly lacks th e requisite clarity o f lan­ g u a g e w ith w h ic h to e x clu d e th e e q u itab le doctrines o f fraud and notice e sp e c ia lly as it h a s re ta in e d alm o st all th e other provisions o f the earlier O rd in a n c e w h ic h , like C ap 133 w ere ju d ic ia lly construed as accom m o­ d a tiv e o f th e d o c trin e s o f frau d and notice. C ertainly, it w ould be im put­ in g in c o n siste n c y to th e leg islatu re to construe the provisions o f A ct 122 re la tin g to p o in ts o f in stru m en ts as accom m odative o f the doctrines o f fra u d a n d n o tic e w h ile h o ld in g th a t section 24(1) o f the sam e A ct rejects th e se sam e d o c trin e s. B u t o f this, a cav eat later. F u rth e rm o re , th e re is a fairly w ell-settled principle o f law th at a per­ so n m ay, h av in g regard to certain inequitable circum stances, be precluded fro m re ly in g on th e p ro v isio n s o f a statute. In Ahumah v Akorli(No 2) [ 1975] 1 G L R 473, A m issah JA sitting as an additional ju d g e o f the High C o u rt h e ld th a t to p re v e n t th e d efen d an t from com m itting a fraud he w o u ld n o t in e q u ity be allo w ed to rely on section 4 o f the Statute o f F ra u d s, 1677 to d e fe a t his oral agreem ent to sell the land to the plain tiff w h e reu n d e r, the plaintiff, in relian ce on an expectation that the defendant w o u ld also fu lfil his p a rt o f the bargain, had partly perform ed his part th e re o f. In A du v Kyereme [1984-86] 1 G L R 1, C A it w as held that the m o rtg a g o r co u ld n o t in eq u ity rely on the lack o f the requisite statutory c o n se n t u n d e r th e S tate C ou n cils (A shanti) O rdinance, 1952, to defeat h is o w n m o rtg ag e: see also In re Markham (Deed); Markham v Afeku I V [19 87-88 ] 1 G L R 34, C A and Djomoa v Amargyei [1961] 1 G LR 170, w h e re th e S uprem e C o u rt d isallow ed the defendant from using the C o n c e ssio n s O rd in a n c e to d e fe at the p la in tiffs grant, though its provi­ sio n s h a d b een b reach ed . T h e p o sitio n is fu lly covered by M egarry and W ade, The Law o f R eal Property, (3 rd ed), p 569 as follow s: "T h e S tatu te o f F rau ds, 1677, w as intended to prevent the fraud an d p e rju ry w h ich w ere p ossib le w hen contracts for the transfer o f land co uld be alleged upon m erely oral testim ony. This it did, b u t it op en ed new and d ifferen t possibilities o f deception; a per­ son w ho had m a d e 'a genuine co n tract m ight repudiate it on the g ro u n d th a t th e re w as no p ro p er m em orandum as required by th e Statute. In som e cases o f this kind equity would invoke its wide jurisdiction to grant re lie f against fraud\ even though this meant 'decorously disregarding an A ct o f Parliament.' It m ust be remembered that the Court o f Chancery always re­ garded its e lf as com petent to prevent a Statute passed fo r [1998-99] SCGLR Amuzu v Oklikah - Atuguba JSC the prevention o f fraud from being used as an instrument o f fraud. "In cases o f fraud, equity should relieve, even against the words o f a statute." The commonest and most important exam ple o f this principle is found in the doctrine o f part performance."(The emphasis is mine.) This applies, mutatis mutandis, to section 24(1) o f the Land Registry Act, 1962 (A ct 122). This position has recently been clinched by the decision of this court in Okofoh Estates Ltd v Modern Signs Ltd [1996-97] SCGLR 224, in w hich the court unanimously held that the trial judge was wrong in sum- ^ marily dismissing the plaintiffs action, even though he had pleaded fraud in answ er to the defendant's reliance on a certificate o f title issued by the \ \ Land Title Registration Law, 1986 (PNDCL 152). As Edward Wiredu \ JSC said at pp 253-254: / \ / I "An allegation o f fraud goes to the root of every transaction. A judgm ent obtained by fraud passes no right under it and so does a forged document or a document obtained by fraud pass no right.” In this case, fraud has not distinctly been pleaded as the practice requires. But in view, especially of the provisions of sections 5,6 and 11 o f the Evidence Decree, 1975 (NRCD 323), regarding the reception of evidence not objected to, it can be said that where there is clear but unpleaded evidence o f fraud, like any other evidence not objected to, the court cannot ignore the same, the myth surrounding the pleading o f fraud notw ithstanding: see generally Asamoah vServordzie [1987-88] 1 GLR 67, SC and Atta v Adu [1987-88] 1 GLR 233, SC. In the context o f equity it can even be said that fraud relates to any colourable transaction and not necessarily fraud in its strict legal sense. In com pelling circumstances, the courts have not allowed the rules o f pleading to stand in the way o f justice. Thus in Samasinghe v Sbaiti [1977] 2 G LR 442, CA the plaintiff clearly based his action on a written m em orandum which did not contain all the essentials o f an enforceable contract. It was the oral evidence led without objection which saved the plain tiffs case. At page 447 Apaloo CJ, in whose judgment the other m em bers o f the court concurred, said: "it is true that the respondent pleaded his case in a manner which suggests that he was going to found his case only on the note Supreme Court of GhanaJLaw Reports [1998-99] SCGLR e x h ib it A b u t th e e v id en ce read as a w hole did not so lim it the c ase and as I said, no o b je ctio n w as taken to oral evidence led in a m p lific a tio n o f th e n o te ... I cannot accept that a court o f equity w ou ld deny its remedy to a deserving suppliant be­ cause his case w as not p lea d e d as expertly as one could w ish or that there was some apparent discrepancy between the p lea ding a nd the evidence which caused no surprise to the other pa rty..." (T he em phasis is m ine.) A n d in Sch a n d o rfv Zeini [1977] 2 G L R 418, C A at 440 A m issah JA, in w h o se ju d g m e n t th e o th ers concurred, also said: V f / I } "M r R e in d o rf has stated th a t under O rder 19, r 16 o f the H ig h C o u rt (C ivil P ro ced u re) R ules, 1954 (L N 140A) w hich re- / q u ire s th e p arties to an action to raise by th eir pleadings all m at- i te rs w h ich show th e action or counterclaim not to be m aintain- I ab le, o r th a t th e tran sac tio n is eith er v o id or voidable at law, this \ p o in t c a n n o t be ra ised now . B ut having indulged the appellants this far, it would almost appear churlish o f me i f I were to dismiss their fin a l submis- sion on a technical rule o f pleading. (T he em phasis is m ine.) I think M r Reindorf, must be right, \ j \ i Ntv [1977] 2 G L R T h e a p p e lla n ts in th a t c ase had been allow ed to canvass issues such as th e lack o f m in iste ria l co n cu rren ce to a disposition o f stool land, though u n p le a d e d b y th em . A g ain, in fittin g situations, the courts have given p ro te c tio n u n d e r th e L an d D ev elo p m en t (P rotection o f Purchasers) Act, 1960 (A c t 2 ) th o u g h un pleaded: see 4 5 2 , C A a t 4 6 1 ; Abdilm asih v Am arh [1972] 2 G L R 414 at 426 and Odoi v H am m ond [1971] 1 G L R 375, C A w here it has been held that a fa ir o p p o rtu n ity sho u ld be given to th e other side to m eet that course by e v id e n c e o r o th erw ise. In th is c ase th e frau d u le n t co n d u ct o f the defendant's vendor and th a t o f th e re sp o n d e n t (h e re a fte r called the plaintiff) per his agent in G h a n a, o n th e ev id en ce, stinks. It w ill be piteous th a t equity w hich can re lie v e e v en a g ain st the p lain w ords o f a substantive statute can fail to do so b y th e ru le s o f form (w hich it av o w ed ly says m ust yield to substance) c o n ta in e d in su b sid ia ry legislation, rules w hich the courts have said are h a n d m aid s to th e ad m in istratio n o f ju s tic e and n o t m asters. In an y case, it is a settled ru le o f construction o f statutes that there is a p re su m p tio n ag ain st ab surdity and unless the w ords are absolutely in- [1998-99] SCGLR Amuzu v Oklikah - AtugubaJSC cap ab le o f any o th er construction, one that leads to absurdity must be avoided: see Surakatu v Dende (1941) 7 WACA 50. There is no doubt th a t in th is c ase w here it is clear that the plaintiff and his vendor, with m alice afo reth o u g h t, concerted to unjustly enrich themselves at the ex­ p en se o f th e d efen d an t, it w ould be absurd to allow their enterprise to go through. T h e m o d e m purposive rale o f construction o f statutes, which looks to th e a p p a re n t purpose o f the statute instead o f its literal meaning, also m ilitates a g a in st th e plaintiff’s case. It is manifestly clear that the pur­ po se o f th e L a n d R egistry A ct, 1962 (A ct 122), is to provide certainty o f inform ation a b o u t land transactions so as to avoid fraud and the like. It is co n trary to th is p o licy objective to allow fraud rather to flourish. M eg a rry and W ade in their book referred to (supra) state at page 1026: "T h ere a re th ree types o f registration in force in England. These are: (i) R egistration o f incumbrances; (ii) R eg istratio n o f deeds; and (iii) R egistration o f title. The fir s t two types o f registration are designed to strengthen the traditional system o f conveyancing by enabling a pur­ chaser to discover incumbrances and transactions affect­ ing title. "(T he em phasis is mine.) G R W oodm an in his article "The Registration o f Instruments Af­ fectin g L an d " (1 9 7 5 ) 2 R G L 46 states: "The prim ary object o f a system o f registration is to pro­ mote certainty. A register is essentially a written record which, sin c e it is relatively perm anent and unalterable, is a reliable m eans o f ensuring accurate knowledge o f facts after they have occurred. "(The em phasis is mine.) It is p lain th a t th is ascertained purpose o f registration does not in­ clu d e a p u rp o se to encourage and protect inequitable adventurers, and they o u g h t n o t to have th eir way. Inspiration again is found in the Crayem case (su p ra ) w h e re, at page 445, it is stated concerning the M iddlesex R eg istries A c t, 1708 (7 A nne C ap 20) as follows: Supreme Court o f GhansiJLaw Reports [1998-99] SCGLR " O f th a t A ct, it is su fficien t to say th at its provisions established a p rim a fa c ie ru le, th a t, as b etw een purchasers fo r valuable con­ sid e ra tio n , in stru m en ts reg istered u n d er th e A c t had priority ac­ c o rd in g to th e d a te o f reg istratio n and not according to the date o f e x ec u tio n . An unregistered instrument while not invalidated w as to be adjudged fraudulent and void against a later in­ strum ent which was duly registered. But the real purpose o f the Act, was to prevent fra u d and to afford protection from deceit. A n d it is o f interest to note that in practice, the prima fa c ie rule w as therefore subject to the qualification that a subsequent purchaser could not by registration obtain p ri­ ority over an earlier unregistered instrument i f he had notice o f it, fo r in such a case, he was not deceived." (T h e e m p h asis is m ine.) H o w ev er, th e c ru sad in g sp irit o f equity' has not escaped criticism and m u st b e h eld w ith in perm issible bounds. T hus in Greaves v Tofield [1880] 14, C R D 563 B ra m w ell L J a t p 578 said: "I d o u b t v ery m u ch w h e th er th e principle o f equity ought to be e x te n d e d to c ase s w h ere reg istratio n is provided for by statute. I d o n o t k n o w w h e th er I hav e grasped the doctrines o f equity cor­ re c tly in th is m atter, b ut if I have they seem to m e to be like a g o o d m a n y o th e r d o ctrines o f courts o f equity, the result o f a d isre g a rd o f g eneral principles and general rules in the endeav­ o u r to do ju s tic e m ore o r less fanciful in certain particular cases." A n d in Wyatt v Barw ell [1815] 19 Ves 435 at 439, Sir W G rant M R stated: "A re g istered deed stands on a different footing from an ordinary c o n v ey an ce. It has been m uch doubted w h eth er the courts ought e v e r to h av e su ffered the question o f notice to be agitated as a g a in s t a p a rty w h o has duly registered his conveyance, but they h a v e said , 'w e c an n o t p erm it fraud to prevail; and it shall only be in c ase s, w h e re no tice is so clearly proved as to m ake it fraudu­ le n t in th e p u rc h a se r to take and reg ister a conveyance in preju­ d ic e to th e k now n title to an o th er th at w e w ill suffer the regis­ te re d d eed to be affected.'" A n d A St J H an n ig an in his article: "The Q uestion o f N otice under T h e G han aian System o f R egistration o f D eeds" (1966) 3 U G LJ 27 states: [1998-99] SCGLR Amuzu v Oklikah - Atuguba JSC "T he e ffe ct o f registration is important as registration o f deeds can be used as an alternative to registration o f title in giving se­ cu rity to a purchaser o f land ... T h e pu rpose o f a system o f registration o f title is to give a state g u aran tee o f title, w hereas a system o f registration o f deeds is m erely concerned with priorities, giving priority to the instrument first registered. W ithin its limits therefore a system o f registra­ tio n o f deeds can serve a useful purpose as it may protect a p u rc h a se r from prior unregistered instruments. This purpose o f a sy stem o f registration o f deeds cannot, however, be fully achieved, if as D r Bentsi-Enchill appears to consider, both actual and constructive notice will defeat registration, a proposition sup­ p o rted by the W est A frican Court o f Appeal in the case o f Crayem v Consolidated African Trust Ltd [1949] 12 WACA 443. I f this is the case, a person who registers his instrument will be in no better position than a bona fide purchaser for value w ith o u t notice in a "non-register" country, save that he will gain p rio rity over instrum ents registered subsequently. The efficacy o f a registry o f deeds would therefore be enhanced if a person w h o registered w ere to feel secure from prior unregistered in­ s tru m e n ts sav e w here he had actual notice thereof which am ounted to fraud; and this, it is suggested with the greatest re sp ec t to the W est African Court o f Appeal is the interpretation th a t should have been placed upon the Ghanaian statute." In this co n n ectio n , he says that section 24(1) o f Act 122 o f Ghana is sim ilar to section 12 o f the English Judgment Registration Act, whereun- der it w as held th at nothing short o f fraud alone could defeat a registered instrum ent. O u r L an d R egistry Act, 1962 (Act 122), has operated so far, amidst attem p ts now and again to navigate judicially off its rigours. Thus in Samarasinghe v Sbaiti [1977] 2 GLR 442, CA at 446; Mahama v Soli [1977] 1 G L R 205, CA at 237 and Maclean v Akwei II [1991] 1 GLR 54, at 60, C A it w as said that the Act cannot be used as an engine for fraud to d e fe at a clear transaction from which the protesting party has b e n e fite d . In Fretete Odomankoma Jewellery Ltd v Bannermcm [1989- 90] 1 G L R 534, CA it w as held that once section 2 o f the Conveyancing D ecree, 1973 (N R C D 175), regarding writing was satisfied, then, the questio n o f registration was irrelevant. Certainly in a situation like this, th e m axim stare decisis et non quieta movere cannot be applied without mitigation. Supreme Court o f G han^Law Reports [1998-99] SCGLR F o r all th e fo re g o in g re a so n s I concurred in the allow ance o f this a p p ea l. B u t fo r th e sam e reaso n s, th e operation o f sections 24(1) and 25 o f A c t 122 o u g h t n o t to be h in d e re d un less th ere is com pelling evidence, w h e th e r fro m c o n stru ctiv e o r actual notice o f a prior unregistered instru­ m e n t, in su ch c irc u m stan c es th a t a party ought n ot to b en efit from con­ d u c t a risin g fro m digniori detur. S O P H I A A K U F F O J S C . I am in full agreem ent w ith the judgm ent re a d by m y le arn ed b ro th e r A m piah JSC . I only w ish to add a b rie f o b s e rv a tio n o f m y ow n , in su p p o rt o f th e decision w e have given. O n e o f th e b an es o f o u r cu rren t society is th e frequency w ith w hich v e n d o rs o f land, m otivated by greed and venality, p urport to sell the same p ro p e rty o v e r and o v er again to m ultiple purchasers. Frequently, it is only th e v e n d o r w h o co m es o u t sm iling, having collected his m oneys from his v ic tim s. S o m etim es, as in th is case, such a vendor, w ith his loot in hand, v a n ish e s fro m th e scene, leaving his victim s to spend vast am ounts o f v a lu a b le tim e an d m oney fig h tin g over the property. T his m enace has re a ch e d su ch p ro p o rtio n s th a t there are num erous locations in our m etro­ p o lita n a re as w h e re p u rch asers feel com pelled to resort to self-help in v ario u s form s, including the unlaw ful em ploym ent o f arm ed personnel, to g u a rd th e ir lan d d ev elo p m en ts ag ain st com peting purchasers. To a sig n ific a n t exten t, th is d escen t into m ayhem has been aided by a m isa p p re h e n sio n o f section 24 o f the L and R egistry A ct, 1960 (A ct 122) w h ic h , b ein g a ra c e statute by nature, has been construed as giving a b so lu te statu to ry b ack in g to th e first person to secure the registration o f h is in stru m e n t o f title, regardless o f the tim e he obtained his conveyance o r th e n u m b e r o f p rev io u s unregistered purchasers w ho m ight have pur­ c h a se d th e sam e land from th e sam e v en d o r and regardless o f any prior n o tic e th e su b se q u e n t p u rch aser m ight have had o f the previous transac­ tions. A s I see it, th e o b je ct o f A c t 122 is to afford an effective rem edy a g a in s t th e m is c h ie f suffered by purchasers for valuable consideration, a risin g fro m th e su b seq u en t discovery o f secret or concealed dealings, b y re q u irin g th a t an instrum ent affectin g land be registered, under the p eril th a t i f it is n o t fo und on a register, a subsequent purchaser for valu­ a b le c o n sid e ra tio n w ill obtain prioriy over it by the earlier registration o f his in stru m en t. T hu s, th e p u rp o se o f registration is to give notice to the w h o le w o rld o f an ex istin g interest. H ow ever, although the need to be a b o n a fid e p u rc h a se r w ith o u t notice is not expressly stipulated in A ct 122, o n c e it is acc e p ted th a t th e o b ject o f th e A ct is to afford and facilitate [1998-99] SCGLR Amuzu v Oklikah - Atuguba JSC notice to th e p u b lic o f pre-existing interest in any piece o f land, then, it can be v alid ly argued that the objective is achieved when the purchaser has p rio r n o tic e o f such interest, even if the instrument covering the interest is u n reg istered . B oth th e trial and appellate courts, in this case, found that at the time the resp o n d en t (h ereafter called the plaintiff) purchased the land, he did, indeed, h av e n o tic e o f the appellant’s (hereafter called the defendant) prior interest. N o t only that, but he was already aware when he was dealing w ith th e vendor, C lem ent Quartey-Papafio, that the said vendor had a lread y sold o r agreed to sell the land to his friend, the defendant’s principal, and th a t th e defendant had already entered into possession. Indeed, th e p la in tiff cam e to know the vendor through the defendant, w ho h ad alre ad y purchased the property. It was the very fact o f that purchase w h ich prom pted the plaintiff to seek property in the same local­ ity. A dm ittedly, equity is supposed to follow the law, however, it is also a w ell esta b lish e d rule th at no law or statute must be permitted to become an in stru m en t o f fraud. A s w as observed by the learned Brobbey JA in his ju d g m e n t in th is case at the Court o f Appeal: ’’T h e law w hich w ills aw ay a house in respect o f which a first b u y e r has paid as m uch as fifty per cent o f the purchase price to a v e n d o r as a deposit, ju s t because the purchaser’s friend will m ov e fa st to pay even a lesser amount to the vendor and pro­ ceed e x p ed itio u sly to register a document on the second sale o b v io u sly leaves m uch to be desired.” I w o u ld also add th a t no law can be applied so as to yield such an absurd resu lt. T h e law has frequently been called an ass. However, it is m y resp ectfu l view that, for this court to promote and foster, in the light o f th e facts o f th is case, an asinine result would be so grossly unjust as to put th e law into d isrepute and further encourage the rapacity o f vendors such as th e o n e in this case. It is worthy o f note that in section 34(c) o f A ct 122, any person w ho knowingly "makes conflicting grants in re­ spect o f the same piece o f land to more than one person" is guilty o f a seco n d d eg ree felony. T hat being so, to my mind, it follows that a person w h o , w ith p rio r notice o f a prior sale, purchases property from the sam e v e n d o r m akes his purchase with knowledge that the vendor is com­ m itting a felony, and his transaction is vitiated by that criminality. G iv en th e facts o f this case, w here a blind application o f section 24 Supreme Court o f GhansULaw Reports [1998-99] SCGLR w o u ld lead to o u r c o n d o n in g Q u artey -P ap afio 's reprehensible and felo­ n io u s c o n d u c t and th e p art p lay ed by th e p la in tiff w ith full know ledge o f th e situ a tio n , it is o n ly ju s t and p ro p er th a t equity should have a role to p la y in re sto rin g th e b alance o f ju stic e. In my opinion, section 24 can only a p p ly to p ro te c t a b o n a fid e p u rc h a se r w ith o u t notice o f a prior unregis­ te re d tra n s a c tio n . T h e re fo re , w h ere a p u rch aser has prior notice o f a p re v io u s p u rc h a se tra n sa c tio n in th e sam e land, th e m ere fact th a t he is th e f irs t in tim e to re g iste r his instru m en t c an n o t give his instrum ent pri­ o rity o v e r th a t o f th e first p urchaser; his tran sactio n is tainted by his k n o w le d g e . In su ch a case, an unreg istered instrum ent w hich creates an in te r e s t in th e la n d m u s t ta k e p rio r ity o v e r th e la te r p u rc h a se r's in stru m en t. Appeal allowed. Judgm ent o f the Court o f Appeal set aside. H A B -T / \ \