O. H. Sundi v A. N. Ravalia (Civil Cause No. 49 of 1948) [1949] ZMHCNR 2 (1 June 1949)

LAW REPOR'rS OF N ORTHERN . RHODESIA VOLUME V-PARTS 1 AND 2 CONTAINING fl CASES DETERMINED BY THE HIGH COURT OF NORTHERN RHODESIA IN THE EXERCISE OF ITS ORIGINAL REVISIONAL AND APPELLATE JURISDICTION (1949-1954) EDITED BY J. G. FEARNLEY SCARR, Esquire M . A. (Hons.), LL. B. Gantab, of Lincoln's Inn, Barrister-at La.w and a Resident Magistrate of Northern Rhodesia H'G ,-.&.-~ a.-..... . . REr-ua Uc ~;·F':~ . ' . H co u ;.n ·J • . :, J - .. •· .,. .• • • . / ... _ f - ' al' ; . . . - • l O .·, t , , . • • ►~- ~ . I ~ ~ .. • .. •. • C. I • I - : • • . . . . . t t ., • • - r.-· "' f>J· . , . . . • , r ,· ' . ~ . t-••.. .... 1•···• ., .................. - t ... . ... F O -~~~•_Gi:~ (:~:-~-: :. , .. . . ... -x "-0u r. -- ..._ _ __ _ , , . ,..,. - • -. , , •• ; I ~ !_ \ . ._ •;• = ', P1:JBLISHED BY THE AUTHORIT Y OF THE CHIEF J USTICE 0. H. SUND! v. A. N. RAVALIA. CrvrL CAUSE No. 49 OF 1!)48. [Before the Honourno:c ~;r::,. J!lRtii:e WoODi\lA.~ at Ndola on the 1st J11tle, 1049.) Tenancy agreement-effect of non-registratiun~wning of " null and void "--,mtry -into possession and payment of rent-tenancy from year to year created by pres1miption of law. The facts are set out fully in the judgment below: Held (l-6--49): (1) That the meaning of" null and void " in section (i of the La.nds and Deeds Registry Ordinance is " of no effect whatever" (judgment to the contrary in Warcl v. Casale and Burney (I) ·infra not followed). (2) Accordingly, a tenancy agreement which should have been, but has not been, registered cannot be relied upon as an agreement for a lease and cannot be used to fix the date of the commence ment of a tenancy from year to year which has been created by actual entry and payment of rent. (3) Ternint not estopped from alleging nullity where, although requested to do so, he has failed to register, since such course was open to the landlord or indeed any " interested person ". Quaere whether this would apply in the event of fmud [Editor and on this point sec Lazarus Estates Ltd. v. Beasley (1956) 1 A. E. R. 341 at p. 345]. (4) The English doctrine of notice of prior registered documents (as set out in Le Neve v. Le Neve (3) infm and simil.ir English cases) is, in the absence of fraud, not a.pplicablc to this Territory, being expressly excluded by section 7 of the Ordinance. The relevant sect.ions of the Lands and Deeds Registry Ordinance are set out in the judgment hereunder. Cases referred to: (l) Jl'ar<.l v. Casale and Burney at page 75() hereof. (2) Parker v. 'l'aswell (1858) 27 L. J. (Ch.) 812; 44 E. R. 1106. (3) Le Neve v. Le Neve (1748) 3 Atk. 646; Amb. 436; 2 Wh. and Tud. L. C. 175; 26 E. R. 1172. (4) Edwards v. Edwards 2 Ch. D. 201. (5) Monolithic Bu·ilding Co. in re Tacon v. The Company (1015) 1 Ch. 665. [Editor-For a case where extension of time for registration was allowed see Patel £tncl another v. Ismail reported a.t p. 563 hereof.] 34G 0. H. SUNDI v. A. N. RAVALIA Woodman, J.: This is an appeal by 0. H. Sundi against a d~cision of the Subordinate Court (Class I) :Fort Jameson giving judgment for the respondent, A. N. Ravalia, with costs in an action brought by the ar.pcllant against the respondent in which the appellant claimed £120 ft 0 m the respondent as rent due and unpaid for the stand on Plot No. J-~- , The action was commenced 0~ t,!:!c 17~!;. ;;arch, 1948, by writ of dummons. No statement of clai!n was filed by the plaintiff aiJart from the particular::; i:>f claim set Ol!t in the writ of summons which were as follows: " Rent for sta.ild 0n Plot No, 48 should be in advance for 1948 and not yet paid ". No statement of defence was filed by the defendant. As the Sub ordinate Court did not order the plaintiff to file a written statement of claim nor order the defendant to file a written state ment of defence the procedure followed was in accordance with Order XVIII rule l of the Subordinate Courts (Civil Jurisdiction) Rttles (Cap. 4). The plaintiff relied on a tenancy agreement dated the 24th January, 104 7, according to the terms of which the appellant agreed to let ancl the respondent agreed to take on rent all that Plot 48 situate in Fort Jameson Township along with the buildings thereon erected for a period of four years commencing from the 1st February, 1947, at the yearly rent of £120 payable yearly in advance. This tenancy agreement was not registered as required by section 4 (1) of the Lands and Deeds Registry Ordinance (Cap. 84) (hereinafter called " the Ordinance "). The Subordinate Court found as a fact that the respondent did not enter into possession until the 15th May, 1947. The respondent paid to the a1Jpellant £120 by cheque dated the 8th . May, 1947. This cheque was given to the appellant on the 8th May, 1947. On the face of the cheque were written the words " House rent for one year ". It was at no time suggested that these words were written after the respondent signed the cheque. At the trial counsel for the plaintiff contended that although the tenancy agreement was not registered the defendant was to blame for that and was consequently estopped from alleging that the agreement was " null and void " despite the provision of section 6 of the Ordinance which reads " Any document required to be registered as aforesaid and not registered shall be null and void ". He further contended that even if the defendant was not estopped, the effect of section 6 of the Ordinance was that the tenancy agreement, though void in law as a lease, was valid in equity as an agreement for a lease and could be specific ally enforced. And further that even if the agreement was void both in law and equity, a tern:mcy from year to year a,rose by presumption of law, as the defendant had ente1·ed upon the premises and ptiid an annual rent. He submitted that the entry was made by the tenant under the terms of the agreement and that therefore the defendant became a yearly tenant on tho terms of the agreement so far as they applied to a yearly tenancy. In any of these alternatives the second year's rent became due on the 1st :February, 1948, and the Subordina,te Court should therefore have given judgment for the plaintiff. The contentions of counsel for - - ... , 34S 0. H. SUNl)I v. A. N. RA VA LL\ requires t.he original and in cf'rtnin cases one, and in other ca,; •s t.wo, copies to be handed to the Registrar. As the appellant was only in po1-1-ession of the countcrpar{·,_of tho Jcnse he contends that he was not in a position to corn ply with Rrgulat.ion a. . IL may well he that for this purpose bot,h the leal'C and eou!li-crparl, arc originals, hut even if thi;,; is not so, the Regist.rar under section 4 (~) (b) of the Ordinance has power to order the lcRscc to prorluce the origi1ml lease. A refusal by the lessee to obey such an order could noL dcfcnl In the::;c circumstan<·(•~ the landlord's right. to have the lease registered. I can see no reason why the respondent ~hould be e:c:t-Opped from settin!-( up the pica that the tenancy agreement was null and void. It might have been a diffcrPnt matter if the rcspomlcnt had induced t he appellant to refrain from registering by falsely informing the appellant that the document had been registered by the respondent .. 'rhc second ground of a,ppeal therefore fails. The questions raised by the othcl' grounds of appeal really amount to this: \Vhat on t,hc correct interpretation of the Ordinance were the consequences of non registration in the circumstances of t,his case 1 Section 4 (1) of the Ordinanee, so far as relevant, to this appeal, reads as follows: " 4. (l) Every document purporting to grant convey or transfer land or any interest in land or to be a lease or agreement for lease or permit of occupation of la nd for a longer term than one year or to create any charge upon land whether by way of mortgage or other wise or which eYidcnees the ~atisfoction of any mortgage or charge and all bills of sale of personal propmty whereof the grantor remains in apparent possession ... must he regist.ered within the times hereinafter specified in the Registry or in a District Registry if eligible for registration in such District Registry. Any document required or permitted to be registered affecting land persons property or rights in any district for which a District Registry !ms been appointed may be registered either in ,mch District Registry or in the Registry." Section 3 (1) of the Ordinance defines " the Registry" as meaning " the Registry of Deeds in Lusaka ". The trial Court held that t,ho tenancy agreement had not been registered as required by sertion 4 of the Ordinance, and this finding of fact has not been attacked by either party to the appeal. Section 5 specifies the times \\iLhin which rcgist.ration must be effected. Section (i of the Grdina.nee is as follows: "6. Any document required to be registered as afornsaid and not regbtered wit.bin the time specified in the last preceding section shall be null and void: Prodded, however, that the Court may extend the t,ime wit..hin which i-uch document must he registered or authorisr its registration after the e~--pirat,ion of such period on such terms as t.o costs and 0. H. SUND! v. A. N. RAVALIA otherwise as it shall think fit if satisfied that the failure to register was unavoidable or that there are any special circumstances which afford ground for giving relief from the results of such failure and t,hat no injustice will be caused by allowing registration: Provided also that the probate of a will required to be registered as aforesaid and not registered within the time specified in the last preceding section shall be null and void so far only as such will affects land or any interest in land." Section 7 (1) of the Ordinance reads: "7 . (1) All documents required to be registered as aforesaid shall have priority according to date of registration: notice of a prior unregistered document required to be registered as aforesaid shall be disregarded in the absence of actual fraud." The agreement dated the 24t,h January, 1947, on which the appellant relies was produced to the trial Court and marked " O. H. S. No. 2 ". From its terms it is clear that it is a lease and not a mere agreement for a lease for a period of four years, and as such it required to be registered under section 4 of the Ordinance. It is to be noted that even if it were a mere agreement for a lease it would still require to be registered under '\ section 4. The lease in question, not having been registered within the time prescribed or indeed at all, is by virtue of section 6 " null and void " whatever that may mean. Apart altogether from authorit,y, I should have thought that the Ordinance means exactly what it says, not " void in law but valid in equity ",nor" void as a lease but valid as an agreement for a lease enforceable in equity by wa.y of specific performance ", but simply " null and void". And if the lease is null and void then it can have no effect whatever, it cannot pass any interest and it cannot be specifically enforced. Is there any good reason for refusing to adopt this plain and natural interpretation of the Ordinance? RomNSON, J., in the case of Ward v. Ca.sale and B1irney (1) decided in the High Court of Northern Rhodesia (Civil Case No. 26 of 1941 ), appears to have held In his view the expression " null and void " in the that there was. Ordinance ought to be interpreted in the same way as the C.ourts in England have interpreted the expression "void at law" in the Real Property Act of 1845. He says " there is no difference in my opinion between ' null and void ' and ' void at law '." The Real Property Act of 1845 provided that leases which formerly had to be in writing under the Statute of Frauds now had to be by deed or "sha,ll be void at law ". Now the leading case on the iuterpret.ation of that provision of the Real Property Act of 1845 is Parker v. Taswell (2). In his judgment in that case LORD CHELMSFORD, L. C., said: "The Legislat,ure appears to have been very cautious and guarded in language that is as a lease. If for it uses the expression 'shall be void at law '- the Legislature had intended to deprive such :i document of all efficacy, it would have said that the document should be 'void to all intents and purposes'. There are no such words in the Act. I think it would be too strong to say that because it is void at law as a lease, it cannot be us ed as an agreement enforceable in equity, the intention of the parties having been that there should be a lease, ,111d the aid of equity being only invoked ! I 0. H. SUND! v. A. N. RAVALIA to carry that intention iuto effect." So far therefore from the pr('scnee of the words "at law" in the expression " void at law" making just. no difference at all, their presence was the ratio clecidendi of Lmm Cum. MS FORD's decision. There is a, further difliculty in tho way of holding that under tho Ordinance exhibit O. H. S. 2 is void as a lease but valid as an agreement for a lease because under section 4 an agreement for a lease for moro than one year is just as void for non-registration as a lease is. I must, therefore respectfully disagree with tho opinion of RoBrnsos, J., that there is no difference between "nuU and void " and "Yoid at luw " a.nd wit,h his opinion that the expression '' null and void " in section 6 of the Ordinance should be interpreted in the same way as the English Courts have interpreted the expression "void at law" in the Real Property Act, 1845. )fr. Conway has relied on the case of Le Neve v. Le Net·e (3), which was a decision under t,he :Middlesex Registry Act, I 708, and other similar cases under other Acts in which it was held tliat although tho Act in terms made certn.in documents void if they were not rcgi.,;tered yet, a prior unregistered document would not be void against a person whose docu ment was registered subsequently to the date of the unregistered docu ment, if the person claiming under tho subsequent registered document had not,ice of the prior unregistered document. Now, apart from the fact that the question of tlrn effect of notice of a prior unregistered document does not arise in this ca,sc a,t all, tho case of Le Neve v. Le Neve and other similar cases can be of 110 assista nee in the interpretation of the Ordinance, even by way of analogy, because the principle applied in those decisions has been expressly excluded by section 7 of the Ordinance, which provides that " notice of a prior uruegistcred document required to be registered as aforesaid shall be clisregardcd in the absence of actual fraud ". · That being so it is not necessary to deal with any of those decisions in detail, but I may point out that tho reason for the decision in tho case of Le Neve v. Le Neve was that the preamble of the Act stated that whereas indisposed persons had it in their power t,o commit and fre quently did commit frauds by prior and secret c01weycinces and then followed the words of enactment. In view of that preamble the Court held that tire intention of the Act was only to protect subsequent pur chasers against prior and secret conveyances and not against prior unregistered conveyances of which they had notice. The Ordinance cont,ains no such preamble. Moreover, the case of Le Neve v. Le Neve is 200 years old and in more modern cases it has been held that " it, would be dangerous t,o engraft an equitable except.ion upon a modern Act" (JAMES, L.,J., in Edward.s v. Edward.s (4) quoted with approval in . Monolithic Building Co., in re Tacon v. The Company (5)). Mr. Conway, for the appellant,, cont.ended that as the expression used in the Ordinance is " null and void" and not. " nuU and void to all intents and purposes" tho language of the Ordinance was not strong enough to exclude what JAMES, L. J., called " equitt\lilo exceptions ". 0. H. SUNDT v. A. N. RAV ALIA The question as to whether the words " to all intents and purpose.'! " add 1my strength to the expression " null and ,1oid " is one to, which t,he English Courts have not always given the same answer. There is a long line of old cases to the effect that the words " to all intents and purposes " are little more than an expletive (see Stroud's Judicial Dictionary, 2nd Edition, pp. 2194-6). But in modem times the courts have been less consistent. (See Stro11d's Jitdicial Dictionary, 2nd Edition, p. 2106.} The position now seems to be that it is a question of ascertaining t.h.e intention of the Legislature in the particular enactment under co11- sidemtion. Reading sections 4, 6 and 7 of the Ordinance together it soerns to me quite clear that the intention of t,he Legislature was to deprive of all efficacy documents which are required to be registered under the Ordi nance and which have not been so registered. The only exception is in the case of fraud. The legislator has met the case of hardship arising from non-registra tion by providing in section 4 a procedure whereby the Court may authorise registration out of time in a proper case. It seems to me to be as plain as a pikestaff that the legislator intended to provide his own equities and did not intend that any ot,hers should be read info the Ordinance. There was no fraud in this case. Failure by the respondent t-0 register was not fraud. The appellant knew or must be taken to hav·o known the law as well as the respondent. As I have pointed out there was nothing to prevent the appellant obtaining registration himself aml he could even if necessary have applied to the Court for permission to register out of time. It is not fraud for a man to insist upon his legal rights. Another argument of Mr. Comrny was that the Ordinance only makes the document void and it does not siiy that the transaction is void. The transaction therefore is valid and can be enforced. Such an interpretation appears to me to be excluded by section 7 of the Ordinance. To say that one document should or should not have priority over another would be meaningless unless that priority was intended to affect the rights of the parties t-0 the documents. Mr. Conway's final argument on t,hc const.ruction of the Ordinance is that to hold that the transaction is void would .lead to absurd results. Ho puts " Supposing I agreed with lfr. Smith the following hypothetical case. in writing that I will sell him :i large quantity of machinery at the price of £10,000 and I would allow him to store this in a small corner of 11 yard which belonged to mo on terms which amounted to a demise for two years at a rental of, say, £5 per annum. Mr. Smith very kindly pays me the whole of the purchase money, but when he asks for delivery of the machinery some four months later I say,' Oh, no. The agreement between us is null and void because the document containing the agreement has creat-ed an interest in land and is null and void for want of re6ristration you can neither have your machinery nor the land.' " And then Mr. Conway goes on to suggest that Mr. Smith would be nnable to recover his £10,000 if even one bolt had been delivrred t-0 Mr. Smith by Mr. Conway, because there had not been a total failure of consideration. 3i>2 0. H. SUNDI v. A. N. RA VA LIA If thi:-; wern the result, of holding that t,he transaction was null and ,uid that result would Le absurd. But, fortunately for Mr. Smith no such result, would follow. Either the agreement is separable or it is not. If it is separable no difliculty arises. If it is not separable then the transaction being nuU and void no property passed and the £10,000 still belongs to Mr. Smith and tho Lolt to Mr. Conway. 1\lr. Smith is entitled to the return of his £10,000 and l\'lr. Conway to the return of his bolt or its value. I therefore hold that by virtue of sect,ions 4 and 6 of tho Ordinance the lease dated the 24th January, 194 7, is null and Yoid for want of registration and that that lease can °have no effect whatever, it can pass no title or interest either in law or equity and that the trans act.ion evidenced by the document of the 24th January, 1947, is equally null and void and cannot Le enforced nor have any effect. That being so, what is the position ? 'l'hc trial Court found as a fact that the respondent did not ent.er into possession until the 15th May, 1947. There was o,ridence upon which the trial Court could so find and 1 see no reason to disturb that finding of fact. The respondent also paid to the appellant £120 as one year's rent in advance 011 t,l1c 8th May, 1947. By presumption of law a tenancy from year to year was created as from the 15th May;HJ47, by the respondent's entry into possession and payment of an annual rent. As the sum of £120 was paid as one year's rent in advance, the respondent must be taken t-0 have agreed t..hat the rent was to be £120 per annum and was to be paid yearly in advance. l\1r. Conway contends that, that, payment of £120 must be taken to have been paid as rent for the period from the 1st February, Hl47, to tho 31st January, 1948, and that all the terms of the louse of tho 24t,h January, 1947, must be imported into the tenancy agreement implied by law, so far as those terms are consist.cnt with a tenancy from year t.o year. The tenancy must therefore be taken to have commenced on the 1st February, 1947, and in consequence t,ho second year's rent was due on the 1st l<~ebruary, 1948. I am unable to agree with those contentions. The lease having been deprived by tho Legislature of all efficacy cannot be called in aid to show that the tenancy commenced on the 1st February, 1947, nor for the purpose of importing any other of it~ terms into the tenancy implied by law. The presumption is that the tenancy commenced on the date of entry int-0 possession, and that presumption can only be rebutted by proof that there was a fresh agreement between the parties that the lease should commence at some other date. What evidence is there of such fresh agreement ? I ca,n find none. That the respondent on 8th May, 1948, gave appellant a cheque on the face of which was written" House rent for one yem· " is not enough. Mr. Conway contends that you must., link that up with the lease of the 24th January, 104 7. That cannot be done because the lease has no more effect than a:; if it had never been entered into. The burden of proof of such a fresh agree ment lies on t,he appellant and he had failed to discharge it. Although I cannot agree with all the reasoning of the learned l\fagis trate who tried the case, he arrived in the end at the right conclusion and properly g,we judgment for the respondent with costs. For the reasons I have stated this a.ppenl is dismissed with costs against the appellant both in this Court and in the Court below.