Amuzu Vrs Okukah 1997 GHASC 1 (26 March 1997)

I
[1998-99] SCGLR Supreme Court Ghana Law Reports 141
AMUZUv OKUKAH
SUPREME COURT, ACCRA
26 March 1997
AIKINS, CHARLES HAYFRON-BENJAMIN, AMPIAH,

ATUGUBA AND SOPHIA AKUFFO JJSC
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 ct f 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 pleaded 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 and 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) a will, or
(b) 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
142 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 143
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 140A).
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.
Cases referred to:
(1) B o a t e n g sD infour1[ 979] GLR 360, CA.

w
(2) Botchway s Okine [1987-88] 2 GLR 1, CA.
(3) D o n k o r s A lhasn[1987-88] 2 GLR 253, CA.
(4) O d o i\ H am m ond[1971] 1 G LR375,CA .
(5) Lysaght v Edwards ( 1876) 2 Ch D 499.
(6) H adley s London Bank ofScotland L td (1863)3 D J& S M
(7) Crayem s C onsolidated African Trust Ltd (1949) 12 WA
(8) H o c k m a n s A rkhust(1 921) FC '20-'21,101.
(9) Amefinu s Odametey [1977] 2 GLR 135, CA.
(10) NasalisAddy [1987-88] 1 GLR 143, SC.
(11) Odametey \C lo c u h [1989-90] 1 GLR 14, SC.
(12) Clerical M edical & General Life Assurance Society Carter (1889)
22Q B D 444.C A .
(13) Fanny M Carvill River Wear Commissioners Adamson (1876) 1
QBD546.
(14) Calidonian Rail C o s North British Rail (C
o188
(15) A s a r e sB robey1971
[ ] 2 GLR 331 , CA.
(16) H am m onds O doi[1982-83] GLR 1215, SC.
(17) Hadleky v London Bank o f Scotland Ltd (1865) 3 D J& SM 70.
(18) Ussher s Darko [1977] 1 GLR 476, CA.
(19) K h o u r y s K houry1( 952) 12 W ACA261,PC.
(20) Khoury s Azar ( 1952) 12 WACA 268, PC.
(21) Nartey s Mechanical Lloyd Plant L td [1987-88] 2 GLR 31
(22) N te m s A nkw
adh[1977] 2 GLR 452, CA.
(23) M ansah\[A oh1975] 1 GLR 225, CA.
sam
(24) Akrofi s Wiresi (1957) 2 WALR 257, WACA.
(25) C r o w l y sB ergthail[1 899] AC 374.
(26) Ashanti Construction Corporation v Bossman [1962] 1 GLR 435,
SC.
(27) H am m onds Odoi[\9&2-&3]2 GLR. 1215; [1982-83] G LR D 129, SC.
(28) Kuenyehia s Archer, Supreme Court, Suit No 5/93, 25 May 1993,
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.
(33) D jom oas Amargyei[\96Y] 1GLR 170, SC.
(34) Okofoh Estates L td s Modern Signs Ltd [1996-97] SCGLR 224.
(35) AsamoahsServordzie[19S7-SS] 1GLR67; [1987-88] GLRD 10,SC
(36) tasdu1987-88]
A[ 1 GLR 233; [1987-88] GLRD 26, SC.
(37) Samarasinghe s Sbaiti [1977] 2 GLR 442, CA.
[1998-99] SCGLR Amuzu v Oklikah 145
(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.
A ppeal 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 appeal 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 ouse 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 his 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 ow 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:
146 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 2 4( 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;
(b ) th o u g h th e p la in tiff h a d n o tice o f th e d efen d an t's interest
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 can n o t be
in v o k e d to c re a te e x ce p tio n s; an d
( 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 o t 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
lently, an d th a t th e c o n d u ct o f th e v en d o r could n o t 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 found 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 n o t 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 h e 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 urg en t attention
an d re v ie w "th at w o u ld m eet th e hardsh ip s en co u n tered by innocent pur
c h a s e rs o f lan d w ith o u t doing 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 th o u g h t-p ro v o k in g 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 h o ld in g th at 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 ppeal m isd irected its e lf by non-direction on
th e p rin c ip le th a t even if an eq u itab le interest in a property is
c o n ta in e d in an un reg istered docum ent, a su b seq u en t p u rchaser
w ith th e n o tice o f such eq u itab le interest tak es the legal title
su b je c t to equity;
[1998-99] SCGLR Amuzu v Oklikah - Aikins JSC 147
(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
(e) the C ourt o f Appeal erred in holding that Act 122 protects a
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:
(i) the learned judges below erred in holding that exhibit D is

an instrum ent w ithin the meaning and ambit o f Act 122; and
(ii) the C ourt o f Appeal erred in raising suo motu the pleading
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 robbey 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

148 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 . B y all the authorities referred to in
and A ct 122,section 24(1), that unregistered interes
veys no valid title even though it was prior in time. T h e equi
ta b le in te re st c re ate d in e x h ib it D th e re fo re co nveyed no valid
title ." (T h e e m p h asis is m in e.)
O n th e sa m e issue, A freh JA h as th is to say:
"E xhibit D is an agreem ent to transfer an interest in

v land. T h e d e fe n d a n t re lie s u p o n it fo r 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 u n sel fo r 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 b in d 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 , ev en 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 stru m en t u nder
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 d o 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 affectin g land situ
ate in G h a n a, b y h is in terp retatio n o f sectio n 36 o f th e A ct, th e ex h ib it
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
in g 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
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
150 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 p urports 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 h e learned
ju d g e cited D onkor v Alhassan [1987-8 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 in terest, 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 h ad b een 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 no t m ean t to trans

fe r b y th e m se lv e s any in terests in land b u t o nly 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 in terest in
la n d . T h e y w e re th e re fo re n o t req u ired to be reg istered 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 th e req u ire
m e n ts o f section 2(a) o f th e C on v ey an cin g D ecree, 1973 (N R C D
175). On the evidence , the receipts exhibits A and B, showed
the p a ym 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 d o n e w as th e execution o f an
in stru m e n t o f tran sfer to th e respondent, provided th ere 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 :
(i) e x h ib it D w as n ot m eant to tran sfer by its e lf any interest in

th e d isp u ted p roperty b u t only evidenced paym ent in pursuance
o f an ag reem en t to tra n sfe r an in terest 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 5
(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

ca se 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 asm 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 are 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?
A It was M r Dotse.
Q B y C ol Amuzu on behalf o f Mr Dotse?
A Yes A m uzu on behalf o f D otse."
152 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 p ro 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
pro perty. 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 p rice 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 y er 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 fo r 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 p asses 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 rig h t 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 o n ey 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 o lls 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 ev ery case a co n tract su fficien t in

fo rm a n d in su b stan ce, so th a t th e re is no g round w h atso ev er 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 co n tract
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 perso n 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
•A
T h e learn ed editors o f Snell's Principles o f Equity (27th ed) at p
188 also clarifie d th e situation as follows:
11A 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 obtain 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
n otice o f th e e arlier unregistered instrument. Where a party has actual
n otice 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
instant case, since the p la in tiff adm itted that prior to the sale o f the prop
erty to him 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
encum 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 nclusion 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
th e 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 :
154 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 ain in g in law
a c o n stru c tiv e tru ste e fo r him u n 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 efen d an t, w ould
c le a rly n o t avail th e latter. B u t if th e D e fen d a n t bo u g h t 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 o btained 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 boug h t 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 o t no d eed 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 vacan t. 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 rk h u rst 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 ap p ealed to the P rovin
cial C om m issioner, 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 rk h u rst 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 o m 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 rk h u rst'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 in Am efinu v Odametey [1977] 2 G L R
p 144, w h e re h e said:
"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 ).”
H is d ictum 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 not based only or simply on priorities o f registra
tion o f th e instrum ents. T here w ere other issues which were taken into
con 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 only 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 right 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
innovation. 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 date 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 -
(a) In the case o f an instrum ent executed at a place w here

it is registered, the period o f ten days from its date;
(b) In th e case o f an instrum ent executed elsew here in the
G old C oast, the period o f sixty days from its date;
(c) In the case o f an instrum ent executed o ut o f the Gold
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

156 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 onsolidated 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 an d
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 [1979] 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
d o r o 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 an d
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 ittedly, 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 issue 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
ev idence 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 put 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 already 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 had 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
co ntract, in c lu d in g equities w hich under the contract the defendant had
ag ainst 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 now 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
158 Supreme Court o f Ghana-Law Reports [1998-99] SCGLR
registered instrum ent like exhibit 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 eq u itab le reliefs,
and fo r th a t m a tte r b o th statu tes d id n o t give p rio 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 p ro 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 vestig ate.
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 v iew ,
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 acq u isitio 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 uch 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 b ecau 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 d o cu m en t 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 n ly 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 co n tain ed in holding (6) o f the
co u rt's ju d g m e n t, th en , it is incum ben t upon this co u rt 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 n o t 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 h and up and do a hand's turn but
sim ply 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
"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,
160 Suprem e 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
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 d a t non quod
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 an d
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 ssur
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 a rvill 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 ail Co v N orth B ritish R ail 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 an d
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
ju d ic ia l firm a m e n t, it se e m s to m e th a t th e decidendi in th a t c ase
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 161
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:
9
"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."
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.
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 an d
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 v
(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 leg al p u rp o se s
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 lan d
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 an d
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 .
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 o f 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 o f 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:
164 Supreme Court o f G han^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 eco m es the ow ner o f th e land in
equ ity , and th e v e n d o r becom es a co n stru ctiv e tru stee 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 th e legal estate. Since
th e law re c o g n ise s on ly tw o estates, it can n o t be denied th at 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 befo re them . In th e E nglish case o f
H a d leky 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 ex p ressed 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 th e 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 can n o t be expected to
d e a l w ith th e e sta te so as to inco n v en ien ce him ."
T h e re fo re , w ith th e g re a te st re sp e c t to T ay lo r 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 husb 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 ertain ly the doctrines o f equity
h a v e b e en d e v e lo p e d and fused w ith the law to alleviate th e 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 p alo o 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 h at the real
in te n d m e n t o f the decisio 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 th e 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 u t there w as am ple au-
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. "
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 o f 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
166 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 co n v ey th e legal title, th e 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 th e legal title w hich he w ill
b e b o u n d to giv e o v e r to th e eq u ita b le o w n er in o rd er to p erfect 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 ru le w h ich could am eliorate the
h a rsh n e ss o f th e statu te. In m y resp ectfu l o p in io n , 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 opinio n , th e p ro p er au th o rity for de
te rm in in g su ch p ro b le m s as arise in o u r co u rts m u st be th e 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 o u t 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 un ab le 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 ho 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 en t 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 do cu m en t 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 167
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 fraud" (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
th e c ase o f th e fraud, th a t m a tte r h ad n o t b een 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 o t 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 o t be right.
A fte r e x a m in in g th e e v id en c e a t length h is lordship stated: "This is a
c le a r c ase in w h ic h th e law and eq u ity con flict." H is L ord sh ip 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 he 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 th is 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 co nflict. 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
C heshire'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 po in t in conflict
w a s w h e th e r th e law (th e statu te) sh o u ld be rig id ly applied or the "equi
ta b le fra u d ", as c le a rly fo u n d by Afireh JA , should be v indicated 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-k n o w n p rinciple 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 h e ev id en ce 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 ten a
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 the w ay section 24(1) has been
co u ch ed ."
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
170 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 q u 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 sho u ld (sh all) obtain title."
In m y re sp ec tfu l o p in io n th is app eal ep ito m ises the hardships en
d ured by in n o c e n t p u rc h a se rs and th e in sen sitiv e attitu d e 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 un an im o u sly allow ed this

a p p eal an d re serv e d its reasons. I now p ro ceed 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
in g 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 h e action
re la te s to a p lo t o f land w ith an un co m p leted b uilding 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 th e 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 ash ie 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 d isp u te 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 bu ild in g on th e 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 p roperty 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 sho u ld use the am o u n t 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 v en d o r w as not
c a rry in g on w ith th e w o rk on th e building, th e d efen d an t decided to go
in to 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 defen d an t, how ever, revealed th at the
v e n d o r had 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 hile the d efen d an t w as still in possession
o f th is land, th e vendor, 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 and 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 h is
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
o rder 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
o rdered e jec tm e n t and perpetual injunction but refused to award dam
ages for 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 ut 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 findings 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 special circum stances: see Mansah v
Asamoah [1975] 1 G L R 225, CA and v Wiresi [1957] 2 WALR
257, W A CA .
S ection 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 ) a w ill, or
(b) a ju d g e's certificate;
first executed 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 "instrum 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 ju d g e'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
172 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 d efin 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 isp u te 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 d efen d an t) 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 v endor in
th e land a lb e it in th e fu tu re. A s d o cu m en ts m ade after 2 N o v 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 do es a d o c u m en t b eco m e effectiv e? In Asare v Brobbey
[1 9 71] 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
o b served:
"... It fo llo w s th e re fo re th a t w hen sectio n 24(1) o f the Land

R e g istry A ct, 1962 p ro v id es th a t a d o cu m en t shall be o f no ef
fe c t u n til it is re g istered , it m ean s th a t th e docu m en t and its con
te n ts c a n n o t h av e an y legal e ffe ct until reg istratio n has been
c o m p leted . T h is also m eans th a t th e d o cu m en t is n o t valid for all
p u rp o se s b e ca u se th e fo rm ality o f reg istratio n 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 the law as n ev er having taken place.
W h a t is in v alid has taken p lace b u t som ething rem ains to be
d o n e to v a lid a te it o r to give it legal force. If a docum ent is to be
v alid it m u st be valid for all legal p urposes 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 docu m en t 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 th e 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 req u ired u n d er 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 fo r 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 th at 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 could 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 the unregistered docum ent in evidence in an
a ctio n fo r sp ec ific p erform ance. H ow ever, ap art from the observaion
[1998-99] SCGLR Amuzu v Oklikah - Ampiah JSC 173
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:
"T here 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 doing 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 uprem e C o u rt o f N atal, th e Ju d icial C o m 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 u tch 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 su b 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 ax im n o t 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 reg istered 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 ritin g 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 n o t o n ly 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 o t necessarily
c lin g to th e s tric t p ro v isio n s o f a statu te b u t 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 quity w o u ld 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 n o t be encouraged.
In th e in sta n t case, th e re is e viden ce that: (i) not only did the p lain 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 plo t 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 n ex 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 p u rchased his p lo t 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 urchase to him o f th e plot realised th at 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 ag ain st hini. T he p la in tiffs docu
m en t, a lth o u g h dated 11 Ju ly 1988, w as in fact presented for registration
[1998-99] SCGLR Amuzu v Oklikah - Ampiah JSC 175
on 13 D ecem ber 1988! The plaintiff cannot therefore escape blame for
the conduct 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
176 Supreme Court o f Ghan^Law Reports [1998-99] SCGLR
ling ju s tic e o f a situ atio n it m ust, like S h ak esp eare’s M erch an t o f Venice,
e x ac t its p ou n d o f flesh. In short, is th e re any p ro tectio n fo r a victim o f
fraud o r u n ju st en ric h m en t u n d e r th a t p ro 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 th e case law, the
a n sw e r to th is q u e stio n is p lain ly in th e n egative. T he prin cip le has been
laid d o w n w ith m uch c o n siste n cy fro m early tim es to d ate 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 th e g ran to r o th erw 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 n o t affect th e 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 th e 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 defin ed 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,
including 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 th e fo llo w in g 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 q u ity w o u ld decree specific perform

a n c e o f c ertain c o n tracts w h ich 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 o st 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 rig h t to com pel his v endor 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
n o 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 ffectin g land and not one transferring

an in terest in land. A n agreem ent for sale o f land clogs the land, in equity
[1998-99] SCGLR Amuzu v Oklikah -AtugubaJSC 177
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) o f 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; v
[1982-83] 2 G L R 1215, SC; Narteyy M
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.
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
section 2 4 ( 1) o f A ct 122 as a provision, generis. To some extent that
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 sub-heading "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
interest, 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."
178 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 en tsi-E n ch ill 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 observ ed above, to o k such a view
even o f th e re p ealed enactm en t. T h is w ould be because o f the
u n q u a lifie d p ro v isio n th a t an in stru m en t 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) acco rd in g to th e tim e o f reg
istration.
B u t to ta k e th is v ie w w o u 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 ph asis 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 th e 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 equity is th at a pu rchaser is deem ed to

h av e n o tic e o f all th a t a reaso n ab ly 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 notice 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 inspect the land itself. I f any o f the land is occupied by
[1998-99] SCGLR Amuzu v Oklikah - Atuguba JSC 179
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."
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.)
180 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 co n stru ed 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 th at the Land
R e g istry A c t, 1962 (A c t 122), can n o t be construed w ith o u t 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 w ith 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 follow 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 181
"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 o f
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
182 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 req u isite 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 do ctrin es 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 o th er provisions o f th e earlier
O rd in a n c e w h ic h , like C ap 133 w ere ju d ic ia lly co n stru ed 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 co n stru e the p rovisions o f A ct 122
re la tin g to p o in ts o f in stru m en ts as acco m m o d ativ e 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 th e 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, hav 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 en t to sell th e land to the p lain 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 th e 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 sh an ti) 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 [1987-88] 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 isallo w 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 eg arry 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 rauds, 1677, w as intended to prevent the fraud

an d p e rju ry w hich w ere possib 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
g arded its e lf as com petent to prevent a Statute passed fo r
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:
"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.”
I 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
p lain 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
184 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 h o le did not so lim it the V

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 ould 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 leading and the evidence which caused no surprise to
the other party ..." (T he em phasis is m ine.)
A n d in S ch a n d o rfv Zeini [1977] 2 G L R 418, C A at 440 A m issah JA, in f

w h o se ju d g m e n t th e o th ers concurred , also said: /
I
}
"M r R e in d o rf has stated th a t u n d er O rder 19, r 16 o f the
H ig h C o u rt (C ivil P ro ced u re) R u les, 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 v oidable at law, this \
p o in t c a n n o t be ra ised now . I think
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- j
sion on a technical rule o f pleading. (T he em phasis is m ine.) \
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 and D ev elo p m en t (P rotection o f Purchasers) Act,
1960 (A c t 2 ) th o u g h unpleaded: see tNv
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 o th er 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 p lain tiff) 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 ven 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 avo 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 rule o f co n stru ctio n o f statutes that there is
a p re su m p tio n ag ain st absurdity and unless the w ords are absolutely in-
[1998-99] SCGLR Amuzu v Oklikah - AtugubaJSC 185
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
p o 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.
Thefir 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 h e 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:
186 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 purch asers fo r v alu ab le con
sid e ra tio n , in stru m en ts reg istered u n d er th e A c t had prio rity ac
c o rd in g to th e d a te o f reg istratio n and n o t acco rd in g 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 was 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 prin cip le 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 fo r by statute. I
d o n o t k n o w w h e th er I have 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 d ifferen t 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 reg istered 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 p roved 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 hanaian System o f R egistration o f D eeds" (1966) 3 U G LJ 27 states:
"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 purpose 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
tion 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 system 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 thereo f 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
q uestio 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.
F o r all th e fo re g o in g re a so n s I co n cu rred 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 o p eratio n 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 u n 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 prio r unregistered instru
m e n t, in su ch c irc u m stan c es th a t a party ought n o t 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 ag reem en t w ith the ju d g m en t

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 u rport 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 sp en d 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 reso rt 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 extent, 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 p urchasers 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 fo r 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 found on a register, a su b seq u en t 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 hus, 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 the o b ject o f th e A ct is to afford and facilitate
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 had 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 ove 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 ho, 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 iven th e facts o f this case, w here a blind application o f section 24
190 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 uartey -P ap afio 's rep reh en sib le 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 eq u ity 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 p rio r 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 tain ted by his
k n o w le d g e . In su ch a case, an unreg istered in stru m en t w h ich 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 strum ent.
Appeal allowed .
Judgm ent o f the Court o f Appeal set aside.
H A B -T

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I

[1998-99] SCGLR Supreme Court Ghana Law Reports 141

SUPREME COURT, ACCRA

AIKINS, CHARLES HAYFRON-BENJAMIN, AMPIAH,

Land registration - Instruments affecting land - Registration - Equitable doc­

”24.1 Subject to sub-section 2 o f this section an instrument other than

Cases referred to:

(1) B o a t e n g sD infour1[ 979] GLR 360, CA.

(38) SchandorfvZ eini[1976] 2 GLR418,CA.

A ppeal from the unanimous decision of the Court of Appeal, dismissing

A IK IN S J S C . O n 5 M arch 1997 this court gave a unanimous judgment,

( 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 2 4( 1) and 36 o f

H o w e v e r, th e C o u rt o f A p p eal found as a fact that: (i) th e plaintiff,

(a ) th e C o u rt o f A ppeal erred in h o ld in g th at the p la in tiff w as

(c ) the C ourt o f Appeal erred in not applying the principle that

L ater tw o further grounds o f appeal were filed by the defendant, namely:

(i) the learned judges below erred in holding that exhibit D is

T he m ain reason for the C ourt o f Appeal’s dismissal o f the appeal is

"M r K w am i Tetteh was right in his contention that the de­

"This is a clear case in which law and equity conflict. T he

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

O n th e sa m e issue, A freh JA h as th is to say:

"E xhibit D is an agreem ent to transfer an interest in

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

exhibit D ) talks about the purchase money of the property, ie c9,000,000;

It is clear from the foregoing that exhibit D relates to the surrender

"In section 36 it is provided that, unless the context other­

B y this reasoning, Azu Crabbe JA is not saying that because exhibit

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 p urports to create

"(1) th e receip ts, e x h ib its A and B, w ere no t m ean t to trans­

T h e p a rtic u la rs o f the re c eip t in the Donkor case can be gleaned from

(i) e x h ib it D w as n ot m eant to tran sfer by its e lf any interest in

(if)the agreement between the defendant and the vendor was

W h a t then is the differen ce betw een the receipts in the Donkor

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

"W e settled on c9 m illio n as th e p u rch ase p rice w hen it w as

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 fo r sale is

"... 'V alid c o n tract' m ean s in ev ery case a co n tract su fficien t in

11A s soon as a specifically enforceable contract for sale o f

T his has been given statutory authority by primary legislation in section

"N ow it is an e le m e n ta ry p rin c ip le o f law th a t dat

In th e Hockm an case, H o ck m an boug h t a p lo t o f land from th e O m anhene

"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

H is d ictum o u g h t to be approached w ith caution. I must point out that the

"(i) T h e language o f the Gold Coast Land Registry Ordinance

E ven a casu al exam ination o f the provisions o f the A ct and those o f

"2 1 (1 ) E very instrum ent executed on or after the 24th day

(a) In the case o f an instrum ent executed at a place w here

(2 ) N o th in g in this O rdinance contained shall operate to

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 ­

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 ,

could be ch arg ed w ith conspiracy to defraud under section 34 o f Act

registered instrum ent like exhibit B a state-guaranteed title. In other words

"A s it sta n d s now , th e A c t clea rly facilitates fraud to be perpe­

In m y view , i f th e fo reg o in g is th e o n ly reason w hich should com pel

"W here the language of a statute, in its ordinary meaning

The Court o f Equity would go to the extent of tackling this issue

Land registration - Instruments affecting land - Registration - Equitable doc

"M r K w am i Tetteh was right in his contention that the de

"In section 36 it is provided that, unless the context other

"(1) th e receip ts, e x h ib its A and B, w ere no t m ean t to trans

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

" 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

"A s it sta n d s now , th e A c t clea rly facilitates fraud to be perpe

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

"We agreed with the submissions of Counsel for the Claim

o n e o r o th e r reaso n a d o c u m en t fa ils to co n v ey th e legal title, th e accep

"T he h ack n ey ed p rin c ip le is th a t w here equity and law con

"Invent(ed) the doctrine o f constructive registration in the in

th e ru les o f eq u ity to b e ar u pon th e q u ality o f th e docum ents so pre

”(a) E sta te s co n tracts. E q u ity w o u ld decree specific perform

any person other than the vendor, this occupation is con

"It is a w ell established principle o f construction that a stat

"All statutes made in p a ri materia should be construed to

"A consolidating statute ... w ill almost certainly adopt lan