Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 14TH SEPTEMBER, 1959.
Before: OLLENNU J.Held
(1) that though extrinsic evidence of transactions which have culminated in a deed are not admissible to prove that the contents of the deed do not represent the true agreement between the parties, the defendant’s evidence of the previous oral transaction did not seek to vary the contents of her deed. She tendered the deed merely as written evidence of a transfer of land already effected as between natives;
(2) that because the plaintiff s deed was not registered, while the defendant’s was registered, priority between them was not to be determined by their respective dates of execution. By virtue of Sec. 21 (1) of the Land Registry Ordinance the defendant’s registered deed took priority over the plaintiffs unregistered deed as from the 8th August, 1955.
(2) that Afful having sold the land to the defendant in 1948, he had no interest in it which he could convey to the plaintiff in 1953.
COUNSEL Plaintiff in person.
Obetsebi Lamptey for defendant.
JUDGMENT OF OLLENNU J.
(His lordship stated the facts, and continued : –
It was submitted on behalf of the plaintiff that as the land had been conveyed to the defendant under a solemn deed of conveyance, it was not open to her either to plead (or to lead evidence to prove) a prior sale of – the same land to her by an oral agreement. It was further submitted that the effect of that extrinsic evidence of events which happened prior to the execution of the deed is to vary the contents of the solemn deed.
I cannot see the force of this submission. No objection was raised to the admission of the evidence in question; in fact, one of the pieces of evidence in that behalf was tendered on behalf of the plaintiff. I refer to Exhibit “E”, which is a receipt Afful gave to the defendant some time before the date of the execution of the defendant’s document, and it is for part-payment made by the defendant of the price of the land.
I understand the law to be that extrinsic evidence of transactions which have culminated in a deed are not admissible to prove that the contents of the deed do not represent the true agreement between the parties. But the oral and documentary evidence tendered by the defendant in proof of the averments in her statement of defence do not seek to vary the contents of her deed. Her main point is that she has been in active possession of the land in dispute as owner thereof long before the date of her deed; and that even though the deed does not recite the fact that it was executed to evidence a fact already in existence, that omission to recite the original sale does not affect the transfer already completed, or make the deed more than a mere written evidence of a transfer of land already effected as between natives.
Following upon his submission that the evidence of the oral sale to the defendant should be rejected, and the defendant strictly held to her deed of conveyance of the 14th April, 1955, learned counsel for the plaintiff with great seriousness invited the Court to hold that the case rests entirely upon priority as between the plaintiff s deed of conveyance dated the 26th February, 1953, and that of the defendant dated the 14th April, 1955. Counsel accordingly submitted that because the date of his client’s deed is earlier in time than that of the defendant, the plaintiff is entitled to the relief he seeks. Had both documents been registered or both unregistered, there would have been substance in this submission that and the Court had to consider was priority as to the respective dates of
[p.302] of [1959] GLR 300
execution of the deeds. But, as pointed out above, the plaintiff s deed has not been registered. The Court must therefore be guided by the law laid down in the Land Registry Ordinance for determining priority between instruments which are subject to the ordinance. Section 21(1) of the Ordinance provides as follows:—
“21(1) Every instrument executed on or after the 24th day of March 1883 (except a will and except a Judge’s certificate signed before the commencement of this Ordinance) shall, so far as regards any land effected thereby, take effect as against other instruments affecting the same land from the date of its registration: Provided that every such instrument shall take effect from the date of its execution, if registered within such of the following periods as shall be applicable to it, that is to say:
(a) In the case of an instrument executed at the place where it is registered, the period of ten days from its date;” etc.
The defendant’s document was not registered in Accra, the place where it was executed, within ten days of its execution; therefore under the Ordinance it takes effect from the 8th day of August, 1955, the date of its registration, and takes priority over the plaintiff s deed as from that date.
The plaintiff was made aware of the registration of the defendant’s deed as far back as the 6th July, 1956, when he caused a search to be made as stated by him in his evidence, and by the report (Exhibit “B”) which he received in consequence of that search. On the facts, I am satisfied upon the plaintiff ‘s own evidence that he entered upon the transaction with Afful recklessly, without bothering to find out whether or not Afful had title to the land. He acted at his own risk. Further, he has failed to satisfy me that he ever had effective possession of the land in dispute.
On the other hand, I accept the evidence of the defendant that she has been in possession of the land as owner thereof since 1948, exercising full acts of ownership thereon. In any event I accept the evidence of the plaintiff that the defendant was in such possession of the land in 1955, and had at the four corners thereon visible concrete pillars bearing her initials “K.A.O.” I am further satisfied that the vendor Afful had sold the land in dispute to the defendant in 1948, so that in 1953 he had no right title or interest in it which he could legally convey to the plaintiff. In consequence, the plaintiff acquired no interest in the land upon the purported sale to him.
Both on the law and on the facts the plaintiff’s claim must fail. It is dismissed, and judgment is entered for the defendant, with costs fixed at 35 guineas inclusive.
