KWOFIE v. KAKRABA [1966] GLR 229

Division: HIGH COURT, CAPE COAST

Date: 8 MARCH 1966

Before: ARCHER J.

CASES REFERRED TO

(1) Osei v. Asiedu-Offei (1944) 10 W.A.C.A. 87.

(2) Yeboah v. Tse (1957) 3 W.A.L.R. 299.

(3) Nyarko v. Abunyawah (1956) 1 W.A.L.R. 137.

(4) Yeboah v. Bonko (1956) 2 W.A.L.R. 107.

NATURE OF PROCEEDINGS

APPEAL against the decision of a local court magistrate giving judgment for the plaintiff in a claim for damages for trespass. The facts are fully set out in the judgment. COUNSEL T. D. Brodie-Mends for the appellant.

Dr. de Grafft-Johnson for the respondent.

JUDGMENT OF ARCHER J.

The plaintiff sued the defendant per her representative (in fact her husband) claiming the sum of £G50 general damages

[p.230] of [1966] GLR 229 for trespass and £G10 special damages for removing the plaintiff’s four cement pillars on the plaintiff’s land at Akotobinsin. Judgment was entered for the plaintiff.

The defendant has appealed to this court and has argued that the representative of the plaintiff did not give evidence as a representative but testified as if he was the claimant. Counsel relied on the case of Osei v. Asiedu-Offei1 where the appellate court expressed the view that it was not in order when a representative proceeded to give evidence as though he were the plaintiff.

Dr. de Graft-Johnson for the plaintiff has agreed that the record of appeal does not show that the representative gave evidence as a representative. This is evident from the testimony of the representative who throughout gave the impression that he was claiming damages for land of which he was the owner. I think the first ground of appeal is tenable as the cases seem to establish that evidence given by the representative as if he were the principal is inadmissible: see Yeboah v. Tse2 where Ollennu J. (as he then was) said:

“The only person who gave evidence for him [the plaintiff] was A. W. Ankah, who gave his evidence as if he was the plaintiff himself giving evidence . . . The practice has been condemned many times by the High Court and the West African Court of Appeal but the Native Court does not seem to have taken any notice of it.”

See also Nyarko v. Abunyawah3 and Yeboah v. Bonko.4 In the second case, the High Court held that the reception of inadmissible evidence given by a representative did not render the proceedings before the native court null and void but such inadmissible evidence thus received should be struck out and disregarded.

This brings me to the second ground of appeal. The local court magistrate misconceived the meaning of registration of conveyances and gave an erroneous decision thereon. It is obvious that the local court magistrate relied solely on the deed of conveyance tendered in evidence by the plaintiff. In his judgment the magistrate said:

“The plaintiff has been able to establish her claim and title to the plot by the document exhibit B which has been stamped and registered in the Land Registry at Accra . . . Before a land is registered, the registry must have had particulars regarding the ownership, etc. of the land.”

[p.231] of [1966] GLR 229

I do not know who gave this information to the local court magistrate. Indeed the Lands Registry does not undertake investigation of title for parties. The registry merely registers a document registrable on delivery of particulars and on payment of the assessed fees. Registration does not import state-guaranteed title. It is only where parties have taken their respective grants from the same grantor or his privy that registration confers priority on the party who has registered his document. Where the parties derive their titles from different grantors, registration is of no consequence and the court will not neglect its duty to ascertain who has valid title. In other words, registration will not confer any legal right or title on any party who took his grant from a person who had no title at all to convey. Thus section 24 of the Land Registry Ordinance5 now repealed by the Land Registry Act, 19626 provided that, “Registration shall not cure any defect in any instrument registered, or confer upon it any effect or validity which it would not otherwise have had.” This provision has not been repeated in the Land Registry Act, 1962, but section 20 of the 1962 Act provides that:

“A registrar may, subject to the provisions of this Part of this Act, refuse to register an instrument affecting any particular land if —. . .

(b) on the face of the records the grantor does not appear to him to be entitled to deal with the land as the instrument purports to do. . . “

I suspect that the local court magistrate in view of this current law, thought the registrar was under an obligation to investigate the title to land before registering the document. There is no such statutory obligation. The registrar may refuse to register if on the face of the records in his custody the grantor has no title to convey.

Although exhibit B, the deed of conveyance, was executed on 27 April 1960 it was registered on 14 August 1964 and it is therefore governed by the Land Registry Act, 1962, which came into force on 2 November 1962. The two main features of that Act are that it makes an instrument executed after the commencement of the Act of no effect until it is registered and secondly, registration is deemed to constitute actual notice of the instrument and of the fact of registration to all persons and for all purposes. Nevertheless, there is no provision which states that the validity of any instrument shall not be questioned in any court of law after registration. I therefore hold that although registration is now compulsory and constitutes notice

[p.232] of [1966] GLR 229 to all persons, yet the Act does not confer state-guaranteed title on grantors who have no title at all and the registrar is under no statutory obligation to investigate a title before registration. Excluding the inadmissible evidence given by the plaintiff’s representative, the local court magistrate erroneously misconstrued the effect of registration. For the above reasons the appeal is allowed and the judgment of the court below set aside. It is further ordered that the case should be retried by the High Court and the plaintiff is at liberty to file a fresh statement of claim. The costs in the court below should abide the result of the retrial. Ten guineas costs to the defendant.

DECISION

Appeal allowed.

Order for retrial.

S. K. T.