Lewey, J.A. The appellants in this case, who traded under the name of the City Food Supply, were the unsuccessful plaintiffs in an action before Jackson, J., when they claimed, as against the respondents, the Consolidated African Selection Trust Limited, possession of certain premises known as “Tutu Nest” in Horse Road, Accra, together with mesne profits.
The appeal was dismissed by this Court on the 28th February, the Court intimating that reasons in writing would be given later. We now proceed to give those reasons.
The admitted facts of the case are briefly as follows. The owner of the premises in question is Mr. Frans Dove, and from 1923 onwards the respondents held the premises on lease from him for a series of five-year periods with options for renewal. By deed dated the 25th June, 1943, Mr. Dove granted the respondents a further lease of the premises for a term of five years at an annual rent of £150 with an option to renew for a further five years at the same rent and subject to the same covenants and conditions. That deed was not registered.
On the 21st November, 1946, Mr. Dove leased the same premises to the appellants for a term of twenty years to run from the 25th June, 1948, upon payment by the appellants of a premium of £500 and of a rental of £160 for each of the years 1948, 1949 and 1950, the annual rent thereafter to be £320. That deed was registered by the appellants on the 27th November, 1946, under the Land Registry Ordinance (Cap. 112). At the trial Mr. Dove himself gave evidence, and stated that when the appellants' lease was executed he informed them- they were not represented by a Solicitor-that the respondents' lease would expire on the 25th June, 1948.
On the 25th March, 1948, the respondents gave notice in writing to Mr. Dove that they proposed to exercise their option to renew for a further five years in accordance with the terms of their lease. On the 25th June, 1948, the appellants endeavoured to get possession of the premises, but the respondents, relying on their option, refused to quit. Thereupon the appellants began legal proceedings for possession, and the writ in the action was issued on the 20th July, 1948.
On these facts, the issues to be decided are whether the deed registered by the appellants prevails over the equitable interest of the respondents option to renew; whether having regard to the doctrine of constructive notice, the appellants can be said to have had notice of the respondents' interest, and what is the effect in law of such notice in view of the provisions of Cap. 112. Such an inquiry necessarily involves, in the first place, a. consideration of the proper construction of registration legislation and of the cases decided, locally and in England, in relation thereto.
In these circumstances, it becomes material first to review briefly the history and the provisions of the relevant English and Irish legislation. We have been assisted in this by the very able arguments of Mr. Akufo Addo and Mr. Hardy, who endeavoured to show how those enactments resembled, and where they could be distinguished from, the corresponding Gold Coast Ordinance (Cap. 112). Such a comparison is obviously useful in the determination of this appeal, and is of assistance in enabling us to assess what weight is to be given to the decisions on those Acts in construing the provisions of Cap. 112, particularly as to the question as to how far, if at all, registration under the Ordinance may be defeated by notice, actual or constructive.
Our attention has been directed in particular to three statutes, namely the Irish Registration Act, 1708 (6 Anne, Cap. 2), the Middlesex Registries Act, 1708. (7 Anne, Cap. 20), and the Yorkshire Registries Act, 1884, and Counsel have argued before us at some length upon the question as to how far those statutes confer priority by registration and to what extent the equitable doctrine of constructive notice has been, and is, permitted to prevail over such priority.
It is not necessary to deal at any length with the Irish Act. Its provisions were more extensive than those of the English Acts, and its language clearly excluded the application of the doctrine of constructive notice. (Mill v. Hill (1); Agra Bank v. Barry (2).) 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” according to the priority of time of registration and that unregistered deeds were to be “adjudged fraudulent and void “not only against registered deeds but also against judgment creditors. It would not appear, therefore, that any useful purpose would be served in making a detailed comparison of such far- reaching provisions with those of Cap. 112.
Nor do we consider it necessary to examine in detail the Middlesex Act. Of that Act, it is sufficient to say that its provisions established a prima facie rule that, as between purchasers for valuable consideration, instruments registered under the Act had priority according to the date of registration, and not according to the date of execution. An unregistered instrument, while not invalidated, was to be adjudged fraudulent and void against a later instrument which was duly registered. But the real purpose of the Act, was to prevent fraud and to afford protection from deceit. And it is of interest to note that, in practice, the prima facie rule was, therefore, subject to the qualification that a subsequent purchaser could not by registration obtain priority over an earlier unregistered instrument if he had notice of it, for in such a case, he was not deceived (Le Neve v. Le Neve (3)).
It was with the Yorkshire Act that Counsel were more particularly concerned in this appeal, and Counsel for the appellants sought to show that the provisions of that statute were those which could be said most nearly to resemble the provisions of Cap. 112. The Yorkshire Registries Act was enacted in 1884 and was an amending and consolidating Act which had been preceded, over a long period of years, by a series of enactments dealing with land registration in Yorkshire. The important section for our purposes is section 14, which provides that “all assurances entitled to be registered under this Act shall have priority according to the date of registration thereof “; the section goes on to make it plain that all priorities given by the Act are to have full effect in all Courts, except in cases of actual fraud, and that all persons claiming thereunder any legal or equitable interests are to be entitled to corresponding priorities. Section 14 further provides that “no such person shall lose any such priority merely in consequence of his having been affected with actual or constructive notice, except in case of actual fraud “ Thereafter by section 15 of the Act it is provided that the registration of any instrument under the Act is to be deemed to contitute actual notice of such instrument, and of the fact of registration, to all persons. as from the date of registration.
Those are very clear and exact provisions, and they go much farther than those in the earlier Yorkshire Acts and the Middlesex Act. They do much to explain, we think, the change in the English decisions after 1884 compared with the line of authorities which, prior to that date, favoured the application of the doctrine of notice to modify the statutory registration provided for by the earlier Acts. For the purposes of comparison, we now turn to section 20 of Cap. 112, which is the relevant section of the Ordinance. That section goes no farther than to provide that ..Every instrument executed on or after the 24th day of March, 1883 ...shall, so far as regards any land affected thereby, take effect as against other instruments affecting the same land from the date of its registration. “It is not without significance, we think, that, although Cap. 112 was enacted eleven years after the passing of the Yorkshire Act, the Gold Coast Legislature did not apparently think fit to embody in it those provisions of the Yorkshire Act which definitely protected priority of registration from being adversely affected by notice. As Cap. 112 falls so far short of the Yorkshire Act in this respect, the language of the Ordinance cannot, in our view, be construed as giving absolute priority to an instrument by reason only of its registration, We are fortified in this conclusion by an examination of the local decisions relating to Cap. 112 to which we have been referred by Counsel.
Before we review those decisions, and although it is not material to this appeal, it is perhaps worth observing at the outset that section 20 of Cap. 112 is confined to determining priority only as between written instruments. Where, therefore, the competition is between a written instrument and a parole grant under native custom, the Ordinance does not apply (Basel Mission v. Bruce (4) arid Dopoh v. Williams (5) ).
Of the local authorities, the earliest reported case directly in point in this appeal is Ayindoho v. Markham (6). This was an appeal against a decision of Branford Griffith, C.J., in which he held that, where the same property was conveyed by two deeds to two different parties, the second deed by reason of the fact that it was registered, took priority over the first deed, which was not.
The learned Chief Justice further held that the purchaser under the second deed had no notice of the first when he bought. The case went on appeal to the Full Court where the question of the affect of notice appears to have been the main point argued. The appeal was allowed on the ground that the first deed had priority. Two of the Judges were of the opinion that the vendor having conveyed all his estate in the property by the first deed, had nothing left to convey by the second, and that in consequence registration of the second deed could not give it priority over the first. They interpreted the effect of the Ordinance in these words:-
“The whole effect of the Registration Ordinance seems to me to be that the party registering has a second record of the transaction, that if that of the original conveyance is lost he has the right to use a certified copy in evidence.”
While accepting the Chief Justice’s finding that the purchaser under the second deed had no notice of the first deed when he bought, the Full Court decided that the second deed nevertheless lost its priority as the purchaser under it had notice of the first deed before the second was registered and took effect under the Registration Ordinance.
Smith, Ag. C.J., dissented from the interpretation of the general effect of the Ordinance laid down by the majority but concurred with them on the effect of notice.
It should be noted that there appears to be a difference of opinion between Griffith, C.J., and the Full Court as to the time at which notice operates. The Chief Justice evidently held that the crucial date was the date of the execution of the second deed, as he found in its favour, the purchaser thereunder having no notice of the first deed at the time of the execution of the second deed. (See also Elsey v. Lutyens (7).) The Full Court, on the other hand, held that, as the second deed did not take effect until it was registered the fact that the purchaser under it had by that time received notice of the first deed, caused him to lose his priority. This particular point does not arise in this appeal, and we would only observe that as the majority opinion on the first point in that judgment in effect decided the appeal, the question of the date of operation of notice may be open for further consideration by this Court if and when it becomes necessary to decide it.
The next reported case on the point was Concession Inquiry 1016 (8), which came before the Full Court presided over by Griffith, C.J., who had sitting with him Purcell, J., one of the Judges who gave the majority decision in Ayindoho v. Markham (6). This case turned on the priority between two leases of the same land by the same grantor to two different persons. The second lessee took his lease for value and without notice and registered it before the first. Griffith, C.J., distinguished this case from Ayindoho v. Markham (6) on the facts, and subjected the majority judgment in that case to a searching criticism in which Purcell, J., concurred and indicated that on further consideration he had come to the conclusion that Ayindoho v. Markham (6) was wrongly decided.
We adopt the interpretation of the Ordinance by Griffith, C. J., in Concession Inquiry 1016 (8) so far as it is relevant to this appeal, but would observe that the ratio decidendi of the judgment was that the second lessee took his lease for value and registered it without notice of the first.
Six months later the Full Court (Purcell, J., presiding) decided the case of Arkaah of Others v. The Tarquah Mining Exploration Co. (9), which also dealt with the priority of two leases of which the second in date was registered before the first. The Court declined to follow Ayindoho v. Markham (6) and decided that prior registration of the second lease gave it priority over the first. It may be noted that notice was not apparently an element in this case.
The next case to be noted is Hochman v. Arkhurst (10). The facts shortly were that Hochman bought a plot of land from the Omanhin of Sekondi in 1914 and paid for it, but he got no deed then, and he went up country leaving the plot lying vacant. In 1918 the Omanhin's Deputy sold the same land to Arkhurst : and executed a deed in his favour, which deed was registered as No. 448/1918. , Hochman returned in 1919 to find Arkhurst in possession. He then obtained a deed from the Omanhin which he registered as No. 407/1919.
Hochman sued Arkhurst in the Native Tribunal and obtained judgment. Arkhurst appealed to the Provincial Commissioner, who reversed the decision of the Tribunal on the ground that the evidence did not justify the Tribunal in finding that Arkhurst purchased with notice of Hochman's claim to the property. The Full Court agreed with the decision of the Provincial Commissioner and held that, as Arkhurst purchased and registered his deed without notice of Hochman's claim, the prior registration of Arkhurst's deed gave him priority. The law on the subject is well stated in the judgment of Nettleton, J., in the following passage (at p. 105):- “ Now it is an elementary principle of law that Nemo dat quod non habet, in other words a vendor of land can give no better title than he possessed himself, and if the Stool had in fact sold to the plaintiff in 1914 (remaining in law a constructive trustee for him until his legal estate was perfected by conveyance) a subsequent conveyance by the same Stool of the same piece of land to another party, i.e. the defendant, would clearly not avail the latter. But if the defendant bought the land from the Stool without notice actual or constructive of the sale to the plaintiff, and obtained a proper assurance in the shape of a conveyance as a bona fide purchaser for value and without being party to any fraud, and without notice registered it in the Lands Registry, the position is altered.”
This review of the foregoing decisions leads us to the conclusion that a later instrument can by registration obtain priority over an earlier one only if it was obtained without fraud and without notice of the earlier unregistered instrument.
We now pass to consider, on the authorities, whether the present appellants had notice of the respondents' rights, whether they made a bona fide enquiry to discover their nature and extent, and whether they received a reasonable explanation about them before entering into their lease.
As to the first point, the respondents were in occupation of the premises at the material date, and it has been held that a tenant's occupation is notice of all that tenant's rights. The law is thus stated by Vaughan Williams, L.J., in Huntv. Luck (11):-
“It means that, if a purchaser or a mortgagee has notice that the vendor or mortgagor is not in possession of the property, he must make inquiries of the person in possession of the tenant who is in possession and find out from him what his rights are, and, if he does not choose to do that, then whatever title he acquires as purchaser or mortgagee will be subject to the title or right of the tenant in possession.”
It was argued on behalf of the appellants that the doctrine of constructive notice applies only to purchasers and mortgagees, but Jessel, M.R., in Patman v. Harland (12) said” The man who takes a lease is in a similar position as regards constructive notice as a man who buys”. And in this Colony the Divisional Court has held that possession by a tenant is notice of that tenant's rights to a purchaser of the property and that, quite apart from registration, the purchaser so buying takes subject to the tenant's rights (Kugbe v. U.T.C. (13) ). This submission of the appellants cannot therefore be sustained.
The next question is whether the appellants made reasonable inquiries. The only evidence of any inquiry having been made by them is that of Mr. Dove who stated “when plaintiffs asked for possession I told them the defendants' lease expired on-24th June, 1948 “and again”. When I executed the lease I told them that defendants lease expired on the 25th June, 1948 “. Neither of the appellants thought fit to go into the witness box.
Now it is clear from Mr. Dove's evidence that the appellants were made aware of the fact that the respondents held on lease, and where the tenant in possession is on lease, a party who proposes to take a lease of the same land is bound to enquire on what terms the lessee is in possession. The fact that his prospective landlord misinforms him of the contents of the lease does not relieve him of that onus. In the case of Patman v. Harland (12) above mentioned, Jessel, M.R., said :-
“Now it has been argued before me that if the lessee, having this constructive notice, be told by the lessor that there is no restrictive covenant, that that representation will in equity do away with the effect of constructive notice. I entirely dissent from that proposition. Constructive notice of a deed is constructive notice of its contents, subject to what I am going to say in a moment. If therefore, you have notice of a deed relating to the title, and forming part of the chain of title, you have notice of the contents of that deed, and it is no excuse for not asking to look at it to say that you were told that the deed contained nothing which it was necessary for you to look at. Otherwise, in every case, you might be satisfied with a statement of the contents of the deed without going to look at it. Of course, there may be cases when the deed cannot be got at or for some other reason where, with all the exercise of prudence in the world, you cannot see it, and then there may be no constructive notice; but that is another question; where you know, it is no answer at all to be told that it does not prejudicially affect your title.”
The learned Master of the Rolls distinguishes cases such as Jones v. Smith (14) (which was cited to us by the appellants) by explaining that if one buys land from a married man and is told that the settlement he made did not affect the land this would not be notice, as a settlement does not necessarily affect all or any of a man's land. He went on to say:-
“But that line of cases has no bearing at all on a case where you know a deed does affect the land and the question to what extent it affects the land is to be ascertained only by looking at the deed. In such a case you have no right to rely on the statement of somebody else that the deed you can look at does not contain something which it does in fact contain.”
Having regard to the authorities and the circumstances of the present case, I we hold that the appellants were put on enquiry by reason of the fact that they had notice of the respondents' lease. Had they inspected it, or made enquiries from the respondents they could have found that it contained an option for renewal. But as they neglected to do this and chose to rely upon the landlord’s assurance they must suffer the consequences, for the respondents, being in no fault, cannot be deprived of their rights under their lease.
For these reasons the appeal was dismissed.
Appeal dismissed.