Under Rta Title Can Never Be Nullity Ab Initio & Interpretation Of Constitution

Date
1 January 2019
Language
English
Type
Article
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Under Rta Title Can Never Be Nullity Ab Initio & Interpretation Of Constitution

By Hassan Asaria - Advocate (Kenya) & Barrister-at-Law (U.K. & Canada)

Brief Description of Chapters

CHAPTER  I

BRIEF INTRODUCTION  -  (FOR DETAIL SEE LATER FROM SECTION 8-17)

 

CHAPTER  II

DETAIL LAWS AND PRINCIPLES FOR INTERPRETATION OF CONSTIUTION

 

CHAPTER  III

DETAIL EXPOSITION RELEVANT PRINCIPLES OF RTA – ALSO RLA AND RTA DIFFERNTIATED

 

  1. Saving provision Registration of  Titles Act (Cap 281) – repealed –v- new Land Registration Act Act (No. 3 of 2012) – RTA continues to apply to past transactions.

  2. Registration of Titles Act (Cap 281) not quite understood in Kenya

  3. How court by misconstruing Article 40(6) of Constitution declared innocent buyer’s title under RTA nullity ab intio. - whereas title under RTA can never be nullity ab initio.

  4. Court erred declaring title nullity ab initio:  (a)  Under common law not knowing common law did not apply to RTA, and (b) Under Article 40(6) of Constitution  erroniously taking literal meaning of Article instead of broad and liberal meaning and taking ancillary legislation such as RTA in consideration.

  5. Philosophy of RTA or Torrens system and doctrine - indefeasibility of title, Curtain and Mirror principle and compensation.

  6. Constitution bare bone of laws – legislature and court to fill it with flesh and spirit by construing it broadly.
  7. Court to add flesh and spirit to the bones or laws - provisions of Constitution general and vague: (a) The Article 40 (6) of the Constitution vague : It states ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’, (b)   Constitution merely framework or bare bones – legislature and court to fill it with flesh and spirit, and (c) Duty of legislature and court to develop law.

  8. Detail exposition on laws and principles for interpretation of Constitution: (a)  Specific provisions for interpretation of Constitution - :  Article 259 provides that,  "(1) This Constitution shall be interpreted in a manner that: (a) promotes its purposes, values and principles, (b) Broad and Liberal Interpretation, (c) In construing court to focus on values, (d) Court to add flesh and spirit to the bones or law, (e) To also bear in mind that RTA overrides other Acts.

  9. Principles of interpretation - Excerpts from Wikipedia Encyclopedia: (a)  Statutory interpretation, (b) Golden rule, or British rule, (c) Doctrine of Absurdity, and (d) Circumstances of use.

  10. Right to own property and protection of title under Constitution and RTA

  11. Right for compensation under Constitution and RTA for deprivation of Property
  12. Unlike RLA, common law and equity do not apply to RTA or Torrens system – as such title can never be nullity ab initio under RTA

  13. Philosophy of RTA and Torrens system of title - indefeasibility of title -  ‘Curtain and Mirror’ principle – compensation.

  14. Registrar’s duty to scrutinize instrument before registering - Registration procedure internal department matter – buyer not concerned about past records.

  15. Under RTA title from void transfer valid - A forger can transfer a valid title  because: (a) Unlike RLA, common law and equity do not apply to RTA or Torrens system (b) Buyer not concerned about past irregularity or illegality, and (c) Under s.22(3) of RTA, last registration is fresh GRANT and thereby  past titles  and interest deemed extinguished – this tantamount to that under RTA,  title can never be nullity ab initio.

  16. Conclusion

  17. Corresponding RTA sections to cardinal principle of Torrens sytem

Chapter I

BRIEF INTRODUCTION   - Sections 1 - 7

(FOR DETAIL EXPOSITION SEE SECTIONS 8-15)

(a)Title nullity under common law: While court not realizing that common law and equity did not apply to RTA, the court has held title nullity ab initio based on common law doctrine "non dat qui non habet"  that seller cannot transfer better title than he has. This is absolutely contrary to the cardinal principles of RTA. To preserve the doctrine of indefeasibility, firstly, s. 22(1) of RTA assures indefeasibility of title in rem to buyer, secondly under s. 22(3) buyer’s title is deemed as fresh GRANT thereby extinguishing all past titles and interest. It also tantamount that buyer is not concerned about the past record, because under s. 32 and 37 of RTA, it is the duty of registrar to scrutinize each instrument before registering it,  and thirdly, unlike RLA,  so that the doctrine of indefeasibility or sanctity of title is not undermined, common law and equity do not apply to RTA. Whereas s.163 of RLA expressly provides that Act is subject to the "common law of England as modified by equity", so that doctrine of indefeasibility is not undermined,  RTA does not have such provision. As such, whereas in RLA only first registration is indefeasible or subsequent one can be challenged because equity applies, under RTA all subsequent ones are also indefeasible. Since the common law and equity do not apply to RTA, title from void transfer would be valid i.e. a forger can transfer a valid title. In Boyd v. Mayor, etc., of Wellington (supra)N.ZSalmond J. said (of the 1915 Act): "One of the main purposes of the Land Transfer Act was to abolish this rule of the common law in favor of the rule that he who purchases a registered title in good faith from the registered proprietor obtains for himself an indefeasible title unaffected by any defect in the title of his vendor.

(b) Title nullity under Article 40(6) of Constitution: Apart from court declaring bona fide buyer’s title nullity ab initio on the ground of common law doctrine that buyer cannot give better title than he has, the title  has also been declared nullity ab initio by taking literal meaning of Article 40(6) of Constitution which states,  ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. This is indeed very general, vague and ambiguous language. Unfortunately court has merely taken literal meaning of this provision. As explained in detail later herein, since Constitution is bare bone or skeleton, it is absolutely incumbent that provisions of Constitution be liberally construed while taking into account the ancillary legislation such as RTA to  promote purposes values and principles of the Constitution. If  principles of interpretation was applied, the Article would apply to the ACTUAL DEFRAUDER AND NOT INNOCENT BUYER.

 

  1. Saving provision RTA v LRA: Registered Titles Act (Cap 281) which has been  repealed but continue to apply to past transctions. The saving provision under s.107(1) of new Land Registration Act (No. 3 of 2012). states, "Unless the contrary is specifically provided for in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force of exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act’.
  2. Registration of Titles Act (Cap 281) not quite understood in Kenya: Unlike in other jurisdictions such as New Zealand, Australia, Canada and Uganda, in Kenya the principles and concept of RTA and Torrens system have not been mooted out in a real sense inside or outside the court. As such, they are not quite understood in Kenya. Hence court have declared title of innocent buyer nullity ab initio not knowing that unlike RLA, common law and equity do not apply to RTA and upon buyer being registered his title is indefeasible and absolute, and that he is not concerned about the past because it is the responsibility of registrar to scrutinize each instrument before registering it. Court has also by taking literal meaning of Article 40(6) of Constitution declared innocent buyer’s title nullity ab intio. The article 40(6) states, ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. By declaring title nullity,  it has extricated cardinal principle of title being absolute from RTA and rendered RTA like a vehicle without an engine. Under RTA or Torrens system a title of innocent buyer can never be nullity ab initio.
  3. How court by misconstruing Article 40(6) of Constitution declared innocent buyer’s title under RTA nullity ab intio: In the case of Chemei Investments Limited v The Attorney General & Others Nairobi Petition No. 94 of 2005(Unreported) where the court stated at paragraph 64 that -"The Constitution protects a higher value, that of integrity and rule of law. These values cannot be side stepped by imposing legal blinders based on indefeasibility. I therefore adopt the sentiments of the court in the case of Milan Kumarn Shah & 2 Others v City Council of Nairobi & Another (Supra) where the Court sated as follows, ‘We hold that the registration of title to land is absolute and indefeasible to the extent, firstly, that the creation of such title was in accordance with the applicable law and secondly, where it is demonstrated to a degree higher than the balance of probability that such registration was procured through persons or body which claims and relied on that principle has not himself or itself been part of a cartel which schemed to disregard the applicable law and the public interest."  Such decision, basically takes the wind off  from cardinal component of RTA that  title being absolute and rendering it meaningless.
  4. Court erred declaring title nullity ab initio under RTA and Constitution:
  5. Philosophy of RTA or Torrens system and doctrine of indefeasibility of title: The object is to save persons dealing with registered proprietors, from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validity. That end is accomplished by providing that every one who purchases, in bona fide and for value, and is registered shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author’s title.  "The philosophy of land titles system embodies three principles, namely, the mirror principle, where the register is a perfect mirror of the state of title; the curtain principle, which holds that a purchaser need not investigate the history of past dealings with the land, or search behind the title as depicted on the register; and the insurance principle, where the state guarantees the accuracy of the register and compensates the original owner.  These principles form the doctrine of indefeasibility of title and is the essence of the land titles system. Other principles critical of RTA that are not bon in mind to taken lightly by courts: (a) As title by registration, register and not certificate constitute title, (b) So that doctrine of indefeasibility is not undermined, burden of proof of fraud is higher and degree of diligence is lower, (d) Not rectification of title once bona fide buyer acquires the tile, (e) Possession passes with title, (f) Again so that doctrine of indefeasibility is not undermined, possession passes with the title and RTA overrides other Acts if other Acts repugnant, and (g) A bona fide buyer is entitled to the possession of property and original over compensation. There has been tendency for court to grant possession of property to the original owner as a sympathy that it would be unfair to deprive him of his property. This defeats entire objective of RTA or Torrens system. As a matter of fact, the owner is not deemed to suffer any economic loss as in the case of compulsory acquisition of property by Govt, he is paid full market value of it.
  6. Constitution bare bone of laws – legislature and court to fill it with flesh and spirit by construing it broadly: 
    The constitution comprising of only few pages cannot encompass all the laws of a nation. It merely states laws in a philosophical or broadly. Hence, it is just a skeleton of laws or is like a mere framework of a building. Until finishing work is completed, the building cannot be used for occupation, though frame or structure is a critical part of building. The constitution expressly stipulates for legislature and court to finish the building to be useful by adding flesh to it.  In Lemeiguran & 3 others v Attorney General & 2 others [2006] 2 KLR 819; (2008) 3 KLR (EP) 325)’ it is stated that the dry bones approach to constitutional interpretation is to be tolerated only where it is evidently and crystal clear that the framers intended to retain the frames only. Otherwise it is the task of the court in each generation to give flesh and spirit to the bones". Hence to interpret a provision such as Article 40(6), it has to be looked in the light of detail laws that have been promulgated or enacted. Appropriate laws enacted under this Article (40)(6) is registration of land titles and in the instance suit, provisions of RTA would be most appropriate in construing this Article. Sadly, court has completely ignored RTA in interpreting this Article and has taken literal meaning depriving innocent buyer of his property.

Chapter II

RELEVANT DETAIL LAWS AND PRINCIPLES FOR INTERPRETATION OF CONSTIUTION

CONSTITUTION MERELY  SKELETON OR FRAMEWORK OF LAWS – COURT TO PUT FLESH AND SPIRIT INTO IT - TO BE INTERPRETED BROADLY AND READ WITH ANCILLARY LAWS – BILL OF RIGHT TO OWN PROPERTY – COURT ERRED HOLDING TITLE UNDER RTA NULLITY AB INITIO BY TAKING LITERAL MEANING

 


(a) The Article 40 (6) of the Constitution vague : It states ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’. This provision indeed is very general, wide and ambiguous. The term ‘acquired’ could imply any transfer – current or past, or any bona fide buyer or only actual defrauder. Also term ‘unlawfully’ is wide. There are degrees of unlawful acts – from a felony to merely spitting in the street. For instance in the case of transfer of property, if application for registration was not signed, or property was undervalued for stamp duty or to expedite registration, a favour was asked of official,  all such instances could be deemed unlawful. As such, it is absolutely incumbent that provisions of Constitution as explained in detail herein has to be liberally and broadly construed to befit appropriate circumstances. This responsibility to fill the flesh and spirit to the bare bones of Constitution has been expressly assigned to the legislature and court. Under true interpretation the Article implies actual defrauder and not innocent buyer.

(b) Constitution merely framework or bare bones – legislature and court to fill it with flesh and spirit: While Constitution is a supreme or paramount document of dogma and law, it is barely few pages and therefore cannot spell out or encompass all the detail laws of land. It is indeed bare bone of laws or is like a mere framework of a building. Until finishing work is completed, the building cannot be used for occupation, though frame or structure is a critical part of building. Article 19 of Constitution: "(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. (3) The rights and fundamental freedoms in the Bill of Rights— (a) belong to each individual and are not granted by the State, (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognized or conferred by law, except to the extent that they are inconsistent with this Chapter". This Article indeed confirms that the provisions of Constitution are mere bare bones or framework and as provided under Article 259(1), it is the responsibility of legislature to interpret it broadly and develop laws to add flesh to it. If court purported to read only literal meaning, it would be against the spirit of the Constitution and unjust. The constitution leaves on legislature and court to finish the building by putting flesh into the framework.

(c) Duty of legislature and court to develop law: However, Constitution relies on legislature and court to formulate detail laws within the spirit and parameter that has been laid down based on Article 259(1) which provides that "This Constitution shall be interpreted in a manner that— (a) promotes its purposes, values and principles;  (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;  (c) permits the development of the law". Because it is merely a skeleton or framework of laws, it imposes serious responsibility of ‘DEVELOPING THE LAW" on the shoulder of legislature and court. Article 68: "Parliament shall— (a) revise, consolidate and rationalize existing land laws; (b) revise  land use laws in accordance with the principles  set out in Article 60 (1); and (c) enact legislation— (i) to prescribe minimum and maximum land holding acreages in respect of private land; (ii) to regulate the manner in which any land may be converted from one category to another; (vii) to provide for any other matter necessary to give effect to the provisions of this Chapter". This confirms the duty of legislature and court to develop the laws. Hence, to interpret an Article or provision, it is critical to look at it in the light of subordinate statute enacted by legislature. Hence, to derive true meaning of Article 40(6): ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’, it is absolutely critical to take into account the detail laws promulgated or enacted under it.  In the instant suit, it is incumbent that provisions of RTA should be born in mind,  particularly s. 22(3) which declares last registered owner’s title as a fresh or new grant thereby extinguishing all previous titles and interest, while s. 23(1) assuring indefeasible or absolute title to  a bona fide buyer. RLA under s. 163 is subject to common law and equity, except for the first registration, other registrations could be defeasible or are not indefeasible. This is because those equitable interest and rights that are not registered are also recognized. On the other hand, as RTA does not have provision such as s. 163 of RLA, it overrides common law and equity and therefore, unlike RLA, not only first registration, but all subsequent ones are also indefeasible or absolute.  Based on this, under RTA past irregularity or illegality do not affect last buyer’s title and title can never ever be nullity ab initio as far as last bona fide buyer is concerned. Despite of such a clear cut ruling of superior Court of Appeal in the following two cases confirming that upon registration last bona fide buyer has indefeasible title in rem despite past illegality, the High court  has been erroneously holding that equity and common law also applied to RTA  and have been declaring title of  last bon fide buyer nullity ab initio for past illegality or irregularity based on seller cannot vest better title than he has. By extricating this main component of RTA title being absolute upon registration, the High Court has rendered RTA or Torrens system like  a car without an engine:

I. In Hannah Wangui Ithebu & Other v Joel Nguigi Magu, The Land Registrar Muran’a & Other Civil Appeal No. 86 of 1999 – [2005] eKLR High Court at Nairobi: Justice Visram unequivocally reaffirmed the decision of Court of appeal in Nairobi Permanent Markets Society & other eleven – v – Salima Enterprises and NCC Appeal No. 185 of 199  that despite past illegality title of a last bona fide buyer was indefeasible under s. 23(1) of RTA

II. Dr. Joseph Ng’ok v. Justice Moijo Ole Keiwua and Others, Court of Appeal, Civil Appeal 60 of 1997 (27/97 Nrb) – In this suit despite past illegality, the title of last bona fide was held indefeasible. The ruling stated, "Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property. The title of such owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya will be placed in jeopardy". Unfortunately, despite these decisions of superior Court of Appeal, High court incorrectly applying common law doctrine, have been declaring titles of bona fide buyer nullity  ab initio under RTA.

 

a. Specific provisions for interpretation of Constitution: Article 259 provides that, "(1) This Constitution shall be interpreted in a manner that: (a) promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance. …(3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and, therefore, among other things—" Article 20(3) (b) "adopt the interpretation that most favors the enforcement of a right or fundamental freedom"… 20(4)(b).. Promote the spirit, purport and objects of the Bill of Rights".

b. Broad and Liberal Interpretation: In the case of Crispus Karanja Njogu Vs Attorney General Nairobi, High Court Criminal Application No 39 of 2000 in which the court held the view that Constitutional provisions ought to be interpreted broadly or liberally ‘and not in a pedantic way i.e. restrictive way.’(In the words of the court, "Constitutional provisions must be read to give effect to the values and aspirations of the people. The court must appreciate throughout that the Constitution, of necessity has principles and values embodied in it, that a Constitution is a living piece of legislation. It is a living document." Similarly, members of the tribunal of inquiry established to investigate the conduct of puisne judges in matter number 1 of 2004 had occasion to make a ruling raising, among other issues, the questions of Constitutional interpretation. In their ruling, tribunal members opined that "rules of interpretation in case of a Constitution which is not an Act of Parliament may, therefore, be different from those in case of an Act of Parliament. We will interpret the Constitution in a liberal and broad manner within the precincts of common sense and the object of the particular section"

c. In construing court to focus on values: In the case of Rev. Dr. Timothy Njoya and 6 others Vs the Attorney General and 4 Others [2004] 1 KLR 232; (2008) 2 KLR (EP) 624 the three judges each considered the issue of the proper approach to Constitutional interpretation separately. Ringera J (as he then was) held that: "The Constitution is not an Act of Parliament and is not to be interpreted as one. It is the supreme law of the land; it is a living instrument with a soul and consciousness; it embodies certain fundamental values and principles and must be construed broadly, liberally and purposely or teleologically to give effect to those values and principles...those to my mind are the values and principles of the Constitution to which a court must constantly fix its eyes when interpreting the Constitution."

d. Court to add flesh and spirit to the bones or law: The High Court has added further support to this position by the dictum that: The dry bones approach to constitutional interpretation is to be tolerated only where it is evidently and crystal clear that the framers intended to retain the frames only. Otherwise it is the task of the court in each generation to give flesh and spirit to the bones (Lemeiguran & 3 others v Attorney General & 2 others [2006] 2 KLR 819; (2008) 3 KLR (EP) 325).

e. RTA overrides other Acts – this to bear in mind in interpretation: Apart from taking into account these principles in construing meaning of Article 40(6), the court also needs to heed to s.1(2) of RTA which states, "Except so far as is expressly enacted to the contrary, no Act in so far as it is inconsistent with this Act shall apply or be deemed to apply to land, whether  freehold or leasehold which is under the operation of this Act". What it means is that, if a provision of any Act is repugnant to RTA, unless it itself expressly refers to the RTA, the provision of RTA would prevail over that Act. This provision makes RTA override all other Acts because, if title was subject to others laws, it would defeat the cardinal principle of "sanctity of title" or "conclusiveness of title". Although the Constitution is supreme, however, to aid in the interpretation of its provision such as Article 40(6), the provisions of RTA becomes very much relevant or helpful and ought to be taken into account. As the legislature has enacted RTA in compliance with the spirit to develop detail laws, it is incumbent on the court to take notice of provisions of RTA. This is because Article 40(6) do not expressly refer to RTA to override it.  In view of above, the obvious and most logical interpretation of Article 40(6) is that, it applies only to actual defrauder and not innocent buyer.

a. Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose.

b. Golden rule, or British rule:  Is a form of statutory construction traditionally applied by English courts. The other two are the "plain meaning rule" (also known as the "literal rule") and the "mischief rule." The golden rule allows a judge to depart from a word's normal meaning in order to avoid an absurd result.

c. Doctrine of Absurdity: In law, strictly literal interpretations of statutes can lead to logically deduce absurdities, and the Doctrine of Absurdity is that commonsense interpretations should be used in such cases, rather than literal reading of a law or of original intent. The Absurdity doctrine is a doctrine in legal theory, also known as "Scrivner's Error"; in which American courts have interpreted statutes contrary to their plain meaning in order to avoid absurd legal conclusions. It is contrasted with.  Chung Fook v. White, 264 U.S. 443 (1924), was a landmarkSupreme Court case. It was significant in that it marked the end of the era of strict plain meaning interpretation of statutes and the beginning of the looser American Rule that the intent of the law was more important than its text.

d. Circumstances of use: Although it points to a kind of middle ground between the plain  meaning (or literal) ruleand the mischief rule, the golden rule is not, in a strict sense, a compromise between them. Like the plain meaning rule, the golden rule gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature's intention, the golden rule dictates that a judge can depart from this meaning. In the case of homographs, where a word can have more than one meaning, the judge can choose the preferred meaning; if the word only has one meaning, but applying this would lead to a bad decision, the judge can apply a completely different meaning.

 

The Bill of Rights under Article 40(1) expressly provides citizen’s right to own property and thereby impliedly also protection of title or ownership. Article 40(1) states "Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property— (a) of any description; and (b) in part of Kenya".  To that end, if property is acquired compulsorily or if owner’s right to it is prejudiced by any provision of the Constitution, the citizen has to be compensated or appropriate relief be given.  The Article 84 (6) of old Constitution (still applicable) in this respect re-affirms original power of High Court to give relief to those who are prejudiced by the provision of the Constitution. The RTA, which is enacted with the blessing of Constitution, has detail laws for registration of titles, and while assuring indefeasibility of title to the last bona fide buyer, in compliance with the spirit of Constitution also obliges the Government  under s. 24 to pay FULL COMPENSATIONto the owner who is deprived of his property. This is a special type of compensation in addition to normal common law under the negligence. Since the prime objective of both the Constitution and also RTA is to ensure that innocent buyer’s right is not prejudiced, it would be gross injustice to give a narrow or literal interpretation to the Article 40(6).

‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’ and deprive a bona fide buyer of his property without any compensation or relief. This is particularly when harm to the innocent buyer is due to the negligence of officials at the Land Registry and buyer having relied on the statute (RTA) promulgated by Parliament with the blessing of the Constitution, the supreme authority, offering him protection of title. Hence, it is respectfully submitted that the obvious and logical interpretation of "unlawfully acquired" in the Article 40(6) means the ACTUAL DEFRAUDER AND NOT INNOCENT BUYER. This is why the legislature who had to formulate detail laws have enacted RTA to govern the registration of titles and have specifically provided therein, concept of indefeasible or absolute title to the last registered owner. The same concept or principle has been carried forward into new Land Registration Act

  1. Court to add flesh and spirit to the bones or laws - provisions of Constitution general and vague:
  2. Detail exposition on laws and principles for interpretation of Constitution:
  3. Principles of interpretation - Excerpts from Wikipedia Encyclopedia:
  4. Right to own property and protection of title under Constitution and RTA:
  5. Right for compensation under Constitution and RTA:
  6. To protect interest of a citizen who is adversely affected by the provisions of Constitution, the Constitution under Article 84 of old Constitution reaffirms original power High court to grant relief to such citizen. This Article is carried forward in the new Constitution. Article 19 of new Constitution provides that " Until the Chief Justice makes the rules contemplated by Article 22, the Rules for the enforcement of the fundamental rights and freedoms under section 84 (6) of the former Constitution shall continue in force with the alterations, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with Article 22." When anything is taken away from an individual citizen or his right is prejudiced in the interest of public at large, it would be unfair that one individual takes the entire brunt. Since all citizens would have benefitted, the Constitution specifically provides that such individual be compensated as in the case of compulsory acquisition.  In  JAMES NYAGA V. A.G MISC CIVIL 1732 OF 2004 (Nrb Law Courts [2007] eKLR:  court declared bona fide buyer’s title nullity ab initio (it is submitted court erred in this respect) under Article 75 old Constitution (Article 40(6) new Constitution). However, to preserve the spirit of Constitution in protecting rights of innocent citizens, in pursuance of Article 84(6) old Constitution (still valid), it awarded compensation to the bona fide buyer for his loss. It stated. "…Are the Applicants entitled to the remedies sought? Under s 84 of the of Constitution (still valid), the court has inherent and unfettered jurisdiction to grant remedies available to ensure that the ends of justice are met. In doing so, the court will endeavour to balance the interests of the Applicants as against those of the general public…"

Chapter III

DETAIL EXPOSITION RELEVANT PRINCIPLES OF RTA – ALSO RLA AND RTA DIFFERNTIATED

 

a. The cardinal doctrines of RTA or Torrens system are not quite understood in Kenya, namely, that (i) Under s.23(1) of RTA title is indefeasible or absolute in rem, (ii) Under s. 22(3) last buyer’s title is fresh GRANT thereby extinguishing all previous titles tantamount buyer not concerned about past history of title as under s. 27 and 37 its registrar’s duty to scrutinize each instrument before registering it, (iii) Unlike RLA, common law and equity do not apply to RTA. Hence common law doctrine "non dat qui non habet"  that seller cannot transfer better title than he has does not apply to RTA. IN VIEW OF THIS TITLE CAN NEVER BE NULLITY AB INITIO UNDER RTA, THOUGH COURTS THINKING COMMON LAW APPLIED HAVE BEEN HOLDING TITLE NULLITY.

b. As Constitution cannot encompass all laws, it states laws in a philosophical manner. It is merely bare bone of laws and it requires legislature fill it with flesh and spirit. Hence its provisions should be construed broadly in conjunction with ancillary legislations under it such as RTA. However, there has been tendency with the courts to construe provisions by taking literal meaning of them. Unfortunately, court by taking literal meaning of Article 40(6) of Constitution which states that, ‘The rights under this Article do not extend to any property that has been found to have been unlawfully acquired’ has declared innocent buyer’s title nullity ab initio. By declaring title nullity, it has in fact extricated cardinal principle of title being absolute from RTA and rendered RTA like a vehicle without an engine despite, under RTA or Torrens system  title of an innocent buyer can never be nullity ab initio.

  1. RLA and RTA Differentiated – unlike RLA, commpn law and equity do not apply to RTA or Torrens system:

    RLA, RTA and English Registration of Title Act 1925 (‘ERTA’) all provide systems for registration of land titles. RLA and ERTA basically are similar. Two main differences between RTA and RLA are:  (i)  The s.163 of  RLA expressly provides that the Act is subject to the "common law of England, as modified by equity" " which encompasses equitable doctrines of implied, constructive and resulting trusts. As a result those equitable interest and rights that are not registered are also recognized," See Kanyi v. Muthiora (19 of 1982) CA Nrb at pages 713.  On the other hand, RTA overrides common law and equity and does not have provision such as s.163 of RLA. This makes registration under RTA absolute like company shares, what appears on the face of register is what is recognized and not equitable interest. (ii) Since RLA is subject to common law and equity, except for the first registration, subsequent registrations could be challenged and are not indefeasible. This is because, those equitable interest and rights that are not registered are also recognized. On the other hand, since RTA does not have provision such as s. 163 of RLA, common law and equity do not apply and therefore, unlike RLA, not only first registration but all subsequent ones are also indefeasible.  This is because RTA being a pure breed of Torrens system, it is to prevent doctrine of indefeasibility title being undermined.  Hence common law doctrine that seller cannot give better title than he had "non dat qui non habet’ does not apply to RTA, and therefore title derived from a void title is valid or a forger can transfer a valid title to a bona fide buyer who has no  knowledge of fraud. Forger’s title is valid, until it is voided. If in the meantime bona fide buyer for value is registered as owner, he achieves an indefeasible title against the entire world including the original owner, and thereafter the original owner’s recourse is only for compensation from the government.  In Boyd v. Mayor, etc., of Wellington (supra)N.Z Salmond J. said (of the 1915 Act): "One of the main purposes of the Land Transfer Act was to abolish this rule of the common law in favor of the rule that he who purchases a registered title in good faith from the registered proprietor obtains for himself an indefeasible title unaffected by any defect in the title of his vendor. This purpose is thus expressed by the Privy Council in Gibbs v. Messer (1891) AC 28 PC pge 257 last para - "..Although a forged transfer which is void at common law, will, where duly entered on the register, becomes the root of a valid title, in a bona fide purchaser.."  The effect of registration, therefore, is to validate the purchaser’s title notwithstanding defects in the vendor’s registered title. The common law rule of non dat qui non habet is wholly abolished in favor of purchasers of registered titles in good faith". "As I understand Gibbs v. Messer (supra) ".. indefeasibility of title is a privilege given to purchasers who honestly and in reliance on the registration of their vendor’s title acquire that title from him by a valid and registered instrument. Such a purchaser cannot, in the absence of fraud, be affected by the defects in his vendor’s title."
  2. Philosophy of RTA and Torrens system of title - doctrine of indefeasibility of title and concept of ‘curtain and mirror" – compensation to deprived party:

    This  is contained in the classic statement in Gibbs v. Messer (1891) AC 247 PC at 254  para 3   "..The main object of the Act, and the legislative scheme for the attainment of that object, appear to be equally plain. The object is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validity. That end is accomplished by providing that every one who purchases, in bona fide and for value, from a registered proprietor, and enters his deed or transfer of mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author’s title."  In Regal Constellation Hotel Ltd  Re 2004 CanLII 2006 Ontario C.A.) Pge13 para 42    "The philosophy of land titles system embodies three principles, namely, the mirror principle, where the register is a perfect mirror of the state of title; the curtain principle, which holds that a purchaser need not investigate the history of past dealings with the land, or search behind the title as depicted on the register; and the insurance principle, where the state guarantees the accuracy of the register andcompensates any person who suffers loss as the result of an inaccuracy." These principles form the doctrine of indefeasibility of title and is the essence of the land titles system.

    The doctrines of Torrens system are enshrined in RTA: s. 23(1) which makes title of last registered owner indefeasible or absolute; s. 22(3) makes the title of last registered owner deemed a fresh grant thereby extinguishing all past titles and interest and also thereby making for subsequent buyer not necessary to scrutinize past records; and s.32 provides that no interest in an instrument would pass until its is registered. On the other hand, under GLA, interest passes upon execution of instrument.  In Breskvar v Wall (1971) 126 CLR (High Court Aus) at pge 14 last para)  ".. He  noted, as an important benefit of the new system, "cutting off the retrospective or derivative character of the title upon each transfer or transmission, so as that, each freeholder is in the same position as a grantee direct from the Crown’. Also in Breskvar v Wall (1971) 126 CLR (High Court Aus) at pge 14 last para) at pge12  para 1, "..The justification for destroying an existing legal estate or interest, which already been duly established upon the register, is, in other words, found only in the necessity of protecting those who subsequently deal in good faith and for value in a manner, which, upon its face, the register appears to authorize, and who then obtains registration"  In Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B.C. Canada at page 19 para 25  "..The Torrens system is intended "to give certainty to title" as it appears in the land titles office.  That one who is named as owner in an uncancelled certificate of title possesses an "indefeasible title against all the world", and at pge 19 para 25 "…registered owner of lands described in a certificate of indefeasible title signed by the Registrar has title to those lands from the moment the signature of the latter is affixed thereto, good against all the world….and is not liable to an action for ejectment or recovery of the said lands by therightful owner.."…. "Indefeasible" means "that which cannot be defeated, revoked or made void.  Again  in Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B.C. Canada  at page 18 para 24,  by error part of land of Edie was included in the subsequent grant of Thomas. Since Thomas argued at length that title of Edie was defective due to irregularity and illegality in his grant, this case dealt at length principle of indefeasibility of title.  At pge 18 para 24 ..  "The general and primary conception underlying the statute, as it is of all legislation establishing what is known as the Torrens system of land titles, is that the existing certificate, bearing the name of a real person, is conclusive evidence of his title in favor of any person dealing with him in good faith and for valuable consideration …The argument made involves this, that a person contemplating a purchase of land included in a certificate must not only examine that certificate and make a proper search for the interests to which, by the statute, it is declared to be subject, but must also examine every transfer back to the original grant from the Crown for errors in transcription into the successive certificates The legislation was designed, obviously, to avoid just such inconvenience and risk..’  Even when original grant is void, subsequent bona fide buyer’s title is valid and indefeasible.  The legislation was designed, obviously, to avoid just such inconvenience and risk". IN VIEW OF THIS, UNDER RTA TITLE CANNOT EVER BE NULLITY AB INITIO, THOUGH LOCAL COURTS TEND TO HOLD TITLE NULLITY BY ERRONIOUSLY APPLYING COMMON LAW AND EQUITY TO RTA.

  3. Registrar’s duty to scrutinize instrument before registering - Registration procedure internal department matter – is not concerned about past:

    While s.32 of the RTA states that the instrument is not valid until it is registered, the s. 27 provides that instrument is deemed registered only when registrar enters a memorial in the register. Hence, it is the absolute responsibility of registrar to scrutinize each instrument before registering it. The procedure for registration stipulated under the Act is internal matter for the Land Titles Department only. Once the transfer is registered and registrar inserts his signature, the title becomes absolute or conclusive, and therefore indefeasible for all purposes including against the original owner except for fraud in which buyer had colluded. If due to any error anyone suffers loss, the government compensates the aggrieved party which includes the original owner who is deprived of the property. Under the Old System conveyance or GLA (now replaced by LRA), the interest or title passes upon the execution of instrument and registration is substantially for priorities. Whilst the parties remain responsible for the preparation of documents under the Torrens system, it is the act of an officer in the Land Titles Office which effects the transfer of title to any registered legal estate or interest. The powers and responsibilities vested in state officials thus give rise to the possibility of loss through mistakes occurring in the Land Titles Office for which loss, the compensation is payable. As provided in s 32 of the Act, based on title being by registration, the buyer is not obliged to go behind the records of land registry. He is not required to ascertain if certificate of title or transfer is valid or not. This is because the Act assures him absolute ‘sanctity of title.’ Despite this there has been tendency for courts to hold that it is buyer’s responsibility to ensure that procedure for registration was complied and scrutinize past records.
     
  4. Title from void transfer valid - A Forger can transfer a valid title  because: (a) Unlike RLA, common   law and equity do not apply to RTA or Torrens system (b) Buyer not concerned about past irregularity or illegality (c) Upon registration past titles extinguished and last bona fide buyer achieves indefeasible title against all including original owner:

    (a)     Buyer takes the title at its face value and is not concerned about past irregularity or whether the procedure for registration was followed as it is the duty of registrar to scrutinize each instrument before registering.  This is because of under s.23(1) RTA assures him indefeasible title against entire world including the original owner upon registration. To that end s.22(3) of RTA provides,  "The title of the proprietor under each fresh certificate of title shall be as valid and effectual in every respect as if he had been the original grantee in the grant of the land contained in the certificate’. What this tantamount to is that all previous titles and interest are deemed extinguished including that of the original owner as such and buyer is not concerned about the past irregularity or illegality. In Breskvar v Wall (1971) 126 CLR (High Court Aus) at pge 14 last para) at pge 14 last para, ".. He noted, as an important benefit of the new system, "cutting off the retrospective or derivative character of the title upon each transfer or transmission, so as that each freeholder is in the same position as a grantee direct from the Crown’. "This is an assertion that the title of each registered proprietor comes from the fact of registration, that is made the source of the title, rather than a retrospective approbation of it as derivative right.." What this tantamounts to is that in essence each transfer of land involves surrender back to the Crown and a fresh grant from the State. In Regal Constellation Hotel Ltd 2004 CanLII 206 Otario C.A.) Pge13 para 43, "Certainty of title and the ability of bona fide purchaser for valuable consideration to rely upon the title as registered, without going behind it to examine the conveyance, are therefore, hallmarks of the land titles system.." In Assets Company Ltd v Mere Roihi and Others (1905) A.C. 176  House of Lords (Privy Council) at pge 18 para 1".. A registered bona fide purchaser from a registered owner whose title might be impeached for fraud has better title than his vendor, even if title of the latter could be impeached .."

    (b) In Thomas v Edie et al 2006 BCSC (CanLII) Supreme Court B.C. Canada at page 18 para 24  In this case by error part of land of Edie was included in the subsequent grant of Thomas.  At pge 18 para 24 "…The argument made involves this, that a person contemplating a purchase of land included in a certificate must not only examine that certificate and make a proper search for the interests to which, by the statute, it is declared to be subject, but must also examine every transfer back to the original grant from the Crown for errors in transcription into the successive certificates. The legislation was designed, obviously, to avoid just such inconvenience and risk..’ Even when original grant void, subsequent bona fide buyer’s title is valid and indefeasible. 

    (c) In Asset Co. Ltd. v. Mere Roihi and others (1905) AC 176 (Privy Council) – In N.Z. in issuing grant to Native lands, there were several irregularities. Subsequently lands were sold successively to the bona fide buyers for which transfers, registered and certificate of titles issued. Upon the Natives challenging the titles of bona fide buyer it was held, at pge 2 last para, ".. in the absence of fraud by the Company or its agents, registration is conclusive, and confers good title on the Company, and that in the proceedings in the Native court even if proved, cannot affect the title of the Company, although such defects may possibly entitle the Natives to Compensation for any injury caused to them by improper registration.." and at  17 para 2  "..The sections making registered certificate conclusive evidence of title are too clear to be got over" and at 18 para 1 ".. A registered bona fide purchaser from a registered owner whose title might be impeached for fraud has better title than his vendor, even if title of the latter could be impeached .."

    (d) Again in Assets Company Ltd v Mere Roihi and Others (1905) A.C. 176  House of Lords (Privy Council) at pge 18 para 1   ".. A registered bona fide purchaser from a registered owner whose title might be impeached for fraud has better title than his vendor, even if title of the latter could be impeached .." In the text book Principles of Land law in Uganda by  John T. Mugambwa (who is a professor at Murdoch University in Australia and has 20 text books to his credit) at pge 73 para 4  mentions a case in Uganda - Lwanga v. Registrar of Titles Misc Case No 7A of 1977 (Unreported) (1980) AC 248 in which A forged the signature of B and transferred the property in his name and later sold and transferred it to C, a bona fide buyer. It was held that "… the title of bona fide purchaser could not be impeached since a person who was registered through fraud could pass a good title to a bona fide purchaser for value unless purchaser was not a bona fide purchaser or was privy to the fraud. This was one of the paradoxes of registered conveyance, that the registration by fraud was yet capable of becoming a good root of title to a bona fide purchaser for value ." In Australian case Breskvar v Wall (1971) 126 CLR (High Court Aus) pge 4 para15  Barwick J,  -  "The Torrens system of registered title of which the Act is a form is  not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not  historical or derivate. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matter not what the cause or reason for which the instrument is void." – 

    (e) In Frazer v. Walker (1967) 649 ALL E.R at pge 651 para I in a jointly owned property wife forged, appellant, husband’s signature and later mortgaged the property. The appellant sought to set aside the mortgage, as well as the title to the new bona fide owner who had acquired title through foreclosure of the property. The appellant argued that registration of instrument did not comply the required procedure and therefore was a nullity. In this case Lord Wilberforce stated at page 651 para H and I ". . The appellant invoked these sections, and regulation 24 of the Land Transfer Regulations, 1948, in support of an argument that the forged mortgage could not be received for registration or validly registered and consequently that the mortgagee never became entitled to the benefit of registration. Their Lordships cannot accept this argument, which would be destructive of the whole system of registration. Even if non-compliance with the Act’s requirements as to registration may involve the possibility of cancellation or correction of the entry—the provisions as to this will be referred to later—registration once effected must attract the consequences which the Act attaches to registration whether that was regular or otherwise…. It is in fact the registration and not the antecedents which vests and divests title." Gibbs v Messer (1891) AC 248 Privy at page 254 para 3 Council  "…every one who purchases in bona fide  and for value, from a registered proprietor, and who enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author’s title This purpose is thus expressed by the Privy Council in Gibbs v. Messer (1891) AC 28 PC - The effect of registration, therefore, is to validate the purchaser’s title notwithstanding defects in the vendor’s registered title. The common law rule of non dat qui non habet is wholly abolished in favor of purchasers of registered titles in good faith". "As I understand Gibbsv. Messer, indefeasibility of title is a privilege given to purchasers who honestly and in reliance on the registration of their vendor’s title acquire that title from him by a valid and registered instrument. Such a purchaser cannot, in the absence of fraud, be affected by the defects in his vendor’s title.

    (f) Kenya cases – title of bona fide buyer indefeasible or valid despite past illegality and irregularity:

    How court has erred:     Despite clear rulings in cases mentioned below of the superior Court of Appeal, whose decisions are absolutely binding on lower court, the High Court has been holding title nullity ab initio on the ground of past illegality.  This is also despite under s. 22(3) of RTA, last registration is deemed fresh or newGRANT thereby extinguishing all past titles and interest and implying that any past illegality does not concern the last bona fide buyer. This is presumably because High Court not realizing that unlike RLA, common law and equity did not apply to RTA. Based on misconception that under common law, seller cannot transmit better title than he has, it has been holding  title nullity ab initio. The court has also declared title nullity ab initio by taking merely literal meaning of rticle 40(6) of the Constitution which states that "The rights under this Article do not extend to any property that has been found to have been unlawfully acquired". As explained in detail elsewhere herein, this is very general and wide provision and if proper rules of interpretation were applied, the most obvious and logical interpretation would be that it applied to the actual defrauder rather than innocent buyer.

    I. Dr. Joseph Ng’ok v. Justice Moijo Ole Keiwua, J.L. Ole Kipury, J.B. Muturi, Commissioner of Lands and Madison Insurance Co. Kenya Ltd, Court of Appeal, Civil Appeal 60 of 1997 (27/97 Nrb) Despite past irregularity, it was held "Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property. The title of such owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya will be placed in jeopardy". 

    II. Njilux Motors Ltd v KP&L and Nairobi City Commission, Court of Appeal  Civil Suit No: 206 of 1998: This case was also based on past irregularity as two allotments of lease – Second registered but not the first.  It was held that since the lease based on first allotment to the Njilux was not registered and to KP&L was registered, KP&L had achieved indefeasible title by virtue of s.23(1) of RTA despite. This also confirms that title becomes absolute upon registration.

    III. Wreck Motors Enterprises Ltd  -v-  C of L, Salpal Singh, Bhatti, NCC & Chemo Enterprises  C.A.     Civil Appeal  No: 71 Despite past irregularity, the property was awarded to the second respondent under s.23(1) which gives absolute title upon registration if there was no fraud. It was stated at pge 7  " …the second respondent is a bona fide buyer for value without notice. His title takes precedence and is supreme over all other alleged equitable rights of title. The Act is very specific on this protection and sanctifies title.

    IV. Edwin Wambaa Regeru & Other v. Joseph Kariuiki  Kibaara & 6 Others HCCC 274 of 2009 at Mombasa:Despite court restraining order not to subdivide or sell, Vendors (Plaintiffs) subdivided and sold and Buyers (Defendants) who were bona fide buyer without notice of restraining order or irregularity in the title were registered and certificate of title issued. It was held that since Buyers were bona fide for value and had no notice of irregularity, under s.23 of RTA they had indefeasible title that could not be disturbed. 

    V. Hannah Wangui Ithebu & Other v Joel Nguigi Magu, The Land Registrar Muran’a & Other Civil Appeal No. 86 of 1999 – [2005] eKLR High Court at Nairobi:  This case follows the decision of Court of appeal in Nairobi Permanent Markets Society & other eleven – v – Salima Enterprises and NCC Appeal No. 185 of 199. It despite past illegality, it affirmed title of bona fide buyer  indefeasible under s.23(1) of RTA.  Although it is a decision of Court of Appeal which is superior court, the High Court has been holding in similar cases, bona fide buyer’s title nullity ab initio based on common law doctrine that seller cannot give better title than he has, not being aware that unlike RLA, the common law and equity did not apply to RTA. In this Hannah’s case, Justice Visram emphatically stated "…such registration could not be defeated even by proof of fraud….Unfortunately, that is the law, and much though I might dislike or disapprove of it (and I must say that I indeed I disapprove of it) I am bound by it. In its wisdom, the Parliament made that law, and I am duty bound to apply it". In Hanna’s case it was alleged that Appellant with collusion of Land Registrar had been registered as the first owner of the land. It was held at page 2 and 3 by Justice Visram: "Essentially, "the issue before this Court turns on a legal point: whether the title deed issued to the Appellants in respect of the suit land conferred upon the Appellants an indefeasible and unpeachable title, which could not be challenged on any ground including fraud". This case was based on RLA and title was indefeasible despite fraud because it was the first registration. Section 163 of RLA expressly provides that it is subject to common law and equity and except for the first registration, subsequent registrations at time could be defeasible and not indefeasible. This is because, those equitable interest and rights that are not registered are also recognized. On the other hand, since RTA does not have provision such as s. 163 of RLA, it overrides common law and equity and therefore, unlike RLA, not only first registration, but all subsequent ones are also indefeasible. In this suit Justice Visram continued, "…Section 27 of the aforesaid Act (meant RLA) creates in  favor of the proprietor of the land absolute and indefeasible ownership of the leasehold interest in the land. Section 28 of the Act grants to such proprietor indefeasible rights subject only to overriding interests referred to Section 30 of the Act (See Livingstone Nkurruna v Patrick Seki (Nairobi Civil Appeal No. 31 of 1996). In the case of  Nairobi Permanent Markets Society & Others v Salima Enterprises & Others – (Nairobi Civil Appeal No. 185 of 1997) the Court of Appeal held that under Section 23 of the Registration of Titles Act (which is in parimateria to the Registered Land Act) a Certificate of Title issued by the Registrar to any purchaser of land is to be taken by all courts as conclusive evidence that the person named therein as proprietor of land is the absolute and indefeasible owner thereof and his title is not subject to challenge except on the ground of fraud or misrepresentation to which he is proved to be party". … "However, the Appellant’s registration as owners of the suit land was a first registration and under Section 143(1) of Registration of Land Act, Cap 300 Laws of Kenya,such registration could not be defeated even by proof of fraud. So even if the lower court was correct in finding that the defendants ‘conspired to fraudulently deprive the plaintiff (of suit land), as it did, this could not defeat the registration of Appellants, as the first registered owners of suit land….Unfortunately, that is the law, and much though I might dislike or disapprove of it (and I must say that I indeed I disapprove of it) I am bound by it. In its wisdom, the Parliament made that law, and I am duty bound to apply it".
     
  5. Conclusion:
  6. FOR EASY REFERENCE: RTA PROVISIONS INCORPORATING ALL THE CARDINAL PRINCIPLES AND DOCTRINES OF TORRENS SYSTEM OF TITLES: 

    a. Section 19(3) GPA (Cap 40). No notice requisite:     Exempts RTA from Govt Proceedings Act (Cap 40).  Hence no notice under s.13A of GPA  is required.  Under Section 24((i) RTA – Action to be against the registrar as nominal defendant and no notice of suing govt stipulated.

    b. Section 23(1) A buyer assured indefeasibility and sanctity of title: A person who is registered as a proprietor and is issued a certificate of title is deemed to have absolute and indefeasible title in rem including against the original owner except where he has colluded in fraud. 

    c. Section 22(3) Last buyer’s title deemed fresh or new grant: It states that title of a proprietor under each fresh certificate of title shall be as valid and effectual in every respect as if he had been the original grantee in the grant. By last title being a fresh or new GRANT, all previous titles and interest are deemed extinguished..As buyer not concerned about past, the title can never be nullity ab initio. 

    d. Section 32 Title by registration: –  Register constitutes title and not certificate:  The interest in an instrument  passes only upon registration. Under GLA interest passes upon execution.  Hence register constitutes title and not certificate. Certificate is merely a piece of paper for evidence only. 

    e. Section 71 Provisional Certificate:  It categorically states, " .. the provisional certificate shall be available for all purposes and uses for which the grant or certificate of title so lost or destroyed would have been available and as valid to all intent as the lost or destroyed certificate". It is like, if a lost passport is replaced with a new one, the old one  becomes a junk.

    f. Section 27: Manner of registration - every grant deemed registered as soon as registrar marks folio and volume. In view of this title comes into effect by the act of registrar and therefore, it is registrar’s duty to scrutinize each instrument before registering it. The procedure for registration in the Act is internal matter for the department.

    g. Section 24 Compensation:  As responsibility to scrutinize each instrument before registering is on the registrar, if any party suffers loss because of being deprived of property or otherwise is compensated by Government.

    h. Section 1(2):  It overrides inconsistent provisions of other Acts: s 1(2) - This is because, if title was subject to other laws, it would defeat the cardinal principle of ‘sanctity of title’ or ‘conclusiveness of title’. However subsequent Act may override RTA provided it specifically mentions so.
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