Introduction
Few provisions regarding the law of property in Sierra Leone have produced consequences as severe and as final as section 4 of the Registration of Instruments Act, Cap 256 of the Laws of Sierra Leone 1960, as amended by section 2 of the Registration of Instruments (Amendment) Act 1964. The provision declares that every deed, contract or conveyance executed after 1st June 1964 shall be void, so far as regards any land to be thereby affected, unless it is registered within the period limited for such registration. The word that governs the entire provision, and that has dominated the jurisprudence built upon it, is ‘void’. Not voidable, not unenforceable, but void: a nullity, incapable of conferring rights, and incapable of being saved by the equitable doctrines that elsewhere in the common law world rescue defective land transactions from the rigour of formal requirements.
The authoritative interpretation of this provision was delivered by the Supreme Court of Sierra Leone in Alhaji Abdulai Sesay v Emad Bahsoon, where Semega-Janneh JSC inter alia, held that an unregistered land agreement becomes, upon the expiry of the registration period, not merely unenforceable but ‘dead’ and ‘for all practical purposes, non existent’. That holding, the rule in Sesay v Bahsoon was reaffirmed and applied without qualification by the Supreme Court fifteen years later in Tanios Gebran Chaghoury v Jamal Kamel Wansa, where the Court held that equitable doctrines, including proprietary estoppel and part performance, cannot be deployed to validate a transaction that statute has declared void.
This article proceeds in two movements. The first states and defends the orthodoxy. It examines the rule in Sesay v Bahsoon and its statutory foundation, and tests it against the most celebrated equitable softening of formal land law in the common law tradition: the rule in Walsh v Lonsdale, under which equity treats an agreement for a lease, specifically enforceable, as equivalent to a granted lease. It concludes that for the cases so far decided, the orthodoxy holds: the equitable maxim presupposes a valid and specifically enforceable obligation, and section 4 destroys the very obligation upon which the maxim would have to fasten.
The second movement then presses against the orthodoxy a harder case than either Sesay or Chaghoury was required to decide: the performed lease, and asks, with the aid of Lord Denning’s theory of precedent, whether the decided cases truly govern it. In outline, parts II to VI state the orthodoxy. Part VII sets out the doctrine of precedent as per Lord Denning. Part VIII constructs the Undecided Case. Part IX asks whether the decided cases may be distinguished from it. Part X does not resolve the question but frames it for the reader, and the court that must one day decide it.