JUDGMENT

Edgar Joseph Jr. FCJ:

The preliminary point of law raised by this appeal resolves itself into the question of the true meaning and ambit of the proviso to s. 322(1) of the National Land Code 1965, ('the Code"), inserted by s. 90 of Act A587/84, which came into force on 25 March 1985, and which says:

Provided that such a caveat shall not be capable of being entered in respect of part of the land.

The main provision - in this case, s. 322(1) of the Code - which the proviso seeks to qualify or modify - says:

322(1) A caveat under this section shall be known as a 'private caveat', and -

(a) may be entered by the Registrar on the register document of title to any land at the instance of any of the persons or bodies specified in s. 323;

(b) shall have the effect specified in sub-section (2) or (3), according as it is expressed to bind the land itself or merely a particular interest therein.

Then, of course follows the proviso reproduced above.

To put the matter in perspective, the other provisions of the Code which it would be convenient to reproduced are ss. 322(2) and (3) and 323(1) and (2). These provisions are as follows:

322(2) The effect of any private caveat expressed to bind the land itself shall, subject to sub-sections (4) and (5), be to prohibit so long as it continues in force the registration, endorsement or entry on the register document of title thereto of -

(a) any instrument of dealing executed by or on behalf of the

proprietor thereof, and any certificate of sale relating thereto;

(b) any claim to the benefit of any tenancy exempt from

registration granted by the said proprietor; and

(c) any lien-holder's caveat in respect thereof.

(3) The effect of any private caveat expressed to bind a particular interest only shall, subject to sub-section (4) and (5), be to prohibit the registration, endorsement or entry on the register document of title of -

(a) any instrument of dealing directly affecting that interest (including any certificate of sale relating thereto); and

(b) where that interest is a lease or sub-lease -

(i) any claim to the benefit of any tenancy exempt from registration granted directly thereout, and

(ii) any lien-holder's caveat in respect thereof.

323(1) The persons or bodies at whose instance a private caveat may be entered are -

(a) any person or body claiming title to, or any registrable interest in, any alienated land or any right to such title or interest;

(b) any person or body claiming to be beneficially entitled under any trust affecting any such land or interest; and

(c) the guardian or next friend of any minor claiming to be entitled as mentioned in paragraph (b).

(2) Any such person or body wishing to apply for the entry of such a caveat shall do so in Form 19B and such application shall be attested in accordance with the provision of s. 211 and shall state therein the nature of the claim on which his application is based, and whether the caveat is to be expressed to bind the land itself or a particular interest only.

Now, the task of construing provisos is not always free from difficulty. (See Gelberg v. Milier [1961] 1 WLR 153, 159). A true proviso is something which qualifies or modifies the section to which it is a proviso. It must, therefore, be read having regard to the section itself. Generally speaking, the effect of a proviso is to take out of the section something that would otherwise fall within its ambit. This principle has been aptly put by Lush J. (as he was then) in Mullins v. Treasurer of Surrey [1880] 5 QBD 170, 173, as follows:

When one finds a proviso to the section, the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso.

However, commenting on this dictum, in his book on Statutory

Interpretation, 2nd Edition, p. 494, Mr. Francis Bennion says this:

... whilst the substance of this dictum is undoubtly correct, the treatment of the proviso as qualitatively