“The enacting clause provides that the conveyance- “Shall on the expiration of two months from the date thereof or of any authorised extension of that period, become void… unless the grantee… has in the meantime applied… to be registered…” Those words, “in the meantime”, signify before the expiration “of two months from the date thereof or of any authorised extension of that period”. It is noteworthy that the proviso speaks of “the said period”, meaning the period of those two months. If it had been intended to make the conveyance automatically void when the two months were up, then, instead of the words “in the meantime”, we would have had the words “within that period”, or “within the said period”. The words “in the meantime” should therefore be understood as meaning either the period of two months or the authorised extended period, as the case may be. Where the period is extended, it is only after the extended period runs out, without an application to be registered having been made, that the mortgage becomes void as regards the conveyance of the legal estate. An example will be useful. (For convenience, the second proviso to Section 5 (1), which confers a restricted power of extension on the Registrar of Titles, is ignored.) Suppose a legal mortgage dated the 1st October, 1963; the mortgagee’s application to be registered will normally be received by the Registrar if delivered not later than the 1st December. For delivery after that date a Court order of extension will be needed. If the Court refuses to grant such an order, the mortgage becomes void to the extent aforesaid; if extension is ordered-say to the 1st March, 1964, the mortgage does not become void until the 1st March arrives without an application to be registered having been made. An application for extension of time may be made to the Court at any time; and it is possible to have an order:- (a) Before the two months are up; in the above example, say on the 15th November; or (b) After the two months are up; in the above example, say on the 15th February. In case (a) the period of two months is extended before it runs out; the time within which the application to be registered can be made flows on, without any break or halting on the 1st December, down to the 1st March, 1964, and is a continuous period beginning with the 1st October, 1963 and ending with the 1st March, 1964. The argument for the Bank, that the mortgage becomes void as a conveyance of the legal estate at the end of the two months assumes that the time within which a grantee may apply to be registered terminates at the end of the period of two months: it does not if the period is extended. Section 5 (1) and the proviso to it do not differentiate between case (a) and case (b). If an extension is ordered after the two months are up, again it is an extension of the period of two months; again the time within which application may be made to the Registrar of Titles is extended and flows on as a continuous period. That is the force of “an order extending the said period”. In the example given, the period within which application to be registered can be made is again from the 1st October, 1963 to the 1st March, 1964. The argument for the Bank overlooks the force of the word “extension”. If an elastic piece of rubber two inches long is stretched to five inches, it is still one piece: it is not one piece of two inches plus another piece of three. That argument means that after a mortgage has become void, it is revived by a Court order of extension of time and given fresh validity. The language used by the legislature does not compel or lead us to take that view. It was doubtless in mind that good cases of delay might well arise; to create a position in which the mortgagee or his successor in interest, although not to blame for not applying within the two months, finds that his mortgage had become void when the two months were up, might have unfair consequences; our interpretation yields a fair position, and we believe that it is right. If the mortgagor sues, claiming, as Mr Onashile did, that the mortgage had become void, to the extent laid down, at the end of the two months, he would have to serve his writ of summons on the mortgagee, who could plead that there was sufficient cause for not applying to be registered within the two months, and could also apply to the Court for extension of time; whereupon the suit and the application would be consolidated, and the Court would decide whether to grant the claim in the suit or to make an order of extension of time. If the Court decides that the mortgage became void as a conveyance of the legal estate, there is no longer a conveyance of a legal estate which the mortgagee can apply to have registered, and an order for extension of the time within which to apply can serve no useful purpose. That is the position here. It would be idle to speculate now on what the Federal Supreme Court might have done if there had been, as part of the case on appeal before it, an application by the Bank for extension of time on the ground of the mistaken view held by the Registrar-a view which could have been canvassed and decided by the Courts by appropriate proceedings: there was no such application before that Court, and, in view of that Court’s decision, no such application could thereafter be entertained.”
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