DEDE KOSEY YOHUNU & ANOTHER v. ANNIE KUMAH AGBETI & OTHERS

MARIAMA OWUSU, J.A:

On 25-7-2007, the High Court, Accra, dismissed the defendant’s counterclaim for specific performance of the contract entered into by the parties as having been frustrated. Judgment was entered in favour of the plaintiff for a declaration that the lease agreement between the parties in 1996 has been frustrated.

Dissatisfied with the decision of the trial court, the defendant appealed to the Court of Appeal on the following grounds:

[i] The learned trial judge’s holding that the contract between the Plaintiff and Defendant was frustrated by re-entry of the Lands Commission onto the disputed land was wrongful and not supportable in law. In resolving this issue in favour of the Plaintiff the court occasioned a miscarriage of justice to the Defendant’s case.

[ii] The learned trial judge erred in dismissing the Defendant’s counterclaim and upholding the Plaintiff’s alternative relief [b] claim particularly when the Plaintiff had by his own pleadings, evidence and address made it abundantly clear to the court that it had effectively abandoned and was no longer interested in the disputed land but was claiming adequate compensation for the legal battle it had fought on behalf of the Defendant.

[iii] The judgment is against the weight of evidence on record.

[iv] Further grounds to be filed upon receipt of copies of the judgment and the record of proceedings.

The relief sought from the Court of Appeal;

That the portions of the judgment of the trial court which dismissed the Defendant’s Counterclaim, upheld the Plaintiff’s alternative relief [b] claim and awarded cost against the Defendant be set aside and further orders made entering judgment in favour of the Defendant for its counterclaim plus costs.

Before dealing with the arguments advance in support of this appeal, I will give a brief background of this case.

The plaintiff by its amended writ of summons claims against the defendant the following reliefs;

[a] Payment of ¢500, 000,000.00 being adequate compensation for time, money and effort used in fighting Defendant’s legal battle.

OR ALTENATIVELY;

[b] A declaration that the lease agreement between the parties in 1996 has been frustrated.

[c] Any further orders.

[d] Interest on the amount claimed in relief [a] from 19-4 2002 till the date of judgment.

In the 17 paragraph statement of claim which accompanied the writ of summons, the plaintiff averred among other things that, sometime in 1996, it granted a s