LEO LAWOE AMEGASHI II v. FRANCIS AMIHERE & ANOTHER
2012
COURT OF APPEAL
GHANA
CORAM
- S.K.MARFUL-SAU, J.A (PRESIDING)
- C.J.HONYENUGA, J.A
- DENNIS ADJEI, J.A
Areas of Law
- Property and Real Estate Law
2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The plaintiff acquired a plot without a re-entry clause in the lease. The Lands Commission introduced a re-entry clause, leading to a dispute when the co-defendant re-entered and sold the plot to the defendant. The Circuit Court ruled in favor of the plaintiff and awarded damages. On appeal, the court found that the re-entry clause was unenforceable and that proper legal procedures for re-entry were not followed. The defendant was not considered a bona fide purchaser without notice, and the damages awarded were upheld. The appeal was dismissed, affirming the lower court's decision.
J U D G M E N T
DENNIS ADJEI, J.A.:
This appeal is a simple one as the facts are not contentious. The facts of the appeal are that the plaintiff/respondent who is referred to in this appeal as the plaintiff acquired a building plot from the predecessor of the co-defendant. There was no provision in the lease which would entitle the lessor to exercise the right of re-entry should the plaintiff fail to develop the plot. It is rather the Lands Commission which introduced the issue of re-entry for not developing the plot within two years in the schedule to the lease.
The defendant/appellant and the co-defendant/appellant would be referred to in this appeal as defendant and co-defendant respectively. The plaintiff could not develop the plot and the co-defendant served notice of re-entry on the plaintiff to remedy the breach within three months. Barely after two years, 5 months of the issue of the notice of re-entry, the co-defendant served final notice of re-entry on the plaintiff. The co-defendant sold the plot to the defendant and that compelled the plaintiff to institute the action, the subject matter of this appeal against the defendant and the co-defendant.
On 30th August, 2004, the Circuit Court, Sekondi gave judgment in favour of the plaintiff against the defendant and the co-defendant. The defendant and the co-defendant dissatisfied with the judgment filed a notice of appeal on 31st August, 2004. The appeal has three main grounds of appeal and they are:
a. “The learned trial Judge erred in law by misapplying the provisions of section 29 and 30 of the Conveyancing Decree, 1973, NRCD 175 in the determination of the case.
b. The award of ¢10,000,000.00 damages to the plaintiff was wrongful in law.
c. The finding made by the trial court, to the effect that the defendant/appellant is not a bona fide purchaser for value without notice is not borne out of the evidence on record.”
No additional ground of appeal was filed even though the defendant and the co-defendant indicated their intention to file same on receipt of the record of appeal.
The appellant’s first ground of appeal was that the trial Circuit Court Judge misapplied the provisions of section 29 and 30 of the Conveyancing Act, 1973, NRCD, 175 and if the law is properly applied, the judgment would be set aside.
The trial Circuit Judge examined the lease between Kojokrom Stool and the Plaintiff which did not contain a covenant requiring the plaintiff to build within three years. However, the