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October 31, 1939
WEST AFRICAN COURT OF APPEAL
GHANA
CORAM
The following joint judgment was delivered: -
BUTLER LLOYD, AG. C.J., CAREY AND BROOKE, JJ.
This appeal turns entirely on the meaning to be attached to a restrictive covenant in a lease in the following terms-
"The land to be used for residential purposes only.
In the Statement of Claim the plaintiff alleged that the defendant in breach of this covenant " has been and still is using the land for purpose-- other than residential-to wit as a mosque.".
The defendant while stating in paragraph 4 of his defence that he has always used and is still. using the land for residential purposes, and in paragraph 5 that he has not converted the dwelling house into a mosque, admitted in the latter paragraph that he uses the sitting room "to perform his holy devotions together with members of his family."
At the close of the plaintiff's case defendant's Counsel submitted that no case had been made out for him to answer and the learned trial Judge gave judgment in his favour without calling upon the defence.
The material part of his judgment is as follows: -
"It is quite clear that the premises in question are being used regularly for devout prayers by the defendant and members of his family and that the invitation of the house to other devout persons is not in dispute.
"There is no evidence that anyone other than one invited attends these prayer meetings. The evidence as to the use of the house as a residence is clear enough. It is also clear that the entrance hall is mainly used for these prayer meetings.
"I am unable to hold that for a resident to turn a large room in his house into a place where he can invite his family and his or her friends to worship-whatever the religion may be-constitutes a breach of a clause to use the house for residential purposes only."
The judgment involves three findings of fact namely-
That the premises are being used for residential purposes.
That part of the premises are being used for prayers by a considerable number of people.
That these meetings were only attended by invitees.
And one of law namely that these facts did not constitute a breach of the covenant to use the premises for residential purposes only.
Counsel for appellants now argues-firstly, that, even on his own findings of fact, the learned trial Judge was wrong in holding that there was no breach of the covenant, and, secondly, that in arriving at these
AI Generated Summary
In a joint judgment by Butler Lloyd, Ag. C.J., Carey, and Brooke, JJ., the appellate court considered whether a restrictive covenant in a lease—requiring land to be used for residential purposes only—was breached when the defendant used a dwelling substantially for Muslim prayer. The plaintiff alleged non-residential use as a mosque. The defendant denied conversion of the house, admitting only family devotions in the sitting room. The trial judge, after the plaintiff’s case, entered judgment for the defendant on a “no case to answer” submission, finding the premises clearly residential and attendance limited to invitees. On appeal, evidence from the defendant’s father, neighbors (including Bassey), and the inclusion of a “prayer hall” in the original plans showed substantial prayer use and openness to all. The court rejected the argument that “mosque” requires registration, allowed the appeal, set aside the decision, and remitted the case for the defense to be heard or for rehearing, with costs orders adjusted.