VICTORIA ANNANG vs. EMOHO TRADING GHANA LTD. & 4 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2017
VICTORIA ANNANG - (Plaintiff/Respondent)
EMOHO TRADING GHANA LTD. & 4 OTHERS - (Defendants/Appellants)

DATE:  1ST JUNE, 2017
CIVIL APPEAL NO:  H1/65/2017
JUDGES:  KUSI-APPIAH J.A.-(PRESIDING), DZAMEFE J.A., ACKAH-YENSU (MS.) J.A
LAWYERS:  MR. ERIC NARH FOR THE DEFENDANTS/APPELLANTS
MR. FOSU-GYEABOUR FOR THE PLAINTIFF/RESPONDENT
JUDGMENT

KUSI-APPIAH, J.A.:

This is an appeal against the judgment of the High Court (Land Division) Accra, dated 1st November, 2013 in favour of the plaintiff/respondent (hereinafter referred to as Plaintiff) against the defendants/appellants (hereinafter referred to as the Defendants).

 

By her amended writ of summons, the plaintiff claimed against the defendants for:

“(a) Declaration that registered lease no. 350/1970 between Shahin and Anim-Addo was made in breach of clause 2(d) of the lease dated 20th February, 1968 between the late E. O. Annang and the late Shahin and is therefore null and void.

(b) An order cancelling registered lease number 939/1968 and 419/1970 for breach of covenant therein.

(c) An order cancelling registered lease no. 350/1970 as having been obtained in breach of covenant in registered lease no. 939/1968 and on ground of fraud.

(d) Recovery of possession.

(e) Damages for trespass.”

 

The facts giving rise to this action are very simple. In her statement of claim, the plaintiff averred that she is the sole surviving executrix of the late Ebenezer Quarshie Annang (her father) and tendered a probate dated 31st May, 2006 as Exhibit A in respect of the Will of her late father. It is the case of the plaintiff that in the year 1939 her late father acquired the land on which the house in dispute is situate from the Osu stool and registered same as no. 1937/1960 and tendered as Exhibit “B” to establish same.

 

That in the year 1968, the late Annang leased the land to one Shahin Elias Shahin now deceased for a period of 50 years and registered same as no. 939/1968. The lease agreement is tendered as Exhibit “C”. According to the plaintiff, sometime in January 1970 the lease of 1968 between the late Annang and Shahin was varied to include a renewal clause of 25 years which was also registered as no. 419/1970.

 

The plaintiff contended that in the 1968 lease, the late Annang covenanted with the late Shahin not to assign, underlet or part with possession of the demise premises of any part thereof without informing the lessor in writing of such assignment sublease or other transactions. But contrary to the said covenant, the late Shahin after erecting a building on the said land, assigned all his interest in the said demised premises to Joseph Anim-Addo on 1st February 1970 without informing the late Annang. The Deed of Assignment from Shahin to Anim-Addo also registered as no. 350/1970 was tendered Exhibit “D”.

 

The plaintiff testified that the assignment to Anim-Addo without the written consent of the late

Annang was fraudulent. She gave the particulars of fraud as follows:

 

Assigning the demise property by Shahin to Anim-Addo without the consent of the late Annang”.

 

The plaintiff alleged that when her late father realized that the property had been assigned to the late Anim-Addo by the late Shahin, the late Annang filed an action against both Shahin and Anim-Addo at the court. However, all the parties to the suit died before the suit could be concluded. The plaintiff further contended that despite the death of Shahin and Anim-Addo she found some people staying in the premises in the year 2006 without her knowledge or consent. She therefore instituted the action for the reliefs endorsed on her writ of summons.

 

For their part, the defendants denied the plaintiff’s claim by their statement of defence field on 6th July, 2007 and stated that the plaintiff is not entitled to any of the reliefs claimed at all. The 5th defendant, Frederick Anim-Addo who testified as Executor of the Will of his brother the late Joseph Anim-Addo stated that his late brother died possessed of the property in dispute which he acquired by Deed of Assignment from the late Shahin. He tendered the Will as Exhibit “1”.

 

The 5th defendant who testified for himself and on behalf of the other defendants stated that as an

Executor, he let the property in dispute to the 1st to 4th defendants. That when the 1st to 4th defendants were sued he took up himself to defend the action and therefore joined the action as the 5th defendant. He contended that the late Shahin gave notice to the late E.Q. Annang for a variation of the lease to include a renewal clause of 25 years which the lessor agreed as contained in a lease dated 28th January, 1970, registered as no. 419/1970.

 

According to the 5th defendant, upon the grant of the lease no. 419/1970, Shahin Elias Shahin introduced Joseph Kojo Anim-Addo to the late Annang as the lessee he was assigning his interest in the leasehold to and with effect from 1st February 1970, Anim-Addo would be the assignee of his interest in the leasehold agreement. And pursuant to the said assignment and the introduction of Joseph Anim-Addo to E.Q. Annang, Anim Addo did pay rent to E.Q. Annang who in turn issued receipt for monies paid therein to Anim-Addo. The 5th defendant therefore denied plaintiff’s assertion that Shahin did not obtain the consent of E.Q. Annang before the said assignment to Anim-Addo.

 

In her judgment, the learned trial judge after reviewing the relevant authorities, came to the conclusion that the assignment of the premises by the lessor Shahin to Anim-Addo was in breach of clause 2(d) of the lease agreement as the assignment was done without prior notice to the lessor E.Q. Annang and thus incompatible with the agreed requirement of clause 2(d) of Exhibit “C”. She therefore gave judgment for the plaintiff and granted all the reliefs endorsed on the writ of summons.

 

It is this judgment that the defendants’ disputes in this appeal on the following original and additional grounds:

 

“1. The judgment is against the weight of evidence;

(a) The learned trial judgment (sic) erred in declaring the following Lease Agreements null and void on the ground of breach of clause 2(d) of the original agreement between E. Annang and Shahin (Exh. “C”) without first ensuring that the notice required under the said original agreement in clause 4(a) to remedy the breach was served on the Lessee i.e. Mr. Shahin and

2. Lease agreement between Shahin and Joseph Anim-Addo;

(b) The learned trial judge misdirected herself in holding that the late Annang regarded the late Joseph Anim-Addo as an agent of Shahin notwithstanding the fact that the late Annang accepted rent from Anim-Addo and regarded him as Shahin’s assignee.

(c) That the learned trial judge failed to evaluate Exh. “4” judiciously in that having found as a fact that Exh. “4” was not forged as alleged by the plaintiff respondent ought to have proceeded to consider same as a valid transaction between E. O. Annang and Joseph Anim Addo.

(d) That the learned trial judge erred in reviewing her judgment when issues raised therein were not pleaded or claimed”.

 

In this appeal, one original and four additional grounds of appeal were filed by defendants, but to me the issue in this appeal is a narrow one of: whether the assignment between the late Shahin and the late Joseph Anim-Addo was made in breach of clauses 2(d) and 5(d) of Exhibit “C”, that is without the prior written consent of the late Ebenezer Quarshie Annang. If so, whether the trial High Court was right in entering judgment for the plaintiff on all the reliefs endorsed on her writ of summons.

 

I propose to take original ground 1 and additional grounds (a), (b) and (c) together as they deal in the main, with the issues essentially as one. In my view, ground (a) of the additional ground of appeal provides the kernel of this appeal because a resolution of that ground can effectively dispose of this appeal one way or the other. Grounds (b), (c) and (d) of the additional grounds are merely supplementary.

 

The central issue in this appeal as reiterated above is whether or not the lessee Shahin complied with the terms of clauses 2(d) and 5(d) of the Lease Agreement Exhibit “C”, between him and the lessor E.Q. Annang, when he assigned the demised premises to Joseph Anim-Addo? Put differently, did the assignment dated 1st February, 1970 between the late Shahin Elias Shahin and the late Joseph Anim-Addo made with the prior written consent of the late Ebenezer Quarshie Annang? The two clauses 2(d) and 5(d) were cast in the following words:

 

“2. THE Lessee hereby covenants with the Lessor as follows:

(a) Not to assign underlet or part with the possession of the demised premises or any part thereof without informing the Lessor in writing of such assignment sub-lease or other transaction.

5(d) Any notice requiring to be served hereunder shall be sufficiently served on the Lessee if sent by registered post to his office in Accra and on the Lessor if delivered personally or sent by registered post to him at his usual or last place of abode.”

 

Indeed, clauses 2(d) and 5(d) of the Lease Agreement, Exhibit C, expressly provide that the lessee has an option to assign or sub-let the demised premises subject to the following prerequisites that the notice must:

 

“(a) be in writing

(b) be served on the landlord/lessor

(c) delivered personally to him at his place of abode or

(d) by registered post.”

 

The evidence surely points to the fact that the lessee, the late Shahin breached his obligation under clauses 2(d) and 5(d) aforementioned to the extent that he did not serve the written notice to assign the demise premises on the landlord/lessor, that is plaintiff’s late father herein (E.Q. Annang) by registered post or delivered personally to him at his place of abode as envisaged in clause 5(d) of Exhibit “C” (the Lease Agreement).

 

The contention of the 5th defendant that E.Q. Annang’s acceptance of rent paid by Anim-Addo amounts to a waiver both to serve written notice to him and forfeiture under the lease is untenable and contrary to the contractual intentions between Annang and Shahin in Exhibit C. I must add that the said waiver of written consent or due notification of assigning or sub-letting the premises by Shahin to Anim-Addo did not comply with the clear and unambiguous provisions in clauses 2(d) and 5(d) of the Lease Agreement. Consequently, it renders the purported waiver of notice ineffective and void.

 

Turning to the issue of the alleged waiver of re-entry or forfeiture under the lease by the late Annang, the plaintiff controverted same in both her pleadings and evidence. Besides, the plaintiff’s late father’s action against Shahin and Anim-Addo in court of law, neutralizes any assertion that the plaintiff’s late father had waived his right of re-entry or forfeiture. Worse still, section 23(1) of the Conveyancing Act, supra, specifically states that the consent of the landlord must be in writing.

 

The doctrine of sanctity of contract directs that a court cannot intervene and substitute any other interpretation of the contractual intentions of the parties, but must clinically give effect to only what the parties have themselves contracted to do. See P.Y. Atta & Sons Ltd. vrs. Kingsmen Enterprise Ltd. (2007-2008) S.C.G.L.R. 946.

 

From the foregoing, I find that the learned trial judge was right when she held that the late Shahin was in breach of clause 2(d) of the Lease Agreement dated 20th February, 1968 when he absolutely assigned all his interest in the demised premises to the late Anim-Addo without the prior written consent of the lessor, the late Annang.

 

Now back to ground (a) of the additional ground of appeal which appears to be the main ground for the appeal herein. Addressing this ground of appeal, the defendant invites us to invalidate the decision of the trial (High) Court on the ground of non-compliance with the requirements of section 29 of the Conveyancing Act, N.R.C.D. 175 of 1973 (hereinafter conveniently referred to as “the Act”) which deals with restriction on re-entry and forfeiture. The defendants have argued strenuously that the plaintiff not having complied with the requirements of section 29(1) of the Act, the order of forfeiture is wrong and must be set aside. The complaint relating to the order of forfeiture was contained in additional ground (a) of the notice of appeal that reads as follows:

  

a. “The learned trial judgment (sic) erred in declaring the following Lease Agreements null and void on the ground of breach of clause 2(d) of the original agreement between E. Annang and Shahin (Exh. “C”) without first ensuring that the notice required under the said original agreement in clause 4(a) to remedy the breach was served on the Lessee i.e. Mr. Shahin and

(ii) Lease Agreement between Shahin and Joseph Anim Addo.”

 

Section 29 of the Act provides:

“(1) A right of re-entry or forfeiture under a provision in a lease for breach of covenant, condition or an agreement in the lease is not enforceable, by action or otherwise, until

(b) the lessor serves on the lessee a notice,

i. Specifying the particular breach complained of,

ii. Requiring the lessee to remedy the breach, if the breach is capable of remedy,

iii. Requiring the lessee to make reasonable compensation in money for the breach, except where the breach consists of a non-payment of rent,

(c) the lessee has knowledge of the fact that the notice has been served, and

(d) the lessee fails, within a reasonable time after the service of the notice under paragraph (a), to remedy the breach, if it is capable of remedy, and except where the breach consists of a non-payment of rent, to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.”

 

NON-COMPLIANCE WITH SECTION 29(1) OF N.R.C.D. 175

In their submission to the court, the defendants contend that since the plaintiff did not specifically serve a notice in compliance with section 29(1) of the Act, the order of forfeiture is wrong. Learned counsel for the defendants submitted that the non-compliance is a matter of law which the trial court suo motu was bound to address even though it was not specifically pleaded. That compliance with section 29(1) of the Act (N.R.C.D. 175) is a condition precedent to any action for recovery of possession. For these reasons, the defendants invited us to invalidate the orders of forfeiture by the trial court.

 

By way of reply, the plaintiff contended otherwise. Counsel for the plaintiff submitted that the issue whether or not notice was served on Shahin to remedy the breaches in accordance with clause 2(d) of Exhibit “C” had never been part of defendants’ case. He argued that the defendants never pleaded any lack of notice or gave evidence to that effect. Neither did they (defendants) raise any legal objection to the plaintiff’s claim before or during the trial, in their pleadings or in their evidence. Counsel strongly contended that the defendants cannot seek refuge under section 29 of the Act for the first time in this appeal. He supported his stand with the case of Dahabieh vrs. S.A. Turqui & Brothers (2001-2002) S.C.G.L.R. at 511.

 

On the issue of non-compliance with section 29 of N.R.C.D. 175 which was raised under additional ground (a), the defendants’ states that the plaintiff not having complied with the requirements of section 29(1) of the Act, the order of forfeiture is wrong and must be set aside. My simple answer is that nowhere in the defendants’ statement of defence did they make an issue of the matter contained in the said ground of appeal. Secondly, there is nowhere from the commencement of the evidence to its conclusion at the trial court did the defendants raise any issue with the said additional ground (a), neither did the additional ground (a) of the appeal come up for determination and for which the trial court erred by failing to dismiss the plaintiff’s case based on that issue. I must say that additional ground (a) of the appeal not having been set out in the pleadings, nor in the evidence throughout the trial, the trial judge cannot be faulted on that issue.

 

I am fortified by order 11 rules 8(1) and (2) of the High Court (Civil Procedure) Rules, 2004 which states:

“8(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality

(a) which the party alleges makes any claim or defence of the opposite party not maintainable, or

(b) which if not specifically pleaded, might take the opposite party by surprise, or

(c) which raises issues of fact not arising out of the preceding pleading.

(2) Without prejudice to sub-rule (1), ‘a defendant to an action for possession of immovable property shall plead specifically every ground of defence on which the defendant relies…’(Emphasis mine).

 

My understanding of these rules in relation to the instant case is that non-compliance with the requirement of a notice by the Conveyancing Act, 1973 (N.R.C.D. 175), ought to have been specifically pleaded by the defendants if they had intended to rely on it, or at least they ought to have pleaded such facts as would indicate an intention to rely on it. In any case, the issue whether section 29 of the Conveyancing Act supra is a question of fact or law is put to rest by the Supreme Court case of Dahabieh vrs. S.A. Turqui & Brothers supra. In that case, the Supreme Court held inter alia at page 511 of the report that:

 

“Section 29 of N.R.C.D. 175 only sets out the process by which the right of re-entry or forfeiture shall become enforceable. The lessee must be given adequate notice and time to remedy the breach or make reasonable compensation or both. In our opinion, those provisions are only procedural, and whether or not they have been complied with in any given case is a question of fact rather than law to be determined on the evidence. The point must be raised at the earliest opportunity.”

 

At page 513 of Dahabieh case supra, the Supreme Court noted two exceptions in respect of the application of rules 15 and 16 of order 19 of L.N. 140A, now order 11 rule 8(1) and (2) of C.I.47 2004, namely:

 

“(a) where the matter complained of amounts to illegality per se and,

(b) where there is no element of surprise.”

 

The court opinioned that where the issue raised amounts to an illegality per se, none of the parties can invoke the aid of the court, and the court itself must take cognizance of the illegality. But if the default does not create an illegality and may only render the process unenforceable in law, a party adversely affected by it may elect to waive it.

 

Guided by the above principle of law in Dahabieh case supra, I hold that the non-compliance with N.R.C.D. 175 complained of in the instant appeal does not belong to the category of cases creating an illegality and the defendants, not having raised any objection to the plaintiff’s claim for recovery of possession at the trial, must be deemed to have consciously waived their rights to object.

 

EFFECT OF BREACH OF CONSENT

Having found that the late Shahin breached the covenant in the Lease Agreement between him and the late E.Q. Annang, Exhibit “C”, prohibiting him not to assign, sub-let or part with possession without the prior written consent of the landlord, the next issue to consider is the effect of breach of consent by a tenant/lessor in this appeal. It is trite learning that where a tenant fails to apply for consent he is liable in any event for damages. It is essential that the consent of the landlord is sought, however unreasonable a refusal would be. The tenant may be liable to forfeiture if a covenant supported by a proviso for re-entry is broken. It is important to note that the implied covenant in the Conveyancing Act does not contain a proviso for re-entry. Breach of the implied statutory obligation will not therefore entitle the landlord to re-enter unless the implied covenant is extended to give a right of re-entry. Even where the covenant is fortified by a right of re-entry consequent upon its breach and there is a breach of the covenant, this does not imply that the assignment or sub-lease is void ab initio. In Bassil vrs. Said Raad (1957) 3 W.A.L.R. 231, it was held that breach of the express covenant not to assign, sub-let or part with possession does not empower the landlord to re-enter on its breach if it is not supported by a forfeiture clause. In situation where there has been such a breach, the landlord may bring an action for ejectment against the assignee or sub-tenant, but the courts have the right to grant relief from such forfeiture having regard to the circumstances of each particular case. In Schandorf vrs. Zeini (1976) 2 G.L.R. 418, Amissah J.A. at page 437 relied on English cases and section 146(2) of the Law of Property Act, 1925 as giving the Ghanaian courts the power to grant relief in the appropriate circumstances. This power is now statutorily conferred by section 30(2) of the Conveyancing Act as relief against re-entry and forfeiture.

 

It is obvious from the foregoing that the late Shahin committed a breach of the covenant when he assigned all his interest in the Lease, Exhibit C without the prior written consent of the lessor, the plaintiff’s father. However, this breach does not imply that the assignment is void ab initio but rather voidable.

 

Reading through the record, one striking feature of the plaintiff’s case is her reliance on the breach of express covenant not to assign, sub-let or part with possession of the demise premises by Shahin as fraudulent. Her particulars of fraud states:

“Assigning the demise property by shahin to Anim-Addo without the consent of the late Annang”

 

With all due difference, this statement cannot be true. This is because the mere assignment of the demise property by Shahin to Anim-Addo without the consent of the late Annang per se, does not amount to fraud. Assuming without admitting, can it be said that because the assignment to the late Anim-Addo was in breach of the express covenant not to assign, the said assignment was forged or procured by fraud. I do not think so?

 

To constitute fraud, it is trite law that the party alleging it must establish that the means to the alleged fraud can be characterized objectively as dishonest. Fraud is a conduct which vitiates every transaction known to the law. It even vitiates a judgment of the court. It is an insidious disease, and if clearly proved, spreads to and infects the whole transaction. See Jonesco Vrs. Beard [1930] A. C. 298 at 301, 302.

 

In law, fraud is proved when it is shown that a false representation has been made (1) knowingly or without belief in its truth, or (3) recklessly, careless whether it be true or false. Derry Vrs. Peek (1889) 14 App Case 337 at 374. However, mere negligent misrepresentation would not amount to fraudulent act. A broader definition of fraud was given in Scott Vrs. Metropolitan Police Commissioner [1975] A. C. 819, H. L; where it was held that the two elements of fraud are dishonesty and deprivation. In Barclays Bank Ltd. Vrs. Cole (1966) 3 ALL E. R. 948 C. A. Lord Denning MR said inter alia that to amount to fraud the conduct must be deliberately dishonest.

 

Applying the above authorities as my guide, I find that the plaintiff who bears the evidential burden of proof, came to repeat her pleadings on oath without more. She did not lead any credible and cogent evidence to show that the conduct of the late Shahin in assigning the demise property to Anim-Addo without the consent of her late father (Annang) was deliberately dishonest. Neither was the plaintiff able to establish that the late Shahin’s non-disclosure of the lessor’s (Annang’s) written consent before the assignment to Anim-Addo constituted fraud.

 

I would not describe the bare assertion of the plaintiff that the assignment of the subject property to Anim-Addo without the written consent of the late Annang per se or without more was fraudulent.

 

Turning to Exhibit ‘4’, it is not in dispute that this exhibit was tendered in evidence by the 5th defendant. Exhibit ‘4’ is a receipt purportedly issued to the late Anim-Addo by plaintiff’s late father to cover payment of rent in respect of the said lease. I must say that Exhibit ‘4’ was admitted subject to police forensic analysis because plaintiff denied it was written by her late father. Evidence on record discloses that the 5th defendant tendered Exhibit ‘4’ to support his defence that the late Annang having accepted rent from Anim-Addo as an agent of Shahin or not, and with the full knowledge of the said breach, did waive his right of re-entry and forfeiture. So the essence of Exhibit ‘4’ is that while the 5th defendant claims the receipt is the deed of the late Annang, plaintiff contended otherwise and insisted that the document was forged through fraudulent means.

 

In any case, the question whether or not Exhibit ‘4’ is the deed of the plaintiff’s late father or it is a forged document resolves itself at the bottom to the basic issue of whether or not the lessor’s right of re-entry and forfeiture under the lease can be exercised in the face of some unequivocal act like acceptance of rent from the lessee or sub-lessee with the full knowledge of the said breach. However, Section 29 (3) of the Conveyance Act provides remedy to such situation. Subsection 3 of Section 29 of the Act, provides that the protection granted to lessees under Section 29 (1) of the Act applies notwithstanding anything to the contrary in the lease. This sub-section seeks to avoid situations in which parties may by a stipulation in the lease waive the said provisions.

 

In Larbi Vrs. Kuma & Another [1987-88] 1 GLR P. 414 – 428 C.A. holding 2 (1) it was held inter alia in the headnote as follows:

The Nii Odai Kwao family had no right to forfeit the lease and re-enter the land they had granted the Union because (1) even if the Union had re-assigned without their consent, the family as lessors would have been entitled only to damages and not forfeiture of the lease.”

 

Admittedly, it is not the case of the plaintiff that the conduct of the late Shahin in assigning the demise property to the late Anim-Addo without the written consent of the lessor, plaintiff’s late father, amounts to a denial of title of the landlord and therefore brings the relationship of landlord and tenant to an end. Neither is it the case of the plaintiff that the breach of express consent covenant under the lease was procured by the late Shahin perpetuating fraud by false representation, doctoring or forgering parts of the lease, Exhibit ‘C’.

 

It is pertinent to note that where there has been a denial or repudiation of title of the landlord, there is no need to serve a notice in compliance with Section 29(1) of the Act. This is because that conduct which denies the title of the landlord, bringing the grant to an end with the result that there is no lease or tenancy to which the provisions of Section 29(1) that refer to “A right of re-entry or forfeiture under any provision in a lease…” are applicable.

 

I hasten to add that the denial of title of the landlord by the tenant is a conduct that is incapable of remedy and therefore the right to its enforcement is one that arises by operation of law and not under a stipulation in a lease. In such situation, it is not forfeiture under any provision, or stipulation in a lease. Rather, it is a forfeiture which arises by operation of law.

 

In Halsbury’s Laws of England Volume 27 (4th Edition) paragraph 440 page 344, the learned authors asserted as follows:

The statutory provisions do not apply to forfeiture for non-payment of rent, or probably, to forfeiture by reason of denial by the tenant of the landlord’s title.”

 

In the instant case, the plaintiff who asserted that the assignment of the demise property by Shahin to Anim-Addo without the consent of the late Annang was fraudulent failed to lead any evidence to show how the late Shahin perpetuated fraud by the said assignment.

 

I therefore hold that the allegation of fraud has not been made out or proved against the late Shahin in his assignment of the subject property to the late Anim-Addo.

 

Indeed, Section 29 of the Conveyance Act, 1973 (NRCD 175) provides that before re-entering for breach of any covenant other than the covenant to pay rent, the lessor must serve a notice specifying the breach complained of, requiring the lessee to remedy the breach if it is capable of remedy, and requiring the lessee to make compensation in money for the breach. It follows that by the late Shahin’s breach, the right of the lessor, that is the plaintiff’s late father lies in giving adequate notice and time to the lessee or his sub-lessee to remedy the breach or make reasonable compensation or both and not re-entry or forfeiture as the trial judge ordered.

 

Additional ground (a) of the appeal succeeds in part and fails in part.

 

ADDITIONAL GROUND ‘D’:

The last ground of appeal relates to the review of the judgment by the trial judge. Under this ground of appeal, the defendants are challenging the basis of the trial Judge reviewing her judgment dated 1st November, 2013 when issues raised therein were not pleaded or claimed.

 

Responding to defendants’ submission, counsel for the plaintiff contended that the review application was argued by both parties and the ruling delivered on 30th January, 2014. He submitted that the defendants having failed to appeal against the said review they cannot be allowed to amend their notice of appeal filed on the 28th November, 2013 to attack the ruling on the review application delivered on 30th January, 2014.

 

We do not find any merits in this ground of appeal. The jurisdiction of the Court of Appeal is entirely appellate. Article 137 of the 1992 Constitution has conferred appellate jurisdiction on the Court of Appeal to hear and determine appeals from judgments or orders of the High Court. An appeal is a creation of statute. According to order 8 rules (1) and (2) of the Court of Appeal Rules, 1997 (C.I.19) an appeal is brought when the notice of appeal is filed at the Registry of the court below. It follows that when the defendants/appellants failed to file Notice of Appeal in respect of the Review application, at the court below, they have not invoked the jurisdiction of the Court of Appeal to hear and determine ground D of their appeal.

 

Order 8 rule 7 of C.I.19 provides:

“The appellant shall not, without leave of the court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the court may allow the appellant to amend the grounds of appeal upon such terms as the court may think.”

 

By this rule, the court lacks jurisdiction to determine any issue relating to the review application as no appeal was filed against same. See: Ghana Football Association vrs. Ampaade Lodge Ltd. (2009)

S.C.G.L.R. 100 at pp. 109-110.

 

Additional ground (d) of the appeal also fails.

 

In the result, the appeal succeeds in part and fails in part and we hereby made the following orders:

“1. That the late Shahin breached the covenant when he assigned his interest in the demised premises to the late Anim-Addo without the prior written consent of the lessor, Ebenezer Quarshie Annang, the plaintiff’s later father;

2. That the said breach committed by Shahin makes the lease voidable and not null and void or void “ab initio.”

3. That the plaintiff/lessor or sub-lessor must give the 5th defendant sub-lessee notice to re-negotiate and re-settle for the ground rent to be paid by the said sub-lessee to the plaintiff sub-lessor with effect from 1st January, 2017”

4. We hereby set aside the following orders of the trial court forthwith:

a. A declaration that the Assignment between Shahin and Anim-Addo dated 1/2/1970 is null and void;

b. An order to the Lands Commission to cancel the said assignment dated 1/2/1970.

c. An order to the Lands Commission to cancel the lease 939/1968 dated 20/2/1968 and the Deed of Variation No. 419/1970 dated 28/1/1970 between Annang and Shahin.

d. An order for recovery of possession of the demised premises.”

 

For the avoidance of doubt, we hereby order the restoration of the registered head-lease between the late Annang and the late Shahin as well as the registered Assignment between the late Shahin and the late Anim-Addo aforesaid.

 

Subject to the above variations, the appeal is accordingly dismissed and the judgment of the trial court dated 1st November, 2013 is hereby affirmed.

 

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