GIANT METRO CO. LTD. vs. AMALGAMATED VENTURES & ESTATE LTD. [2014]DLCA4540

Date	2014-05-08
Suit No.	SUIT NO: H1/141/2012
Citation No.	[2014]DLCA4540

MARIAMA OWUSU (PRESIDING)

GYAESAYOR J.A.

DORDZIE J.A.

PETER ZWENES FOR DEFENDANT/APPELLANT

MR. KUDJORDZIE FOR PLAINTIFF/RESPONDENT

[2014]DLCA4540
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													<main id="main" class="content" style="min-height: 60rem" >GIANT METRO CO. LTD.<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>AMALGAMATED VENTURES
&amp; ESTATE LTD.<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO: H1/141/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: MAY 8, 2014<o:p></o:p>

MR.
KUDJORDZIE FOR PLAINTIFF/RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARIAMA OWUSU, J.A:<o:p></o:p>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.<o:p></o:p>Dissatisfied
with the decision of the trial court, the defendant appealed to the Court of
Appeal on the following grounds:<o:p></o:p>[i]
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 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.<o:p></o:p>[ii]
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 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.<o:p></o:p>[iii]
&nbsp;&nbsp;&nbsp;&nbsp; The judgment is against the weight of
evidence on record.<o:p></o:p>[iv]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Further grounds to be filed upon receipt
of copies of the judgment and the record of proceedings.<o:p></o:p>The
relief sought from the Court of Appeal;<o:p></o:p>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.<o:p></o:p>Before
dealing with the arguments advance in support of this appeal, I will give a
brief background of this case.&nbsp; <o:p></o:p>The
plaintiff by its amended writ of summons claims against the defendant the
following reliefs;<o:p></o:p>[a]
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Payment of ¢500, 000,000.00 being
adequate compensation for time, money and effort used in fighting Defendant’s
legal battle.<o:p></o:p>OR ALTENATIVELY;<o:p></o:p>[b]
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that the lease
agreement between the parties in 1996 has been frustrated.<o:p></o:p>[c]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Any further orders.<o:p></o:p>[d]
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Interest on the amount claimed in
relief [a] from 19-4 2002 till the date of judgment.<o:p></o:p>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
sub-lease of 1.27 acres of land situate at Tema Motorway Industrial Area to the
defendant for a consideration of ¢38,500,000.00 which the latter paid. The plaintiff
averred further that, just as the deal was about to be consummated, the Lands
Commission entered the land granted to the defendant and granted a lease to
another company. The plaintiff continued that, it engaged the Lands Commission
and the alleged lessee in a protracted litigation which is still ongoing. It is
the case of the plaintiff that, it caused its solicitors to write to the
defendant about the events which led to the non-consummation of the deal and
offered to pay back the amount of ¢38,500,000.00 with appropriate interest by a
cheque dated 19-6-01 drawn on Prudential Bank. The defendant rejected the
cheque. The plaintiff averred further that, the defendant was aware of the
litigation over the land which is his but sat down unconcern without lending
any financial support to the plaintiff. The plaintiff concluded that, despite
several requests and demands the plaintiff has refused to </main>