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[CROSS APPEALS]
GEORGE BUSBY AND SARAH BUSBY
V.
KOFFI NASSU ACQUAH, ETC.
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
30TH DAY OF JUNE, 1954
2PLR/1954/48 (WACA)
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OTHER CITATION(S)
2PLR/1954/48 (WACA)
(1954) XIV WACA PP. 574-575
LEX (1954) – XIV WACA 574-575
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
CROSS APPEALS
GEORGE BUSBY AND SARAH BUSBY, BOTH OF ACCRA – Appellants
AND
KOFFI NASSU ACQUAH, AS HEAD OF THE GEORGE AJCOTEYFIO NELSON FAMILY OF ACCRA FOR HIMSELF AND ON BEHALF OF ALL OTHER MEMBERS OF THE SAID FAMILY – Respondent
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ORIGINATING COURT(S)
Appeal by plaintiffs and cross-appeal by the defendant: No. 34/53.
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REPRESENTATION
Ollennu — for the Plaintiffs
Akufo Addo — for the Defendant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LEASE:- Agreement to lease – Subsequent lease to another – Specific performance of agreement claimed.
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil Cases — Occurrence subsequent to judgment enabling relief claimed — W.A.C.A. Rules, rule 36.
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CASE SUMMARY
The plaintiffs sued for specific performance of an agreement for a lease made with the defendant, who denied the agreement. The trial Judge found that there had been such an agreement but owing to a subsequent lease of the premises given to a third party refused specific performance. The plaintiffs appealed against this refusal, and the defendant against the finding that there had been an agreement for a lease. Subsequently to the judgment the lease to the third party was declared void in another case (and the view of its being void was confirmed on appeal: see the last preceding case, Bassil v. Hanger).
Rule 36 of the W.A.C.A. Rules, 1950, reads thus:-
“The Court (viz. of Appeal) shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require, etc.”
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal of the plaintiffs while dismissing the appeal of defendant) that:
(1) There was ample material before the trial Judge upon which he could properly reach the conclusion that an agreement to lease the premises to the plaintiffs had been made.
(2) The trial Judge was right in holding that the lease to the third party was an impediment to granting the plaintiffs specific performance but that impediment having gone since, it was a proper case for action under rule 36 of the W.A.C.A. Rules, 1950.
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MAIN JUDGMENT
The following judgment was delivered:
FOSTER-SUTTON, P.
In this action the plaintiffs claimed specific performance of an agreement whereby the defendant and other members of the George Akoteyfio Family by their agent Emmanuel Quarmina Nelson agreed to lease to the plaintiffs their family house situate at the junction of Boundary and Rowe roads, Tudu, Accra.
The defendant denied that E.Q. Nelson had ever been authorised by him or the other members of the family to negotiate such a lease and asserted that the property had been leased by him, with the consent and concurrence of the principal members of the family, to a Mr. Bassil of Accra.
The case came for trial before Jackson, J., who found as a fact that E.Q. Nelson had express authority from the defendant and other principal members of the family to negotiate and conclude the agreement alleged by the plaintiffs, but he declined to grant a decree for specific performance of the agreement because, as he held, the defendant and other principal members of the family bad, sub-sequent to the agreement with the plaintiffs, placed it beyond their power to execute a lease to the plaintiffs by executing a lease of the property to Mr. Bassil. The plaintiffs then appealed to this Court, their main ground of complaint being that the learned trial Judge misdirected himself in holding that the lease to Bassil was an impediment to his granting specific performance of the agreement with the plaintiffs; and the defendant asked that the judgment of the Court below be varied by setting aside the finding that there was a binding agreement between the parties, as being against the weight of the evidence.
The evidence is fully discussed in the judgment appealed from. It is, therefore, sufficient to say that, in my view, there was ample material before the learned trial Judge upon which he could properly reach the conclusion that an agreement to lease the premises to the plaintiffs had been entered into by the defendant’s agent with his authority and that of the other principal members of the family. I am also of the opinion that the learned trial Judge was, in the then existing state of affairs, right in holding that the lease to Bassil was an impediment to his granting the relief asked by the plaintiffs. Since then, however, the validity of the lease to Bassil has been called in question, and both the Court before which the action was tried, Suit No. L.21/1952, and this Court, Civil Appeal No. 35 of 1953, have held that the lease to Bassil was void, it not having been entered into by all the necessary members of the family.
More precisely put, the position at the time Jackson, J., gave his judgment was that there was a lease of the property to Bassil, but one that was voidable at the instance of those members of the family who were not parties to its execution, and by the judgments already referred to that lease has been declared to be void ab initio.
In these circumstances, the impediment to granting a decree of specific performance having been removed, I am of the opinion that this appeal should be allowed and the judgment of the Court below varied by granting a decree of specific performance of the agreement to lease the premises in question to the plaintiffs, entered into by the defendant through his agent E.Q. Nelson.
It is unusual to call in aid a subsequent occurrence with a view to giving an unsuccessful plaintiff relief to which at the date of the trial of the action he was not entitled, but I am satisfied that we have the power under rule 36 of the West African Court of Appeal Rules, 1950, to do so, and that this is a propel case in which to take such action.
I would set aside the order of the Court below as to costs, and in all the circumstances I think each side should bear their own costs, both in the Court below and on this appeal.
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COUSSEY, J. A.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Appeal of plaintiffs allowed; appeal of defendant dismissed.
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