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EMELIA DZIDZIENYO v. JANET DZIDZIENYO AND OTHERS


  • New
  • 1962-05-01
  • HIGH COURT
  • 1 GLR 301-305
  • Print

CHARLES J.


Summary

Customary law?-Family property?-Offer of lease to deceased?-Offer accepted by administratrix?-Whether lease family property.Land law?-Lease?-Lease granted to administratrix by virtue of her position but in her personal capacity?-Whether interest held as constructive trustee.

Headnotes

Mr. E.A. Dzidzienyo was the lessee of plots 123 and 125, Prince of Wales Road, Takoradi, on which he had erected a house. In 1949 the Government of Ghana, as lessors, re-entered the plots for breach of covenant. The plots were, however, shortly afterwards re-offered to E.A. Dzidzienyo. He died, intestate, on the 19 th July 1949, before he could accept the offer. The Plaintiff was appointed his successor at customary law. In July 1951, as a result of her application to the court, the first defendant was granted letters to administer the estate of E. A. Dzidzienyo. The government renewed the offer of the lease in respect of the two plots to her in her capacity as administratrix. She accepted the offer. The lease was, however, prepared in her personal, not representative, capacity. She granted a sub-lease of the plots to Edward Ramia, the second defendant here in on the 24 th October 1957 (exhibit 1) Edward Ramia in his turn mortgaged his interest to the Barclays Bank, Takoradi, the co-defendants herein (exhibit 2). On Ramia failing to pay the mortgage debt the bank exercised their rights under the deed of mortgage and sold the properties. The plaintiff thereupon as successor sued Janet, Ramia and the bank for a cancellation of the under-lease of the 24th October, 1957, and for setting aside the sale on the ground that the properties are family properties, and Janet could not properly deal with them without the knowledge and consent of the family.

Judgement

ACTION by successor for declaration that lease granted to administratrix is family property, and dealings therein by administratrix invalid.

The plaintiff, who sues in her capacity as the successor of the late E. A. Dzidzienyo, sought the cancellation of a deed dated 24th October, 1957, by which the first defendant granted an under-lease of plots Nos. 123 and 125., Prince of Wales Road, Takoradi to the second defendant. The plaintiff's complaint is that the plots in question are family property and as such the plaintiff is the person lawfully entitled to deal with them and that the first defendant fraudulently and without the authority, knowledge, consent and concurrence of the family purported to execute the under-lease in respect of the aforesaid plots.

E. A. Dzidzienyo was granted a lease by the government in respect of the said plots and he erected thereon a two-storeyed building. The government exercised its right of re-entry for breach of covenant, and re-entered, but subsequently offered the said two plots again to E. A. Dzidzienyo, who was ill in bed, four months prior to his death. Immediately after his death, in 1949, the plaintiff was appointed his successor and her appointment was confirmed by the native court at Anyako on the 23rd August, 1951. On the 16th July, 1951, the first defendant was appointed administratrix of the estate of the late E. A. Dzidzienyo and as a result, the government made an offer of a lease in respect of the two plots to her which she accepted. It is patently obvious upon the correspondence with the second defendant that the lease in respect of the two plots was granted on the 8th April, 1952, to the first defendant because she was appointed administratrix, but unfortunately when the lease was prepared it purported to grant her the interest in her personal capacity.

On the 23rd May, 1953, the first defendant entered into an agreement with the second defendant to sub-let the said two plots to him and when she failed to honour the agreement the second defendant sued her for specific performance of the agreement. The plaintiff had sued the first defendant in suit No. 49/1953, and on the 18th July, 1953 the terms of settlement signed by counsel for the parties were incorporated as a consent judgment of the court by van Lare, J. (as he then was), the most relevant part of which read as follows:

"(1) There will be an order of perpetual injunction restraining the defendant from any further dealings with the estate of the late E. A. Dzidzienyo by herself, but only jointly with the plaintiff herein.

(2) That the letters of administration granted by the court on the 16th July, 1951, to the defendant are to be set aside as rescinded and in substitution fresh letters of administration in respect of the estate of the late E. A. Dzidzienyo to issue to the plaintiff and defendant jointly as from date."

These terms of settlement were never implemented.

On the 29th October, 1953, the Lands Department wrote the plaintiff a letter, exhibit C which informed her that her name had been noted with J. E. Dzidzienyo as joint lessees and administratrices of the above-mentioned plots (that is, the plots in dispute). On the 1st December, 1955, Windsor Aubrey, J. ordered specific performance of the agreement dated the 23rd May, 1953 and entered into between the first and second defendants, and the said agreement, exhibit P was executed on the 21st December, 1955. It would appear that although the said defendant failed to perform her obligation contained in paragraph 4 of the agreement, exhibit P, which was a condition precedent to the execution of the underlease, yet the first defendant with the written consent of the Lands Department granted to the second defendant an under-lease of the said plots on the 11th October, 1957. On the 24th October, 1953, the second defendant with the written consent of the Lands Department mortgaged his interest in the under-lease to Barclays Bank Limited, the co-defendants. I have not considered any documents or judgments dated subsequent to the 24th October, 1957 in so far as they relate to acts subsequent to this date, because they are ex post facto and therefore irrelevant.

According to the evidence of the plaintiff's witness there was nothing on the leases, exhibits 1 and 2 to indicate that the leases were granted to the first defendant in a representative capacity. Furthermore, although the Lands Department in a letter dated the 29th October, 1953, informed the plaintiff that her name was being entered with that of the first defendant as joint lessees and administratrices nothing was done to implement this. On the contrary, the Lands Department sent out notices only to the first defendant and receipts for rent were issued to the first defendant in her personal capacity. Moreover, on the 14th November, 1957, the Acting Commissioner of Lands on behalf of the government gave his consent in writing to the under-lease as well as to the mortgage.

Counsel for the plaintiff admitted that the leases in respect of the two plots were family property because they were originally offered to the late E. A. Dzidzienyo, but on account of his illness he did not accept the offer, and on his death the leases were granted to the first defendant solely because she was the administratrix of the estate of E. A. Dzidzienyo, deceased. The leases could only be regarded as family property if they were the self-acquired property of the late E. A. Dzidzienyo at his death, but the facts prove conclusively that the Government had re-entered [p.304] the plots prior to his death thereby depriving him of whatever interest he had. But even if the interest in the two plots leased to the first defendant can be regarded as family property, I find on the evidence that the second defendant is in a position similar to a purchaser for value without notice and so are the co-defendants. The second defendant and the co-defendants obtained the consent in writing of the Lands Department to the under-lease and mortgage respectively and the leases, exhibits 1 and 2, were granted to J. E. Dzidzienyo in her personal capacity, so there was nothing which would indicate to a reasonable and careful person that the property was family property or that the leases were to be entered in the names of the plaintiff and first defendant as joint lessees and administratrices. If any one should be saddled with this administrative blunder on the part of the Lands Department, it should be the plaintiff and not the first defendant or co-defendants because she should have seen to it that the note was actually made on the leases. Moreover, she should have been more vigilant when she did not receive notices from the Lands Department for ground rent.

Counsel for the first defendant submitted that as the first defendant was administratrix of the estate of E. A. Dzidzienyo, the leasehold property vested in her and she could deal with the property in dispute without the consent or concurrence of the members of the family. In support of his submission he cited the case of Nsiah v. U.T.C. Ltd.1

This would be a sound proposition of law if the lease was granted to the first defendant in her capacity as administratrix; but on the evidence I hold that the lease was granted to the first defendant in her personal capacity.

As the leases were granted to the first defendant in her personal capacity solely because she was the administratrix of the estate of the late E. A. Dzidzienyo, I hold that she holds the leases as a constructive trustee for the beneficiaries of the late E. A. Dzidzienyo because an administratrix is not allowed to use her position as such and derive any benefit therefrom. As a trustee the legal estate in the leases vests in her and therefore it is competent for her to grant an under-lease for value provided there is no collusion or fraud between her and the under-lessee, second defendant. There is no allegation of collusion or fraud between the first and second defendants in the statement of claim nor is there any evidence to support such a finding. It is true that the plaintiff gave evidence, which has not been questioned, that there was no necessity for the first defendant to grant the under-lease as she had collected G4,172 9s. 4d. from U.A.C. Ltd. as commission due to the estate of E. A. Dzidzienyo, G715 5s. from Barclays Bank, G287 4s. 10d. from the post office and G55 per month as rent collected from the properties of the late E. A. Dzidzienyo up to the 3rd April, 1959. But no evidence has been led to prove that the second defendant was a party to any fraud. Counsel for the plaintiff submits that as the first defendant was under no obligation to execute the lease until the second defendant had performed his obligation under paragraph 4 of the agreement exhibit P, it can be inferred that the first and second defendants were acting in collusion. Fraud against a party must not only be alleged in the pleading but it must also be proved, and there is nothing on the record to warrant such a finding against the second defendant even though the circumstances under which the under-lease was executed may give rise to suspicion.

In Adjei v. Appiagyei,2 it was held, inter alia, that a transaction by head of family involving family property, but without the consent of concurrence of the family, is avoidable at the instance of the family but the court will not declare the transaction void unless it is satisfied that the family have not acquiesced in the transaction, that they have acted timeously and with due diligence and that the innocent party affected by the transaction can be restored to the position he occupied before the transaction took place. As to these matters the burden of satisfying the court falls upon him who seeks to avoid the transaction.

As the co-defendants have exercised their power of sale under the mortgage the parties cannot be restored to their original position. I therefore declare the under-lease granted to E. Ramia, the second defendant, in respect of the property in dispute valid. The plaintiff's claim is accordingly dimissed and judgment is entered in favour of the defendant and co-defendants. The plaintiff is ordered to pay costs fixed at twenty-five guineas, inclusive of fee to counsel to the first defendant as well as to the co-defendants.

Decision


Plaintiff / Appellant

S. Baidoo

Defendant / Respondent

Sakyi for the first and second defendants. H. V. Franklin with him E. B. Gaisie for the co-defendant

Referals

(1)   Nsiah v. U.T.C Ltd. [1959] G.L.R. 79

(2)  Adjei v. Appiagyei (1958) 3 W.A.L.R. 401

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