HIGH COURT, SEKONDI
DATE; 1ST MAY 1962
BEFORE:CHARLES J.
CASES REFERRED TO
(1) Nsiah v. U.T.C Ltd. [1959] G.L.R. 79
(2) Adjei v. Appiagyei (1958) 3 W.A.L.R. 401
NATURE OF PROCEEDINGS
ACTION by successor for declaration that lease granted to administratrix is family property, and
dealings therein by administratrix invalid.
COUNSEL
S. Baidoo for the plaintiff.
Sakyi for the first and second defendants.
H. V. Franklin with him E. B. Gaisie for the co-defendants.
JUDGMENT OF CHARLES J.
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.
[p.303] of [1962] 1 GLR 301
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] of [1962] 1 GLR 301 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(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.
[p.305] of [1962] 1 GLR 301
In Adjei v. Appiagyei,2(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
Action dismissed.
