EMELIA DZIDZIENYO vs. JANET DZIDZIENYO AND OTHERS [1962]DLHC1433

Date	1962-05-01
Suit No.
Citation No.	[1962]DLHC1433

CHARLES J.

S. BAIDOO FOR THE PLAINTIFF.

SAKYI FOR THE FIRST AND SECOND DEFENDANTS.

H. V. FRANKLIN WITH HIM E. B. GAISIE FOR THE CO-DEFENDANTS.

[1962]DLHC1433
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">EMELIA DZIDZIENYO <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">JANET DZIDZIENYO AND OTHERS <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1962] 1 GLR 301<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 1ST MAY 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

S.
BAIDOO FOR THE PLAINTIFF.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

CHARLES J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
CHARLES J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(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. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(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.”<o:p></o:p><o:p>&nbsp;</o:p>These terms of settlement were never implemented.<o:p></o:p>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 def</main>