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J U D G M E N T
ANSAH, J.S.C:-
This an appeal against the judgment of the Court of Appeal dated 12/11/04 affirming the judgment of the High Court, Sekondi, given on 31/1/02.
The facts that culminated in the present appeal are devoid of any complexities. They are that the late deceased E. A Dzidzienyo had a lease in respect plots numbered 123 and 125, Prince of Wales Street, Takoradi, from the then Government of the Gold Coast. The lease incurred forfeiture but was re-offered to the lessee who could not accept it due to his ill health to which he later succumbed.
Janet Elsie Dzidzienyo, the mother of the defendant and sister of the plaintiff, took out Letters of Administration to administer the properties of the deceased. She then accepted the lease offered to the late EA Dzidzienyo, i.e. of the two plots and the rear portions thereof and subsequently granted an under-lease thereof to one Edward Ramia, whereupon the plaintiff took action against them in a suit intituled: Emelia Dzidzienyo v Janet Dzidzienyo & Ors [1962] 1 GLR 301. Charles J heard the matter at the Sekondi High Court and on 1/5/62 dismissed the plaintiff’s action.
This case was important for the reason that in it
“ 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 the time of his death, but the facts proved conclusively that the Government had re-entered the plots prior to his death thereby depriving him of whatever interest he had.” (See page 303)
The court found that the leases were granted to Janet in her personal capacity solely because she was the administratrix of the estate and by that she held the leases as a constructive trustee for the beneficiaries of the estate of E.A. Dzidzienyo. The court further declared the under-lease granted to the 2nd defendant, E. Ramia valid, but observed at page 305 that as the co-defendants had exercised their power of sale under the mortgage, the parties could not be restored to their original positions.
When the matter went on appeal, in Suit No. CA 42/63 sub nom. Amelia Awo Dzidzienyo v Janet E Dzid