FRED KHOURY AND OTHERS v. FREDERICK KPODO TAMAKLOE OF ACCRA AND OTHERS
1950
HIGH COURT
GHANA
CORAM
- SMITH, J
Areas of Law
- Contract Law
- Property and Real Estate Law
- Equity and Trusts
- Probate and Succession
1950
HIGH COURT
GHANA
CORAM
AI Generated Summary
Smith, J adjudicated a dispute over the late Emmanuel Nelson Tamakloe’s self-acquired property, which had been mortgaged to Nassar and later redeemed by Chiefs Quarcoo Attipoe and Nyarho Tamakloe using funds from Mrs. Jiagge, followed by a reconveyance to them as joint family heads. In 1946, the 1st defendant, styling himself successor with the consent and concurrence of siblings, purported to grant the plaintiffs a 90-year lease and took £3,600 as 50 years’ rent in advance; the 3rd plaintiff, an existing tenant, claimed rights under this instrument. Relying on Coussey, J.’s 1948 judgment and independent analysis, Smith, J held the lease void at native law and merely an agreement for a lease at English law, with unconscionable terms. He rejected specific performance as inequitable and impracticable given demolition/rebuild rights over undivided shares and refused to vary the contract. Nevertheless, he found the 1st defendant and attesting siblings bound, and awarded the plaintiffs £3,907 17s 2d, plus interest at 5% on £3,600 from 1 August 1946, with costs.
Judgment:
In this case the plaintiffs claim against the defendants, who are all children of the late E.N. Tamakloe, for specific performance of an agreement for a lease made between them and the 1st defendant on the 2nd August, 1946, and in the alternative they claim damages as represented by the sum of £3,600 paid by them to 1st defendant and certain incidental expenses connected therewith.
The 1st and 4th defendants do not contest the claims, but the 2nd, 3rd and 5th deny all liability under them.
The property which forms the subject matter of this dispute was the selfacquired property of the late E. N. Tamakloe who died in the year 1944 intestate, leaving 9 grown up children, five of whom are the present defendants.
Prior to his death E. N. Tamakloe had mortgaged the property to one Nassar and at the time of his death there was pending in this Court an action between them for redemption of the property.
A family meeting was held, and in consequence Chief Quarcoo Attipoe and Chief Nyarho Tamakloe were by leave of the Court substituted in the action as heads of the family of E. N. Tamakloe deceased and obtained a judgment against Nassar for redemption. Having raised the money to pay off Nassar from Mrs. Jiagge, another relative, the chiefs obtained a reconveyance of the property from Nassar dated 18th September, 1944 to themselves as "Joint Heads of the family of Emmanuel Nelson Tamakloe of Keta deceased".
Since then the two chiefs have been in effective control of the property and have been receiving the income therefrom to be applied in meeting the debt to Mrs. Jiagge and other expenses to which they have been put.
In addition to the landed property, E. N. Tamakloe also left some personal estate, and proceedings were taken for the appointment of an administrator. The chiefs were not parties to these proceedings, but a dispute arose in the family as to who should be appointed and the Court referred the question as to who was entitled to succeed to Fia Sri II, the Paramount Chief Awunage.
In consequence partly of the Fia's report and partly, it would appear, of some agreement between the contending parties, the 1st defendant and one of his brothers were appointed Administrators of the Estate.
Following on this the 1st defendant describing himself as "the successor as per the finding of Fia Sri II, Awoame Fia of Anlo dated the 21st day of March, 1945… with the consent and concurrence of the surviving children of the said Emmanuel Nelson Tamakloe (