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FEDERAL SUPREME COURT OF NIGERIA
22ND APRIL, 1960.
BEFORE THEIR LORDSHIPS
SIR ADETOKUNBO ADEMOLA, F.C.J. (Presided)
MYLES JOHN ABBOTT, F.J. (Read the Judgment of the Court)
LIONEL BRETT, F.J.
REAL ESTATE/LAND LAW:- Family Property – Rights of Family Head – Claim for account for lease collected – Whether possible only against family member – Legal implications
REAL ESTATE/FAMILY LAW:– Family Property – Principles for a successful claim for account
ETHICS – LEGAL PRACTITIONER: Guidance of client – Failure thereto – Attitude of court – Effect
CHILDREN AND WOMEN LAW:- Women and Real Estate – Succession under a will – Bequest of family property to woman – Headship of family arising therefrom – Claim for account against a person who leased out parts of property to third party – Description of person as ‘stranger’ instead of family member – How treated
PRACTICE AND PROCEDURE – ACTION:- Account – Property let by alleged stranger and collecting rents thereon – Whether action for account lies.
ABBOTT, F.J. (Delivering the Judgment of the Court):
The plaintiff’s claim in this case is as follows:
“(a) that as the present Head of the Family of the late Aliu alias James Coker and Trustee under his will and the surviving Devisee thereof the Plaintiff is in Law the person entitled to collect the rents of the portions of the Hereditaments and Premises known as No. 15 Cole Street, Lagos, let out to tenants by the Defendant and (b) an account of all the rents collected by the Defendant from the said premises as from May, 1953, up to the taking of such account and the payment over to the plaintiff of such rents”
On this claim coming before the High Court of Lagos the learned trial Judge held that because of certain proceedings taken by the plaintiff in 1941 against the father of the present defendant/respondent, she was estopped from bringing her action. The facts are briefly that one Aliu alias James Coker died in 1922, devising his only real property, an eight-roomed house at 15 Cole Street, in the following words:
“unto my sister Asatu and my daughter Salamotu to be held and enjoyed by them and all the rest of the family and remain a family house according to the true meaning of Native Customary Law to all intents and purposes and shall not in any way be sold or mortgaged or alienated the said Asatu my sister to be head of the family and after her death my daughter Salamotu to succeed her as head of the family …”
Asatu died in 1929. In 1941 the testator’s daughter Salamotu, the present plaintiff/appellant, brought an action against one Abiona for possession of certain rooms in 15 Cole Street which he was occupying. Salamotu lost her case and whilst it is a little unfortunate that the learned Judge who tried the case gives no reason for finding against her, it is quite plain that she denied in those proceedings that Abiona was a member of the family.
In giving judgment in the High Court in the present case the learned trial Judge said this:
“In 1941, therefore, the Plaintiff had certain rights in relation to 15 Cole Street, arising under her father’s will, while the defendant was, to her knowledge, letting out to tenants four of the rooms in that house. In the 1941 action she claimed recovery of possession of the four rooms. In the present action, on precisely the same facts, she claims a declaration of her rights as head of the family under the will and an account. In these circumstances I have not the slightest hesitation in holding that the plaintiff is estopped from bringing the present action. It is obvious that the plaintiff, on the facts existing in 1941, could have claimed in the 1941 action the same remedies she is claiming now, and it is possible that in view of the terms of the will she might have succeeded. A litigant cannot, on a certain set of facts, claim one remedy in one action, and then, when he fails to obtain this remedy, bring another action on precisely the same facts for another remedy which he could have claimed in the former action.”
With respect to the learned trial Judge, I do not think that the matter is quite so simple as that, but I would nevertheless dismiss the appeal though on grounds different from those which impelled the learned trial Judge to dismiss the action.
In the 1941 proceedings, as I have said, the appellant made it part of her case that the respondent’s father was a stranger and not a member of the family, and she takes the same standpoint now regarding the respondent, and so far as the second head of her claim is concerned, the judgment of this Court in Sadiju Eletu v. Ashafa Lawani and Others, delivered on the 31st March, 1958, in appeal No. F.S.C. 138/1957, is authority for the proposition that a person who is alleged to be collecting rents as a stranger and consequently without authority cannot be said to be an accounting party. On this decision being brought to his notice, Mr. Shyngle, Counsel for the appellant, abandoned the claim for an account.
So far as the first head of the claim is concerned, I fail to see how such a claim can succeed. Nor do I see how it will be possible for this Court to do what we are asked to do, which is to grant the declaration sought against the respondent who, as previously stated, has been always asserted by the appellant to be a stranger. Had she, as she might have done, pleaded that the respondent was a member of the family, the position might be very different, but as it is, I am of opinion that she cannot obtain the declaration for which she asks.
I would, therefore, dismiss this appeal with costs to the respondent fixed at 20 guineas.