B. Akande And Another V A. Akande And Others (1967)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The appellant was the third defendant in an action instituted by the respondents against three defendants in the High Court, Ibadan. The writ filed on behalf of the plaintiffs (i.e. the present respondents) is endorsed as follows:-

‘The plaintiffs claims against the defendants are:-

1. A declaration that the defendants are not entitled to sell Ajanla family land situate and being at Oke Ado, Ibadan, without the knowledge and consent of the plaintiffs.

2. An account of all plots or parcels of land out of the said Ajanla family land laid out into plots and otherwise known as Ajanla family Layout, Oke Ado, Ibadan and sold by the defendants between the period 1954 and 1961 without the knowledge and consent of the plaintiffs.

3. An account of the monies had and received from the Western Regional Government by the defendants for portions out of the said Ajanla family land situate and lying at Oke Ado, Ibadan and acquired by the said Western Regional Government for the Liberty Stadium at Ibadan in 1957 and 1958 and the Liberty Stadium Access Road acquired under the Western Regional Legal Notice 1064 of 1958 and paid for between the period 1957 and 1961.

At the commencement of the hearing the first claim was withdrawn by the plaintiffs and it was dismissed; and in the course of the judgement the learned trial judge dismissed the case against the second defendant with costs. He gave judgement against the first and third defendants on the second and third claims on the writ and this appeal is against that Judgement.

We were told by learned counsel for the appellants that the first defendant had died since the judgement and that he had received no further instructions about that appellant and his appeal; hence of the three grounds of appeal filed on behalf of the first and third defendant counsel argued only the third ground of appeal which bears on the case of the third defendant.

The only issue which arose in the court below and before us concerned the accountability of the first and third defendants to their family in the circumstances described in the pleadings. The first defendant was the Mogaji or head of the Ajanla family of Ibadan and the other parties to the case are members of the same family. Somolu, J., who tried the case, held that both the first and the third defendants were accountable to the family. The appeal of the first defendant who was the Mogaji or head of the family was not argued before us as he was already dead and we express no opinion whatsoever on the question of his accountability. As far as he was concerned his appeal is hereby struck out.

With regard to the third defendant, the position as portrayed by the pleadings is as follows:-

(a) Paragraphs 17 and 18 of Statement of Claim (as amended)-

’17. The plaintiffs on the approach by defendants sometime last year for settlement then asked for an account of the proceeds of sale which they refused to give and have not yet given.

18. In 1957 the Western Region Government compulsorily acquired part of the land for the Liberty Stadium Ibadan from the said Ajanla Family and the defendants through the third defendant had a compensation in money paid to them for the family for which they have not accounted to the plaintiffs.’

(b) Paragraphs 10 and 15 of the Statement of Defence (as amended)-