B. Akande And Another V A. Akande And Others (1967)
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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At the commencement of the hearing the first claim was withdrawn by the plaintiffs and it was dismissed; and in the course of the judgement the learned trial judge dismissed the case against the second defendant with costs.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)-
’10. The first defendant alone admits receiving compensation referred to in paragraph 18 and avers that he is not according to custom liable to an action for account as claimed by the plaintiffs, but avers further that such monies that came into the hands of the Mogaji were treated according to custom for the maintenance of the family.
15. With respect to paragraph 17 of the Statement of Claim, the first defendant admits having made sales of plots in the layout of the land in dispute after due consultations with principal members of the family, but contends that he is not liable in an action to account to the plaintiffs in respect of such sales.’
The evidence was all one way as the defendants gave no evidence at the close of the plaintiffs case. The judge gave judgement as indicated above and on the case of the third defendant observed as follows:-
‘As for the third defendant, there is evidence that he made the sales of the plots on behalf of the first defendant and he in fact helped the said Mogaji to collect the compensation from Government. In my opinion, the ends of justice will be best served by making him equally liable to account not to the first defendant alone but to the plaintiffs and therefore to the family for his handling of family affairs, as he acted in all those things for the first defendant who is both very old and illiterate. He should be in a position to explain his acts to representatives of the family, which he cannot do if he accounts only to the first defendant.’
The plaintiffs had filed no notice of intention to support the judgement on grounds other than in the judgement as postulated by Supreme Court Rules Order 7, rule 13 (1) nor have we been invited to do so. We are therefore left with the clear finding by the judge that the third defendant was at all times an agent of the first defendant and that he acted in that capacity.
Mr Omotosho for the plaintiffs contended strongly before us that as the first defendant was dead, unless the third defendant was made to account to the plaintiffs the door would be left open to all sorts of fraudulent mishandling of family properties and that breach of trust would thereby be easily condoned. We do not agree with these speculations for fraud was neither charged nor proved and it was never the case of the plaintiffs that the third defendant was a trustee for the family. What is to the point, however, is whether on the manifest finding of the judge that the third defendant was an agent of the first defendant he could be asked to account not to his disclosed principal, the first defendant, but to the plaintiffs to whom the first defendant might have borne some fiduciary relationship.
It is settled law that except in special circumstances (none of which had been suggested or urged before us) no agent is personally liable to repay money which he had received for the use of his principal. See Pond v. Underwood (1705) 2 Ld. Raym. 1210, 1211; also per Lord Mansfield in Sadler v. Evans (1766) 4 Burr. 1986. In Ellis v. Coulton  I Q.B. 350 at p. 352, Lord Esher, M.R., delivering the judgement of the Court of Appeal on a similar case observed, inter alia, as follows:-
‘ … there was nothing in the circumstances to raise any trust … and I have asked in vain for any authority to shew that there was any fiduciary relation between these parties. The cases cited draw the distinction between a stake-holder and an agent for one of the parties; the former is the agent of both, but the latter is the agent of one only and responsible only to that one’.
This statement of the law seems to us to be apposite to the facts found by the I earned trial judge in this case and accordingly we do not consider that the respondent has established that under English law there is any liability having regard to the facts found for the third defendant to account to the respondents.
Moreover, learned counsel for the respondents did not refer us to any principle or rule of customary law which runs counter to the established line of authorities to which he had referred and which justifies the court in making the order appealed against. We are not ourselves aware of any such rule. The result therefore is that we are in no doubt that neither under the rules of English law nor under those of customary law can an order such as had been made against the third defendant in this case be justified and this appeal must therefore be allowed..
We cannot conclude this judgement without making an observation on the conduct of this case in the court below. It appears that no objection was taken by counsel to portions of the evidence led in the court below but a considerable body of that evidence consists of hearsay and facts which should not have been given in evidence having regard to the pleadings of the parties.
Counsel for the defendants, for reasons best known to himself, maintained an attitude of studied indifference to the evidence at the trial and the judge fell into the error of treating as reliable evidence that which ought to have been rejected or if admitted should have been disregarded.
The appeal is allowed. The judgement of the Ibadan High Court in Suit No. 1/334/62 is hereby set aside in. so far as it concerns the third defendant and we order that as against him (i.e. the third defendant) the plaintiffs case be dismissed. The respondents shall pay to the third appellant the costs of these proceedings fixed in the court below at 20 guineas and in this court at 42 guineas.
Other Citation: (1967) LCN/1497(SC)