Salamotu Aduke v. Wosilatu Abiona (1960)
area: customary law; accounting party; collecting rents.
F.S.C.217/1959/
LEAD JUDGEMENT DELIVERED BY: Abbott, F.J.
FACT: 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.”
HELD: 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 pos sible that in view of the terms of the will she might have suc ceeded. A litigant cannot, on a certain set of facts, claim one re medy in one action, and then, when he fails to obtain this re medy, 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 ap pellant, 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.
APPEAL DISMISSED.