AKANDE & ANOR. V. AKANDE & ORS.

• Pages: 72-76

72

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NIGERIAN SUPREME COURT CASES

[1967] N.S.C.C.

We think it is now too late for him to raise an objection. In the case of

Dickson v.

Law and Davidson

[1895] 2 Ch. D. 62, where an amended writ served out of juris-

diction did not bear the endorsement prescribed by an appendix to the Rules of

Court for a writ to be served out of jurisdiction, it was held that the defendant is

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not entitled to take an advantage of an irregularity occasioned by a slip which has

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5

been made by the plaintiff and which has done no harm to the defendant.

In our opinion, the learned judge in the instant case was wrong to have struck

out the action before him. The case is distinguishable from

Alatede v. Falode

(supra)

where objection was taken

in limine.

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This appeal will be allowed. The case is sent back to the High Court for hear-

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10

ing on its merits and determination. It is ordered that the 25 guineas costs awarded

by the learned judge be hereby set aside; costs in the High Court will await the

event. In this court costs in favour of the plaintiff/appellant assessed at 50 guineas.

Appeal allowed.

15

AKANDE & ANOR. V. AKANDE & ORS.

20

B. AKANDE AND ANOTHER

V

A. AKANDE AND OTHERS

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N

COKER,

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J.S.C.

LEWIS,

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J.S.C.

10th March, 1967

APPELLANTS

RESPONDENTS

SUIT NO. SC 383/1965

25

30

Agency - Accountability of agent - Family suing for account of monies received

from dealing with family land by defendant family member as agent of

co-defendant, family head - No allegation by plaintiffs that defendant a trustee

for family - Whether Defendant accountable to them.

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35

Customary Land Law - Yoruba Native Law and Custom - Member of family

dealing with family land as agent of family head - Whether accountable to

other members for proceeds.

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ISSUE:

1. Whether in the absence of a fiduciary relationship between an agent and a third

party the agent is accountable to the third party for proceeds of any

transaction concerning family property either under English law or under

customary law.

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45

FACTS:

The appellant was third defendant in an action instituted in the High Court by

the respondents claiming that the three defendants were liable to account for

monies received from the sale of parcels of land laid out into plots and known as

Ajanla family layout and sold by the defendants without the knowledge and con-

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50

sent of the plaintiffs and also were further liable for monies paid as compensation

for the compulsory acquisition of another portion by the Western Regional Gov-

ernment. The trial judge gave judgment against the first and third defendants who