Mustapha Rufai Ojikutu V. Bintu Fatumo Fella (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Estoppel—Res judicata—Judgment not put in—Person denying that he was bound thereby—No evidence that he was.
Executors and Administrators—Trustees—Beneficiaries under will suing for account.

Facts

The plaintiffs (now appellants) sued as beneficiaries under a will for an account of rents collected by the defendant in respect of certain premises which they alleged had been devised to them and the defendant with certain directions.

The defendant (wrongly) admitted the devise but pleaded a consent judgment in an earlier suit as declaring that the premises were family property which the testatrix could not dispose of. For the plaintiffs it was countered that they were not bound by that judgment: it had not been shown that the beneficiaries had been served with the writ of summons in that suit or that the plaintiffs had consented to the judgment.

At the first hearing the plea of resjudicata was upheld and the case struck out; that was reversed on appeal and there was a second hearing, at which after the close of the plaintiffs’ case the defendant called no evidence, with the result that the judgment relied on as resjudicata was not tendered in evidence, nor was there any evidence given about it.

However, the Judge accepted the plea of res judicata and also ruled that the plaintiffs were not entitled to an account from the defendant; and the plaintiffs appealed.

Held

(1) The Judge erred in accepting the plea ofresjudicata as the judgment in the earlier suit was not given in evidence and no evidence was given concerning it.

(2) If the will sued upon was of effect, the legal estate vested in the trustees, and the plaintiffs could not maintain an action for account against a debtor to the trust estate, which in effect was what they were alleging the defendant was.

(3) The plaintiffs had not established that the defendant was their agent and as such collected and retained their moneys, so as to entitle them to an account.

Appeal dismissed.