Coussey, J.A. The unsatisfactory manner in which the defence in this suit was conducted has probably given occasion for this second appeal.
The action was brought in 1950 by the two plaintiffs for themselves and other beneficiaries under a will for an account from the defendant of rents and profits collected by her as the plaintiffs' agent in respect of premises described as No. 39 I Agarawu Street, Lagos. By the statement of claim the plaintiffs averred that by the will the property referred to was therein devised to them and the defendant with certain directions.
By the defence the defendant admitted, contrary to the terms of the will, that the property had been devised as the plaintiffs alleged.
The defendant, however, pleaded that the matters in issue were res judicata by virtue of a consent judgment in the Supreme Court in suit No. 376(1938 between the parties to this suit wherein it was declared that the property in the writ of summons mentioned was family property and that the testatrix, Osenatu Osikeosi, had not an absolute power of disposition thereof so as to make the trusts or bequeath any legacy therefrom to the plaintiffs.
This plea was upheld by Rhodes, J., on the 16th May, 1951, and the plaintiffs' action was struck out with costs.
The plaintiffs appealed and their appeal was allowed by the West African Court of Appeal on the 17th November, 1953, on the ground that there was no evidence before the Court to establish that the alleged consent judgment so bound the plaintiffs so as to constitute res judicata. The Appeal Court ordered a re-trial of the suit.
Before dealing with the course the action took at the re-hearing it is worth noting that one of the plaintiffs' grounds or appeal before the Court of Appeal was that Rhodes, J., erred in law in deciding the issue of res judicata against the plaintiffs without hearing evidence on the plaintiffs' allegation that the writ of summons in suit No. 376/1938 was not served on the beneficiaries and that there was no proof that the plaintiffs had, in fact, consented to the so-called consent judgment.
At there-hearing counsel for the plaintiffs called attention to the plea of res judicata and invited the Court's ruling whether that plea should be established as the first issue.
This, it appears to me, would have been a logical, convenient and expeditious course, for if it prevailed the proceedings would be curtailed.
Counsel for the defendant, however, would not take up the gage, and, on his !;submission that the action had been remitted for re-trial on all the merits, the Court ordered the plaintiffs to begin.
At the close of the plaintiffs' case the defendant called no evidence. The positic1n- was, therefore, that the judgment in suit No. 376(1938 upon which he relied had not been tendered in evidence. By these tactics the defendant secured the last word, it is true, for what it was worth in a non-jury case; but as no admission had been made by the plaintiffs that they were parties to suit No. 376/1938-in fact they disputed this important fact-the burden as to this issue rested on the defence. Counsel for the defendant in the course of his address ,referred to the so-called judgment of res judicata as a legal authority apparently asserting solemnly that the Court would take notice of it as binding on the plaintiffs. But it was not an authority on any question of law or native custom and it had therefore to be strictly proved. To me it seems probable that for some on or other the defendant was evading the issue whether by service or notice e plaintiffs were bound by these proceedings.
The judgment of Gregg, J., on the re-hearing, which dismissed the plaintiffs' and from which this appeal is brought, rests on two grounds.
1. That the judgment in suit. No. 376/1938 operates against and binds the plaintiffs.
2. That the plaintiffs are not entitled to sue the defendant for an account. As to the first ground, strangely enough, Gregg, J., erred as Rhodes, J., had in the same suit in accepting the same judgment as conclusive against the .tiffs without the proof necessary to sustain a plea of res judicata. As observed already, the judgment was not given in evidence and no evidence was offered concerning it, The plaintiffs therefore have cause to appeal as to this ground.
In my opinion the judgment appealed from is right on the second ground.
If the will upon which the plaintiffs sued is of effect the legal estate in the property mentioned vested in the. trustees of the will. The plaintiffs have no interest in the legal estate. Their interest is to have their legacies paid from time to time out of the income of the estate. It is said that both the trustees appointed by the will are dead. If the defendant is intermeddling with the estate to the plaintiffs' detriment, the proper course seems to be to apply for appointment of a new trustee. Then, if the defendant is disturbing the legal estate the plaintiffs, although they may not institute legal proceedings in the name of the trustee without his authority, may oblige the trustee, on giving him a proper indemnity, to lend his name for asserting the legal right. But the plaintiffs cannot maintain an action for account against a debtor to the trust estate and that is what they allege against the defendant that she in effect is: Sharpe v. San Paolo Railway (1) where James, L.J., said that if the trustee would not take proper steps to enforce a claim, the remedy of the cestui que trust was to file a bill against the trustee for the execution of the trust.
The case of Yeatman v. Yeatman (2) cited by Mr. Kotun for the appellants is not, in my opinion, applicable in the present case because no special circumstances have been shown tending to disable a trustee if appointed from suing.
The other ground on which the plaintiffs sought to maintain the action, namely that the defendant was the plaintiffs' agent and as such collected and retained the plaintiffs' moneys, was not established so as to entitle the plaintiffs to an account.
On the second ground therefore I arrive at the same conclusion as the learned trial Judge, that the action failed and, accordingly, I would dismiss this appeal.
As the respondent has not appeared there will be no order as to costs on this appeal.
Foster-Sutton, P. I concur. de Comarmond, Ag. C.J. I concur.
Appeal dismissed.