Basil E. N. Ofole V. Dr Samuel E. N. Ofole & Ors (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.C.A. 

On the 21 – 10 – 1982, the appellant herein with one Gabriel N. Ofole, as plaintiffs, filed a claim and caused a writ of summons to issue on the same date commencing suit No 0/378/82 in the High Court of Anambra State at Onitsha against the respondents herein as defendants claiming for –
(i) A declaration that the 1st plaintiff as the Okpala of Late Johnson Ofole is entitled to call in all the properties of Late Johnson Ofole to be distributed amongst his children in accordance with the customary law of Eziowelle.
(ii) An order of the Court for the partition and distribution of all the properties of late Johnsons Ofole amongst his sons in according to Eziowelle customary law.
(iii) N500,000.00 or No. 19 Francis Street, Onitsha to be given to the 2nd plaintiff as compensation for the huge sums of money which he spent in renovating and rehabilitating the properties and maintaining them especially after the damages to properties during the civil war.
(iv) An order of injunction restraining the 1st Defendant from further managing or controlling the

1

properties to the exclusion of the plaintiffs before the said partition and distribution are finally effected.

After both sides had filed and exchanged pleadings as follows-statement of claim filed on 4-3-83 and statement of defence filed on 27-6-83, they opted to settle the dispute amicably.

On 22-9-1987 they filed their agreed terms of settlement in the trial Court. It was signed by all parties to the suit. The exact of the said terms of settlement is reproduced here as follows- ”
Having received the support of this Honorable Court to co-operate in effecting settlement of this case out of Court amicably and pursuant to the opportunity so offered, Barrister G.F.I. Eonu S.A.N. for the defendants and Barrister Ben. O. Anyaduba and O.C. Igwealor for the plaintiff met and discussed. A letter was written by the leading counsel for the plaintiff Ben. Anyaduba Esq. to senior Advocate of Nigeria Barrister R.R.I. Egonu on 11/2/87 to summon a meeting where the lawyers could put their heads together and assist the disputants to reach a final settlement with members of the family (disputants) who all agreed to attend and did attend the settlement on

2

Tuesday, 17th March 1987 at N. 40 New market Road, Onisha chambers of the Senior Advocate of Nigeria by 5 pm.
Having ventilated their feelings, regrets and misgivings after much heated arguments and when tempers died down, the parties went into proposals for settlement, on a quid pro quod basis. IT IS RESOLVED AS FOLLOWS that the properties which form the core and that is to say, the subject matter of this litigation should be shared and distributed as follows:-
1 Dr.SAMUEL N. OFOLE – should take No. 9A new Market Road. Onisha.
2. MR. SYLVANUS I. OFOLE – should take N0.18 Bright Street, Onitsha.
3. Mr. BASIL E.N. OFOLE- should take one half share of No. 19 Francis Street Onitsha.
4. MR. DAVID I. OFOLE – should take the other half share of No. 19 Francis Street, Onitsha. The said premise is made up of 6 flats and 8 shops on the ground floor.
5. MR. CHRISTIAN N. OFOLE SHOULD take No. 8 Modebe Street, Onitsha
And in addition should be paid the sum of Thirty-Five thousand Naira (N35,000.00) from the estate,
6. To GENERATE the necessary fund it is resolved that the Bida Road property should be sold off and the money realized

3

there from ”

On the same 22-9-1987 the trial Court entered judgment in the suit on the basis of the said terms of settlement.

By a motion on notice dated 5-10-1990 and filed on 10-10- 1990, Gabriel N. Ofole, (1st plaintiff,) applied for –
(a) An Order of the Honourable Court staying execution of the consent judgment delivered on 22/9/87 by the honourable Justice J. G. O. Aneke.
(b) A further Order of Court that none of the parties to the said suit i.e.Suit No. 0/378/82 shall take benefit, alienante dispose of or in any other manner seek to change the character or title of any of the property contained in the consent judgment until the estate debt and expenses shall have been first determined and settled as per the said judgment.
And for such order or other orders as the honourable Court may deem fit to make in the circumstance.”

It is supported by an affidavit of 19 paragraphs sworn to by the appellant herein. The 1st respondent herein swore to and filed a counter affidavit of 27 paragraphs opposing the above application. The appellant swore to and filed two further affidavits in response to the said counter affidavit.

4