Smart Gabari Ogbimi V. Mrs. Beauty Ololo & Ors (1993)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C.

The parties to the action leading to this appeal are children of late Chief Gabari Ogbimi who died intestate on 20/7/63 leaving behind five children (who are the parties to this action) and three wives. The plaintiffs are full blood sisters and children of one of the wives. The 1st defendant, their half-brother, is the eldest child born of another wife while the 2nd and 3rd defendants are full blood brothers born of the third wife. Chief Ogbimi also left behind some real property including houses and plantations. On his death, 1st defendant sat on his estate and when the plaintiffs could not get him to agree to a sharing of the estate, they sued him to court in 1966. 1st defendant made moves to settle the matter out of court in consequence of which the plaintiffs withdrew their action.

The houses left behind were shared among the children on the basis of the three branches they belong to. The sharing was embodied in Exhibit ‘A’ which the 1st defendant made the plaintiffs to sign. It turned out, however, that the 2nd and 3rd defendants were dissatisfied with the sharing as embodied in Exhibit A and refused to sign same. 1st defendant went into negotiations with them as a result of which he gave up to them a building that was allotted to him in Exhibit A. On discovering re-arrangement carried out by the defendants behind their back. the plaintiffs protested to 1st defendants and insisted on having a building allotted to them as a branch too. When 1st defendant would not compromise with them, the plaintiffs instituted the action leading to this appeal claiming from the 1st defendant as follows:

“1. A declaration that the plaintiffs as children of late Gabari Ogbimi who died intestate at Sapele on 20th July, 1963 are entitled to inherit from his estate as beneficiaries.

2. A declaration that the plaintiffs having benefited from the said estate by virtue of the consent agreement between the plaintiffs and the defendant in 1966 have the right to sue for modification of the said agreement for effective protection and enjoyment of their legacies.
3. An order of court directing the modification of the agreement as herein under specified to enable the plaintiffs effectually and equitably administer and enjoy their legacies.
4. ‘The shop at the left extreme of the sprayed block building on looking the road, the shop at the right extreme of the same block and one residential room and parlour of the same block’

TO READ: The entire sprayed block building abutting the Adeola Road Identified as building No.1 in the Plan to be filed in the suit.

2. ‘The first six room counting both sides of the block house behind the storey building’

TO READ: The entire building containing 12 rooms identified as building No.3 in the plan to be filed in this suit’

3. One room in the boys quarter.

TO READ: ‘The entire boys quarters identified as building No.2 in the plan to be filed in this suit.”

Pleadings were filed and exchanged but before trial of the action the plaintiffs obtained leave of court to join the 2nd and 3rd defendants. Consequent on the joinder of the 2nd and 3rd defendants the plaintiffs filed and served an amended statement of claim. The 1st defendant also filed and served an amended statement of defence, 2nd and 3rd defendants, did not however file any statement of defence nor did they participate at the trial. Strangely enough a brief was filed on their behalf in the Court of Appeal. They were not represented by counsel at the hearing of the appeal in the court below even though 3rd respondent was present. And they have not also participated in this appeal.

At the trial of the action 2nd plaintiff and the 1st defendant only testified and after addresses by learned counsel appearing for them, the learned trial Judge, in a reserved judgment, found for the plaintiffs and entered judgment in their favour in terms of their claims. He made the following order:

“For the avoidance of doubt, I hereby order that the plaintiffs (“Gate 2″) shall forthwith have exclusive ownership of Buildings 1, 2 and 3 in parcel A of Exhibit B as their own share of their late father’s property. I further order that the defendants shall forthwith surrender to the plaintiffs the rooms which they own in the said buildings.”

Being dissatisfied with the said judgment the 1st defendant unsuccessfully appealed to the Court of Appeal. He has further appealed to this court upon five grounds of appeal which, without their particulars, read:

“(1) The learned Justices of the Court of Appeal erred in law in formulating a claim for the plaintiffs when they held that purport of the plaintiffs’ claim was for a just and fair sharing among the 3 gates of the property left by the late Chief Gabari Ogbimi of Sapele who was the father of all the parties to this case and/or that their claim was that they were entitled to a separate house of their own.

(2) The learned Justices of Appeal erred in law in failing to allow the appeal of the appellant when the plaintiffs’ claim formulated and/or based on modification of an agreement is not known to law and or equity.

(3) The learned Justices of the Court of Appeal erred in law in referring to the error in the plaintiffs claim as formulated as mere technicalities and their so doing has led to a serious miscarriage of justice.