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.

(4) The learned Justices of the Court of Appeal erred in law when they held as follows:-

‘It is to be noted that the 1st and 2nd respondents, as plaintiffs in the court below, did not institute an action against the appellant to enforce any legal rights whatsoever in their case; also they did not base their claim upon any contract in writing as such. What the respondents claimed in the court below, technicalities aside, was that they as children of late Chief Gabari Ogbimi of Sapele who constitute “Gate 2” of their father’s children were entitled to a separate house hold of their own just as the appellant took the buildings, parcels of land………as members of “Gate 3”.

This findings has led to a serious miscarriage of justice.

(5) The learned Justices of the Court of Appeal having held that the claim before the lower court was certainly not for rectification of Exhibit “A” and that there was in law no real consent to the agreement (Exhibit “A”) ERRED in law in not allowing the appeal by dismissing or striking out the plaintiffs’ claim.”

Learned counsel for the parties filed and exchanged their respective written briefs of argument. Mr. Odebala, for the 1st defendant set out 2 questions as calling for determination in this appeal, to wit:

(i) Did the claim of the appellant as formulated disclose a known cause of action in law and or equity

(ii) Was the Court of Appeal right in holding that the claim of the 1st and 2nd respondents in the High Court was for a just and fair sharing of their late father’s property.”

Mr. Omorodion, for the plaintiffs, raised 3 issues in his own brief but for the purpose of determining this appeal, I shall confine myself to the questions raised in Mr. Odebala’s brief.

QUESTION 1.

The main argument of learned counsel for the 1st defendant is that the claim of the plaintiffs – one for modification of an agreement – is unknown to law and equity. He criticized certain passages in the judgment of the Court of Appeal and submitted that “the claim for modification of an agreement as an equitable claim cannot be invented now merely to assist the 1st and 2nd respondents. To do this will mean creating a new equity”, which according to learned counsel, could not be done. He cited some authorities in his support. He further submitted that “sentiment is not reason for a court to over-stretch a plaintiff’s claim to give the court a jurisdiction.” He relied on Isikuru Uyovwekerhi v. Ibatere Afomighe (1976) 5 SC 85 and Ransome-Kuti v. Attorney-General (1985) 6 SC. 246; (1985) 2 NWLR (Pt.6) 262.

Mr. Omorodion, for the plaintiffs, forcefully argued in his brief which he adopted at the hearing of this appeal, that having regard to the definition of “cause of action” as given by Obaseki, J.S.C. in Chief Dr. Irene Thomas & 5 Ors v. The Most Reverend Timothy Omotayo Olufosoye (1986) 1 NWLR (Pt. 18) 669 at 682 that the case of the plaintiffs as formulated in their amended statement of claim and evidence led in support of the claim sufficiently disclosed a cause of action.

To determine whether the plaintiffs’ claim discloses a cause of action one has to have regard to the statement of claim. Paragraph 18 of the amended statement of claim reads:

“18. Wherefore the plaintiffs claim 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 1st defendants 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 hereinunder specifically and equitable administer and enjoy their legacies.”

The first two claims seek declaratory reliefs whilst the 3rd claim is ancillary to these declaratory reliefs. I do not agree that a claim for a declaration of party’s right discloses no cause of action. It clearly does. Notwithstanding the judgment of the court below, (per Omo-Eboh, J.C.A.) seeking to draw a difference between “modification” and “rectification’:, on the wording of the claims as endorsed on the writ of summons and as pleaded in paragraph 18 of the amended statement of claim a cause of action is disclosed and I, therefore, answer Question 1 in the affirmative.

QUESTION 2.’

I have considered the arguments proffered by Mr. Odebala in his brief and I dare say that the arguments do not support his complaint under this question. However, having regard to the pleadings and the finding of the learned trial Judge, I am in no doubt that the issue in controversy between the parties was as to the just and fair sharing of their late father’s property. The 1st defendant clearly understood the action to be so. For in his evidence under cross-examination, he testified thus:

“I had building outside the compound in which I have exclusive interest. Gate 3 that is, 2nd and 3rd defendants] also had buildings in which they had exclusive interest. The plaintiffs (Gate 2) have no exclusive interest in any of the buildings.”

(Words in square brackets are supplied by me)

The learned trial Judge found (and there has been no appeal against this finding) that:

“……..the partition as in Exhibit A was not done with the consent of all members of the family. Specifically, it was not done with the consent of the 2nd and 3rd defendants.”

On the whole, I am satisfied that the learned trial Judge came to a just decision in the verdict he handed down in this case and that the Court of Appeal was right to affirm his decision. I find no merit whatsoever in this appeal which I dismiss accordingly. The plaintiffs are entitled to the costs of this appeal which I assess at N1,000.00 against the 1st defendant/appellant.

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SC.15/1988