Mrs. Esther A. Osho & Ors. V. Gabriel A. Phillips & Ors. (1972)

LawGlobal-Hub Lead Judgment Report

C. O. MADARIKAN, J.S.C. 

In suit No. LD/451/67 in the Lagos High Court, the present respondents as plaintiffs took out a writ of summons against the appellants claiming:

“(i) a declaration that they as children of Solomon Ajibola Phillips deceased are beneficially jointly entitled to share with the other children of the said deceased from the estate of the said Solomon Ajibola Phillips – deceased.

(ii) An account of all proceeds received as rents from the landed properties of the said deceased.”

Pleadings were ordered and duly delivered. As the issues clearly emerged from the pleadings, we propose to reproduce them. The plaintiffs’ statement of claim read:

“1. The plaintiffs and the defendants are some of the surviving children of the late Solomon Ajibola Phillips who died intestate in February, 1939.

2. That there are other children of the said Solomon Ajibola deceased – namely Olanrewaju Phillips, Akintunde Phillips, Ajoke Phillips, Ibiyemi Phillips, Olatunde Phillips, Oyinkan Phillips, Agboola Phillips, Aina Phillips and Oyebola Phillips who together with the plaintiffs and defendants survived the said deceased.
3. That letters of Administration was granted to the two defendants in consequence of which the personal effect: i.e. moneys and wearing apparels of the said deceased were shared equally amongst all the aforementioned children by the said administrators.
4. The plaintiffs aver that they and their brothers and sisters as per paragraph 2 above were born in their late father’s house, were christened by their late father in the presence of the mother of the said defendants, were brought up and educated by their late father in his house where the defendant’s mother also lived along with the defendants.
5. The plaintiffs aver that the defendants’ mother was never married to their late father under the Marriage Act and or in the alternative the defendants by their conduct and their mother’s are estopped from denying that the said plaintiffs are beneficially entitled to share equally with the other children including the defendants from the profits accruing from the landed properties of their late father.
6. That the said Solomon Ajibola Phillips – deceased on his death left several properties amongst which are the following:-

(1) 38, Ojuelegba Street, Surulere, Lagos.

(2) 16, Makinde Street, Surulere, Lagos.

(3) 2 landed properties measuring 100 by 120 and 50 by 100 at Idi-Araba, Surulere, Lagos.

(4) Landed property at Ibidun Street, Yaba measuring 100 by 100.

(5) Landed property at the junction of Macarthy Street, Lagos and now tenanted by the Ghana Embassy.

(6) 186, Cemetry Street, Ebute-Metta, Lagos.

7. That the defendants have collected substantial proceeds from the lease and sale of some of the aforementioned landed properties without accounting and sharing the said proceeds or any part thereof with the plaintiffs and others listed in paragraph 2 above.
8. That the defendants are now resisting the plaintiff’s claim to share from the profits accruing from their father’s properties.”

The defendants in their statement of defence pleaded as follows:-

“1. Save and except as hereinafter expressly admitted the defendants deny each and every allegation of fact contained in the plaintiffs’ statement of claim as if they are set out seriatim and specifically traversed.