ODUTOLA v. TOGUN-BICKERSTETH & ORS
CITATION: (2018) LPELR-44842(CA)
In the Court of AppealIn the Lagos Judicial Division
Holden at Lagos
ON TUESDAY, 30TH JANUARY, 2018Suit No: CA/L/499A/2012
Before Their Lordships:
TIJJANI ABUBAKAR Justice, Court of AppealUGOCHUKWU ANTHONY OGAKWU Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal
BetweenALHAJI MOJEED ODUTOLA - Appellant(s)
And1. CHIEF (MRS.) MOSUNMOLA TOGUN-BICKERSTETH2. MRS. OLUFUNSO AYANBADEJO3. MRS. OLAJUMOKE ADEKOYA4. ENGR. AKINBIYI ODUTOLA5. PASTOR (MRS.) TAIWO ADEWUNMI6. MRS. KEHINDE OKUSANYA7. PROFESSOR AKINTOLA ODUTOLA8. MR. OLATUNJI ODUTOLA9. MR. AKINYEMI ODUTOLA10. MR. TAIWO ODUTOLA11. MRS. KEHINDE ERINLE12. MRS. KOREDE ARIGBABU13. MS. OLUBUKOLA ODUTOLA14. MR. YUSUF ODUTOLA15. MR. HAHEEM ODUTOLA16. MR. SULE ODUTOLA17. MR YISA ODUTOLA18. MRS. OMOSALEWA OLUBEKO19. PROFESSOR EBUNOLUWA CLARK20. THE PROBATE REGISTRAR, HIGH COURT OFLAGOS STATE
- Respondent(s)
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RATIO DECIDENDI1. ADMINISTRATION OF ESTATE - ADMINISTRATOR(S) OF AN ESTATE: Power of Court to appoint interim administrators pendente
lite for an estate"The resolution of this issue appears to me to be straight-forward, and ought not to have generated any controversy. Section 27 of theAdministration of Estates Law, Chapter A3 of Lagos State is unambiguous and it reads:(1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling or revoking anygrant, are pending, the Court may grant administration of the estate of the deceased to an administrator, who shall have all the rightsand powers of a general administrator, other than the right of distributing the residue of the estate, and every such administratorshall be subject to the immediate control of the Court and act under its direction. The above provision leaves nobody in doubt that thelower Court is conferred with the discretion to grant interim administration of the estate to an administrator who shall be under thecontrol and direction of the Court. From the provision of Section 27 supra, and contrary to the erroneous contention of the Appellant'scounsel, I see no requirement that the estate of a deceased must have been in waste before the Court can appoint interimAdministrator in respect therefore. In ANYAH v. AFRICAN NEWSPAPERS OF NIGERIA LTD (1992) 7 SCNJ 47, the Court held inter aliathat the moment hard and fast rules as to the exercise of judicial discretion by a Court is laid down, the discretion is fettered. As amatter of fact, the appointment of interim Administrator is made by the Court to forestall potential wastage of the estate, it is made inanticipation of a futuristic event, which in this case, the wastage of the estate.Per OBASEKI-ADEJUMO, J.C.A. (Pp. 33-34, Paras. D-F) -read in context
2. APPEAL - GROUND(S) OF APPEAL: Whether the leave of court is required where an appeal is hinged on grounds of law alonebefore an appeal can be filed"...It is beyond doubt that the above ground relates to the dissatisfaction of the Appellant against the decision of the trial Court whichheld that it had jurisdiction to entertain the claim before it. Needless to say, contrary to the misconceived argument of the 1st to 18thRespondents' Learned counsel that issue of jurisdiction is not a question of fact or mixed law and fact. It is ipso facto an issue of lawsimpliciter. In NWAIGWE v. OKERE (2008) 19 NWLR (PT. 1105) 445; (2008) LPELR - 2085 (SC), it was held that:"An issue of jurisdiction of a Court or Tribunal, be it Customary or English, is strictly a matter of law - Customary or English orwhatever. It is not a question or issue or matter of facts. On the other hand, a complaint that a decision of a Court is against theweight of evidence or is unreasonable, unwarranted and cannot be supported having regards to the evidence is purely a complaint onfacts with no connection whatsoever to law customary or otherwise."Therefore, whether final or interlocutory, where the ground of appeal involves question of law alone, and it is filed within the timestipulated by the Rules of Court, the appeal is competent and no leave is required in such a case. See FAITH ENTERPRISE LTD. v.B.A.S.F. (NIG.) LTD [2010] 4 NWLR (pt. 1183) 104 SC; SHELL PETROLEUM DEV. CO. v. KATAD NIG. LTD [2006] 1 NWLR (pt. 9950) 198.The objection on this ground is thus misconceived."Per OBASEKI-ADEJUMO, J.C.A. (Pp. 10-11, Paras. E-E) - read in context
3. APPEAL - LEAVE OF COURT/LEAVE TO APPEAL: Instance(s) where leave of Court is not required to file an appeal"The Appellant's counsel rightly pointed out lower Court granted an order of injunction inter alia that the "Claimant and theDefendants" are restrained from disturbing and/or interfering with the performance of the duties of the Interim Administratorsappointed by the Court. The provision of Section 241(1)(f)(ii) of the Constitution is clearly to the effect that no leave is required wherethe appeal is against the decision of the lower Court where injunction or appointment of receiver is granted or refused, which is thecase here. See SOLID UNIT NIG LTD & ANOR V. GEOTESS NIG LTD (2013) LPELR - 20724 (CA); ATTAMAH & 4 ORS v. THE ANGLICANBISHOP OF THE NIGERIA & 3 ORS; FAITH ENTERPRISE LTD. v. B.A.S.F. (NIG.) LTD [2010] 4 NWLR (PT 1180) 104 S.C.; SHELLPETROLEUM DEV. CO. v. KATAD NIG. LTD [2006] 1 NWLR (pt. 9950) 198. I have no hesitation in saying that the objection on thisground is also incompetent."Per OBASEKI-ADEJUMO, J.C.A. (P. 13, Paras. A-E) - read in context
4. APPEAL - GROUND(S) OF APPEAL: Whether particulars to a ground of appeal must relate to the grounds of appeal"It is important to note that ground of appeal and their particulars are intimately related and should not divorced from one another,even though they are to be differentiated. As a matter of fact, it has been stated in a plethora of decisions that the particulars of aground of appeal is to bring to the fore the nature of the complaint of an Appellant against the decision of the lower Court. SeeOGBECHIE v. ONOCHIE [1986] 2 NWLR (PT. 23) 484; DIAMOND BANK LTD v. PARTNERSHIP INVESTMENT COMPANY LTD & ANOR (2009)18 NWLR (pt. 1172) 62 SC; DAKOLO & ORS v. REWANE-DAKOLO & ORS (2011) LPELR - 915 (SC); OLEKSANDR & ORS v. LONESTARDRILLING COMPANY LIMITED & ANOR (2015) LPELR - 24614 (SC)."Per OBASEKI-ADEJUMO, J.C.A. (Pp. 14-15, Paras. E-B) - read incontext
5. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Principles governing formulation of issues for determination in anappeal"It is my humble view that the second issue is hinged on the three grounds of appeal contained in the Notice of Appeal dated 15thMay, 2012 and by this issue, the Appellant seeks the intervention of this Court in reviewing the decision of the lower Court appointinginterim administration, which according to the Appellant, was based on purported misdirection of the Court. The second issue is anotable one which I feel should be considered by this Court, as it is certainly not the complaint of the 1st to 18th Respondents that theAppellant cannot formulate one issue from the three grounds of appeal. Contrariwise, the approach adopted by the Appellant accordswith the position of law that a single issue can be formulated from more than one grounds of appeal and not vice versa. See OGBE v.ASADE [2009] 18 NWLR (PT. 1172) 106; ARUM v. NWOBODO (2013) LPELR - 20390 (SC)."Per OBASEKI-ADEJUMO, J.C.A. (P. 16, Paras.B-F) - read in context
6. APPEAL - GROUND(S) OF APPEAL: How the vagueness of a ground of appeal may arise"Indeed, a ground of appeal is said to be vague, generic and argumentative if it is couched in such a manner that the Respondent andthe Court are left to speculate as to the Appellant's complaint. See OSASONA v. AJAYI & ORS (2004) LPELR - 2790 (SC)."Per OBASEKI-ADEJUMO, J.C.A. (P. 17, Paras. A-B) - read in context
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7. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Circumstance where an appellate Court will not interfere withthe exercise of discretion by a lower Court"The Appellant has not shown to this Court how the lower Court wrongly exercised its discretion in the circumstances. It is wellestablished in a long line of cases that an Appellate Court will not overturn the exercise of the discretion of a lower Court, unless suchexercise is perverse. See the resounding admonition of WALI, JSC in SHUGABA v. UNION BANK OF NIGERIA PLC (1999) 11 NWLR (pt.627) 459; (1999) LPELR - 3068 (SC) 16, paras G - E that:"The Court guards its powers and image jealously. It should therefore be extremely wary in the manner it exposes such image, thediminution of its powers and the enforcement of its authority to public ridicule. In my respectful opinion as no Court has an inherentjurisdiction to set aside the exercise of discretion of another except where such exercise has been capricious, or based on extraneousfactors, and not following the accepted principles so will the valid exercise of discretion ... not be interfered with..."See also NGWU & ORS v. ONUIGBO & ORS [1999] to NWLR (PT. 636) 512; NDAYAKO v. DANTORO (2004) 13 NWLR (pt. 889) 182;OSHE, SAN v. OKIN BISCUITS LIMITED & ANOR [2010] 11 NWLR (PT. 1206) 482. I must say that this Court will not yield to the plea ofthe Appellant that the exercise of discretion by the trial Court, which was rightly done, should be overturned. In this respect, this issueis also resolved against the Appellant. In the result, the Appellant's appeal lacks merit and is hereby dismissed in its entirety. TheRulings of the High Court of Lagos State, coram OLUYEMI, J. (Mrs.) delivered on 2nd May, 2012 and 7th May, 2012 are herebyaffirmed. Costs of N200,000.00 awarded in favour of the 1st to 18th Respondents."Per OBASEKI-ADEJUMO, J.C.A. (Pp. 35-36, Paras. A-C) - read in context
8. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Circumstance where an appellate Court will not interfere withthe exercise of discretion by a lower Court"This Court will refrain from interfering with exercise of discretion unless it is shown that the exercise of discretion by the lower Courtwas prompted by extraneous motivations, or consideration of factors that make such exercise of discretion inappropriate. I totallyagree that in the instant appeal, the Appellant failed to establish a genuine case of wrong exercise of discretion by the lower Court.Appellants appeal is therefore devoid of merit and I join in dismissing it."Per ABUBAKAR, J.C.A. (P. 37, Paras. C-B) - read in context
9. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Circumstance where an appellate Court will not interfere withthe exercise of discretion by a lower Court"With respect to the exercise of discretion by the lower Court to appoint interim administrators for the Estate, it is a judicial andjudicious exercise of discretion. Where discretion has been properly exercised, an appellate Court will not interfere. See NDAYAKO vs.DANTORO (2004) 13 NWLR (pt. 889) 187."Per OGAKWU, J.C.A. (P. 38, Paras. C-E) - read in context
10. COURT - DISCRETION OF COURT: Principles guiding the exercise of discretion by the Court"I am also in agreement that discretionary power of a Court should always be exercised judicially and judiciously. Acting judiciallyentails consideration of the interest of both parties in litigation in arriving at a decision, while acting judiciously entails display ofsound reasoning in arriving at a decision marked by wisdom and common sense. See: NDIC vs. GLOBUS ENT. LTD (2011) 3 NWLR (pt.1233) 74 at 89."Per ABUBAKAR, J.C.A. (P. 36, Paras. E-F) - read in context
11. COURT - JURISDICTION: What determines jurisdiction of Court to entertain a cause/matter"It is rudimentary law that it is the reliefs claimed that determine the jurisdiction of the Court: ADEYEMI vs. OPEYORI (1976) 1 FWLR149 and MUSACONI LTD vs. ASPINALL (2013) LPELR (20745) 1 at 32. It is beyond confutation that the reliefs claimed by the 1st-18thRespondents cannot be pitch forked into the enumerated jurisdiction of the Federal High Court. See OLADIPO vs. NIGERIA CUSTOMSSERVICE BOARD (2009) LPELR (8278) 1 at 15. Accordingly, the High Court of Lagos State is imbued with the requisite jurisdiction toentertain the action."Per OGAKWU, J.C.A. (P. 38, Paras. A-C) - read in context
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12. JURISDICTION - JURISDICTION OF THE STATE HIGH COURT: Whether a State High Court has jurisdiction over matters relating toadministration of estate of a deceased person"Jurisdiction no doubt is the bedrock of every form of adjudication, without which an adjudicatory body cannot survive. It is sofundamental in the sense that it touches on the competence of a Court or Tribunal to adjudicate over a matter brought before it byparties. The authors of the Halsbury's Laws of England, Volume 10, 4th Edition, at paragraph 715, page 323 stated correctly thatjurisdiction is "a very fundamental and priceless commodity in the judicial process. It is the fulcrum, centre piece, or the main pillarupon which the validity of any decision of any Court stands and around which other issues relate. It cannot be assumed or implied, itcannot also be conferred by consent or acquiescence of parties." See OFIA v. EJEM (2006) 11 NWLR (pt. 992) 652 SC; OKONKWO v.NGIGE (2007)12 NWLR (PT 1047) 191 SC; OBASANJO v. YUSUF (2004) 9 NWLR (pt. 877) 144 SC.I must say that the law is well settled that it is the nature of a plaintiff's claim that determines whether a Court is vest with thejurisdiction to entertain a suit. See GODWIN & ORS V. OKWEY & ORS [2010] 16 NWLR (pt. 1219) 309 SC; OLOFU v. ITODO [2010] 18NWLR (PT. 1225) 545 SC; OKOROCHA v. PDP & ORS (2014) LPELR - 22058 (SC). In ONWUDIWE v. FRN [2006] to NWLR (pt. 988) 382;(2006) LPELR 2715 (SC) 48, paras G-C, the Supreme Court, per TOBI, JSC held:"In the determination of the jurisdiction of a Court, the enabling law vesting jurisdiction has to be taken in the light of the relief orrelief(s) sought. The moment the relief sought comes within the jurisdiction of the Court as adumbrated by the facts, the Court mustassume jurisdiction as it has jurisdiction to do so. Of course, the reverse position is also correct and it is that the moment the reliefsought does not come within the jurisdiction of the Court, as adumbrated by the facts, the Court must reject jurisdiction as it has nojurisdiction in the matter. To that extent, jurisdiction looks almost like an exact formula in calculus, although it is devoid of actualfigures and numbers."The Appellant's counsel had in his Brief of Argument attempted to guide the Court into the realm of Section 251(1)(e) of theConstitution and its import towards producing a dichotomizing effect in the main complaint ofthe 1st to 18th Respondents and the ancillary complaint. As a matter of fact, it is the submission of counsel that the maincomplaint/principal claim of the 1st to 18th Respondents is about the shareholding of the deceased in J.A. Odutola Property andInvestment Company Limited. On the other side, the 1st to 18th Respondents' counsel, noting that the Appellant misapplied the caselaw cited in his brief, submitted that shares in an estate do not divest the High Court of jurisdiction and that the reliefs sought bythem do not relate to Companies and Allied Matters Act (CAMA) or transmission of shares.Now, Section 251(1)(e) of the Constitution leaves no one in doubt that the Federal High Court has exclusive jurisdiction over civilcauses and matters "arising from the operation of the Companies and Allied Matters Act or any other enactment, replacing that Act orregulating the operation of companies incorporated under the Companies and Allied Matters Act." Therefore, unless the claim beforethe Court arose out of the operation of the CAMA or regulation of the operation of companies there under, the Federal High Court doesnot have any exclusive jurisdiction.In the instant case, looking at the averments pleaded as well as the reliefs sought in the statement of claim found at pages 4 to 24 ofVolume 1 of the records of appeal, I have no hesitation in reaching the conclusion that the subject matter of the suit bothers onadministration of estate, which comes within the jurisdiction of the lower Court. For clarity, the reliefs sought are reproducedhereunder:A. A DECLARATION that the Claimants are beneficial owners of all assets forming part of the Estate of Late Alhaji Akintola Odutola andmay participate in the administration, management and distribution of the Estate.B. A DECLARATION that the Claimants are entitled to nominate 3 (three) persons for the grant of Letters of Administration in respectof the Estate of the deceased.C. A DECLARATION that the 1st and 2nd Defendants are constructive trustees and or Executors de son tort with respect to the Estateof the deceased.D. AN ORDER disgorging/restituting all profits or gains accrued by the 1st and 2nd Defendants over assets of the Estate of thedeceased.E. AN ORDER of perpetual injunction restraining the Defendants either by themselves, privies, agents or representatives howeverdescribed from interfering or intermeddling with any asset, including real properties or anything or chose in action, comprised in theEstate of the deceased.F. AN ORDER restraining the 3rd Defendant from granting any Letters of Administration to the 1st & 2nd Defendants without thewritten consent of a majority of beneficiaries under the Estate.G. AN ORDER restraining the 1st & 2nd Defendants obtaining any Letters of Administration, or instruments howsoever described forthe administration or dealing in the Estate of Alhaji Jimoh Odutola.H. The sum of N150,000,000.00 (One Hundred and Fifty Million Naira) as exemplary damages for the 1st & 2nd Defendants, breach oftrust and reprehensible conduct;I. Interest on the sum awarded under Relief G above at 21% per annum until final liquidation of the judgment sum.J. The cost of this action.K. Pursuant to Order 4 Rule 5 of the High Court of Lagos State (Civil Procedure) Rules 2004, the claimants shall require an account ofall assets in the Estate of the deceased within the control of the 1st and 2nd Defendants."The above is by no stretch matters which fall within the adjudicatory competence of the Federal High Court. Although it is concededthat part of the facts adumbrated by the Plaintiffs in their Statement of Claim relates to shares, this fact does not divest the HighCourt of jurisdiction, because shares are moveable property which is subject to the laws relating to administration of estate. As the1st to 18th Respondents' counsel rightly pointed out, issues of administration of estate or succession to estate (which shares mayform part of) can be decided without recourse to the Companies and Allied Matters Act. A fortiori, the provisions of Section 155 and156 of CAMA merely deals with transmission of shares legal representatives of a deceased. The provision has nothing to do with theprocedure relating to a determination of the person entitled to be appointed as personal representative(s) of an estate. Therefore,until the lower Court determine the subject matter of the present case relating to the beneficial owners of all assets forming part ofthe Estate of the Late Alhaji Jimoh Akintola Odutola, the cause of action and/or right of action relating to transmission of sharespursuant to the CAMA cannot arise. For the avoidance of doubt, the claim as endorsed on the Writ of Summons and Statement ofClaim cannot be conceivably said to be that which arise out of operation of CAMA. It is not. All that the plaintiffs are claiming is withrespect to their entitlement to inter alia participate in the administration, management and distribution of the Estate of the deceasedpursuant to Section 49 of the Administration of Estates Law of Lagos State.It is crystal clear that the State High Court has the jurisdiction in the circumstance. The Federal High Court cannot, as urged by theAppellant's counsel make declaratory and injunctive orders regarding the reliefs sought by the Plaintiffs as they do not fall within theadjudicatory competence of the Court vide Section 251 of the 1999 Constitution (as amended). I believe we do not need to enlist theservices of a soothsayer to see and tell us this. I have no hesitation in agreeing with the Learned Counsel for the 1st to 18thRespondents that the lower Court has the jurisdiction to hear and determine the present claim. This issue is resolved against theAppellant."Per OBASEKI-ADEJUMO, J.C.A. (Pp. 23-29, Paras. A-F) - read in context
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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
(Delivering the Leading Judgment): This is an appeal
against Rulings of the High Court of Lagos State delivered
on the 2nd day of May, 2012 and 7th day of May, 2017
respectively by OLUYEMI, J . (Mrs.) in Suit No:
LD/703/2011. The 1st - 18th Respondents instituted the suit
vide a Writ of Summons and Statement of Claim dated 8th
April, 2011 as contained at pages 1 to 25 of the records of
Appeal against the Appellant and the 19th Respondent. The
Appellant (2nd Defendant) filed a preliminary objection
dated 18th, November, 2011 contained at pages 470 to 473
of the Records of Appeal against the jurisdiction of the
lower Court to entertain the suit and the lower Court in the
first Ruling at pages 865 - 875 of the Records of Appeal
dismissed the objection raised by the Appellant against its
jurisdiction. The second Ruling contained at pages 881 to
884 of the Records of Appeal was delivered on the 1st to
18th Respondents' application for the appointment of
Interim Administration dated 8th, April, 2011 which is
contained at pages 104 to 143 of the record of appeal.
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The Appellant being disgruntled by the two Rulings of the
lower Court filed separate Notices of appeal dated and filed
on the 3rd day of May, 2012 and 15th day of May, 2012
contained at pages 875A to 875c and 885 to 887 of the
Records of Appeal. The Appellant’s consolidated Brief of
Argument was filed on the 16th day of November, 2012 but
deemed as properly filed on the 8th of October, 2013. The
Appellant also filed a Reply Brief on the 24th of February,
2017. The Appellant's Briefs were settled and filed by
Titilola Akinlawon (SAN), Titilayo Ajayi and Roseline
Nwakwo. The 1st - 18th Respondents Brief settled through
Prof. Yemi Osinbajo (SAN), V.O.M. Alonge (Mrs.) Abimbola
Ojenike, Oluwakemi Oluloba and Oladunni Irele was filed
on the 22nd November, 2013. The 19th and 20th
Respondents filed no brief in this appeal.
Learned counsel for the Appellant distilled two issues for
determination in this appeal, as follows:
1. Whether the High Court of Lagos State has
Jurisdiction to hear matters centering on the right to
transmission of shares held in a private Company.
2. Whether the High Court misdirected itself as to the
circumstances under which it could appoint
interim administrators and with what consequences?
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The Respondent on the other hand equally distilled two
issues for determination:
1. Was the Trial Court right when it held that the
High Court of Lagos State has subject matter
jurisdiction to determine issues of succession to
estate, including the shares comprised in the estate?
(Distilled from the sole Ground in the Notice of
Appeal dated May 3, 2012)
2. Did the Trial Court properly exercise its discretion
to appoint Interim Administrators for the
unrepresented estate of the deceased in the
circumstances of the case? (Distilled from Grounds I,
II, and III in the Notice of Appeal dated May 15,
2012).
PRELIMINARY OBJECTION
The 1st - 18th Respondents in a challenge the competence
of this appeal referred to Section 241(1) of 1999
Constitution (as amended) to submit that no leave of Court
was obtained before filing the Notices of appeal which
contained grounds of facts and mixed law and facts.
Learned counsel referred to MAIGORO v. GARBA [1999]
10 NWLR (PT. 624) 555; AKINYEMI v. ODU'A
INVESTMENT CO. LIMITED (2012) 17 NWLR (pt.
1329) 209 at 230 - 231, paras C - G; U.B.A. v. GMBH &
CO. [1989] 3
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NWLR 374 at 388 - 389, paras F - A and IFEDIORAH v.
UME [1988] 2 NWLR (pt. 74) 5 at 15 to 16 to submit
that the two Notices of appeal dated 3rd of May, 2012 and
15th of May, 2015 are incurably incompetent in that they
contain grounds of facts and mixed law and facts. Learned
counsel referred NIGERITE LTD v. DALAMI (NIG.)
LIMITED (1992) 7 NWLR (PT. 253) 288 at 296, para H
and U.B.A. v. GMBH & CO. (supra) to submit that a
ground of appeal challenging the Jurisdiction of the Court
does not necessarily qualify as purely of law.
The 1st - 18th Respondents further challenged the
competence of this appeal on the ground that the two
issues formulated for determination by the Appellant do not
arise from the Grounds of appeal in the Notices of Appeal
respectively dated 3rd of May, 2012 and 15th of May, 2015.
Learned counsel relied on AJA v. OKORO (1991) 7 NWLR
(PT. 203) 260 at 273 and OWODUNNI v. REGD.
TRUSTEES, C.C.C. (2008) ALL FWLR (pt. 421) 824 at
848, paras A - C to urge this Court to strike out the two
issues formulated in the Appellant's brief in that they are
unrelated to the grounds of appeal and consequently
incompetent.
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The last ground of objection to this appeal is that the
Grounds of appeal in the respective Notices of appeal dated
3rd of May, 2012 and 15th of May, 2015 are generic,
vague, argumentative and do not challenge the ratio of the
Rulings of the trial Court. Learned counsel referred to
Order 6 Rule 2 (2) and (3) to contend that an
examination of the grounds of appeal and the particulars
shows that they are unspecific, unclear and contains
narratives and arguments. Counsel referred to
ONAFOWOKAN v. WEMA BANK PLC (1987) 3 NWLR
(PT. 61) 538; IWUOHA v. NIPOST LTD [2003] 8 NWLR
(pt. 822) 308 and OKWUAGBALA v. IKWUEME (2010)
19 NWLR (pt. 1226) 67 to argue that the sole ground in
the Notice of Appeal dated 3rd of May, 2012 did not
identify any specific error of the Trial Court in dismissing
the Objection to its jurisdiction.
Counsel also referred to ADAH v. ADAH (2001) 5 NWLR
(PT. 705) 1 SC 8, Para. B to urge this Court to strike out
the two issues formulated from the incompetent grounds.
In the Reply Brief, learned counsel for the Appellant argued
that the preliminary objection is misconceived and that the
Grounds in the respective Notices of appeal dated 3rd of
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May, 2012 and 15th of May, 2015 involves questions of law
alone in line with Section 241(1) of 1999 Constitution (as
amended) and requires no leave of Court.
Counsel for the Appellant referred to 7UP BOTTLING
COMPANY PLC v. EMMANUEL (2013) LPELR - 21104
(CA); NWADIKE v. OMOROGBE [1993] 6 NWLR (Pt.
301) 512; NNPC & ANOR v. FAMFA OIL LTD (2012)
ALL FWLR (pt. 635) 204; (2012) 17 NWLR (PT 1328)
148.
Learned counsel further cited OGBECHIE & ORS V.
ONOCHIE & ORS (1986) 1 NSCC MP 443; 2 NWLR
(pt. 23) 484; AJUWA & ORS V. SPDCN (2011) 18
NWLR (pt. 1297) 797 and OPUIYO v. OMONIWARI
(2007) 6 SC (pt. 1) 35; (2007) 16 NWLR (pt. 1060)
415 to submit that the substance of the complaint of the
Appellant in the Notice of appeal dated 3rd of May, 2012 is
the jurisdiction of the lower Court hence a ground of law
for which no leave is required. Learned counsel contended
that the case of NIGERITE LTD v. DALAMI (NIG.)
LIMITED (Supra) relied on by the 1st - 18th Respondents
supports the Appellant's case. As regards the Notice of
Appeal dated 15th of May, 2015, learned counsel for the
Appellant referred to Section 241 (1)(b) and (f)(ii) of 1999
constitution (as amended);
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the Black's Law Dictionary, 7th Ed., pg. 1275 and the
decision in OJEMEN v. MOMODU II (1983) 1 SCNLR
188 to submit that by the grant of an order of injunction
and at the same t ime appointment o f Inter im
Administrators who for all intent and purposes are
receivers, the Appellant is hereby entitled to appeal against
the decision of the lower Court as of right without leave.
As regards the 1st - 18th Respondents' objection that the
two issues do not arise from the grounds of appeal, learned
counsel for the Appellant referred to YADIS NIG. LTD v.
GREAT NIG. INSURANCE COMPANY LTD (2007)
LPELR - 3507 (SC) to submit that the two issues distilled
from the two Notices of appeal flow directly from the
Grounds of appeal in the two Notices. On the third ground
of objection, learned counsel referred to DUKE v. GLOBAL
EXCELLENCE COMM. LTD (2007) 5 NWLR (pt. 1026)
81 at 15; FOLBOD INVESTMENT LTD v. ALPHA
MERCHANT BANK LTD [1996] 10 NWLR (PT. 478)
344 at 351 and KALU v. UZOR (2006) 8 NWLR (PT.
981) 66 to submit that the grounds of appeal are direct
and unequivocal and contains sufficient particulars of the
mistake, error and misdirection of the lower Court.
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RESOLUTION OF PRELIMINARY OBJECTION
It is evident that the objection of the 1st to 18th
Respondents is hinged on three grounds. First, is that the
two Notices of Appeal dated 3rd May, 2012 and 15th May,
2012 are incurably incompetent for failure to obtain leave
as prescribed under Section 241 of the 1999 Constitution
(as amended) which reads:
(1) An appeal shall lie from the decisions of the Federal
High Court or a High Court to the Court of Appeal as of
right in the following cases -
(a) final decisions in any civil or criminal proceedings
before the Federal High Court or a High Court sitting at
first instance;
(b) where the ground of appeal involves questions of law
alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on
questions as to the interpretation or application of this
Constitution;
(d) decisions in any civil or criminal proceedings on
questions as to whether any of the provisions of Chapter IV
of this Constitution has been, is being or is likely to be,
contravened in relation to any person;
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(e) decisions in any criminal proceedings in which the
Federal High Court or a High Court has imposed a
sentence of death;
(f) decisions made or given by the Federal High Court or a
High Court
(i) where the liberty of a person or the custody of an infant
is concerned,
(ii) where an injunction or the appointment of a receiver is
granted or refused,
(iii) in the case of a decision determining the case of a
creditor or the liability of a contributory or other officer
under any enactment relating to companies in respect of
misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a
decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in
force in Nigeria.
Considering the grounds contained in the two Notices of
Appeal, can it be said that the Appellant required the leave
of Court before they can be declared competent. In the first
Notice of Appeal dated 3rd May, 2012, which was filed
against the Ruling of 2nd May, 2012, the sole ground of
appeal, reads:
"GROUND 1
The learned trial Judge erred in dismissing the 2nd
Defendant/Appellant's Notice of objection challenging
9
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8) LP
ELR-44
842(
CA)
the jurisdiction of the High Court of Lagos State with
respect to the right of succession to shares held by the
deceased, Jimoh Akintola Odutola, in J.A Odutola Properties
and Investment Company Ltd.
PARTICULARS
a. The right of succession to shares in a company is
governed by the provisions of Sections 155 and 156 of the
Companies and Allied Matters Act.
b. Any matter arising from the operation of companies and
Allied Matters Act is only cognizable by the Federal High
Court having regard to Sections 251(1)(e) of the
Constitution of the Federal Republic of Nigeria 1999.
c. The High Court of Lagos State lacks jurisdiction over the
right of succession to shares held by the deceased in J.A
Odutola Properties and Investment Company Ltd."
It is beyond doubt that the above ground relates to the
dissatisfaction of the Appellant against the decision of the
trial Court which held that it had jurisdiction to entertain
the claim before it. Needless to say, contrary to the
misconceived argument of the 1st to 18th Respondents'
Learned counsel that issue of jurisdiction is not a question
of fact or mixed law and fact.
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8) LP
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842(
CA)
It is ipso facto an issue of law simpliciter. In NWAIGWE v.
OKERE (2008) 19 NWLR (PT. 1105) 445; (2008)
LPELR - 2085 (SC), it was held that:
"An issue of jurisdiction of a Court or Tribunal, be it
Customary or English, is strictly a matter of law -
Customary or English or whatever. It is not a question
or issue or matter of facts. On the other hand, a
complaint that a decision of a Court is against the
weight of evidence or is unreasonable, unwarranted
and cannot be supported having regards to the
evidence is purely a complaint on facts with no
connection whatsoever to law customary or
otherwise."
Therefore, whether final or interlocutory, where the ground
of appeal involves question of law alone, and it is filed
within the time stipulated by the Rules of Court, the appeal
is competent and no leave is required in such a case. See
FAITH ENTERPRISE LTD. v. B.A.S.F. (NIG.) LTD
[2010] 4 NWLR (pt . 1183) 104 SC; SHELL
PETROLEUM DEV. CO. v. KATAD NIG. LTD [2006] 1
NWLR (pt. 9950) 198. The objection on this ground is
thus misconceived.
On the other hand, the grounds of appeal contained in the
Notice of Appeal dated 15th May, 2012, in respect of the
Ruling of 7th May, 2012, are as follows:
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8) LP
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842(
CA)
"GROUND 1
The Learned Trial Judge having been unable to find that the
Estate of the deceased was lying waste misdirected herself
or erred in law in appointing interim administrators.
PARTICULARS
a. The relevant consideration in the appointment of interim
administrators is the fact of the Estate lying waste.
b. The fact of the Estate being unrepresented, disorderly,
or threatened does not necessarily import that the Estate is
lying waste.
GROUND II
The Learned Trial Judge by reason of the misdirection or
error in Ground 1 above has occasioned a miscarriage of
Justice in her Ruling.
PARTICULARS
a. Particulars a and b of Ground 1 are repeated.
b. Having regard to the evidence on Record, but for the
error of the Learned Trial Judge, the decision would have
been different.
GROUND III
The Ruling is against the weight of evidence."
It is noteworthy that the Ruling in respect of which the
above Notice of Appeal was filed is a decision of the lower
Court where an injunction or the appointment of receiver
was granted. This fact is not disputed by the 1st to 18th
Respondents.
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8) LP
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842(
CA)
The Appellant’s counsel rightly pointed out lower
Court granted an order of injunction inter alia that the
"Claimant and the Defendants" are restrained from
disturbing and/or interfering with the performance of the
duties of the Interim Administrators appointed by the
Court. The provision of Section 241(1)(f)(ii) of the
Constitution is clearly to the effect that no leave is required
where the appeal is against the decision of the lower Court
where injunction or appointment of receiver is granted or
refused, which is the case here. See SOLID UNIT NIG
LTD & ANOR V. GEOTESS NIG LTD (2013) LPELR -
20724 (CA); ATTAMAH & 4 ORS v. THE ANGLICAN
BISHOP OF THE NIGERIA & 3 ORS; FAITH
ENTERPRISE LTD. v. B.A.S.F. (NIG.) LTD [2010] 4
NWLR (PT 1180) 104 S.C.; SHELL PETROLEUM DEV.
CO. v. KATAD NIG. LTD [2006] 1 NWLR (pt. 9950)
198. I have no hesitation in saying that the objection on
this ground is also incompetent.
The next hurdle now is to determine whether the two issues
formulated by the Appellant flows from the Grounds of
Appeal contained in the two Notices of Appeal reproduced
above. The two issues are:
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1. Whether the High Court of Lagos State has
jurisdiction to hear matters centering on the right to
transmission of shares held in a private Company.
2. Whether the High Court misdirected itself as to the
circumstances under which it could appoint interim
administrators and with what consequence.
It is the submission of the learned counsel for the 1st to
18th Respondents that these issues are incompetent as
they do not arise from the grounds of appeal. That while
the sole ground of appeal in the first Notice of Appeal
raises the question of jurisdiction of the High Court to
determine issues of "right to succession to shares", the first
issue formulated by the Appellant is with respect to the
"transmission of shares" procedure under CAMA. With
respect to the learned counsel, I see no inconsistency in the
manner in which the ground of appeal as well as the first
issue formulated is couched. It is important to note that
ground of appeal and their particulars are intimately
related and should not divorced from one another, even
though they are to be differentiated. As a matter of fact, it
has been stated in a plethora of decisions that the
particulars of a ground of appeal is to bring to the fore the
nature of the complaint of an Appellant against
14
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8) LP
ELR-44
842(
CA)
the decision of the lower Court. See OGBECHIE v.
ONOCHIE [1986] 2 NWLR (PT. 23) 484; DIAMOND
BANK LTD v. PARTNERSHIP INVESTMENT
COMPANY LTD & ANOR (2009) 18 NWLR (pt. 1172)
62 SC; DAKOLO & ORS v. REWANE-DAKOLO & ORS
(2011) LPELR - 915 (SC); OLEKSANDR & ORS v.
LONESTAR DRILLING COMPANY LIMITED & ANOR
(2015) LPELR - 24614 (SC).
Here, a careful reading of the sole ground of appeal
(including the particulars) in the First Notice of Appeal
indicates that the complaint of the Appellant is predicated
on the jurisdiction of the Court to determine the question
relating to "transmission of shares" provided under Section
155 of the Companies and Allied Matters Act (CAMA). It is
of no moment that the Appellant used the phrase "right to
succession" in the ground of appeal, in so far as it is
evident that the complaint of the Appellant is clear and
unequivocal with respect to the fact that he is dissatisfied
with the decision of the lower Court that it had jurisdiction
over the subject matter of the case before it, which bothers
on Section 155 of CAMA on transmission of shares.
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842(
CA)
The other issue is hinged on the grounds of appeal
contained in the second Notice of Appeal dated 15th May,
2012. Though the 1st to 18th Respondents contend that the
issue has no direct relevance to any particular ground of
appeal, from a careful perusal of the grounds of appeal
including their particulars as well as the Ruling of the
lower Court at stake, I see no merit in their objection. It is
my humble view that the second issue is hinged on the
three grounds of appeal contained in the Notice of Appeal
dated 15th May, 2012 and by this issue, the Appellant
seeks the intervention of this Court in reviewing the
decision of the lower Court appointing interim
administration, which according to the Appellant, was
based on purported misdirection of the Court. The second
issue is a notable one which I feel should be considered by
this Court, as it is certainly not the complaint of the 1st to
18th Respondents that the Appellant cannot formulate one
issue from the three grounds of appeal. Contrariwise, the
approach adopted by the Appellant accords with the
position of law that a single issue can be formulated from
more than one grounds of appeal and not vice versa. See
OGBE v. ASADE [2009] 18 NWLR (PT. 1172) 106;
ARUM v. NWOBODO (2013) LPELR - 20390 (SC). In
this respect, the objection on this ground is in my humble
view, unmeritorious.
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8) LP
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842(
CA)
The last objection is that the grounds of appeal are generic,
vague, argumentative and do not challenge the ratio for the
Rulings of the Trial Court. Indeed, a ground of appeal is
said to be vague, generic and argumentative if it is couched
in such a manner that the Respondent and the Court are
left to speculate as to the Appellant's complaint.
See OSASONA v. AJAYI & ORS (2004) LPELR - 2790
(SC). Looking at the grounds of appeal in the instant
appeal, I do not agree with the 1st to 18th, Respondents
that they are infested with the virus of vagueness, generic,
argumentative or that they do not relate to the grounds of
appeal. I am therefore left with no option than to reject the
1st to 18th Respondent's argument in this regard.
In all, the preliminary objection has no merit in its entirety
and it is hereby dismissed. I shall now face the resolution of
the appeal on the merit.
ISSUE ONE
On the first issue, learned counsel for the Appellant
referred to AKINFOLARIN v. AKINNOLA (1994) 3
NWLR
17
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8) LP
ELR-44
842(
CA)
(PT. 335) 659 to submit that it is the claims of the
claimants that determines the jurisdiction of the Court.
Counsel argued that the principal claim of the 1st - 18th
Respondents' suit is for declaration that they are the
beneficial owners of all the assets forming part of the
Estate of the deceased and that if the assets comprise of
shares in a private company, then only the Federal High
Court can exercise jurisdiction over the suit. Counsel
referred to Section 251(1) (e) of 1999 Constitution (as
amended); Sections 155 and 156 of the Companies and
Allied Matters; the decisions in TANAREWA (NIG) LTD v.
PLASTIFARM [2003] 14 NWLR (PT. 840) 355 at 325;
AKINBOBOLA & SONS v. PLISSON FISKO LTD [1986]
4 NWLR (pt. 37) 621 at 629, para A; ABDULRAHMAN
v. OYAMENDAN (2005) 16 NWLR (PT. 951) 305 and
FAGBOLA v. KCCIMA [2006] 6 NWLR (PT. 977) 156
433 to submit that the Federal High Court has exclusive
jurisdiction in causes and matters in relation to the
succession to shares and shareholdings in companies.
Learned counsel for the Appellant referred to paragraphs
37 (e) (iv), 23 (j) and (k), and 24 of the Statement of Claim
and contended that the main issue in the 1st - 18th
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842(
CA)
Respondents Claim relates to the rights of succession to the
shareholding of the deceased in J. A. Odutola Property
Development and Investment company and the alleged
conduct of the Appellant and the 19th Respondent in
relation to the said shareholding. counsel referred to
TUKUR v. GOVERNMENT OF GONGOLA STATE
[1989] 4 NWLR (pt. 117) 517 at 564 to submit that the
ancillary claims must flow from the principal claim and that
since the principal claim in the suit relates to the
deceased's shares which can only be entertained at the
Federal High Court, the ancillary claims should also be
heard at the Federal High Court.
Learned counsel for the 1st - 18th Respondents on the first
issue submitted that the lower Court was right to have held
that it has subject matter jurisdiction to determine issues of
the administration and succession to all assets forming part
of an Estate including intangible personal properties such
as shares. Counsel referred to WESTERN STEELS
WORKS LIMITED v. IRON STEEL WORKERS UNION
OF NIG. [1987] 1 NSCC 133 at 140; ADEYEMI & ORS
V. OPEYORI (1976) 1 FWLR 149 and ABDULHAMID v.
AKAR (2006) 13 NWLR (PT 996) pg. 14, paras. E - G
to
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842(
CA)
submit that in determining the subject matter jurisdiction,
a Court is to examine the nature of the reliefs sought in the
Statement of Claim. Counsel urged this Court to examine
the reliefs sought in the Statement of Claim and Writ of
Summons and that it would find that reliefs are squarely for
determination of the administration, devolution,
management, dissipation and protection of the Estate of the
deceased.
Learned counsel for the 1st - 18th Respondents referred to
Section 272(1) of 1999 Constitution (as amended); Section
11 of the High Court Law of Lagos State, Cap H3, 2003;
and the decision in IGUNBOR v. AFOLABI & ANOR
(2001) 5 SC (pt. 1) 105 to argue that the reliefs in the 1st
- 18th Respondents' Claim are within the enabling frame
work of the Administration of Estate Law of Lagos State
and therefore the Lagos State High Court is vested with
jurisdiction to entertain the claims. Counsel contended that
the reliefs do not relate are not connected to the operations
of the Companies and Allied Matters Act and that there is a
distinction between succession to estate and transmission
of shares. Counsel submitted that the operation of the
CAMA only regulates the internal
20
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8) LP
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842(
CA)
procedure of the company for the transmission of shares
which only arises after the High Court has determined the
actual beneficial owners or the legal/personal
representatives of the deceased and granted letters of
Administration.
Learned counsel referred to Sections 148 and 155 of the
CAMA and submitted that the issue of transmission of
shares has not risen in the instant case and that the issues
which form the basis of this action are not the concern of
CAMA at all. Counsel submitted that the High Court is not
precluded from jurisdiction to determine succession to
Estate because shares are part of the assets comprised in
the Estate. Learned counsel relied on Section 115 of CAMA;
Halsbury Law of England, 4th Ed. 2003, vol. 6, pg. 3; HER
MAJESTY'S COMMISSIONER OF INLAND REVENUE v.
LAIRD GROUP PLC [2003] UKHL, 54, paras 35 - 36;
HAWLEY v. CITY OF MALDEN 232 U.S. 1 [1914]; THE
DEPOSIT AND TRUST CO. OF BALTIMORE v.
COMMONWEALTH OF VIRGINIA 280 U.S. 83 (1929)
para 93 and HINDUSTAN LEVER EMPLOYEES UNION
v. HINDUSTAN LEVER LTD. AIR (1995) SC 470 to
contend that shares are recognized as intangible and
transferable personal properties and that shares of a
member in a
21
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842(
CA)
company is a moveable property which is transferable in
the manner provided in the Articles of the company.
Learned counsel further submitted on this issue that for the
purpose of inheritance and succession shares would not be
considered any differently from the other assets of the
deceased by the State High Court. Counsel argued that the
Appellant has failed to establish that the Federal High
Court has jurisdiction to determine succession to the Estate
of a deceased because shares are comprised in the Estate.
Learned counsel argued that the authorities relied on in the
Appellant's brief are inapplicable and that all the reliefs in
the instant suit can be determined without any recourse to
CAMA. Counsel referred to ADEGOKE MOTORS v.
ADESANYA [1989] 3 NWLR (pt. 109) 250 at 275 to
urge this Court to discountenance the authorities relied on
by the Appellant sand to dismiss this appeal.
Appellant's Counsel in Reply contended that the
appointment of the Interim Administrators should have
been refused by the trial Court in that the trial Court had
found that the Estate of the deceased is in disarray even if
not being wasted. Learned counsel urged this Court to
allow this Appeal.
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8) LP
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842(
CA)
RESOLUTION
Jurisdiction no doubt is the bedrock of every form of
adjudication, without which an adjudicatory body cannot
survive. It is so fundamental in the sense that it touches on
the competence of a Court or Tribunal to adjudicate over a
matter brought before it by parties. The authors of the
Halsbury's Laws of England, Volume 10, 4th Edition, at
paragraph 715, page 323 stated correctly that jurisdiction
is "a very fundamental and priceless commodity in the
judicial process. It is the fulcrum, centre piece, or the main
pillar upon which the validity of any decision of any Court
stands and around which other issues relate. It cannot be
assumed or implied, it cannot also be conferred by consent
or acquiescence of parties." See OFIA v. EJEM (2006) 11
NWLR (pt. 992) 652 SC; OKONKWO v. NGIGE
(2007)12 NWLR (PT 1047) 191 SC; OBASANJO v.
YUSUF (2004) 9 NWLR (pt. 877) 144 SC.
I must say that the law is well settled that it is the nature of
a plaintiff's claim that determines whether a Court is vest
with the jurisdiction to entertain a suit. See GODWIN &
ORS V. OKWEY & ORS [2010] 16 NWLR (pt. 1219)
309 SC;
23
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8) LP
ELR-44
842(
CA)
OLOFU v. ITODO [2010] 18 NWLR (PT. 1225) 545 SC;
OKOROCHA v. PDP & ORS (2014) LPELR - 22058
(SC). In ONWUDIWE v. FRN [2006] to NWLR (pt. 988)
382; (2006) LPELR 2715 (SC) 48, paras G-C, the
Supreme Court, per TOBI, JSC held:
"In the determination of the jurisdiction of a Court,
the enabling law vesting jurisdiction has to be taken
in the light of the relief or relief(s) sought. The
moment the relief sought comes within the
jurisdiction of the Court as adumbrated by the facts,
the Court must assume jurisdiction as it has
jurisdiction to do so. Of course, the reverse position is
also correct and it is that the moment the relief
sought does not come within the jurisdiction of the
Court, as adumbrated by the facts, the Court must
reject jurisdiction as it has no jurisdiction in the
matter. To that extent, jurisdiction looks almost like
an exact formula in calculus, although it is devoid of
actual figures and numbers."
The Appellant's counsel had in his Brief of Argument
attempted to guide the Court into the realm of Section
251(1)(e) of the Constitution and its import towards
producing a dichotomizing effect in the main complaint
24
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8) LP
ELR-44
842(
CA)
of the 1st to 18th Respondents and the ancillary complaint.
As a matter of fact, it is the submission of counsel that the
main complaint/principal claim of the 1st to 18th
Respondents is about the shareholding of the deceased in
J.A. Odutola Property and Investment Company Limited. On
the other side, the 1st to 18th Respondents' counsel, noting
that the Appellant misapplied the case law cited in his
brief, submitted that shares in an estate do not divest the
High Court of jurisdiction and that the reliefs sought by
them do not relate to Companies and Allied Matters Act
(CAMA) or transmission of shares.
Now, Section 251(1)(e) of the Constitution leaves no one in
doubt that the Federal High Court has exclusive
jurisdiction over civil causes and matters "arising from the
operation of the Companies and Allied Matters Act or any
other enactment, replacing that Act or regulating the
operation of companies incorporated under the Companies
and Allied Matters Act." Therefore, unless the claim before
the Court arose out of the operation of the CAMA or
regulation of the operation of companies there under, the
Federal High Court does not have any exclusive
jurisdiction.
25
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842(
CA)
In the instant case, looking at the averments pleaded as
well as the reliefs sought in the statement of claim found at
pages 4 to 24 of Volume 1 of the records of appeal, I have
no hesitation in reaching the conclusion that the subject
matter of the suit bothers on administration of estate,
which comes within the jurisdiction of the lower Court. For
clarity, the reliefs sought are reproduced hereunder:
A. A DECLARATION that the Claimants are beneficial
owners of all assets forming part of the Estate of Late
Alhaji Akintola Odutola and may participate in the
administration, management and distribution of the Estate.
B. A DECLARATION that the Claimants are entitled to
nominate 3 (three) persons for the grant of Letters of
Administration in respect of the Estate of the deceased.
C. A DECLARATION that the 1st and 2nd Defendants are
constructive trustees and or Executors de son tort with
respect to the Estate of the deceased.
D. AN ORDER disgorging/restituting all profits or gains
accrued by the 1st and 2nd Defendants over assets of the
Estate of the deceased.
E. AN ORDER of perpetual injunction restraining the
Defendants either by themselves, privies, agents
26
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8) LP
ELR-44
842(
CA)
or representatives however described from interfering or
intermeddling with any asset, including real properties or
anything or chose in action, comprised in the Estate of the
deceased.
F. AN ORDER restraining the 3rd Defendant from granting
any Letters of Administration to the 1st & 2nd Defendants
without the written consent of a majority of beneficiaries
under the Estate.
G. AN ORDER restraining the 1st & 2nd Defendants
obtaining any Letters of Administration, or instruments
howsoever described for the administration or dealing in
the Estate of Alhaji Jimoh Odutola.
H. The sum of N150,000,000.00 (One Hundred and Fifty
Million Naira) as exemplary damages for the 1st & 2nd
Defendants, breach of trust and reprehensible conduct;
I. Interest on the sum awarded under Relief G above at 21%
per annum until final liquidation of the judgment sum.
J. The cost of this action.
K. Pursuant to Order 4 Rule 5 of the High Court of Lagos
State (Civil Procedure) Rules 2004, the claimants shall
require an account of all assets in the Estate of the
deceased within the control of the 1st and 2nd Defendants."
27
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8) LP
ELR-44
842(
CA)
The above is by no stretch matters which fall within the
adjudicatory competence of the Federal High Court.
Although it is conceded that part of the facts adumbrated
by the Plaintiffs in their Statement of Claim relates to
shares, this fact does not divest the High Court of
jurisdiction, because shares are moveable property which is
subject to the laws relating to administration of estate. As
the 1st to 18th Respondents' counsel rightly pointed out,
issues of administration of estate or succession to estate
(which shares may form part of) can be decided without
recourse to the Companies and Allied Matters Act. A
fortiori, the provisions of Section 155 and 156 of CAMA
merely deals with transmission of shares legal
representatives of a deceased. The provision has nothing to
do with the procedure relating to a determination of the
person ent i t led to be appo inted as persona l
representative(s) of an estate. Therefore, until the lower
Court determine the subject matter of the present case
relating to the beneficial owners of all assets forming part
of the Estate of the Late Alhaji Jimoh Akintola Odutola, the
cause of action and/or right of action relating to
transmission of shares pursuant to the CAMA cannot arise.
28
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8) LP
ELR-44
842(
CA)
For the avoidance of doubt, the claim as endorsed on the
Writ of Summons and Statement of Claim cannot be
conceivably said to be that which arise out of operation of
CAMA. It is not. All that the plaintiffs are claiming is with
respect to their entitlement to inter alia participate in the
administration, management and distribution of the Estate
of the deceased pursuant to Sect ion 49 of the
Administration of Estates Law of Lagos State.
It is crystal clear that the State High Court has the
jurisdiction in the circumstance. The Federal High Court
cannot, as urged by the Appellant's counsel make
declaratory and injunctive orders regarding the reliefs
sought by the Plaintiffs as they do not fall within the
adjudicatory competence of the Court vide Section 251 of
the 1999 Constitution (as amended). I believe we do not
need to enlist the services of a soothsayer to see and tell us
this. I have no hesitation in agreeing with the Learned
Counsel for the 1st to 18th Respondents that the lower
Court has the jurisdiction to hear and determine the
present claim. This issue is resolved against the Appellant.
29
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8) LP
ELR-44
842(
CA)
ISSUE TWO
On the second issue, learned counsel referred to
LADEJOBI v. ODUTOLA HOLDINGS LTD (2002) 3
NWLR (pt. 753) 121 to submit that the Court would
appoint Administrators pendent lite. Counsel referred to
Will iams, Mortimer and Sunnucks - Executors,
Administrators and Probate, 19th Ed. pg. 366, paras. 24 -
49; Words and Phrases Legally Defined, 2nd Ed., Vol. S - Z5
and Jowitts Dictionary of English Law, 2nd Ed., vol. 2, pg.
188 to submit that it cannot be said that the affairs of J. A.
Odutola Property Development and Investment Company
was being managed in a way that is tantamount to waste of
the Estate of the deceased. Learned counsel referred to
Paragraphs 14 - 23 of the Affidavit at pages 111 to 112 of
the Records of Appeal to submit that the main grouse of the
1st - 18th Respondents relates to the dilution of shares and
that the company is distinct from its shareholders.
Learned counsel argued that assuming the management of
the J. A. Odutola Property Development and Investment
company by the Appellant and 19th Respondent amounted
to a waste of the Estate of the deceased, the lower Court
would still have no jurisdiction to consider
30
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8) LP
ELR-44
842(
CA)
how the affairs of the company should be managed
particularly as it relates to Shares and Shareholding.
Counsel submitted that the learned trial Judge was
therefore wrong to have made an order appointing Interim
Administrators since there was no wastage of the Estate of
the deceased. Learned counsel referred to the finding of
the lower Court at page 833 of the Records of Appeal and
submitted that disarray is not conterminous with waste and
that not having found clearly that the Estate of the
deceased is being wasted, the application for the
appointment of Interim Administrators should have been
refused. Learned counsel urged this Court to set aside the
appointment of the Interim Administrators and all orders
made in that regard by the lower Court.
On the second issue, learned counsel for the 1st - 18th
Respondents referred to Section 10 and 27 of the
Administration of Estates Law and Order 55 Rule 2 of the
High Court (Civil Procedure) Rules 2004 to submit that the
lower Court has a specific duty to prevent or avoid the
waste of the deceased's Estate. Counsel submitted that the
Court must not wait till the Estate is in waste before
31
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8) LP
ELR-44
842(
CA)
exercising its discretion to protect the estate. Learned
counsel referred to LADEJOBI v. ODUTOLA HOLDINGS
LTD (Supra) at 165; OKAFOR v. ONEDIBE (2003) 9
NWLR (pt. 835) 413, para C; OMEWOKAE v.
OMEWOKAE (2007) ALL FWLR (pt. 356) 788 at 796 -
797, paras G - D (CA); CHUKWUMA v. CHUKWUMA
[1996] 1 NWLR (pt. 426) 543 at 554 - 189, paras F - B
to submit that the factor which makes it expedient for the
Court to appoint Interim Administrators is the prevention of
waste.
Learned counsel submitted that the Court does not have to
wait till there had been actual or real waste of the estate as
argued by the Appellant. Counsel argued that the Estate of
the deceased was already threatened by acts of trespass
and may become subject of waste if no urgent action is
taken to preserve the Estate. Counsel referred to
paragraph 19 of the Appellant's Counter-Affidavit at pages
191 - 192 of the Records of Appeal and the finding of the
lower Court at page 883 of the Record of Appeal to submit
that the lower Court appointed Interim Administrators
based on the evidence before it in order to prevent the
waste of the Estate of the deceased. Learned counsel
submitted that the Appellant has failed to show how the
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Appointment of Interim Administrators in order to prevent
the waste of the deceased's Estate has occasioned a
miscarriage of justice. Counsel urged thus Court to dismiss
this appeal with substantial cost.
In the Reply Brief, learned counsel for the Appellant
reiterated that the lower Court ought not to have assumed
jurisdiction over this suit. Learned counsel referred to
FAGBOLA v. KCCIMA (Supra) to submit that the right to
succession to shares is governed by the provisions of CAMA
and that the Federal High Court has exclusive jurisdiction
over the present action since the principal claims relate to
the deceased's shareholding in J. A. Odutola Property
Development and Investment Company.
RESOLUTION
The resolution of this issue appears to me to be straight-
forward, and ought not to have generated any controversy.
Section 27 of the Administration of Estates Law, Chapter
A3 of Lagos State is unambiguous and it reads:
(1) Where any legal proceedings touching the validity of the
will of a deceased person, or for obtaining, recalling or
revoking any grant, are pending, the Court may grant
administration of the estate of the deceased
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to an administrator, who shall have all the rights and
powers of a general administrator, other than the right of
distributing the residue of the estate, and every such
administrator shall be subject to the immediate control of
the Court and act under its direction.
The above provision leaves nobody in doubt that the lower
Court is conferred with the discretion to grant interim
administration of the estate to an administrator who shall
be under the control and direction of the Court. From the
provision of Section 27 supra, and contrary to the
erroneous contention of the Appellant's counsel, I see no
requirement that the estate of a deceased must have been
in waste before the Court can appoint interim
Administrator in respect therefore. In ANYAH v. AFRICAN
NEWSPAPERS OF NIGERIA LTD (1992) 7 SCNJ 47, the
Court held inter alia that the moment hard and fast rules as
to the exercise of judicial discretion by a Court is laid down,
the discretion is fettered. As a matter of fact, the
appointment of interim Administrator is made by the Court
to forestall potential wastage of the estate, it is made in
anticipation of a futuristic event, which in this case, the
wastage of the estate.
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The Appellant has not shown to this Court how the lower
Court wrongly exercised i ts d iscret ion in the
circumstances. It is well established in a long line of cases
that an Appellate Court will not overturn the exercise of the
discretion of a lower Court, unless such exercise is
perverse. See the resounding admonition of WALI, JSC in
SHUGABA v. UNION BANK OF NIGERIA PLC (1999)
11 NWLR (pt. 627) 459; (1999) LPELR - 3068 (SC) 16,
paras G - E that:
"The Court guards its powers and image jealously. It
should therefore be extremely wary in the manner it
exposes such image, the diminution of its powers and
the enforcement of its authority to public ridicule. In
my respectful opinion as no Court has an inherent
jurisdiction to set aside the exercise of discretion of
another except where such exercise has been
capricious, or based on extraneous factors, and not
following the accepted principles so will the valid
exercise of discretion ... not be interfered with..."
See also NGWU & ORS v. ONUIGBO & ORS [1999] to
NWLR (PT. 636) 512; NDAYAKO v. DANTORO (2004)
13 NWLR (pt. 889) 187; OSHE, SAN v. OKIN
BISCUITS LIMITED & ANOR [2010] 11 NWLR (PT.
1206)
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482. I must say that this Court will not yield to the plea of
the Appellant that the exercise of discretion by the trial
Court, which was rightly done, should be overturned. In
this respect, this issue is also resolved against the
Appellant.
In the result, the Appellant's appeal lacks merit and is
hereby dismissed in its entirety. The Rulings of the High
Court of Lagos State, coram OLUYEMI, J. (Mrs.) delivered
on 2nd May, 2012 and 7th May, 2012 are hereby affirmed.
Costs of N200,000.00 awarded in favour of the 1st to 18th
Respondents.
TIJJANI ABUBAKAR, J.C.A.: I read before now the
leading Judgment just rendered by my Learned Brother
OBASEKI-ADEJUMO, JCA. I am in agreement with the
reasoning and conclusion and adopt the Judgment as my
own.
I am also in agreement that discretionary power of a Court
should always be exercised judicially and judiciously.
Acting judicially entails consideration of the interest of both
parties in litigation in arriving at a decision, while acting
judiciously entails display of sound reasoning in arriving at
a decision marked by wisdom and common sense. See:
NDIC vs. GLOBUS ENT. LTD (2011) 3 NWLR (pt.
1233) 74 at 89.
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This Court will refrain from interfering with exercise of
discretion unless it is shown that the exercise of discretion
by the lower Court was prompted by extraneous
motivations, or consideration of factors that make such
exercise of discretion inappropriate. I totally agree that in
the instant appeal, the Appellant failed to establish a
genuine case of wrong exercise of discretion by the lower
Court.
Appellants appeal is therefore devoid of merit and I join in
dismissing it.
I also abide by all consequential orders including order on
costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned
brother, Abimbola Osarugue Obaseki-Adejumo, JCA,
afforded me the opportunity of reading the draft of the
judgment which has just been delivered.
In the leading judgment, the preliminary objection raised
by the 1st-18th Respondents was insightfully considered
and resolved to the conclusive effect that there is no merit
in the preliminary objection.
I have duly comprehended the Records of Appeal and the
briefs of argument filed and exchanged.
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It is rudimentary law that it is the reliefs claimed
that determine the jurisdiction of the Court: ADEYEMI vs.
OPEYORI (1976) 1 FWLR 149 and MUSACONI LTD vs.
ASPINALL (2013) LPELR (20745) 1 at 32.
It is beyond confutation that the reliefs claimed by the
1st-18th Respondents cannot be pitch forked into the
enumerated jurisdiction of the Federal High Court. See
OLADIPO vs. NIGERIA CUSTOMS SERVICE BOARD
(2009) LPELR (8278) 1 at 15. Accordingly, the High
Court of Lagos State is imbued with the requisite
jurisdiction to entertain the action.
With respect to the exercise of discretion by the lower
Court to appoint interim administrators for the Estate, it is
a judicial and judicious exercise of discretion. Where
discretion has been properly exercised, an appellate Court
will not interfere. See NDAYAKO vs. DANTORO (2004)
13 NWLR (pt. 889) 187.
It is for the foregoing reasons and the more elaborate
reasons articulated in the leading judgment that I am
allegiant to the conclusion that the appeal is devoid of
merit. I equally join in dismissing the appeal, I abide by the
consequential orders made in the leading judgment.
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Appearances:
TITILOLA AKINLAWON, SAN with him, ALBERTIMOLODE and AYOMIDE OGUNSANWO ForAppellant(s)
V.O.M. ALONGE with him, AKINTAYO IWITADEfor 1st - 18th RESPONDENTS.
PROF. KASUMU, SAN with him, MORENIKE OJO(MRS. ) f o r 19TH RESPONDENT. ForRespondent(s)
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