IN THE SUPREME COURT OF NIGERIA

On Friday, the 27th day of April 1979

SC.7/1979

Between

ADEKUNLE ODUNSI & ORS. ................  APPELLANT

And

ADEMOLA ODUNSI .............  RESPONDENT

This matter came before the Supreme Court as an application for leave to appeal under the Constitution (Amendment No.2) Decree No. 42 of 1976, Section 117(4). After hearing counsels on both sides the Supreme Court decided to grant the application for leave to appeal and treated the matter as an appeal against the ruling of the Federal Court of Appeal granting (i) a stay of execution and (ii) transferring further hearing in the matter to another judge of the High Court.

At the time when the applications were filed in the High Court of Lagos State and also when they were being dealt with in the Federal Court of Appeal there had been an earlier judgment of the High Court setting aside the will of the late Adeola Odunsi and therefore creating an intestacy. Although an appeal was pending against that judgment, it was on the basis that the deceased died intestate that the instant action was originally filed in the High Court and later came up to the Federal Court of Appeal.

HELD:

(1)     It does not appear that the High Court which dealt with the interlocutory application or the Court of Appeal adverted to the provision of Sections 10 and 27 of the Administration of Estate Law (Cap.2) Laws of Lagos State of Nigeria 1973 both Sections which respectively provide that where a person dies intestate and administration is granted in respect of his real estate, that estate shall be deemed to have been vested from the date of his death until administration is granted in the chief justice; and where legal proceedings are pending as regards the validity of a will etc the court may appoint an administrator who shall be subject to the control of the court.

(2)     On proper consideration of the same sections, the Federal Court of Appeal should have concluded that this matter was not properly brought before the High Court.

(3)     If the law enjoys a duty to be performed by an officer and that officer neglects to carry out such a duty, then an aggrieved person has a right to seek for an order of mandamus to compel that officer to carry out such duty. Thus there is no doubt that the court of Appeal was wrong to have abated the order granting the Chief Registrar, who incidently is the Probate Registrar of the High Court of Lagos State, powers to administer the estate pending the final determination of the action.

          (4)    With regard to the ground on which the Federal Court of Appeal sought to make an order of transfer, the court should have been very wary in making such an order on the mere allegation of  bias or likelihood of bias which is not supported in any of the documentary evidence presented before the court and without giving the judge concerned, opportunity of being heard.

(5)     It is not enough for counsel to allege that his client entertains some fears of not getting justice but such allegation must be one of substance. The Federal Court of Appeal has misconstrued the principles of law which are applicable to a case where an aggrieved person alleges bias or likelihood of bias.

Appeal allowed.

A.O. Sogbesan with him Messrs C.O. Adesanya and A. Adesanya for the applicants.

A. Isikalu for the Respondent.

Statutes referred to:

(1)     Administration of Estates Law (Cap.2) the Laws of Lagos State 1973.

(2)     Constution (amendment) (No.2) Decree No. 42 of 1976.

SOWEMIMO, J.S.C.: -This matter came before the Court as an application for leave to appeal under the Constitution (Amendment) (No.2) Decree No. 42 of 1976, section 117(4). Mr Sogbesan, learned Counsel for the applicants, drew our attention to the grounds on which the application was based. After listening to Mr Isikalu, counsel for the respondent, we decided to grant the application for leave to appeal and treated the matter as an appeal against that part of the ruling of the Federal Court of Appeal in ECA/L/88/78 delivered on the 22nd of February, 1979:

(i) granting a stay of execution; and

(ii) transferring further hearing in the matter to another Judge of the High Court.

At the time when the applications were filed in the High Court of Lagos State and also when they were being dealt with in the Federal Court of Appeal there had been an earlier judgment of the High Court (Savage, J.) setting aside the Will of the late Adeola Odunsi and therefore creating an intestacy. Although an appeal was pending against that judgment it was on the basis that the deceased died instate that the instant action was originally filed in the High Court and later came on to the Federal Court of Appeal. It is necessary that this should be understood in view of our reference later to sections 10 and 27 of the Administration of Estate Law (Cap.2) the Laws of the Lagos State, 1973.

The two main points on which submissions were made were that:

(a)     the Court of Appeal was wrong to abate the Order appointing the Chief Registrar to administer the estate of Adeola Odunsi (deceased) pending the hearing of the substantive suit; and

(b)     transferring the hearing of the substantive action itself, which was then pending before Gomez, J., to another Judge on the ground of bias or likelihood of bias.

It does not appear to us that the High Court which dealt with the interlocutory application or the Court of Appeal adverted to the provision of Sections 10 and 27 of the Administration of Estate Law (Cap.2) Laws of Lagos State of Nigeria 1973 which read:-

"(10) Where a person dies intestate and administration is granted under this Law in respect of his real and personal estate, that estate shall be deemed to have been vested, from the date of his death until administration is granted, in the Chief in the same manner and to the same extent as it vests in the probate Judge of Her Majesty's High Court of Justice in England." (Italics ours).

(2) The Court may, out of the estate of the deceased, assign to an administrator appointed under this section such reasonable remuneration as the court think fit."

We are of the candid view that the action would have taken a different course were attention of the courts drawn to these sections of the Law. Secondly, we are also of the view that the Federal Court of Appeal should, on proper consideration of the same sections, have concluded that this matter was not properly brought before the High Court. If the law enjoins a duty to be performed by an officer and that officer neglects to carry out such a duty, then an aggrieved person has a right to seek for an order of mandamus to compel that officer to carry out such duty.

In view of our observation therefore, we are in no doubt that the Court of Appeal was wrong to have abated the order granting the Chief Registrar, who incidentally is the Probate Registrar of the High Court of Lagos State, powers to administer the estate pending the final determination of the action.

With regard to the ground on which the Federal Court of Appeal sought to make an order of transfer, we think the court should have been very wary of making such an order on the mere allegation of bias or likelihood of bias, which is not supported in any of the documentary evidence presented before that court and without giving the Judge concerned opportunity of being heard. It is not enough for counsel to allege that his client entertains some hidden fears of not getting justice but such allegation must be one of substance. In our view, the Federal Court of Appeal has misconstrued the principles of law which are applicable to a case where an aggrieved person alleges bias or likelihood of bias.