Adekunle Odunsi & Ors V. Ademola Odunsi (1979)

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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 FCA/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 intestate 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 of Nigeria, 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, 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.”

…..

(27)(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 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.

(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.