Alhaji Rufai Agbaje & Ors. V. Mrs. W. A. Adelekan & Ors (1990)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

This is an interlocutory appeal from the decision of the Court of Appeal, Ibadan. The issue for determination is whether the Court of Appeal was right in refusing to grant the appellants’ application for stay of execution pending the determination of the appeal the appellants instituted in the Court of Appeal.

The 1st to 4th respondents were the plaintiffs in the High Court of Oyo State where they took out a writ of summons in 1987 against the appellants as defendants claiming as follows:-

“(a) Partition of the landed property of the late Salami Agbaje inherited by the plaintiffs and the defendants as family property on the death of the said Salami Agbaje sometime in 1953.

(b) Account by the 1st, 2nd 3rd and 4th defendants of all the moneys collected by the said defendants in respect of the said landed property of Salami Agbaje.

(c) Injunction restraining the 1st, 2nd, 3rd and 4th defendants from further dealing with the said landed property of Salami Agbaje.”

Before the action was heard by the High Court the plaintiffs filed a motion on notice in which they prayed for an

“Order of the Honourable Court granting an injunction restraining the 1st, 2nd, 3rd and 4th defendants/respondents and/or any other member of the Agbaje family from collecting rents on the property, subject matter of this suit or otherwise dealing with the said property and appointing a receiver or receivers to administer the said estate and to collect rents on the said property pending the final determination of this suit and for such further or other orders as the Honourable Court may deem fit to make in the circumstances.”

In opposing the application the defendants filed counter affidavit and a further counter affidavit. It transpired that the objection was based on the fact that after the death of Salami Agbaje, 1st appellant together with others, who were deceased at the time of the application to the High Court, were granted Letter of Administration by Oke-Are Customary Court, Ibadan, to administer the estate of late Salami Agbaje. That 1st appellant had since 1953 administered the estate of Salami Agbaje and had rendered account on the immoveable property of Salami Agbaje which had been in his possession. That with the order of Oke-Are Customary Court appointing him as one of the administrators of the estate of Salami Agbaje still in force, it would be wrong and improper for the High Court to appoint a receiver to manage the estate as applied by the plaintiffs.

At the hearing of the application counsel for the defendants submitted that since the Customary Court had granted Letters of Administration on the estate in dispute to the defendants, the jurisdiction of the High Court to entertain the substantive action and indeed the application by the plaintiffs had been ousted by virtue of the provisions of section 10 subsection (1) of the High Court Law, Cap.46 of the Laws of Oyo State, 1978.

In his ruling, learned trial Judge, Apara, J., considered the submissions made on behalf of the plaintiffs and the defendants and adverted to the provisions of section 236 subsection (1) of the constitution of the Federation of Nigeria, 1979, before holding that the provisions of section 10 subsection (1) of the High Court Law had been superseded by the provisions of section 236 subsection (1) of the 1979 constitution since the constitution is supreme to all other legislations. Learned trial Judge then held as follows –

“On the issue of jurisdiction, I hold that the jurisdiction of this court is not ousted in this matter.

On the substantive (sic) application itself, on the papers before me, the plaintiffs have established a prima facie case of the existence of their right in the subject matter of this litigation, and that these rights were being allegedly trampled upon……..I will therefore grant the interim injunction sought by the plaintiffs under order 20 rule 9 of the rules.

Furthermore, I am granting this injunction because it is merely an interim measure to preserve the res of the subject matter pending the final determination of the substantive action. When this case is finally decided, the successful party, if necessary, will again assume control of the property in question. I hereby appoint the administrator and public trustee, in the Ministry of Justice, to take over the management of the property enumerated hereunder from the 1st, 2nd 3rd and 4th defendants/respondents between today and the 18th day of January, 1988 and thereafter to administer the property pending the final determination of this suit. The 1st, 2nd, 3rd and 4th defendants/respondents and/or any other members of Agbaje family are hereby restrained from collecting rents or otherwise dealing with the said property until the final determination of this suit. … ” (Italics mine for emphasis).