IN THE SUPREME COURT OF NIGERIA
On Friday, the 27th day of April, 1979
Before Their Lordships
GEORGE SODEINDE SOWEMIMO….. Justice, Supreme Court
CHUKWUNWEIKE IDIGBE….. Justice, Supreme Court
ANDREWS OTUTU OBASEKI….. Justice, Supreme Court
KAYODE ESO….. Justice, Supreme Court
ANTHONY NNAEMEZIE ANIAGOLU….. Justice, Supreme Court
1. ADEKUNLE ODUNSI
2. MRS. ADEYOSOLA OSHINOWO (NEE ODUNSI)
3. ADENIKE ODUNSI
The appeal allowed.
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.
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.
In the circumstance therefore, the appeal will be allowed. The judgment of the Federal Court of Appeal in FCA/L/88 178 dated the 22nd of February, 1979 is hereby set aside.
Mr A. O. Sogbesan who appeared for the appellants along with Messrs. C. O. Adesanya and A. Adesanya and Mr A. Isikalu who appeared for the respondent, consented to the following order being made:
(1) That the executors named in the Will of Adeola Odunsi (deceased) Viz:
(a) Prof. Adewale Omololu
(b) J. O. Ojosipe
(c) Dr Yetunde Odunsi
(d) Mr Ademola Odunsi
should now proceed to obtain the probate of the Will as per the judgment of the Federal Court of Appeal in FCA/L/10/78 delivered on the 19th of March 1979.
(2) That Mr Adekunle Odunsi, one of the children of the deceased, though not named in the Will, be and is hereby included in the Will as a beneficiary of the estate of Adeola Odunsi (deceased) sharing equally with all the other children named in the Will.
(3) That all actions and applicants filed by all the parties before this judgment are deemed to have been withdrawn and hereby declared as having abated.
(4) That statements of account of the estate as hitherto managed by Ademola Odunsi be produced, duly certified, examined and if satisfied, signed by all the other executors.
(5) That the consent judgment shall be regarded as binding on all the parties i.e. both as executors and beneficiaries of the Will and Adeola Odunsi (deceased). And this shall be the judgment of this Court.
A.O. Sogbesan with him Messrs. C.O. Adesanya and A. Adesanya…..For Appellant
A. Isikalu…..For Respondent