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

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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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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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"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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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

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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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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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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

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(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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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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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

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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

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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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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;

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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

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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.

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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

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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."

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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.

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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.

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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

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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

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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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