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).

Aggrieved by this ruling, the defendants filed an appeal in the Court of Appeal against it and at the same time applied to the High Court for inter alia an order staying the order appointing the Administrator-General and Public Trustee to act as receiver. The application was refused.

The defendants then made further application to the Court of Appeal for an order to stay the execution of the ruling given by Apara, J. pending the determination of the appeal which they filed to that court. Their application was brought pursuant to section 18 of the Federal Court of Appeal Act, 1976 and order 3 rule 3 of the Federal Court of Appeal Rules, 1981. The 1st defendant, Alhaji Rufai Agbaje, swore to an affidavit, a further affidavit and a further and better affidavit in support of the application. The 3rd plaintiff, Mr. Lame Agbaje, swore in reply to a counter affidavit and a further counter affidavit. All the affidavits sworn to by the 1st defendant were contradicted by those sworn to by the 3rd plaintiff, except in one material respect that concerned the award of letters of administration in 1953 to the 1st defendant which was admitted by his counter affidavit. For the purpose of this judgment, I need only to refer to the affidavit of the 1st defendant and the counter affidavit of the 3rd plaintiff.

In paragraphs 5, 6, 7,8,9, 10, II and 16 of his affidavit, the 1st defendant deposed thus-

“5. That the Customary Court Oke-Are in Ibadan has in 1953 granted a Letter of Administration to me and others now deceased.

6. That I have since being (sic) in possession of the property and had always rendered account to the family.
7. That I opposed the application for the appointment of a receiver since there is in force a valid order of a competent Oke-Are Customary Court.
8. That the lower court granted the order as prayed on the 11th day of January, 1988.
9. That because I was not satisfied with the said ruling I filed notice of appeal on the 18th day of January, 1988 and payment for same was effected on Receipt No.E769464 on the same day.
10. That on the same day, 18th of January, 1988 I also applied for a stay of execution on the ruling of the lower court made on the 11th of January, 1988.
11. That on the 20th day of April, 1988 my application for stay of execution was refused.”

“16. That at no time has the family house in which members of the family live been subject of administration, not to talk of other properties which are subject to the interest of the individual members of the family.”

The counter affidavit sworn to by the 3rd defendant reads in paragraphs 7 to 19 as follows –

“7. That the plaintiffs/respondents admit paragraph 5 of the affidavit but say further that since the death of the other administrators, the 1st defendant/applicant has indulged in a mismanagement of the said estate to the detriment of the plaintiffs and other members of the family.

8. That the property under the said estate sought to be partitioned are:-

(i) Freehold landed properties at Dugbe, Ibadan adjoining N.E.P.A. Premises consisting of several commercial stores and warehouses and vacant land.

(ii) Freehold landed properties at New Court Road, Ibadan consisting of 2 commercial buildings with houses known as No.24 and 26 New Court Road, Ibadan and vacant land at the back.

(iii) Leasehold landed property consisting of a commercial building known as No.31 New Court Road, Ibadan.

(iv) Four commercial freehold properties in Lebanon Street, Ibadan known respectively as Nos.68, 72, 79 and 81 Lebanon Street, Ibadan.

(v) One freehold commercial property opposite Ebenezer African Church as No.172 Amunigun Road, Ibadan.

(vi) One freehold property with commercial buildings known as No.76 Amunigun Street, Ibadan NW.2.

(vii) One freehold commercial building adjoining Chief Salami Agbaje’s mosque at Ayeye, Ibadan.

(viii) The freehold family compound consisting of several dwelling houses and commercial buildings and petrol station at Ayeye, Ibadan, NW1/333-330.

(ix) Freehold farmland at Ijokodo village, Ibadan, via Akufo, Ibadan West District.

(x) Freehold landed property at Onireke Street, Ibadan now subject to an action between the family and one S.O. Fakorede.

(xi) Freehold farmland at Onisago village, via Iddo, Ibadan West District.

(xii) Leasehold property known as No.95 Yakubu Gowon Street, Lagos (formerly Broad Street).

(xiii) Freehold store at Moniya, Ibadan North District.

9. That none of the property listed in paragraph 8 herein above is maintained by the 1st defendant.
10. That some of the said property are either left by the 1st defendant in the hands of the tenants who collect huge sums of money thereon as rents from sub tenants and in turn merely a paltry sum as rent to the family while others are let out and rents collected are never paid into the coffers of the family.
11. That although the 1st, 2nd, 3rd and 4th defendants have claimed to be administering the said estate under Letters of Administration by a court of law, they have never filed any statement of account.
12. That the said defendants have refused to give proper account to the family.
13. That because of the way the said estate was being administered, the entire family decided that all the property should be partitioned among the ten branches of the family.
14. That when the said defendants failed to carry out the decision of the family to arrange for the partition of the property we were forced to take this action.
15. That after the order referred to in paragraphs 7 and 8 of the affidavit, the 1st defendant/applicant, in partial compliance with the said order, obtained and filed inventory form containing a list of the family property which he returned to the Administrator-General, the receiver by the court.
16. That after sending the inventory and the family bank account at the National Bank of Nigeria Limited, the 1st and 5th defendants/applicants have refused to stop collecting rent which they have however failed to pay into the family accounts.
17. That it was to cover these activities that they have sought unsuccessfully at the High Court to stay the order of the Honourable Court.
18. That since taking over the administration of the estate, the Administrator-General as the receiver had not done anything to tamper with the lawful interest of the individual members of the family contrary to the impression contained in paragraph 16 of the affidavit.
19. That contrary to the claim of the deponent in paragraph 17 of the affidavit, the appointment of the receiver has put a stop to the mis-management and waste to which the estate has been exposed by the 1st defendant/applicant and his agents.”

It is clear from paragraphs 5 to 7 of the affidavit sworn to by the 1st defendant and paragraph 7 sworn to by the 3rd plaintiff in his counter affidavit, both of which have been quoted in the foregoing, that it was not in dispute in the Court of Appeal that Oke-Are Customary Court, Ibadan had granted letters of administration to the 1st defendant together with others in 1953 and they had since been in possession of the estate in dispute.

In its ruling, the Court of Appeal (per Ogwuegbu, J.CA. with Akanbi and Omololu-Thomas, JJ.CA. concurring) held as follows-

“I think the issue involved in this application is simple. The administrator-general as far as I know is there to represent the interest of all the beneficiaries and he is not expected to take sides. I would not have thought that there will be any objection to his appointment by any of the parties. If as averred in paragraph 16 of the affidavit in support of the motion that the properties are subject to the interests of individual members of the family, then there would have been no need for the action for account and partition as well as the application for stay of execution. The cases cited by the learned counsel for the applicants (Vaswani v. Savalakh and Wilson v. Church are not applicable.

I have read the ground of appeal and I agree that it involves a point of law. Assuming that the point of law is decided in favour of the applicants, I am unable to see how a refusal of a stay will adversely affect the estate. Nothing will happen to the estate if the administrator-general manages it as ordered by the court below pending the determination of the appeal.

Furthermore, the administrator-general has started the management of the estate and it will not be in the interest of the estate either, to replace him now. No special or exceptional circumstance has been “shown why the court should grant the application. It is hereby refused. The application is dismissed and make no order as to costs.”

The question to be asked is: on what grounds did the defendants appeal to the Court of Appeal against the ruling given by Apara, J.” Two grounds of appeal were filed and they read thus:

“1. The trial Judge erred in law in the interpretation of section 236 of the 1979 Federal constitution by assuming jurisdiction in the case having regards to section 10(1) of the High Court Law dealing with the administration of ESTATE.

PARTICULARS OF ERROR

a. When the Court have evidence that the ESTATE in question is subject of a letter of administration granted by a Customary Court Oke-Are Ibadan in 1953.

b. The court failed to appreciate the fact that the provision of section 236 of the 1979 constitution is subject to any law (the High Court law).

“2. The trial Judge is in error in granting an order appointing the administrator-general when the applicant neither ask for him nor did the respondent consent to the appointment.”

The 1st defendant in his affidavit in support of the application before the Court of Appeal, exhibited further grounds of appeal, in exhibit D which he proposed to canvass at the hearing of the appeal. One of the grounds, without its particulars, reads –

“3. The learned trial Judge erred in law and therefore came to a wrong decision which caused miscarriage of justice when he made an order appointing the administrator as a receiver.”

By the provisions of section 18 of the Federal Court of Appeal Act, 1976, the Court of Appeal may grant a stay of execution pending determination of appeal. The provisions of section 18 of the 1976 act are the same as those of section 24 of the Supreme Court Act, 1960 section 24 of the Supreme Court Act, 1960. The principles governing the grant of application for stay of execution pending appeal have been stated in a long line of cases, which includes Vaswani Trading & Co. v. Savalakh & Co. (1972) 1 All NLR (Part 2) 483 at p.487; Wey v. Wey (1975) 1 S.C.1; Dr. T.O. Dada v. University of Lagos & Ors. (1971) 1 U.I.L.R. 344; Utilgas Nigerian & Overseas Co. Ltd. v. Pan African Bank (1974) 10 S.C. 105; Ebegbuna v. Ebegbuna; (1974) 3 W.A.C.A.23; Emefisi and Ors. v. Mbanugwo & Ors., (1970-71) 1 E.C.S.L.R.100; Balogun v. Balogun (1969) 1 All N.L.R.349 at p.351; Okafor v. Nnaife (1987) 4 N.W.L.R. (Pt.64) 129 and Martins v. Nicannar (1988) 2 N. W.L.R. (Pt.74) 75.

The issue in the appeal pending in this matter before the Court of Appeal concerns the jurisdiction of the High Court of Oyo State to entertain an action in respect of a matter within the jurisdiction of a customary court, where such action does not come before the High Court on appeal from the Customary Court. In other words can the High Court overreach the Customary Court in a matter that the latter is seised of By the provisions of section 236 subsection (1) of the 1979 constitution and the decision in Savannah Bank of (Nig.) Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. & Anor. (1987) 1 N.W.L.R. (Pt.49) 212, the High Court has unlimited jurisdiction. Does it then follow that the High Court can in exercise of its jurisdiction under section 236 (1) of the constitution overlook the fact that a matter is pending in an inferior court or interfere with an order made by an inferior court when such order has not come on appeal before the High Court By virtue of the provisions of sections 18, 20 and 21 of the Customary Courts Law, Cap.33 of the Laws of Oyo State, 1978, Customary Courts have the power to hear and determine causes and matters arising from inheritance which is governed by customary law. Although, there is a power of transfer under section 30 of the Customary Courts Law, Cap.33 which provides –

“30. (1) The High Court may at any time or at any stage of the proceedings before final judgments –

(a) x x x x x

(b) of its own motion or on the application of any party to the cause or matter transfer any cause or matter relating to the administration of an intestate estate which is before a customary court to the High Court.”

The case before Oke-Are Customary Court was not transferred to the High Court and could not have been so transferred in 1987 since letters of administration were granted by the Customary Court in 1953.

It seems to me a very important point of law on jurisdiction has arisen in this case and the point appears to be recondite. In Martins v. Nicannar (supra) Nnamani, J.S.C. made the following observation at page 83 thereof. “

“The court’s discretion to grant stay of execution must be exercised judiciously and it would be so exercised where it is shown that the appeal involves substantial points of law necessitating the parties and issues being in status quo until the legal issues are resolved Vaswani’s case (supra); Utilgas’ case (supra). It is clear that this court will consider granting a stay of execution where, as Coker, J.S.C. put it in Vaswani’s case ‘the grounds of appeal filed do raise vital issues of law and there are substantial issues to be argued on them as they are. In Balogun v. Balogun (1969) 1 All L.R.349 at p.351, this court, again as per Coker, J.S.C. held that where grounds exist suggesting that a substantial issue of law is to be decided on appeal in an area in which the law is to some extent recondite, and where either side could have a decision in his favour, a stay ought to be granted. I am not unaware of the decision of this court in which the scope of this case appears to have been restricted. This is Okafor v. Nnaife (1987) 4 N.W.L.R. (Pt.64), 129. With all respect, I think this court was swayed in the Naife’s case by the facts of that case which involved continuous acts of trespass. In a case in which a substantial point of law is involved, such as on jurisdiction, does arise (sic) Balogun’s case (supra) would still have full force.”

Both the High Court and the Court of Appeal failed to examine the application by the 1st defendant for stay of execution in the foregoing perspective and consequently omitted to advert their minds to the aforesaid principles for granting stay of execution which, in my opinion, apply to the present case. The Court of Appeal, therefore, misdirected itself when it refused grant the application.

Accordingly, the appeal succeeds and it is hereby allowed. The ruling of the Court of Appeal refusing the application for stay of execution on the ground that no special or exceptional circumstance had been shown on why the application should be granted is hereby set aside. In its place I hereby grant the defendants the stay of execution and order that the Administrator-General and Public Trustee of Oyo State should forthwith stop administering, the estate of late Salami Agbaje pending the determination of the defendants’ appeal to the Court of Appeal. Furthermore, the order of the High Court restraining the 1st defendant from administering the estate is hereby stayed. I award N500.00 costs against the plaintiffs in favour of the defendants.

NNAEMEKA-AGU, J.S.C.: I have had a preview of the judgment just delivered in this appeal by my learned brother, Uwais, J.S.C. He has fully and lucidly set out the facts, and I shall not repeat them.

The Court of Appeal refused the appellants’ application for a stay of execution pending appeal solely on the ground that they had not shown any special circumstances. It is of course now a well established principle that where an applicant for a stay of execution has failed to show a special circumstance to warrant the grant of the stay, the application fails.

But having stated the principle correctly and clearly, the question is whether the Court of Appeal fully appreciated what the applicants had put forward as the special circumstance that warranted their being granted a stay of execution. The learned trial Judge held the view that the High Court had unlimited jurisdiction to entertain any suit in view of the provisions of section 236(1) of the constitution of 1979. The appellants challenged this in the grounds of appeal before the Court of Appeal. The Court of Appeal simply took the view that –

“Assuming that the point of law is decided in favour of the applicants, I (i.e. the learned Justice of the Court of Appeal) am unable to see how a refusal of a stay will adversely affect the estate. Nothing will happen to the estate if the administrator-general manages the estate as ordered by the court below pending the determination of the appeal.”

His Lordship further sought to buttress the argument by holding that the administrator-general was a neutral person and that as he had already started to manage the estate it was better that he should continue.

With respects, their Lordships did not appear to have considered the heart of the matter. No doubt, from the grounds of appeal before the Court of Appeal, the appellants were contending that the High Court had no jurisdiction to entertain the matter at all, notwithstanding the provisions of section 236(1) of the constitution of 1979. This, according to them, is because of two reasons.

First: that the unlimited jurisdiction of a High Court of a state under section 236(1) of the constitution is made subject to the provisions of the constitution of 1979 and any other law. In this case, it was contended, the proviso to section 10 (1) of the High Court Law of Oyo State limits the jurisdiction of the High Court in suits relating to administration of intestate estates to suits transferred to the High Court under the provisions of section 30 of the Customary Courts Law. In particular, the High Court is precluded from exercising original jurisdiction over any suit subject to the jurisdiction of a customary court relating to, inter alia, inheritance and administration of property on death.

Secondly, it was further submitted on behalf of the appellants that the unlimited jurisdiction conferred upon the State High Court under section 236(1) of the constitution cannot be a sufficient warrant for it to set aside the letters of administration granted by the customary court to the appellants since 1953 against which there was no appeal before the High Court. For these two reasons, a serious issue of jurisdiction was raised in the appeal, it was submitted. Following decided cases, it constituted a special circumstance for which a stay of execution should have been granted. The following cases were cited in support, namely: Martins v. Nicannar Food Co. Ltd. (1988) 2 N.W.L.R. (Pt.74) 75; Balogun v. Balogun (1969) 1 All N.L.R.349.

The learned counsel for the respondents submitted that the courts below were right in that the appellants did not show any special circumstances.

I believe the main issue in this appeal could be put very briefly, that is: whether the fact that the appellants raised an issue of jurisdiction satisfies the condition that they must show special circumstances to entitle them to a stay of execution. It does appear to me that the crucial problem in this appeal is the true scope of the principle in Balogun v. Balogun (supra).

In that case, Coker, J.S.C. stated at page 351 thus:

“We are in full agreement with the principle that in order to obtain a stay of execution of judgment against a successful party an applicant must show substantial reasons to warrant a deprivation of the successful party of the fruits of his judgment by the court. We are in no doubt whatsoever that where grounds exist on the motion suggesting a substantial issue of law to be decided on the appeal in an area in which the law is to some extent recondite and where either side may have a decision in his favour such substantial grounds as would warrant an interference clearly exist.”

This gives the false impression that once an appellant raises a serious and recondite issue of law in his grounds of appeal, then he is ipso facto entitled to a stay of execution. But it has long been recognized that it is not every point of law raised in an appeal that could constitute a special circumstance for purposes of a stay of execution. In Okafor v. Nnaife (1987) 4 N.W.L.R. (Pt.64) 129, at p.137; Oputa, J.S.C. in his lead judgment, with which other Justices concurred in adverting to the principle in Balogun’s Case, warned:

“Justice and fairness demand more than this. They also demand that the ratio of any case should not be pulled in by the hair of the head and made willy nilly to apply to cases where the surrounding circumstances are different.”

Hence this court has usually taken the view that grant of a stay of execution, involving as it does the exercise of the court’s discretion, the court, without pre-empting the main appeal by deciding the issue of law raised in the appeal, ought always to take into account the chances of the point of law so raised succeeding on appeal. Where the chances of success in the appeal are virtually nil, such a ground of law will be unavailing. See Wey v. Wey (1975) 1 S.C.1; Odufuye v. Faloke (1975) 1 N.M.L.R.222. This is why a substantial, and not a frivolous, issue of jurisdiction will constitute a special or exceptional circumstance for purposes of a stay. This was what this court in Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C.77 described as “special or strong” circumstances. Applying this principle in Martins v. Nicannar Food Co. Ltd. (1988) 2 N.W.L.R. (Pt.74) 75, I stated at page 89:

“… I am clearly of the view that where an appellant has exercised his constitutional right of appeal against a judgment of a lower court, and the appeal raises a substantial issue as to the jurisdiction of the court below, there exists a special circumstance for which the court below or the appellate court could, and ought to, grant a stay of execution. This must be the case on the premises that if the issue of jurisdiction is upheld in appellants’ favour, the judgment of the court below and all the consequential orders flowing therefrom will be instantly reduced into complete nullity.”

I shall apply the same principle in this appeal.

Considering carefully the two grounds upon which the appellants are challenging first, the jurisdiction of the High Court of Ogun State to set aside the letters of administration granted by the customary court in 1953, against which there was no appeal, and the ground challenging the unlimited jurisdiction of the High Court to adjudicate on the matter at all in view of the provisions of section 10(1) of the High Court Law of Oyo State, 1978, an existing law within the meaning of section 274 of the constitution of 1979, all I can say at the moment is that the issue of jurisdiction is substantial. I must therefore assume that if it should succeed on the hearing of the substantive appeal, then, as the administration of the estate is a going concern, certain irreversible consequences shall have ensued. In such a case, the court below, if it had adverted its mind to these, ought to have granted a stay on the ground that it might be impossible to put parties back to their status quo. I would therefore allow the appeal.

For the above reasons and the fuller reasons contained in the judgment of my learned brother, Uwais, J.S.C., I allow the appeal and subscribe to the orders made in the lead judgment.

WALI, J.S.C.: I had the advantage of reading in advance, the lead judgment just delivered by my learned brother, Uwais, J.S.C. I entirely agree with him. It is therefore for those same reasons and conclusions which he so ably marshaled, that I too will allow this appeal and hereby allow it.

I abide by the consequential orders contained in the lead judgment.

OLATAWURA, J.S.C.: The respondents in this court took out a writ of summons in the High Court of Oyo State, Ibadan Judicial Division claiming a partition of the landed property of their father the late Chief Salami Agbaje. An account, by the first four appellants who were the defendants in the court of first instance, of all the moneys collected by them in respect of the said landed property. They also claimed against them an injunction restraining them from dealing with the said landed property of Chief Agbaje.

An application for an interim injunction was brought by the plaintiffs/respondents in the said High Court and an order was granted on 11th January, 1988. The relevant part of the ruling reads:

“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 the control of the property in question.”

It was then the Administrator-General and Public Trustee was appointed to take over the management of the property which had hitherto been under the management of the 1st to 4th defendants/appellants.

There was another application to the same judge asking that the order of 11th January, 1988 reproduced above be stayed. In refusing the application the learned Judge said:

“A careful reading of my interim order will show that the order is to preserve the res pending the final determination of this action. Thereafter, the successful party will take over. To my mind, the administrator general can only take over and administer what is existing from the applicants. If any property had been demolished or taken over by any party, obviously the administrator general can’t take it over for administration. There is therefore no necessity for me to vary my order in that regard. On the totality of the averments in the various affidavits and counter affidavits and the documents exhibited, no special circumstance has been shown to warrant my granting a “stay” in this matter. Therefore this application is refused. There will be no order as to costs.”

This order was made on 20th April, 1988.

The present appellants appealed against the order of 11th January, 1988.

We are hereby concerned with the refusal of the Court of Appeal to grant the stay of execution refused by Apara, J. on 20th April, 1988.

In its ruling the Court of Appeal Coram; Akanbi, Omololu-Thomas and Ogwuegbu, JJ.C.A. per Ogwuegbu, J.C.A. said:

“I have read the ground of appeal and I agree that it involves a point of law. Assuming that the point of law is decided in favour of the applicants, I am unable to see how a refusal of a stay will adversely affect the estate. Nothing will happen to the estate if the Administrator-General manages it as ordered by the court below pending the determination of the appeal.

Furthermore, the Administrator-General has started the management of the estate and it will not be in the interest of the either, to replace him now. No special or exceptional circumstance has been shown why the court should grant the application. It is hereby refused. The application is dismissed and I make no order as to costs.”

The present appellants were dissatisfied with the ruling and have now appealed to this court on a number of grounds having obtained the leave of the lower court. These grounds without the particulars are:

1. The learned Justices of the Court of Appeal erred in law by dismissing the application for stay and thereby came to a wrong decision which occasioned a miscarriage of Justice.
2. The Court of Appeal erred in law when it proceeded to hear and dismiss the appellants’ application for stay of execution dated 4th May, 1988 without adverting its mind to the contents of EXHIBITS “C” and “D” attached to the application which touch upon substantial point of law to be canvassed on appeal. ”

Briefs were filed and exchanged. The appellants relied on two briefs. Brief filed on 17/3/89 by their former solicitors T.L. Oyesina and Co. and the reply to respondents brief filed by Otunba Awopeju. The respondents’ counsel filed a brief on 12th January, 1990. The Administrator General’s attitude has been that of indifference to the outcome of the appeal. A brief was filed on his behalf on 15/5/89. In his oral submissions before us Otunba Awopeju pointed out that Letters of Administration were granted in 1953 and submitted that the lower court, due to misapprehension of the facts, came to a wrong decision and cited University of Lagos v. M. I. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148, Nwabueze v. Nwosu (1988) 4 N.W.L.R. (Pt.88) 257.

Learned counsel further submitted that once the lower court found that the issue involved an important point of law, the stay of execution ought to have been granted. It was also submitted the lower court did not advert its mind to the cases of Vaswani v. Savalakh (1972) 12 S.C.77; Balogun v. Balogun (1969) 1 All N.L.R. p.349 which deal with special circumstances.

Counsel further contended that quite apart from the issue of jurisdiction, a constitutional issue is raised which will involve the interpretation of section 10(1) of the High Court of Oyo State and section 236 of the constitution of the Federal Republic of Nigeria, 1979. He also cited P. O. P. Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75. He finally urged that the appeal be allowed.

Mr. Orioye in his oral submission which amplifies the submissions made in his brief of 10th January, 1990 opined whether any special circumstance has been shown by the appellant. It is his contention that nothing new has been urged to warrant a reversal of the decision of the lower court. Further, learned counsel submitted that the grounds of appeal are not substantial. In respect of arguable points of law, learned counsel contended that the principle of law in Balogun v. Balogun (Supra) has been held not to be of general application Okafor v. Nnaife (1987) 9-11 S.C. 105; (1987) 4 NWLR (Pt.64) 129. Learned counsel agreed that the issue of jurisdiction raised must be read subject to the decision in Vaswani’s case and contended that the definition is not exhaustive.

In reply Otunba Awopeju pointed out that the issue of jurisdiction was raised in the submission of Mr. Oyesina. He also is of the view that if the issue at jurisdiction was looked into closely by the lower court the court should have come to the conclusion that there was a special circumstance which warranted a stay of the ruling of the court of first instance.

It is now trite law that the issue of jurisdiction can be raised at any stage of the proceedings or even for the first time in this court.

Where a constitutional issue is raised, the court must examine the issue closely to ensure that the issue is not treated lightly. The issue of jurisdiction is fundamental; constitutional issue cannot be brushed aside as it may 4th May, 1988 without adverting its mind to the contents of EXHIBITS “C” and “D” attached to the application which touch upon substantial point of law to be canvassed on appeal.”

Where a constitutional issue is raised, the court must examine the issue closely to ensure that the issue is not treated lightly. The issue of jurisdiction is fundamental; constitutional issue cannot be brushed aside as it may amount to a disregard of the constitution. What are the provisions of section 10(1) of the High Court Law of Oyo State

It provides:

“10(1) To the extent that such jurisdiction may be conferred by the state legislature, the jurisdiction by this law vested in the High Court shall include all the civil jurisdiction which at the commencement of this law was, or at any time afterwards may be exercisable in Oyo State for the judicial hearing and determination of matters in difference, or for the administration or control of property and persons, and also all the criminal jurisdiction which at the commencement of this law was, or at any time afterwards, may be there exercisable for the repression or punishment of crimes or offences or for the maintenance of order and all such jurisdiction shall be exercised under and according to the provisions of this law and not otherwise,

Provided that, except in so far as the Governor may by order in council otherwise direct and except in suits relating to the administration of intestate estates, transferred to the High Court under the provisions of section 30 of the Customary Courts Law, the High Court shall not exercise original jurisdiction in any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children and inheritance or disposition of property on death.”

It is sufficient for the moment, to ask whether this jurisdiction vested in the Customary Court has been taken away by section 236 of the 1979 constitution which vests general jurisdiction in the High Court of a State. To be considered along with these provisions of the law is section 274(1) of the 1979 constitution which deals with existing law.

In the summary of the affidavits and counter affidavits the lower court acknowledged certain facts; that Customary Court Oke-Are, Ibadan granted letters of administration to Alhaji Rufai Agbaje and others who are dead; that Alhaji Rufai Agbaje who is now the first appellant in this court, until the order of Apara, J., was in possession of the properties and that there is a valid order of a competent court i.e. Oke Are Customary Court.

I wish to point out before going into the merits of this appeal, that what is before this court is an appeal against the ruling of the lower court and not another application for a stay of execution of the order made. In the former case the correctness of the ruling is being challenged as against the latter situation where the exercise of discretion of this court is sought. In the former, grounds of appeal which will show whether the lower court has erred are already filed. This court in exercise of its power as an appellate court will go into the merits of the grounds of appeal and the issues raised to see if the lower court has erred in law. Where a court has not exercised its discretion, judiciously and judicially the appeal court will interfere with the exercise of that discretion Demuren v. Asuni (1967) 1 All N .L.R.941101; Solanke v. Ajibola (1968) 1 All NLR 46/52; Odusote v. Odusote (1971) 1 All NLR 219/223. Where however a similar application is made to this court, then the consideration governing the exercise of discretion will definitely apply.

It appears to me that the conclusion of the lower court that a point of law is involved, is enough to grant the application sought. Where a customary court granted Letters of Administration to some people to administer the estate of a deceased person and which Letters of Administration have not been revoked or set aside, it appears to me an important issue of law whether a High Court in consideration of the powers vested in it by section 236(1) of the 1979 constitution can ignore the Letters of Administration granted by a competent customary court. This becomes more important where application of customary law is specifically provided for under section 13 of the High Court of Law. The relevant provision for the purpose of this appeal in section 13(1) of the High court Law of Oyo State. It reads:

“13(1) The High Court shall observe and enforce the observance of every customary law which is applicable and is not repugnant to natural justice, equity and good conscience, nor incompatible either directly or indirectly or by implication with any written law for the time being in force, and nothing in this law shall deprive any person of the benefit of any such customary law.”

A cursory look at the provision of the High Court Law and the averments in the appellants affidavit already set out by my learned brother, Uwais, J.S.C. in the lead judgment that Letters of Administration were granted to the first appellant and others show, in my view, a serious issue of law to be canvassed later. It is another serious point of law whether an unrevoked letters of administration granted by a competent Customary Court can be ignored by the respondents who have instituted another action in the High Court of Oyo State by relying on the claims set out in the lead judgment.

The attitude of the Administrator-General and Trustee, as indicated earlier is that of indifference. It is therefore better to maintain the status quo ante pending the determination of the appeal. It is also worthy of note that at the time the order sought was granted pleadings had not been filed.

I will in the light of the foregoing allow the appeal, set aside the ruling of the Court of Appeal dated 20th July, 1988 and in its place stay the execution of the ruling of the Ibadan High Court delivered on 20th April, 1988. I will also abide by the consequential order made in the lead judgment.

I will award costs of N500.00 in favour of the appellants.

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SC.6/1989