Whether An Issue of Jurisdiction of Court is a Substantial Point of Law

ODUTOLA v. TOGONU-BICKERSTETH & ORS
CITATION: (2022) LPELR-57574(CA)
In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos

ON TUESDAY, MAY 24, 2022
Suit No: CA/L/CV/499A/2012(R)

Before Their Lordships:

ONYEKACHI AJA OTISI Justice, Court of Appeal
ABDULLAHI MAHMUD BAYERO Justice, Court of Appeal
PETER OYINKENIMIEMI AFFEN Justice, Court of Appeal

Between

ALHAJI MOJEED ODUTOLA –

And

1. CHIEF (MRS) MOSUNMOLA TOGONU-BICKERSTETH
2. MRS. OLUFUNSO AYANBADEJO
3. MRS. OLAJUMOKE ADEKOYA
4. ENGR. AKINBIYI ODUTOLA
5. PASTOR (MRS) TAIWO ADEWUNMI
6. MRS. KEHINDE OKUSANYA
7. PROFESSOR AKINTOLA ODUTOLA
8. MR. OLATUNJI ODUTOLA – Respondent(s)
9. MR. AKINYEMI ODUTOLA
10. MR. TAIWO ODUTOLA
11. MRS KEHINDE ERINLE
12. MRS. KOREDE ARIGBABU
13. MS. OLUBUKOLA ODUTOLA
14. MR. YUSUF ODUTOLA
15. MR. HAHEEM ODUTOLA
16. MR. SULE ODUTOLA
17. MR. YISA ODUTOLA
18. MRS. OMOSALEWA OLUBEKO
19. PROFESSOR EBUNOLUWA CLARK
20. THE PROBATE REGISTRAR, HIGH COURT OF LAGOS STATE

LEADING JUDGMENT DELIVERED BY PETER OYINKENIMIEMI AFFEN, J.C.A.

FACTS

The applicant filed a motion on notice at the Court of Appeal praying for an order staying further execution of or suspending forthwith the order made by OLUYEMI J of the High Court of Lagos State on May 7, 2012 whereby Chief Ladi Taiwo, MCIArb and Mr. Bunmi Sowande, FCA were appointed as INTERIM ADMINISTRATORS of the Estate of Alhaji Jimoh Odutola and which was affirmed by Court of Appeal in the judgment delivered in Appeal No. CA/L/499A/2012 on January 30, 2018 pending the determination of the appellant/applicant’s appeal in the Supreme Court of Nigeria.

The motion was supported with a nine-paragraphed affidavit personally deposed by the applicant, as well as a further affidavit deposed by one Oluwaseun Tijani (a legal practitioner in the law firm of Messrs. Olatunde Adejuyigbe & Co, solicitors to the applicant).

In opposition to the motion, the 1st-18th respondents filed a six-paragraphed counter-affidavit.

ISSUES FOR DETERMINATION
The Court of Appeal determined the merit of the application.

APPLICANT’S SUBMISSION
The learned counsel for the applicant contended that the Court of Appeal is invested with wide discretion to stay further execution of the order appointing Interim Administrators for the Estate of the Late Alhaji J. A. Odutola. He relied on the case of UNION BANK v EDAMKUE (2004) 4 NWLR (PT. 863) 221; (2003) LPELR-6190(CA).

Counsel submitted that the grounds of appeal raise a substantial issue of jurisdiction, which has been judicially acknowledged in a long line of cases as an exceptional circumstance for the grant of stay of execution. On this, he cited the case of ALAWIYE v OGUNSANYA (2013) 5 NWLR (PT.1348) 570 at 602-603; (2012) LPELR-19661(SC). That it is trite law that a Court ought to grant stay of execution upon being satisfied that there are special and exceptional circumstances, which warrant the exercise of discretion in favour of the applicant.

Learned counsel further contended that the interim administrators have, without any authorization from the Court, instituted Suit No. FHC/L/CS/1100/14 in concert with the 1st to 18th respondents against him and J. A. Odutola Property Development & Investment Co. Ltd to take over the management and assets of the company; and if not restrained they will expose the Estate to liability as well as dissipate the assets and cause irreparable injury and render the eventual decision of the Supreme Court nugatory if the appeal succeeds, placing reliance on VASWANI TRADING CO v SAVALAKH & CO [1972] 12 SC 77 at 88, (1972) 1 ANLR (PT. 2) 483 at 487; (1972) LPELR-3460(SC).
That the balance of convenience clearly weighs in the applicant’s favour as the interim administrators did not execute any indemnity or bond in favour of the Estate for loss/damage that that may arise from their negligent or wrongful acts.

1ST-18TH RESPONDENTS SUBMISSION
The learned counsel for the 1st-18th respondents in opposing the motion, submitted that there is no valid pending appeal at the Supreme Court and that the applicant has not satisfied an essential precondition for the grant of stay. Counsel citing ORURUO v UGWU (2006) LPELR – 5846 (CA), stated that since January 30, 2018 when the Court of Appeal affirmed the appointment of Chief Ladi Taiwo and Bunmi Sowande as interim administrators of the Estate of Alhaji Jimoh Odutola, no progress has been made by the applicant. That the applicant has not compiled and transmitted any record of appeal to the Apex Court. Furthermore, that the applicant is out of time and filed processes seeking extension of time to appeal, which raises a presumption that there is no valid pending appeal and the motion for stay ought to be dismissed.

Learned counsel maintained that the applicant has equally failed to disclose any special circumstances to warrant the grant of stay of execution, citing VASWANI TRADING CO LTD v SAVALAKH & CO (1972) LPELR-3460(SC).

He argued that contrary to the applicant’s contention, the steps taken by the interim administrators that is filing a lawsuit to prevent the arbitrary and unwarranted increase in the share capital of the deceased’s company with a view to re-allotting same shares to the applicant, and the interim management of the affairs of the company to prevent waste and preserve the status quo pending the determination of all civil suits, are legitimate actions they are empowered by law to take in order to protect the estate of the Late Odutola and cannot be deemed to constitute exceptional circumstance for the grant of stay.

RESOLUTION OF THE ISSUES
On the determination of the application, the Court stated that an application for stay of execution is not granted as a matter of course or routine. That it is a matter of law and facts, and a very hard one in their combined intent. See EZE v OKOLONJI [1997] 7 NWLR (PT. 513) 575 at 579 B-D; (1997) LPELR-13774(CA).

The Court pointed that stay of execution will be granted only where the applicant discloses a special or exceptional circumstance, which has been defined as a peculiar or unique circumstance additional to the ordinary state of affairs.

The Court stated that the appointment of the interim administrators already took effect upon the making of the order without further assurance, and so there is nothing left to be done to give effect to the appointment. That the order made by the High Court is in the nature of a declaration, which is complete in itself and non-executory. The Court then stated the position of the law that an order or judgment has to be executory before any anticipated execution of that order or judgment can be stayed. See the case of AKUNNIA v ATTORNEY GENERAL OF ANAMBRA STATE (1977) 5 SC 161 at 171; (1977) LPELR-394(SC).

The Court pointed that the desire of the applicant as seen in one of the paragraphs of the affidavit is to prevent incalculable and irreversible damage by the interim administrators to the Estate of Odutola and opined that the only way the applicant can possibly achieve such is to restrain the interim administrators from the further discharge of the role for which they have been appointed. That since the applicant is challenging the propriety of the order of Olayemi, J. appointing the interim administrators, then what is required is an application for injunction pending the determination of the further appeal to the Supreme Court.

On the submission of the Applicant that the grounds of appeal raise a substantial issue of jurisdiction which is thus a special or exceptional circumstance, the Court explained that truly an issue as to the competence or jurisdiction of the Court which is raised bona fide and genuinely in a case is a substantial point of law that constitutes a special or exceptional circumstance justifying the grant of stay. See MARTINS v NICANNAR FOOD COMPANY LTD supra at [1988] 2 NWLR (PT. 74) 55 at 89; (1988) LPELR-1844(SC). But that the mere raising of a substantial point of law is not conclusive of the matter nor does it lead inexorably to the grant of stay of execution. The Court then explained that in order to satisfy the requirement of special or exceptional circumstance in the context of an application for stay of execution, what the law requires is not merely the raising of a substantial point of law per se, but a substantial issue of law to be decided on appeal in an area in which the law is to some extent recondite, such that either side may have a decision in his favour. The case of BALOGUN v BALOGUN (1969) 1 All NLR 349 at 351; (1969) LPELR-25558(SC).

In conclusion, the Court held that the order dated May 7, 2012 by which Oluyemi, J. of the High Court of Lagos State appointed Chief Ladi Taiwo, MCIArb and Mr. Bunmi Sowande, FCA as Interim Administrators of the Estate of Odutola (which appointment was affirmed by the Court of Appeal in the judgment delivered on January 30, 2018 being appealed against) cannot be stayed for being non-executory. The Court also held that the applicant has not disclosed any special or exceptional circumstance to warrant the grant of stay of execution.

HELD
The application was dismissed.

APPEARANCES
OKECHUKWU TAGBO DIKE -— FOR APPLICANT

DANIEL ADEGBAMIGBE, ESQ.
— FOR 1ST – 18TH RESPONDENTS
— FOR RESPONDENT 19TH AND 20TH RESPONDENTS ABSENT AND UNREPRESENTED BY COUNSEL