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CASE TITLE: ODUTOLA v. TOGONU-BICKERSTETH & ORS (2022) LPELR-57574(CA)
JUDGMENT DATE: 24TH MAY, 2022
- ONYEKACHI AJA OTISI, JCA
- ABDULLAHI MAHMUD BAYERO, JCA
- PETER OYINKENIMIEMI AFFEN, JCA
COURT DIVISION: LAGOS
PRACTICE AREA: JUDGMENT AND ORDER- STAY OF EXECUTION of JUDGMENT
The Appellant/Applicant, as the 2nd Defendant in an action in respect of the Estate of Alhaji Jimoh Odutola at the trial Court, challenged the jurisdiction of the trial Court to entertain the action, which was instituted by the 1st–19th Respondents. Upon a proper consideration of the objection, the trial Court dismissed the Preliminary Objection to its jurisdiction in its ruling delivered on the 2nd day of May 2012. In another ruling delivered on the 7th day of May, 2012, the trial Court appointed Chief Ladi Taiwo, (MCIArb) and Mr. Bunmi Sowande (FCA) as the Interim Administrators of the Estate of Alhaji Jimoh Odutola.
Dissatisfied, the Appellant/Applicant appealed to the Court of Appeal. The Court of Appeal dismissed the Appellant/Applicant’s appeal against the decision of the trial Court on the issue of jurisdiction and appointment of Interim Administrators for the Estate of Alhaji Jimoh Odutola.
Still dissatisfied, the Appellant/Applicant further appealed to the Supreme Court. The Appellant/Applicant, of the opinion that the order appointing Chief Ladi Taiwo, MCIArb and Bunmi Sowande FCA ought to be suspended forthwith or its further execution should be stayed pending the determination of the appeal in the Supreme Court of Nigeria, filed a motion on notice wherein he sought an order of the Court of Appeal staying further execution of or suspending forthwith the order made by the trial Court.
The application was considered on its merits.
Learned Counsel for the Appellant/Applicant submitted that the Court is vested with wide discretion to stay further execution of the order appointing Interim Administrators for the Estate of the Late Alhaji J. A. Odutola. 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.
Counsel argued that matters bordering on the operation of the Companies and Allied Matters Act are outside the remit of the High Court of Lagos State as the suit before it has to do with alteration of share capital, restructuring of company shareholding, as well as meetings/acts of Directors of a company; that if the judgment of the trial Court is not stayed or suspended and the issue of jurisdiction is resolved in favor of the Applicant on appeal and the decision of the trial Court is set aside, that success would be fruitless.
On the other hand, Learned Counsel for the Respondents submitted that there is no valid pending appeal at the Supreme Court. That the Appellant/Applicant has not satisfied an essential precondition for the grant of stay, as since 30th January, 2018, when the Court affirmed the appointment of Chief Ladi Taiwo and Bunmi Sowande as Interim Administrators of the Estate of J. A. Odutola, no progress has been made by the Appellant/Applicant. He has not compiled and transmitted any record of appeal, but merely filed processes seeking extension of time to appeal, which raises a presumption that there is no valid pending appeal
Counsel maintained that the Appellant/Applicant has equally failed to disclose any special circumstances to warrant the grant of stay of execution. That contrary to the Appellant/Applicant’s contention, the steps taken by the Interim Administrators are legitimate actions they are empowered by law to take in order to protect the estate of the Late Jimoh Odutola and cannot be deemed to constitute exceptional circumstance for the grant of stay.
In the final analysis, the application failed and was dismissed.
1) JUDGMENT AND ORDER- STAY OF EXECUTION OF JUDGMENT: Whether an issue of competence/jurisdiction of Court is a substantial point of law that constitutes a special or exceptional circumstance justifying the grant of stay of execution; factors to be considered where the plea of jurisdiction fails
“The Applicant has relied on alleged substantiality of the grounds of appeal bordering on the issue of jurisdiction as a special or exceptional circumstance. But whilst there is no gainsaying that the leading authorities donate the proposition that 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 89, GRASEG (NIG) LTD v R.T.T.B.C. supra, ALAWIYE v OGUNSANYA supra]; and quite understandably, the Applicant has urged this Court to grant stay on that score. It occurs to me however that where there are concurrent decisions of a trial Court and the Court of Appeal rejecting the plea of jurisdiction raised in a case, the sting of the plea is no longer as caustic or potent as once it was, and ought not to be accorded uncritical pride of place in the scheme of stay of execution pending a further appeal to the Supreme Court. In such situations, the competing rights of the parties to justice and the chances or prospects of success of the further appeal are (or ought to be) more crucial considerations in exercising discretion to grant or refuse stay. But even though the Court is obligated to take the chances or prospects of success of the appeal into consideration in determining whether to grant or refuse stay of execution, a note of caution must be sounded that the Court’s duty is not to sit on appeal over its own judgment, but to strike a rather delicate balance.” Per AFFEN, J.C.A.
2) PRACTICE AND PROCEDURE – APPLICATION FOR STAY OF EXECUTION OF JUDGMENT: Nature of substantial question of law that will satisfy the requirement of special or exceptional circumstance in an application for stay of execution
“…the law, as I have always understood it, is 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. 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. See BALOGUN v BALOGUN (1969) 1 All NLR 349 at 351 (per Coker, JSC). A point of law is said to be recondite if it is novel, obscure, abstruse or little known. A notorious point of law which has been overburdened with previous decisions, even if jurisdictional in nature, cannot be said to be recondite. See LIJADU v LIJADU  1 NWLR (PT. 169) 627 at 646 -per Niki Tobi, JCA (as he then was). What is more, even where a serious and recondite point of law is raised, it is not in all cases that an applicant is ipso facto entitled to a stay of execution. Each case must be viewed from its own surrounding circumstances. See AGBAJE v ADELAKAN  7 NWLR (PT. 164) 595 at 611.” Per AFFEN, J.C.A