In suit No.LD/654/79 filed in the High Court of Lagos State, plaintiffs/respondents claimed the following reliefs against the defendants/respondents herein:
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1
A declaration that the Plaintiffs are entitled to the grant of letters of admin-istration to the estate of Alhaja Nimota Asabi alias Iya Toyin late of 37, Akin-wunmi Street, Yaba who died intestate at the said address on 15th December, 1977.
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2
An order that the Caveat entered by the defendants against the application for a grant of administration be vacated;
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3a
An order that the 1st defendant renders an Account of the sum of N19,800.00 found in the house of the late Alhaja Nimota Asabi alias Iya Toyin and handed over by the family to the 1st defendant in February, 1978 for sale keeping.
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3b
An order for the payment of any money with 1st defendant to the Bank of India (Nigeria) Ltd., Breadfruit Street. Lagos to reduce the overdraft indebtedness of the late Alhaja Nimota Asabi alias lya Toyin to the Bank.
This Writ is issued against you because you have alleged that as a blood rela¬tion (sic) of the deceased, you are solely entitled to a grant".
It is pertinent to mention that although the appellants/applicants were not parties, it is not in dispute that they agreed that the defendants should defend the suit on behalf of the Adewunmi family.
Pleadings were ordered, filed and delivered. It was in paragraph 32 of their state-ment of defence dated 8/1/80 that the defendants counter-claimed for -
“An order that they be granted letters of Administration to the Estate of the Deceased."
I shall return to this counter-claim later in this judgment.
The main issue between the plaintiffs and defendants was of course who was entitled to administer the deceased's vast estate. The plaintiffs relied on the evidence of an Egba Chief for their contention that they, the deceased's relations on the mother's side, were entitled to administer the Estate. The defendants relied on the evidence of an Ilaro Chief for their contention that under Ilaro customary law, the deceased having been from Ilaro, it was they, her relations - half brothers and half sisters - on the father's side who were entitled to administer the Estate.
Ishola Oluwa, J. after hearing all the evidence delivered judgment on 23rd May 1983. He made the following orders: -
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1
Shittu 1st plaintiff is a meddler in the estate and has no right whatsoever to hold any office in the running and management of the estate of Alhaja as administrator and has no right to be on the premises known as 37, Akinwunmi Street.
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2
I declare that 2nd plaintiff as a representative of Alhaja's mother's side and Mrs. Bisi Osibanjo 1st defendant and Alhaja Suraju Atanda Lawal 2nd defendant as representatives of the father's side shall apply for and be ap¬pointed as administrators and administratrix of the Estate of Alhaja Nimota as soon as possible………………….”
On 19th August 1983 the plaintiffs appealed against this judgment. This appeal is yet to be heard by the Court of Appeal. The defendants have not appealed against the judgment, but in 1986 filed a motion in the Court of Appeal praying that Court to dismiss the said appeal for want of prosecution. The motion is also pending in the Court of Appeal. On 22nd September, l986 the appellants filed a motion in the Court of Appeal under section 222(a) of the 1979 Constitution of Nigeria (hereinafter known as the Constitution) praying for "an Order granting the applicants leave to appeal to this Honourable Court against the judgment of the High Court of Lagos State delivered on the 23rd May, 1983 in Suit No.LD/654/79 Yinusa A. Shittu and Anor. v. Mrs. Bisi Osibanjo and Anor." A 24 paragraph affidavit Sworn to by Kuranga Lawal Adewunmi, 1st appellant/applicant, was attached. Also attached were the family tree of Lawal Adewunmi family as well as the Notice of Appeal containing the grounds of appeal to the Court of Appeal. It was to this affidavit that the defendants/respondants responded in a Counter-affidavit.
The Court of Appeal held that the applicants could not deny that they knew that the two defendants had been granted letters of administration and that their application failed to disclose good and substantial reasons for their delay. It therefore refused the application, whereupon the applicant/appellants appealed to the Supreme Court.
