Monday, 17 February 2020

Court Stops Lagos State From Stripping Judiciary Of Power Over Probate Registry

The High Court of Lagos State on February 12, 2020, stopped the Lagos State Government from taking over the Probate Registry of the High Court from the control of the judiciary. In a landmark judgment delivered by Honourable Justice Babatunde Candide-Johnson, the court held that it would amount to a usurpartion of the powers of the judicial arm of government for the executive arm to seek to excise the Probate Division from the management and control of the High Court. He therefore issued an order of perpetual injunction, restraining the Lagos State Government from taking over or interfering with the management and administration of the Probate Division of the High Court of Lagos State.

The judgment was delivered sequel to the suit filed at the High Court of Lagos State by legal luminary and human rights activist, Ebun-Olu Adegboruwa, SAN, in 2015, challenging the decision of the Lagos State Government to take over the administration of the Probate Division of the Hihg Court. In an affidavit deposed to by the Learned Senior Advocate of Nigeria, he stated that he has been involved in several public interest litigations on behalf of the peope of Nigeria, recalling his years of activism as a student leader, as a pro-democracy activist involved in the restoration of the annulled June 12, 1993 election, the struggle to end military rule and his consistent engagement of various governments in respect of certain anti-people policies. Mr. Adegboruwa, SAN, stated that he is actively involved in applications for letters of administration and issuance of probate for Wills and that the Probate Division has always been part of the High Court.



In 2015, the Lagos State Government had announced its plan to privatize the Probate Division, alleging bureacracy and widespread corruption in the system. A draft Bill was then sent to the Lagos State House of Assembly to aid the prompt execution of this policy. Upon filing the suit, Mr. Adegboruwa, SAN, applied for and secured an order of interim injunction, granted by the Honourable Justice Abdulfatal M. Lawal, on March 7, 2015, against the Lagos State Government. The case was subsequently transferred to the Honourable Justice Babatunde Candide-Johnson, for hearing and determination.


In the suit, Mr. Adegboruwa, SAN, sought the following reliefs:



1.       A DECLARATION, that management and administration of probate matters is a judicial function which can only be performed by the Judiciary.

2.       A DECLARATION, that the probate division of the High Court of Lagos State is a substratum and intrinsic part of the High Court of Lagos State and as such fees, duties, taxes and revenue collected and accruable to High Court of Lagos State cannot be removed, excised, privatized, taken away, outsourced or managed by any agency of the executive, entity or private organization in any manner whatsoever and howsoever.

3.       A DECLARATION, that Lagos State House of Assembly cannot make a law that seeks to usurp the judicial powers and functions conferred on the Lagos State High Court by section 6 (2) of the 1999 Constitution of the Federal Republic of Nigeria.

4.       A DECLARATION, that Lagos State House of Assembly cannot make laws that is inconsistent with the provisions of section 6 of the 1999 Constitution of the Federal Republic of Nigeria.

5.       A DECLARATION, that any law made by Lagos State House of Assembly that seeks to empower any agency of the executive, entity, or private organization in any manner whatsoever and howsoever to excise functions and powers conferred on Lagos State High Court by sections 6 (2) and 270 (2) of the 1999 Constitution of the Federal Republic of Nigeria in any manner whatsoever is illegal and unconstitutional and is therefore null and void of no legal effect.

6.       AN INJUNCTION, restraining the defendants, whether by themselves, their servants, officers, agents, banks, privies or otherwise howsoever, from removing, excising, privatizing, taking away, outsourcing or managing the fees, duties, taxes and revenue collected and accruable to High Court of Lagos State by sections 6 (2) and 270 (2) of the 1999 Constitution of the Federal Republic of Nigeria in any manner whatsoever.


In its response, the Lagos State Government opposed the suit, contending that the court could not competently stop the Executive or Legislative arm from performing their constitutional duties. The government also challenged the locus standi of Mr. Adegboruwa, SAN, to maintain the action and contended further that the case did not disclose any reasonable cause of action. In its judgment, the Court reviewed the facts of the case and the respective submissions contained in the written addresses of the parties. It held that as a legal practitioner who frequently files applications and other processes at the Probate Division, it could not be said that Mr. Adegboruwa, SAN does not possess the requisite capacity to institute and maintain the action against the defendants. Dwelling on the merits of the case, the court held that though the defendants had denied the existence of any Bill to privatize the administration of probate matters, the averments of the defendants in their further affidavit indicating that the Bill was at the preliminary stage, gave credence to the affidavit evidence of the claimant that the defendants were having clandestine meetings and had refused to hold any public hearing that would enable him participate in the process.


On reliance on its findings from the examination of the draft Bill attached to the counter-affidavit of the defendants, the court held that the primary concern of the claimant was the imminent ouster of the judicial powers and constitutional functions of the Lagos State Judiciary. The court held that the contents of the draft Bill constitute a potent threat to the constitutional functions of the judiciary. Relying on the 1999 Constitution, the court held that the claimant had done enough to invoke the powers of the court and it therefore granted all the reliefs claimed in the suit.


In his reaction, Mr. Adegboruwa, SAN, hailed the courage of the judiciary in setting the tone for orderliness and observance of the rule of law by all those who are in positions of authority. He stated that the case has proved that the insinuation that the judiciary of the States are timid and under the control and influence of the Executive is not always the case. He urged other lawyers to take up cases in court to challenge all acts of impunity and the excesses of those entrusted with power.

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