JONAH v. ADMINISTRATOR GENERAL & PUBLIC TRUSTEE, CROSS RIVER STATE (2022)

JONAH v. ADMINISTRATOR GENERAL & PUBLIC TRUSTEE, CROSS RIVER STATE

(2022)LCN/16964CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/C/372/2013

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

ETIM ASUQUO JONAH APPELANT(S)

And

ADMINISTRATOR GENERAL AND PUBLIC TRUSTEE, CROSS RIVER STATE RESPONDENT(S)

RATIO

THE DOCTRINE OF “HE WHO ASSERTS MUST PROVE”

First and foremost, the basic principle of law is that “he who assert must prove”. Thus, the onus propandi is on the party who would fail if no evidence is given in the case. And finally, the standard of proof in civil cases is on the balance of probabilities or preponderance of evidence. See Section 131 to 134 of the Evidence Act, 2011. However, the burden of proof of particular facts in civil cases is not static. Thus, the initial burden is on the person who asserts a particular fact and once that fact is established to the satisfaction of the Court, the burden shifts to the other party and so on until all the issues in controversy between the parties have been disposed. See Section 135 to 139 of the Evidence Act aforesaid. PER SHUAIBU, J.C.A.

THE DOCTRINE OF RELATION BACK

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State sitting at Calabar in Suit NO HC/317/1998, Coram; Hon. Justice Okoi Itam delivered on the 28th day of March, 2013 dismissing the claims of the claimants now appellant.

The appellant and one Mr. Okon Etim Jonah commenced a representative action at the trial Court jointly and severally claimed against the defendant as follows:-
(a) N500,000.00 as damages for harassment, wrongful arrest and detention of the plaintiffs at Mbukpa Police Station.
(b) An order compelling the 7th defendant to render account to the plaintiffs of all monies including rent advance collected by the 7th defendant from the estate of late Madam Atim Akpan Obot alias Atim Duke from the 2nd of September, 1997 to the date of the determination of this suit.
(c) An order revoking the power to collect rent given to the 7th defendant by the 1st plaintiff as contained in his letter dated the 22nd September, 1997.

The 1st to 6th defendants filed a joint statement of defence and counter-claim but same was abandoned due to the demise of their counsel and therefore the suit was heard based on the claimant’s evidence that of the 7th defendant now respondent. At the end of the trial and in a considered judgment delivered on 23/3/2013, learned trial dismissed the case of the claimants with N5,000.00 costs in favour of the 7th defendant.

Dissatisfied, the appellant filed this appeal on 9/5/2013. His initial notice of appeal contained four grounds of appeal. On 29/11/2018, the appellant was granted leave to amend his grounds of appeal and the said amended grounds of appeal equally contain four grounds of appeal. Two issues have been distilled for determination of the appeal from the four grounds of the amended notice of appeal as follows:-
1. Whether on a careful consideration of the facts and circumstances of this case, the appellant who is a known surviving blood relation of the deceased Madam Atim Akpan Obot (Alias Atim Duke) is not entitled to take over the estate of his deceased sister from the respondent?
2. Whether the learned trial Judge was right to rely on the evidence of the respondent’s witness to deliver judgment against the appellant?

On behalf of the respondent, a sole issue was formulated thus:
Whether the respondent is entitled to manage the estate of the deceased.

I have carefully gone through the record vis-à-vis the two set of formulation above and the two issues formulated by the appellant can conveniently be condensed into the respondent’s sole issue. I shall therefore determine this appeal utilizing the respondent’s sole issue. Also before delving into the arguments of counsel on both sides, it is pertinent to briefly state the facts of the case as gathered from the record.

That vide Exhibit 6, one Atim Duke donated a power of Attorney to the appellant and as the donee of Exhibit 6, appellant later through Exhibit 5, surrendered same to the respondent through an application to surrender for trustee the Estate of Atim Duke, on the instruction of the donor of Exhibit 6, Atim Duke. After the death of Atim Duke, the respondent being aware that Madam Atim Duke was unrepresented applied for the issuance of letter of administration which was granted and same was tendered at trial as Exhibit 9. There were however disagreements between the appellant and the respondent on disbursement of money by the respondent to the appellant, the sale of the Estate of the deceased at No.20 Ekong Street, Calabar and the place of burial of the deceased. The appellant as co-claimants filed an action at the trial Court seeking for inter alia, an order revoking the power of the respondent to collect rent over properties at Nos. 16 Waddell Street and No. 20 Ekong Street, Calabar and some other properties at Idundu.

Proffering argument on the sole issue, learned appellant’s counsel, U. O. Igwenyi Esq. submit that the respondent is not entitled to continue to hold onto the estate in perpetuity. And that he ought to surrender the estate to the person who delivered it over to him or fully indemnify him. He relied on Sections 9 (1) b, 36 and 37 of the Administrator-General Law, Cap. A3 Laws of Cross River State, 2004.

In further argument, counsel submit that the evidence of the respondent’s witness is not such that the trial Judge would have relied upon in reaching his decision as the office of the Attorney-General and that of Administrator-General and Public Trustees are poles apart. Thus, Enyiego Ukene, DW1 who works in the Attorney-General’s office was not in a position to give direct evidence on what goes on in the respondent’s office. He contend that the evidence of the respondent amounts to a hearsay evidence, relying on Section 37 (a) of the Evidence Act, 2011 and the cases of LASUN V AWOYEMI (2011) ALL FWLR (prt. 577) 713 at 750-751 and IFEGWU V U.B.A PLC (2011) ALL FWLR (Prt.602) 1672 at 1698-1699 in urging this Court to expunge the evidence of the respondent.

On the part of the respondent, learned counsel Anthony Effiom, Director, Civil Litigation, Ministry of Justice, Cross River State submit that where the evidence adduced by a party whether claimant or defendant is uncontroverted and unchallenged particularly where the opposite party had the opportunity to do so, it is open to the trial Court seized of the matter to accept and act on such unchallenged and uncontradicted evidence before the Court. He referred to ABADOM V STATE (1997) 1 NWLR (prt.479) 1 at 20 and OBMIAMI BRICK & STONE (NIG) LTD V A.C.B LTD (1992) 3 NWLR (prt.229) 260 at 265-266 to the effect that once evidence led in support of facts pleaded is admissible, relevant and uncontradicted and not discredited by cross-examination, same cannot be challenged even on appeal.

Still in argument, counsel submit that it is not the duty of the respondent as defendant(s) to disprove the plaintiff’s case and where as in this case, the plaintiff fails to prove his case, it will be dismissed relying on the authority in the case of OSUJI V EKEOCHA (2009) 39 NSC QR 523 at 536.

He finally submit that the respondent having been granted letter of administration to administer the estate of late Madam Atim Duke and in the absence of any evidence of dishonesty or fraud against the respondent such letter cannot be revoked.

First and foremost, the basic principle of law is that “he who assert must prove”. Thus, the onus propandi is on the party who would fail if no evidence is given in the case. And finally, the standard of proof in civil cases is on the balance of probabilities or preponderance of evidence. See Section 131 to 134 of the Evidence Act, 2011. However, the burden of proof of particular facts in civil cases is not static. Thus, the initial burden is on the person who asserts a particular fact and once that fact is established to the satisfaction of the Court, the burden shifts to the other party and so on until all the issues in controversy between the parties have been disposed. See Section 135 to 139 of the Evidence Act aforesaid.

The cumulative effect of the appellant’s case as contained in the amended statement of claim filed on 9/2/2005 is that late Madam Atim Akpan Obot (Alias Atim Duke) owned and lived at No.16 Waddell Street, Calabar and also had a property at No.20 Ekong Street, Calabar and two houses at Idundu. That himself and late Okon Etim Jonah, together with whom they filed the suit at the trial Court are blood brothers and half-blood of late Madam Atim Akpan (Alias Atim Duke) and being her next of kin, requested the respondent, Trustee of her Estate to release money for the programme of her burial which was fixed for 15th July, 1998. In paragraph 22 of the said amended statement of claim on page 196 of the record, appellant averred:-
“22. Unknown to the plaintiffs, the 7th defendant was scheming to deprive the plaintiffs not only for the entire rent proceeds but also of the entire property of the estates of late Madam Atim Akpan Obot alias Atim Duke and had rejected the 15th of July, 1998 fixed by the family for the burial but wanted the date extended to August when he would have perfected with his allies the scheme to deprive. Paragraphs 23 and 24 of the counter-affidavit filed by Gabriel M. Ogar, the 7th defendant on 25th August, 1998 at the High Court Registry, Calabar disclosed this scheme and the plaintiffs hereby plead the said counter affidavit of the 7th defendant dated the 25th day of August, 1998 and shall rely on it at the trial of the suit.”

In his quest to establish his claim, appellant who testified as pw1 stated at page 342 of the record of appeal thus:
“I sued when the 7th defendant did not give me the money collected as rents or supporting me for the burial of my sister. I want him to hand over the estate and render the account and also pay the damages he has suffered me and also restrain their staff not to come to the estate and collect rents anymore. Yes, I had applied to Court for him to release money to me.”

I have stated right from the onset that the burden of proof of specific facts in civil cases does not remain static and that it shifts from one party at the initial stage to the other. Thus, upon his leading credible evidence which could amount to proof of a particular assertion and where no further evidence to be brought on the same facts till the end of the trial and as such would entitle him to judgment, the burden of proof will at that point shift to the opposite party to disprove that seemingly establish fact.

The question is, did the appellant who claimed to be the beneficiary of the estates of late Atim Duke discharge his initial evidential burden?

From the appellant’s pleadings and evidence led in support, it is glaringly clear that the respondent is the trustee and administrator of the estate of the deceased, who both parties called differently. While the appellant calls her Madam Atim Apan Obot, the respondent calls her Madam Atim Duke. It was also not in contest that the disagreements between the parties relates to the disbursement of money by the respondent to the appellant, the sale of the estate of the deceased at No.20 Ekong Street, Calabar and the place of the burial of the deceased. Also apparent from exhibits 1, 2, 3, 4, 7 and 8, the acrimonious events between the parties took place between 5th June, 1998 to 15th September, 1998. And the letters of Administration was granted to the respondent, Exhibit 9 on 22nd November, 1998.

Where as in this case, a party seeks to revoke grant of letters of administration to another party, the Court is duty bound to consider the evidence of the act of the grantee of the said letters of administration sought to be revoked.

There is also the doctrine of “relation back” under the laws relating to the administration of estates which means the title of the administrator/administratrix over the estate of the intestate is deemed to relate back to the time of death of the intestate. In other words, where a person dies intestate and administration is granted under the law in respect of his estate, that estate shall be deemed to have been vested from the date of his death until administration is granted. See N.B.A. V WAZIRI (2019) 7 NWLR (Prt.1672)574 at 591 and KOLADE & ORS V OGUNDOKUN (2017) LPELR 48001 (SC). In the instant case, upon the grant of the letters of administration exhibit 9 to the respondent, he was put in virtually the same position as late Madam Atim Akpan or Madam Atim Duke as the case may be because the power retrospectively take effect from the date of the letters of administration.

Now the estate of late Madam Atim Duke having been vested on the respondent effective from her death, can the appellant seek for the revocation of same? In the absence of evidence of misconduct on the part of the respondent, the letters of administration granted to the respondent cannot be revoked and the appellant in the circumstance has failed in his bid to manage the estate of the deceased. At page 372 of the record, learned trial Judge has found as follows:-
“It is clear that exhibit 9 – letters of administration was granted to the 7th defendant on the 27th November, 1998, after all the acrimony between the claimants and the 7th defendant. There is no evidence or exhibits to show that after the grant of the letters of administration to the 7th defendant, the 7th defendant was dishonest or mismanaged the properties of the deceased. There is also no evidence that the 7th defendant was fraudulent in applying for and or obtaining the letters of administration.”

The above finding is unassailable and having properly appraised the evidence adduced in the case, there is no basis for interfering with such findings. The appeal is destined to fail and it is hereby dismissed with costs which I assessed at N100,000.00 against the appellant.

RAPHAEL CHIKWE AGBO, J.C.A.: I have read in advance, the judgment delivered by my learned brother Shuaibu, JCA and I agree with both the reasoning and conclusion that the appeal be dismissed. I abide by the consequential orders contained in the judgment.

BALKISU BELLO ALIYU, J.C.A.: I read in draft, the judgment prepared by my learned brother, M. L. Shuaibu, JCA. I agree with him that the appeal lacks merit and I too dismiss it. I abide by the order of costs made in the lead judgment.