MR. KENECHUKWU DOZIE & ANOR v. DR. (MRS.) CATHERINE ONUKWO & ORS In The Court of Appeal of Nigeria
(2019)LCN/13885(CA)
On Friday, the 12th day of April, 2019
CA/OW/176/2017
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. MR. KENECHUKWU DOZIE
2. K.C. DOZIE HOLDINGS INTERNATIONAL – Appellant(s)
AND
1. DR. (MRS.) CATHERINE ONUKWO (NEE UZOMA)
2. MRS. FELICITAS EMEAKAM (NEE UZOMA
3. MRS. JULIANA SUTPHIN (NEE UZOMA)
(Representing the Seven Daughters of Chief & Mrs. T.O. Uzoma)
AND
4. MR. PATRICK OBINNA UZOMA
5. MRS. CECILIA UZOMA
6. MR. IFEANYI UZOMA
7. MR. IKECHUKWU UZOMA
8. MR. UDOKA UZOMA
9. CHAPLAIN CHUKS ALBERT ANUKWA – Respondent(s)
RATIO
WHETHER OR NOT FRAUD IS A VITIATING ELEMENT ONCE IT IS ESTABLISHED
It is trite that in law, fraud is a vitiating element, once it is established. In the case of Onwuneme & Ors vs Amah (2018) LPELR – 44698 CA, this Court relied on the Supreme Court case of Ojibah Vs Ojibah (1991) LPELR – 2374 SC; (1992) 5 NWLR (Pt.191) 296, to say as follows: “Of course, by law, fraud vitiates even the most solemn of all transactions, and so a document or purported land instrument, tainted with fraud… cannot transfer interest in land, claimed by it.” See also Ugo Vs Obiekwe & Anor (1989) LPELR – 3319 SC; (1989) 1 NWLR (Pt.999) 566. See also Afegbai Vs Edo State & Anor (2001) LPELR – 193 SC: “… as a matter of general principle, fraud, if established, vitiates consent, however apparently well given…” PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory decision of the Imo State High Court in Suit No. HOW/377/2015, delivered on 12th October, 2016 by Hon.
Justice F.I. Duruoh-Igwe, where his lordship refused to terminate the Suit, in limine, and dismissed the motion filed
by the Appellants for that purpose. At the lower Court, the Plaintiffs (1st to 3rd Respondents, herein) had taken out a writ of summons on 10/7/15, against the Defendants (now Appellants and the 4th to 9th Respondents) seeking the following reliefs:
1) A declaration that the claimants, being the biological daughters of late Chief Theophilus Obinna and Mrs. Cecilia Ogoekweaku Uzoma of Umueze Uzoagba in Ikeduru Local Government Area of Imo State, are entitled, like 1st, 3rd – 5th Defendants to inherit and have shares in the Estate of their father, CHIEF T.O. UZOMA, who died intestate on the 17th of March 2003.
2) A declaration that the 1st to 5th defendants have no rights, whatsoever, to deny the claimants their bonafide rights, interest and entitlements to the estate of the late CHIEF T.O. UZOMA, on the 1 (2019) LPELR-47276(CA)
premises that they are women and have been married.
3) A declaration that the purported sale of No.121 (former 115A”) Douglas Road, Owerri by the 1st – 5th defendants to 6th and 7th defendants, without the knowledge, agreement, consent and permission of the
claimants is illegal, null and void,
4) A declaration that the claim of having shared the proceed of the purported sale of No. 121 (Former 115A) Douglas Road, Owerri, by 1st – 5th defendants, which proceeds the 6th defendant said was N90 Million Naira to the exclusion of the claimant (sic) is a violation of their rights to lack of discrimination (sic) and therefore illegal null and void.
5) A declaration that the letters of administration granted to the 2nd and 5th defendants by the Owerri High Court on the 29th day of June, 2006, in connection with late CHIEF T.O. UZOMA’S Estate, was fraudulently (sic) and under false pretences obtained and therefore illegal, null, void and inconsequential.
6) A declaration that the purported power of Attorney between UZOMA CECILIA O. and K.C. DOZIE HOLDINGS, DONOR AND DONEE, respectively, premised on the purported sale of No.121 2(2019) LPELR-47276(CA) (Former 115A) Douglas Road, Owerri, is illegal, null and void.
7) A declaration that the purported new registration of Power of Attorney between UZOMA CECILIA O. and KC DOZIE HOLDINGS, registered as No.89, Vol. 89- page 1122 at Lands Registry, Owerri, that (sic) the 6th – 7th defendants is illegal, null and void and ineffectual.
8) An order of the Honourable Court invalidating the purported sale of No. 121 (former 115A) Douglas Road, Owerri.
9) An order of the Honourable Court enjoining (sic) the 1st – 5th defendants from further discrimination against the claimants in the inheritance of the estate of late CHIEF T.O. UZOMA, on grounds that they are women and have been married, as that runs counter with the wishes of late CHIEF T.O. UZOMA while he was alive.
10) An order of Court enjoining (sic) against the 5th defendant to produce the share certificates of Union Bank Plc No.122479-4, share No. 206; Bugerunn Breweries Plc Certificate No.385223, share No. 4872, Guiness Nig. Plc, Certificate No.2032743, share No.3040 and UAC Nig Plc certificate No.1501486, share No.1353, which are now in the market liquidation, for them to be 3 (2019) LPELR-47276(CA) liquidated and the proceeds shared by all the
beneficiaries of late CHIEF T.O. UZOMA.
11) An order of the Honourable Court prohibiting the defendants from further attempts to sell the said property, and Order that the same be handed over to the claimants to manage and superintend the management thereof as their father’s legacy and in keeping with his wish.
12) An order of Court, directing 1st – 5th defendants to refund to the 6th and 7th defendants the amount they paid to them, pursuant to the illegal purchase of No.121 (Former 115A) Douglas Road, Owerri.
13) Perpetual injunction prohibiting the 6th and 7th defendants, either by themselves, privies, personal representatives, those who may claim through or under them, their servants, workers or whosoever they may be from further entry onto, claim of purchasing the No/121 (Former 115A) of DouglasRoad, Owerri.”
Appellants did not want the case to be heard and so filed a motion on 21/7/15, seeking an order to terminate the Suit, in limine, on the ground that the trial Court lacked the statutory jurisdiction to entertain the action. It is the refusal of the trial 4(2019) LPELR-47276(CA) Court to terminate (dismiss) the suit that is now on appeal. Appellants filled Amended Notice of Appeal on 23/5/2017 and disclosed 3 grounds of Appeal. They filed their brief of arguments on 14/3/2018, upon the Records of Appeal being regularized on 12/3/18. They distilled two issues for the determination of the appeal, as follows:
1) Whether this suit, as constituted, is not statute barred (Ground one).
2) Whether there is any features at all in this suit that saves it as held by the lower Court. (Grounds 2 and 3)
The 1st set of the Respondents (1st to 3rd) filed their Brief of arguments on 9/8/2018, which was deemed duly filed on 5/12/13. They adopted the issues as distilled by Appellants, for the determination of the appeal. The 4th to 9th
Respondents filed no brief. And the Appellants filed a Reply Brief on 6/12/18. Arguing the Appeal, on 11/3/2019, learned Counsel for Appellants, Chidi B. Nworka Esq, answered the issue one, in the affirmative. He said that when a statute confers a right or power on a particular person, it is only that person, and none other, that can exercise that power or right. He relied on the Supreme Court (2019) LPELR-47276(CA) case ofAnyah Vs Iyayi (1993) 9 SCNJ (Pt.1) 53 at 73; Ogologo Vs Uche (2005) SCNJ 577. Counsel said that the law that governs the administration of
estate of a deceased, who dies intestate in Imo State, is the Imo State Administration of Estate Law No.14 of 1994, that the statute has provided for who has the authority to deal with the estate of a deceased person; that in this case letters of administration had been granted to the 5th and 8th Respondents, in respect of the estate of late Chief T.O. Uzoma and none of the claimants was named in that instrument as administrator. Thus, it was settled that none
of the claimants was a personal representative of the deceased and so cannot usurp the power to protect the
estate, which power was conferred by statute on the administrators.
He relied on Section 2 of the Imo State Administration of Estate Law, for the definitions and meanings of a personal
representative of a deceased, and executor or administrator of a deceased estate. He also relied on Section 11 of that
law, to say that where letters of administration has been granted, “no person shall have power to bring any action
or (2019) LPELR-47276(CA) otherwise act” as executor of the deceased person in respect of the estate comprised in the grant, until the grant is recalled or revoked. Counsel relied on the case of Egbe vs Yusuf (1992) 6 SCNJ (Pt.2)263 at 275; Agwuna Vs A.G.F. (1995) 5 SCNJ 66 at 72; Ibrahim V JSC (1998)12 SCNJ 255 at 275 – 276, on the interpretation of statute; that if the language used by the legislature is clear and explicit, the judge must give effect to it because in such a situation, the words of the Statute speak of the intention of the legislature. Ugwu Vs Ararume (1997)6 SCNJ 316 at 340.
Relating the above to the Suit, Counsel said none of the Claimants (1st to 3rd Respondents) was administrator or executor of the Estate of their deceased father, and so they had no locus standi to bring the action, which they claimed to aim at protecting the estate of late Chief T.O. Uzoma; he said that the Suit was prohibited by the said statute. He submitted that the law was trite, that where a statute provides for a particular method of performing a duty, regulated by the statute, that method and no other, must be adopted. He relied on CCB Vs A.G. Anambra State
(1992)2 SCNJ 137 at 62; Ogualaji Vs AG Rivers (1997)5 SCNJ 240 at 251. (2019) LPELR-47276(CA)
Counsel also said that by law, where a specific remedy is given by statute, it deprives the person who insists upon a
remedy of any other form than that given by the statute. He relied on Wema Bank Vs Abiodun (2006) All FWLR
(Pt.317)430 at 463. He also relied on the case of the Administrators/Executors of the Estate of General
Sani Abacha (Deceased) Vs Eke-Spiff (2009) All FWLR (Pt.467)1 at 21 SC, to the effect that “A person does not
have the locus standi, and Iacks the competence to bring an action in a representative capacity of an administrator of the estate of a deceased, until he has been granted the letters of administration. If he brought the action before the grant, such grant has no retrospective validity”. Counsel added that the children of late Chief T.O. Uzoma, being beneficiaries of the deceased estate, may be entitled to certain of other types of action, but certainly not this
one; that the Suit is statute barred and therefore not justiciable.
On issue 2, whether there is any feature at all in this suit that saves it as held by the trial Court, counsel answered,
again, in the negative (2019) LPELR-47276(CA). Counsel reproduced the holding of the trial Court on page 211 of the Records of Appeal – lines 3 – 9, and submitted, with respect, that that findings by the trial Court was not a correct statement of the law, as:
1) The same conflicted with the decision of the Supreme Court in the case of the Administrator/Executors of the Estate of General Sani Abacha (Deceased) Vs Eke Spiff (supra);
2) The Court of Appeal has stated the law to be that an individual family member lacks the legal capacity to institute action in respect of family land without the authority of that family – Nigeria Ports Plc Vs Okoh (2006) All FWLR (Part. 307) 1145 at 1161;
3) That even if it may be said that the beneficiaries had a right to sue to protect whatever beneficiary interest might have been conferred on them by customary law, that cannot be the situation once the estate of a deceased falls to be governed by statutory law, as in this case, where the Imo State Administration of Estates law No 14 of 1994 applies, after the issuance of the letters of Administration granted to 2nd and 5th Defendants. (5th and 8th Respondents).
Counsel argued that the moment an act is regulated by a statute, it is the provisions and prescriptions made by that
enabling statute that will determine how and who by that act is performed. He relied onWema Bank Vs Abiodun
(supra), to say that where a specific remedy is given by a statute, it deprives the person who insists upon a remedy of
any other form, other than that given by the statute; and that such remedy can only be obtained, if applied for by the
person upon whom the right to that remedy is conferred, and in compliance with enabling statute. He relied on
Sanusi Vs Ayoola (1992)11 – 12 SCNJ (Pt.2) 142 at 154-155; Araka Vs Ejeagwu (2000)12 SCNJ 206 at 238; CCB Vs A.G. Anambra State 10 SCNJ 137 at 163; Ude Vs Nwara (1993)2 SCNJ 47 at 62; Ogualaji Vs A.G. Rivers (1997)5 SCNJ 240 at 251.
Counsel also submitted that the trial Court wrongly applied the provisions of Order 4 Rule 3 of the High Court (Civil
Procedure) Rules of Imo State 2008 to this case, when he upheld the rights of the Claimants (1st to 3rd Respondents) to sue as beneficiaries of the Estate. Counsel relied on Order 4 Rule 3 of the Rules of the High Court, where the law requires, as follows: (2019) LPELR-47276(CA) “In probate actions, the originating process shallstate whether a claimant claims as creditor, executor, administrator, beneficiary, next of kin or in any other capacity”.
Counsel said by no stretch of imagination can the above “provision be accused of even pretending to cover a right to
sue; it merely prescribes that the capacity in which a person sues should be stated on the originating process.
But the person suing must first have a right to sue conferred by a cognizable law, and must bring the type of action that inures to him, before stating of his capacity will begin to come into play.”
Counsel also said that Rules of Court do not confer or create substantive rights of action, neither do they confer jurisdiction on the Courts; that they only regulate how a suit instituted in pursuance of a right, already conferred by
substantive law, should be conducted, being rules of procedure; that the right to sue is created or conferred by
common, customary or substantive law. Counsel said that Rules of Court are substantive law. Counsel said that Rules
of Court are subsidiary legislations whose provisions cannot compete, in validity and strengths, with those of principal statutes. He relied on Auto Import Vs Adebayo (2002)12 SCNJ 124 at 139; Afribank Vs Akwara (2006)1 SCNJ 223 at 235. He added that where there is conflict between the provisions of a principal law and that of a subsidiary legislation, the latter would quickly and respectfully excuse itself from existence, being null and void. Thus, even if it could be suggested that the Rules of Court cited by the learned trial Court provided what the Court said it did, that would be in conflict with the provisions of the principal law – Imo State Administration of Estates law, No. 14 of 1994, and consequently null and void. He argued that the trial Court merely tried to clothe the Claimants with locus standi, when it held that Section 11 of the Administration of Estates law cannot apply where fraud tainted the grant of the letters of Administration; that the claimants had alleged fraud. He disagreed with that view of the trial Court, saying that it is not proper to read into an enactment an exception which is not expressed and which will thereby deprive any person of any protection or right or recourse thereunder; that it is not the function of the Court or judge interpreting a statutory provision to import words into it that will defeat its intendment or by such process of interpretation to over-rule in effect the words of the statute Mbonu Vs Nwoti (1991)7 NWLR (Pt.206) 737 at 750.
He said that the Court is concerned with the law as it is, not as it ought to be (AGF Vs Sode (1990)1 NWLR (Pt.128) 500 at 341 – 545); that it is not the duty of the Court, by means of ingenious arguments or proposition, to becloud, change qualify or modify the clear meaning of the provisions of a statute, once such provisions are plain, unambiguous and unequivocal – Agwunja Vs A.G.F. (1995)5 SCNJ 66 at 81.
Counsel said that the Imo State Administration of Estate Law did not, in any of its provisions, enact that the prohibition of a suit by any other person, but the administrator or executor as enacted in its Section 11, is subject to allegation of fraud; he said that such exception cannot be imported into the enactment, as to do so would be to do violence to the intension of the legislature in making the law. He said that fraud may be one of the
reasons to apply to set aside or revoke a letter of Administration, but until that is done this action, by the Claimants cannot be commenced. He asserted that the Suit of the Claimants was irremediably unsustainable, infact, dead on arrival and cannot be saved. He relied onAraka Vs Ejeagwu (2000)12 SCNJ 206; Nwaonu Vs Osuchukwu (2007) All
FWLR (Pt.374)313, on when a case is statute barred; that where an action is not maintainable the Court lacks jurisdiction to entertain it. Comfort Vs Almo Gases Nig Ltd. (2006) All FWLR (Pt.335) 93; Ezeafulukwe Vs John Holt (1996)2 SCNJ 104. Responding, Uche Wisdom Durueke Esq., who settled the brief of 1st to 3rd Respondents, on the issue 1, said that it is not sacrosanct that once a person obtains letters of administration he remains so, at all cost, even when the letters were obtained by fraud; he argued that by Section 2of the Imo State Estate law, a personal representative is defined as a person named as an executor or a administrator “for the time being”; that with the phrase “for the time being”, it means that the position or status of a personal representative is temporary, not absolute. He added that any person who fraudulently assumed the position of an executor or an administrator is not one in the eye of the law, and cannot enjoy legal protection. He said that the Imo State Administration of Estate law is not an instrument of fraud and was not meant to protect fraud; that the Claimants had pleaded, copiously, that Appellants obtained the Letters of Administration by fraud – referred to paragraphs 30, 31, 33, 58, 63 and 69 of the Amended statement of claim. Thus, Counsel said Appellants’ vendors were not entitled to the protection under Section 11 of the Estates Law of Imo State, since they are also being challenged by the claimants, beneficiary of the estate, as to how they obtained the letters of Administration; that the crux of the case of the Claimants is that they are coinheritors with the 4th – 8th Respondents of the Estate of Chief T.O. Uzoma, who died intestate, being his children. Thus, the trial Court was right in its decision. Counsel also referred us to the case of Ugwu Vs Ararume
(2007)6 SCNJ 316 which held “if the language used by the legislature is clear and explicit, the judge must give effect to it, because in such asituation, the words of the statute speak of the intention of the legislature.”
Counsel said that applying the above submissions as sought by Appellants, would have amounted to injustice, if the trial Court had dismissed the Suit of the Claimants (1st to 3rd Respondents) based on Section 11 of the Estates Law; he said that it is beyond argument or doubt that the word Executor’ used in that section of the law, is clear and
explicit; that it is plain to be given its ordinary meaning of executor. He said that Appellant cannot approbate and
reprobate; that having submitted that the Court cannot import or read something else into the provision, they
(Appellants) cannot read ‘administrators’ into that Section 11, under any guise. Thus, he said the Claimants had locus standi to bring the suit, and disclosed their capacity in their pleadings –paragraphs 1, 2, 3, 4, 11, 18, 19, 20 35 and 49. He relied on the case of Adesanya Vs President FRN & Anor (1981)2 NCLR 359 at 380 for the meaning of locus standi and added that “where a relief claimed will confer some benefit on the plaintiff or he will suffer or is likely to suffer any injury or damage as a result of the act complained against, as in this case, he has locus standi.” He argued that the Claimants were the persons given authority by Chief T.O. Uzoma, in his life time, to manage the property and that that authority had not been set aside.
On issue 2, Counsel said the Appellants had not really faulted the holding of the trial Court, that “there is a legal dispute between the parties in this suit and that Claimants’ action is justiciable”, and that Appellants have not demonstrated how the above decision conflicted with the case of the Administrators/Executors of the Estate of Gen. Sani Abacha (deceased) Vs Eke-Spiff (supra), as they claimed. Counsel also founded on above case, to say the trial Court in this case at hand, did not err, especially as the land in dispute had earlier been handed to the Claimants by their father, while alive, to manage in the presence of the 2nd Defendant, and the claimants had taken charge of the property as their father’s personal representatives after his death and the title documents of the property were with the 1st Claimant!
Counsel said the title documents were stolen by the 8th Respondent, who fraudulently, with the 5th Respondent, obtained Letters of Administration of the property. Counsel said the 5th Respondent, on 12th June 2014, swore to an Oath of renunciation of the letters of Administration and thereafter solely made the Power of Attorney in respect of the property in favour of the Appellants; he said that this is bizarre and smacks of illegality; that the Claimants had raised weighty issues of illegalities, fraud and forgeries in the suit to be tried at the hearing. Counsel said the Supreme Court case ofEstate of Abacha Vs Eke-Spiff (supra), relied upon by Appellants supported the case of the Claimants, that their case was justiciable, as they clearly pleaded illegalities, fraud and forgeries, whichare criminal in nature; he said that allegation of fraud is fatal to the claims of any holder of letters of Letters of Administration, as stated by Aderemi JSC in that case ofThe Administrators/Executors of the Estate of General Sani Abacha (Deceased) Vs Ede-Spiff & Ors (2009) All FWLR (Pt.467)1 at 26, when he said: “The Court always has an undoubted jurisdiction to relief against every species of fraud. The fraud here is an unconscientious use of power arising from the circumstances or condition of the parties.” Counsel said the trial Court therefore had jurisdiction to hear the case, to resolve the allegation of fraud raised. He relied on Uwazuruike Vs Nwachukwu (2012) 12 SC (Pt.1) 200. The 1st to 3rd Respondents Counsel also made submissions reacting to Appellants’ argument as to whether or not they (1st to 3rd Respondents) had agreed to the sale of the property to the Appellants, but later backed out because of quarrel in the sharing formula with their sibling – 4th to 9th Respondents.
I think those submissions and arguments are premature at this stage as a consideration of same would delve into the
substance of the main Suit. Appellants had filed a Reply brief, wherein they argued that the Amended pleading filed by 1st to 3rd Respondents, and produced in the Additional Records of Appeal, was filed out of time and so had no place in this appeal. I do not think Appellants can wish away the said Amended Statement of claims on appeal, and at this stage of the proceedings (Reply Brief) as the process formed part of the proceeding and Records of Appeal, and Appellants did not raise any issue on that at the trial Court. They (Appellants) were aware of the said pleadings as the basis of the claimant’s claims as at 12/10/2016, when they argued their objection to the trial.
RESOLUTION OF THE ISSUES
I think the two Issues donated by the Appellants for the determination of the Appeal are apt, and I shall treat them,
together. Was the Suit, as constituted, statute barred and was the trial Court right to dismiss the objection seeking to terminate the Suit?
Appellants had argued strongly, that because the 5th and 8th Respondents had obtained the Letters of Administration to administer the intestate estates of their deceased father, Chief T.O. Uzoma, that the Claimants (1st to 3rd Respondents) are barred from taking any action to protect the property, which forms part of the intestate estate of the deceased; that they cannot usurp the power to protect said estate, which power is conferred on the Administrators – 5th and 8th Respondents. He relied on Section 11 of the Imo State Administration of Estates Law No 14 of 1994 to the effect that, where administration has been granted “no person shall have power to bring
any action or otherwise act” as executor of the deceased person in respect of the estate comprised in the grant, until
the grant is recalled or revoked. Counsel argued that “where a statute confers specific or special powers on any person or authority for the performance of certain acts, it is that person or authority, and no other, that is contemplated in the performance of those duties under the law”, he relied on the case of Anyah Vs Iyayi (1993) 9 SCNJ (Pt.1) 53 at 73.
Brilliant and sound as that argument maybe, and which accords with the law, I doubt whether the same applies to
this case, wherein the Claimants (1st to 3rd Respondents) are co-beneficiaries of the estate of their late father, and
are questioning (among other things) the issuance of the letters of Administration to the 5th and 8th Respondents,
alleging fraud and forgery in the manner the said Letters of Administration was obtained by them (5th and 8th Respondents). The Claimants (1st to 3rd Respondents) also claim that 1st Respondent was appointed by their father, when he was alive, to administer and manage the said property in dispute, No. 121 (Former 115A) Douglas Road, Owerri, and she was in possession of the title deeds of the property, until the same were stolen by
the 2nd Respondent.
The Reliefs claimed by the Claimants in the Suit are quite instructive, as the Claimants asserted their rights as beneficiaries of the estate of their late father and questioned/faulted the letters of administration, paraded by the 5th and 8th Respondents, seeking its nullification. See, in particular, the Reliefs 1, 2, 3 and 5 of the Suit:
1) A declaration that the claimants, being the biological daughters of late Chief Theophilus Obinna and Mrs. Cecilia Ogoekweaku Uzoma of Umueze Uzoagba in Ikeduru Local Government Area of Imo State are entitled, like 1st, 3rd – 5th Defendants, to inherit and have shares in the Estate of their father, CHIEF T.O. UZOMA, who died intestate on the 17th of March 2003.
2) A declaration that the 1st to 5th defendants have no rights whatsoever to deny the claimants their bonafides rights interest and entitlements to the estate of the late CHIEF T.O. UZOMA on the premise that they are women and have been married.
3) A declaration that the purported sale of No.121 (former 115A”) Douglas Road, Owerri by the 1st – 5th defendants to 6th and 7th defendants without the knowledge, agreements consent and permission of the claimants is illegal, null and void,
(5) A declaration that the letters of administration granted to the 2nd and 5th defendants by the Owerri High Court on the 29th day of June, 2006 in connection with late CHIEF T.O. UZOMA’S Estate was fraudulently (sic) and under false pretences obtained and therefore illegal, null, void and inconsequential. Appellants, in my view, would not therefore be correct to assert exclusive right/authority of the 5th and 8th Respondents to manage and administer, sell and or dispose of the property in dispute, as Executors/Administrators of the Estate of late Chief T.O. Uzoma, when the question of how the said letters of administration was obtained by them is in contention in the Suit, being challenged by the Claimants. Of course, the Section 11 of the Administration of Estates Law of Imo State, which Appellants relied on, heavily appears to enure to the Claimants, as they seek the recall or revocation of the letters of Administration granted to the 5th and 8th Respondents, that it was obtained by
fraud. Such are questions to be resolved at the hearing o the Suit.
I think the learned trial Court appreciated this point and the law, properly, when it held: “Order 4 Rules of the High Court (Civil Procedure) Rules, 2008 provides for the right to sue by a Beneficiary. The makers of the Rules are well aware of the law before making the rules and like me, did not think that Section 11 of the extant law ousts the right to sue or defend of everybody except the administrators of the deceased’s estate. I am of the view that Claimants, as beneficiaries or next of kin of the deceased, can maintain this action… I am also of the view that Section 11 of the Administration of Estate Law cannot apply, where fraud tainted the grant of the letters of Administration… Claimants are alleging fraud – see claim 5… Fraud is an offence which must be proved beyond reasonable doubt. Pam Vs Mohamed – Suit No. SC/238/2007, delivered on 30th May, 2008.” See page 212 of the Records of
Appeal.
It is trite that in law, fraud is a vitiating element, once it is established. In the case of Onwuneme & Ors vs Amah (2018) LPELR – 44698 CA, this Court relied on the Supreme Court case of Ojibah Vs Ojibah (1991) LPELR – 2374 SC; (1992) 5 NWLR (Pt.191) 296, to say as follows: “Of course, by law, fraud vitiates even the most solemn of all transactions, and so a document or purported land instrument, tainted with fraud… cannot transfer interest in land, claimed by it.” See also Ugo Vs Obiekwe & Anor (1989) LPELR – 3319 SC; (1989) 1 NWLR (Pt.999) 566. See also Afegbai Vs Edo State & Anor (2001) LPELR – 193 SC: “… as a matter of general principle, fraud, if established, vitiates consent, however apparently well given…”
I do not think it is in the overall interest of the parties(including the Appellants) for the Appellants to struggle to abort the hearing of this case by asserting the exclusive rights of only the administrators of the estate to question
the sale/administrations of the property in dispute. It should even be in the overall interest
of the Appellants, who bought the property, to ensure that they got good title.
I therefore resolve the issues against the Appellants and dismiss the appeal, as I think the Suit should be heard on
the merits. Appellant shall pay the cost of this Appeal assessed at Forty Thousand Naira (N40,000.00) only to 1st to 3rd Respondents.
THERESA NGOLIKA ORJI-ABADUA. J.C.A. :I agree.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I had read before now, the judgment just delivered by my learned brother Hon. Justice Ita George Mbaba, JCA I agree with his reasoning and conclusion. I also dismiss the appeal. I have nothing more to add. I adopt his orders as mine.
Appearances: Chidi B. Nwoka, Esq. with him, K.J. Uchendu (Mrs.) and L.I. Nze (Miss) For Appellant(s) Uche wisdom Durueke, Esq., with him, Nnaemka B. Okafor, Esq. for 1st to 3rd Respondents C.C. Onyekanne, Esq. for 4th to 9th Respondents For Respondent(s)
