MRS. VERONICA U. OBI & ORS v. MADAM BLESSING BOSAH & ORS
(2019)LCN/12990(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/E/63/2015
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
1. MRS. VERONICA U. OBI
2. MR. CHUKWUDI OBI
3. MR. IKECHUKWU OBI
4. MRS. NKIRU OKEKE
(NEE OBI)
5. NJIDEKA OBI (MISS) Appellant(s)
AND
1. MADAM BLESSING BOSAH
(alias Blessing Obi)
2. THE ADMINISTRATOR GENERAL AND PUBLIC TRUSTEE OF ENUGU STATE
3. THE PROBATE REGISTRAR OF ENUGU STATE Respondent(s)
RATIO
THE BURDEN OF PROOF IN CIVIL PROCEEDINGS
The law is settled that in a case tried on pleadings, all relevant allegations must be proved by credible and legally admissible evidence. The burden of proof lies on the party who asserts the affirmative of the issue in contention though the burden may shift depending on how the scale of evidence preponderates. See AMAH V. AMAH (2016) LPELR-41087 (CA) AT 96-100 (B-A). SAKATI V. BAKO & ANOR (2015) LPELR-24739 (SC) AT 34 (A-F). It is the law that the burden finally rests on the party who would fail if no more evidence were led on either side. PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT IT IS THE PRIMARY FUNCTION OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PORBATIVE VALUE TO IT
The law is trite that the evaluation of the evidence led and ascription of probative value thereto is the primary function of the trial Court. Where the trial Court has properly performed its function, the appellate Court has no power to interfere or embark on re-evaluation unless it is shown that the correct findings or inferences have not been made going by the evidence on record. PER BOLAJI-YUSUFF, J.C.A.
ESSENTIALS OF A VALID CUSTOMARY MARRIAGE
It is the law that there are two essentials of a valid customary marriage. These are (1) payment of bride price and handing over of the bride to the groom. See AGBEJA V. AGBEJA (1985) 3 NWLR (PT.11) PAGE 11. OKOLONWAMU V. OKOLONWAMU (2014) LPELR-22631 (CA) AT 44-45 (E-B). PER BOLAJI-YUSUFF, J.C.A.
THE STANDARD OF PROOF IN CIVIL PROCEEDINGS WHERE THERE IS AN ALLEGATION OF CRIME
The law is trite that where an allegation of crime is made in civil proceedings, the allegation must be proved beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011. IKPEAZU V. OTTI & ORS. (2016) LPELR ? 40055 (SC) AT 77 (D-F), OGUNDELE & ANOR. V. AGIRI & ANOR. (2009) 18 NWLR (PT. 1173) 219, (2009) LPELR ? 2328 (SC). The burden is on the appellants to prove the allegation that the Letters of Administration was obtained by fraud.
In BESSOY LTD. V. HONEY LEGION (NIG.) LTD. & ANOR. (2008) LPELR 8329 (CA) AT 26 ? 27 (D-A). This Court per Agbo, JCA referred to the definition of fraud in the Black?s Law Dictionary, Abridged 5th EDITION where fraud is defined as follows:
?An intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which would have been disclosed, which deceives and is intended to deceives another so that he can act upon it to his legal injury. Any kind of artifice employed by one person to deceive another.
Elements of a cause of action for fraud include false representation of a present or past fact made by defendant, action in reliance thereupon by plaintiff, and damage resulting to plaintiff from such misrepresentation.?
In AFEGBAI V. A. G. EDO STATE (2001) 14 NWLR (PT. 733) AT 425 (2001) LPELR ? 193 (SC) AT 52 ? 53 (E-D), the Supreme Court per IGUH JSC stated the meaning of ?Fraud? as follows:
?It is firmly settled that whenever a man makes a false statement which he does not actually and honestly believe to be true, that statement is, for purpose of civil liability, as fraudulent as if he had stated that which he did not know to be true, or knew or believed to be false. So, in Derry v. Peek (1889) 14 AC. 337 HL. At 374, Lord Herschell in the judgment of the House of Lords succinctly stated that fraud is proved when it is shown that a false representation has been made by the representor
(1) Knowing, or
(2) Without belief in its truth, or
(3) Recklessly, careless whether it be true or false; the third case being but an instance of the second.
A fraudulent misrepresentation, whereby the representor has induced the representee to alter his position by entering into a contract or transaction with the representor confers the right to the representee to either maintain an action for damages, or repudiate the contract or transaction. In such a case, the representee may institute proceedings for the recession of the contract or transaction. He may also set up the fraudulent misrepresentation as a defence to any action instituted for the direct or indirect enforcement of the contract or transaction.?
See alsoUMANAH V. ATTAH & ORS. (2006) LPELR ? 3356 (SC) AT 40 (D-F). ONWUDIWE V. F. R. N. (2006) 10 NWLR (PT. 988) 382, (2006) LPELR ? 2715 (SC) AT 50 (C ? F). PER BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State delivered in suit no. E/231/2004 by Hon. Justice I. A. Umezulike on 15/10/2012. The appellants instituted the suit at the court below against the respondents and sought for the following reliefs:
(1) ?An order of Court revoking the purported Letters of Administration granted to the second defendant in this suit in respect of the Estate of Chief Elias Chukwuma Obi, as it was obtained by fraud, deceit, misrepresentation or personation.
(2) Injunction restraining the defendants by themselves and or through their agents, servants, surrogates or privies from using or implementing the purported Letters of Administration in respect of the estate of Chief Elias Chukwuma Obi, pending the final determination of this suit.
(3) A declaration that the first plaintiff was the only legal wife of late Chief Elias Chukwuma Obi, who died intestate on 28th June, 2000.
?(4) A declaration that late Chief Elias Chukwuma Obi could not in law have married another wife, let alone the
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first defendant, when his marriage to the first plaintiff was extant and subsisting.
(5) A declaration that the purported marriage of late Chief Elias Chukwuma Obi to the first defendant was null, void and of no effect ?ab initio.?
(6) A declaration that only the plaintiffs, as the wife and children of the deceased intestate late Chief Elias Chukwuma Obi, are the persons deemed to be interested in the estate of the deceased intestate and are, therefore, entitled to the grant of Letters of Administration or devolution of the property of the deceased intestate according to the appropriate law thereafter.
(7) Another order of injunction restraining the defendants by themselves or through their agents, servants, surrogates and or privies from meddling with the Estate of late Chief Elias Chukwuma Obi or having anything to do with it in any manner or form whatsoever.
The 1st defendant filed her statement of defence and counter-claimed against the plaintiffs as follows:
(a) A declaration that the 1st defendant is the second wife of late Chief Elias Chukwuma Obi and not his house maid.
(b) A declaration that the 1st defendant
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and her child have a share in the moveable and immovable properties of late Chief Elias Chukwuma Obi.
(c) An order directing the sharing of late Chief Elias Chukwuma Obi?s properties into two equal parts or as the Honourable Court may deem fit to make in the circumstance.
(d) An order restraining the plaintiffs, their agents,servants, dependants, privies and any person(s) acting on their instruction or behalf, from selling, transferring, alienating or treating the property in a way detrimental to the 1st defendant and her child, Chisom Marvis Obi.
(e) An order compelling the plaintiffs to render account of all monies they collected either jointly or severally from tenants in all immovable properties of late Chief Elias Chukwuma Obi mentioned in the statement of defence of the 1st defendant hereinabove with effect from 28th June, 2000.
(f) An order appointing a receiver/manager to receive rents and manage all immovable properties of late Chief Elias Chukwuma Obi pending the determination of this case except the Honourable Court varies the subsisting order made on 26th April, 2005 authorizing the 2nd defendant to continue the management of the said properties.?
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The appellants? case is that the 1st appellant is the wife of late Chief Elias Chukwuma Obi who died intestate on 28/6/2000. The 2nd ? 5th appellants are four of the nine children the 1st appellant and the deceased had together. They got married at St. John?s Catholic Church Ezinifite, Aguata in Anambra State in 1970. Before the church ceremony, there was payment of dowry and traditional marriage. A certificate of marriage issued for the church ceremony was tendered and admitted as Exhibit 5. According to the 1st appellant, she received consent forms Exhibit EC2 from the office of the second respondent. The forms which were already filled in the names of the 2nd ? 5th appellants fraudulently giving the impression that the 2nd ? 5th appellants requested to surrender the deceased?s estate to the second respondent. It was later discovered that Letters of Administration of the estate had been issued to the 2nd respondent without the consent of the appellants. According to the appellants, the 1st respondent was brought into the family as a domestic
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help in 1992 and left with her only child in 1993 when the child was about six weeks old. She was not the second wife of the deceased and was never married to him.
The 1st respondent?s case is that the purported marriage certificate tendered by the 1st appellant failed to comply with the authorized form stipulated under the Marriage Act and the marriage was not registered in accordance with the law. According to 1st respondent, she married the deceased under native law and custom on 1/12/1991 pursuant to the request, persuasion and pressure by the 1st appellant. The 1st appellant had a spiritual call to serve a deity and was compelled not to have sexual intercourse with her husband. The 1st appellant was conspicuously present at the marriage ceremony to show her support for the marriage. Thereafter, the 1st appellant, 1st respondent and the deceased co-habited at No. 28, Owa Street, Coal Camp, Enugu. When the 1st appellant became aggressive and violent towards the 1st respondent and her new born baby, the 1st respondent disappeared with her baby. The deceased searched for them and even wrote a letter to the
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Welfare Officer. The letter was admitted as Exhibit 18. The appellants refused to let the 1st respondent into the deceased?s compound for mourning. When the appellants sought to sell off the estate of the deceased, the 1st respondent approached the 2nd respondent to take over the administration of the estate and was transparently honest by giving the names of all the beneficiaries of the estate to the 2nd respondent. According to the 1st respondent, the description of Nkiru Okeke as the sister of the deceased was an oversight and not fraud.
?
The 2nd respondent?s case is that he properly took over the estate of the deceased after it had become unrepresented and while a controversy was raging over the estate between the appellants and 1st respondent. It is the contention of the 2nd respondent that the consent of the appellants is not necessary for him to take over the estate but the consent forms were sent to the beneficiaries to put them on notice. According to the 2nd respondent, the description of the 4th respondent as a sister of the deceased is an innocent mistake which the 4th appellant could have corrected.
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After hearing both parties, the Court below dismissed the appellants? case. On the 1st respondent?s counter claim, the Court entered judgment as follows:
?Reliefs (e) and (f) in the 1st defendant?s counter-claim care hereby denied and dismissed. For the avoidance of doubt, the remainder of the reliefs sought under the counter-claim ought to be granted and I so order. The Court decrees as follows:
(1) That the 1st defendant is the second wife of Late Chief Elias Chukwuma Obi and not his house maid;
(2) that the 1st defendant and her child have share in the moveable and immovable properties of late Chief Elias Chukwuma Obi;
(3) the plaintiffs, their agent, servants, dependents, privies and any person acting on their instruction or behalf be and are hereby restrained from selling, transferring, alienating the property in any manner detrimental to the 1st defendant and her child, Chisom Mercy Obi;
(4) that the 2nd defendant shall continue the management of the estate of late Chief Elias Chukwuma Obi in such a manner that none of the inheritors including the 1st defendant and her child,
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Chisom Mercy Obi are deprived and or disinherited and the 2nd defendant shall present quarterly report of the administration of the estate to the inheritors at a meeting to be convoked by the 2nd defendant.?
Being dissatisfied with the judgment, the appellants filed a notice of appeal on 9/11/2012. The four (4) grounds of appeal in that notice without their particulars are:
(1) ERROR IN LAW
The learned trial Court erred in law when it held that the first defendant is the wife of the deceased intestate, Chief Elias Chukwuma Obi , consequent on the decision that Exhibit 5, which is the Roman Catholic Christian Certificate of Marriage, is not in conformity with the acceptable or conventional Christian Certificate of Marriage, especially, when the 1st defendant did not tender any type of marriage certificate at that material time, 1970; thereby the honourable Court erroneously concluded that the 1st plaintiff?s monogamous marriage to late Chief E. C. Obi in a licensed place of worship was not monogamous, but ?a mere church blessing.
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(2) ERROR IN LAW
The learned trial Court erred in law when it refused to revoke the defective purported Letters of Administration, having accepted in the same judgment, that it was obtained based on a ?mistake?, which the honourable Court also termed a ?clerical error? but was, in fact, tendentiously and fraudulently used against the interest of the plaintiffs and without their consent, as epitomized in the forged consent form admitted in evidence and marked Exhibits ?EC1 and EC2? during the trial of the suit.
(3) ERROR IN LAW
The learned trial Court erred in law when it held that ?The second defendant shall continue the management of the property in issue in such a manner that the defendant shall not be deprived and the second defendant should give quarterly report
And thereby refused, failed and or neglected to consider nor accept the plaintiffs? submission that since the Letters of Administration is no longer necessary at this material time, its objective having been spent, exhausted, dissipated or in fact overtaken by events, it should have been revoked for that reason alone, especially as it was hitherto obtained by deliberate mistake,
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fraud, forgery, impersonation and misrepresentation. And the law is that after the revocation the natural law, customary law or native law and custom of the deceased intestate should have applied in accordance with Section 24 of Administration of Estates Law, Cap 5 Revised Laws of Enugu State of Nigeria 2004, (which is ?impari material with Succession (Estate of Deceased Persons) Law; Cap. 4 Laws of Anambra State of Nigeria 1986; which is the home state of the deceased instate, if we do not apply the ?lex situs? principle of law.?
(4) MISDIRECTION OF LAW
The learned trial Court misdirected itself in law when it believed, used and applied the evidence of DW2, Wilfred Chibuike Atu who admitted in the open Court that he was not the Administrator-General and Public Trustee and in fact, did not play any direct, personal nor official role in this transaction, dispute or cause of action, except that he claimed that he or his office wrote the names or forged the signatures of the plaintiffs in the Consent Forms when the plaintiffs purportedly failed to respond to the invitation of the office of the second
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defendant/respondent (A.G.P.T), but the honourable Court thereby erroneously held that ?the 2nd defendant respondent (A.G.P.T) should continue the management of the property of late Chief E. C. Obi, the deceased intestate.?
Appellants? brief was filed on 12/11/15. It was settled by Dr. G. C. Obiora-Onyia. 1st respondent?s brief was filed on 15/3/2016. It was settled by C. O. Z. Obiekwe. The 2nd respondent?s brief was filed on 4/5/16. It was settled by Ngozi Nnamani. All the briefs were deemed as properly filed and served on 25/9/17. The 3rd respondent did not file any brief of argument.
The appellants? counsel formulated four (4) issues for determination. The 1st respondent?s counsel formulated two issues for determination. The 2nd respondent formulated four issues for determination. I have compared all the issues formulated by counsel with the grounds of appeal. In my view all the issues are subsumed into the following:
(1) ?Whether the Court below erred in law when it held that the marriage between the 1st appellant and the deceased was not a
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monogamous marriage and that the traditional marriage between the 1st respondent and the deceased was valid and subsisting.
(2) Whether the Court below erred in law when it refused to revoke the Letters of Administration granted to the 2nd respondent.
On issue 1, the appellants? counsel submitted that none of the respondents disputed the valid Christian monogamous marriage conducted in accordance with valid and applicable law at the time inspite of the inelegance or otherwise of the marriage certificate Exhibit 5. He further submitted that it is paradoxical to hold that a marriage in a licensed place of worship is not monogamous because Christian marriage per se presupposes and is synonymous with a monogamous marriage and the parties were desirous to solemnize the holy matrimony as a monogamous marriage. He referred to Sections 12 and 33 of the Marriage Act, Cap 218 Laws of the Federation of Nigerian 1990 (as amended), OBIEKWE V. OBIEKWE (1963) 17 E. N. L. R 196, AIYEGBUSI. V. AIYEGBUSI (1974) SUIT NO. 1/238/71. He finally submitted that since there was a valid and monogamous statutory marriage between the 1st appellant and the
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deceased, the second purported customary marriage of the deceased and the 1st respondent was a nullity. He urged the Court to reverse the decision of the Court below because it is perverse.
In response, the 1st respondent?s counsel submitted that the 1st respondent averred in paragraph 1 of her statement of defence that the marriage between the 1st and the deceased was a mere church blessing and the appellants did not rebut that fact but merely relied on the presumption that once a marriage is contracted or solemnized in a church that marriage is automatically one under the Act. He further submitted that the certificate tendered by the appellants does not meet the requirements of the Marriage Act, the marriage was not registered in accordance with Section 26 of the Marriage Act, no certified true copy of the certificate was obtained from the Registrar of Marriages and the place where the marriage was solemnized was not proven to be a licensed place of marriage. He referred to ONWUDINJO V. ONWUDINJO (1975) VOL. 11 ERNLR. AFONNE V. AFONNE (1975) ESCLR 159. Counsel further submitted that the presence of the 1st appellant at the
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traditional marriage between the 1st respondent and the deceased shows that she was in agreement and in support of the marriage because she believed her marriage with the deceased was a mere church blessing. He argued that it will be absurd to invalidate the marriage between the 1st respondent and the deceased since there was no deceit whatsoever in the union but consensus of the three parties.
In his own response, the 2nd respondent?s counsel submitted that the issue under contention is not where the marriage was conducted and by whom but the form of the marriage certificate tendered as evidence of marriage under the Marriage Act. He referred to Sections 6, 24 and 28 of the Marriage Act and Form E in the First Schedule thereto. He submitted that the marriage certificate tendered as Exhibit 5 is nothing more than evidence of church blessing and definitely not a marriage certificate as envisaged by Section 28 of the Act not having conformed with Form E in the First Schedule to the Act. He referred to OBIEKWE V. OBIEKWE (supra) AT 199. NWANGWA V. UBANI (1997) 10 NWLR (PT. 529) PAGE 559. Counsel further submitted that for
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a document to be admissible as evidence of monogamous marriage, it must be in the Form prescribed in Form E in the First Schedule to the Marriage Act.
RESOLUTION:
The law is settled that in a case tried on pleadings, all relevant allegations must be proved by credible and legally admissible evidence. The burden of proof lies on the party who asserts the affirmative of the issue in contention though the burden may shift depending on how the scale of evidence preponderates. See AMAH V. AMAH (2016) LPELR-41087 (CA) AT 96-100 (B-A). SAKATI V. BAKO & ANOR (2015) LPELR-24739 (SC) AT 34 (A-F). It is the law that the burden finally rests on the party who would fail if no more evidence were led on either side. In the instant case, the appellants in paragraphs 1, 9, 15, 16(L), (M), (N), (O), (S), (T), (U), (V), (W) of their statement of claim averred that:
1. ?The first plaintiff was lawfully married to late Chief Elias Chukwuma Obi on 26th December, 1970, at St John?s Catholic Parish, Ezinifite and according to Ezinifite native law and custom, till his demise on 28/6/2000.
9. The first plaintiff was lawfully married to late
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Chief Elias Chukwuma Obi according to Igbo native law and custom and subsequently in accordance with the extant English and Christian Law on 26th December, 1970, at St John?s Catholic Parish, Ezinifite. The Certificate of the Marriage under reference is hereby pleaded and shall be founded and relied on during the trial of the suit.
15. On the contrary, the first defendant, who, at all material time to this suit, was a house help to the deceased intestate?s family, which includes the first plaintiff, only came into the family of the deceased intestate in 1992 and soon left around 1993, with her child who was only a month and two weeks old.
16(L) The first defendant was a house help to the first defendant and her late husband, the deceased intestate, but she lived in the same premises with them for some time, before she absconded.
(M) That after living with the plaintiffs? family for some time the first defendant took in and thereafter claimed or alleged that the deceased husband of the first plaintiff was responsible for her pregnancy, which was not correct.
(N) After the child was born on 5/8/93 the first defendant stayed
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with the plaintiffs for just one (1) month and two (2) weeks before the first defendant ran out of the house/home of the deceased intestate husband of the first plaintiff sometime in 1993, with her child till date, while the first plaintiff continued living with her husband till he departed on 28/6/2000.
(O) When confronted to find out the first defendant?s reason for abandoning the deceased intestate?s home, the first defendant said that she would not want to be in the home of an old man like the deceased intestate, who was the lawful husband of the first plaintiff.
(S) The first plaintiff was the only woman lawfully married by late Chief Elias Chukwuma Obi, till he died intestate on 28/6/2000.
(T) The wedding between the first plaintiff and her late beloved husband was not a church blessing, but a legal marriage in a licensed place of worship, which was certificated as such by the proper authorities as required by the law at that time and copies of their wedding photograph and certificate of marriage are hereby pleaded and shall be founded and relied on during the trial of this suit
(U) The first defendant came into the
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first plaintiffs matrimonial home and after one year and four months, when her child was barely a month and two weeks, she ran away from the house with the child till 28/6/2000 when the first plaintiff?s husband died.
(V) The first plaintiff, could not have ?persuaded? her house help to marry her dearly loved husband for any reason whatsoever, since especially when she had already nine (9) children for her late husband before the first defendant intruded or came into their house.
(W) Although, the first plaintiff did not bargain for nor approve of the application for the purported Letters of Administration, 27/7/2000 was just the eve or a day before her late husband?s burial and Igbo native law and custom forbids a woman mourning the death of her husband from moving about anyhow and every how, until about one (1) year after the death of such a woman?s husband, so she could not have started challenging it during the mourning period.?
The 1st respondent in paragraphs 1,4,6,7,10,16,18 of the statement of defence averred that:
1. ?The 1st defendant denies the averments in paragraph of the statement of
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claim and adds that whatever marriage the plaintiff purports to have contracted with Late Chief Elias Chukwuma Obi was a mere church blessing. The plaintiff is put to the strictest proof of the averments therein.
4. The 1st defendant vehemently denies the averments in paragraph 6 of the statement of claim and adds that the averments exist only in the minds of the plaintiffs.
6. The 1st defendant denies the averments in paragraphs 9 and 10 of the statement of claim and reiterates her contention in paragraph 1 of this statement of defence, that if there was any marriage contracted between the 1st plaintiff and Late Chief Elias Obi, it was a mere church blessing because the marriage was not registered according to the law and in a licensed place where marriage under marriage act are registered.
7. The 1st defendant admits the averments in paragraph 11 of the statement of claim except that the lawful marriage alleged that the 1st plaintiff and Late Chief Elias Obi said to have contracted was a mere church blessing because it was not solemnized in a church licensed to conduct marriages under the marriage Act.
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10. The 1st defendant denies the averments in paragraph 15 of the statement of claim to the extent that the 1st defendant was a house help. The bride price of N2,500.00 was paid on the 1st defendant in 1991.
16. Replying to the averments in paragraph 16(K) ? (Q) of the statement of claim, the 1st defendant strongly asserts that the deceased, Late Chief Elias Obi, married the 1st defendant according to Ogbunike native law and custom to the knowledge of the plaintiffs and they gave their support before the said marriage. The 1st defendant and the 1st plaintiff were bosom friends dating as far as 1991. It was the 1st plaintiff who talked the 1st defendant into marrying late Chief Elias Obi. The 1st plaintiff attended the wine carrying ceremony of the 1st defendant and Late Obi. Late Chief Elias Obi told the 1st defendant that it was only church blessing he had with the 1st plaintiff and this is why the 1st defendant agreed to marry and married late Chief Obi. The 1st defendant was a star and did not want to marry an already married person. Photographs and videos taken at the native law and custom marriage ceremonies will be relied upon at the hearing.
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18. Further, the 1st defendant ran out of the matrimonial home when the 1st plaintiff?s children threatened to kill the 1st defendant and her child. She left the matrimonial home with the full consent and approval of Late Chief Elias Obi who always visited the 1st defendant and her child at her father?s house at No. 187, Agbani Road, Enugu. The children of the 1st plaintiff became violent because they saw the 1st defendant?s child, Chisom Marvis Obi, 2 months old then, as a threat to the issue of sharing of the properties of Late Obi after his death.?
The appellants filed a reply and defence to 1st respondent?s counter-claim, However, apart from paragraph 1 of the reply where they averred that:
?Sequel to the new issues raised in the first defendant?s Statement of Defence, the plaintiffs reply to such new (novel) issues as if each were set out herein and transverse seriatim, fact for fact, sentence for sentence, paragraph to paragraph and shall at the trial rely on all legal and equitable defences open to them, but not specifically pleaded.?
they did not answer the specific averments of the
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1st respondent in paragraphs 1, 6, 7, 10, 16 and 18 of the 1st respondent?s statement of defence stated above.
The 2nd respondent in his statement of defence averred in paragraphs 5, 6 and 8 that:
5. The defendant affirms paragraph 9 of the Statement only to the extent that 1st plaintiff was married to the deceased under native law and custom but denies the fact that the marriage was celebrated under the Marriage Act.
6. The defendant admits paragraph 10 of the Statement of Claim but also stated that the marriage between 1st defendant and the deceased was also blessed with an issue a student in the secondary school who is entitled to education and maintenance from the estate of her father.
8. The 2nd defendant is not in a position to affirm or deny paragraph 14 of the Statement of Claim and puts the plaintiffs to the strictest proof of the same. In further answer thereto, the defendant affirms that the deceased also married and co-habited with the 1st defendant by whom he begat the female issue. The defendant was shown and would rely on the photographs of the said marriage ceremony of the deceased with the 1st defendant at which the 1st plaintiff featured prominently.?
No reply was filed to the above averments.
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It is clear from the above pleadings that issues were joined on the legal status of the marriage ceremony which took place between the 1st appellant and the deceased at St. John?s Catholic Parish Ezinifite on 26/12/1970 (2) whether or not the 1st respondent was married to the deceased under native law and custom.
In law, the burden is on the appellants to prove that the ceremony which took place on 26/12/1970 at St. John?s Catholic Parish, Ezinifite is a valid monogamous marriage under the Marriage Act and not a mere church blessing. In order to discharge that burden, the appellants must place before the Court the evidence of the marriage as stipulated by Section 32 of the Marriage Act which provides that:
32. ?Every certificate of marriage which shall have been filed in the office of the registrar of any district, or a copy thereof, purporting to be signed and certified as a true copy by the registrar of such district for the time being, and every entry in a marriage registrar book, or copy thereof certified as aforesaid, shall be
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admissible as evidence of the marriage to which it relates, in any Court of justice or before any person having by law or consent of parties authority to hear, receive, and examine evidence.?
It is clear from Section 32 of the Marriage Act that Marriage under the Act can be proved by (1) Certificate of Marriage filed in the office of the Registrar of the District or (2) A copy of the certificate signed and certified as a true copy of the certificate by the Registrar. (3) Entry in the marriage register book or copy thereof certified as a true copy. Exhibit 5 tendered as evidence of marriage between the 1st appellant and the deceased is a photocopy. There is nothing on its face showing that it was filed in the office of the Registrar of the district or that it is an entry in a marriage register book. It is not certified as true copy of any marriage certificate filed in the registrar?s office or as an extract of an entry in the marriage register book. In ANYAEGBUNAM V. ANYAEGBUNAM (SUPRA) the petitioner in her amended petition approached the Court for an order of judicial separation, custody of the children of the marriage, alimony pendent lite
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and maintenance for herself and the children. Upon service of the petition on the respondent, he filed an application to challenge the jurisdiction of the Court on the ground that marriage between him and the petitioner was a customary marriage followed by a church blessing and not a marriage celebrated under the marriage ordinance. In his oral testimony before the trial Court, the respondent testified that there was never a time he contracted to marry the petitioner under the Marriage Act and no marriage certificate was issued after the church blessing. Under cross-examination, the respondent admitted that he signed a register in the Catholic Church but he denied that a marriage certificate was issued and he collected it. Under re-examination, a document titled Certificate of Marriage, the content of which is similar to Exhibit 5 in this case was tendered through him. The petitioner did not testify or call evidence in rebuttal. The learned trial judge in his ruling held that:
?Taking all these into consideration, I do not accept that the marriage was ever agreed by the parties to be polygamous one.
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There was a marriage or call it church blessing in the Roman Catholic Mission between the parties in 1961. What is the effect of the Marriage Law?
It is not in dispute that there was no Registrar?s certificate before the marriage but it is my view that it cannot be disputed on the strength of the evidence before me that the petitioner and respondent had always regarded the marriage solemnized on the 28th day January, 1961, at Abatete as a monogamous marriage which is the union of one man to one woman to the exclusion of another.?
The Learned trial judge then referred to a number of cases and thereafter found finally as follows:
?These cases are quite clear and I am of the opinion that they cover the issue in this case. The petitioner believed that she underwent a monogamous marriage and in fact so did the respondent. His conduct in writing to the wife that she must accept the status quo and that his children were not illegitimate belies claims. It will be expected that if the respondent had entered into an understanding with the petitioner that their marriage was a polygamous one he should remind her that understanding
26
in one of his letters to the petitioner. The respondent failed to do so. On the evidence, I am of the opinion that respondent?s evidence is nothing more than a cock and bull story. I disbelieve it.? On appeal to the Supreme Court, the Court considered the provisions of Sections 21, 24, 25, 26 and 32 of the Marriage Act, the Court per FATAI WILLIAMS, J.S.C. held that:
?The only evidence adduced before the Court is that of the respondent/appellant who testified in categorical terms that what took place in the Church of the Holy Name of Mary on 28th January, 1961, was a ?church blessing? and not a marriage. One would have thought that the petitioner/respondent would have produced the marriage certificate or a certified copy thereof, or called the priest who performed the ceremony, or if the priest was not available, explain why and then call any of the witnesses or any of those who were present at the ceremony. Instead she offered no evidence and only put in the document (Ex.6) to which we have referred to earlier. To our mind, this document, described by the person who wrote it as a Certificate of Marriage? is
27
not in the form prescribed in Form E in the First Schedule to the Marriage Act. It could not even be regarded as a public document nor could it be described as ?the original or a certified copy of any certificate, entry, or record of ?. Marriage. ?A marriage register was referred to in the document but the register was not produced nor was the failure to produce it accounted for. At best, this document contains the hearsay evidence of what somebody called Father H. Roche could have come to Court to say on oath and be cross-examined by the respondent/appellant. No reason was given why this priest was not called. As proof of marriage it is, in our view, completely lacking in weight and value.
In the absence of any rebutting evidence, we fail to see how the learned trial judge could have found as he did that ?the petitioner believed that she underwent a monogamous marriage? or that the petitioner did not know at any time of the marriage that a Registrar?s Certificate was necessary.?
In the instant case, the court below after considering the evidence led and the content of exhibit 5 held that:
28
?The fundamental raps against Exhibit 5 are that it neither conformed to the statutory form nor was it made in compliance with Section 33 of the Marriage Act. As I hinted above, Exhibit 5 is not in conformity with the Statutory Form E in the First Schedule of the Marriage Act and furthermore, Exhibit 5 is not in accordance with practice and procedure evidencing monogamous marriage in approved churches ? refer to in the Marriage Act. My surmise therefore is that Exhibit 5 did not establish a marriage under the Act or a monogamous marriage. It was, at best, a church blessing to a non-statutory marriage. In other words, Exhibit 5 in my view did not confer statutory flavour to the marriage between the 1st plaintiff and the deceased Chief Elias Chukwuma Obi. It is, therefore, my inclusion of law and holding upon the credible evidence adduced at trial that the marriage indicated under Exhibit 5 between the spouses was a monogamous one. For this reason, the contention that any other marriage contracted by the deceased Chief Elias Chukwuma Obi in his life time ought to be null and void, does not advance the whole truth.?
29
In my view, the finding of the Court below cannot be faulted. The appellants did not discharge the burden of proving that the ceremony which took place on 26/12/1970 at St. John?s Catholic Parish was a marriage under the Act. Apart from the fact that Exhibit 5 did not conform with Form E in the First Schedule to the Act, and almost in pari-material with the certificate in Anyaegbunam?s case, it is a photocopy. A marriage certificate purportedly issued as evidence of a marriage under the Marriage Act is certainly a public document, only a certified true copy is admissible as evidence of such marriage. Exhibit 5 is certainly not a legally admissible evidence of the marriage between the 1st appellant and the deceased. Though the 1st appellant gave evidence that she got married to the deceased at St. John?s Catholic Parish on 26/12/1970 and photographs were taken but the photographs were not tendered as exhibits before the Court. She did not call anyone who attended or witnessed what happened in the church. PW2 who described himself as the uncle of the deceased said he attended the traditional marriage ceremony of
30
the 1st appellant and the deceased. He did not say that there was a marriage under the Act between the 1st appellant and the deceased or that he witnessed the ceremony in the Church.
The 1st respondent on the other hand testified that the 1st appellant was the one that persuaded her to marry the deceased and as a confirmation of her support she attended the traditional marriage ceremony between her and the deceased. She tendered the photographs of the ceremony as Exhibit 17 wherein 1st appellant is shown sitting on her left. Her evidence on the traditional marriage and the presence of the 1st appellant at the ceremony was neither challenged nor debunked under cross-examination. The Court below evaluated the evidence led and held that:
?Exhibit 20 received and viewed by the parties and their counsel showed clearly that the 1st plaintiff was in active attendance at the traditional marriage at Ogbunike between the deceased Chief Elias Chukwuma Obi and the defendant, Madam Blessing Bosah. Obviously, Exhibit 20 showed the families of Elias Chukwuma Obi including the 1st plaintiff at the traditional marriage ceremony where the 1st
31
defendant?s bride price or dowry was paid by the family of late Chief Elias Chukwuma Obi. There was also evidence of drinking of palm wine between the bride (the 1st defendant) and the groom (Chief Elias Chukwuma Obi). There was evidence of valid marriage under customary law. Furthermore, the calm presence of the 1st plaintiff as shown under Exhibit 20 is evidence of her approval against the traditional marriage depicted under Exhibit 20. Quite frankly, if the 1st plaintiff thought of her marriage with the late Chief Elias Obi as a statutory one she would have raised a caveat to the traditional marriage between her husband and the 1st defendant as shown under Exhibit 20. She did not do so. She also attended the traditional wedding ceremony and remained calm throughout the ceremony. To have turned round in her evidence before this Court to say that she never attended any such traditional wedding show that she was not forthcoming with the whole truth. It is, therefore the holding of this Court that the traditional marriage between late Chief Elias Chukwuma Obi and the 1st defendant was valid and prevailing. If the marriage between
32
Elias Chukwuma Obi and the 1st plaintiff was one under the Act, obviously the marriage evidenced under Exhibit 20 between Elias Chukwuma Obi and the 1st defendant would have been null and void. But the holding of this Court upon the evidence adduced at trial is that the marriage was not one under the Act and had no statutory favour whatsoever.?
The law is trite that the evaluation of the evidence led and ascription of probative value thereto is the primary function of the trial Court. Where the trial Court has properly performed its function, the appellate Court has no power to interfere or embark on re-evaluation unless it is shown that the correct findings or inferences have not been made going by the evidence on record.
It is the law that there are two essentials of a valid customary marriage. These are (1) payment of bride price and handing over of the bride to the groom. See AGBEJA V. AGBEJA (1985) 3 NWLR (PT.11) PAGE 11. OKOLONWAMU V. OKOLONWAMU (2014) LPELR-22631 (CA) AT 44-45 (E-B). The 1st respondent testified that she married the deceased under native law and custom of Ogbunike people and traditional ceremonies were performed.
33
That evidence was confirmed by the photographs Exhibits 6-11, their negatives and the Court below watched the video Exhibit 20 and confirmed that payment of dowry and traditional ceremonies took place. There is abundant evidence on record that the deceased, 1st appellant and 1st respondent cohabited as husband and wives after traditional marriage ceremony between 1992 and 1993. The 1st appellant claimed that the 1st respondent was her house maid and she never married the deceased but Exhibit 18 confirmed the fact that the 1st respondent was the second wife of the deceased and that Chisom Obi is his daughter. On Exhibit 18, the Court below held as follows:
?As I hinted above, P. W 1. in her evidence before this Court stated that her late husband, Elias Chukwuma Obi never accepted the child of the 1st defendant during his lifetime.
Under Exhibit 18 received at trial, the Late Elias Chukwuma Obi authored a letter to the social welfare, Enugu North in which he stated as follows:
?sir,
DISAPPEARANCE OF MY SECOND WIFE MRS BLESSING OBI AND CHILD MISS CHISOM OBI
This is to report that my second wife Mrs. Blessing Obi without any
34
iota of provocation disappeared from our matrimonial home with four month old female child from 15/5/93. The child?s name is Chisom Obi. It is my intention to emphasize that prior to her disappearance there was no trace of quarrel with me or my first wife. The above is for your information while efforts continue to trace the wife and child.
Thanks.
Sgd.
E.C. Obi
7/6/93
The above in my view is a clear evidence of acceptance of the 1st defendant as his 2nd wife and the child she bore as his own, namely, Chisom Obi. Exhibit 18 was authored in the late Chief E.C. Obi?s hand writing. It is therefore not correct to assert that the Late Elias Chuwuma Obi never recognized the 1st defendant as his second wife. It is also not correct to suggest that he never accepted the paternity of Chisom Obi as his own Child during his life time.?
In view of the evidence led and the exhibits tendered, I do not see how this Court can interfere with the finding of the Court below that the marriage between the 1st appellant and the deceased was not a monogamous marriage under the Marriage Act and that the
35
traditional marriage between the deceased and the 1st respondent is valid. For these reasons, issue 1 is resolved against the appellant.
On issue 2, the appellants? counsel referred to the consent forms, Exhibit 2 erroneously referred to by him as Exhibits ECI and EC2, DW2?s evidence that the forms were filled by a staff in the 2nd respondent?s office and the description of the 4th respondent as a sister of the deceased. He submitted that the deliberate act of signing another person?s name or forging his/her signature without his or her consent in order to obtain the Letters of Administration is a fraudulent act, impersonation or criminal misrepresentation that borders on stealing or obtaining by false pretences. He further submitted that fraud vitiates the most solemn of all transactions and no one should be allowed to benefit from his own wrong. He referred to C.O UGO V. OBIEKWE & ANOR (1989) 1 NWLR (PT.99) 566 AT 592. ANATOGU V. IWEKA II (1995) 8 NWLR (PT.415) 547 AT 558. ONYIUKE V. OKEKE (1976) NWLR 285. Counsel submitted that the Court below erred in law when it refused to revoke the defective Letters of Administration
36
having accepted that same was obtained based on a mistake which the Court termed a clerical error. Counsel argued that the deceased?s debts and funeral expenses having been paid, the remaining property should now devolve according to native law and custom of the deceased in accordance with Section 24 of the Administration of Estates Law, Cap. 5, Revised Laws of Enugu State 2004, which is in pari material with Section 24 of the Administration and Succession (Estate of Deceased Persons) Law, Cap 4, Laws of Anambra State of Nigeria, 1986. He referred to TORIOLA V. WILLIAMS (1982) ALL NLR 188 AT 197-198, UGO V. OBIEKWE & ANOR. (SUPRA). He further argued that the Letters of Administration ought to have been revoked because it has become spent and it is illegal for the 2nd respondent to continue to exercise the powers conferred on him by the questionable Letters of Administration.
?
In response, the 1st respondent?s counsel submitted that the appellants failed to prove the allegation of fraud and DW2?s evidence that the description of the 4th respondent as a sister of the deceased was a mistake which was
37
corrected was not challenged by the appellants. He further submitted that considering the fact that the 1st appellant admitted that she has been administering the estate without Letters of Administration contrary to the law, the treatment of the 2nd respondent?s invitation with levity, refusal to accept legitimacy of 1st respondent?s daughter and refusal to give anything for the maintenance of the child, the 2nd respondent is the most competent person to administer the estate in the interest of justice, fair play and equity. He further submitted that the Court below was right in ordering the 2nd respondent to continue administering the estate.
In his own response, the 2nd respondent?s counsel referred to Section 135 of the Evidence Act, 2011, NWOBODO V. ONOH (1984) 1 SCNR 17. He submitted that the intention to deceive and injury caused to the alleged victim of fraud must be proved beyond reasonable doubt. On definition of fraud he referred to ONWUDIWE V. F.R.N (2006) 10 NWLR (PT. 988) 382. He submitted that if fraud was intended, the 2nd respondent would not have sent the consent forms to the appellants as
38
the purpose of sending the forms was for them to cross check for errors and mistakes and no signature of any person was affixed on the document. He submitted that the mere clerical slip of referring to the 4th appellant as sister rather than daughter of the deceased without more cannot graduate to forgery, impersonation, fraud and obtaining by false pretence. Counsel referred to Sections 15 and 16 of the Administration of Estates Law of Enugu State. He submitted that the 2nd respondent is entitled to enter into and take over the administration of the estate where as in this case, there is apprehension of danger of misappropriation, deterioration or waste of the assets before it can be determined who is legally entitled to succession.
RESOLUTION:
The crux of the appellants? complaint against the Letters of Administration granted to the 2nd respondent is that it was obtained by fraud. The alleged fraud is that the 4th appellant who is the deceased?s daughter was described as her brother in the consent form Exhibit 2. DW2 testified that the description was an error or mistake and was corrected. The law is trite that where
39
an allegation of crime is made in civil proceedings, the allegation must be proved beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011. IKPEAZU V. OTTI & ORS. (2016) LPELR ? 40055 (SC) AT 77 (D-F), OGUNDELE & ANOR. V. AGIRI & ANOR. (2009) 18 NWLR (PT. 1173) 219, (2009) LPELR ? 2328 (SC). The burden is on the appellants to prove the allegation that the Letters of Administration was obtained by fraud.
In BESSOY LTD. V. HONEY LEGION (NIG.) LTD. & ANOR. (2008) LPELR 8329 (CA) AT 26 ? 27 (D-A). This Court per Agbo, JCA referred to the definition of fraud in the Black?s Law Dictionary, Abridged 5th EDITION where fraud is defined as follows:
?An intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which would have been disclosed, which deceives and is intended to deceives another so that he can act upon it to his legal
40
injury. Any kind of artifice employed by one person to deceive another.
Elements of a cause of action for fraud include false representation of a present or past fact made by defendant, action in reliance thereupon by plaintiff, and damage resulting to plaintiff from such misrepresentation.?
In AFEGBAI V. A. G. EDO STATE (2001) 14 NWLR (PT. 733) AT 425 (2001) LPELR ? 193 (SC) AT 52 ? 53 (E-D), the Supreme Court per IGUH JSC stated the meaning of ?Fraud? as follows:
?It is firmly settled that whenever a man makes a false statement which he does not actually and honestly believe to be true, that statement is, for purpose of civil liability, as fraudulent as if he had stated that which he did not know to be true, or knew or believed to be false. So, in Derry v. Peek (1889) 14 AC. 337 HL. At 374, Lord Herschell in the judgment of the House of Lords succinctly stated that fraud is proved when it is shown that a false representation has been made by the representor
(1) Knowing, or
(2) Without belief in its truth, or
(3) Recklessly, careless whether it be true or false; the third
41
case being but an instance of the second.
A fraudulent misrepresentation, whereby the representor has induced the representee to alter his position by entering into a contract or transaction with the representor confers the right to the representee to either maintain an action for damages, or repudiate the contract or transaction. In such a case, the representee may institute proceedings for the recession of the contract or transaction. He may also set up the fraudulent misrepresentation as a defence to any action instituted for the direct or indirect enforcement of the contract or transaction.?
See alsoUMANAH V. ATTAH & ORS. (2006) LPELR ? 3356 (SC) AT 40 (D-F). ONWUDIWE V. F. R. N. (2006) 10 NWLR (PT. 988) 382, (2006) LPELR ? 2715 (SC) AT 50 (C ? F). From the above authorities, it is clear that in order to succeed in proving allegation of fraud beyond reasonable doubt in a civil proceeding, the plaintiff must prove that: (1) There was a misrepresentation (2) That the misrepresentation was knowingly and willfully and aggressively made. (3) That the misrepresentation is false. (4) That the person making the
42
misrepresentation intended that it be acted upon by the other person to his own detriment.
In order to reach a just decision on whether or not the elements of fraud have been established beyond reasonable doubt, the entire facts and circumstances in which the misrepresentation occurred or made must be considered. In this case, it was the 1st respondent that called the attention of the 2nd respondent to the situation of the estate of the deceased. From the entire evidence on record, the fact that she gave the names of all the beneficiaries of the estate to the 2nd respondent is not in doubt. The fact that Exhibit 2 was served on the 1st appellant to bring it to the notice of the appellants that the 2nd respondent had become aware of the estate and intended to apply for Letters of Administration is also not in doubt. I agree with the respondents? counsel that if the description of the 4th appellant as a sister of the deceased was intended to deceive the 2nd respondent or defraud or deprived the appellants of their entitlements as beneficiaries of the estate, those Forms would not have been served on the 1st appellant. None of
43
the forms was signed by anybody. The signature space is empty. Apart from the misdescription of the relationship between the deceased and the 4th appellant, no other information on Exhibit 2 has been challenged. There is no scintilla of evidence on record to show that the misdescription was a willful misrepresentation by the 1st appellant or that she made the representation knowingly and recklessly with intent to defraud or to deprive the appellants of their benefits from the estate of the deceased. The law is trite that allegation of fraud must not only be pleaded with particulars it must be proved beyond reasonable doubt. It is not permissible to leave fraud to be inferred from the facts. See ONAMADE V. ACB LTD (1997) LPELR ? 2671 (SC) AT 27 (B-C), OKOLI V. MORECAB FINANCE (NIG.) LTD. (2007) 14 NWLR (PT. 1053) 37 AT 19 (B). The Court below properly evaluated the evidence led and made appropriate findings as follows:
?Under the plaintiffs? pleaded facts under paragraphs 16 and 17 thereof, allegation of fraud, obtaining property by false pretences were leveled against the 1st defendant. Obviously
44
there were indication of commission of crime against the 1st defendant under Sections 386, 443 and 460 of the Criminal Code Cap. 30 Laws of Enugu State, 2004. Being allegation of commission of crime raised in a civil action, they require upon the authorities, proof beyond reasonable doubt. Upon the cogent and credible evidence adduced at trial, there was no evidence that the allegations and or commission of those criminal acts by the 1st and 2nd defendants were reported to the police for fuller investigation and or prosecution. The anchor point of the plaintiffs was that the 4th plaintiff in one of the forms used in obtaining Letters of Administration was referred to as the sister of the deceased rather than his daughter. The said form was sent to the 4th plaintiff by the 2nd defendant for her validation and signature. I pause to ask the question, if the defendants had intended fraud or misrepresentation, would the forms have been sent to the 4th plaintiff for signature and or validation. I am inclined to accede to the contention of the defendants that it was a mistake bordering on clerical error. In any case, I do not see the materiality of describing
45
the 4th plaintiff as the sister of the deceased rather than the daughter of the deceased to the question of fraud to sound (sic) in the evidence of the Letters of Administration. For the reasons set forth above, I think no sufficient case had been made out to warrant a revocation of the Letters of Administration granted to the 2nd defendant by the 3rd defendant.?
I cannot find any reason to disturb the findings and conclusion of the Court below. The appellants failed woefully to show that the misdescription of the relationship of the 4th appellant to the deceased affected them adversely or that they have suffered any injury or that they have been deprived of their rights as beneficiaries of the deceased?s estate. The emphasis and the energy expended on that simple error or mistake amount to making a mountain out of a mole hill.
Section 16(1) of the Administration of Estates Law, Volume1 Laws of Enugu state provides that ?Where-
(a) a person dies leaving assets within the state and the Court is satisfied that
(i) there is no person immediately available who is legally entitled to succession to the assets, or
46
(ii) danger is to be apprehended of misappropriation, deterioration, or waste of those assets before it can be determined-
(A) who is legally entitled to the succession to them, or
(B) whether the Administrator-General is entitled to grant of a probate or of letters of administration of the estate of that person in respect of those assets;
(b) the agent in charge of the assets in the State belonging to-
(i) a person not residing in Nigeria, or
(ii) a company not incorporated in Nigeria, or dies without leaving a responsible person in charge of those assets; the Court may, on the application of the Administrator- General or a person interested in the assets or in their due administration, order the Administrator- General-
(A) to collect and take possession of the assets; and
(B) to hold, possess, realize, and dispose of them according to the direction of the Court, or in default of direction, to the provisions of this law, so far as applicable to those assets.?
Section 18 provides that:
18. ?Where, in the course of proceedings to obtain a grant of probate or letters of
47
administration under Sections 13, 15 or 16-
(a) a person does not appear and establish his claim to probate of a Will, or to a grant of letters of administration as next of kin within such period as to the Court seems reasonable; or
(b) a person who has established his claim to a grant of letters of administration as next of kin of the deceased fails to give such security as may be required of him by law;
The Court may grant to the Administrator-General probate or letters of administration.?
In the instant case, the 1st and 2nd respondents are interested in the due administration of the estate. The apprehension of the likelihood of the misappropriation of the assets of the estate and deprivation of the 1st respondent and her daughter of their own benefits became real with the evidence of the 1st appellant who confirmed that she has been administering the estate since the demise of the deceased without Letters of Administration and that she cannot be responsible for the maintenance of another person?s child. Obviously, she was referring to the 1st respondent?s daughter. There is no doubt that the
48
appellants are not prepared to administer the deceased?s estate fairly and justly for the benefit of all the beneficiaries of the estate particularly the 1st respondent and her child. Section 131 of the Administration of Estates Law provides that:
131. ?Nothing in this Law shall derogate from the powers of the Court which exist independently of this Law.?
Even without the provisions of Section 16 of the Administration of Estates Law, it is the inherent duty of the Court to ensure that justice is done to all manner of men without fear or favour and to enforce the provisions of Section 42(2) of the Constitution of the Federal Republic of Nigeria (as amended) that ?No Citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. Following that constitutional provision, the Courts in the land have made unequivocal pronouncements that the law in this country is that a child born out of wedlock whether outside a marriage under the Marriage Act or marriage under native law and custom is entitled to his or her share of the father?s estate once the paternity
49
of the child is acknowledged by the father. See MOTOH V. MOTOH (2010) LPELR ? 8643 (CA) AT 66 ? 67 (F ? A), UKEJE V. UKEJE (SUPRA). Even if the 1st respondent was the appellants? house maid which assertion is totally false considering the overwhelming evidence led at the Court below, the deceased acknowledged the paternity of the 1st respondent?s child. Therefore, she is entitled to her own share of her father?s estate. The Supreme Court was emphatic in Ukeje? s case that the Igbo native law and custom which deprives children born out of wedlock or female children of the right to inherit of his or her father?s estate is void as it conflicts with the provisions of the Constitution. The argument of the learned senior counsel for the appellants that the pronouncement of the Supreme Court remains a mere recommendation is not only irritating and upsetting, it is highly unprofessional. It is a direct encouragement for disobedience of the Constitution and complete disregard for the Supreme Court of the land. The primitive practice of depriving female children of
50
their inheritance and perpetrating injustice on the deceased cannot continue. The Constitution which is the grund norm has spoken and the highest Court in the land has put its stamp of authority on the unconstitutionality of that practice.
Though Section 20 of the Administration of Estates Law provides for revocation of grant of Letters of Administration to the Administrator-General, the application for such revocation must be made within six months of the grant to the Administrator-General and the Court must be satisfied that there has been no unreasonable delay in making the application. That Section provides thus:
20(1) ?Subject to this Section, where an executor or next-of-kin of the deceased who ?
(a) has not been personally served with a citation; or
(b) has not had actual notice of it in time to appear pursuant to it; establishes, to the satisfaction of the Court, a claim to probate of a will or to letters of administration in preference to the Administrator-General.
(i) the letters of administration granted, in accordance with this Law, to the Administrator-General may revoked; and<br< p=””
</br<
51
(ii) probate or letters of administration may be granted to that executor or next-of-kin, as the case may be.
(2) Letters of Administration granted to the Administrator-General shall not be revoked for that cause, upon the application of the next-of-kin of the deceased, unless-
(a) the application is made within six month of the grant to the Administrator-General; and
(b) the Court is satisfied that there has been no unreasonable delay in ?
(i) making the application, or
(ii) transmitting the authority under which the application is made.?
The Letters of Administration admitted as Exhibit 23 was granted on 13/11/2011. The suit which culminated in this appeal was instituted on 25/3/2004 almost four years after the grant to the Administrator-General. With the blunt refusal of the appellants to give the 1st respondent?s child her share of the deceased?s estate, the Court below had no choice but to allow the Administrator-General to continue the administration of the estate for the benefits of all the beneficiaries. The Court below was on a very firm ground when it refused to
52
revoke the Letters of Administration granted to the Administrator-General. I find no merit in this appeal. It is hereby dismissed. The judgment of the High Court of Enugu State delivered in suit no. E/231/2004 by Honourable Justice I. A. Umezulike on 15/10/2012 is hereby affirmed. Parties shall bear their own costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in draft the Leading Judgment just delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA. I agree in its entirety with his reasoning and conclusion that the Appeal in question has failed and should be dismissed. It is accordingly and resoundingly dismissed by me too. I also abide by the consequential orders made in the said leading Judgment.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Misitura Omodere Bolaji-Yusuff, JCA just delivered. I agree with the reasoning and conclusion contained therein.
?
For the detailed reasons adumbrated in the lead judgment, I too, therefore, find no merit in this appeal and
53
I accordingly dismiss it. The judgment of the trial Court is hereby affirmed. I abide myself by the consequential orders.
54
Appearances:
Dr. G. C. Obiora-OnyiaFor Appellant(s)
C. E. Onyemuaru for the 1st Respondent.
K. K. Odugu with him, T. E. Onove, P. C. Nnaji (all legal officers Ministry of Justice, Enugu State) for the 2nd Respondent.
No appearance for the 3rd RespondentFor Respondent(s)
Appearances
Dr. G. C. Obiora-OnyiaFor Appellant
AND
C. E. Onyemuaru for the 1st Respondent.
K. K. Odugu with him, T. E. Onove, P. C. Nnaji (all legal officers Ministry of Justice, Enugu State) for the 2nd Respondent.
No appearance for the 3rd RespondentFor Respondent
