UNION BANK OF NIGERIA PLC v. KER MKENA
(2019)LCN/13002(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/MK/15/2016
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC – Appellant(s)
AND
KER MKENA
(Suing as Next of Kin of the Late Dr. Terlumun Mkena) – Respondent(s)
RATIO
PERSONS TO INSTITUTE AN ACTION IN RESPECT OF THE ESTATE OF A DECEASED PERSON
By a long line of decided cases, it is incontrovertible that where a party purports to bring an action in respect of the estate of a deceased person, in order to be competent, such an action must be instituted by the Trustee, Executor or Administrator of the Estate, and no other. In the case of The Administrators/Executors of the Estate of General Sani Abacha (Deceased) V Eke-Spiff (2009) All FWLR (Pt. 467) 1, 21, D-F, & 31, D-E the Supreme Court held inter alia as follows: I go further to say that a person does not have the locus standi, indeed, he lacks the competence to bring an action in a representative capacity as an administrator of the estate of a deceased person until he has been granted the letters of administration. If he brought the action before the grant, such grant has no retroactive validity. Similarly, a person, who as a plaintiff has no legal power to sue another person as an administrator or executor of an estate of a deceased person without naming the person of such an administrator or executor on the writ and ascertaining that Letters of Administration or Probate as the case may be, thus legally empowering that person sued to administer the estate of the deceased, was obtained prior to the initiation of the suit? This is because a person has no locus standi and lacks competence to bring an action in a representative capacity as an administrator of the estate of the deceased person until he has been granted the Letters of Administration? Similarly, a person who has not applied for nor granted letters of administration authorizing him to administer the estate of a deceased person, cannot defend any action against the estate of the deceased. PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Benue State sitting at Makurdi delivered on 22 12-15, Coram Kaka’an, J. Therein, the lower Court entered Judgment in favour of the Respondent and against the Appellant in Suit No. MHC/452/2014.
The brief facts of the case may be summarized thus: By a Writ of Summons filed on 29-12-14, the Plaintiff (now Respondent) commenced an action against the Defendant (now Appellant) in his capacity as the “next of kin of late Dr. Terlumun Mkena.” By paragraph 9 of the Statement of Claim, the Respondent claimed thus:
a. ?A DECLARATION that the plaintiff being the bona fide next of kin of the estate of the late Dr. Terlumun Mkena’s account, the defendant who holds in trust plaintiff money is in a banker/customer relationship of debtor and creditor without a right to refuse payment on demand.
?b. A DECLARATION by this Honourable Court that the refusal of the defendant to pay this money to the plaintiff on demand without justifiable cause is in breach of this trust/agreement to which the plaintiff is entitled
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to payment of aggravated damages.
c. AN ORDER of this Honourable Court directing the defendant to pay to the plaintiff the sums of N755, 876.68 and N75, 500.00 being 10% as contained above to plaintiff.
d. General damages of N100, 000, 000.00 for breach of agreement against the defendant.
e. 10% post judgment interest on the sum until fully liquidated.”
At the trial, Plaintiff testified as the sole witness in proof of his claim. In addition he tendered six (6) documents being two (2) Letters of administration duly issued by the Benue State High Court of Justice in 2007 and 2014 respectively, wherein he was appointed the administrator of the Estate of the late Dr. Terlemun Mkena. The Letters of administration were admitted in evidence without objection as Exhibits A and A1 respectively. At the close of the Plaintiff?s case, the lower Court adjourned for Judgment, the Defendant not having filed any Statement of defence. However later, on the application of the Defendant, the learned trial Judge re-opened the case for the Defendant to re-examine the sole witness of the Plaintiff, PW1, and to enter her defence.
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The Defendant duly filed her Statement of Defence wherein she had raised the issue of the competence of the action. Whereas the Defendant proceeded to cross-examine the PW1, she did not thereafter adduce any evidence in support of her defence, but rested her case on that of the Plaintiff. Afterward, written addresses of Counsel were duly filed and adopted. The Defendant (now Appellant) in her written address challenged the competence of the suit, the locus standi of the Plaintiff, as well as the jurisdiction of the lower Court to entertain the case. The crux of this challenge was that the Plaintiff did not file the suit in his capacity as the Trustee, Executor or an Administrator of the Estate of the late Dr. Terlumun Mkena, but as the ?Next of kin?.
?
At the close of trial, the lower Court overruled the submissions of the Defendant on the issue of the capacity and thus locus standi of the Plaintiff, on the ground that, notwithstanding the fact that, on the face of the Writ the Plaintiff sued as the ?Next of kin? of the Late Dr. Terlumun Mkena, the capacity in which he instituted the action, id est as the administrator of the estate of the Late Dr.
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Terlumun Mkena, was disclosed in his pleadings, and proved by his oral and documentary evidence. Judgment was therefore entered in favour of the Plaintiff. It is against this Judgment that the Defendant, dissatisfied, filed his Notice of Appeal on 07-01-16, wherein he complained on four (4) grounds.
At the hearing of the Appeal on 04-03-19, C.O. Alechenu Esq., adopted the Appellant?s Brief of argument dated 08-03-16 but filed on 10-03-16 in urging the Court to allow the Appeal and set aside the Judgment of the lower Court. The Respondent and his Counsel were not in Court even though the Respondent was notified of the date for the hearing of the Appeal through his Counsel, Akor Yaaya, Esq., electronically. Consequently pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016, the Respondent?s Brief of argument dated and filed on 31-03-16, was deemed duly argued.
?
The Appellant in his Brief of argument distilled three (3) issues for determination and the issues were adopted by the Respondent. The issues read as follows:
1. ?Whether the respondent’s suit concerning the estate of the late Dr. Terlumun Mkena is competent
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having regards to the fact that the suit was filed by the respondent in his capacity as the next of kin of the late Dr. Terlumun Mkena. (Ground one)
2. Whether it was right and proper for the lower Court to have proceeded to enter its judgment in respondent’s favour in his capacity as the administrator of the estate of the late Dr. Terlumun Mkena in the circumstances of the case. (Grounds two and four)
3. Whether the lower Court was right in proceeding under Order 13 Rule 11 of the High Court of Benue State (Civil Procedure) Rules, 2007 to cloth[e] itself with the jurisdiction to entertain or try the respondent’s suit. (Ground three)
However, after scrutinizing the issues for determination vis–vis the grounds of appeal, I am of the view that the following two issues will suffice to resolve the questions arising in the Appeal:
1. Whether the Respondent?s suit is competent having regard to the fact that the Respondent filed the suit as ?The next of kin of the late Dr. Terlumun Mkena?, and not expressly as ?The Administrator? of the estate.
2. If the answer to issue one above is in the affirmative,
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whether the lower Court rightly assumed jurisdiction and entered Judgment for the Respondent.
The two issues will be addressed together.
It is the contention of learned Counsel for the Appellant that the crux of the suit at the lower Court is whether the action was competent in view of the fact that the Plaintiff initiated the suit in the capacity of the next of kin of the deceased Dr. Terlumun Mkena. Reference is made to paragraph 9(a) of the Statement of Claim to submit that the suit was not properly constituted, was incompetent and therefore the lower Court lacked jurisdiction to hear and determine same. Counsel argues that the only competent person that can sue or be sued on behalf of the estate of a deceased person is the trustee, executor or an administrator of the estate of such a deceased person. The suit should therefore have been filed in the name of the estate of the deceased person by the person appointed as the administrator of the estate by the grant of letters of administration. Therefore, that the Respondent as the next of kin of the late Dr. Terlumun Mkena, was not a proper Plaintiff and thus, the lower Court proceeded without
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jurisdiction to hear and determine the suit. Reliance is placed on the following cases: The Administrators/Executors of the Estate of General Sani Abacha (Deceased) V Eke-Spiff (2009) All FWLR (Pt. 467) 1, 21, D-F & 31, D-E; Amadiume V Ibok (2006) All FWLR (Pt. 321) 1247, 1260, F-H; & 1261, A-B; Bakare V Ajose-Adeogun (2014) All FWLR (Pt. 737) 611, 843, C-E per Ariwoola, JSC; & Gbagbarigha V Toruemi (2013) 6 NWLR (Pt. 1350) 289, 306, A-D; (2013) All FWLR (Pt. 670) 1236, 1244, F-H, per Rhodes-Vivour, JSC.
Counsel also contends that he challenged the locus standi of the Respondent, the competency of the suit, as well as the jurisdiction of the lower Court to entertain the suit in his final address at the lower Court. However, that the learned trial Judge in his Judgment suo motu and unilaterally, amended the capacity in which the Respondent commenced the suit and also amended the title of the suit without any application from any of the parties before it. It is therefore contended that he thus awarded a relief not claimed by any party. Reliance is placed on Ansa V Cross Lines Ltd (2006) All FWLR (Pt. 321) 1271, 1285, E-F. The learned trial
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Judge, not being a Father Christmas, has no jurisdiction to grant a party a relief not sought by him. Therefore, he erred when he exercised his discretion to salvage the suit. It is contended that the discretion was exercised in a vacuum and in negation of the settled position of the law that a Court is under an imperative to exercise its discretion judicially and judiciously. Reliance is placed on Global Scene Ltd V The Registrar of Trade Marks (2011) All FWLR (Pt. 558) 877, 901, A-B.
Learned Counsel further argues that the lower Court erred when it proceeded under Order 13 Rule 11 of the High Court of Benue State (Civil Procedure) Rules, 2007 to vest itself with jurisdiction to entertain and determine the suit. By this Rule of Court, a next of kin of a deceased person is neither mentioned nor contemplated as having the competence to sue or be sued on behalf of the Estate of a deceased person in such a capacity. Counsel therefore urged the Court to resolve these issues in favour of the Appellant, to allow the Appeal, set aside the Judgment of the lower Court and strike out the suit for want of jurisdiction.
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In responding to the submissions of the Appellant, learned Counsel for the Respondent pointed out that the Appellant neither had nor presented any defence at the lower Court, but rested her case on the case of the Respondent. He therefore submits that the Appellant therefore abandoned her defence to the claim in which she had pleaded that she would challenge the competence of the suit at the trial on ground of locus standi.
Nonetheless, Counsel concedes that the Respondent titled his capacity on the Writ of Summons as ?the next of kin? to late Dr. Terlumun Mkena. He however argues that this did not affect the substance of the claim and the Appellant was not in any way misled thereby. He submits that the submission of the Appellant in this regard is merely technical as it does not affect the substance of the claim before the lower Court.
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Furthermore, relying on Order 15 Rule 15 of the High Court (Civil Procedure) Rules of Benue State, 2007, Counsel argues that the Appellant was not entitled to raise any objection as to the form in which the suit was commenced since Courts have long moved away from observing rules of technicality as to form to looking at the substance of the case. Reliance is placed on Egolum V Obasanjo (1999) 7 NWLR (Pt. 611) 355 at 415; Edokpolo Co. Ltd V Ohenhen
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(1994) NWLR (Pt. 358) 518; The State V Gwonto (1983) 1 SC 142; Aderounmu V Olowu (2000) 4 NWLR (Pt. 652) 253; Nwosu V Imo State Environmental Sanitation Authority (1990) 2 NWLR 663 at 717; & A-G Bendel State V Aideyan (1989) 4 NWLR (Pt. 118) 642 at 681; Bello V A-G, Oyo State (1986) 5 NWLR (Pt. 45) 824.
Counsel also submits, relying on Adesanya V President (1981) 5 SC 112; & Thomas V Olufosoye (1986) 1 NWLR (Pt.18) 89, that locus standi denotes a situation where a party has shown and disclosed sufficient interest in a cause of action. He contends that proper parties were identified at the trial and it was shown that the Respondent had the requisite locus standi, thus satisfying the requirement spelt out in the case of The Administrator/Executors of the Estate of General Sani Abacha (supra). The Respondent had the Letters of Administration granted to him and was therefore competent to institute the action and to defend any action in respect of the estate.
?
Counsel submits that the lower Court acted rightly when it relied on Order 13 Rule
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11 of the High Court Rules to hold that it had been established that the Respondent proved that he was duly appointed the Administrator of the estate and issued with Letters of Administration entitling him to sue and be sued. He contends that the Court was also right when it found that the Respondent, being the Administrator of the estate issued with Letters of Administration, was capable of suing and being sued. It is argued that this finding did not amount to amending the claim of the Plaintiff but was borne out by the unchallenged evidence before it. In addition, it is submitted that the lower Court did not award to the Respondent what he did not claim and the learned trial Judge exercised his discretion both judicially and judiciously. The Appellant abandoned his defence as he did not adduce any evidence in support of same. Thus, the issues touching on the wrongful application of Order 13 Rule 11 of the High Court Rules, the competence of the Respondent?s suit, as well as the issue of locus standi, were only raised by the Appellant in the Defendant?s final Written Address. It is therefore submitted that the issue of locus standi having
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been raised and argued in Counsel’s address without any evidence to buttress same, should be discountenanced because, the address of Counsel, no matter how well written, cannot take the place of legal proof.
Counsel further argues that it is the Statement of Claim in its entirety that the lower Court has to examine in considering the issue of locus standi and, by extension, the Court?s jurisdiction to entertain the suit. Reliance is placed on Obaro V Probate Registrar (2001) FWLR (Pt. 59) 1381, 1389, B-D. He submits that from the Statement of Claim, particularly paragraphs 3 and 4 thereof, it was pleaded and proved by evidence that the Plaintiff was issued Letters of Administration in respect of the Estate of late Dr. Terlumun Mkena. He was thus clothed with the requisite capacity to sue and be sued and the evidence in this regard was not challenged. When afforded an opportunity to recall the Respondent for cross-examination, the Appellant did not cross-examine him on Exhibits A and A1. Even then, the documents speak for themselves and so, the fact of the cross-examination of the Respondent by the Appellant on his status, as to whether or not he is
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the next of kin, and whether or not he filed and sought the reliefs in this capacity, go to no issue. It is therefore submitted that where facts are pleaded and the evidence led is not challenged, it will be too late to make it an issue of it at the appellate Court. Reliance is placed on American Cyanamid V Vitality Ltd (1991) 2 LRCN 521, & 532; Iriri V Erhurhobara (1991) 2 LRCN 590 at 611.
Counsel therefore submits that the learned trial Judge was right in relying on Order 13 Rule 11 of the Rules of the lower Court to do substantial justice in the matter, rather than to allow the case to be defeated on technicality. The Court is therefore urged to hold that the lower Court’s reliance on Order 13 Rule 11 of its Rules did not offend the law, as the Rule itself acknowledges the capacity of the person to sue and be sued where Letters of Administration are issued.
?Finally, Counsel contends that this Court is in a position to assess damages and award same to the Respondent where the trial Court failed to assess such damages. This is more so as the trial Court found as a fact that the Appellant breached the banker/customer relationship with the
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Respondent. The Court is therefore urged to assess and award substantial damages to the Respondent accordingly. On the whole, the Court is urged to resolve these issues in favour of the Respondent, to dismiss the Appeal as lacking in merit and to affirm the decision of the lower Court.
Findings:
It is not a fact in dispute that the Respondent, as Plaintiff before the lower Court, sued the Respondent/Defendant as: ?Ker Mkena (Suing as next of kin of the late Dr. Terlumun Mkena)?. Therefore, the bone of contention is whether the suit before the lower Court was competent having been so initiated. By a long line of decided cases, it is incontrovertible that where a party purports to bring an action in respect of the estate of a deceased person, in order to be competent, such an action must be instituted by the Trustee, Executor or Administrator of the Estate, and no other. In the case of The Administrators/Executors of the Estate of General Sani Abacha (Deceased) V Eke-Spiff (2009) All FWLR (Pt. 467) 1, 21, D-F, & 31, D-E the Supreme Court held inter alia as follows:
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?I go further to say that a person does not have the locus standi, indeed, he lacks the competence to bring an action in a representative capacity as an administrator of the estate of a deceased person until he has been granted the letters of administration. If he brought the action before the grant, such grant has no retroactive validity. Similarly, a person, who as a plaintiff has no legal power to sue another person as an administrator or executor of an estate of a deceased person without naming the person of such an administrator or executor on the writ and ascertaining that Letters of Administration or Probate as the case may be, thus legally empowering that person sued to administer the estate of the deceased, was obtained prior to the initiation of the suit?
This is because a person has no locus standi and lacks competence to bring an action in a representative capacity as an administrator of the estate of the deceased person until he has been granted the Letters of Administration? Similarly, a person who has not applied for nor granted letters of administration authorizing him to administer the estate of a deceased person, cannot defend any action against the estate of the deceased. In other
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words, it is the grant of the letters of administration that confers the right to sue or be sued in the name of the estate of a deceased person.?
Thus, for a person to be competent to institute an action in respect of the estate of a deceased person, or even to defend an action commenced against the estate of a deceased, he must be an Administrator or Trustee or Executor of the estate, who has been granted Letters of Administration in that regard to administer the estate. Any other person would lack the requisite locus standi to initiate or sustain an action in respect of the estate.
In the instant case as aforesaid, it is not in dispute that the Plaintiff (now Respondent) commenced this action as ?the next of kin? of the Late Dr. Terlumun Mkena. It goes without saying that such a standing cannot vest the Plaintiff with the requisite capacity to sue. However, notwithstanding the nomenclature used by the Plaintiff, the Respondent proceeded to spell out the actual capacity in which he instituted the action in his Statement of Claim. For ease of reference, paragraphs 3 and 4 thereof are set out hereunder:
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3. ?The plaintiff at all material times is the next of kin of the late Dr. Terlumun Mkena who died intestate sometime in 2006 and was issued letters of administration by the High Court of Justice, Benue State sometime in 2007 to administer the estate including account number 2031010015543 with the defendant. The letters of administration are hereby pleaded.
4. The plaintiff avers that following the discovery of other funds in the said account, the plaintiff on request to the defendant issued an inventory of the amount in the account, processed at the registry of the same Court for a further grant of letters of administration in the sum of N755, 876.68 which the plaintiff paid the sum of N75, 500.00 representing 10% as fees for issuance of letters of administration. The inventory, further grant and official receipt are hereby pleaded.?(Emphasis supplied)?
Even though the Appellant filed her Statement of Defence in response, with the leave of Court, no evidence whatsoever was adduced in respect of the averments therein as the Appellant rested her case on the case of the Plaintiff. The averments in the Statement of Defence filed are therefore deemed abandoned.
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Subsequently during the trial, the Plaintiff, as PW1, tendered both the initial Letters of Administration and the further Letters of Administration granted to him by the Benue State High Court of Justice, and they are in evidence as Exhibits A and A1. By these two sets of Letters of Administration, the Respondent, as the next of kin of late Dr. Terlumun Mkena, was made the Administrator of the estate of the deceased, Dr. Terlumun Mkena. No evidence whatsoever was adduced to controvert these pieces of evidence.?
Therefore, the emphasis placed by the Appellant on the fact that the Respondent sued as ?the next of kin? is immaterial in view of the pleadings, substantiated by both oral and documentary evidence disclosing that even as the next of kin, he was properly clothed with the requisite capacity to sue having been granted Letters of Administration to administer the estate of his father (the account of late Dr, Terlumun Mkena with the Appellant inclusive) twice. Therefore, on the peculiar facts of the case, the issue made by the Appellant on the description of the Respondent as ?the next of kin? borders on
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technicality, the Respondent having fully established the capacity in which he instituted the action. The integrity of the evidence in this regard, to wit: the Letters of Administration was not impugned. Therefore, the learned trial Judge cannot be faulted when he held that the Letters of Administration, Exhibits A and A1, made the Plaintiff the Administrator of the estate of Dr. Terlumun Mkena.
In addition, Order 13 Rule 11 of the High Court (Civil Procedure) Rules of Benue State, 2007 provides ?
?Trustees, executors and administrators may sue or be sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the persons beneficiary interested in the trust or estate, and shall be considered as representing such person, but a Judge may, at any stage of the proceedings order any of such persons to be made parties in addition to or in lieu of the previously existing parties. This Rule shall apply to trustees, executors and administrators in proceedings to enforce a security by foreclosure or otherwise.?
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By virtue of this Rule of Court and the law as set down in decided cases, a grantee of Letters of Administration in respect of the estate of a deceased has the right to sue and be sued. What is important is the legal standing which vests in a party the capacity to approach the Court, and not the way in which he chooses to describe himself. Thus, in my humble view, the description of the Plaintiff as ?the next of kin? of the Estate of the late Dr. Terlumun Mkena on his Court processes, is merely superfluous and does not in any way detract from the fact that he was properly clothed with locus standi to institute the action, having been granted Letters of administration before he did so.?
As was earlier pointed out, the Appellant neither adduced any evidence to substantiate her defence nor did she controvert in any way the fact that the Respondent was granted Letters of Administration in respect of the Estate of late Dr. Terlumun Mkena. Her bone of contention is simply the description of the Respondent as ?the next of kin? of the Estate of the late Dr. Terlumun Mkena. To succumb to the argument of the Appellant in the light of the existence of the Letters of Administration, Exhibits A and A1,
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disclosing the capacity in which the Respondent filed the action and thus clothing him with locus standi, is to sacrifice substance on the altar of technicality. The learned trial Judge therefore acted commendably when he declined the invitation to do so. The days of technical justice are long since gone and forgotten; substantial justice must prevail over technical justice.
The Appellant does not dispute the amount standing to the account of the late Dr. Terlumun Mkena domiciled with it; neither does she dispute that the Respondent was granted the requisite Letters of Administration which enabled him to administer the estate left behind by his deceased father as well as to take legal action on behalf of the estate. Instead, she decided to embark on nitpicking in respect of the description of the Respondent as his deceased father?s next of kin. This is unwarranted and the Respondent will not be indulged by this Court. Thus, for all the afore-stated reasons, I decline the invitation to interfere with the well-considered Judgment of the lower Court.
?
On the invitation of the Respondent extended to this Court to assess and award damages to the
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Respondent, as claimed, for the breach of banker/customer relationship by the Appellant, I find it very strange. The Respondent has neither filed a Respondent?s Notice that the Judgment of the lower Court be varied and/or affirmed on grounds other than those relied upon by the lower Court pursuant to Order 9 of the Court of Appeal Rules, 2016, nor has he filed a Cross Appeal. He is therefore not entitled to such an award. I discountenance the Respondent?s peculiar submission on this. In the result, based on all my findings, I resolve both issues for determination against the Appellant.
Consequently, having so resolved, I find the Appeal completely lacking in merit. It fails and is dismissed. I award costs assessed at N100, 000.00 to the Respondent.
ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, Jummai Hannatu Sankey, JCA, made available to me in advance a draft copy of the Judgment just delivered in which this appeal was dismissed. I agree with, and adopt as mine, the resolution or the issues raised therein as well set out by my learned Brother.
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This appeal is also dismissed by me. I abide by the orders made in the lead Judgment, including the order as to costs.
JOSEPH EYO EKANEM, J.C.A.: My Lord, Sankey JCA, obliged me with a copy of the lead judgment which has just been delivered. I agree that the appeal is completely lacking in merit. I therefore dismiss the same.
I abide by the order as to costs in the lead judgment.
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Appearances:
C.O. Alechenu, Esq.For Appellant(s)
No representationFor Respondent(s)
Appearances
C.O. Alechenu, Esq.For Appellant
AND
No representationFor Respondent
