WORGU v. WORGU & ORS (2022)

WORGU v. WORGU & ORS

(2022)LCN/16620(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, February 16, 2022

CA/PH/418/2018

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

MRS. TINA AUSTINE WORGU APPELANT(S)

And

1. MRS. MONICA WORGU 2. TRANSOCEAN SUPPORT SERVICES NIGERIA LIMITED 3. THE PROBATE REGISTRAR, RIVERS STATE HIGH COURT OF JUSTICE RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT CAN ESERCISE ITS JUDICIAL POWERS TO AID ILLEGAILITY

I refer to the legal discourse on this proposition in the legal treatise by William, Mortimer and Sunnucks, in “Executors, Administrators and Probate,” 16th Edition AT pages 92-93 and the Court of Appeal’s decision in AMODU V. OBAYOMI (1992) 5 NWLR (Pt. 242) 503 AT 512 and the Supreme Court’s earlier decision in EDOZIEN V. AMADI (1962) 2 SCNLR 205 AT 407.
The Court cannot and will not exercise the sacred judicial powers vested in it by the Constitution, 1999 As Amended to aid illegality. Fraud, whether perpetrated by concealment of facts or misrepresentation and or suppression of material facts in common law once established, vitiates everything done pursuant to the act on the legal maxim of ex turpi causa non oritur actio which simply means that an action does not arise from a base cause. See the Court of Appeal’s decision in IFEGWU V. FEDERAL REPUBLIC OF NIGERIA (2001) 13 NWLR (Pt. 729) 103. PER KOLAWOLE J.C.A

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of the Port Harcourt Division of the High Court of Justice, Rivers State, Coram: S.H Aprioku, J. delivered on 12th March, 2018 in respect of the Appellant’s claims in the Suit No: PHC/2961/2010 in the lower Court.

The Appellant, who was the Claimant/Applicant in the lower Court, had initiated the suit vide the “Amended Writ of Summons with the Amended Statement of Claim” which were amended on 4th October, 2011 vide the order of that Court dated 28th September, 2011, see: pages 1-13 of the record of appeal (“the record”). The Appellant prayed the lower Court for the following reliefs:
i. A declaration that the Claimant, for and on behalf of her infant children, is the person entitled as of right, and by law, to the grant of a Letters of Administration respecting the personal and real estates of the Late Mr. Austine Worgu, the Claimant’s deceased husband.
ii. A perpetual injunction restraining the 2nd and 3rd Defendants from recognizing and or according the 1st Defendant any right as the next of kin and personal representative of the deceased Mr. Austine Worgu.
iii. Perpetual injunction restraining the 1st Defendant from holding out or parading herself as the immediate next-of-kin and or personal representative for the real and personal estates of the deceased Mr. Austine Worgu, in the face of the Claimant and children.
iv. A declaration that the purported payment of the sum of N12,986,087.44 to the 1st Defendant by the 2nd Defendant is vitiated by fraud in that both the 1st and 2nd Defendants were aware that the Claimant is the person legally entitled to the payment of the said sum of N12,986,087.44.
v. Mandatory order of injunction against the 2nd and 1st Defendants, jointly and severally, to pay the sum of N12,986,087.44 to the Claimant being money paid by the 2nd Defendant and had and received by the 1st Defendant under fraud, and which said sum represents the Claimant’s deceased husband’s terminal benefit from the 2nd Defendant.
vi. N10,000,000.00 representing general damages against the 1st and 2nd Defendants, jointly and severally, for their collusion in perpetrating fraud in depriving the Claimant of her right to be paid the terminal and all other benefits due to the Claimant’s late husband, Mr. Austine Worgu, and thereby causing the Claimant and her infant children mental torture and material deprivation.
vii. An order setting aside and nullifying the purported Letters of Administration dated the 13-7-2010, which was wrongfully issued by the 3rd Defendant to the 1st Defendant.

The aforementioned reliefs were supported by a 41 paragraphed deposition, “The Claimant’s Statement on Oath”, as reproduced in pages 16-25 of the record, this was pursuant to Order 3 Rule 2 (i) (c) of the 2010 Rules of the lower Court, there were nine Exhibits attached to the processes filed in commencing the suit in the lower Court. The Appellant also filed a 4 paragraphed “Claimant’s Further Statement on Oath”, dated 18th May, 2011, same is as reproduced in pages 26-32.

When served with the foregoing, the 1st Respondent, who was the 1st Defendant in the lower Court, filed a 14 paragraphed “Statement of Defence of 1st Defendant”, same was dated 17th February, 2011 and filed on 18th February, 2011, wherein the 1st Respondent in this appeal, reacted to the Appellant’s averments seriatim vide pages 33-36 of the record. There was also the “Depositions of Mrs. Monica Worgu as 1st Defendant witness DW1” filed in the suit, this was sworn and filed on 18th February, 2011 dated 25th September, 2017 and reproduced in pages 38- 39 of the record.

In the same vein, the 2nd Respondent, who was the 2nd Defendant in the lower Court, on its part, responded to the Appellant’s claim in the lower Court, vide a 13 paragraphed “2nd Defendant’s Amended Statement of Defence” dated 25th September, 2017 and filed on 26th September, 2017, see pages 40-43 of the record. Also in pages 46-48 of the record, the 2nd Respondent’s “Witness Statement on Oath of Mr. Dominic Ajabor”, dated and filed on 17th July, 2017 in the suit, was therein reproduced.

The same with the 3rd Respondent, the Probate Registrar of the Rivers State High Court, who was joined as the 3rd Defendant in the suit, it also filed the “3rd Defendant’s Statement of Defence” and “Witness Deposition on Oath”, which were dated and filed on 22nd May, 2012 as reproduced in pages 57-65 of the record. Parties in the suit, subsequent to the directive of the lower Court, filed their respective final written addresses, these are as found in pages 69-115; 116-118; 119-138 and 139-143, for the Appellant, 1st, 2nd and 3rd Respondents respectively.

At the close of trial, the learned trial Judge found in favour of the Claimant in the following expression:
“The 1st Defendant from the evidence did not render any account of the money had and received from 2nd Defendant, which was paid for the benefit of the Claimant and her infant children.”

The lower Court then proceeded and held thus:
“Therefore, I have no hesitation to hold that the sum of N12,986,087.44 (Twelve Million, Nine Hundred and Eighty-Six Thousand, Eight-Seven Naira, Forty-Four Kobo) only, received by 1st Defendant, be released immediately to the Claimant, for the benefit of the Claimant and her three infant children. That 10% is hereby awarded as interest on the sum of N12,986,087.44 (Twelve Million, Nine Hundred and Eighty-Six Thousand, Eight-Seven Naira, Forty-Four Kobo) only, to be paid annually, until the judgment sum of N12,986,087.44 (Twelve Million, Nine Hundred and Eighty-Six Thousand, Eight-Seven Naira, Forty-Four Kobo) only, liquidated by the 1st Defendant.”

The learned trial Judge also awarded costs in the sum of N200,000.00 (Two Hundred Thousand Naira) only, to “be paid by the 1st Defendant, as costs of litigation, in favour of the Claimant”.
See pages 144 – 165 of the record, for the full text of the judgment of the lower Court which is the subject matter of the instant appeal.

While the judgment could be said to be in the Appellant’s favour, she was however dissatisfied by the said decision of the lower Court to give the 2nd Respondent herein, a “clean bill of health”, sequel to which the Appellant initiated this appeal.

As a result of this, the Appellant, on 10th May, 2018, filed a Notice of Appeal dated the same day, at the Registry of this Court.

The Appellant indicated, on the face of the notice of appeal, that the appeal was against “The part of the judgment in which the trial Judge failed to hold the 2nd Respondent jointly and severally liable with the 1st Respondent to the Appellant’s claims contained in paragraph 24 (i), (ii), (iii), (iv), (v), (vi), (vii)”.

The Appellant, in the notice of appeal, as found in pages 166-180 of the record, identified 10 grounds, upon which the appeal was premised, to wit:
1. The trial Judge misdirected himself on the facts and thereby erred in law when he failed to make a finding of fact on the issue of fraud which the Appellant duly proved against the 1st Respondent.
2. The trial Judge misdirected himself on the facts and thereby erred in law when he failed to make a finding of fact on the issue of fraud which the Appellant duly proved against the 2nd Respondent.
3. The trial Judge misdirected himself on the facts when he came to a finding at page 3, lines 13-16 of his judgment that the Appellant was waiting for the 2nd Defendant to write to her for the payment of the death benefits of her (Appellant’s) husband.
4. The learned trial Judge misconstrued the facts of the case and thereby occasioned a miscarriage of justice when he held at page 4, lines 15-19 of his Judgment as follows:
“The 2nd Defendant pleaded and adduced evidence to the effect that the deceased staff, Austine Marizu Worgu, did not return the “Staff Designation of Beneficiaries Form” before his demise”
5. The learned trial Judge erred in law in his analysis of the defence of the 3rd Respondent, as contained in page 5, lines 6-12 of the Judgment.
6. The learned trial Judge failed to properly appreciate the facts of the case, and which thereby led to a miscarriage of justice when he held at page 16, lines 15-19 and at page 17, lines 1-3, as follows:
“The 3rd Defendant … followed the due process and in the absence of any objection or caveat being filed, 21 days after the newspaper publication granted the letters. The 3rd Defendant took all the precautionary measures and except there was a caveat filed or objection raised, 3rd Defendant would not be aware that 1st Defendant concealed facts before the grant of the letters.”
7. The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when he failed to properly evaluate the evidence of the parties before him.
8. The learned trial Judge failed to properly evaluate the issues identified by the Appellant for the just determination of the suit which consequently led to a miscarriage of justice.
9. The learned trial Judge failed to judicially and judiciously determine the Appellant’s issue no. 4 as contained in page 14, lies 6-13 of his Judgment and thereby occasioned a miscarriage of justice.
10. The learned trial Judge erred in law when he held at page 19, lines18-20 and page 20, lines 1-2 as follows:
“I agree with the submissions, that 1st Defendant can administer the Estate, however, in my view, it must be for the benefit of the Claimant and her children.”

The Appellant proceeded in the appeal when “The Appellant’s Brief of Argument”, dated 26th March, 2019, was filed on 29th March, 2019. The Appellant’s brief was settled by Chief Paul Madu Esq., of the “Appellant’s Solicitors”, who distilled three (3) issues for determination in the appeal and they read thus:
1. Whether upon the pleadings and proper evaluation of the evidence presented by the parties; the Appellant proved the issue of fraud against the 1st and 2nd Respondents which thereby vitiated the 3rd Respondent’s grant of the subject letters of Administration to the 1st Respondent, and further nullified all other transactions following therefrom, including the 2nd Respondent’s payment of the sum of N12,986,087.44 (Twelve Million, Nine Hundred and Eighty-Six Thousand, Eighty-Seven Naira, Forty-Four Kobo) to the 1st Respondent.
2. Whether having regards to the Appellant’s pleadings, the evidence presented by the parties, and the circumstances of the case, the trial Court is justified in refusing to hold the 2nd Respondent severally and jointly liable with the 1st Respondent in denying the Appellant of the second and final benefits of her deceased husband.
3. Whether upon a proper evaluation of the evidence presented by the parties, can the Judgment of the trial Court be sustained in exonerating the 2nd and 3rd Respondents from liability in the circumstance of this case.

The 2nd Respondent, on its part, filed the “2nd Respondent’s Brief of Argument” dated 11th November, 2021, and same, having been settled by Uzoma Aikiwe, SAN, Festus Onyia, Esq., Teddy Favour Oyibo, Esq., and Onyinye Ndubuisi Esq., set down a sole issue for determination in the appeal and it reads thus:
“Whether the Judgment of the trial Court is valid and can be sustained in exonerating the 2nd Respondent from liability in the circumstances of the case.”

Similarly, the 3rd Respondent too, filed the “3rd Respondent’s Brief of Argument”, it was dated and filed on 31st July, 2019 by P.C.A Ikalaso, Esq., a Principal State Counsel of the Rivers State Ministry of Justice, Port Harcourt, Rivers State, wherein a sole issue was equally set down thus:
“Whether upon the facts of the case and the evidence at trial, was the trial Court Judgment valid and sustainable in respect of the 3rd Respondent?”

It is apt to state in the instant appeal that the 1st Respondent failed to either file any brief in the appeal or cause any appearance to be entered for her in the appeal.

SUBMISSIONS OF THE PARTIES IN THE APPEAL
The Appellant, in elaborating on what amounts to a fraud in a civil law, Counsel submitted, based on the decision in PRINCE OIL LTD V GTB PLC (2016) LPELR-40206, that acts which “include omissions and or concealments by which an undue advantage and unconscientious advantage is taken of another”. The Appellant’s Counsel stressed, whilst citing the Supreme Court’s decision in OKOLI V MORECAB FINANCE NIG LTD (2007) 14 NWLR (Pt 1053) 37 that the duo of the 1st and 2nd Respondents took advantage of the Appellant, in her palpably miserable condition and deprived her of “the only means of survival and sustenance”. The Appellant’s learned Counsel recounted, on the state of the Appellant at the material time after the death of her husband, as being that of weakness, misery and depression. Counsel stated that the Appellant’s condition was as a result of the fact that the marriage of the Appellant with her deceased husband was barely three years at the time of the demise of the late husband. The decisions in OKOLI V MORECAB FINANCE NIG LTD, supra, USEN V BANK OF WEST AFRICA LTD (1965) 1 ALL NLR 244 AT 247 and ADIMORA V AJUFO (1988) 3 NWLR (Pt 80) 13 were cited by learned Counsel to submit that the state of naivety and hopelessness of the Appellant was capitalized upon by the 1st & 2nd Respondents to defraud the Appellant. Learned counsel highlighted the conduct of the 1st Respondent that was said to be fraudulent and submitted that such conduct by the 1st Respondent vitiated the grant of the contentious letters of administration.

It is the contention of the Appellant that the conduct of the 2nd Respondent was more worrisome. It was averred that the 2nd Respondent had, at an earlier time, resisted an attempt of the 1st Respondent to wrongfully supplant the Appellant as the next-of-kin to the deceased husband of the Appellant, to which learned Counsel contended, that the 2nd Respondent did not deny this averment in the lower Court. While citing the decision in CBN V INTERSTELLA COMM LTD (2017) LPELR-43940(SC), it was submitted that the 2nd Respondent is deemed to have admitted the said assertion. The Appellant’s learned Counsel averred that the 2nd Respondent had earlier related with the Appellant on the basis of being the next-of-kin to the deceased husband of the Appellant, wherein the Appellant was invited by the 2nd Respondent, unsolicited, for the payment of the first tranche of the benefits of the late husband of the Appellant, it was contended that the 2nd Respondent, who had so acted in the past, could not turn around to deny knowing who the Appellant was to her deceased husband, a deceased employee of the 2nd Respondent. Learned counsel cited in support, the following Supreme Court decisions. See UDE V NWARA & ANOR (1993) 2 NWLR (Pt 278) 638 AT 662, JOE IGA & ORS V AMAKIRI & ORS (1978) 11 SC 11 and A.G RIVERS STATE V A.G AKWA IBOM STATE (2011) 3 SC 1 AT 33, 138. It was argued that not even the contentious grant of the letters of administration to the 1st Respondent and the tender of same to the 2nd Respondent, could avail the 2nd Respondent of liability of wrongfully recognizing the 1st Respondent as the next-of-kin to the deceased husband of the Appellant and the subsequent payment of the terminal benefit to the 1st Respondent, this was in view of the fact that the 2nd Respondent had the knowledge that the Appellant was the appropriate person so entitled. Counsel cited the decision in ABEKE V ODUNSI & ANOR (2013) LPELR-20640(SC) and HKSF V AJIBAWO (2008) 7 NWLR (Pt 1087) 511 AT 530 to argue that the 1st Respondent is precluded from approbating and reprobating at the same time.

Learned Counsel asserted that the Appellant, being the surviving spouse of the deceased husband with her children, was entitled as the personal representatives of the deceased person, so recognized under law, and the provision of the 2nd Schedule, Order 3 of the Administration of Estates Law, (cap 1) Laws of Rivers State of Nigeria, was cited in support of the proposition that the Appellant was entitled to be paid the severance benefit of her deceased husband.

It was also contended that the provision of Section 75 (2) (D) of the Labour Act 2004, made it a duty on the 2nd Respondent to keep the names and addresses of her employees, as the deceased husband of the Appellant in this instance. The Appellant’s Counsel took a swipe at the defence of the 2nd Respondent in relation to the existence of a particular form, produced and marked “Exhibit Q”, to be filled by the deceased husband of the Appellant, it was argued that the said form was undated and unsigned, the Appellant’s Counsel relied on decisions in GLOBAL SOAP & DETERGENT IND LTD V NAFDAC (2011) LPELR-4202(CA), AMIZU V NZERIBE (1989) 4 NWLR (Pt 118) 755 and SALIBAWA V HABILAT (1991) 7 NWLR (Pt 174) 461.

Appellant’s learned Counsel submitted, whilst citing the decisions in ESEIGBE V AGHOLOR (1993) 9 NWLR (Pt. 316) 218, BELLO V NBN (1992) 8 NWLR (Pt. 246) 206 and ISHOLA V AJIBOYE (1998) 1 NWLT (Pt 532) 74, that the Appellant was able to successfully prove the claim of fraud against the 1st Respondent who was said to have failed defend the allegation with credible evidence at trial. The Appellant Counsel cited elaborately the decisions in VULCAN GASES LTD V G.F IND (2001) 9 NWLR (Pt 719) 610 AT 624, UMANAH V ATTAH (2006) 17 NWLR (Pt 1009) 503, AFEGBAI V A.G EDO STATE (2001)14 NWLR (Pt 733) 425 and DERRY V PEEK (1889) 14 AC 337, RAYNOLD V ROCKONOH (2005) 10 MJSC 159, Z.P IND V SAMOTECH LTD (2007) 16 NWLR (Pt 1060) 315 and OGBEIWI V EGHAREVBA (2009) LPELR-4685(CA), and submitted that the Appellant was able to prove the allegation of fraud against the 1st and 2nd Respondents, who were said to have failed to defend same after joining issue with the Appellant on it.

The learned Counsel contended that, since the parties in the lower Court joined issue with the Appellant on the issue of fraud, the lower Court ought to make a finding on same. While relying on decisions in WACHUKWU & ANOR V OWUNWANNE & ANOR (2011) LPELR-3466(SC), OJO V GOVERNOR OF OYO STATE (1989) NWLR (Pt 95) 1, KODINLIYE V MBANEFO ODU 2 WACA 336 AT 338, FABUNMI & ANOR V OBAJE & ANOR (1968) NMLR 242 AT 247 and WOLUCHEM V GUDI (1981) 5 SC 291 AT 326, the Appellant’s learned Counsel submitted that the lower Court failed in this regard, and had thereby occasioned a miscarriage of justice on the Appellant. Learned Counsel reiterated that the issue of fraud ought not to be glossed over, as was done in the instant case by the lower Court, citing in this regard the decisions in THE DUCHESS OF KINGSTON’S CASE (1775-1802) ALL ER REP 623 AT 629 and FABUNMI V AGBE I NWLR (Pt 2) 299 AT 319. Counsel urged the Court to resolve issue 1 in favour of the Appellant.

On issue 2 of the Appellant’s formulated issues for determination, Appellant’s learned Counsel restated mostly, arguments already canvassed on the previous issue, to the effect that the 2nd Respondent would be severally and jointly liable for denying the Appellant the payment of the second and final terminal benefits of her deceased husband. It was the contention of the Appellant that the 2nd Respondent connived with the 1st Respondent in order to deprive the Appellant and her infant children of the entitlement due to them from the 2nd Respondent, being the second and final terminal benefits of the deceased husband of the Appellant, it was then submitted that the 2nd Respondent together with the 1st Respondent ought to have been found so liable in the circumstance of the case of the parties in the lower Court.

It was submitted that the lower Court erred when it failed to so hold that the 2nd Respondent is severally and jointly liable, together with the 1st Respondent, in this instance. The Appellant’s Counsel submitted that the judgment of the lower Court should not be allowed to stand and the Court was urged to so hold.

On whether the judgment of the lower Court, said to have exonerated the 2nd and 3rd Respondents, be sustained, the Appellant’s learned counsel submitted that the lower Court failed to properly evaluate evidence adduced by parties at trial. It was contended that the learned trial Judge indeed misapprehended the facts of the respective case of the parties at trial as it was evident in some of his findings. Learned Appellant’s counsel stressed that, in the circumstance of the case of the parties in the lower Court, the learned trial Judge misconstrued the facts of the case and thereby came to a perverse conclusion.

It was contended also, that the 2nd Respondent refused to make available, at the trial, the official file of the deceased husband of the Appellant, despite being put on notice, to make the said file available. While placing reliance on the provision of Section 167 (d) of the Evidence Act, 2011 and the decision in DUGHUMA V ANDZENGE (2007) ALL FWLR (Pt 385) 524 and TEWOGBADE V AKANDE (1986) NMLR 404, the Appellant’s learned Counsel submitted that the release of the said file would have been unfavourable to the case of the 2nd Respondent. It was contended that the assertion of the 2nd Respondent concerning the existence of a particular Form, marked as Exhibit Q, was largely unproved at the trial while the said exhibit was unsigned as well, and that the lower Court ought to have discountenanced same, the Court was urged to so hold. Appellant’s Counsel argued that the averments of the 2nd Respondent were unproven, and on the authorities of the decisions in CAMEROON AIRLINES V OTUTUIZU (2011) 4 NWLR (Pt 1238) 512, MOTOH V MOTOH (2011) 16 NWLR (Pt 1274) 474, OLANIYAN V OYEWOLE (2010) LPELR-9109(CA), JADCOM LTD V OGUNS ELECTRICALS (2004) 3 NWLR (Pt 859) 153 and MOHAMMED V KLARGESTER NIG LTD (2002) 14 NWLR (Pt 787) 335, ought to suffer same fate.

It was contended that the 3rd Respondent’s pleadings at trial were deemed abandoned, having not been proved with credible evidence and on the authorities cited, supra, Counsel submitted that the lower Court’s analysis of the abandoned pleadings is unsustainable in law and ought to be discountenanced by this Court. It was argued that there was no basis for the lower Court to hold that the 3rd Respondent followed due process in the grant of the letters of administration in favour of the 1st Respondent, the Appellant’s Counsel submitted that the conduct of the 3rd Respondent, in the grant of the letters of administration to the 1st Respondent fell short of diligence and that the failure of the Appellant to have raised a caveat against the said grant, can absolve the 3rd Respondent of complicity in the alleged fraud.

The Appellant’s Counsel concluded by submitting that the actual knowledge of the Appellant as the next of kin of her deceased husband fixed the 2nd Respondent with the liability for depriving the Appellant of the entitled severance benefit due to the Appellant and her children, and therefore be severally and jointly liable with the 1st Respondent in the instance, the Court was urged to so hold. The Court was urged to resolve issue 2 in favour of the Appellant and allow the appeal.

As stated earlier, the 1st Respondent failed to file any brief of argument in the instant appeal. However, the 2nd Respondent, who had donated a lone issue for determination reproduced earlier in this Judgment, argued the sole issue, when learned Counsel for the 2nd Respondent surmised that the lower Court was correct in its decision which exonerated the 2nd Respondent from liability in the instant case of the parties in the lower Court. It was asserted that all what the 2nd Respondent complied with, was the order of Court as contained in the letters of administration tendered by the 1st Respondent sequel to which the 1st Respondent was paid the severance benefit of the deceased husband of the Appellant and the 2nd Respondent’s Counsel reasoned that the 2nd Respondent could not then be sanctioned for doing what is lawful.

The 2nd Respondent’s counsel asserted, contrary to the Appellant’s submission, that the 2nd Respondent indeed denied the allegation of fraud against the 2nd Respondent in the lower Court. It was the 2nd Respondent’s contention that the Appellant misconstrued the concept of who a next-of-kin is, in the circumstance of the case of the parties in the lower Court, learned Counsel later ran an extensive discourse on what a next-of-kin concept entails and he relied on decisions in JOSEPH V FAJEMILEHIN & ANOR (2012) LPELR-9849, OBUZEZ V OBUZEZ (2007) 10 NWLR (Pt 1043) 430 and UNION BANK V MKENA (2019) LPELR and submitted that the Appellant had no legal basis to insist that she was entitled to the severance benefit of the deceased employee of the 2nd Respondent, on the singular reason of being the deceased next-of-kin. The learned Counsel maintained that the term next-of-kin has no legal implication and that same does not confer the right of inheritance on the Appellant. Counsel argued further that the sum of N370,000.00 that was given to the Appellant, as “burial assistance” to the Appellant being the wife of the deceased employee of the 2nd Respondent, it was asserted that the sum did not form part of the severance benefits due upon the death of the Appellant’s deceased husband, but same was made “ex-gratia” by the 2nd Respondent. It was also averred that the said burial assistance was given “prior to the presentation of a duly confirmed letter of administration to the 2nd Respondent by the 1st Respondent”, learned Counsel submitted on the basis of the decisions in UKAEGBU V UGOJI (1991) 6 NWLR (Pt 196) 127 AT 155 and ADIGHIJE V NWAOGU (2010) 12 NWLR (Pt 1209) 419 AT 459, that the issue of estoppel raised by the Appellant against the 2nd Respondent was unsustainable.

It was stated that the 2nd Respondent needed to clear the doubt as to which of the two persons nominated by the deceased in the 2nd Respondent’s Personal Data Form was intended by the deceased to be the beneficiary, upon which the Appellant was said to have been advised by the 2nd Respondent to obtain a letter of administration from the Probate Division of the High Court of Justice of Rivers State. It was then submitted that the bid to exercise caution on the part of the 2nd Respondent could not be regarded as approbating and reprobating. The 2nd Respondent’s Counsel argued further, whilst relying on the provision of Rule 3 of the Regulations for the Administration of Retirement and Terminal Benefits (Pension Reform Act, 2004), which mandates it that a letter of administration be produced as an adequate evidence of death of an employee, as in this instance, shows that mere naming of a next-of-kin of the deceased husband of the Appellant does not automatically entitled the Appellant to the deceased benefits with the 2nd Respondent. The learned counsel contended that not only the surviving spouse and children of a deceased person could be the personal representatives so recognized by law for the grant of a letter of administration, provision of Section 22 (1) (a) of the Administration of Estate Law of Rivers State, was cited in support of the assertion. The 2nd Respondent’s counsel emphasized that the law provides for “persons interested in the residuary estate of the deceased”, which Counsel argued, includes the 1st Respondent that was eventually paid the severance benefit of the deceased husband of the Appellant.

The 2nd Respondent’s learned Counsel, while relying on decisions in DURU V FRN (2013) 6 NWLR (Pt 1351) 441 AT 485, ATUNGWU V OCHUKWU (2013) 13 NWLR (Pt. 1375) 605 AT 637, UGWUANYI V NICON INSURANCE PLC (2013) 11 NWLR (Pt 1366) 546 AT 586 and AMADI V INEC (2013) 4 NWLR (Pt 1345) 595 AT 625, submitted that the lower Court was duty bound to interpret the wording of the cited statute “within the context of its constitutive word”. The 2nd Respondent’s counsel also relied on the provisions of the following laws: Sections 9 (8) and 75 (2) (d), The Labour Act, 2004 and Sections 13, 15, 16 & 65, Administrator General Law, Laws of Rivers State of Nigeria, 1999 and submitted that the payment of the severance benefit of the deceased husband of the Appellant to the 1st Respondent, on the basis of the letter of administration tendered by the 1st Respondent to the 2nd Respondent, was lawful. The decision in IRONBAR V FEDERAL MORTGAGE FINANCE (2009) 15 NWLR (Pt. 1165) 506 AT 533 was also cited on the submission that no beneficiary, personal representative, next-of-kin or dependents of a deceased employee, as in this instance, is automatically entitled to the claim of the deceased employee of the 2nd Respondent, without first applying and obtaining letters of administration.

On the issue of commission of fraud, Counsel relied on the provision of Section 135 (1) & (2), and Section 138 (1) & (2) of the Evidence Act, 2011 and decisions in ALUFOHAI V STATE (2015) 3 NWLR (Pt 1445) 172 AT 202, ALI V STATE (2015) 10 NWLR (Pt 1466) 1 AT 42 and ADONIKE V STATE (2015) 7 NWLR (Pt 1458) 237 and submitted that the Appellant must prove same beyond reasonable doubt, and that the Appellant failed woefully to prove the allegation of fraud against the 2nd Respondent.

On the issue of 1st Respondent’s status as an illiterate, Counsel stated that the issue of the 1st Respondent’s illiteracy only came forth seven years after her correspondence with the 2nd Respondent without the 1st Respondent disclosing her literacy status with the 2nd Respondent. The 2nd Respondent’s Counsel urged the Court to resolve the sole issue it donated in the appeal as argued in the foregoing in favour of the 2nd Respondent. We were urged to dismiss the appeal as it lacks merit.

The 3rd Respondent, who also filed a Brief of Argument in the appeal, argued the sole issue donated for determination in the appeal when it stated that the process that led to the grant and issuance of the letter of Administration in favour of the 1st Respondent was duly carried out and that same was without prejudice to the Appellant or any other interested person. It was argued that the Appellant, having not joined issue on the rationality of the grant and issuance of the letter of administration by the 3rd Respondent, it was submitted by the 3rd Respondent’s counsel that it is deemed admitted by the Appellant at the trial in the lower Court.

The 21 day legal notice for objection or caveat against the grant of the letters of administration was reportedly complied with by the 3rd Respondent, the 3rd Respondent’s counsel asserted that the averments contained in the pleadings filed in the lower Court by the 3rd Respondent, was not denied by the Appellant, and the decision in CBN V INTERSTELLA COMM LTD (2017) LPELR-43940(SC) was cited to submit that it needed not be proved, same having been admitted. It was further submitted that absence of any objection against the grant of the letter of administration, when the 1st Respondent’s application was published led the 3rd Respondent to grant it, in the manner in which it was done. It was asserted further that the Appellant admitted at trial that she did not apply for letter of administration from the 3rd Respondent. On the foregoing ground, we were urged to dismiss the appeal and affirm the Judgment of the lower Court.

RESOLUTION OF THE ISSUES FOR DETERMINATION IN THE APPEAL
The resolution of the issue in the instant appeal appears not so difficult or far-fetched, as they border on the narrow issue of payment of the severance benefit of the Appellant’s deceased husband and the appropriate person so permitted to receive the entitlement on behalf of his estate.

A brief account of the state of affairs between parties herein, prior the initiation of the suit in the lower Court is in my view, needed to be clearly stated here in order to aid a clear understanding of the decision of this Court.

The Appellant herein was married to one Austin Marizu Worgu, (now deceased), under Ikwere native law and custom of Rivers State in 2006, and the marriage was blessed with three children. The deceased husband of the Appellant, at all material time, until his demise on 1st November, 2009, was a son to the 1st Respondent herein and also a staff of the 2nd Respondent, a multinational oil servicing company, incorporated under the laws of the Federal Republic of Nigeria. Upon the death of the said Austin Worgu, issue arose on who, as between the Appellant herein and the surviving spouse of the deceased and the 1st Respondent, as the deceased’s mother, would be better suited to the grant of the severance benefit due to the said Austin Worgu from the 2nd Respondent company where the deceased had worked. The 2nd Respondent eventually opted to pay the said severance benefit to the 1st Respondent, who was said to have obtained the statutory letters of administration from the 3rd Respondent with regard to the estates of the Appellant’s deceased husband, Mr. Austine Worgu, sequel to this the Appellant, as the Claimant in the lower Court, instituted the suit that birthed the instant appeal.

Having thoroughly read through the processes and all other relevant documents in the record of appeal, I am clear in my view that the main contention of the parties in the lower Court, and by extension, in the instant appeal, could be narrowed down to the question of “whether or not the grant of the letters of administration with respect to the estates of Austin Marizu Worgu, deceased, by the 3rd Respondent, was validly granted”.., and upon the resolution of which, I believe, the instant appeal will be justly determined.

The parties through their respective counsel had canvassed arguments back and forth on the propriety or otherwise of the 3rd Respondent’s grant and issuance of the letter of administration to the 1st Respondent, consequent to which she was paid the severance benefit of the deceased husband of the Appellant by the 2nd Respondent. My noble Lords, I have endeavored to relate on these, in a fairly detailed manner earlier in this judgment.

The lower Court, in its considered judgment, reproduced in pages 144 – 165 of the record, found that the 3rd Respondent, the Probate Registrar of the High Court of Rivers State, did follow the due process in the grant of the letters of administration to the 1st Respondent. The learned trial Judge then held that:
“… in the absence of any objection or caveat being filed, 21 days after the Newspaper Publication, granted the letters. I do not find any conspiracy and fraud established against the 3rd Defendant in this case..”
The learned Judge added that:
“The 3rd Defendant took all precautionary measures and except there was a caveat filed or objection raised, 3rd Defendant would not be aware that 1st Defendant concealed facts before the grant of the letters.”

I am in agreement with the learned Judge on this premise. I am not convinced or persuaded by the submissions of the Appellant’s learned Counsel to the effect that the finding of the lower Court, as reflected above, was perverse in this regard. I have carefully perused the record before the Court in pages 66 – 68 of the record in which there was respectively the “Application for Letter of Administration”, dated 5th May, 2010 and received at the Probate Registry of the Rivers State High Court on 12th May, 2010, the publication placed in the “Tide” newspaper of Friday, May 21st, 2010, wherein the name of the 1st Respondent was listed as the Applicant against the name of the deceased, as No. 5 on the list at the Section of the publication, captioned “Legal Notice” and the certified copy of the said letter of administration in favour of the 1st Respondent, same dated 13th July, 2010, with respect to the deceased person’s “personal property”. Although, the flip side of the said letter of administration was not placed on record before this Court, but on the face of the publication in the named newspaper at page 67 of the record, it was expressly stated thus:
“WHEREAS, the persons whose names are set out in the first column hereinafter died intestate on the day and the place stated in …
AND WHEREAS, the person or persons whose names and addresses are set out in the second column hereof and who have claimed relationship to the deceased named, have applied to the High Court of Rivers State for grants of Letters of Administration on the personal property of the said deceased NOTICES is hereby given that Letters of Administration will be granted to the said Applicant or Applicants unless a NOTICE TO PROHIBIT GRANT thereof is filed in the PROBATE REGISTRY High Court, Port Harcourt within 21 (21) days from the date of publication of this NOTICE.”

My Lords, the foregoing, in my view, suffices as being capable of keeping whoever is interested in the estates of the deceased who died intestate, in the knowledge of the dealings thereon. It is my view too, that the 3rd Respondent, by these act of its, deserves to be absolved of any probable complicity in any fraudulent dealings whatsoever in this regard as there was no allegation that it benefitted from the proceeds of the entitlement paid by the 2nd Respondent to the 1st Respondent. Beside, the presumption of regularity of the act of the 3rd Respondent as a public institution or office created by law, it will inure to its defence in the lower Court, as the lower Court is so permitted to presume rationality, perhaps regularity of the letters of administration it issued unless and until same is disproved. See the provision of Section 145 of the Evidence Act, 2011 and the decisions in OGBUANYINYA V OKUDO (No 2) (1990) 4 NWLR (Pt 146) 551 and in BELLO V A.G LAGOS STATE (2007) 2 NWLR (Pt 1017) 115. On this strength, I am in agreement with the lower Court, that no fraudulent conspiracy was established or proved by the Appellant against the 3rd Respondent, and I so hold. It would have been otherwise, if it was shown that the 3rd Respondent in the course of processing the 1st Respondent’s application, failed to follow its laid down rules and procedure before the letters were issued in favour of the 1st Respondent. In the absence of such evidence, the lower Court will be required to speculate as to what led to the issuance of the letters of administration in favour of the 1st Respondent who is acknowledged as the mother of the deceased Austin Worgu.

However, the propriety of the issuance of the letters of administration under focus, granted by the 3rd Respondent to the 1st Respondent, could not be stretched to inure to the 1st Respondent who at the trial, testified that she declared that the Appellant and her three children were the beneficiaries of the estate of the deceased Austin Worgu, this was prior to the grant and issuance of the said letters of administration to her by the 3rd Respondent. The learned trial Judge found as of fact, the following:
i. That the fact is not disputed that Claimant (Appellant) was the wife of the deceased Austin Marizu Worgu, and that the marriage was blessed with three children, …
ii. That the fact was not disputed that Austin Marizu Worgu was a staff of 2nd Respondent until his death in 1/11/2009.
iii. That the fact was not equally disputed that preparatory to the late Austin Marizu Worgu’s Burial, the 2nd Respondent/Defendant, in acknowledgment of the Claimant (Appellant) as the lawfully married wife, advanced the sum of N370,000.00 (Three Hundred and Seventy Thousand Naira) only, to the exclusion of any other family member, towards the burial of late Austin Marizu Worgu.
iv. That the fact was not disputed, that the 1st Defendant (1st Respondent) the mother of late Austin Marizu Worgu without the knowledge of the Claimant (Appellant), applied for letters of administration, just to collect the death benefit of the deceased and was granted the letters by the 3rd Defendant (3rd Respondent).
v. That the fact was not disputed that the 2nd Defendant paid 1st Defendant, the death benefits of the late Austin Marizu Worgu upon presentation of the letters of administration.
See pages 158 -160 of the record.

The learned trial Judge also found that the 1st Respondent failed to render account to the Appellant, for money had and received for the benefit of the Appellant and her then infant children, as the adjudged beneficiaries of the funds paid as benefit to the estate of the deceased Austin Worgus’ family. Consequent to which the lower Court held in the manner it did.

It is important to note that the 1st Respondent, as stated earlier, did not file any brief in the appeal, nor was she represented by Counsel during the pendency of the appeal. The Appellant however was vehement in the argument that the 2nd Respondent is jointly and severally liable with the 1st Respondent, to the Appellant.

The Court, after a closer scrutiny of the pleadings of parties and testimonies of their respective witnesses in the lower Court as well as respective submissions of Counsel in the appeal, entertains no doubt that the 1st Respondent has exhibited unbridled fraudulent tendencies, all through by her devious scheming at obtaining the severance benefit of the deceased Austin Worgu.

The lower Court, in my opinion, however had maintained a deafening silence on the issue of fraud that was drummed so loudly by learned Counsel for the Appellant. Nothing, save fraud, could be imputed on the person of the 1st Respondent who, after the unsuccessful attempt to collect the initial N370,000.00 burial support funds from the 2nd Respondent, stealthy gone through the processing in order to obtain the statutory letters of administration of the estate of the deceased Appellant’s husband for the primary purpose to supplant the Appellant and the children of the marriage, that the deceased Austin Worgu had freely chosen as his next-of-kin while alive.

The 1st Respondent, after some attempts at securing the said payment failed, clandestinely in my view, proceeded to obtain the said letters of administration in place of the Appellant who had the priority as the surviving spouse of the deceased Austin Worgu. The fact that the said funds were not deployed for the benefit of the Appellant and her children underscores the fact that the letters of administration were obtained by 1st Respondent with fraudulent intent, perhaps a guilty mind.

There is no doubt that the 1st Respondent could validly apply for a grant of letters of administration, as the surviving one of the parents of the deceased person as the 1st Respondent could so act, where the surviving spouse, and the surviving children of the deceased had all died intestate, in that order of priority and would have been unavailable to apply for the letters of administration in their own behalves. See the provision of Section 47 of the Administration of Estate Laws of Rivers State and the decision in TAPA V KUKA, supra. The facts on record show that the Appellant, at all material time was unaware of the existence of or the significance of letters of Administration, an advantage of which the 1st Respondent took to the detriment of the Appellant and her then infant children. At the trial in the lower Court, when being cross-examined, the 1st Respondent admitted not to have disbursed any of the sums to the Appellant and or her children nor any beneficiary, real or perceived, the fraudulent intention of obtaining the letters of administration become more apparent, and same is liable to vitiate the grant and issuance of the letters of administration to the 1st Respondent. I find as apposite, the decision in OKOLI V MORECAB FINANCE (NIG.) LTD, supra, cited by learned counsel for the Appellant, wherein the Supreme Court, on issue of fraud and or fraudulent disposition, stated that fraud may be presumed where a party capitalized on the circumstances, weakness, and the general condition of disadvantage of the other party, as in the instant case. The 1st Respondent was at the office of the 2nd Respondent, on 8th November, 2009 for the payment of the “burial support” grant due to the family of the deceased Austin Worgu, who died barely a week to that day, precisely on 1st November, 2009. Obviously, the Appellant, who must have been devastated of the sad occurrence by the death of her husband, at the time, was pregnant with her third child, hence her condition must be viewed in the absence of contrary assertion, to have been a disadvantaged one. Whereas, the 1st Respondent, who was not deterred by the refusal of the 2nd Respondent to pay her the “burial support” fund, wrote a letter on 1st March, 2010, a period of just four (4) months after the death of her deceased son, addressed to the 2nd Respondent not to pay the Appellant the second and terminal “severance benefit” due to the family of the deceased Austin Worgu, and by 13th July, 2010, she was already armed with the letters of administration of the estate of Austin Worgu which she eventually used to collect the sum of N12, 986, 087.44, and deprived the Appellant and her children of the entitlement.

I have taken time to relate on the conduct of the 1st Respondent as gleaned from record, in this regard, it will enable the Court to determine whether allegation of fraud was established, in which case the issuance of the letters of administration will, without much ado, be rendered void as a product of concealment of material fact which when the surrounding facts are taken into consideration communally, makes the allegation of fraud probable against the 1st Respondent. My Lords, from the foregoing analysis and circumstantial evidence that can be inferred from the record, it is my view that the 1st Respondent’s conduct, as stated earlier, could not be extricated from fraudulent intention and act. The 1st Respondent, perhaps may have been exonerated if she had administered the funds paid to her for the benefit of the Appellant and children left behind by her late son.

On whether the 2nd Respondent, connived in any way with the 1st Respondent, to perpetrate fraud against the Appellant and her children, as contended by learned counsel for the Appellant, after a careful perusal of the cases of parties herein, I am unable to see collusion to commit fraud against the 2nd Respondent with the 3rd Respondent. I had earlier adverted to the fact that the 3rd Respondent is a statutory body, a public office, and it takes much more than assumed coincidence to allege and prove that it acted to collude with the 1st Respondent or the 2nd Respondent to issue the letters of administration in favour of the 1st Respondent in order to defraud the Appellant of the funds disbursed by the 2nd Respondent as final grant to the family of the late Appellant’s husband.

Although, the 2nd Respondent stated that it guided or advised both parties in contention of the deceased Austin Worgu’s severance benefit, to approach the Court for the grant of letters of administration, it is my respectful view that the hints of the 2nd Respondent in that regard was said to be made available to both contending parties for the said severance benefit, though the Appellant denied being so advised, but the 1st Respondent on her part, took the hint and was eventually paid.

I am in agreement with the 2nd Respondent in its submission that it paid the 1st Respondent the severance benefit on the basis of the authority as constituted by the letters of administration she presented before the 2nd Respondent. The company, on this note, is exculpated and absolved of any blame as to the unproved allegation of fraudulent collusion with the 1st Respondent. I am however inclined to discountenance the submission of learned counsel on the rationality of the 1st Respondent being so entitled to the said severance benefit of the Appellant’s deceased husband. I so hold.

Having held that the grant of the letters of administration to the 1st Respondent was vitiated by fraud, because the 1st Respondent never accounted to the Appellant as to what she had done with the funds disbursed to her by the 2nd Respondent, the appropriate order the Court is required to make given the entire facts and circumstances of this case, is in my opinion, and in the exercise of the inherent disciplinary jurisdiction of this Court by virtue of Section 6 (6) (a) of the Constitution, 1999 As Amended and the statutory powers conferred on this Court by virtue of Section 15 of the Court of Appeal Act, 2004 is to declare the letters of administration issued in favour of the 1st Respondent void in order to abate further dissipation of the assets of the Appellant’s late husband covered by the said letters of administration and all actions taken thereupon is hereby set aside, the 1st Respondent is consequently ordered to refund forthwith to the Appellant and her children the sum of N12, 986, 087.44 (Twelve Million, Nine Hundred and Eighty-Six Thousand, Eighty-Seven Naira, Forty-Four Kobo) only, being the second and terminal “severance benefit” due from the 2nd Respondent to the next-of-kin on record of the deceased husband of the Appellant which the 1st Respondent had unlawfully collected from the Appellant’s deceased employers, the 2nd Respondent. This is because, having regard to the findings made, the summary of which I had earlier reproduced in this judgment, the said funds in the hands of the 1st Respondent is nothing but proceeds of unjust enrichment which by the law and on equitable principles, she cannot be allowed to keep for her own benefit as incidents of her acts of perfidy in relation to the estate of the deceased, Austine Worgu as she is in eyes of the law, executor de son tort. I refer to the legal discourse on this proposition in the legal treatise by William, Mortimer and Sunnucks, in “Executors, Administrators and Probate,” 16th Edition AT pages 92-93 and the Court of Appeal’s decision in AMODU V. OBAYOMI (1992) 5 NWLR (Pt. 242) 503 AT 512 and the Supreme Court’s earlier decision in EDOZIEN V. AMADI (1962) 2 SCNLR 205 AT 407.
The Court cannot and will not exercise the sacred judicial powers vested in it by the Constitution, 1999 As Amended to aid illegality. Fraud, whether perpetrated by concealment of facts or misrepresentation and or suppression of material facts in common law once established, vitiates everything done pursuant to the act on the legal maxim of ex turpi causa non oritur actio which simply means that an action does not arise from a base cause. See the Court of Appeal’s decision in IFEGWU V. FEDERAL REPUBLIC OF NIGERIA (2001) 13 NWLR (Pt. 729) 103.

The lower Court having made the appropriate order directing the 1st Respondent to refund the money collected from the 2nd Respondent for and on behalf of the beneficiaries of the estate of the Appellant’s deceased husband is in my view, a proper order to made, but the appeal fails on the ground that I was unable to indict the 2nd and 3rd Respondents severally or collectively as having colluded with the 1st Respondent to perpetrate fraud against the Appellant. In page 164 of the record, the lower Court held as follows:
“Therefore, I have no hesitation to hold that the sum of N12,986.087.44 (Twelve Million, Nine Hundred and Eighty-Six Thousand Eighty-Seven Naira, Forty-Four kobo) only, received by the 1st Defendant, be released immediately to the Claimant, for the benefit of Claimant and her three infant children.”

The learned trial Judge further proceeded to order that: “10% is hereby awarded as interest on the sum of N12,986.087.44 (Twelve Million, Nine Hundred and Eighty-Six Thousand, Eighty-Seven Naira, Forty-four Kobo) only, be paid annually, until the Judgment sum of N12,986.087.44 (Twelve Million, Nine Hundred and Eighty-Six Thousand, Eighty-Seven Naira, Forty-four Kobo) only be paid annually, is liquidated by the 1st Defendant. I will award costs in the sum of N200,000.00 (Two Hundred Thousand Naira) only, be paid by the 1st Defendant, as costs of litigation, in favour of the Claimant.”

In the light of this decision, my view is that the appeal fails on the issue that the lower Court did not find the 2nd and 3rd Respondents liable on the allegation of collusion to commit fraud against the Appellant. The appeal fails on this score and both parties shall bear their respective costs of prosecuting this appeal. I affirm the judgment of the lower Court delivered on 12th March, 2018 by the Hon Justice S.H. Aprioku in suit No. PHC/2961/2010.

The appeal fails and its hereby dismissed against the 2nd and 3rd Respondents.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the robust judgment prepared by my learned brother His Lordship, Gabriel Omoniyi Kolawole, JCA., and desire, if I may, to add these few words by way of emphasis. Section 47 of the Administration of Estates Law Cap. 1 Laws of Rivers of Nigeria 1999, read with the Second Schedule thereto is clear by order of priority or ranking that unless the surviving spouse of the deceased and/or the surviving children or child of the deceased had died and thus unavailable before a parent of the deceased may apply for Letters of Administration in respect of the estate of the deceased.

Upon perusal of the record, whilst I too find the conduct of the 1st respondent unenviable, it is hard to link the respondent’s said unsavoury conduct with the 2nd-3rd respondents to suggest or intone that there was collusion between the 1st respondent and the 2nd-3rd respondents in the grant of Letters of Administration to the 1st respondent. The 1st respondent (if I may be permitted to say so) was a lone wolf in the unsalutary events that led to a grant of the Letters of Administration to her in this case.

For the above reason and on account of the incisive reasons given in the lead judgment, I too find no substance in the appeal with respect to the alleged culpability of the 2nd – 3rd respondents in the grant of the Letters of Administration to the respondent and would dismiss the appeal as it affects the 2nd – 3rd respondents only and abide by the consequential order(s) contained in the lead judgment.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have read the lead judgment of my learned brother, Gabriel O. Kolawole JCA where he adjudged the instant appeal as lacking in merit and consequently dismissed it. I agree with the analysis and resolution of issues canvassed.

I too dismiss the appeal.