Next of Kin: Not Next in Line for the Estate

CASE TITLE: DASHE v. DAVID & ANOR (2025) LPELR-81124(CA)

JUDGMENT DATE: 5TH MAY, 2025

JUSTICES: BIOBELE ABRAHAM GEORGEWILL, J.C.A.
BATURE ISAH GAFAI, J.C.A.
NEHIZENA IDEMUDIA AFOLABI, J.C.A

DIVISION: MAKURDI

PRACTICE AREA: PROPERTY LAW

FACTS:

This appeal borders on Administration of Estate.

This is an appeal against the judgment of the High Court of Nasarawa State, Lafia Division.

By an Originating Motion filed before the trial Court, the Appellant commenced this suit against the Respondent, his son.

On one hand, according to the Appellant, he is the father of the deceased, his last son, who was a lieutenant in the Nigerian Army and died in active service in the year 2018 while fighting Boko Haram insurgents in Maiduguri. The 1st Respondent is his 1st son, with 2 other siblings. After the death of his last son, the deceased, the 1st Respondent, who was one of the two Next of Kins appointed by the deceased, proceeded to apply, obtain Letter of Administration from the 2nd Respondent at the Probate Registry of the Nasarawa State High Court under the false representation that the deceased in his lifetime was resident in Nasarawa Eggon in Nasarawa State within the jurisdiction of the Nasarawa State High Court, a fact which was false to the knowledge of the 1st Respondent, and converted the estate of the deceased to his personal property and for his sole benefit alone, and had so far collected and spent over the sum of N7, 000. 000. 00 received from the Nigerian Army as part of the estate of the deceased. Regrettably, all efforts to have the 1st Respondent reconsider his conduct and make amends failed, hence the suit filed before the trial Court by the Appellant seeking to set aside the grant of the Letters of Administration issued to the 1st Respondent by the 2nd Respondent.

On the other hand, according to the 1st Respondent, he is the elder brother to the deceased, who, in his life, both during his NYSC and thereafter up to his serving in the Nigerian Army, resided in Nasarawa Eggon in Nasarawa State with him, where he resides and works, and was appointed by his deceased brother, in his lifetime, as one of his two Next of Kins. After the death of the deceased, whilst on active service at the battle field in Maiduguri, it was to him the Nigerian Army wrote to apply for the death benefits of his deceased brother, which he subsequently did by applying for and obtaining the Letters of Administration over the Estate of his deceased brother from the 2nd Respondent at the Probate Registry of the High Court of Nasarawa State, the place of abode of the deceased, where he also maintained a bank account right from the days of his NYSC therein. He has never at any time neither made any false representation to the 2nd Respondent nor converted the Estate of the deceased to his personal property, but has been using the proceeds of the Estate of the deceased for the welfare of the family.

Upon the joinder of issues, the matter proceeded to hearing before the trial Court. The trial Court delivered its judgment, in which it dismissed the claims of the Appellant as Applicant against the Respondent for lacking in merit.

Dissatisfied, the Appellant appealed.

ISSUES FOR DETERMINATION:

The Court adopted the issues formulated by the Appellant, viz:

1. Whether the Appellant successfully proved mis-representation, fraud or vitiating circumstances that vitiated and robbed the lower Court of the jurisdiction to grant the Letter of Administration to the 1st Respondent?

2. Whether the lower Court was right in law when it held thus: “The Reliefs sought for by the Applicant is for the setting aside of the Letter of Administration on grounds of fraud and not the due and proper administration of the Estate?

3. Whether the lower Court properly evaluated the evidence placed before it and ascribed the right probative value to same?

COUNSEL SUBMISSIONS:

On issues one and three, learned counsel for the Appellant had submitted inter alia that it is not in dispute between the parties that both parties, as well as the deceased in his life time, are members of the same family and hail from Plateau State and permanently domiciled in Jos, and neither from Nasarawa Eggon in Nasarawa State nor domiciled in Nasarawa Eggon in Nasarawa State, and contended that in law for the Estate of a deceased to be administered with Letters of Administration in Nasarawa State, such a person must be one whose abode is with Nasarawa State and is, therefore, subject to the jurisdiction of the High Court of Nasarawa State, failing which no Letters of Administration can be issues in respect of the Estate of a person whose abode is not within Nasarawa State, and urged the Court to hold that from all the Exhibits before the lower Court it was duly established that the deceased was permanently resident at No. 7 NEPA Close Tudun – Wada in Jos, Plateau State but serving in the Nigerian Army at Maiduguri, where he eventually met his death in active service, and was never subject to the jurisdiction of the Nasarawa State High Court contrary to the decision of the lower Court, and to allow the appeal, set aside the perverse judgment of the lower Court, and grant the Relief sought by the Appellant as Applicant before the lower Court and set aside the Letters of Administration obtained by false mis-representation by the 1st Respondent from the 2nd Respondent. Learned counsel referred to Order 59 Rule 1, Subrules (i) and (ii) of the Nasarawa High Court (Civil Procedure) Rules 2010, and Section 122 of the Evidence Act 2011.

It was also submitted that in Exhibit C, the 1st Respondent had falsely to his own knowledge represented to the 2nd Respondent that the last place of abode of the deceased, the last son of the Appellant, prior to his death was at Nasarawa Eggon, Nasarawa State, and contended that the deceased all through his life and prior to his death was permanently resident at No. 7 NEPA Close Tudun – Wada in Jos, Plateau State to the knowledge of the 1st Respondent contrary to the false declaration made by the 1st Respondent in Exhibit C for the purpose of misleading, and did misled, the 2nd Respondent to issuing the Letters of Administration over the Estate of the deceased to the 1st Respondent, and urged the Court to hold that the act of the 1st Respondent clearly amounted to false representation contrary to the perverse finding of the lower Court and which in law is sufficient to vitiate the grant of Letters of Administration to the 1st Respondent by the 2nd Respondent and to allow the Appeal, set aside the perverse judgment of the lower Court, and grant the relief claimed by the Appellant as Applicant and set aside the Letters of Administration obtained by false mis-representation by the 1st Respondent, an obvious fact not even effectively denied by the 1st Respondent, from the 2nd Respondent. Learned counsel relied on GTB Plc & Anor V. Oluwadamilare & Ors (2014) LPELR – 24387 (CA) @ pp. 32 – 34; Okonkwo V. CLR Nig. Plc. (2003) 8 NWLR Pt. (sic); Ajomale V. Yaduat No.2 (1991) 5 NWLR (Pt. 191) 25 @ p. 270; Oyejobi V. Okegbemi (2013) LPELR – 25476 (CA) @ p. 10.

On issues one and three, learned counsel for the Appellant had submitted inter alia that the Appellant failed to prove fraud, misrepresentation or any vitiating circumstance that vitiated and robbed the lower Court of the jurisdiction to grant the Letter of Administration to the 1st Respondent, and contended that in law the issues of fraud and misrepresentation raised by the Appellant amounted to allegations of crimes and the burden to prove same beyond reasonable doubt was on the Appellant, but which he failed to discharge as required of him by law, and the lower Court was therefore right to have dismissed his claim for lacking in merit. He urged the Court to hold that the lower Court was perfectly right when it held that there was no fraud proved on the part of the 1st Respondent, and more so when the Letter of Administration obtained by the 1st Respondent was specifically to enable him collect the entitlements of the deceased, having been so appointed by the deceased in his lifetime, and to dismiss the Appeal for lacking in merit and affirm the sound and correct judgment of the lower Court. Learned counsel referred to Section 135 (1) Evidence Act 2011, and relied on Udosen V State (2007) 29 NSCQR 646 @ p. 671.

It was also submitted that the deposition by the 1Respondent that the deceased’s last place of abode and residence was Nasarawa Eggon in Nasarawa State was not only true but was also not challenged by the Appellant, and the lower Court was therefore right to have believed and acted on it in reaching the correct finding that there was no fraud committed by the 1st Respondent in the application for and obtaining of the Letter of Administration over the Estate of the deceased from the 2nd Respondent, and contended that Appellant neither specifically pleaded nor proved fraud against the 1st Respondent as required of him by law, and urged the Court to hold that in law, whether or not the 1st Respondent challenged and/or contradicted the depositions Appellant in his Originating Process, it was the duty of the Appellant to rely on the strength of his case rather than rely on the weakness of the Respondent’s defense, and to dismiss the unproved claim of the Appellant and affirm the correct judgment of the lower Court. Learned counsel relied on Otukpo V Apa John & Anor (2012) MRSCJ (Pt. 1) 106 @ pp. 116 – 117, & 122 – 123; Akande V. Jimoh Adisa (2012) 5 MRSCJ Vol. 5 @ pp. 22 -23.

DECISION/HELD:

In conclusion, the Court allowed the appeal.

RATIO:         

ADMINISTRATION OF ESTATE- ESTATE OF A DECEASED: Position of the law as regards the position of a next of kin in relation to the estate of a deceased

” …it is not the law that the position of a Next of Kin conferred on the 1st Respondent with any right of inheritance, or with the sole right to apply and obtain Letter of Administration over the Estate of the deceased. At best, therefore, in law, a next of kin is described as the nearest blood relative of a person. See Joseph V. Fajemilehin & Anor (2012) LPELR-9849 (CA). In law, being named a Next of Kin alone does not confer any such right for merely being the closest relative of the deceased, which is all that next of kin signifies in law, and therefore, a person in his lifetime can appoint any person as his Next of Kin.” Per GEORGEWILL, J.C.A.

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