07/11/2023
"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,..."
*WORGU vs. WORGU & ORS.(202*
*2)LCN/16620(CA)*
*ISSUE:* LETTERS OF ADMINISTRATION-Whether evidence of fraudulent intention can vitiate the grant and issuance of letters of administration(Issue is mine)
*PRINCIPLE:*
"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." Per KOLAWOLE, JCA.
*Courtesy: Lawrence Udo Edet, Esq.*
*(Providing legal principles & solutions)*
*6-11-2023*
