By S.O. Giwa

It is not gainsaid that the term ‘next of kin’ has traditionally been used to refer to a person’s closest living relative. Despite the fact that people use ‘next of kin’ a lot, the term ‘next of kin’ is used in different context for different purpose. For instance, in hospital, a next of kin is a person who the staff of the hospital can contact and keep up to date on a patient’s condition. Such person appointed as one’s next of kin has responsibility and right to give advice on what the patient’s wishes might be when the patient is unconscious but the limitation of person acting as patient’s next of kin is that he/she cannot consent or refuse any treatment on the patient’s behalf.

Far from the above given instance, this piece is written with a view to explaining the rights, responsibilities and limitation of a next of kin in the legal parlance and dislodging the notorious belief of many Nigerians that once the person who appoints the next of kin dies intestate (without Will), a person appointed as a next of kin of a deceased person automatically inherit deceased person’s estate and become the owner of the deceased estate.

It is not in doubt that rights are essential conditions of social life without which no person can generally realize his best self but the rights in focus in this piece are: ‘Ownership right of a deceased person during his/her lifetime over his/her estate and right of action, that is, right to sue and be sued in representative capacity of the next of kin to the deceased person’.

‘WHO THEN IS A NEXT OF KIN IN LEGAL PARLANCE?’

Ejembi Eko J.C.A. with reference to Black’s Law Dictionary and Chambers 20^th Century English Dictionary defines the term ‘next of kin’ in Joseph vs. Fajemilehin O.O &Anor.(2012)LPELR -9849 (CA) as ‘the person declared to be the nearest of kindred to the declarant.’

Flowing from the above definition, the term ‘Next of Kin’ refers to one’s nearest relation who can be a spouse, child or person’s closest living blood relative.

Next to the definition of a next of kin in legal parlance is the pressing questions: ‘Does Ownership right of a deceased person during his/her lifetime over his/her estate become rights of a next of kin upon the demise of the deceased person?’; ‘Can a next of kin sue or be sued in representative capacity of the next of kin to the deceased person?’ begging for rational answers.

DOES OWNERSHIP RIGHT OF A DECEASED PERSON DURING HIS/HER LIFETIME OVER HIS/HER ESTATE BECOME RIGHTS OF A NEXT OF KIN UPON THE DEMISE OF THE DECEASED PERSON?

Ownership as defined in the case   of Fagunwa Vs. Adibi (2004) 17 NWLR (Part 903)544@ 568 paragraphs D-E connotes the totality of or the bundle of the rights of the owner over and above every other person on a thing. Thus, ownership connotes a complete and total right over property. The property begins with the owner and also ends with him.

It is crystal clear that that the ownership right of a deceased person over his/her property during lifetime of the deceased person begun with him/her and ended with him/her but upon his/her demise, the said ownership right ceased. Does the deceased ownership right automatically transfer to the next of kin simply because such person is appointed a next of kin?

Flowing from the questions above is the deductible fact that the transfer of ceased ownership right of a deceased person over his/her estate in focus is an issue of succession which is governed by law of the land.

It is to be noted that unlike the testate succession which is primarily on the Will, the intestate succession under discussion basically involves the application of the Common Law, Administration of Estate Laws of the various States and Customary law.

It is fundamentally important to make it known that according to Prof. Itse Sagay the factor which determines which system of law is to apply in every case is the type of marriage contracted by the intestate person and it is the writer’s stand that none of the aforementioned systems of laws confers any ceased ownership right of a deceased person over his/her estate on a next of kin.

It is further important to note that the common law principle governs the administration of the estate of persons, who dies intestate (without Will) while domiciled in Nigeria; the Administration of Estate Law regulates the administration of the estate of a person who married under the Nigerian Marriage Act, but never the less dies intestate domiciled in Nigeria and succession under Customary law applicable to the person who is subject to customary law and dies without being survived by a spouse or a child  of that marriage.

In view of the foregoing, it is convenient to round the above discussion off with a stand that the ownership right of a deceased person during his/her lifetime over his/her estate does not automatically become rights of a next of kin upon the demise of the deceased person.

CAN A NEXT OF KIN SUE OR BE SUED IN REPRESENTATIVE CAPACITY OF THE NEXT OF KIN TO THE DECEASED PERSON?

Springing from the preceding discussion is the next question: ‘Can a next of kin sue or be sued in a representative capacity of the next of kin to the deceased person upon the demise of the deceased person?’

It is to be noted that ‘Right of action’ is a threshold issue that goes to the root of the suit and affects the jurisdiction of the Court. In legal parlance, right of action is christened ‘locus standi’ which has been defined by a long line of decided cases as the legal capacity to institute proceedings in Court.

It is worth saying that much as right of action is a threshold issue that touches the jurisdiction of the court, it is a springboard for the competence of an action in court. Thus, once a party who institutes an action lacks a right to institute his or her action, the action becomes incompetent.

It is no gainsaying that for action to be competent; such action must be instituted by a party recognized as juristic person in the legal parlance and a party purports to bring an action in respect of the estate of a deceased person is Trustee, Executor or Administrator of the Estate and no other. Fortifying the writer’s stand is the case of Union Bank vs. Mkena (2019) LPELR-47197(CA) wherein the court held thus:

‘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. 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.’

It is crystal clear and deductible fact from the above quoted decision of the court that it is only Trustee, Executor or Administrator of the Estate who has right of action to bring an action in respect of the estate of a deceased person and no other person. Hence, a next of kin is excluded from the party recognized by law as one who has right of action to bring an action in respect of the estate of a deceased person.

It is the writer’s stand that though the word ‘no more’ used in the above quoted decision excludes a next of kin from persons with legal capacity to sue in respect of the estate of a deceased person; the exclusion is in respect of Civil action only and not for action under Fundamental Rights Enforcement Procedure Rules for enforcement of right of a deceased person so allegedly deprived of him or her during his/her lifetime by a next of kin of a deceased person which law allows.

It is to be further noted that the Constitution of the Federal Republic of Nigeria under section 46(1) provided for any person to take action or initiate proceedings where any of the rights provided for under the provisions of Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are in issue; and it provides thus:

‘Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress’

In interpreting the provision of section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) by Yargata Byenchit Nimpar, J.C.A in the case of Dilly vs. IGP & Ors (2016) LPELR-41452 held that ‘any person’ includes the ‘next of kin’ of a person whose rights have been violated and the phrase ‘in relation to him’ to mean such relationship that inures such interest as to be affected by the said violation especially in right to life

It is the writer’s stand that from the interpretation of section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), a next of kin is allowed to enforce the infringed right of a deceased person and an action for enforcement of the infringed right of a deceased person by a next of kin is an exception to the general rule that only the Trustee, Executor or Administrator of the Estate can institute action in respect of the estate of a deceased person and no other. Fortifying the writer’s stand is the case of Ahmad vs. S.S.H.A (2002) 15 NWLR (Part 791)539@563 wherein Salami J.C.A (as he then was) held thus:

‘The combined effect of reading these sections together shows that there is no limitation or qualification to the nature of persons who may seek to enforce contravention of their right under Chapter IV of the Constitution is beyond any argument and are without exception or qualification for all persons. The section undoubtedly give access to Court for the enforcement of the rights guaranteed under Chapter IV of the Constitution to all manner of people, without exception, who claim their Rights have been trampled upon; just as Section 6(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) gives access to Court for the enforcement and determination of all civil rights and obligation including right guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended). I am encouraged in this view by article ‘a’ or ‘any’ qualifying the word person wherever they occur.’

It is to be noted that ‘Right to life’ is in a class of its own because its violations range from attempt which is a process before full of violation occurs which is when violation is completed. Before completion, the person can act for himself. When, however, such violation has gone to the irreversible stage such as death, then such can only be litigated by next of kin.

It is however convenient to ask if representation is not allowed how then can violations to right to life be redressed when the victim of the deprivation has been dead?

It is the writer’s stand that failure to accommodate right of action of a next of kin to seek redress for the victim who become dead would be against the grain of the Constitution because to the writer’s mind it is the only right that can be redressed in the absence of the possessor of the right.

It is the writer’s stand that not only breach of right to life of a dead person can be litigated in the Court by a next of kin in a representative capacity for the deceased person; a next of kin is also permitted to enforce other fundamental rights of the deceased person because failure to address such violations would create a monstrous where infractions would continue unabated and without redress thereby reducing such fundamental right to chasing shadows or holding the wind.

It is conveniently important to round this piece off with the note that:

• A Next of Kin is the first point to make decisions in times of emergency
• A Next of Kin is empowered to provide necessary information about the person who appoints a next of kin where needed such as confirming identity of the person who appoints a Next of Kin
• A Next of Kin is positioned to make medical decisions such as providing consent for a medical procedure
• A Next of kin is not necessarily the person intended as a direct beneficiary of the deceased’s estate or entitlement.
• A Next of Kin has the right to litigate the breach of the deceased’s Fundamental Rights in a representative capacity.
• A Next of Kin is not automatically qualified to inherit a deceased person’s estate
• A Next of Kin is not superior to the beneficiaries named in a Will
• Regarding the claim and administration of the deceased’s estate, the Next of Kin does not really have legal authority. At best, he/she can ensure that necessary steps are taken towards obtaining a letter of administration from the probate.

S.O. GIWA ESQ. a.k.a pentalk (Ibadan-based Legal Practitioner) [email protected] 08035224192

Much as one tries, it has been difficult to find something for which to commend Nigeria’s current Attorney General and Minister of Justice, Abubakar Malami. He has been the chief law officer of the country since he was first appointed by President Muhammadu Buhari at the take-off of his administration in 2015, and re-appointed in 2019 as Buhari returned for a second term. Malami is one in the privileged club of distinguished lawyers who tag their names with that smug title of SAN (Senior Advocate of Nigeria), a legal title keenly coveted by the typical Nigerian lawyer. But he also comes across as one who is essentially unfaithful to the law.

As in a number of other appointments, Buhari’s choice of Malami for the pivotal office had, from the outset, been viewed by the more discerning segment of the populace as a dreadful miscue. Although the new administration rode into office on the wings of change, generally seen to mean a significant departure from the typical unproductive way of conducting affairs by past governments, its choice for the office of attorney general and minister of justice was the first telling sign that the much-touted change would be a sham.

It has nothing to do with Malami’s academic qualifications, but a lot to do with his fiercely guarded reactionary mindset, a feeble moral strength and a perverse sense of common good. Nothing about his past suggests he is the type of chief law officer Nigeria needs at this moment or at any time in the future. His office is supposed to be the fulcrum of the promised change, at the heart of which is supposed to be an all-out fight against corruption. But, almost daily, there is talk all over town that if the fight against corruption exists at all, it is a chaotic mess, floundering about in an embarrassingly unhealthy rivalry among the anti-corruption institutions. Or, at best, halfhearted, thanks to Malami.

So far, he has not disappointed those who say he is not suited for the office. At intervals, the public has been having good treats through reports of how he allegedly uses his office, ironically, to thwart the anti-corruption efforts of the government. It is hard to question this allegation when we recall that this chief law officer himself once told a senate panel of investigation that he had a meeting in Dubai with a fugitive wanted for financial crimes in Nigeria. The outcome of the meeting was the secret re-absorption of the said fugitive to higher office in the Nigerian public service.

Buhari promptly reversed the distasteful employment following public outrage. A scandal beyond description, it was that and many other acts of tendentious interventions in corruption cases that compelled a group of ten civil society organisations sometime in July 2019 to organise an anti-corruption roundtable discussion where they called on Buhari not to re-appoint Malami to the post of attorney general and minister of justice. They went on to describe him at that event as the “barrier-in-chief” in the anti-corruption war.

Indeed, the description would seem like a fitting cognomen in light of the fact that there is no record of his office successfully prosecuting a single high-profile corruption case since 2015. Instead, Malami is accused of parlaying his office to frustrate the prosecution of some big-time thieves, and also seizing cases from original prosecutors whenever he likes in the hope of steering them, as widely believed, toward a predetermined end.

The latest of such unworthy moves is the case of the kidnap kingpin Bala Hamisu, popularly known as Wadume. On August 6, 2019, Wadume was rescued by some soldiers from 93 battalion Takum, Taraba State, after his arrest at Ibi by a crack squad of the police from Abuja. As he was being transported to the state capital Jalingo, the soldiers manning a checkpoint gave a hot pursuit and opened fire on the police bus, killing three police officers and one civilian on the spot and freeing the notorious kidnap suspect. The incident led to a face-off between the army and the police. After an investigation, some police officers and ten soldiers, among them a Captain Tijani Balarabe who apparently is Wadume’s friend and collaborator, were found liable for that heinous crime.

The police were determined to secure justice for the slain officers and their families. Three months ago, they went to court to begin prosecution of the suspects, including the ten soldiers. The army blatantly refused to cooperate with the police by not handing over the soldiers for prosecution. At the commencement of hearing, the soldiers were not available for arraignment. The judge had to make an order that the chief of army staff, Tukur Buratai, a lieutenant-general, should produce them at the next adjourned date. But instead of that to happen, the chief law officer’s agent appeared in court, used the powers of the office to knock the police off as prosecutors, and then went on to strike off the names of the soldiers from the charge sheet.

The resultant outrage has yet to subside. There is no justifiable reason for this action. At that stage, what was expected of Malami was to force – yes, force, because they are not above the law – the army to obey the order of the court by producing the soldiers for trial. Any other thing is a perversion of justice.

Thankfully, Femi Falana, a renowned justice-minded senior advocate, is engaging Malami’s office on this serious matter. It is hoped that he gets his learned colleague to see reason and toe the path of honour.

But if one does not know Nigeria at all, the little one knows of her, at least in the context of this case, tells one that the prognosis is bleak. The police, the families of those murdered by the soldiers, and the society may never get justice.

 •Onyeacholem is a journalist. He can be reach via [email protected]

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Will the world and its economy return to normal after the coronavirus pandemic? The answer to the above question will probably be in the negative. Already, the term, “the new normal”, which has gained global currency suggests that the world, as we knew it before COVID-19, would never be the same again. Apart from thousands of deaths as a result of the pandemic and spiking rates of infections that have challenged countries with efficient healthcare systems, not to talk of developing countries’ wonky health facilities, the pandemic has brought world economies to their knees.

Aviation conglomerates all over the world are posting devastating losses and have followed that up with job cuts in a magnitude that is unprecedented. Oil prices in the international market have plunged to a historic low to the point that countries are now literally paying buyers to take the goods off their hands. That’s how really bad the situation has become.

For countries like Nigeria, whose economies depend largely on delivering crude oil for revenue, the rains are already pouring. It is even more like a double whammy for Nigeria with a history of profligate management of resources. Yes, past regimes in the country – both military and civilian – had left citizens wondering what possibly could have happened with the billions of dollars that had accrued to their nation since independence, well over five decades now.

For sure, there is no commensurate infrastructure development on ground that can easily be pointed to as the dividends of the oil windfalls. Agreed, corruption is a factor in the ugly scenario, which nobody can deny; but, beyond graft is the greater issue of planlessness. Most past regimes had carried on as if long-term planning and prudent management of resources were sinful acts to be wary of.

For the most part, past leaders who were fortunate to be in government when oil prices soared and “too much money” was rolling in, behaved like a sailor without compass and any sense of trajectory. That was the era of the insinuation that Nigeria’s problem was indeed not about availability of money (as there was a surfeit of it) but how to spend it; it was the era of Festival of Arts and Culture (FESTAC) shindig; it was the eon of tenure elongation christened “third term agenda”; it was the era of “transformation agenda”, which in actuality did not achieve “eye-marks” but only, somewhat, satisfy “earmarks”. Those were the eras of overt display of deep-seated business-as-usual culture.

Well, the bubble has now burst and the chicken has come home to roost. First, while the oil prices hit the roof, the governments of the day at their respective intersections did not think of a rainy day. They did not see the vision of truly diversifying the economy away from monoculturalism of oil and neither did they save for the future. To worsen the situation, the philosophy of graft was more like coast-to-coast attitude for public officers and government workers.  

Now that future is here with us as sources of financial inflows have continued to vanish, the government of the day is under tension and grappling to ensure that the country is not hopelessly enmeshed in the economic ravages occasioned by the COVID-19 pandemic. The truth that must be told today is that some countries and their economies will be utterly submerged by and swept off by the ferocious gale of the pandemic if their governments refuse to act promptly and adequately.

The good news, however, is that the Muhammadu Buhari government understands clearly the magnitude of the problem and has decided to put forward the right foot. The administration is forward-looking and making conscionable and responsive effort to be on top of situations confronting it. Apart from the government’s responses to current economic pressure to ensure that economic recession is averted and even if it happens at all, it is V-shaped and not U-shaped, only a few days ago the Federal Government inaugurated Technical Working Groups (TWGs) for the development of the thematic areas of the two new Medium-Term National Development Plans (MTNDP 2020 – 2025 and MTNDP 2026-2030) and the long-term national development plan, christened “Nigeria Agenda 2050“.

Minister of State for Budget and National Planning, Prince Clem Ikanade Agba, who performed the virtual inauguration in sync with government’s protocols on managing COVID-19 pandemic, said the initiatives were designed to produce successor plans to the current Nigeria Vision 20:2020 and the Economic Recovery and Growth Plan (ERGP 2017-2020), which would both come to an end in December, this year.

According to Agba, “The Plans are to address development challenges in all aspects of the country’s national life within the agreed time frame.” He said that the new long-term perspective plan (Agenda 2050) would be a “true National Development Plan’’ different from previous ones, since the Federal Government would only act as an enabler while the development of the plan would be driven by the organized private sector.

It is very instructive that the minister advised members of the various TWGs and committees to undertake a comprehensive review and analyses of previous plans in coming up with a suitable and implementable document. He also pointed to the need to harvest the nation’s diversity as a major strength rather than weakness and in so doing, it is envisaged that the plan will be truly representative of the variegated peoples and cultures of Nigeria from the local and state levels up to the national level.

What is more? The TWGs and committees are organised to cover significant thematic areas that define our national goals and aspirations, for example, education and manpower development; health and nutrition; population and identity management; youth and sport development; power and alternative energy; oil and gas; solid minerals; mining and steel development. Even more gladdening is Prince Agba’s insistence that organised private sector would drive the planning process. The consensus is that the state-centric nature of previous plans only helped in quickening their failures.
And, with patriotic  and very knowledgeable citizens like entrepreneur, investment banker and economist, Atedo Peterside, in the driver’s seat of the Steering Committee with Minister of Finance, Budget and National Planning, Mrs Zainab Shamsuna Ahmed, as co-chair; former acting governor of the Central Bank of Nigeria (CBN) and current special adviser on finance and economy to the president, Mrs Sarah Alade, providing overall coordination to the TWGs; and, of course, the workaholic Minister of State for Budget and National Planning, Prince Agba and members drawn from various sectors of the economy, including six governors representing the geo-political zones, giving this planning process their best effort, the dawn of a new era of national development planning with its attendant fiscal discipline and countrywide prosperity beckons.

•Ojeifo contributed this piece from Abuja via [email protected]

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