By S.O. GIWA ESQ
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 20th 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 a 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 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
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 note
that:
- A Next of Kin is the first point to make decisions in time 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 necessary the person intended as direct
beneficiary of the deceased’s estate or entitlement. - A Next of Kin has right to litigate the breach of deceased’s
Fundamental Rights in 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 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
letter of administration from the probate.
S.O. GIWA ESQ. a.k.a pentalk (Ibadan
based Legal Practitioner)
giwa_pentalk@yahoo.com
08035224192
By S.O. GIWA ESQ
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 20th 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 a 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 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
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 note
that:
- A Next of Kin is the first point to make decisions in time 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 necessary the person intended as direct
beneficiary of the deceased’s estate or entitlement. - A Next of Kin has right to litigate the breach of deceased’s
Fundamental Rights in 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 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
letter of administration from the probate.
S.O. GIWA ESQ. a.k.a pentalk (Ibadan
based Legal Practitioner)
giwa_pentalk@yahoo.com
08035224192