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 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.

GIWA, a Legal Practitioner based in Ibadan.

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