Still on next of kin

Ebun-Olu Adegboruwa

Published By: Paul Dada

By Ebun-Olu Adegboruwa, SAN

The topic of the legal meaning and effect of the doctrine of next of kin was widely received with meaningful responses from Nigerians. I will share some of these responses with you anonymously for now.

REJOINDER 1:

1st Respondent:

“I respectfully do not share your views on this matter. By virtue of the 2nd Schedule to the 1999 Constitution ( as variously altered), inheritance is a residual matter. I do not think that the National Assembly has the vires to make law on inheritance for the whole country. It may make such a law for the FCT only. The federal government can cover the field only where the matter falls within the concurrent list. Read Items 60 (a) and 68 of the Exclusive Legislative List and Paragraph 2 of Part III of the 2nd Schedule to the Constitution, pursuant to which the National Assembly enacted the Child Rights Act. Apart from the Constitution (next to which is the African Charter), none of the relevant laws is sacrosanct; their validity is open to scrutiny and they can be struck down in legitimate cases. The constitutionality of a presumed legislative power to regulate post-mortem affairs is not a given; it can (and should) be dispassionately and objectively interrogated against the prism of the fundamental rights and freedoms enshrined in the Constitution. It is trite law that most (not all) of those rights can only be derogated from in the circumstances stated in Section 45 of the Constitution. In other words, the question is: whether those laws are reasonably justifiable in a democratic society in the interest of public order, public health, defence, morality, etc, or are necessary to protect the interest of other persons. Needless to say, any law that fails these tests is invalid.”

2nd Respondent:

“Next of kin taking decisions if a person is incapacitated. Dear SAN, is there a provision of Power of Attorney for Health and Financial matters in the Nigerian Constitution. If a person becomes incapacitated, I agree Next of Kin is there to be informed but may not have the power to make decisions while the person is alive though incapacitated without a Power of Attorney. I hope I have not diverted from your intended discuss. Thank you very much, interesting topic.”

The issue of the right of choice of a testator should speak during his lifetime but once he has transited to the great beyond, he loses the power of absolute control over his assets in terms of sharing and distribution. The right of choice is subject to certain limitations in law. In this regard, I have in mind the case of Chief Obafemi Awolowo v Federal Ministry of Internal Affairs (1962) LLR 177 on the interpretation given by the Supreme Court to the right of choice of counsel. In that case, the appellant (Awolow) who was standing trial for treasonable felony and conspiracy engaged the service of a British lawyer, Mr. E.F.N Gratiaen Q.C. to defend him. On arrival in  Lagos, Mr. Gratiaen was denied entry into Nigeria by the federal ministry of internal affairs (respondent). The appellant approached the High Court of Lagos (1) for a declaration that:
(a) the plaintiff is entitled under the Nigeria (Constitution) Order-in-Council to be defended in the Charge No. LA/68C/1962 in which he is the 27th accused person by Mr E. F. N. Gratiaen Q.C., or any other counsel of the plaintiff’s choice whether British or indigenous.

(b) the order of the defendants prohibiting the entry of the said Mr E. F. N. Gratiaen into Nigeria for the purpose of defending the plaintiff in the aforementioned Charge No. LA/68C/1962 is ultra vires the said Nigeria (Constitution) Order-in-Council and is therefore null and void.

• The meaning and legal effect of next of kin (2)
• The meaning and legal effect of next of kin (1)

(2) An injunction restraining the defendants from preventing the said Mr. E. F. N. Gratiaen Q.C., or any other British counsel who might be counsel of the plaintiff’s choice from entering into Nigeria for the purpose of defending the plaintiff in the said Charge No. LA/68C/1962.”

In determining the case, the trial judge referred to section 13 of the Immigration Ordinance (Cap. 84 in the 1958 Laws of the Federation of Nigeria and Lagos) which provides that:

“13. Notwithstanding anything in this Ordinance contained, the Minister may, in his absolute discretion, prohibit the entry into Nigeria of any person, not being a native of Nigeria.”

In his decision, the learned trial judge (Udoma, J.) held that the Minister acted within his powers under that section 13 when he directed that Mr Gratiaen should not be allowed to enter Nigeria; and in regard to the issue of breach of appellant’s constitutional right to counsel of his choice, the judge held that-

“The Constitution is a Nigerian Constitution, meant for Nigerians in Nigeria. It only runs in Nigeria. The natural consequence of this is that the legal representative contemplated in s. 21 (S)(c) ought to be someone in Nigeria, and not outside it. It is clear that any legal representative chosen must not be under a disability of any kind. He must be someone who, if outside of Nigeria, can enter the country as of right; and he must be someone enrolled to practice in Nigeria.”

Being dissatisfied with the judgment of the High Court, the appellant lodged an appeal against it, contending that the denial of entry into Nigeria of Mr. E.F.N. Gratiaen was a breach of the appellant’s constitutional right to counsel of his choice and thus section 13 of the Immigration Ordinance should be struck down for being unconstitutional. The Supreme Court upheld the judgment of the trial court and held that the disability imposed upon Mr. E.FN. Grateaen by law did not constitution an infringement of the Constitution.
“It appears clearly enough that this provision of the Constitution recognises the legality of the Immigration Act, and we cannot see anything unconstitutional in the provision of section 13 of the Act which confers power on the Minister to prohibit in his absolute discretion the entry into Nigeria of any person who is not a native of Nigeria, or who is not a citizen of Nigeria (according to section 26(1) of the Constitution).”

The right of a litigant to be represented by counsel of his choice in court is expressly granted by the Constitution and courts rarely interfere in the exercise of this right. But in Awolowo’s case, that right was impeded by the inability of his counsel to obtain a relevant permit to enter the country to render legal services to his client. So long as the law vests the grant of permit to enter a country in the sovereign, the consideration of the right of an individual cannot in any way override an existing law. In relation to a testator, nobody denies him the right to his assets or the choice of how he wants them distributed but the procedure of the exercise of that right can be regulated by law without necessarily taking away his choice. A citizen of Nigeria is entitled to aspire to study law and graduate as such but for him to be qualified to practice law as barrister and solicitor, he must go through the compulsory training of the Council of Legal Education and must be called to the Bar by the Body of Benchers. That certainly cannot constitute a hindrance to the exercise of the right of choice. To my mind, the Administration of Estates Law of the various States as well as the Wills Law fall within the category of those laws that ‘are reasonably justifiable in a democratic society in the interest of public order, public health, defence, morality, etc, or are necessary to protect the interest of other persons.’ Even without these laws, the chaos and mayhem attending the distribution of estates are enough to warrant legislative intervention to guarantee public order, public health, public peace and morality. Furthermore, these laws are clearly needed to protect the interests of those who may have been excluded arbitrarily from the estate for one reason or the other. This will achieve equity and justice which are part of the cardinal objectives of legislation.

Though the Constitution is the grundnorm of our legal system, it contains provisions to preserve existing laws that are necessary for the smooth management of society and I dare say that all legislations addressing the mode of distribution of assets of a deceased person deserve to be protected and enforced. The ultimate goal is to see to it that the wish of the testator is respected. If any beneficiary has reason to question the mode of distribution of an estate, the law permits him to approach the court for redress, instead of aniline the entire law regulating the process. Given the importance of this topic, I do not think that it can end here through this medium. In the course of time, useful interventions from many quarters will help to shape the fate of assets of deceased persons in such a way that will engender peace, justice, equity and harmony for the beneficiaries and society at large.