JUDGEMENT: UGOCHUKWU vs KELECHI: Strange Case Where a Brother to China Based Businessman Procured his Death Certificate and Letter of Administration to Withdraw $455k and ₦58m While He is Alive. (Barrister.Ng)

PEGASUS LEGAL

IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT APO, ABUJA
ON THURSDAY, THE 27TH DAY OF OCTOBER, 2022
BEFORE HIS LORDSHIP: HON. JUSTICE ABUBAKAR HUSSAINI MUSA
JUDGE
SUIT NO.: FCT/HC/CV/1382/2022
BETWEEN:
KELECHI UGOCHUKWU
CLAIMANT
AND
1. KENNETH U. KELECHI
2. THE PROBATE REGISTRAR, FCT HIGH COURT, ABUJA
3. ACCESS BANK PLC DEFENDANTS
JUDGMENT

By an Originating Summons dated and filed on the 28th of April, 2022, the Claimant, Kelechi Ugochukwu, instituted this action seeking the determination of the following question:

1. Whether the Letter of Administration/Probate granted on 22nd July, 2020 to the 1st Defendant Kenneth U. Kelechi over the purported estate of the Claimant in this suit Kelechi Ugochukwu by the Registrar of FCT High Court, Abuja upon presentation of a fake death certificate of the Claimant by Kenneth U. Kelechi with No.: D130162315 dated 28th May, 2020 is valid and subsisting considering the fact that the Claimant is healthy and alive.

Upon a determination of the above question, the Claimant sought the following reliefs:

1. A Declaration by the Honourable Court that the Letter of Administration/Probate granted on the 22nd July, 2020, to 1st Defendant Kenneth U. Kelechi over the estate of the Claimant in this suit (Kelechi Ugochukwu) and upon presentation of a fake death certificate with No.: D130162315 dated 28th May, 2020 as null and void and of no effect.

2. An Order of Court setting aside any Order or Orders fraudulently obtained by the 1st Defendant Kenneth U. Kelechi purportedly flowing from the Letter of Administration/Probate dated 22nd July, 2020 over the estate of the Claimant.

3. An Order of Court directing the 3rd Defendant to immediately unfreeze and release all the monies in Account No.: 0024864050 with the sum of ₦58,512,169.44K and Account No.: 0024303214 with the sum of $455,088.65 belonging to the Claimant.

4. And for such other Order or Orders as the Honourable Court may deem fit to make in the circumstance.

In support of the Originating Summons are a 23-paragraph affidavit deposed to by the Claimant himself, twelve documentary exhibits and a written address which encapsulates the legal  submissions of the Claimant in respect of his claims.

In the affidavit in support of the Originating Summons, the deponent, Kelechi Ugochukwu, who is also the Claimant herein, laid the facts which constitute the meat of his claims. According to him, while he, the Claimant, was in China where he was based and carried on his business, the 1st Defendant, with the intention of applying for Letters of Administration in respect of the estate of the Claimant, forged a certificate of death which purported that the Claimant was dead and did, indeed, used same to apply for and was granted the Letters of Administration over the estate of the Claimant by the 2nd Defendant.

Furnishing the particulars of fraud which he alleged was perpetrated by the 1st Defendant, the deponent swore that the 1st Defendant misled the 2nd Defendant in this suit, that is, the Probate Registrar of the High Court of Justice of the Federal Capital Territory, Abuja, into believing that he, the 1st Defendant, was the brother of the Claimant who was acting on behalf of the family of the Claimant. It was the case of the Claimant that the certificate of death the 1st Defendant used in obtaining the Letters of Administration was forged, adding that the intention of the 1st Defendant was to rob the Claimant of all his savings in the custody of the 3rd Defendant. Providing the particulars of his savings, the Claimant averred that he had the sum of Fifty-Eight Million, Five Hundred and Twelve Thousand, One Hundred and Sixty-Nine Naira, Forty-Four Kobo (₦58,512,169.44K) standing to his credit in Account Number 0024864050 and Four Hundred and Forty-Five Thousand, Eight-Eight Dollars, Eighty- Five Cents ($445,088.85) both domiciled in the 3rd Defendant.

The Claimant further averred that when the 3rd Defendant delayed in releasing the funds to the 1st Defendant, the 1st Defendant instituted an action against the 3rd Defendant for an Order of the Court mandating it to release the funds standing to the credit of the Claimant to him, the 1st Defendant. The deponent exhibited this Originating Motion of the 1st Defendant with Motion Number M/9748/2020 as Exhibit D. The deponent averred that the 1st Defendant, having no proof of the Claimant’s death, was forced to discontinue the suit when the Court directed the parties before it
to file pleadings in respect of the suit. Determined to expropriate the property of the Claimant, the 1st Defendant, according to the Claimant, initiated contempt proceedings against the 3rd Defendant for its failure to disburse to the 1st Defendant the funds of the Claimant.

Eventually, the deponent swore, the Claimant’s wife, one Mrs Onyinyechi Doris Ugochukwu and his elder brother, one Bright Ekwem Ugochukwu got to know about the pendency of the suit by the 1st Defendant. Both of them deposed to affidavits of facts wherein they stated in their respective affidavits that the Claimant was alive and had been in touch with his family. The two affidavits of the Claimant’s wife and the brother were exhibited and marked as Exhibits E and F respectively. The Claimant also stated that his wife informed him of the fraud of the 1st Defendant and advised
him to return to Nigeria from his base in China.
It was the case of the Claimant that upon his return to Nigeria, he visited the Amakohia branch of the 3rd Defendant on the 7th of July, 2021 and was informed that his two accounts with the 3rd Defendant had been placed on a Post No Debit status as a result of the fraud of the 1st Defendant. It was on the basis of this information that he instructed his Solicitors to write to the 3rd Defendant to unfreeze his bank accounts.

Responding to the letter of the Solicitors, the 3rd Defendant supplied the Claimant’s Solicitors with the processes of the suits of the 1st Defendant and justified its corporate decision regarding the Claimant’s account. The Solicitors’ letter and the 3rd Defendant’s reply were attached to the affidavit and marked as Exhibits G and H respectively.

Following this information and with the processes in the suits of the 1st Defendant in his possession, the Claimant averred that he applied to be joined as a party to the suit of the 1st Defendant which was pending before the Honourable Justice O. C. Agbaza, an application the Court granted. Upon being joined as a party, the Claimant stated that he issued a subpoena against the 3rd Defendant to produce the account opening forms for his two accounts domiciled with the 3rd Defendant. This subpoena, dated the 9th of February, 2021, is exhibited as Exhibit Y1. The deponent swore that he was shocked when the 1st Defendant, on the next adjourned date, filed a Notice of Discontinuance of his suit. The Notice of Discontinuance, dated the 15th of February, 2021, is exhibited as Exhibit I.

In the written address in support of the Originating Summons, learned Counsel for the Claimant formulated the following issue for determination: “Whether the Letter of Administration/Probate granted on 22nd July, 2020 to one Kenneth U. Kelechi over the estate of the Claimant in this suit (Kelechi Ugochukwu) by the Registrar of FCT High Court, Abuja upon presentation of a fake death certificate of the Claimant by the said Kenneth U. Kelechi with No.: D130162315 dated 28th May, 2020 is valid and subsisting considering the fact that the Claimant is alive.”

In his submissions on this lone issue, learned Counsel referred this Court to the provisions of Order 62(1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018 and the application by the 1st Defendant for the Letters of Administration in respect of the estate of the Claimant and submitted that the Letters of Administration which the 2nd Defendant granted to the 1st Defendant did not satisfy the requirements of the Rules of this Court as the Claimant was not dead and the two bank accounts were not opened within the jurisdiction of this Court, but in Amakohia, Owerri, Imo State. He added that the Claimant was carrying on his business in China when the 1st Defendant applied for and obtained the Letters of Administration from the 2nd Defendant.

It was the contention of learned Counsel that the action of the 1st Defendant amounted to fraud. He referred this Court to the contents of paragraph 8(a) – (g) of the affidavit in support of the Originating where the particulars of fraud were specifically pleaded. He commended the cases of Marwa v. Nyako (2012) 6 NWLR (Pt. 1269) 199 at 360, para B – C and Bossoy Ltd v. Honey Logon (Nig.) Ltd (2010) All FWLR (Pt. 503) p. 1385 in this regard.

Maintaining that the Claimant was the same as the person who the 1st Defendant claimed to have died, learned Counsel invited the Court to take notice of the exhibits attached to the affidavit in support of the application in holding that the Claimant is alive. Learned Counsel cited sections 131(1), 134 and 167 of the Evidence Act, 2011 and urged the Court to grant the reliefs sought in this suit.

The above is the case of the Claimant. This suit came up for the first time in this Court on the 22nd of June, 2022. On that date, learned Counsel for the Claimant informed the Court of his inability to serve the 1st Defendant personally. Accordingly, he sought for leave of this Court to serve the 1st Defendant at his last known address which was the address he presented in the suit he instituted against the 2nd and 3rd Defendants in the Court of the Honourable Justice O. C. Agbaza. The prayer was granted and the Court adjourned to the 4th of October, 2022. This matter could not  proceed on the next adjourned date and the Court had to adjourned to the 6th of October, 2022. Though all the Defendants were served with the hearing notice and, so, aware of that date, the
1st Defendant was not in Court. The Court, invited the Claimant to open his case. The Court heard the Claimant pursuant to the provisions of Order 62 Rule 28(1) of the Rules of this Court and, in the absence of any process filed by the Defendants, adjourned for Judgment.

There is no question that this suit relates to the competency and validity of the Letters of Administration which the 2nd Defendant issued to the 1st Defendant in respect of the estate of the  Claimant. This Court shall, therefore, adopt, mutatis mutandis, the issue formulated by the learned Counsel for the Claimant and reframe same as follows:

“Whether, from the facts and circumstance of this case and the evidence adduced herein, the Letters of Administrations granted by the 2nd Defendant herein, the Probate Registrar of the High Court of the Federal Capital Territory, Abuja, on 22nd July, 2020 to the 1st Defendant herein, Kenneth U. Kelechi, over the estate of the Claimant in this suit, Kelechi Ugochukwu, is not valid and
subsisting.”

I must state at the outset that this suit is quite peculiar. There is no doubt that the Rules of this Court makes ample provisions for what the Court should do where the grant of Letters of Administration is challenged by the relatives of the deceased person or by other persons interested in the estate of the deceased person. See generally the provisions of Order 62 of the Rules of this Court, 2018. It is, however, strange to presuppose that a supposedly deceased person could challenge the Letters of Administration granted over their estate to a supposed relative who had
presented a certificate presumably establishing the death of the deceased person.

Indeed, we live in very unbelievable times and strange things are bound to happen. This is one of such things. The beauty of the law is that it is dynamic. It moves with the times. The maxim “ubi jus ibi remedium” – where there is a right, there is a remedy – is one such doctrines that have evolved to resolve situations as the kind evinced in this suit. And, what are the circumstances of this case? They are these: the 1st Defendant who had claimed to be a brother of the Claimant had presented a certificate of death which raised a legal presumption that the Claimant in this suit was dead. Upon the strength of the certificate of death, he proceeded to apply for and was granted the Letters of Administration in respect of the estate of the Claimant. By some stroke of luck or
providence which is not easily discernible, the 3rd Defendant demonstrated reluctance in complying with the Order contained in the Letters of Administration granted to the 1st Defendant by the 2nd Defendant to turn over the funds of the Claimant in its possession to the 2nd Defendant for onward transmission to the 1st Defendant.

Agitated, the 1st Defendant instituted a suit to compel the 3rd Defendant to release the funds. The Claimant, through his wife and elder brother got to know about the application for and the grant of the Letters of Administration as well as the pending suits through a process that was not clearly defined in the affidavit in support of the Originating Summons. The Claimant returned to Nigeria from China and set in motion the process that culminated in this suit. The Court is now invited to resolve this atypical quandary. In performing this judicial duty, this Court considers the provisions of Order 62 Rules 1, 28(1) and 42 of the Rules of this Court, 2018. The rules provide as follows:-

(1) Subject to the provisions of Rules 39 and 40 of this Order, where a person subject to the jurisdiction of the court dies, all petitions for the granting of any letters of administration of the estate of the deceased person, with or without a Will attached, and all applications on other matters connected, shall be made to the probate registrar of the court.
28. (1) Where evidence is directed or allowed to be given by affidavit, a court may require the personal attendance of the deponent, if within the jurisdiction, before the court, to be examined viva voce on the matter of his affidavit.
(42) The duties and powers of a court by Rules 5, 6, 7, 9, 10, 11, 12, 14, 17, 18, 19, 20, 21, 22, 28, 31, 38, 40, and 41 (1), (3), (5), (7) and (8), shall be undertaken by the probate registrar on behalf of the court subject to any directions which the chief judge may give, but a court shall have power, either on its own or on the application of an interested person, to review any undertaken by the probate registrar and on such review a court shall have power to cancel anything which may have been done by the probate registrar or make such order as may be just in the circumstances.

I have paid exceptional attention to the facts deposed to in the affidavit in support of the Originating Summons. I have also studied meticulously the exhibits attached thereto. The Claimant, in a bid to prove his physical existence, attached his International Passport which was issued on the 2nd of September, 2021 and his National Identity Number Slip to the affidavit as Exhibits A and A1. To obliterate any vestige of doubt as to his ownership of the subject matter of this suit, that is, the two accounts domiciled with the 3rd Defendant, the Claimant exhibited a leaf from his cheque book as Exhibit X1. I must take judicial notice of the procedures for the issuance of both the international passport and the national identity card which procedures require the physical attendance of the enrollee for direct data capturing, also known as biometrics capturing.

The Certificate of Death which the 1st Defendant obtained to establish the death of the Claimant was issued on the 28th of May, 2020. The Claimant exhibited this certificate as Exhibit C. The certificate showed that the Claimant died on the 27th of December, 2019. With this certificate, the 1st Defendant procured from the 2nd Defendant the Letters of Administration which the Claimant herein exhibited as Exhibit B. Is it possible for the Nigerian Immigration Service to issue, or, in this case, renew the certificate of a person who was not physically present for direct data capturing?

Having taken judicial notice of the procedure for the issuance of international passports by the Nigerian Immigration Service, I make haste to answer this question in the negative. I therefore hold that the Claimant was alive at the time the 1st Defendant claimed he was dead. I have gone through Exhibits E and F, that is, the affidavits of facts which one Mrs Onyinyechi Doris Ugochukwu who claimed to be the wife of the Claimant and one Mr Bright Ekwem Ugochukwu who claimed to be the elder brother of the Claimant deposed to. In both affidavits, deposed to on the 30th of September, 2020, the deponents swore that the Claimant had been out of the country at that time, adding that he was alive and not dead. They also denied knowledge of the 1st Defendant as a
member of their family. I am, however, intrigued by one bit of information. Both Mrs Onyinyechi Doris Ugochukwu and Mr Bright Ekwem Ugochukwu claimed to be natives of Umukabia, Amaigbo in Nwagele Local Government Area of Imo State. On the other hand, the Claimant, in his affidavit in support of this suit, as well as in Exhibit G, which is the letter the Claimant’s Solicitors wrote to the 3rd Defendant, put his address as Umunwanlo Irete in Owerri West Local Government Area of Imo State. Though I am puzzled over the possibility of siblings and spouses possessing different nativities, especially, in a suit of this manifest peculiarity, Exhibit A1, that is, the National Identity Number Slip, however seems to resolve this minor discrepancy. In that exhibit, the Claimant designated Umukabia, Amaigbo, Imo State as his address. I have no problem, therefore, in believing the depositions of facts contained in Exhibits E and F which are hereby treated as part of the affidavit of the Claimant herein, by the authority of Zakhem Oil Serve Ltd. v. Art-in-Science Ltd. (2021) 18 NWLR (Pt. 1808) 341 S.C. wherein the Supreme Court held at p. 358 para A that “The exhibits attached to an affidavit form part of the affidavit.”

I have taken my time to evaluate the evidence before me because that is the least I am expected to do as a Judicial Officer. In Siwoku v. Fasakin (2022) 12 NWLR (Pt. 1844) 215 S.C. at Pp. 248, paras. A-H, the Supreme Court per Okoro, JSC held that “A trial court is obligated to consider the totality of the evidence in the proceedings before ascribing credibility to the respective evidence of the parties. Upon evaluation of the totality of the evidence and in the absence of an explanation by any witness for any inconsistency in their evidence, it is not for the court to pick and choose which witness to believe and which not to believe among the witnesses called by one party.”

Meanwhile, I wonder why a next of kin who had gone through the rigours of obtaining Letters of Administration in respect of the estate of his supposed late brother would baulk out of a suit he instituted challenging the tardiness of a bank in releasing the funds of his brother to the body that issued the Letters of Administration. I cannot begin to quantify and express my sense of  bemusement at Exhibit I, which is the Notice of Discontinuance Counsel for the 1st Defendant filed on behalf of the 1st Defendant in the suit of the 1st Defendant which was pending before my learned brother, the Honourable Justice O. C. Agbaza.

I have taken particular note that the Notice of Discontinuance was filed after the Claimant was joined as a party to the suit of the 1st Defendant; and the Claimant, upon being joined, had applied for and obtained the leave of the Court to issue and serve subpoena duces tecum on the 3rd Defendant to tender in Court the Claimant’s account opening forms regarding his two accounts herein. The subpoena is before this Court as Exhibit Y1. I wonder why the 1st Defendant’s zest to recover the fund suddenly evaporated considering that the 1st Defendant had deposed in paragraph 5 of his affidavit in support of his Originating Motion on Notice dated and filed on the 15th of September, 2020 and which, together with the 3rd Defendant’s response to Exhibit G, constitutes Exhibit H that “the beneficiaries of the said funds are in dire financial straits and desperately require the funds to resolve very urgent and pressing issues that have to do with the administration of the estate of the late Kelechi Ugochukwu.” I would think that a true brother would stand and fight an impostor and not run away in fright. It is most appropriate, therefore, to deduce that the 1st Defendant’s flight was actuated by the burden of a guilty conscience.

When this is juxtaposed with the depositions of the Claimant in the Motion Ex Parte with Motion No. M/5651/2022 for leave to serve the 1st Defendant by substituted means, the 1st Defendant’s deviousness becomes all the more obvious. In paragraphs 4 and 5 of the affidavit in support of the application, the Claimant had deposed as follows:

4. That the 1st Defendant gave his address in the suit he filed with Suit No. FCT/HC/PM/916/2019 as opposite Madina Mosque, behind UBE Primary School, Kurudu, Abuja. The 1st Defendant’s affidavit of urgency is attached as Exhibit A.
5. That the bailiff of this Court has attempted service of the Court process on the 1st Defendant at the above address but he discovered that the 1st Defendant does not reside there anymore and his whereabouts cannot be traced by his neighbours. (underlining is mine for emphasis) His evasiveness and flight were not unconnected with the realization that his fraudulent machination has been unraveled. It is the reality of the 1st Defendant’s elaborate fraud that leads me to find, and I so hold, that the 1st Defendant is an impersonator who was determined to deprive the Claimant of the fruit of his labour. It is possible the 1st Defendant must have been in cahoots with some undisclosed persons to have plotted and executed this well-orchestrated swindle; but this Court will be in remiss if it embarks on that trajectory of conjecture. I will say no more on this. It bears repeating, however, to observe that the 1st Defendant could go to the extent of forging a Certificate of Death of a living being is an indication of how wicked and deadly he is.

On the effect of fraud on any probate instrument, whether it be will or Letters of Administration, the Court of Appeal per Kolawole, JCA held in Dan-Jumho v. Dan- Jumbo (1989) 5 NWLR (Pt. 119) 33 C.A. P.39, para. H; p.44, para. G; p.42, para. B that “A grant of probate of a Will can be revoked if the grant was obtained fraudulently or where an executor obtains probate of a Will whilst an action as to its validity is pending in another competent court.” This decision was upheld by the Supreme Court ten years later when this appeal got up to the Supreme Court. See
Dan-Jumbo v. Dan-Jumbo (1999) 11 NWLR (Pt. 627) 445 S.C. per Wali, JSC. Similarly, in Mgbodu v. Mgbodu (2015) 12 NWLR (Pt. 1474) 415 C.A. at 438, paras B-C, the Court of Appeal per Bolaji-Yusuff, JCA held that “By virtue of section 63 of the Administration and Succession (Estate of Deceased Persons) Law, when applicants for Letters of Administration knowingly give false testimony in judicial proceedings, it is fatal to the validity of the Letter of Administration. In the instant case, what the appellant and his deceased mother did amount to knowingly giving false testimony in judicial proceedings and it is fatal to the validity of the Letters of Administration issued to them.”

I have no difficulty in finding that the Claimant has established fraud in the grant of the Letters of Administration by the 2nd Defendant to the 1st Defendant. This position is all the more compelling considering the well-settled position of the law that all probate instruments, whether a will or a letter of administration, are ambulatory in nature; that is, they take effect after the death of the person whose estate is sought to be executed or administered as the case may be. I agree with learned Counsel for the Claimant that the Letters of Administration did not satisfy the prerequisites for its grant, to wit, that the person over whose estate the letters are sought must have (i) been subject to the jurisdiction of this Court; and, (ii) died.

Having found that the Claimant, who resides at Umunwanlo, Irete, Owerri West Local Government Area of Imo State is alive, the Letters of Administration issued by the 2nd Defendant to the 1st Defendant on the 22nd of July, 2020 lacks a platform on which to stand and is, accordingly, liable to be set aside and is hereby set aside.

In view of the above-referenced decisions of the Court of Appeal and the Supreme Court on the fatal effect of fraud on Letters of Administration that were obtained fraudulently, the mortal fate that will befall the Letters of Administration which the 2nd Defendant granted to the 1st Defendant becomes a fait accompli. Accordingly, this Court finds merit in the case of the Claimant. I hereby answer the question formulated by the Claimant in the negative. From the facts of this case and my findings upon a dispassionate evaluation of the evidence before me, I have no hesitation in holding that the Letters of Administration granted by the 2nd Defendant to the 1st Defendant was invalid since, from the evidence before me, the Claimant was alive at the time it was granted and is still alive before me. This Honourable Court therefore has the powers, and is under a duty in the circumstances, pursuant to Order 62 Rules 42 of the Rules of this Court, to review the actions the 2nd Defendant has taken in respect of the Letters of Administration which he granted to the 1st Defendant in order to make it to accord with justice, fairness and equity. Accordingly, Judgment is hereby entered in favour of the Claimant as per the terms of the Claim as enumerated in the Originating Summons as follows:-

1. THAT the Letters of Administration/Probate which the 2nd Defendant the Probate Registrar, High Court of the Federal Capital Territory, Abuja granted to the 1st Defendant Kenneth U. Kelechi on the 22nd July, 2020, over the estate of the Claimant in this suit Kelechi Ugochukwu, which grant was made pursuant to the purported certificate of death of the Claimant herein with Certificate No.: D130162315 dated 28th May, 2020 is null and void and of no effect whatsoever same having been obtained by fraud.

2. THAT an Order of Court is hereby made setting aside the said Letters of Administration and any Order fraudulently obtained by the 1st Defendant Kenneth U. Kelechi purportedly flowing from the Letter of Administration/Probate dated 22nd July, 2020 over the estate of the Claimant.

3. THAT an Order of Court is hereby made directing the 3rd Defendant to lift the Post No Debit Notice placed on the accounts of the Claimant domiciled with it, to wit: Account No.: 0024864050 with the sum of ₦58,512,169.44K (Fifty-Eight Million, Five Hundred and Twelve Thousand, One Hundred and Sixty-Nine Naira, Forty-Four Kobo) only and Account No.: 0024303214 with the sum of $455,088.65 (Four Hundred and Fifty-Five Thousand, Eighty-Eight Dollars, Sixty-Five Cent) and to unfreeze and to release to the Claimant immediately all the monies standing to the credit of the Claimant in the afore-mentioned accounts.

4. THAT the 3rd Defendant is hereby ordered to file a certificate or affidavit of compliance with Relief No. 3 above within seven days of the date of this Judgment.

This is the Judgment of this Honourable Court delivered today, the 27th of October, 2022.

_ _ _ _ _ __ _ _ _ _ _ _ _ _
HON. JUSTICE A. H. MUSA
JUDGE
27/10/2022
APPEARANCES:
FOR THE CLAIMANT:
U. C. Onuoha Esq.
FOR THE 1ST DEFENDANT:
No legal representation.
For the 2nd Defendant:
No legal representation.
For the 3rd Defendant:
C. J. Akunnakwe Esq.
E. A. Daodu Esq.

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