…as a lawyer of over 33 years standing, my recommendation to litigants is always to first explore alternative dispute resolution, particularly mediation/amicable settlement. Litigation should be a last resort. This is because with mediation, it’s usually possible to emerge a settlement that leaves all parties fairly satisfied, and in the case of a family, reconcile them. But, with litigation, only one party usually emerges victorious – a winner takes all scenario – more so, when the writing can clearly be seen on the wall, and in a family matter, this will only engender polarisation and enmity.
Last week, social media was awash with stories about the Wigwe family and the ruling delivered by Honourable Adeyemi J of the Ikeja High Court (Family and Probate), which arose from a motion for interlocutory injunction brought by the claimant/applicants, in suit number ID/7735FPM/2024 In the Matter of the Administration of the Estate of Late Mr Herbert Onyewumbu Wigwe – Christian Wigwe and Pastor Shyngle Wigwe v Uche Wigwe, Aigboje Aig-Imoukhuede and Otutochi Wigwe (the Ruling). I decided to read the ruling and discuss it, before social media drenches the whole place with misinformation. Let me state categorically that I take nobody’s side here; I’m only interpreting the law as it relates to the facts of this motion, correctly. But, if I was constrained to choose a side, as a mother, I would choose the side of Herbert Wigwe’s children, particularly the minors who have been orphaned so early in life, and ensure that their interest is well protected.
Testate and Intestate
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But, before I delve into the ruling, I will briefly mention, in as simple terms as possible, the two situations that arise upon death – where a person dies and leaves a will, Testacy, (see the Wills Law of Lagos State 2004 (WL)) or dies without leaving a will, Intestacy (see the Administration of Estates Law of Lagos State 1959 now 2015 (AEL)).
Section 2(1)(a) & (b) of the WL refers to the deceased’s spouse(s) and children as the family and dependants of the deceased (different states have their definition of dependants), while Section 4 thereof provides for the requirements of a valid will – (a) that it is in writing; (b) signed by the Testator; (c) signed by the Testator in the presence of at least two witnesses; (d) the witnesses attest and subscribe to the will in the presence of the Testator. Obviously, a Testator must be of sound mind and at least 18 years old (see Section 3 of the WL), and the will must be made voluntarily. A will made outside Nigeria can also be valid in Nigeria, if it meets the right conditions.
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Revocable Trust, another tool adopted by Herbert Wigwe, may also be used in place of or alongside a will. It doesn’t require a Probate, ensures privacy as the assets and beneficiaries don’t have to be disclosed, allows assets to be transferred from one generation to the other, and is administered by the Trustee.
The second scenario in death, intestacy, was what I used to cut my legal teeth on, as a fresh wig in 1991, newly employed at Priscilla O. Kuye & Co. One of the first cases that was assigned to me was Onye v Onye, in which the deceased, Mr Onye, who married under the Marriage Act, died rather suddenly after a very brief illness. The marriage was blessed with six children – five girls and a boy. I applied for Letters of Administration, with Mrs Onye and her first daughter, who was of age, as Administrators. Late Mr Onye’s brothers then filed a caveat, insisting that they should be joined as the Administrators, instead of the widow and child, or in the alternative as Co-Administrators. Needless to say, we went to court, and I won the case for Mrs Onye. The court declined to join the Brothers Onye as Administrators, whether sole or joint.
It was from handling that case that I became conversant with the Administration of Estates Law of Lagos State (AEL), particularly Section 49(2)(a) & (b) (now Section 46), which fitted the circumstances of Mrs Onye like a glove, and provided, inter alia, that when a person dies intestate and leaves a spouse and children, the spouse is entitled to the deceased’s personal chattels and one-third of the estate, while the children of the deceased are entitled to the other two-thirds of the estate. There are other scenarios envisaged by Section 46, but, for the purposes of this discourse, I will limit myself to these four: (1) if the deceased has no spouse, but has children; (2) if the deceased has a spouse, but no children; (3) if the deceased has no spouse or children, but leaves parents and siblings (collaterals); or (4) if the deceased has no spouse, children or parents, but has siblings. There is a hierarchy of inheritance when there’s no will. In short, parents will only be partly entitled when there are no children, and siblings will only be entitled where there is no spouse, children and parents. See Salubi v Nwariaku (2003) LPELR-2998(SC) per Emmanuel Olayinka Ayoola, JSC, on the hierarchy of inheritance in intestacy.
Background
In the case of Herbert Wigwe, though his will was made outside Nigeria, it covers everything that belongs to him, both personal and real property, within and outside Nigeria, and has since been submitted to a Probate in Nigeria. In his testaments, Herbert Wigwe named three people, alternatively, to be his personal representatives, and three people, alternatively, to be his trustees. It is pertinent to note that in the two capacities, that is personal representative and trustee, late Doreen Wigwe and his first cousin, Uche Wigwe, are listed as first and third respectively, while an American, Ms Blanco, is listed as the second alternative personal representative, and Aigboje Aig-Imoukhuede is listed as the second alternative trustee. Ms Blanco subsequently declined to be the personal representative.
In intestacy, the children are the most superior, in that, where there’s no spouse, whether there are parents or siblings of the deceased, the children take the whole estate of their father; while in the case of a surviving spouse and no children, the spouse will only take half, and the other half goes to the parents of the deceased in equal shares.
That said, the first point to note is that, in Lagos, dependants are defined as a spouse(s) and children, to the exclusion of all other relatives – see Section 2 of WL. The second point to note is that, a community reading of Section 2 of the WL and the hierarchy of inheritance in the case of intestacy under Section 46 of the AEL, that where a deceased has a spouse and children, or no spouse and children, in the former scenario of testacy, the spouse and children are the dependants that can contest the will, and in the latter scenario of intestacy, the spouse and the children are the ones with the right to the deceased’s estate to the exclusion of all others.
In intestacy, the children are the most superior, in that, where there’s no spouse, whether there are parents or siblings of the deceased, the children take the whole estate of their father; while in the case of a surviving spouse and no children, the spouse will only take half, and the other half goes to the parents of the deceased in equal shares.
From the foregoing, it is obvious that it is not merely a biological relationship that confers interest on people in respect of a deceased’s estate, but more importantly, the wishes of the deceased when there’s a will, or in the case of intestacy, the provisions of the law following the hierarchy of inheritance.
The Ruling
The judge reduced the issues for determination in the motion on notice into three: (1) appointment of interim administrators; (2) appointment of interim guardians/supervision; (3) request for a Norwich Pharmacal Order. All the prayers of the Claimant/Applicants were, however, refused by the court in this well considered ruling.
It was, indeed, a rather bizarre motion; an abuse of court process, surprisingly argued by a Senior Advocate of Nigeria, and not a ‘baby’ lawyer like I was when I handled the Onye case, as first, the prayers in the motion were practically a regurgitation of some of the prayers in the substantive suit! Specifically, Prayers b, f, h, i, j, and the alternative prayer k contained in the statement of claim, are the same as those contained in the motion on notice (1-3), and this was rightfully noted by Adeyemi J, who supported the court’s position with the case of Shanu v Afribank (Nig) Plc (2002) LPELR-3036(SC) per Samson Odemwingie Uwaifo, JSC, where the Supreme Court held thus: “….a court should not delve into issues meant for the substantive suit or appeal, when considering relevant interlocutory applications.” For one, praying the court for interim administrators are prayers in both the statement of claim and motion on notice. Ditto for that of guardianship/supervision. The rationale for the position of the law is that, it will amount to deciding the case at an interlocutory stage, before the court has had the benefit of taking evidence and hearing the whole case! Having decided the case at an interlocutory stage, what would be left for trial?! In Agwu & Ors v Julius Berger (Nig) Plc (2019) LPELR-47625 (SC) per John Inyang Okoro, JSC, the Supreme Court held that “….the position of the law is that, in determining any interlocutory application pending the trial of the substantive case, care should be taken not to make pronouncements which may prejudice the trial of the claims filed and still pending before the court. To do otherwise, is to prejudge the matter in respect of which evidence is yet to be led.”
The proper thing to do when the interlocutory prayers tend to coincide with the substantive prayers, is to ask the court for an accelerated hearing of the case. In Dustin Pharmaceutical & Chemical Co. Ltd v Beneks Pharmaceutical & Cosmetics Ltd & Ors (2008) LPELR-974(SC) per Francis Fedode Tabai, JSC, the Supreme Court held thus: “….it has often been advised that in appropriate cases, a recourse to an order of accelerated hearing should be preferred to an interlocutory injunction, so that the matters in controversy can be settled once and for all.” I submit that the Wigwe case is one of those cases.
While the first Claimant/Applicant, Christian Wigwe may be Herbert Wigwe’s cousin, and the second Claimant/Applicant, Pastor Shyngle Wigwe is Herbert Wigwe’s father and 90 year old patriarch of the Wigwe family, their familial relationships do not appear to endow them with the locus standi to have brought this application, which in itself is an abuse of court process, particularly as Herbert’s wishes as to his personal representatives, trustees and bequests have been clearly stated.
Another clear abuse of court process was praying the court for the appointment of interim guardians/supervision, when Otutochi Wigwe, the adult daughter of Herbert and Doreen Wigwe, and the older sister of the three minors – David, Hannah, and Okachi, had already been so appointed by a court of competent jurisdiction as their legal guardian. In this prayer, what the Claimant/Applicants sought to do, is tantamount to seeking to appeal the decision of a court of competent jurisdiction by way of an interlocutory application, instead of by way of an appeal. It therefore, came as no surprise, that this prayer was also resolved against the Claimant/Applicants. In support of this position, Adeyemi J. cited the case of Akinpelu v Adegbore & Ors (2008) LPELR-354 (SC) per Niki Tobi, JSC in which the Supreme Court held that “Wherever or in whatever way the table turns, this Court cannot convert a motion to an appeal…..this court has not the jurisdiction, to convert the motion before it as an appeal.”
As for the third prayer, seeking the grant of a Norwich Pharmacal Order (NPO), the Claimant/Applicants failed to fulfil any of the conditions for the grant of same. An NPO is used to obtain information from a party for purposes of litigation, and if there is suspected wrongdoing, to be able to identify the culprits and/or to stop the wrongdoing. First, the Claimant/Applicants adduced no prima facie evidence of wrongdoing against the Respondents, a precondition that could warrant the grant of an NPO. A claim that someone is manipulated by another, is neither here nor there and holds no water in law. What the law recognises is duress, force, trick and fraud, and this allegation must be proven. See Okon v State (2021) LPELR-53308 (CA) per Mojeed Adekunle Owoade, JCA; Saidu v State (1982) LPELR-2977(SC) per Andrews Otutu Obaseki, JSC. Secondly, the Claimant/Applicants, not being beneficiaries under the will of late Herbert Wigwe, with all due respect, for want of a better description, they may be what is referred to in law as ‘meddlesome interlopers’, that is, uninvited participants interfering in something that doesn’t concern them. See the case of Daniel v INEC & Ors (2015) LPELR-24566(SC) per Olabode Rhodes-Vivour, JSC, on the definition of a meddlesome interloper, with regard to political party primaries – a candidate who didn’t participate in the primaries, with no real interest in it. Similarly, non-beneficiaries of a will, have no interest in it. And, in the case of intestacy, there would be some conditions to be fulfilled, before the second Claimant/Applicant could have an interest in Herbert Wigwe’s estate, there would be no spouse, no children; or spouse and no children. In this case, Herbert Wigwe died alongside his spouse, Doreen Wigwe and his eldest child, Chizi Wigwe, and they left four children, including one adult, Otutochi Wigwe. It was therefore again, no surprise that this prayer also fell flat on its face.
Conclusion
While the first Claimant/Applicant, Christian Wigwe may be Herbert Wigwe’s cousin, and the second Claimant/Applicant, Pastor Shyngle Wigwe is Herbert Wigwe’s father and 90 year old patriarch of the Wigwe family, their familial relationships do not appear to endow them with the locus standi to have brought this application, which in itself is an abuse of court process, particularly as Herbert’s wishes as to his personal representatives, trustees and bequests have been clearly stated. Mere assertion of a familial relationship without more, does not suffice in this case. The relationship must confer a right or vested interest, that can be protected and enforced in law. Additionally, when an individual lives their life under the law, as opposed to native law and custom, as Herbert Wigwe did, customs and traditions play no role.
I also did not find any provision in the two major laws concerning death that I cited above, that, based on a familial relationship with the Testator, allows relatives to select Administrators different from the personal representatives selected by the Testator themselves, thereby overriding the wishes of the Testator. Indeed, if such a law exists, undoubtedly, certain conditions would have to be fulfilled before it can be ignited. For example, maybe if the representatives selected by the Testator are incapacitated, maybe mentally unstable, or it is proven that they are bleeding the deceased’s estate dry. In respect of Uche Wigwe and Aigboje Aig-Imoukhuede, no evidence was adduced by the Claimant/Applicants against them in this regard. It is trite law that, he who alleges, must prove. See the case of Aderounmu & Anor v Olowu (2000) LPELR-141(SC) per Emmanuel Olayinka Ayoola, JSC on the burden of proof.
It is not the natural order of life for one to pre-decease one’s parents, so even though Herbert Wigwe’s love for his parents was undeniable and undoubted, one would not expect that they would be mentioned in his Last Will and Testament, as this would be considered to be an abomination in our African culture. Nevertheless, it is expected that the parents would be catered for by Herbert Wigwe’s estate.
Finally, as a lawyer of over 33 years standing, my recommendation to litigants is always to first explore alternative dispute resolution, particularly mediation/amicable settlement. Litigation should be a last resort. This is because with mediation, it’s usually possible to emerge a settlement that leaves all parties fairly satisfied, and in the case of a family, reconcile them. But, with litigation, only one party usually emerges victorious – a winner takes all scenario – more so, when the writing can clearly be seen on the wall, and in a family matter, this will only engender polarisation and enmity.
Onikepo Braithwaite, a lawyer, wrote from Lagos.
