3PLR – ANOWO V. ANOWO

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ANOWO

V.

ANOWO

COURT OF APPEAL (ENUGU DIVISION)

WEDNESDAY, 10TH JULY, 1991

CA/E/40/91

3PLR/1991/45 (CA)

 

 

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

ALOYSIUS IYORGYER KATSINA-ALU, J.C.A. (Presided)

GEORGE ADESOLA OGUNTADE, J.C.A. (Read the Leading Judgment)

SAMSON ODEMWINGIE UWAIFO, J.C.A.

 

BETWEEN

MRS. HELEN USI ANOWO

AND

1. MRS. MONICA ANOWO
2. MISS NNEKA ANOWO

 

REPRESENTATION

Chief A. O. Mogboh, S.A.N. (with him, Miss N. Ukoha) – for the Appellant

1. U. Echeozo – for the Respondents

 

ORIGINATING COURT/STATE

Enugu High Court, Enugu , Ononiba J

 

OTHER ISSUES

ESTATE ADMINISTRATION/PLANNING: – Who can apply for letters of administration – Whether administration of an estate is the same as its distribution – Role of Administrator-General in administration of estates

ESTATE ADMINISTRATION/PLANNING:- Distinction between the administration of the estate of a deceased person and the distribution of the properties comprised in the estate – Rule that person or persons who administer an estate do not necessarily have to be the beneficiaries of the estate – When appointment of a receiver would be justified

ESTATE ADMINISTRATION/PLANNING:- Receiver – When appointment of a receiver would be appropriate to manage an estate pending determination of suit – Order 30 Rule 2 of the High Court Rules of Anambra State 1988 – Sections 13 and 14 of the Administrator-General Law of Eastern Nigeria cap. 4 – Application of

ESTATE ADMINISTRATION/PLANNING:- Receiver – Main classes of cases in which the appointment is made – Relevant considerations

ESTATE ADMINISTRATION/PLANNING:- Receiver – When appointed by a court – Whether is not an agent of either party to the litigation but an officer of court – Interference with performance of receiver – Whether deemed as contempt of court

ESTATE ADMINISTRATION/PLANNING:- Receiver – When appointed over land or real property – Powers – Whether deemed to have taken over possession – Effect – Whether appoint­ment operates as a general injunction against all the parties to the litigation – Interference by any of the partie Receiver’s performance of his duties – How treated

ESTATE ADMINISTRATION/PLANNING:- Receiver – What an applicant for the appointment of a receiver must show – When will not be appointed – Factors which a court may bear in mind in deciding whether or not to appoint a receiver

FAMILY LAW – MARRIAGE:- Proof of marriage – Customary law – Whether proof of acknowledgement enough – Marriage under the Act – What the Court would consider sufficient proof – Implication for administration of estate of deceased husband

FAMILY LAW – MARRIAGE:- Proof of existence of a valid existing marriage constituted under the Marriage Act – Whether nullifies the existence of a subsequent marriage between a party thereto with a third party

CHILDREN AND WOMEN LAW: Children/Women and Inheritance/Justice Administration – Widows – Administration of estate – Application for letters of administration – Who is entitled – Woman’s claim that marriage with deceased husband was under the Marriage Act and therefore rival claims of other co-wives on husband’s estate stood nullified – How proved – Polygamous families – Attitude of court to wife seeking to assert monogamous marriage as ground to control the administration of deceased spouse’s estate

INTERPRETATION OF STATUTES:- Order 30 Rule 2 of the High Court Rules of Anambra State 1988

INTERPRETATION OF STATUTES:- Sections 13 and 14 of the Administrator-General Law of Eastern Nigeria cap. 4 – Interpretation of

WORDS AND PHRASES:- “Just or convenient” – Meaning

 

 

 

MAIN JUDGEMENT

OGUNTADE, J.C.A. (Delivering the Leading Judgment):

At the Enugu High Court, the plaintiff (now appellant) by her statement of claim filed on 29 September, 1989 claimed against the defendants (now respondents) the following reliefs:

“(a)    A declaration that the plaintiff is the lawful wife of the late Joseph Okoli Anowo who died intestate on 13th October, 1988 having been married to him under the Bini Native Law and Custom.

(b)     A declaration that the plaintiff is one of the legal representative of the late Joseph Okoli Anowo and is entitled together with the defendants to the grant of letters of administration of the said deceased’s estate comprising the following properties within juris­diction viz:

(i)      No. 10 Nsukka Lane, Uwani, Enugu.

(ii)     No. 50 Udoji Street, Ogui New Layout, Enugu

(iii)    No. 17 Ezeani Street, New Haven, Enugu

(iv)    No. 23 College Road, Ogui New Layout, Enugu.

(v)     No. 14B Ogbete Crescent Abakpa Nike, Enugu

(vi)    One family house at Okpatu in Udi Local Government Area.

(vii)   Two cars; Peugeot 504 Saloon car registration No.AN1212 D, Peugeot 305 Saloon car registration No. AN 9496 EB (c) An order ofcourt directing the Administrator-General/Public Trustee or his agent to collect, take possession of and manage the deceased’s aforesaid properties pending the grant of letters of administration to the deceased’s legal representatives.

(d)     An order of court directing the defendants to account for all the rents they have collected from the aforesaid deceased’s properties from 13th October, 1988.

(e)     An injunction restraining the defendants, their servants or agents from wrongfully collecting more rents from or howsoever intermeddling with the aforesaid properties.”

 

The respondents filed a statement of defence.

 

The plaintiff later brought an application praying for the following orders:

“1.     Appointing a receiver to take control, manage and collect the rents accruing from the following properties of the late Joseph Okoh Anowo viz:

(i)      No. 10 Nsukka Lane, Uwani, Enugu.

(it)     No. 50 Udoji Street, Ogui New Layout, Enugu.

(iii)    No. 17 Ezeani Street, New Haven, Enugu.

(iv)    No. 23 College Road, Ogui New Layout, Enugu.

(v)     No. 14B Ogbete Crescent, Abakpa Nike, Enugu

(vi)    One family house at Okpatu in Udi Local Government Area. (vii)Two cars, Peugeot 504 Saloon car registration No. AN 1212 D, Peugeot 305 Saloon car registration No. AN 9496 EB.

2. An interlocutory injunction restraining the defendants/respondents, their servants, agents and proxies from further collecting rents from the afore-mentioned properties and from intermeddling with the estate of the late Joseph Okoli Anowo pending the determination of the substantive case.”

 

The plaintiff filed an affidavit in support of the application. The 1st defendants filed a counter-affidavit on behalf of the two defendants. The plaintiff in reaction filed a further-affidavit.

 

The lower court: coram Ononiba J., heard arguments for and against the application on 8th May, 1990 and on 28th June, 1990. On 29th November, 1990 some 5 months after he heard arguments, Ononiba J. delivered his ruling. In the concluding part of the ruling, the learned judge said:

“It does not seem to me that the applicant has shown a strong prima facie right which is in existence and which deserves protection by the court and which is likely to be destroyed or devastated if not protected. It does not seem to me unreasonable that the defendants should collect rents accruing from the estate pending the determination of this suit.

On the whole, I am satisfied that this application lacks merit and ought to be and is hereby refused.”

 

The plaintiff was aggrieved by the order of the lower court and has come on appeal against it on two grounds of appeal which read as follows:

ERROR IN LAW

The learned trial judge erred in law when he held that the appellant had not elicited a strong prima facie right deserving protection by the court.

PARTICULARS OF ERROR

(a)     The learned trial judge had found that by Exhibit C to the application for appointment of a receiver, the deceased had recognized the appellant as his second wife.

(b)     The learned trial judge also found that by Exhibits C and D, the appellant has been collecting the rents from one of the deceased properties.

(c)     The appellant has been exercising this right and collecting the rents during the lifetime of the deceased.

(d)     The respondents intervened in the exercise of this right by the appellant and started collecting all the rents from the deceased properties at his death.

2. ERROR IN LAW

The learned trial judge erred in law by refusing to appoint the Administrator-General as receiver thereby allowing the respondents to continue to collect the rent.

PARTICULARS OF ERROR

(a)     Since the death of the deceased intestate, no letters of ad­ministration in respect of his estate had been issued to anybody.

(b)     It behoved the lower court to appoint a receiver in order to prevent a scramble among those who may be entitled as beneficiaries to the estate of the deceased.

(c)     By Order 30 Rule 3 of the High Court Rules, 1988 it is unlawful for unauthorized persons to deal with the property of any deceased person.

(d)     Taking cognizance of the facts and circumstances of the case, it was just and convenient for the lower court to have made an order appointing a receiver.”

 

In this court, the parties filed and exchanged briefs. In the appellant’s brief filed, the issue for determination in this appeal was stated to be the following:

“Whether the lower court was justified in refusing the application taking cognizance of the facts and circumstances of the case.”

 

The respondents in their brief identified two issues. But these are in essence a breakdown of the broad issue stated by the appellant.

 

A convenient starting point is an understanding of the facts placed before the lower court. In paragraphs 3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18, and 24 of the affidavit in support of her application, the plaintiff appellant deposed as follows:

“3.     That I was lawfully married to the late Joseph Okoli Anowo under the native law and custom of Bini, my birth place.

4. That subsequently, my late husband registered the said marriage at the Enugu Local Government. A copy of the Certificate of Registration of Marriage issued to my husband is hereto attached as Exhibit ‘A’.
5. That my husband rented an apartment for me at No. 21 Udi Road, Asata, Enugu, and duly paid all the rents accruing thereon until his death. Attached hereto and marked Exhibit ‘B’ are copies of some rent receipts issued to my late husband.
6. That my husband during his lifetime ordered the Caretaker of his property at No. 17 Ezeani Street, New Haven, Enugu, to pay over all the rent proceeds to me for my maintenance and upkeep.
7. That my husband later mandated me to collect all the rents due from the said property at No. 17 Ezeani Street. A copy of the letter of mandate is hereto attached as Exhibit ‘C’.
8. That consequent upon the mandate, I duly collected the rents due from the property, issuing receipts to the tenants and using the rent proceeds for my up keep and for maintenance of the property. Attached hereto and marked Exhibit ‘D’ are rent receipts I issued to some of the tenants.
9. That the rent I collect from No. 17 Ezeani street is my only source of maintenance and sustenance.
10. That after my husband’s death I continued collecting the rent from the said property as the express authorization given to me was never withdrawn by my late husband.
11. That about one month after my husband’s death, the 1st defendant/respondent’s Solicitors in a letter dated 13/11/88 warned the tenants of No. 17 Ezeani Street to desist from paying rent to me. A copy of the said letter is hereto attached as Exhibit ‘E’.
12. That since April, 1989 the 1st defendant/respondent has been collecting the rent from No. 17 Ezeani Street without prior au­thorization by my late husband and without obtaining letters of administration.
13. That the entire estate of my late husband has been taken over by the defendants/respondents who now manage same to my detriment and without rendering any account to me.
14. That no letters of administration in respect of the estate of my late husband has been issued to anybody.
15. That the defendants have been collecting the rents due to my late husband’s estate and have been keeping the proceeds to themselves.
16. That I am greatly prejudiced by the action of the defendants since the rent proceeds from No. 17 Ezeani Street, are my only source of maintenance and upkeep.
17. That it would be in the interest of justice if a receiver is appointed to control, manage and collect rents due to the estate of my late husband pending the determination of the substantive suit.

18      That the Administrator-General and Public Trustee, Ministry of Justice is competent and has adequate machinery to undertake the duty of a receiver for the estate of my late husband.

24. That unless a receiver is appointed, the defendants will continue to collect rents due to the estate and retain same to my detriment.”

 

The 1st respondent deposed to a counter-affidavit. In paragraphs 1, 2, 4, 6, 7, 15, 16, 17, 20, 22 and 33 the 1st respondent deposed as follows:

“1.     That I am the only widow of my late husband, Joseph Okoli Anowo.

2. That the second defendant/respondent is my daughter with the late Joseph Okoli Anowo.

4        That the plaintiff/applicant is not a widow of my late husband Joseph Okoli Anowo.

6. That the Customary court Eke in suit No.CCEK/MISC/18E/88 on 8th March, 1989 ruled that the plaintiff/applicant has no locus standi in the estate of Joseph Okoli Anowo a copy of which is hereby attached as Exhibit A.
7. That the Plaintiff/Applicant has not appealed against the said decision.
8. That the plaintiff/applicant was never married to Joseph Anowo and was at the best a girl friend he kept for illicit sexual intercourse.
9. That the certificate of marriage referred to as Exhibit A is a forgery and a fraud.
10. That the plaintiff/applicant has never lived together with the deceased and never occupied any of the deceased properties but a – rented apartment at No. 21 Udi Road, Asata so as to escape detection by members of the family of her immoral relationship with the deceased.
11. That the plaintiff/applicant is an imposter who was collecting rent until challenged after the death of the late Joseph Anowo without being his legitimate wife or obtaining letters of Administration.
12. That the respondents duly applied for letters of Administration to the Probate Registrar, High Court Enugu which was thwarted by the Caveat filed by the plaintiff/applicant to delay the application.
13. That the first respondent and the deceased were legitimately married in the Roman Catholic Cathedral Onitsha as man and wife to the exclusion of any other and in accordance with the Marriage Act.’

 

The plaintiff deposed to a further affidavit in reply to the 1st respondent’s counter-affidavit. In paragraphs 4, 5, 6 and 9 of the further affidavit she deposed thus:

‘4.      That the Ruling of the Customary Court, Eke, Exhibit A to the counter affidavit is merely an advice to the Administrator General and Public Trustee.

5. That there was never a lis inter parties pending before the Customary Court Eke.
6. That I am informed by my legal practitioners, Messrs Mogboh & Co. and I verily believe them that the Customary Court has no jurisdiction in respect of the Estate of my late husband and cannot make any valid binding orders in respect thereof.
7. That the marriage contracted between the 1st defendant/respondent and my late husband is a mere church marriage and has no relevance to or connection with the Marriage Act.”

 

From the affidavit evidence before the lower court it is clear that both the plaintiff and 1st defendant claimed to be the wives of the deceased. The plaintiff alleged that the marriage between the 1st defendant and the deceased was one merely blessed in the church and not a monogamous marriage under the Marriage Act. There was no doubt that the deceased acknowledged the plaintiff as his wife. In Exhibit ‘C’ attached to the affidavit in support of the motion, the deceased had written thus:

“J. O. Anowo,

c/o 17 Ezeani Street, New Haven, Enugu.

15th April, 1985

 

Dear Mr. Chukwurah,

Happy Easter to you and your family. I refer you to the Power of Attorney given to you by the undersigned to act as the Caretaker of the property situated at No. 17 Ezeani. Street, New Haven, Enugu, and advise you by this letter that the authority is now revoked with effect from the end of April, 1985.

It has been established that you are not effective over the control of the yard nor do you care an eel to collect rents as and when due, despite the fact that a shop ­room at the rent of fifty naira (N50.00) a month was gratuitously allowed your sister free of rent since you planted her there to act for you. She too is ineffective.

The result is that the tenants flout all instructions, withhold payment of monthly rents without query and sometimes ignore the landlord’s personal instructions.

In that connection, I thank you and your lieutenant for your help so far, and as a mark of appreciation, she may remain in the room until the end of May, 1985 free of any rents, but as from first of June, 1985, she will pay the monthly rent of N50.00 (fifty naira) for the shop-room or she should feel free to look for alternative accommodation.

I am not prepared to negotiate anything about the above assertions as my second wife Mrs. Helen Anowo has now taken over control of the premises. A copy of this letter is being forwarded to your sister for her information. I have advised all tenants to carry out the instructions of the new caretaker.

Once again, please thank you for your past services which however never went unrewarded.

 

Yours faithfully,

Sgd.

1. O. Anowo

For: LANDLORD

cc: Miss Azuka,

17 Ezeani Street,

New Haven, Enugu.”

 

Notwithstanding the contents of exhibit ‘C’ reproduced above, if it was shown that the marriage previously celebrated between the 1st defendant and the deceased was one under the Marriage Act, the alleged subsequent marriage between the deceased and the plaintiff would be a nullity since the deceased could not validly contract another marriage whilst his marriage with 1st defendant was still in force.

 

But the contention of the plaintiff is that the marriage between the 1st defendant and the deceased was not one under the Marriage Act. The 1st defendant did not anywhere exhibit a Marriage Certificate.

 

Parties had filed pleadings before the plaintiff brought her application. In paragraphs 2, 6, 8, 10, 34, 35, 36 and 37 of the statement of claim, the plaintiff averred:

“2.     The 1st defendant resides at No. 10 Nsukka Lane, Uwani, Enugu, within jurisdiction and is another widow of the late Joseph Okoli and mother of the 2nd defendant.

6. The plaintiff after becoming aware that the late Joseph was already married confronted him with this fact, but he reassured the plaintiff that his earlier marriage did not preclude him from taking on a second wife. The plaintiff thereupon accepted the late Joseph’s marriage proposal.
7. The plaintiff’s father after considering the proposal gave his consent to the marriage proposal, whereupon the late Joseph came with his relatives among whom were one Ogbulu Mpunyimagu and Samuel Anowo to the plaintiff’s family paid the dowry for the plaintiff and performed all the traditional marriage rites under the Bini native law and custom.

10      After the late Joseph had married the plaintiff under native law and custom he introduced the plaintiff to the 1st defendant as his second wife.

34. The plaintiff states that the 1st defendant has completely taken over the management of the estate of the late Joseph Anowo notwith­standing that she had no prior authorisation from the late Joseph and irrespective of the fact that the 1st defendant has not been granted any letters of administration in respect of the estate of the late Joseph Okoli Anowo.
35. The plaintiff states that on or about March 1989, the defendants applied in their respective names for the grant of letters of administration in respect of the estate of late Joseph Okoli Anowo without including the plaintiff’s name as an administratrix.
36. The plaintiff immediately brought this development to the notice of her legal practitioners who applied for caveat forms to issue to prohibit the grant of letters of administration to the defendants. 37. As a result, a caveat was entered and the Probate Registrar stayed action on the application for letters of administration.”

 

In paragraphs 2, 21, and 31 of their statement of defence, the defendants averred:

“2.     Paragraph 1 is false and untrue except that the plaintiff resides at No. 21 Udi Road, Enugu. The plaintiff was never a wife of the late Joseph Okoli Anowo or his widow. The defendants will at the trial insist on the strictest proof.

21. In further answer to paragraph 24 when the first defendant noticed that the plaintiff who had been having illicit love affair with the late J.O. Anowo extended her meddlesomeness with the family estate the first defendant had to take immediate steps to stop the plaintiff a stranger from the administration of the estate of her late husband of which she is the only widow.
22. That my late husband Joseph O. Anowo and myself are devout Roman Catholics and were duly married in accordance with the Roman Catholic faith on 7th March, 1964 at the Holy Trinity Cathedral, Onitsha and in accordance with the Marriage Act.”

 

It is clear that the lower court would need to determine the status of the marriage between the 1st defendant and the deceased before it could form any opinion as to whether the plaintiff was indeed a wife of the deceased. This was one of the matters to be decided at the trial which has not commenced as at the time the plaintiff brought her application.

 

Now, how did the lower court approach the matter? At page 41 of the judgment, the trial judge said:

“From the facts deposed to in this application, it does appear that the applicant was collecting rent in respect of No.17 Ezeani Street. The deceased also in his letter to his caretaker referred to the applicant as his second wife. So far this is a prima facie evidence that the deceased regarded the applicant as his second wife. Against this prima facie evidence is the one from the first wife Mrs. Monic Anowo that she was married to the deceased at the Roman Catholic Cathedral Church, Onitsha and in accordance with the Marriage Act. These two assertions are mutually exclusive, that is to say, that if one stands the other falls. the proceedings in Eke Customary Court appear to indicate that the applicant is not recognized as a wife under Okpatu Customary Law.”

 

And at page 42, the trial judge said:

“To grant an interlocutory injunction will mean depriving the 1st defendant and 2nd defendant whose rights in respect of the administration of the estate are not in dispute from dealing with the estate at all, what is disputed is the inclusion of the plaintiff in the administration of the estate. It seems to me that since it is a common ground that the 1st defendant and the 2nd defendant are the wife and daughter of the deceased, it will be unfair to restrain them from collecting rent accruing from the properties as I have no indication whatsoever that they will not be in a position to give proper account of the rents so collected when this case is finally determined.”

 

With respect to the learned trial judge, I think his views reproduced above show that he did not fully appreciate the case being made by the plaintiff: First, it is important to bear in mind the distinction between the administration of the estate of a deceased person and the distribution of the properties comprised in the estate. The person or persons who administer an estate do not necessarily have to be the beneficiaries of the estate. The plaintiff’s case is that the defendants have not recognized her as a wife of the deceased and that therefore it would be prejudicial to her interest in the distribution of the estate if the defendants were allowed to administer the estate. She further said that the defendants were engaged in collecting the rents from the deceased’s properties and appropriating such rents to their own use without caring for her own needs.

 

In such a situation it would be a barren consolation to the plaintiff even if the defendants are able to render an account at the end of the case. What can such accounts show? They may show that rents collected from the deceased’s properties have been used for the maintenance of the defendants. But they will not show that some of such rents have been paid to the plaintiff for her maintenance. The truth of course is that while the present position remains, the plaintiff will be denied the maintenance which the deceased who acknowledged her as his wife gave her.

 

In essence, the nature of the plaintiff’s application amounts to a preservation of the res in dispute. She prayed that the rents be collected by a receiver appointed by the court so that at the end of the case such rents collected may be paid over to the persons who are appointed as the administrators of the estate of the deceased. Order 30 Rule 2 of the High Court Rules of Anambra State 1988 provides:

“30 (2) The court shall when the circumstances of the case appear so to require, forthwith on the death of such deceased person, or as soon after as may be, appoint and authorize an officer of the court or some other fit person, to take possession of his property within its jurisdiction or put it under seal and so keep it until it can he dealt with according to law.”

 

And Sections 13 and 14 of the Administrator-General Law of Eastern Nigeria cap. 4 provide:

’13(1)          Subject to this section, the Administrator-General may, where he becomes aware of an estate or assets of an estate within Eastern Nigeria which he considers unrepresented, present to the court a petition, in the form set out in the schedule –

(a)     stating the particulars of the estate or assets, and (b) praying for the grant of probate or letters of adminis­tration, as the case may be of the estate.

(2)     That form shall be completed in accordance with the direction contained in it.

(3)     On being satisfied that the estate is unrepresented, the court shall make an order, accordingly and thereupon, the Admin­istrator-General shall forthwith –

(a)     cause an inventory to be made of the estate or assets as the case may be, and.

(b)     file it in court.

(4)     (Not applicable in this case).

14..    The Administrator-General –

(a)     immediately on becoming aware of an estate mentioned in Section 13, and

(b)     before obtaining a grant of probate or of letters of administration of the estate; may if he thinks fit to do so, enter upon the estate for the purpose of sealing up or making such other dispositions for the security of the estate as he may consider necessary.”

 

The intendment of the Law to be gathered from Order 30 Rule 2 of the Anambra State High Court Rules, 1988 and sections 13 and 14 of the Administra­tor-General Law is that where an estate is unrepresented the court and the Administrator-General should expeditiously move to ensure that the estate is secure.

 

In the instant case, the deceased died intestate. No letters of administration have been granted. The defendants had applied to be granted letters of adminis­tration. The plaintiff entered a caveat. That caveat has not yet been removed. The position therefore is that the estate is as at now unrepresented. The Administrator-General in the ordinary way should have taken over the estate under Sections 13 and 14 of the Administrator-General Law.

 

It is in my view a serious mistake on the part of the trial judge to have equated the administration of an estate with its distribution. This error in my view is reflected by the remarks of the trial judge that it would be unfair to the defendants to stop them from collecting rents. The notion of unfairness could only come in if the court had believed that the defendants could collect rents and spend for themselves before being granted letters of administration on the estate of the deceased.

 

The necessity to comply with the law may in some cases work hardship or inconvenience. But that is not an excuse to break the law. The trial judge would appear to have unwarily supported the position that persons who had not been granted letters of administration in respect of an estate could go into the estate and start distributing it. If the trial judge believed that the defendants were merely engaged in protecting the estate by collecting rents for handing over to the persons later appointed as administrators of the estate, he would not have found it unfair to appoint an officer of court or the Administrator-General a receiver of such rents pending the determination of the suit before the court?

 

In paragraphs 23, 26 and 27 of her counter-affidavit, the 1st defendant deposed thus:

“23.   That the plaintiff/respondent had tried to blackmail the respondent to pay over to her some money to enable her tidy herself from her finances now that the deceased is no longer alive to assist her which was turned down.

26. That the applicant has no issue with the deceased as against six legitimate Children the first defendant has for the deceased. 27. That the estate finances should at the most be for the children of the deceased who at all times are entitled to the estate.”

 

From the position taken in the above depositions, it is quite clear that the defendants believed that they were entitled to go into the deceased’s estate to collect rents and spend the same without obtaining letters of administration. I do not take the view that the wife and children of the deceased should be left to suffer. Nor do I think that the defendants should be allowed to intermeddle with the estate without obtaining letters of administration. It would in my view have been quite proper to appoint the administrator-general to take over the estate while the dispute was raging. The Administrator-General would then be placed to pay out in the interim such amounts as are needed to maintain the immediate dependants of the deceased.

 

The learned author of Kerr on Receivers 15th edition page 5 writes on the object of appointment of a receiver thus:

“A receiver can only be properly appointed for the purpose of getting in and holding or securing funds or other property, which the court at the trial or in the course of the action will have the means of distributing amongst, or making over to, the persons or person entitled to it. There are two main classes of cases in which the appointment is made: (1) to enable persons who possess rights over property to obtain the benefit of those rights and to preserve the property pending realization, where ordinary legal remedies are defective; and (2) to preserve property from some danger which threatens it.”

 

And at page 6, the author writes:

“The second class of cases includes those in which the appointment is made to preserve property pending litigation to decide the rights of the parties or to prevent a scramble among those entitled as where a receiver is appointed pending a grant of probate or administration or to preserve property of persons under disability or where there is danger of the property being damaged or dissipated by those with legal title such as executors or trustees … (ibid p.7). the duty of the court upon a motion for a receiver is merely to protect the property for the benefit of the person or persons to whom the court, when it has all the materials necessary for a determination shall think it properly belongs.”

 

In Uwakwe v. Odogwu (1989) 5 NWLR (Pt. 123) 562 at 585 Nnaemeka­-Agu J.S.C. considered the position of a receiver thus:

“The receiver, when appointed by a court is not an agent of either party to the litigation. He is an officer of court. By his appointment, the court in effect assumes and undertakes the management of the property in litigation by itself: See Gardner v. London Chatham & Dover Rly (1867) 2 Ch. App. 201 at P. 211. When appointed over land or real property, he de jure takes over possession. His appoint­ment operates as a general injunction against all the parties to the litigation. Any interference by any of them with his performance of his duties will be punishable as contempt of court: See Helmore v. Smith (No.2) 1886 35 Ch D. 449. It is for the peculiar position that a receiver once appointed, assumes, that the courts have long taken the stand that a receiver will not be appointed except in aid of an existing right: See Phillips v. Jones (1884) 28 S.J. 360. It is not enough for the applicant to show that there is an issue to be tried. He must show a strong prima facie right which deserves protection by the court and that that right is in danger of devastation.”

 

As to what an applicant for the appointment of a receiver must show, the learned author of Kerr on Receivers (supra) writes at page 7:

“If the court is satisfied upon the materials it has before it that the party who makes the application has established a good prima facie title and that the property the subject-matter of the proceedings will be in danger if left until the trial in the possession or under the control of the party against whom the receiver is asked for, or, at least, that there is reason to apprehend that the party who makes the application will be in a worse situation if the appointment of a receiver be delayed, the appointment of a receiver is almost a matter of course. If there is no danger to the property and no fact is in evidence to show the necessity or expediency of appointing a receiver, a receiver will not be appointed.”

 

I think that the plaintiff, before the lower court showed sufficient facts to justify the appointment of a receiver. She showed that she was ‘a wife to the deceased and this was supported by the letter from the deceased himself (exhibit `C’). She showed that she had in the lifetime of the deceased been allowed to collect rents from one of the deceased’s properties; and that she kept the rents so collected for her upkeep. She showed that since the death of the deceased, the defendants have stopped her collecting the rents and that the rents collected from the properties of the deceased have been kept and spent by the defendants to her exclusion.

 

The lower court itself opined that the plaintiff had shown prima facie evidence that she was a wife of the deceased. As regards the judgment of Okpatu customary Court which declared that the plaintiff had no locus standi, I think that the material placed before the court is vague and inconclusive. What were the issues before the Customary court? It may be that the defendants may prove the bindingness of the judgment of the Okpatu Customary court at the trial but I do not think that the judgment was at the stage the application for a receiver was made strong enough to warrant the court appointing a receiver.

 

At page 8 of Kerr on Receivers the author considers factors which a court may bear in mind in deciding whether or not to appoint a receiver thus:

“Conduct of applicant. The court, on the application for a receiver, always looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame. Parties who have acquiesced their own alleged rights cannot except in special circumstances, come to the court for a receiver.

Defendant submitting to order. The court may abstain from ap­pointing a receiver on the submission of the defendant to an order to pay money into court or to the plaintiff, to deal with moneys as the court shall direct or to pay an occupation rent.”

 

I do not see anything in the conduct of the plaintiff that would disentitle her to the order she sought. On the other hand, I take note that the defendants did not make any concession as would convey that they were prudently handling the affairs of the estate. They did not volunteer to pay the rents to court or ask the court for directions as to what they should do with the rents. Their attitude amounts to this:

‘we are the wife and children of the deceased. The plaintiff, a girl friend of the deceased is an impostor. We are entitled to keep and spend the rents collected.’

I do not think the lower court should have allowed that attitude to prevail. This is the more so when one considers that the deceased accepted and treated the plaintiff as his wife.

 

Section 21 (1) and (2) of the High Court Law of Anambra State i.e. edict No. 16 of 1987 provides:

“21 (1) The court may grant an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the court to be just or convenient m do so.

(2)     Any such order may be made either unconditionally or on such terms as the court thinks just.”

 

In Uwakwe v. Odogwu (supra) the Supreme Court at page 583 per Agbaje, J.S.C. adopted the meaning of “just or convenient” given in Halbury’s Laws of England third edition Volume 21 at page 348 para. 730 thus:

“730 Meaning of just or convenient. The words “just or convenient” in the statutory provision must be read “just as well as convenient. They do not mean that the court can grant an injunction simply because the Court thinks it convenient, but mean that the Court should grant an injunction for the protection of rights or the prevention of injury according to legal principles. They confer no arbitrary nor unregulated discretion on the Court, and do not authorize it to invent new modes of enforcing judgments in substitution for the ordinary modes.”

 

One simple matter would have enabled the lower court resolve the matter now the subject-matter of this appeal in a manner nearly conclusive. This is the production by the 1st defendant of a marriage certificate under the Marriage Act. Although the plaintiff alleged that the 1st defendant was not married to the ‘deceased under the Marriage Act, the 1st defendant never saw the need to exhibit to her affidavit the marriage certificate. At the end of the day, the conclusion to be arrived at, at least on this application, is that both plaintiff and 1st defendant showed a parity of interest as wives of the deceased. That being the case at that stage, it could not be `just’ to the plaintiff to exclude her from the estate of the deceased while the 1st defendant and her children were given an unrestrained license over the estate even without letters of administration being granted to them.

 

This appeal succeeds. The order of the lower court dismissing plaintiff’s application is set aside. In substitution therefore, the Administrator-General of Anambra State is appointed a receiver in respect of the estate of Joseph Okoli Anowo who died interstate on 13-10-88 pending the determination of the suit now pending at Enugu High Court. There will be liberty to any of the dependants of the said Joseph Okoli Anowo to apply to the High Court to be paid reasonable sums of money out of the estate for maintenance pending the determination of the suit. There will be N150.00 costs in favour of the plaintiff/appellant against the defendants/respondents.

 

 

KATSINA-ALU, J.C.A.:

I entirely agree.

 

 

UWAIFO, J.C.A.:

The judgment of my learned brother Oguntade, J.C.A. just delivered had very carefully and ably dealt with the complaints in the appeal. I respectfully adopt the reasoning therein and accept the conclusion. I think the learned trial judge arrived at his decision upon some assumptions as to the status of appellant and the 1st respondent in relation to deceased and consequently the intestate estate. Those assumptions clearly relegated the appellant. But they are assumptions which do not bear scrutiny and cannot be defended upon the facts available.

 

If that 1st respondent had produced evidence of a marriage under the Act, the appellant would have been unable to maintain any locus standi. In the absence of such evidence, the 1st respondent cannot as yet exclude the appellant from the estate. I think Oguntade J.C.A. had made that sufficiently clear.

 

I too will allow the appeal and make the same orders for the appointment of the Administrator-General and Public trustee, Anambra State as receiver to take immediate effect, and for the maintenance of the dependants of the deceased as may be appropriate pending the determination of the suit. I abide by the order as to costs.

 

Appeal allowed