How Wife, 2 Children Secure Court Order To Bury Late Prof. Godwin U. Damachi ‘Big Game Player’

Late Prof. Damachi a.k.a. Big Game Player

It was a long legal battle between Mrs. Franca Damachi, her two daughters, Lami Damachi and Atona Damachi and other members of Damachi family, before their late father, Professor Ukandi Godwin Damachi, who died sometimes in 2021, in faraway Switzerland, could be buried in April this year.

Professor Damachi popularly called ‘The Game Changer’, died on November 29, 2021, in Geneva, Switzerland, at the age of 79, but his remains was kept in the morgue of the Military Hospital, Yaba, Lagos, for almost two years before he could be buried, and this was after his wife and her two daughters secured a court order for the release of the late Professor’s remains for a befitting burial.

To secure the order for the late Professor’s burial, Mrs. Franca Damachi and her two daughters through their lawyer, Elvis E. Asia, had approached a Yaba Chief Magistrate’s Court, in suit numbered MISC/MCY/1012/22.

Listed as respondents in the suit were: The Chief Medical Director, 68 nigerian army reference hospital, Yaba; Prof. Nicholas Damachi; Neda Massa Damachi; Kalibe Damachi; Ateh Damachi Jewel; Udim Dada Damachi and Ushang Gbesse Damachi.

The applicants in their amended originating application dated February 10, 2023, was brought pursuant to Sections 11, 27 and 33 of the Magistrates Court Law 2009; Section 38 of the Birth, Death and Burials Law of Lagos State and under the court’s inherent jurisdiction.

Basically, the applicants prayed the court for the body of the Late Professor Ukandi Godwin Damachi, who died on 29th November 2021 in Geneva, Switzerland and whose body was lying at the Military Hospital, Yaba, Lagos, be released forthwith to the Applicants for burial in his hometown, Obudu, Cross River.

The applicants also said their requests were brought on the grounds that they are the wife and children of the said deceased; that the body of the deceased had been lying in the first respondent’s hospital for many months since December 16, 2021; and the cost of maintaining body of the said deceased in the respondent’s hospital had become astronomical.

They also stated that the application was also brought on the grounds that the body of the deceased is becoming autolysis which requires frequent maintenance; and that the burial programme of the deceased had been fixed.

The applicants supported their motion with an affidavit deposed to by Mrs. Franca Damachi wherein she states inter alia that she is the wife of the deceased and the second and third applicants are the children of the deceased.

The deponent states further that the deceased died on November 29, 2021, in Switzerland and was deposited at the Military Reference Hospital, Yaba on arrival in Nigeria with the receipt in the name of Professor Nicholas Damachi. Adding that all members of the deceased family had agreed to the burial date but that the body of the deceased was not released because all efforts to reach Prof. Nicholas Damachi who was in custody of the receipt proved futile.

Opposing the applicants’ application, the second to seventh respondents through their lawyer, Akinlolu Timothy Kehinde (SAN), filed a 38-paragraph counter-affidavit deposed to by Prof. Nicholas Damach, the elder brother of the deceased.

In the counter-affidavit, Prof. Nicholas, averred that the marriage between the deceased and the first applicant was obtained by suppression and misrepresentation of facts as the marriage between the deceased and one Neda Massah Damachi, was still subsisting. Adding that the second and third applicants are not the only children of the deceased; and that the death certificate clearly states that Neda Damechi is the wife of the deceased.

He also stated that he is the Head of the Damachi family of Obudu, Cross-River; that Neda Damachi sent the death Certificate and body of the deceased to him; and that he has been responsible for the bills at the morgue. Adding that the burial of the deceased could not go on because the first applicant failed to recognise the other children of the deceased and the family of the deceased which is contrary to the custom and Traditions of the Obudu people of Cross-River. The Applicants filed and further and better affidavit in response.

The respondents also in another application dated February 13, 2023 brought pursuant to Section 6 of the 1999 Constitution and Order 9, Rule 1 of the Lagos State Magistrate Courts Civil Procedure Rules 2009 and under the court’s inherent jurisdiction, prayed the court for an order staying the proceedings in the suit, pending the final determination of the suit filed at the High Court in connexion with the subject matter of this suit. The effect of the respondents’ application would be to put the burial on hold until the Suit said to have been filed at the High Court is determined.

The respondents/applicants argued that the applicants-respondents hinged the substantial application on mischievous grounds that they are the wife and children of the deceased as well as the executrix of the deceased’s Will.

They also challenged the validity of the purported Last Will and Testament of the deceased; and the power of the respondents to act as the sole beneficiaries and executrix of the said Will.

The respondents/applicants supported their application with a 24-paragraph affidavit deposed to by one Chinenye Okonkwo, an employee in the law firm of counsel to the respondents/applicants wherein she stated inter alia that the second and third applicant/respondents are the children of the deceased; and that the fourth to the seventh respondent/applicants are also children of the deceased.

She also stated that the third respondent/applicant is the second wife of the deceased; that the second respondent/applicant is the blood brother of the deceased; and that the Respondent/applicants have filed a suit challenging the validity of the Last Will and Testament of the deceased.

Also in support, counsel to the respondent/applicants, Akinlolu Timothy Kehinde (SAN), filed his written address dated February 13, 2023 wherein he postulates that the sole issue for determination is whether this court has the jurisdiction to grant the relief sought by the Applicant/Respondent, when there is a suit pending before the High Court of Lagos State challenging the validity of the purported Last Will and Testament of the deceased which is the basis for the applicant/respondent’s action before this court. Counsel refers the courts to the case of NIDB Ltd Vs Ambe Mills Nig. Ltd and submits that the courts have reinstated that one of the principles that must be considered before granting a stay of proceedings is whether a determination of the present action will pre-empt or prejudice the High Court action.

Counsel argued that the application before this court is hinged upon the purported will, the validity of which the applicants are challenging; and that a decision of the High Court will impact one way or the other on the proceedings of this court. Adding that the lower court cannot grant the respondent’s prayer on the grounds that they are executrix of the Will of the deceased unless the validity of the said Will has been determined by the High Court. He refers the court to the case of Akapo Vs Hakeem Habeeb and argued that the court is bound to stay the proceedings in this present suit to avoid a situation of fait accompli.

In opposition to the motion for a stay of proceedings, counsel to the applicant/respondents, Mr. Elvis E Asia, orally submitted inter alia that the issue before the Higher court, which was filed months after this instant suit was initiated, is not relevant to the substantive application.

The counsel referred the court to the case of Jadesinmi V Okotie Eboh and the case of Inakoju Vs Ladoja and submit that the application before the court is in relation to the release of the body of the deceased for burial in accordance with the provisions of the Birth, Death and Burial law of Lagos State.

He submitted further that the respondents/applicants has not denied that the second and third applicants are the children of the deceased; And that the outcome of the suits at the High Court has no relation with the burial of the deceased who passed on since 2021. He added that the grounds for the refusal of an application for stay of proceedings includes circumstances where there is an urgency in the matter; and where it can be established that the grants of a stay of proceedings will amount to an abuse of court process.

Counsel also points out that the Originating process at the High Court have not been served on the applicant/respondent; and that it is trite law that the service of a court process is what brings a case to light.

Ruling on the applications and arguments canvassed by counsel, Chief Magistrate Lydia Yewande Balogun, held that: “I have read and listened carefully to the submissions and affidavits of both parties with respect to the substantive application before the court and the motion for a stay of proceedings pending the determination of the case at the High Court.

“I have also taken into careful consideration the Exhibits attached to all the affidavits and the provisions of the Birth, Death and Burial Laws of Lagos. Having done so, I find that the following issues have been raised for determination.

“On whether this court has the jurisdiction to entertain this suit While the issue of jurisdiction has not been specifically raised by the parties, this court, taking note that the right and title of the applicants and the respondents to bury the deceased has been hinged on the issue of the validity of his Will by the respondent/applicant, finds it is pertinent that the same be first addressed.

“It is trite law that the court may raise the issue of jurisdiction suo motu; and that it is the statute creating the court that determines its jurisdiction. See the case of Aderibigbe & another V. Abidoye’ wherein the Supreme Court held that the lower court would not” be faulted for raising the issue of jurisdiction suo motu. See also the case, of Onwudiwe Vs FRN wherein the Supreme Court held as follows: “In the determination of jurisdiction of a court, the enabling law vesting jurisdiction has to be taken in the light of the relief or reliefs sought. The moment the relief sought comes within the jurisdiction of the court as adumbrated by the facts, the court must assume jurisdiction as it has jurisdiction to do so.” in the case of Deputy Sheriff, FHC Lagos Judicial Division & Another V. Usiebemhen’, the Court of Appeal held inter alia that determining whether a Court of law has jurisdiction to entertain an action, the Court must as a matter of law examine carefully the pleadings and other averments of the Claimant in the statement of claim.

“In fact, the Court in that case placed the duty on the Court to scrutinize and dissect the Claimant’s pleadings which captures the grounds and the interests for approaching the Court to ventilate grievances.

“It is not in doubt that the issue of the Will of the deceased adversely affects the title of the applicants as executors of the deceased estate. However, what this court must determine is how it affects the issue of burying the deceased who is a relation to all parties before the court (except of course, the 1st respondent).

“It is my opinion that the issue for determination here is whether the issue of the validity of the applicant’s executory duties affects the applicants or any other persons right or duty to bury the deceased. To determine this, the court must take a careful perusal at the requirements of the law with respect to the rights and duties to bury a deceased. The provisions of Section 40 of the Birth, Death and Burial Laws of Legal States provides as follows; “the duty of causing the body of a deceased person to be buried is imposed on the persons following, (a). the executor of the deceased (b). in the absence or defaults or one executor each and everyone of the relatives of the deceased; and (c). in the absence or defaults of the relatives, the occupier of the premises on which the body lies provided”, that any person who shall cause a body to be buried shall be entitled to be paid all reasonable expenses incurred out of the property of the deceased in priority to all other charges”

“Thus, it is clear from the provisions of the afore-cited law that in the defaults of an executor, the relatives of the deceased have a duty to cause the body of the deceased person to be buried.

“In view of the foregoing, this court finds that the validity or otherwise of the Will of the deceased and the executory title of the applicants does not and will not affect their right or duty to bury the deceased especially where it is not in contention that they are relatives of the deceased. This court so holds.

“On whether the applicants is entitled to the reliefs sought. Evidence deduced from the conversations between the first applicant and the second respondent exhibited by the second respondent in his counter-affidavit indicates that the second respondent identifies the applicants as a relatives of the deceased. Indeed, the second respondent confirmed that the second and third applicants are the youngest children of the deceased; and both parties have alluded to the fact that one of the causes of the delay and grievance.

“Is the refusal of all parties concerned to reach a consensus on the modalities of the deceased’s burial. it is also safe to hold that from the evidence adduced before this court, the issue of the executors of the Will of the deceased is now pending before the High Court and still in contention. Thus, there is currently no confirmed executor. The issue which now rises is whether the court ought to allow the corpse of the deceased to remain in the custody of the first respondent indefinitely and/or pending the determination of the issue of the validity of his Will at the High Court. This question is a very sensitive yet important one. The court must weigh the tradition and culture of the parties before the courts against the propriety of leaving the body of the deceased in the custody of the first respondent for almost two years. It is the evidence of the Applicants that the condition of the corpse of the deceased is now deteriorating. This piece of evidence remains on controverted.

“This court is of the opinion that the circumstances of this case should be subject to the provisions of Section 40 (1) b and of the afore cited law which clearly provides for situations where the executor of the will of the deceased has not been determined.

“This court takes particular note that the six children of the deceased are adults; and it is the opinion of this Court that they have the legal duty and the moral obligation to bury their father. I am also of the opinion that the deceased’s six children have a duty to preserve the dignity and reputation of their father’s name and person.

“In view of the foregoing, it is hereby adjudged that the fourth respondent Kalibe Damachi; the sixth respondent, Udim Dada Damachi; and the second applicant Ms. Lami Damachi shall, within 21 days from the date of this ruling, jointly file before this court an agreement on behalf of all the children of the deceased Prof. Ukandi Godwin Damachi on the date, place and modus of burying their father.

“It is also adjudged that where said persons fail to file same, this court shall order the first respondent, in accordance to Section 40(1)c of the Birth, Death and Burial Laws of Lagos, to cause the deceased to be buried within 7 days from the date of the order in the manner it deems and the details of same shall be filed before this court together with the costs incurred which shall be paid by the fourth and sixth respondent and the second applicant.

Following the decision of the court late Professor Damachi was however buried on April 15, 2023, after his wife and her two daughters secured the court order on March 2, 2023.