The Administrtors/executors Of The Estate Of Gen. Sani Abacha (Deceased) V. Samuel David Eke-spiff & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C

This is an appeal against the judgment of the Court of Appeal (Port Harcourt Division) in Appeal NO CA/PH/331/99. The Administrators/Executors of the Estate of General Sani Abacha (Deceased) Vs. Samuel David Eke- Spiff & ORS. The majority judgment of which was delivered by Hon. Justice S. A. Nsofor while the dissenting judgment was delivered by Hon. Justice Ikongbe. Both judgments were delivered on the 15th of April 2002. The majority and dissenting judgments arose from the appeal lodged against the decision of the High Court of Justice, sitting in Port Harcourt, Rivers State of Nigeria.

Briefly put, the case of the 1st plaintiff is that he, a retired Permanent Secretary in the Rivers State Government was allocated a plot of land at Diobu GRA, Port Harcourt by the Government of Rivers State. The Building Lease was registered in his name as No 78 at page 78 in Volume 25 of the Lands Registry in the Office at Port Harcourt. He submitted a building plan for approval, but up till now, his plan has not been approved. What he later discovered was that his right of occupancy was revoked without any notice to him and of course no compensation was paid to him. It eventually came to his knowledge that the same piece of land was allocated to Major General Sani Abacha, now deceased. It is his contention that the court action he took was not statute – barred having regard to the provisions of Section 31 (1) (a) and (b) of the Rivers State Limitation Edict, 1988 and since the notice of the revocation was hidden from him. He also said that he was down with stroke for some time.

For their part, the 1st and 2nd defendants admit in their pleadings that the 1st plaintiff was once a holder of Building Lease of Plot 228 Diobu, GRA, Phase II but that his right of occupancy was revoked vide Rivers State Gazette No 17 Volume 18 of 29/5/86 for failure of the plaintiff to build within two years of the allocation. They also contended that the plaintiff’s action is statute – barred. The 3rd defendant averred that the land, the subject – matter of this action, was allocated to him with effect from 1st January 1977 for 99 years and that he was given a Building Lease. He took possession of the land immediately. He was never challenged by anybody. He claimed to have started the development of the plot since 1983 through his contractors C & C Construction Company Ltd again without any interference. He also averred that the plaintiff’s action is statute barred.

In that trial court, the 1st and 2nd respondents as plaintiffs had by paragraph 19 of the statement of claim dated and filed on 30th November 1998 claimed from the 3rd and 4th respondents, as 1st and 2nd defendants together with the present appellant as the 3rd defendant, all before the said trial court the following reliefs:

“(1) A declaration that the 1st plaintiff vested with the property known as plot 288 Diobu GRA, Phase II vide the prior Building Lease Registered as No. 78 at page 78 in Vol. 25 of the Land Registry in the office at Port Harcourt is by operation of the Land Use Act 1978 the deemed holder of any Certificate of Occupancy in respect of the Plot 288, GRA Phase II property.

(2) A declaration that the subsequent grant on 8/6/77 of a Building Lease over the same Plot 288 Diobu, GRA II in favour of Sani Abacha (3rd defendant) as a private citizen (Notwithstanding the prior grant in 1975 to the plaintiff) is unconstitutional and therefore null and void.

(3) A declaration that the purported 1986 revocation of the plaintiff’s Building Lease No 78/78/25 by the 1st defendant is unconstitutional, null, void and of no effect

(4) An order setting aside the Certificate of Occupancy dated 10th March, 1987 Registered as No 84 at page 84 in Volume 124 of the Lands Registry in the Office at Port Harcourt in favour of Major General Sani Abacha therein addressed as Chief of Defence Staff, Ministry of Defence, Lagos as the same was unconstitutional and irregularly granted.

(5) An order for re-possession of the said property known as Plot 288 within the Diobu, GRA Phase II, Port Harcourt by the herein plaintiff.

1. Both parties filed and exchanged pleadings at the trial court with the 1st and 2nd defendants (herein referred to as 3rd and 4th respondents) filing joint statement of defence and the 3rd defendant (herein referred to as the appellant) filing a separate statement of defence. Suffice it to say that the plaintiffs filed joint statement of claim and a reply. The plaintiffs before the trial court called evidence in proof of the averments in their statement of claim. The defendants before that court, however, did not call evidence. Both sides thereafter, by order of court, submitted written addresses to the court. In a reserved judgment delivered on the 18th of November, 1999 the trial court found in favour of the plaintiffs who are now the 1st and 2nd respondents. In so doing, the trial court held:

“Based on paragraph 12 of the plaintiff’s statement of claim and the contentions of the defendants, I am in agreement that the cause of action in this suit arose in 1986 …

I hold that this action is not statute -barred within the contemplation and provisions of the Rivers State Limitation Edict of 1988 which was not in existence when the cause of action arose.

Assuming that the Limitation Edict of 1988 is applicable to this action irrespective of when the cause of action arose, will this action be held to be statute barred Section 31(1) (a) and (b) of the Edict which deals with the postponement of Limitation period in case of fraud concealment or mistake provides as follows:

1. “Subject to Section (E4) where in the case of any action for which a period of limitation is prescribed by the Edict, either:

(a) Either the action is based upon the fraud of the defendant; or