The Administrators/executors of the Estate of General Sani Abacha V. Samuel Davideke-spiff & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

NSOFOR, J.C.A. 

The respondents qua plaintiffs had by a writ of summons filed on the 30th of November, 1998 in the Port Harcourt High Court of the Rivers State of Nigeria, claimed as per paragraph 19 of the statement of claim (as amended) as follows –

“19 WHEREFORE plaintiffs claim as follows:

1. A declaration that the 1st plaintiff vested with the property known as plot 288 Diobu G.R.A. Phase II, vide the prior building lease registered as No. 78 at page 78 in volume 25 of the Lands 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, G.R.A., Phase II, property.
2. A declaration that the subsequent grant on 8/6/77 of a Building Lease over the same plot 288 Diobu, G.R.A. Phase 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 and void and of no effect.
4. An order setting aside the certificate of occupancy dated 10th March, 1987 registered 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 unconstitutionally and irregularly granted.
5. An Order for re-possession of the property known as plot 288 within Diobu G.R.A. Phase II, Port Harcourt by the plaintiff”.

Both the 1st and the 2nd defendants through their solicitor jointly entered an unconstitutional (sic) appearance on the 16th of December, 1998. The 3rd defendant by their Solicitor entered a conditional appearance on the 15th of December, 1998.

The parties each filed their pleadings in the suit. The pleadings were finally settled at the statement of claim (copied at pages 32 to 35 of the Record of Appeal), the joint statement of defence by the 1st and the 2nd defendants (copied at pages 18/19 of the record).

The 3rd defendant filed his own separate defence. The statement of defence of the 3rd defendant is at pages 19A to 19B of the Record.

In addition the plaintiffs had filed a “Reply to the Defence” to the statement of defence by the three defendants. Vide pages 28/29 of the record.

It becomes necessary to note that at the close of pleadings, but before the actual hearing in the suit, the plaintiffs by a motion on notice filed on the 30th of April, 1999 called upon the 1st and the 2nd defendants to admit the existence of certain documents and a set of facts. The quo warranto for the application, as expressed on the notice of motion was Orders 30 rule 2(1) to (5); 35 rr. 1, 2 and 3; 6(1); (2); (3) and (7) of the Rivers State High Court (Civil Procedure) Rules, 1987. The documents and the facts which the 1st and the 2nd defendants were called upon to admit were listed in and set out in Annexture 1 and, the facts therein set out were in numbered paragraphs (a) to (g) inclusive. Those documents were verified in paragraph 6 of the affidavit in support of the motion as exhibits B to B 12 and the facts in Annexture 1, verified in paragraph 7 of the supporting affidavit as paragraphs (a) – (g).

Order 30 of the Rivers State High Court (Civil Procedure) Rules, 1987 headed “Admissions” in its rule 2 sub-rule (5) provides:-

“A party who fails to give notice of non-admission in accordance with paragraph (4) in relation to any fact or document shall be deemed to have admitted that fact or the authenticity of that document unless the court otherwise orders.”

The Motion came on for hearing and it was heard. The application was granted. See pages 65 to 66 of the record. The court ordered accordingly. Those documents, exhibits B to B12 admitted, are:

“B1. Building lease dated 2/1/75 registered as No. 78 at page 78 in volume 25 of the Lands Registry in Port Harcourt granted plaintiff a 99 year lease.

B2. Certificate of occupancy dated 1/1/87 registered as No. 84 at page 84 in volume 124 of the Lands Registry granting the 3rd defendant 89 years lease.

B3. Plaintiff’s application for approved building plan filed at page 24 in the property file.

B4. State Land Rent: Notice to pay of January, 1977 addressed to plaintiff.

B5. State Land Rent: Notice to pay of 27/11/85 addressed to the plaintiff.

B6. Plaintiff’s letter to the 1st defendant dated 7th April, 1986.

B7. Copy of the memorandum at page 26 of the property file indicating that the plaintiff’s plans had been checked, found in order and recommending collection of fees and approval dated 7/9/77.

B8. Copy of Memorandum dated 16/9/77 with entries for record to collect ground rent of N176.00 as well as minutes acknowledging receipt of the money on RCR 403199 including recommendation to approve the plan dated 19/6/77.

B9. Copy of memorandum at page 28 of the property file dated 28/11/77 and 29/11/77 marked “Urgent” requiring principal Land Officer to confirm that he was still holding the plaintiff’s plans.

B10. Copy of the memorandum at page 31 of the property file dated 11/11/78 directing the Land Officer to return the plans un-approved.

B 11. Copy of property search report/history at page 43 dated 4/12/85 and 5/12/85 in which it was minuted to and from Mr. Oyazo, P showing to be in the name of S.D. Eke-Spiff as at 5/12/85.

B 12. Memorandum at page 44 dated 17/2/86 in which Ken Opurum as Deeds Registrar conceded to the Chief Land Officer that Mr. Spiff’s Title to the property was not properly revoked before its grant to General Abacha.

The facts admitted and numbered as paragraphs (a) to (h) are:

” (a) That the plaintiff’s title by way of Building Lease over plot 288 Diobu G.R.A Phase II and Registered as No. 78 at page 78 in volume 25 of the Land Registry was for a term of99 years with effect from 1st January, 1975.

(b) That between January, 1975 up to 28th May 1986 the said plaintiff’s Building Lease was not revoked by any known instrument or Government order.

(c) That the 1st plaintiff was not served with any Motion of Revocation of his interest under S. 28(6) and (7) and section 44 of the Land Use Act.

(d) That the 1st plaintiff was not given an opportunity of being heard before the purported revocation contained in the Gazette dated 29th May, 1986.

(e) That the 1st plaintiff duly submitted between 1975 and 1977 within time his building plans for approval, paid the fees and was denied approval by the 1st and 2nd defendants.

(f) That it is not permissible to build on a Government allocated plot without an approved building plan.

(g) That at the time the 3rd defendant was given a Building Lease on 8/6/77 by 1st defendant and registered as No.17 at page 17 in volume 57 the plaintiff’s title had not been revoked.

(h) That the Certificate of Occupancy registered as No. 84 at page 84 in volume 124 dated 10/5/87 granted to the 3rd defendant was expressly stated to be predicated on the Building Lease recited in (g) above for its un-expired residue of 89 years”

See pages 40 to 41 of the record. The above facts formed the back of the “Reply to Defence” filed by the plaintiffs.

The suit came on before J.N. Akpughunum, J. on the 28th of June, 1998. The actual hearing commenced with Samuel David Eke-Spiff testifying, viva voce, as PW 1. The plaintiffs brought their case to a close with the testimony of the PW1. Thereafter, none of the three defendants testified. Each defendant elected to rest on the case of the plaintiffs and, called no evidence. The legal consequence of the attitude of each or all the defendants is, as observed by Idigbe, J.S.C. in Hameed A. Toriola v. Mrs. Olushola Williams (1982) 7 SC. 27 at page 33:

” … the position in which the appellants placed themselves by resting their case on that of the respondent

i.e. by in effect submitting that the respondent failed to make out a prima facie case and by electing, in consequence, not to call evidence in support of their own case. The position on such a situation is, of course, that the appellants are bound by the evidence called in support of the case of the respondent qua plaintiff, and the case must be dealt with on the evidence as it stands per Lord Greene, M. R. in Laurie v. Reglan Building Co. Ltd. (1942) 1 K.B. 152 at 156. See also Goddard, L. J. in Parry v. Aluminium Corporation (1940) W.N. 44 at 46 and Lord Greene, M.R. in Yuill v. Yuill (1945) All E.R. 183 at 185.”

The learned trial Judge received written addresses by the counsel engaged in the trial. In a reserved and well considered judgment, after carefully considering the evidence, (the facts admitted), and the addresses by counsel, he expressed himself, at page 137 of the record, inter alias. as follows:

“Having considered all the issues raised in this case … I am satisfied that the plaintiffs have proved their case against the defendants. I thus hold that the plaintiffs have proved their case and are entitled to the declarations and orders claimed as follows:

3. I hereby declare that the 1st plaintiff vested with the property known as plot 288 Diobu G.R.A. Phase II, Port Harcourt vide the prior building lease registered as No. 78 at lage 78 in volume 25 of the Lands 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 plot 288 Diobu G.R.A. Phase II.

4………………………………………………………………

So, the plaintiff won wholly and entirely. The defendants lost.

The 1st and the 2nd defendants who may, conveniently, be described as the “root of title” to the plaintiffs and the 3rd defendant accepted the decision not having appealed there from. The 3rd defendant, dissatisfied with the decision, has appealed from the decision by the notice of appeal, copied in pages 138 to 143 of the record, raising a total of fifteen grounds of appeal (six original and nine additional) from which he distilled four issues for determination.

Herein, the 3rd defendant is the appellant and the plaintiffs are the respondents.

In compliance with the rules of the court, the parties had filed and exchanged their briefs of argument. The appellant in his brief of argument filed on the 29th of June, 2000 identified the following four issues for determination:

“1. Whether the trial court was right in holding that the issue of the competence of the action against the appellant is deemed to have been waived.

2. Whether the appellant is a suable entity or a legal person and whether the action could competently be maintainable against it.
3. Whether the trial court was right in holding that the action was not statute barred.
4. Whether the plaintiffs/respondents are entitled to the reliefs decreed in their favour by the trial court.”

On their part, counsel in the respondent’s brief filed on the 1st October, 2000 had formulated three issues for determination to wit:

” 1. Whether the learned trial Judge was justified in holding that the respondent’s action was not maintainable against the appellants.

2. Whether from the state of the pleadings the learned trial Judge was justified in holding that the respondent’s action was not statute barred.
3. Whether the learned trial Judge was justified in holding that the property was vested in the 1st respondent and also in setting aside the certificate of occupancy granted of Sani Abacha (Deceased)”

At the hearing of the appeal both counsel adopted their respective briefs of argument. Each counsel made a speech in amplification of his brief. While the counsel for the appellant urged us to allow the appeal, learned counsel for the respondents urged us otherwise.

It is worth noting at this stage that at page 2 of the appellant’s brief in paragraph 1.3 thereof was contained the following expression or clause:

“The appellant will also seek leave of court to argue the following new points: That the plaintiffs knew that the Administrators and Executors were not in existence at the time the action was instituted; that leave of court was not obtained before the issuance and service of the writ.”

No such leave was sought for by the counsel for the appellant at hearing of the appeal. No such leave therefore was granted to the appellant. In my respectful view, any arguments by counsel in the appellant’s brief directed to those “new points” for which no leave to argue them was sought or granted would necessarily be disregarded and discountenanced. I have done so.

I shall now proceed to consider the learned submissions by counsel on the issues formulated for determination. Having carefully considered the issues Nos. (1) and (2) formulated in appellant’s brief, both issues may conveniently be considered, uno flatu and, treated together. In substance, they are directed to one point – the competence of the appellant to be sued – and correspond with issue No.1 as formulated by the respondents.

Arguing the issues, learned counsel in the appellant’s brief had drawn attention to the ‘appearance’ entered for the appellant. It was conditional and therein, as well in the counsel’s final written address, it was emphasised that the appellant was not a person or persons at law, who may be sued. The appellant is not suable and so the court could not entertain the action against him, the counsel contended.

It was the further contention by the senior counsel in the appellant’s brief that the learned trial Judge was in error in holding that as the appellant did not challenge the competence of the action against him as not being a person capable of being sued at law, either by way of a preliminary objection or an application of like nature but participated fully in the trial up to judgment stage, he (appellant) waived his right to object. Learned counsel, further, contended that no ‘format’ was needed for raising the issue of the competence as it bordered on jurisdiction and, cannot be waived. Reliance was placed on the decision in Njoku v. U.A.C. Foods (1999) 12 NWLR (Pt. 632) 557 at p. 565 para. B., Citing Shitta & Ors. v. Ligali & Ors. (1941) 16 NLR 23, the senior counsel, at page 10 of the appellant’s brief, paragraphs 5.14 thereof, likened the defendant to what he called “a collection of individuals and have no capacity to sue or be sued”.

The learned trial Judge was once again under fire for referring to and relying on Order 11 rule 14 (I) of the Rivers State High Court (Civil Procedure) Rules 1987, (hereafter to be referred to simply as the rules).

Urging the court to resolve issues (1) and (2) of the appellant against him, learned counsel in the respondents’ brief submitted that the appellant was sued as a “nominal 3rd defendant in an action where the Government of Rivers State epitomised by its Military Administrator and its Attorney General were the 1st and 2nd defendants”. The appellant was sued being the beneficiary of the illegal act of the Government complained against. It was further submitted that the appellant received the writ of summons, filed a defence, fully participated in the trial and after the judgment lodged an appeal. Having taken all these steps, it cannot be contended that the appellant had not waived any objections he had as to the competence of the action against him or, as to his competence to be sued. Learned counsel justified the trial Judge in the reference to Order 11 rule 14 (1) of the rules and making use of it.

It was the further contention by the counsel in the respondent’s brief that Order 11 rule 14 (1) of the rules did not require the appellant to be sued in his personal name. But assuming without conceding there is need to add the personal name or names of the appellant, counsel submitted that the omission thereof constituted a mere irregularity curable by or under Order 2 rule 1(1) of the rules. And not having taken an advantage of Order 2 rule 2( 1) of the Rules, the appellant had waived the irregularity, if any, occasioned by the nonmention of the names of the appellant additionally. Reliance was placed on the principle decided in Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195 per Aniagolu, J.C.A. and per Karibi-Whyte, J.C.A.at page 202. The appellant was entitled to raise his objection but he acquiesced in something else which is inconsistent with that to which was entitled.

I shall allow myself, before I go further in the judgment, to consider one or two of the cases cited to us by the appellant to see what assistance it (or they) may offer us in reaching our conclusion on the issues in hand. Firstly, to the Njoku v. U.A. C. Foods case (supra).

The Njoku v. U.A.C. Foods case (supra) was an appeal from the decision of the Onitsha High Court (C. N. Uzoewulu, J.) delivered on the 20/6/97, the short facts of which are: The appellant was an employee of U.A.C. Nigeria Plc. He was a Senior Production Supervisor of the company. By a letter dated 30th October, 1995, the appellant was dismissed by his employers. Based on his instruction, his solicitor issued a writ against United African Company Foods which admittedly is not a juristic person. After the service of the writ and the statement of claim, counsel entered conditional appearance on behalf of U.A.C. Nigeria Plc.

Subsequently, an objection by way of motion was raised as to the competence of the suit taken out. The trial Judge took the preliminary objection first and, in a considered ruling dismissed the suit. The plaintiff appealed. In its judgment, the Court of Appeal, unanimously dismissing the appeal, observed per Galadima, J.C.A. “The main question that arose for determination in this appeal is whether the learned trial Judge was right in dismissing the appellant’s suit against the respondent for the reason that it is not a juristic person. It is well settled by a long line of cases that a non-juristic person cannot sue or be sued. United African Company Foods is not a juristic person as such it cannot be sued …”

In Amodu Rufai Shitta and Eleven Others as Executive of the Central Mosque v. Chief Iman Momodu Ligali and 9 Ors. (1941) 16 NLR 23, the plaintiffs were twelve individuals who described themselves in the writ of summons as “Executive of Central Mosque” (of Lagos) and in the statement of claim as “the Executive Committee” and, purported to sue in that capacity.

A preliminary objection was raised that the Executive Committee as such is not a legal entity and therefore has no capacity to sue.

In his judgment dismissing the case, Butler Lloyd, Ag. C. J. at page 23 observed, “By section 19 of the Constitution the Executive Committee has power to appoint a board of trustees to be registered under the Land (Perpetual Succession) Ordinance but this has never been done, the Committee consequently remains nothing more than a collection of individuals”.

None of the cases offers me any assistance. It is worthy to note that in these cases, the competence of the action or, the parties objected to, was raised as a preliminary question, (praeiudicium) before any evidence was gone into.

With respect, the learned senior counsel’s criticism of the learned trial Judge, for saying at page 136 of the record;

“But no notice of preliminary objection or application of similar nature was filed on behalf of the 3rd defendant praying for the striking out of the name of the 3rd defendant from the suit”, was unjustifiable. Certainly, there is a method or way of raising an objection as a preliminary question. By whatever application, the method is the ‘format’. The appellant, after entering an appearance conditionally and filing a statement of defence, did not raise the competence of the action or the defendant as a preliminary issue to be decided in limine before evidence is gone into.

The competence of a plaintiff to sue or a defendant to be sued is a preliminary issue in the action. It must be pleaded by the party challenging the competence of the other party, raised in limine by an application or motion on notice to the other party and decided by court before taking of evidence commences. See Makeri v. Kafinta (1990) 7 NWLR (Pt. 163) 411 at page 420.

The appellant was entitled to object, assuming in his perception, there was something objectionable. Rather than object, he acquiesced in something else which is inconsistent with that to which was so entitled (fighting and contesting the case from start to finish and even further going on appeal).

Applying the principle above discussed, I find myself respectfully in agreement with the learned trial Judge at page 136 of the Record where he said-

“He is therefore deemed to have waived their right and cannot at this stage be heard to challenge the competency of the action against the 3rd defendant”.

The learned trial Judge was further criticised for the use he made of Order 11 rule 14 (1) of the rules. What does the order and rule say? Order 11 deals with and is headed PARTIES’. Rule 14(1) to the Order provides: “Trustees, executor and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representative without joining any of the persons beneficially interested in the trust or estate … and shall be considered as representing such persons … I see nothing in the order and rule (supra) which makes it obligatory in suing such a trustee or executor and or administrator (as the appellant was sued) additionally to name him personally with a consequence of nullification for non-compliance. A failure to mention his names in addition, if irregular, in my view, is a mere irregularity. See Order 2(1) of the Rules.

In conclusion, it is my judgment that issues (1) and (2) as formulated in the appellant’s brief ought to be resolved against the appellant, I do so resolve each of them. The grounds of appeal from which each of the issues is distilled are dismissed.

Issue 3:

“Whether the learned trial Judge was right in holding that the action was not statute barred”.

It was the contention by the senior counsel in the appellant’s brief that where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings outside that period would be invalidly instituted. In support of the proposition he cited and relied on the decision in Shell v. Farah & Ors. (1995) 3 NWLR (Pt. 382) 148 at page 185 paras. D – E; and Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1. He further contended that the cause of action accrued to the respondents in 1986.

As to which Limitation Law or Act would be relevant and applicable to the respondent’s action, the senior counsel contended that although on their pleadings, the appellant pleaded and relied on the Rivers State Limitation Acts, 1988 and in the written address, at page 93 of the record, submitted:

“But even at that the Statute of Limitation in force in 1986 was the English Statute of Limitation 1623 which extinguished rights after 10 years”, yet the learned trial Judge ought to have considered the English Statute of Limitation, 1623 to hold that the action was statute barred.

The fact that the appellant had relied wrongly on the Rivers State Limitation Edict, 1988, instead of the English Statute of Limitation, 1623 should have made no difference. Reliance was placed on Raleigh Industries (Nig.) Ltd. v. Nwaiwu (1994) 4 NWLR (Pt. 341) 760 at pages 772-773 in which the party wrongly relied on the Limitation Act, 1966 instead of the Limitation Acts, 1623.

Our attention was drawn to the pleadings of ‘concealment of fraud’ by the respondents. In that regard, the senior counsel contended in the appellant’s brief, relying on Omoboriowo v. Ajasin (1984) SCNLR 108 (1984) All NLR 105, that the ‘particulars of Fraud’ were not given and fraud being a crime ought to be proved.

Also, no ”concealment” was established. Concluding, the senior counsel submitted in paragraph 6.25 of the appellant’s brief in page 20 thereof, as follows:-

”There was therefore no basis to postpone the Limitation period until plaintiffs became aware of a non-existent concealment.”

In reply, learned counsel in the respondent’s brief referred to and drew our attention to some admitted and undenial instances of concealment enumerated at page 13 of the ‘Reply to Defence’. They included: ‘

‘iii. The 1st respondent was never informed that his property was to be allocated to Abacha, another citizen for a private purpose;

iv. The 1st and 2nd defendants admitted that 1st respondent was not given any notice of revocation of his interest;

v. This fact of revocation which is very relevant to the respondent’s right of action was deliberately concealed from the 1st respondent”.

It was contended that the foregoing state of facts went to show that there was a plethora of irregularities and fraudulent concealment in the conduct of ‘defendants’. Learned counsel, therefore, urged us to hold that the respondent’s action was not statute barred.

I have given an anxious and careful consideration to the learned submissions and contentions by the counsel on this crucial point. It is rather clear to me after studying the respondents’ pleadings, ‘statement of claim’ cum, ‘reply to defence’ that the fons et origo of all this palaver indeed, the causa causans of the action giving rise to the appeal, was the revocation of the 1st respondent’s interest in plot No. 288 Diobu, Phase II under the Land Use Act, 1978. The grant of the 1st respondent’s interest in plot No. 288 Diobu, Phase II was made to him in 1975 before the coming into effect of the Land Use Act on 29/3/78. Under the Act, the 1st respondent was in law deemed to be a holder of a Right of Occupancy in respect of plot No. 288 Diobu, Phase II. See section 34 sub-sections (1) and (2) of the Act.

By section 28(1) of the Land Use Act:

”It shall be lawful for the Military Governor to revoke a right of occupancy for overriding public interest.”

Then come sub-sections (2) and (3) to Section 28 of the Act. They read, inter alia:-

”(2) Overriding public interest in case of a statutory right of occupancy means:

(a) …………………………………………………………………

(3) overriding public interest in case of a customary right of occupancy means:

(a)…………………………………………………………………

of some relevance here are subsections (6) and (7) to section 28 of the Land Use Act, 1978, I shall carry them. They read:

”(6) The revocation of a right of occupancy shall be signified by a public officer duly authorised by the Military Governor and notice thereof shall be given to the holde”.

”(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub-section (5) or on such later date as may be stated in the notice.”

Section 44 of the Act which deals with service of notices’ provides, inter alias,

”44. Any notice required by this Decree (Act) to be served on any person shall be effectively served on him –

(a) by delivering it to the person on whom it is to be served.

or (b) by leaving it at his usual or last known place of abode.

(c) by sending, it in a prepared registered letter addressed to that person at his usual or last known place of abode.”

It is unquestionable that the 1st respondent is a Nigerian citizen.

It is also beyond any doubt that General Sani Abacha was a Nigerian citizen before his death and before the grant to him of the interest in plot No. 288 Diobu, Phase II previously granted to the 1st respondent.

It is a fact admitted that the 1st respondent was not given any notice of the revocation of his interest in plot No. 288 Diobu, Phase II before it was transferred to General Sani Abacha as required by the Land Use Act, 1978. It is equally clear and it is admitted that the reallocation/transfer of the interest of the 1st respondent without any notice thereof to him took place in 1986. Equally, clear to me and it admitted that the cause of the action accrued to the 1st respondent in 1986 on the revocation of his interest in the plot No. 288 Diobu, Phase II.

Now, a Limitation Law or Act, in my respectful view, does not extinguish the right of a plaintiff, it merely bars remedy. But what right could a person have if he cannot enforce it by action in the court of law? Having found that the 1st respondent’s cause of action accrued to him in 1986, this question arises: By what Law or Act would the period of limitation be calculated?. I would hold that the period of limitation would be calculated by or under the Law or Act in force when the cause of action accrued. And that is which?

The counsel for the appellant has contended that notwithstanding that it was pleaded and relied, wrongly, on the Rivers State Limitation Edicts 1988, (not in existence when the cause of action arose) the period of limitation ought to be calculated by or under English Statute of Limitation, 1623. I would readily agree with this submission.

But this is, by no means, the end of the matter. In the peculiar circumstances of this particular case, the end of the matter is not as simple as it appears. And appearances are in most case deceptive.

So, the all important question becomes: Does the appellant take advantage of the Statute of Limitation, 1623? Put in other words; was the respondent’s action statute barred?

On the one hand, learned counsel for the appellant had urged that the respondent’s cause of action having accrued to them in 1986 the action commenced in November, 1998, was statute barred under the English Statute of Limitation, 1623. On the other hand, the learned counsel for the respondents urged that the interest of the 1st respondent in the plot No. 288 Diobu, Phase II having been revoked without any notice to him; the plot given or allocated to another Nigerian citizen for a private purpose, there had occurred a fraud or, a concealment of his right of action. The 1st respondent’s right of action had been concealed fraudulently. The limitation of action, therefore, would run from the period or time he discovered the fraudulent concealment. The appellant would not, therefore, take cover under the Limitation Act. The appellant knew full well that the plot No. 288 Diobu, Phase II, belonged to or was previously granted to the 1st respondent ab initio.

The big question becomes this: who is right? A resolution of the above, in my respectful view, holds a master key to the issue under consideration. Before I record my opinion thereon, I shall, firstly, advert to the principle to guide me. In this regard I shall consider the following cases; although they deal with limitation of action in contract, the principle therein applies equally in land cases.

Clark v. Woor (1965) 2 All ER, 353, on its short facts, was an action for a breach of contract to build a bungalow. The alleged breach or cause of action did not arise within six years before the action brought. The defendant raised a defence under the Statute of Limitation, 1939 in pari materia with Statute of Limitation, 1623.

As Lawton, J. observed at page 355 (and I most respectfully quote him):

“Unfortunately for the plaintiff although the breach of contract was obvious, they did not discover it until some eight years after the building contract had been made and it did not take the defendant very long to seek cover under the provisions of the Limitation Act, 1939. A good deal turned in this case on whether the defendant is entitled in the circumstances to take advantage of the provisions of the Limitation Act, 1939… The plaintiffs however sought to rely on section 26 of the Act. The material provision of the section read as follows:-

“where, in the case of any action for which a period of limitation is prescribed by this Act either (a) the action is based upon fraud of the defendant … or (b) the right of action is concealed by fraud of such person as aforesaid … the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.”

On the facts I find that the plaintiffs did not discover what happened to give them a cause of action until 1961 … The problem has been whether they have shown that the right of action was concealed and whether it was concealed by fraud. In my judgment, there is no difficulty about the first point. The defendant knew what the facts were and he deliberately withheld knowledge of them from the plaintiff … Has he concealed the plaintiff’s right of action by fraud?

On this point my attention has been drawn to two authorities of the Court of Appeal. The first is Beaman v. A.R.T.S. Ltd. (1949) 1 ALL ER 465 and the second is Kitchen v. Royal Airforce Association (1958) 2 All ER 241. First of all, fraud does not necessarily mean deceit in the sense in which it is known in common law, and secondly the type of conduct which amounts to fraud is the type of conduct which was known in the Chancery Court as equitable fraud I cannot, I think, do better than to remind myself of what Lord Evershed, M. R. said in the Kitchen case and apply it to the facts of this case.

“It is now clear however that the word fraud in s. 26(b) of the Limitation Act, 1939 is by no means limited to common law fraud or deceit. Equally, it is clear having regard to the decision in Beaman v. A.R.T.S. Ltd. that no degree of moral turpitude is necessary to establish fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did, not attempt to define two hundred years ago, and I certainly shall not attempt to do now, but it is, I think clear that the phrase covers conduct which, having regard to some special relationship between the two parties, is an unconscionable thing for one to do towards the other.”

Now, the relationship between these parties was that of builder and building owner and the circumstances were such that the builder knew that the building owners were relying on him to perform his contract and treat them in a decent, honest way … It seems to me that the special relationship to which Lord Evershed, M. R. refers existed and the kind of behavior to which I have just referred is unconscionable behavior and in the circumstances amounts to fraud by the party seeking it, cannot be denied to the applicant simply because he has applied for it under the wrong law. To do so would be patently unjust.” (Italics mine).

What, in my view, would be objectionable is for the defendant to introduce a new set of facts different from that of which he had notified the opposite party. That would clearly surely throw his opponent’s case out of gear. The appellant did not do this. It clearly sufficiently pleaded time-bar against the plaintiffs.

B. Was the learned trial Judge right in not applying the English Statutes of Limitation?

The effect of the view taken by the learned Judge and the respondents’ counsel is that in the matter of applying the provisions of an enactment the Judge had a discretion. She could, according to their view, refuse to consider the provisions of an enactment even if it is applicable to the matter before her.

With all due respect to them, that cannot be the correct view of the law. Every Judge is under a duty to give effect to the provisions of all applicable laws. Even where his attention has not been drawn to such provisions his judgment is liable to be set aside if it is contrary to their terms. His ignorance of them can never be an excuse for deciding contrary to them. It is the law that governs matters before the court, not the judge’s personal view of them. Once a law is enacted, it becomes effective and every person is expected to obey it and every court is bound to enforce it. See section 27 of the Interpretation Law, Cap. 66, Laws of Eastern Nigeria, 1963, applicable in Rivers State, which provides:

“27. Proclamations, notifications and other instruments having the effect of law of the Governor shall come into operation on the date of their publication in the Eastern Nigeria (now read Rivers State) Gazette unless otherwise specified.”

And by section 74 of the Evidence Act every court in the country must take judicial notice of the facts listed therein. Paragraph (a) thereof provides:

“74.The court shall take judicial notice of the following facts –

(a) all laws and enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria.” (Italics mine).

The stipulation here is that the court shall, and not may, take judicial notice of the matters specified therein. The con in which this command word ‘shall’ has been used here leaves no room for the suggestion that a discretionary power has been conferred.

Now, it is well established that the English statutes of limitation, namely, the Statute of Limitation, 1623, the Real Property Limitation Act, 1833 and the Real Property Limitation Act, 1874, were statutes of general application that were received into our law on 1st January, 1900. (See s. 20 of the old Supreme Court Ordinance of that year, re-enacted in s. 15(1) of the High Court Law, Cap. 61, Laws of Eastern Nigeria, 1963, applicable in Rivers State). The latter two Acts modified and continued the 1623 one in operation. All three were to be read together. See section 9 of the 1874 Act. In Fadare & Ors. v. A.-G., Oyo State (1982) 4 SC 1, at 24, the Supreme Court, per Nnamani, J.S.C., following Solomon v. African Steamship Co. Ltd. (1928) 9 NLR 99, at 100, held the 1623 one applicable in Nigeria.

The 1874 Act was applied in by Graham Paul, J., in Green v. Owo (1936) 13 NLR 43, at 45, a case for recovery of possession of land.

The learned Judge in the present case should, therefore, have considered the plaintiffs’ action against the provisions of the statutes to ascertain the validity of the appellant’s contention that they barred it.

C. Was the Plaintiff’s Action Commenced within Time Under the English Statutes?

The 1623 Statute fixed 20 years as the period of limitation within which a plaintiff must assert his right of re-entry into land by action or suit. It was modified by the Real Property Limitation Act, 1833, which, however, maintained the 20-year bar for actions relating to real property. See section 2 thereof. This period was cut down to 12 years by the Real Property Limitation Act, 1874. See section 1 thereof. It was thus, this latter period of limitation that the statutes of limitation brought into our law at the turn of the 19th century, not ten years as senior counsel asserted on behalf of the appellant in his brief. Section 1 of the Real Property Limitation Act, 1874 provided:

“1. No person shall make an entry or distress, or bring an action or suit, to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit … shall have first accrued to the person making or bringing the same.”

And section 3 of the Real Property Limitation Act, 1833, provided:

“3. In the construction of this Act the right to make an entry or distress or bring an action to recover any land or rent shall be deemed to have first accrued at such time as herein-after is mentioned; (that is to say,) when the person claiming such land or rent, or some person through whom he claims, shall, in respect of the estate or interest claimed, have been in possession or in receipt of the profits of such land, or in receipt of such rent, and shall while entitled thereto have been dispossessed … then such right shall be deemed to first accrued at the time of such dispossession …”

The cumbersome drafting notwithstanding, the provision made here was quite clear. The cause of action accrued the moment the owner of the land was dispossessed of it.

As we saw before, the learned Judge found as a fact that the plaintiffs’ cause of action arose in 1986. She did not, however, say exactly. when, in 1986, she thought the cause of action arose. It is absolutely necessary to determine the exact date otherwise we would not be able to say whether or not 30/11/98, on which the action was commenced, fell within 12 years from the date on which the cause of action arose.

Now, twelve years, counted backwards from 30/11/98, would take one back to 29/11/86. Therefore, any date earlier than the latter date would give a longer period than twelve years between it and 30/11/98. It follows that if the plaintiff’s cause of action had arisen on any date earlier than 29/11/86, then the action commenced on 30/11/98 had clearly been commenced outside the 12-year time limit.

There are on record in the present case five dates on which one could validly say that the plaintiff’s right of action accrued to them, being the various dates on which they alleged that they were dispossessed of the plot. The earliest was the 8th June 1977. This can be gathered from paragraphs 2.6 and 2.8 of the respondents’ brief where learned counsel had written:

“2.6 The respondents main grievance was that 1st respondent was the state lease of a plot of land known as Plot 288 within Diobu, GRA Phase II, Port Harcourt. The lease was for a term of 99 years with effect from 2nd January, 1975 by virtue of a registered building lease…

2.8 Unknown to the 1st respondent yet another building lease had been surreptitiously issued in favour of Sani Abacha (Deceased) now represented by the appellants over the same plot of land on 8/6/77.”

The next date was July 1977. In paragraph 2 of exh. A, the 1st plaintiff’s letter to the 1st defendant on 04/07/81, the former had written:”

“In July, 1977, I submitted plans for the development of the plot to the Lands Division through the Municipal Council and was horrified to learn that my plot had been re-allocated to another person. The action was unheard of and in fact unprecedented in the history of land allocation in the country since the re-allocation was effected without prior cancellation of the registered lease in my possession.

He repeated these words in paragraph 2 of exh. B, another letter he wrote to the 1st defendant on 16/12/81 on the same subject.

The third date was 16/12/81. In paragraph 9 of the amended statement of claim the plaintiffs pleaded:

“9. Sometime in 1981, plaintiff discovered that some persons unknown had entered the plaintiff’s said property and proceeded to raise the plaintiff’s perimeter fence thereon. Plaintiff filed a protest letter note 16th December 1981 with the 1st defendant … ”

The fourth date was 07/04/86. This can be deduced from what the learned trial Judge said when she made her finding as to when the plaintiff’s cause of action arose. At p. 128 of the record she said, “Based on paragraph 12 of the plaintiff’s claim and the contentions of the defendants, I am in agreement that the cause of action in this case arose in 1986.” (Italics mine).

Paragraph 12 referred to by her reads:

“12. Sometime in April 1986 1st plaintiff noticed some activities on the said property with containers bearing the mark of C & C Construction Company Limited being kept at the green verge in front of the property. 1st plaintiff again on 7th April wrote a protest letter to then Governor of Rivers State Police Commissioner Fidelis Oyakhilome through the Commissioner for Lands. 1st plaintiff also wrote to the said C & C Construction Company Ltd. to keep off his premises if, as she said she did, the Judge had based her finding on this paragraph, then obviously she must have been referring to the 7th of April, 1986 when she expressed agreement with the defendants that the cause of action arose in 1986”.

The fifth and last date was 30/04/86. In paragraph 15(a) of their amended statement of claim the plaintiffs averred that on returning to Port Harcourt in 1996 the 1st plaintiff made enquiries at the Ministry of Lands and discovered-

“(a) That an Edict No. 86 dated 30th April, 1986 had been promulgated by the same Fidelis Oyakilome to whom plaintiff has protested … revoking the plaintiffs right of occupancy over the very same plot 288 within Diobu, GRA Phase II, Port Harcourt.”

This last date is, of course, the most beneficial to the plaintiffs. It pushed the date of the accrual of their right of action closest to 30/11/98, when they commenced their action. In order to give them the benefit of any available doubt, I shall, therefore, compute their time from that date, even though they have not appealed against the ruling rejecting their contention that their cause of action arose in 1996 instead of 1986.

Now, twelve years forward from 30/04/86 ended on 29/04/98.

The plaintiffs ought, therefore, to have filed their action on or before the latter date to be within the prescribed period. As it turned out, however, they did not file it until 30/11/98, exactly 7 months after the expiration of the time allowed to them.

On the effect of the effect of the expiration of the statutory period prescribed here section 34 of the Real Property Limitation Act, 1833 provided:

“34. At the determination of the period limited by this Act to any person for making an entry or distress, or for bringing any writ of quare impedit or other action or suit, the right and title of such person to the land … for the recovery whereof such entry, distress, action or suit respectively might have been made or brought within such period, shall be extinguished” (Italics mine for highlight).

It can thus be seen that this provision completely extinguished not only the plaintiff’s right of action to recover his land but also his very title to it if he failed to take action to recover it within the stipulated period. It did not merely bar his remedy. This latter view represented the position under the Limitation Act, 1623, and before.

In those days only the remedy by action or suit for recovery was barred. The plaintiff could still use other legitimate means, like the right of lien, to enforce his right. Also in those days, his right of action by action or suit could be revived by acknowledgement by the defendant, which made the former’s time to run afresh from the date of such acknowledgement. Section 34 of the 1833 Act just seen, however, radically changed that and from then until we received the Acts into our law it remained the law that the Limitation Acts extinguished both the right and the remedy, in actions for recovery of land. The right could no longer be revived by acknowledgement.

These provisions have been so interpreted by the courts in England and in this country. They were re-enacted in section 21 of the Lagos State Limitation Law, 1973 and came up for interpretation in Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637. The Supreme Court unanimously affirmed the view of the Court of Appeal that the provisions had the effect of extinguishing both the remedy and the right. Karibi-Whyte in his contributing judgment at p. 666 observed that the Court of Appeal ‘accentuated the difference between the effect of section 21 … which extinguishes a pre-existing right and many other similar laws including the Public Officers Protection Act, 1958, Cap. 168, which merely destroys the remedy and not the right … ‘ Then at p. 668, after considering the provisions of sections 16 and 19 together with section 21, he affirmed in the following words the position taken by the Court of Appeal:

“The words construed are clear and unambiguous and must be accorded their ordinary meaning … The effect of section 16(2) is to deny the exercise of any right of action hitherto accruing to anybody and deny the remedy, which has not been exercised by such person after the expiration of twelve years from the date on which the right of action accrued …

….. Although sections 16 and 19 speak of barring right of action, which merely destroy the remedy available, section 21 goes on to extinguish the right itself. Thus, on a cumulative reading the provisions do not merely deny the right of action, it completely extinguishes an existing right at the expiration of twelve years from the accrual of the right of action.” (Italics mine).

In view of the clear language of section 34 of the English statute and the authority just cited, I think that it is an over-generalisation to assert that ‘a Limitation Act or Law … does not extinguish the right of a plaintiff’. It merely bars his remedy.” The authorities show that in determining whether or not a right of action has been destroyed along with the remedy, the Act or Law concerned must be examined critically to ascertain its true tenor. Some such Acts or Laws only deny the remedy. Others kill both the remedy and the right itself outright. We are concerned in this appeal with the latter class.

The law, as stipulated by the Statutes of Limitation just seen, was that the statutory period began to run against the owner of land from the date on which his right of action accrued. In the absence of fraud it ran whether or not the owner was aware of the fact of his dispossession at the time it occurred. The language of section 34 of the 1833 was clear and unambiguous and did not admit of any suggestion that the running of time depended on the knowledge by the owner of the land that he had been dispossessed of it. This point was stressed by Ayoola, J.C.A., as he then was, in Devis v. Ajibona (1994) 5 NWLR (Pt. 343) 234. The plaintiffs in that case just like in the present case, complained, inter alia, that they did not know when the defendants took possession of their land. The majority of the Lagos Division of this court agreed with them, holding that until they became aware that they had been dispossessed time did not run against them. The minority, Ayoola, J.C.A., as he then was, however, took the contrary view. He held that time ran whether or not they knew of their dispossession. He based his view on the interpretation of the relevant provisions of the Lagos Limitation Law. The learned Justice of the Court of Appeal said at pp. 255-256:

“The learned trial Judge believed the evidence that the plaintiff was not aware of the presence of the defendant on the land and the building on it until sometime after 1972. Apparently, he considered the question of the plaintiffs knowledge in the con of the equitable defence of laches and acquiescence and not in regard to a plea that the action is statute barred.

On this appeal, the plaintiff has endeavored to show that knowledge by the plaintiff of the defendant’s adverse possession was essential to the success of a plea of limitation …

… the actual knowledge of the plaintiff that he has been put out of possession is immaterial to the adverse nature of the defendant’s possession. The immateriality of knowledge is well illustrated by the case of Rains v. Buxton (1880) 14 Ch. D. 537 where it was held that under the English Statute of Limitation, the right to land is extinguished in the absence of fraud, after a discontinuance of possession for the period enacted in the statute, although the owner so discontinuing possession was unaware that adverse possession had been taken … knowledge or absence of knowledge only becomes a material issue if the plaintiff alleges fraudulent concealment of a right of action.”

The Supreme Court unanimously accepted the minority view on appeal, sub nomen, Ajibona v. Kolawole & Anor. (1996) 10 NWLR (pt. 476) 22 in preference to the majority view. Ogwuegbu, J.S.C., addressing the role of knowledge by the plaintiff of the fact of his dispossession, said at 35-36:

“On the issue of knowledge by the plaintiff of the defendant’s adverse possession for time to start running, I will refer to Sections 17, 19 and 21 of the Limitation Law Cap 118 Laws of Lagos. They provide:

’17. Where the person bringing an action to recover land … has been in possession thereof and has while entitled thereto been dispossessed … the right of action shall be deemed to have accrued on the date of the dispossession.

19(1) No right of action to recover land shall be deemed to have accrued unless the land is in the possession in this section referred to as adverse possession) of some person in whose favour the period of limitation can run …

21. On the expiration of the period fixed by this Law for any person to bring an action to recover land, the title of that person to the land shall be extinguished … ‘

On a cumulative reading of the entire provisions of the Limitation Law, and, Sections 16, 17, 19 and 21 thereof, knowledge on the part of the plaintiff is not a condition precedent. The knowledge of the plaintiff is immaterial.

The words of the Limitation Law of Lagos State are clear and unambiguous and must therefore be accorded their ordinary meaning.

… Under the Limitation law, the right to land is extinguished, in the absence of fraud, after discontinuance of possession for the period enacted in the law, although the owner so discontinuing possession was unaware that adverse possession had been taken …

…To contend that the defendant must prove plaintiff’s knowledge of such adverse possession for time to start to run, or the defendant’s presence on the land is to import a strange condition into the Limitation Law … ”

It can be seen that sections 17 and 19 of the Lagos Law, read together, are in pari materia with section 3 of the 1833 English Act. Section 21 of the Lagos Law is in pari materia with section 34 of the 1833 English Act. The views expressed by the Supreme Court in the case just seen must, therefore, apply to the construction of the English statutes. This court is firmly bound by the authorities cited. To deviate from them and insist that because ‘the 1st defendant revoked the interest of the 1st respondent ‘knowingly’ and did not tell him or give him notice thereof’ time did not start to run is to go contrary to the doctrine of judicial precedent. On the authorities, the fact that the 1st defendant took the 1st plaintiff’s plot without notice to him was totally immaterial the running of time against the plaintiffs.

Therefore, unless the plaintiffs can substantiate their claim that the defendants were guilty of fraudulent concealment of their (plaintiff’s) right of action, time ran non-stop against them from 30/04/86, when the Edict dispossessing the 1st plaintiff of his title to the plot in favour of General Sani Abacha was published. His time, as has been seen, expired seven months before he and his daughter commenced their action on 30/11/98.

D. Did Plaintiff’s Time Stop to Run on Account of Concealed Fraud?

As we saw earlier on, the plaintiffs have contended that, owing to fraudulent concealment on the part of the defendants, time did not start running against them until 1996 when they discovered the fraud. Counsel on their behalf has argued that, even if the Edict applied, their action was saved by section 31(1)(a) and (b), which suspended the running of time until the 1st defendant discovered the fraud in 1996. The provisions they rely on read:

“31 Subject to the provisions of subsection (4), where in the case of any action for which a period of limitation is prescribed by this Edict, either:

(a) the case is based on the fraud of the defendant;

or (b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or (c) the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment of fact or mistake (as the case may be) or could with reasonable diligence have discover it. ”

Incidentally, fraudulent concealment of the plaintiff’s right of action by the defendant was a ground also under the English Statutes of limitation for equity to intervene in favour of the plaintiff to halt time from running against him until the fraud was discovered. See section 26 of the 1833 Act. Learned counsel contended on behalf of the respondents that the facts before the court showed that –

” … there was a plethora of irregularities and fraudulent concealment in the conduct of Governor Fidelis Oyakhilome and General Sani Abacha both of whom colluded in this show of shame behind dark glasses and embolden by sheer arrogance of Military jackboots. (Italics mine).

See para. 5.7 of the respondent’s brief.

What then is concealed fraud capable of suspending time in favour of the plaintiff under section 26 of the 1833 Act (or section 31 of the Edict)? The answer has been adequately provided in decisions of the courts both in England and in this country. In Willis v. Earl Howe (1893) 2 Ch. 545, the plaintiff brought action after the expiration of the statutory period to recover landed property. He alleged that the defendant had come into possession through the concealed fraud perpetrated by his predecessors-in-title. One Lady Sophia Curzon had wrongfully taken possession of the property on behalf of her son whom she falsely represented as the heir-at-law of the original owner. Her son died in infancy. She however continued in occupation on behalf of another infant, whom she represented as the younger brother of her deceased son and, therefore, the new heir-in-law. This representation also was false. The second child was not her son at all and could not, therefore, be her son’s brother. Nor was he the heir-at-law of the owner. On attaining his majority this impostor took possession, knowing full well that he was not what he had been represented to be. He nevertheless continued in possession, fraudulently concealing the true facts during his life. He also knew, but concealed the fact, that the infant son of the lady was not the true heir-at-law of the owner. The true heir-at-law was another child, of the same name, who was an ancestor of the plaintiff. The defendant was one of the two sons of the impostor. The defendant knew the true facts but concealed them from the true heir-at-law.

One of the questions that the court had to answer was whether the plaintiff had been dispossessed by concealed fraud. The trial Judge held that the taking of possession by the lady, though wrongful, did not amount to taking by concealed fraud as envisaged by section 26 of the 1833 Act. The concealment by the impostor and the defendant was, however, fraudulent but did not count for the purposes of section 26 as it was not by it that plaintiff had been dispossessed. That fraud was committed after the plaintiff had already been dispossessed.

The Court of Appeal affirmed his decision. Kay, L. J., said at pp. 551,552 and 553:

“Is a false assertion of title by a person so taking possession a concealed fraud within the meaning of the section? If so, it must follow that every entry upon land under a claim of title which the person entering knows he could not support would be a concealed fraud within S. 26. I do not think that this is the meaning of the section … Vice-Chancellor Kindersley, in Petre v. Petre 1 Drew 397 says: ‘What is meant by concealed fraud? It does not mean the case of a party entering wrongfully into possession, it means a case of designed fraud, by which a party, knowing to whom the right belongs, conceals the circumstances giving that right, and by means of such concealment enables himself to enter and hold’ … It is not merely an ‘unknown fraud.” But the word ‘concealed’ seems to indicate that there were facts known to the person who enters, and designedly concealed by him from the real owner, which facts, if known, would enable the real owner to recover.

The deprivation of which the section speaks in such a case is by the fraudulent entry. But that which makes wrongful entry fraudulent is not only the knowledge, but the concealment of those facts. If they had been disclosed, and the person who disclosed them had nevertheless entered, the entry would have been wrongful; but would it have been fraudulent? The section seems to point to some contrivance by which the real owner has not merely been deprived, but defrauded, in the sense of being induced to believe that he was not owner, and that the person who so entered was owner and entitled to enter’ (Italics mine).

In Davies v. Ajibona, supra, Ayoola, J.C.A., observed at p. 256, ”As to what would constitute fraudulent concealment, the law has been succinctly stated in Halsbury’s Laws of England (3rd Ed.) para. 631 as follows:

”In order to constitute such fraudulent concealment as would, in equity, take a case out of the statutes of limitation, it was not enough that there should be merely a tortuous act unknown to the injured party, or enjoyment of property without title, while the rightful owner is ignorant of his right, there had to be some abuse of confidential position, some intention at imposition, some deliberate concealment of facts.”

More directly, it has been held that to enter land without the knowledge of the owner does not constitute concealed fraud… In this case, no question of fraudulent concealment arises. The acts of the defendant on the land are open and unequivocal in its inconsistency with the title of the plaintiff or possession of the land by plaintiff. They constitute adverse possession. ” (Italics mine).

The Supreme Court affirmed this view. See Ajibona v. Kolawole & Anor. (supra), per Ogwuegbu, J.S.C., at p. 36.

Now, what did the 1st plaintiff in the case before us plead and prove?

It was, as has been seen, no more than that the 1st defendant wrongfully took his land and gave it to General Abacha. Apart from Mr. Nwosu’s say-so in the respondent’s brief, there was no allegation, either in the pleadings or in the testimony of the 1st plaintiff, that the 1st defendant employed any devious or deceitful means in dispossessing the 1st plaintiff. The allegation was that he simply revoked the plaintiff’s building lease and re-allocated the plot to General Abacha and later backed up these wrongful and illegal acts by an Edict. On these facts one could justifiably say that the 1st defendant had dispossessed the 1st plaintiff by brute force, but on authorities referred to, the charge of dispossession by concealed fraud cannot be sustained against him. I see no allegation, much less evidence, of fraud. Nor is there any, allegation or evidence of concealment. The 1st plaintiff of his own free volition revealed that the revocation of his building lease was published in an Edict. One would have thought that an Edict would be the last place to hide any information that the authors wished to conceal.

But then, the plaintiffs pleaded that by the time the Edict was promulgated the 1st plaintiff had become bed-ridden with a stroke.

In his oral amplification of the respondent’s brief Mr. Nwosu pointed out that the 1st plaintiff was out of the country at the time. Learned counsel did not refer to any law that says that the operation of an Edict is suspended as it affects a person if at the time it was promulgated that person was bed-ridden or was abroad. I am not aware of any. In any case, there was no evidence that the 1st plaintiff was abroad. As I understand it, a publication in an Edict is notice to all the world and the author is not expected to seek anybody affected, or likely to be affected, by it to inform him of the fact contained therein. An Edict has the force of law and takes effect immediately it is made. Its commencement does not depend on whether or not the persons affected or likely to be affected by it have been notified apart from the publication in the Gazette.

From the date of the publication of the Edict time began to run against the plaintiffs. Even if they did not know the person to whom the plot had been re-allocated they could have taken action against the 1st defendant since their complaint was essentially and effectively against his act of reallocating their plot to that other person. The law is that time begins to run when the cause of action arose, i.e., ‘when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.’ See Fadare v. A.G. Oyo, (supra). See also Cooke v. Gill (1873) LR 8 CP 107, at 110. The plaintiffs were in existence and could sue. The 1st defendant was in existence and could be sued. The plaintiffs did not have to wait until they discovered the identity of the person to whom the land had been allocated. They could have maintained a successful action against the 1st defendant if indeed the re-allocation had been wrongful. Even if the officials in the ministry of lands were unwilling or unable, as the plaintiffs alleged, to produce the gazette containing the reallocation of his plot, the 1st plaintiff could still have done something about it. He could have either got the court to order its production or the Government to admit that there had in fact been no such re-allocation. He however did nothing beyond his writing petitions to the 1st defendant.

The facts of this case are quite similar to those of Fadare & Ors. v. A.-G., Oyo State, (supra). In that case, just as here, Government took land belonging to the plaintiffs. It neither paid compensation for it nor returned it even after the public purpose for which it had been compulsorily acquired had ceased to exist. The plaintiffs, instead of taking action against the Government for the recovery of the land or compensation in lieu, engaged themselves in petition writing, drawing the latter’s attention to the unjustness of taking the land. without compensation, until time ran out. When they eventually took action and were met with the plea of time-bar they complained, as the present plaintiffs are, that the requisite notices of acquisition of the land had not been issued. Nnamani, J.S.C., however, at p. 24, reminded them that they should have filed their action before the expiration of the time limit. They had slept on their rights and time started to run against them and never stopped, notwithstanding that the requisite notices had not been issued, until it ran out. With or without formal notice to them they could have had no doubt that their land had been taken from them when the certificate of title was issued to the Government over it. Similarly, the plaintiffs/respondents before us ought to have been cleared of all doubt about the land having been taken from them the moment they became aware of the Edict published to that effect. Time definitely began to run against them then, not, as they claimed, in 1996. They became aware of their dispossession long before 1996.

Without proof of a fraud and of its concealment by the defendant there is no way the plaintiffs can hope to take refuge under section 26 of the 1833 Act for, as Kay, L. 1., pointed out at p. 551 of Willis v. Earl How, (supra).

“To bring a case within the purview of section 26 of the Real Property Limitation Act, 1833, on effect of concealed fraud on period of limitation, four circumstances must be proven as follows: (a) there must have been a fraud. (b) that fraud must have deprived the claimant or his predecessors in title of the estate. (c) such fraud must have been concealed. (d) the concealment must have been such that it could not with reasonable diligence have been discovered sooner than it was in fact discovered, and such discovery must have been within twelve years before the commencement of the action. (Italics mine)

Even if there had been any fraud by the 1st defendant in the present case, the 1st plaintiff could with reasonable diligence have discovered it long before his time ran out. It has been seen that he himself made it clear that as early as July, 1977, he had got wind of the fact that his land had been taken. From time to time, up to 1986, he visited the plot and observed that someone was carrying on the development of the plot, an act that was clearly and completely adverse to his own possession and enjoyment of the land. On his own showing the only inquiry he made was to ask the officials at the land office for the issue of the gazette that carried the information on the revocation of this building lease and reallocation of the plot. As they would not tell him he went home, contenting himself with writing petitions to the 1st defendant, leaving whoever was developing his plot to carryon unchecked. As it turned out, General Abacha remained on the plot for over twelve years during which time he put up the multi-storied building that now stands on it.

I must observe here that there appears to be some confusion regarding the nature of the concealment that would work in favour of the plaintiff under section 31 of the Edict or section 26 of the English Statutes. The respondent’s counsel appears to think that it is the concealment of the fact of the taking of possession by the defendant of the land that the provisions forbid. Hence, his emphasis in para. 5.6 of the respondent’s brief on the facts that –

(i) Abacha had actual or constructive notice of the 1st respondent’s pre-existing, registered and un-revoked ride of 1975 when he colluded with the then Military Governor of Rivers State to create yet another tide for him in 1977 over the subject property.

(ii) They concealed this creation by not reflecting it in the history of property card over that property up till 1985 and beyond …the effect of which being that no amount of diligent search by the respondents will reveal to them the records at the Lands Ministry that a parallel lease has been created in favour of late Abacha.

(iii) The 1st respondent was never informed that his property was to be allocated to Abacha, another citizen for a private purpose.

(iv) The 1st and 2nd defendants admitted that 1st respondent was not given any notice of revocation of his interest.

(v) This fact of revocation which is very relevant to the respondent’s right of action was deliberately concealed from the 1st respondent. ” (Italics mine for highlight)

With all due respect, it is not the concealment of these facts that it is forbidden. The relevant provisions do not talk of the concealment of the fact of the dispossession or the cause of action.

They talk of the concealment of ‘the plaintiff’s right of action’.

The distinction between ’cause of action’ and ‘right of action’, although admittedly fine, must be properly appreciated. The difficulty stems from the fact that the two are always in association with each other. The former gives rise to the latter. It is the set of facts and circumstances that entitle the plaintiff to sue. It is the reason why the plaintiff may sue. If that reason is absent, the plaintiff can have no right of action. When those facts and circumstances occur or come into existence, then the right of action accrues to the plaintiff. The latter is thus the empowerment of the plaintiff to exercise his option to seek redress for the wrong done him. The cause of action is the wrong done.

The facts that learned counsel for the respondents has harped on, if anything, show the concealment of the fact of the revocation of the plaintiffs’ building lease; their cause of action, if you like. They, however, do not show a concealment of their right of action.

The 1st defendant was alleged to have in any way induced the 1st plaintiff to believe that the land did not belong to him, but to General Abacha. Nor did he conceal the fact that the plot belonged to the 1st plaintiff. Indeed, by revoking the 1st plaintiff’s building lease before allocating the plot to the General, the 1st defendant was clearly acknowledging that the plot did in fact belong to the 1st plaintiff.

He did when he published the revocation in the Edict to notify to all the world, including, of course, the 1st plaintiff, that he had taken the plot from the 1st plaintiff and given it to the General. He did not conceal anything, certainly not the plaintiff’s right of action. He did not pull any wool over the plaintiff’s face from seeing that he had just been given a cause to go to court.

I see another flaw in the arguments on behalf of the plaintiffs.

Counsel does not appear to appreciate that the wrongfulness or otherwise of the revocation of the 1st plaintiff’s building lease and the re-allocation of the plot to General Abacha by the 1st appellant did not fall for consideration under the issue being discussed. He seemed not to appreciate that what was called for was a consideration whether or not, whatever the merit his claim, the 1st plaintiff could, in the circumstances, ever bring it again for redress. Whether ‘from the relationship that existed between the 1st defendant and the lst respondent the conduct of the former was an unconscionable behaviour’ or whether such conduct amounted to ‘robbing Peter to pay Paul’ were all matters that were beside the point. The Point for discussion was whether the plaintiffs had raised their complaint about the unconscionableness of the 1st defendant’s conduct timeously.

The law enjoined them to raise that complaint within twelve years and went further to stipulate that if they failed to raise it within that period then their lips would forever be sealed, no matter the merit of their complaint. That was why it was imperative to eschew any discussion on the unconscionableness or otherwise of the 1st defendant’s conduct until the issue whether or not the plaintiffs had acted timeously was cleared.

In breach of contract cases, it might be possible to consider the conduct of the defendant to determine whether or not such conduct amounted to concealment of the plaintiff’s right of action. In recovery of land cases, however, the law lays down specific things that must be done, which do not necessarily apply in breach of contract cases.

For instance, as has been seen, section 34 of the 1833 Act not only barred the remedy, but also killed the title to land. There is no such provision in respect of breach of contract. In my view, therefore, breach of contract cases have a limited use as a guide in recovery of land case. Specifically, I do not think that Clark v. Woor (1965) 2 All ER 353, and the cases cited therein are not of assistance to us here. The facts were that the plaintiff, who had no experience in building, entered into a contract with the defendant, whereby he was to build a house for the plaintiff. The defendant was not only a builder, but also had a sound knowledge of the quality of bricks.

The plaintiff relied on the expertise of the defendant, who undertook to use the best quality bricks for the construction of the plaintiff’s house. The building contract was entered into on this understanding.

The defendant knew at the time they entered into the contract that he could not obtain bricks of the specified quality within the stipulated period but kept this fact from the inexperienced plaintiff. The defendant proceeded to use bricks of indifferent quality but which, to an untutored eye, looked genuine. The plaintiff moved into the house and noticed years after that the bricks were flaking, a thing that the genuine bricks would not do. The truth of what happened eventually came to light. Unfortunately, the limitation period had by that time run out on the plaintiff. It was in these circumstances that the court held the sleight of hand by the defendant on the plaintiff who trusted him amounted to concealed fraud. It was a classic case of abuse by the defendant of confidential position he occupied with the plaintiff.

Those circumstances are not present in the present case. There was no question of abuse of confidence as no such relationship existed between the 1st plaintiff and the 1st defendant. Clark v. Woor is, therefore, of no assistance to us here.

On the facts before the court and on the authorities, I hold that section 31(1) of the Edict or the equivalent provisions in the English statute availed the plaintiffs nothing. They slept on their right beyond the time allowed them. Their title to the plot and their right of action disappeared with the expiration of the limitation period. The learned trial Judge was, therefore, wrong to have held that in the circumstances their action was not statute barred.

4. Was the 3rd Defendant a Suable Entity?

I now come to the appellant’s issues 1and 2 and the respondent’s issue 1. Having regard to the way in which the proceedings went at the trial court, I must agree with the learned trial Judge that the appellant waived its right to contend that it is not a suable entity. It is true that it entered a conditional appearance. It is equally true, however, that not only did it not raise the point of its not being a legal entity in limine by motion, it never raised the issue by its pleading. If it had raised it in its pleading and fought the case at the trial, one might have looked more sympathetically on its case. As it was, however, it completely failed to raise the issue. In the circumstances, I must agree with my learned brother that the trial Judge was justified in her ruling that the, appellant had waived its light to contest the issue it now raises, ‘With respect, I do not agree with the learned Senior Advocate of Nigeria that the appellant could not waive the issue whether or not it is a juristic person. This is a matter that inures to its benefit and does not affect the competence of the court nor does it involve any question of public policy, Although it entered a conditional appearance, it abandoned its right to contend that it could not be dragged before the court, It alone knew why it made that contention, It was for it to properly raise the issue for the court to determine it.

As it was, however, it failed to make it an issue before the court, It waived the right to contend that issue and fought the case on its merit. That was not a matter that could be raise in counsel’s final address, It was a matter that should have been raised and tried on affidavit evidence in limine or on the pleadings and evidence at the trial.

5. Were the Plaintiffs Entitled to the Reliefs they sought?

The question was raised by appellant’s issue 4 and the respondent’s issue 3. There would have been no need to deal with it in view of my decision that the plaintiffs’ action was statute barred, But then; this court does not have the last say in the matter, Counsel for the parties dealt with a number of minor questions, like ,whether or, not there had been admissions by the defendants, and, ifs0, what the effects of the admissions were, These minor questions do not; in my view, deserve the amount of time devoted to them, in view of the facts established on the pleadings and evidence before the court. I think the only points worth considering are whether or not there was a breach of covenant by the 1st plaintiff under the building lease and whether or not there was a proper revocation of the lease.

On the breach, the 1st plaintiff did not deny that he was obliged under the lease to develop the plot within two years. His case was that he could not fulfill that obligation because Government failed to return his approved building plans within time. How valid was this claim?

I do not think it was. The 1st plaintiff himself showed in exhs, A and B that he did not submit his plans until July, 1977. Meanwhile, he had. pleaded in paragraph 6 of his amended statement of claim that the lease had effect from 01/01/75. When he submitted his plans in July, 1977, he was, therefore, already out of time by about seven months. He could therefore, not validly blame the 1st defendant for his decision to revoke the lease. Section 28(5)(b) of the Land Use Act, 1978 empowered him to revoke a right of occupancy for breach by the holder of any of the terms contained in the Certificate of Occupancy.

The matter does not, however, end there. The Act does not leave the procedure for revocation to the whim of the Governor. It provides for how the revocation is to be effected. See section 28(6), which provides that –

“(6) The revocation of a right of occupancy shall be signified under the hand of the public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder”. (Italics mine).

It does authorise the Governor to simply walk in, take the land from the holder and give it to another private citizen and later promulgate an Edict to back up his actions. Even if the land is to be compulsorily acquired, there is a laid down procedure that must be followed.

I have no doubt in my mind that the action of the 1st defendant in this matter was not only wrongful, it was also illegal, being contrary to section 28(1) of the Act, which permits the dispossession of the holder only for public purposes. The Act does not sanction the robbing of Peter to pay Paul as the 1st defendant did in this case.

Furthermore, the procedure for acquisition of land was not followed.

No notice was served, as it should have. No compensation was paid, or even offered, to the 1st plaintiff. On this score, it was unconstitutional, being contrary to section 40(1)(a) of the 1979 Constitution, applicable at the time.

If I had not held that the plaintiff’s action was statute barred I would have had no hesitation in agreeing with the learned trial Judge that the plaintiffs were entitled to all the reliefs they sought. I would accordingly have granted them. The manner in which the 1st defendant had dispossessed the 1st defendant was most callous and undemocratic. When it comes to owning property, no Nigerian, no matter how high his status on the social ladder, is superior to another, no matter how low. The treatment meted by the 1st defendant to the 1st plaintiff was most callous and ought to be roundly condemned.

I would accordingly have so condemned it had the 1st plaintiff not slept on his right beyond redemption.

As things are, however, I must allow this appeal. Accordingly, I allow it. I set aside the judgment of Akpughunum, J., granting the plaintiffs the reliefs they had sought. In its place, I strike out the plaintiff’s amended statement of claim as disclosing no cause of action and dismiss their action.

I make no order as to costs.

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Other Citations: (2000)LCN/0764(CA)