The Admin. of Gen. Sani Abacha (Deceased) v. Samuel David Eke-spiff & Ors (2009)

⦿ CASE SUMMARY OF:

The administrators/executors of the estate of Gen. Sani Abacha (Deceased) v. Samuel David Eke-spiff & Ors (2009) – SC

by PaulPipAr

⦿ TAG(S)

• Revocation of land;
• Administration of estate;
• Juristic personality;

⦿ PARTIES

APPELLANT

1. THE ADMINISTRTORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED)

v.

RESPONDENTS

1. SAMUEL DAVID EKESPIFF;
2. NINE EKESPIFF;
3. THE MILITARY ADMINISTRATOR OF RIVERS STATE OF NIGERIA;
4. THE ATIORNEY GENERAL AND COMMISSIONER FOR JUSTICE, RIVERS STATE OF NIGERIA.

⦿ CITATION

(2009) LPELR-3152(SC);
(2009)2- 3SC (Pt. II39) 97;
(2009) 7 NWLR 97 SC;
(2009) 7 NWLR 97 SC.

⦿ COURT

Supreme Court

⦿ LEAD JUDGEMENT DELIVERED BY:

P. O. ADEREMI, J.S.C

⦿ APPEARANCES

• FOR THE APPELLANT
• Mr. Uzoukwu, (SAN).
• FOR THE RESPONDENT
• Mr. Nwosu, SAN.

AAA

⦿ FACT (as relating to the issues)

Briefly put, the case of the 1st plaintiff (now 1st respondent) 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 What he later discovered was that his right of occupancy was revoked without any notice to him and of course no compensation was paid to him.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 (Appellant) 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the 1st plaintiff was once a holder of Building Lease of Plot 228 Diobu, GRA, Phase II but that his right of occupancy was revoked vide Rivers State Gazette No 17 Volume 18 of 29/5/86 for failure of the plaintiff to build within two years of the allocation.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.

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. The defendant appealed but which appeal was dismissed by the majority amidst a minority judgement.

The defendants (now Appellant) have further appealed to this court.

⦿ ISSUE(S)

1. Whether the Court of Appeal was right in affirming that the issue of the competence of the action is deemed to have been waived by the appellant?
2. Whether the Court of Appeal was right in affirming that the appellant is a sueable entity or a legal person and that the action could competently be maintained against it?

⦿ ARGUMENTS OF PARTIES

• FOR THE APPELLANT

1. It was argued by the appellants that they (appellants) were non legal personalities and by suing them, the 1st and 2nd respondents have not fulfilled the condition precedent to the exercise of jurisdiction by a court, reliance was placed on the decision in MADUKOLU & ORS VS. NKEMDILIM (1962) ALL NLR 589. The competence or jurisdiction of a court cannot be waived citing in support of the decisions In (1) ODOFIN & ANOR VS. AGU & ANOR (1992) 3 NWLR (PT.229) 350 and (2) ARIORI VS. ELEMO (1983) 1 SCNLR 1. This action, to the extent to which the appellants are affected, is incompetent and the 1st and 2nd respondents, as plaintiffs at the trial court, having not discharged the onus of establishing competency as required by the decision in AJAO VS. SONOLA (1973) ALL N. L. R. 449, issue No 1 must be resolved in favour of the appellants,it was again submitted.
2. On issue No 2, it was contended that by suing the 3rd defendant and describing it as “ADMINISTRATOR OF THE ESTATE OF GENERAL SANI ABACHA (Deceased)”, the 3rd defendant, now the appellant is a non legal person. It was further argued that the original 3rd defendant that was initially sued was the “ESTATE”, which, it was submitted, was a non-legal person. Amendment of such a name, that is unknown to law, to now read “ADMINISTRATORS/EXECUTORS OF THE ESTATE” is not permissible in law, praying in aid, the decision in NJOKU VS. U. A. C. FOODS (1999) 12 NWLR (PT.632). Administrators and/or Executors of an Estate where they exist are, beyond argument, natural persons, who can sue and be sued in respect of the Estate they administer, but such natural persons must sue or be sued in their respective names as representing the Estate to sustain the action; it was further submitted while placing reliance in the decisions in SHITIA & ORS v. LIGALI & ORS (1941) 16 NLR 23.

*FOR THE RESPONDENT

Arguing issues Nos. 1 and 2 together, the respondents, through their brief of argument, submitted that the 3rd defendant, now the appellants were sued as a nominal party adding that the reliefs claimed by the 1st and 2nd respondents, as plaintiffs were targeted at the 1st and 2nd defendants. It was also argued that by entering appearance when the writ was served on it (3rd defendant) filing its statement of defence and participating in proceedings the appellants (3rd defendant) must be deemed to have waived its right, adding that the omission to state the names of administrators on the writ was only a mere irregularity, reliance was placed on the decisions in ARIORI & ORS VS. ELEMO & ORS (1983) 1 SC. 13, and IWO CENTRAL LGA VS. ADIO (2000) 8 NWLR (PT. 667) 115. In conclusion, the respondents urged that the two issues be resolved in their favour.

⦿ HOLDING & RATIO DECIDENDI

[APPEAL: STRUCK OUT]

1 & 2: FOR ISSUE 1 & 2, THE SUPREME COURT HELD IN FAVOUR OF THE APPELLANT, AND CONSEQUENTLY STRUCK OUT THE APPEAL. BUT THIS DOES NOT AFFECT THE JUDGEMENT OF THE TRIAL COURT AS THE JUDGEMENT WAS AGAINST THE 3RD AND 4TH RESPONDENT WHO HAVE NOT APPEALED SUCH JUDGEMENT IN THIS INSTANCE.

RULING:
i. In the instant case, the 3rd defendant, who is now the appellant, was sued by the plaintiffs (the present 1st and 2nd respondents) as “THE ADMININSTATOR/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (deceased)”. The names of the Administrators/Executors were never stated in the processes filed. Neither is there any scintilla of evidence that Letters of Administration and/or Probate was granted to anybody in respect of the said Estate of General Sani Abacha (deceased) prior to the institution of this action. It is for the above stated principles that I agree with the submissions of the appellants that not only must a person who instituted an action in court be seen, in law, to be competent to do so, so also it is important that a person sued in his private capacity or personal name or a person sued in a representative capacity be seen, in the eye of the law to be competent to defend the action.

ii. The 3rd defendant who is now the appellant, from all I have been saying, it is not a competent party NAY the 3rd defendant to this case ab initio. The name of the 3rd defendant who is now the appellant ought to have been struck out by the trial judge. I hereby strike out the 3rd defendant from this matter. Consequently I resolve issues Nos. 1 and 2 raised by the appellants in their favour in other words; I answer the two issues in the negative. With respect to issue No 1 identified by the respondents, I say that the inconsistency of the action is only limited to the 3rd defendant. It has no bearing on the judgment of the trial court as it relates to the 1st and 2nd defendants who did not appeal against it. I answer the issue No 2 therein in the negative. It will be tantamount to allowing the 3rd defendant/appellant to blow hot and cold with the same mouth and at the same time. The 3rd defendant/appellant is not a party legally known to law. To that extent, this appeal is incompetent and it is hereby struck out.

NOTWITHSTANDING, THE SUPREME COURT WENT AHEAD TO DEAL WITH THE MAIN ISSUES [SEE THE SUBSTANTIVE SECTION BELOW FOR THE DICTA].

⦿ REFERENCED

Land Use Act

⦿ SOME PROVISIONS

⦿ RELEVANT CASES

AAAA

⦿ NOTABLE DICTA

• PROCEDURAL

I go further to say that a person does not have the locus standi, indeed, he lacks the competence to bring an action in a representative capacity as an administrator of the Estate of a deceased person until he has been granted the Letters of Administration. If he brought the action before the grant, such grant has no retroactive validity. Similarly, a person, who as a plaintiff, has no legal power to sue another person as an administrator or Executor of an estate of a deceased person without naming the person of such an Administrator or Executor on the writ and ascertaining that Letters of Administration or Probate as the case may be, thus legally empowering that person sued to administer the estate of the deceased, was obtained prior to the initiation of the writ. – P. O. ADEREMI, J.S.C. Abacha v. Eke-Spiff (2009)

When challenged, in the case of the defendant as to his legal capacity to defend, the onus is on the plaintiff to establish the legal competency. – P. O. ADEREMI, J.S.C. Abacha v. Eke-Spiff (2009)

The third defendant was described in the Writ of Summons as ADMINISTRATOR OF THE ESTATE OF GENERAL SANI ABACHA’. Neither before the trial court nor the court below was it shown that a particular natural person fitted the description Administrator of the Estate of General Abacha Deceased’. The consequence is that the person sued as the 3rd defendant before the trial court was a non-juristic person. The said 3rd defendant ought to have been struck out as a party to the suit by the trial court. – Oguntade, J.S.C. Abacha v. Eke-Spiff (2009)

As a general rule, only natural persons, that is to say, human beings and juristic or artificial persons such as bodies,corporate are competent to sue and be sued before any law Court. In other words, no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute expressly or impliedly or by common law either a legal personality under the name by which it sues or is sued or a right to sue or be sued by that name. This is because a law suit is in essence, the determination of legal rights and obligations in any given situation. Therefore only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before Courts of law. – M. Muhammad, J.S.C. Abacha v. Eke-Spiff (2009)

Fourthly, where a defendant offers no evidence in support of his pleadings, the evidence before the trial court obviously goes one way with no other set of facts or evidence weighing against it. There is nothing in such a situation, to put on the other side of the proverbial or imaginary scale of balance as against the evidence given by or on behalf of the plaintiff. The onus of proof in such a case, is naturally discharged on a minimal of proof. – I.F. OGBUAGU, J.S.C. Abacha v. Eke-Spiff (2009)

• SUBSTANTIVE

It is even against public policy to compromise illegality (manifest or latent). – P. O. ADEREMI, J.S.C. Abacha v. Eke-Spiff (2009)

I pause to say that the judgment of this court, which is the apex court of our land, must always have a bite. It must be clear in its pronouncement. True justice must be seen to have been dispensed by it. It must never be ambiguous such as to give room for an application calling on this court to interpret its judgment. After all, the pre-occupation of any court, indeed, the apex court is to dispense justice. It is in my quest to see that justice is manifested by this decision that I shall go ahead to treat other issues notwithstanding that I have made a pronouncement striking out the appeal as being incompetent. – P. O. ADEREMI, J.S.C. Abacha v. Eke-Spiff (2009)

Section 28 [Land Use Act] and all the Sub-sections I have referred there under are expropriatory statutes, the like of which I have reproduced above, which encroaches on a person’s proprietary rights must always be construed FORTISSIME CONTRA PREFERENTES’, (i.e: strictly against the acquiring authority but sympathetically in favour of the person whose property rights are being taken away). Thus, the law imposes the duty on the acquiring authority to strictly adhere to the formalities prescribed by the law. – P. O. ADEREMI, J.S.C. Abacha v. Eke-Spiff (2009)

The 1st and 2nd defendants have woefully failed to comply with the provisions of the aforesaid Act and consequently they transferred NOTHING to Major General Sani Abacha. Even if the 3rd defendants had been a proper party, in law, to this case, would he have in the face of the materials before the court, had the case of the plaintiffs dismissed? I think not. The 1st and 2nd defendants the allocating authorityfailed to comply with the provisions of Section 28(2) and (6) of the Land Use Act which enjoin that revocation of land by the Government must be for nothing other than for the overriding public interest and that the notice of revocation, served in accordance with the provisions of Sub-section (6) of the Act. Certainly the re allocation of the land to Major General Sani Abacha cannot be assimilated to an action taken in the overall public interest. Major General Sani Abacha, in this context was an ordinary citizen. – P. O. ADEREMI, J.S.C. Abacha v. Eke-Spiff (2009)

Let me say it loud, it is not only unconscionable to take away a piece of land already allocated and now re-allocate same to someone else without serving a notice of revocation on the earlier allottee and not paying that person compensation, it is also very unlawful and unconstitutional to so do. The court always has an undoubted jurisdiction to relief against every species of fraud. The fraud here is an unconscientious use of the power arising from the circumstance or condition of the parties. – P. O. ADEREMI, J.S.C. Abacha v. Eke-Spiff (2009)

It will be most unconscionable to allow the provisions of statute of limitation to apply in a situation such as this where the 1st plaintiff the allottee was fraudulently denied the service of notice of revocation and more importantly where his application for building approval was never attended to. It is those who denied him all these that now want to reap the fruit of their fraudulent misdeeds. Whatever pact that might be between the 1st and 2nd defendants and the non existent 3rd defendant is loaded with malicious intent and no court will even uphold any pact made from malicious intent. Any wrongful act tending to the damage of another must not receive support in the seat of justice. – P. O. ADEREMI, J.S.C. Abacha v. Eke-Spiff (2009)

It is now settled that pleadings, do not constitute evidence. Where pleadings are not supported by evidence, such pleadings are deemed to have been abandoned. – I.F. OGBUAGU, J.S.C. Abacha v. Eke-Spiff (2009)

It is now settled that the implication where a defendant rests his case on the plaintiffs case, it may mean that: (a) that the defendant is stating that the plaintiff, has not made out any case for the defendant to respond to; or (b) that he admits the facts of the case as stated by the plaintiff or (c) that he has a complete defence in answer to the plaintiffs case. – I.F. OGBUAGU, J.S.C. Abacha v. Eke-Spiff (2009)

What is waiver? The concept of waiver, is that a person who is under no legal liability and having full knowledge of his right or interest, intentionally, decides to give them or some of them up, cannot be heard to complain that he was not permitted to exercise such rights or that he has been denied the enjoyment of those rights. – I.F. OGBUAGU, J.S.C. Abacha v. Eke-Spiff (2009)