Chief Unoh A. Unoh & Ors v. Nigerian Prisons Service & Ors (2022)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Federal High Court Calabar, Coram Hon. Justice Aneke J. delivered on 31st January, 2013 dismissing the appellants fundamental rights application.

The appellants through an application for enforcement of their fundamental rights filed on 1//6/2011 prayed the lower court for the following reliefs:

1. A declaration that the applicants are entitled to be paid compensation for the acquisition of the portion or piece of land measuring 2016.143 Hectares belonging to the applicants acquired by the Federal Government of Nigeria on behalf of the Nigerian Prison Service for the Adim Prisons Farm Centre, Adim, Biase Local Government Area of Cross River State of Nigeria on or about 1973 by virtue of section 44 (1) of the Constitution of the Federal Republic of Nigeria, 1999, and 14 Articles 21 (1) & (2) of the African Charter on Human and Peoples Right (Enforcement & Ratification) Act, Laws of the Federation of Nigeria, 2004.
2. A declaration that the blatant failure or refusal or neglect of successive administrations of the Federal Government of Nigeria to pay compensation to the Applicants for the acquisition of the said portion of land measuring 2016.143 Hectares which is from the establishment of Adim Prison Centre, Adim, Biase Local Government Area of Cross River State of Nigeria since 1973, despite repeated demands by the applicants is inhumane, unjust, unconstitutional, wrongful, unconscionable and constitutes a gross violation of Section 44 (1) of the Constitution of the Federal Republic of Nigeria (supra) and Article 14 & 21 (1) & (2) of the African Charter on Human and Peoples Right (Enforcement & Ratification) Act (supra).
3. A declaration that the blatant failure, refusal or neglect of successive administrations of the Federal Government of Nigeria to pay compensation for the acquisition of the portion of land measuring 2016.143 Hectares acquired by the Federal Government of Nigeria for the Nigerian Prisons Service, Adim Prisons Farm Centre, Adim, Biase Local Government Area of Cross River State of Nigeria, amounts to the Federal Governments abdication of its responsibility and duty to be humane, fair minded, just and to protect the welfare, security and well being of the citizenry including the applicants and therefore such acquisition which is made without compensation as contemplated by section 44 (1) of the Constitution, supra, and Articles 14 & 21 (1) & (2) of the African Charter on Human and Peoples Right (Ratification & Enforcement) Act (supra) amounts to no acquisition but constitutes acts of trespass on the said land.
4. A declaration that the decision of the 1st respondent to pay the applicants a miserable and paltry sum of N4 million (four million naira) as contained in the 1st respondents letter dated 14th March, 2011, for the acquisition of the plaintiffs/applicants lands measuring 2016.143 Hectares is inhumane, unjust, unconscionable and constitutes a violation of Article 21 (2) of the African Charter on Human and Peoples Right (Ratification & Enforcement) Act (supra) which contemplates payment of adequate compensation for acquisition of land by Government.
5. An order directing the respondents to pay adequate compensation to the plaintiffs/applicants for portion of land measuring 2016.143 Hectares acquired by the Government of Cross River State for the establishment of Adim Prisons Farm Centre, Adim, Biase Local Government Area of Cross River State of Nigeria after negotiation with the applicants on the fair and just compensation payable which is appropriate in accordance with current National and International Best Practices and Standards as enjoined by section 44 (1) of the Constitution of the Federal Republic of Nigeria (supra) and Articles 14 & 21 (1) & (2) of the African Charter on Human and Peoples Right (Ratification & Enforcement) Act (supra) and for such compensation to be paid within six months of the delivery of the judgment in this case.
6. A declaration that the decision of the 1st respondent to pay a miserable and paltry sum of N4 million for the acquisition of the lands belonging to the applicants measuring 2016.143 Hectares located in Ugep, Adim, Idomi and Abini Communities of Biase & Yakurr Local Government Areas respectively of Cross River State of Nigeria based on the provisions of the a purported Public Lands Acquisition Act, 1976 (which Act is no longer in existence) is, oppressive, unbecoming, unconstitutional, unjust, malicious, wanton, wrongful and null and void and constitutes a violation of Article 21 (4) of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act (supra).
7. A declaration that the decision of the 1st respondent to pay the applicants compensation of N4 million as contained in the 1st respondents letter dated 15th March, 2011, which decision was made arbitrarily, capriciously and unilaterally without hearing the applicants constitutes a violation of the right to fair hearing of the applicants as secured, entrenched and guaranteed by section 36 (1) & (2) of the Constitution of the Federal Republic of Nigeria (supra).
8. An order of perpetual injunction restraining the respondents by themselves, their agents, servants and/or officials from paying inadequate compensation for the compulsory acquisition of the applicants’ lands situated/located in Ugep, Adim, Idomi, Abini Communities of Biase & Yakurr Local Government Areas respectively of Cross River State of Nigeria contrary to section 44 (1) of the Constitution of the Federal Republic of Nigeria and Articles 14 & 21 (1) (2) of the African Charter on Human and Peoples Right (Ratification & Enforcement) Act (supra).
9. General/exemplary damages of N1 billion (one billion naira) for oppression and violation of the fundamental rights of the applicants as cognizable by sections 36 (1) & (2) & 44 (1) of the Constitution of the Federal Republic of Nigeria (supra) and Articles 14 and 21 (1) & (2) of the African Charter on Human and Peoples Rights (Enforcement and Ratification) Act (supra) by the Federal Government of Nigeria/respondents by their unjustifiable failure, refusal or neglect to pay compensation for the acquisition portion of land measuring 2016.143 Hectares acquired by the Federal Government of Nigeria for the establishment of the Adim Prisons Farm Centre, Adim, Biase Local Government Area of Cross River State of Nigeria in 1973 (37 years now) which has denied or deprived the plaintiffs/applicants the right to use the said land for farming and other purposes which has resulted in their impoverishment.
10. An order setting aside the 1st respondents letter dated 14th March, 2011.

The 1st respondent in defence of the appellant’s action filed a notice of preliminary objection, affidavit in support and written address on 14/11/2011 and had further on 8/5/2011 filed a counter-affidavit and a written address in opposition to the appellant’s substantive application.

Both processes were regularized with the leave of court. The 2nd respondent also sought and was granted leave to file his counter-affidavit.

However, on the day of adoption of all the processes, counsel to the appellants raised an oral objection contending that the lower cannot countenance the counter-affidavit and written address of the 1st respondent because the 1st respondent has waived its right to file them having earlier filed a preliminary objection without its counter-affidavit challenging the affidavit in support of the main application.

The said objection was overruled and the trial court held that it cannot shut its eyes to the 1st respondents processes already regularized and that striking out the processes would not accord with the dictates of substantial justice between the parties. The court thereafter proceeded to consider the merits of the substantive application.

In a reserved and considered judgment delivered on 9th July, 2012, learned trial Judge dismissed the application on page 165 of the record of appeal as follows:

“In all, I find no merit in this application and issue No.2, is therefore resolved in favour of the respondents and against the applicants and accordingly this suit is hereby dismissed.

Dissatisfied with the above decision, appellants filed this appeal on 6/2/2013 based on four (4) grounds of appeal located on pages 166-175 of the record of appeal.

Parties filed and exchanged briefs of argument. In the appellant’s brief of argument filed on 19/7/2013, settled by Chief Okoi O. Obono-Obla the following four issues are formulated for determination of this appeal:

1. Was the learned trial Judge right when he held that the filing of an affidavit supporting the notice of preliminary objection simultaneously with a counter-affidavit and a written address opposing the main and substantive application by the 1st respondent is competent because it would amount to clinging to technicalities to hold otherwise?
2. Was the learned trial Judge correct when he held that the offer of the sum of N4 million by the 1st respondent as evidenced by exhibit ADM I attached to the 1st respondents counter-affidavit was not an admission by the 1st respondent to pay compensation but to contain the restiveness of their host communities and safeguard their facilities from unnecessary and wanton destruction?
3. Was the learned trial Judge right when he held that from the totality of affidavit evidence of the parties and exhibits attached as well as the submission of the respective counsel placed before the court, does not justify the appellants claim that the Federal Government of Nigeria through the 1st respondent had not paid compensation for the land?
4. Was the learned trial Judge right when he held that the appellants had placed nothing before him to establish conclusively that the sum of N268,814.23 (two hundred and sixty-eight thousand, eight Hundred and fourteen naira, twenty-three kobo) earlier paid in 1976 by the 1st defendant/respondent was for economic trees.

V. C. Oche, Esq. counsel for the 1st respondent in the 1st respondents brief deemed filed on 28/9/2015 also formulated four issues for the determination of this appeal as follows:

1. Whether the learned trial Judge was right in accepting the 1st respondent’s counter-affidavit and written address to the substantive motion which was filed separately after the preliminary objection was filed.
2. Whether there was evidence before the learned trial Judge attesting to the payment of compensation to the appellants.
3. Whether there was evidence before the learned trial Judge attesting to the restiveness of the appellants community.
4. Whether the appellants placed any evidence before the trial court to support their claim that the sum of two hundred and sixty-eight thousand eight hundred and fourteen naira, twenty three kobo (N268,814.23k) paid to the since 1976 was for Economic trees.

Taiwo Abidogun, Esq. counsel to the 2nd respondent in the 2nd respondents brief deemed filed on 23/9/2014 formulated four issues as well for the determination of this appeal thus:

1. Whether the learned trial Judge was wrong not to have discountenanced the 1st respondents counter-affidavit and written address in opposition to the appellants; substantive application filed out of time but with leave of court, and after filing the Notice of preliminary objection.
2. Was the learned trial Judge correct when he held that the offer of N4 million by the 1st respondent as evidenced by exhibit ADM I attached to the 1st respondents counter-affidavit was an admission by the 1st respondent to pay compensation but to contain the restiveness of their host communities and safeguard their facilities from unnecessary and wanton destruction.
3. Was the learned trial Judge right when he held that from the totality of affidavit evidence of the parties and exhibits attached as well as the submissions of the respective counsel placed before the court, does not justify the appellants claim that the Federal Government of Nigeria had not paid compensation for the land?
4. Was the learned trial Judge right when he held that the appellants had placed nothing before him to establish conclusively that the sum of N268,814.23 (two hundred and sixty-eight thousand, eight hundred and fourteen naira, twenty three kobo) earlier paid in 1976 by the 1st respondent was for Economic trees?

I have carefully considered the record alongside the three sets of formulations above. The said three sets of formulations are seemingly the same except for semantics. I will therefore utilize the appellant’s issues Nos. 1 and 2 as well as the 1st respondents issue No.4 in determining this appeal as their respective issue No.3 can conveniently be accommodated in the said 1st respondents issue No.4.