Engr. U. Aliyu & Ors V. Chief David U. Itauma & Anor (2008)

LawGlobal-Hub Lead Judgment Report

M. A. OWOADE J.C.A

This is an appeal against the judgment of G. K. Olotu J. delivered on the 27th day of June, 2007 at the Federal High Court, Uyo Judicial Division in Akwa Ibom State. The Respondents who were Plaintiffs in the lower court issued a writ of summons against the Appellants/Defendants on 2nd August, 1999, this was followed by a Statement of claim dated 17/7/2000 and filed on 18/7/2000. The 1st Defendant filed a Statement of defence on 24/7/2003 while the 2nd and 3rd Defendants filed their Statement of defence on the same 24/7/2003. The claims of the Plaintiffs (now Respondents) against the Defendants/Appellants crystallized in the Plaintiff’s Amended Statement of claim of 25/4/2005 wherein in its paragraph 27 it states:

27. The Plaintiffs are entitled to compensation, which is being denied them by the Defendants, wherefore they claim against the Defendants jointly and severally as follows:

(a) A declaration that the Plaintiffs, as landlords and shrine owners of the land acquired by the Federal Government for the establishment of the Federal Government Low Cost Housing Estate, Mkpok, Eket are entitled to compensation for the land acquired.

(b)(i) Eleven Million Naira, being the sum approved by the 3rd Defendant as compensation to be paid to the Plaintiffs for the land acquired.

(b)(ii) In alternative to (b) (i) above, the sum of eleven million Naira being this Honourable court’s assessment of reasonable compensation due to the Plaintiffs from the Defendants for the land acquired.

(c) Declaration that the purported list of claimants to compensation purportedly kept by the 2nd and 3rd Defendants, is made up of persons who have no land, shrine, crops or right over the land acquired, and are therefore not entitled to compensation.

The facts of the case are as follows, upon the acquisition of the Plaintiffs/Respondents land by the Government for a Housing Estate project, the Plaintiffs/Respondents by power of Attorney dated 9th November, 1992, appointed the 1st Defendant/Respondent to negotiate for the payment of compensation, working in liaison with the 2nd and 3rd Defendants/Appellants.

Sometimes in 1998, the Plaintiffs/Respondents discovered that false claimants were making moves to collect compensation for the land acquired. Plaintiffs/Respondents wrote Exhibit 3 to the 3rd Defendant/Appellant, re-affirming the authority given to the 1st Defendant/Respondent to collect the compensation on behalf of the Plaintiffs/Respondents. About February, 1999, the 1st and 2nd Defendants informed the Plaintiffs/Respondents that money had been approved for payment of the compensation. While the 1st Defendant/Respondent put the figure at eleven million Naira, the 2nd Defendant/Appellant put it at Nine Million Naira. The Plaintiffs/Respondents contend that the sum due to them as compensation is still in the custody of the 2nd and 3rd Defendants/Appellants. The case of the 2nd and 3rd Defendants/Appellants is that the power of Attorney given to the 1st Defendant/Respondent was revoked by Exhibit 6, while a new one (Exhibit 5) was issued in favour of one Akin Olaifa & Co. The Appellants maintained that the money had been paid over to the said Akin Olaifa & Co. which in turn paid same over to the persons on its list of claimants.

The Plaintiffs/Respondents called only one witness in proof of their claim. The 1st Defendant/Respondent admitted the Plaintiffs/Respondents claim and offered no evidence. The 2nd and 3rd Defendants/Appellants, called two witnesses to testify on their behalf. At the end of the trial, the learned trial Judge found that:

(1) The Plaintiffs have discharged their burden of proof that they are entitled to compensation for their land compulsory acquired against the 2nd and 3rd Defendants only and

(2) The 2nd and 3rd Defendants have failed to discharge their own burden of proof of their defence that they had paid compensation to the Plaintiffs through one Akin Olaifa & Co.

The learned trial Judge at pages 121 – 122 of the record entered judgment for the Plaintiffs/Respondents against the 2nd and 3rd Defendants/Appellants jointly and severally in terms of their Reliefs 27(a) and (b)(i) and refused the Plaintiffs relief 27(c).

In relation to the claim of eleven million Naira being the sum approved by the 3rd Defendant as compensation to be paid to the Plaintiffs for the land acquired, the learned trial Judge observed at page 122 of the record as follows:

“In relief 27(b) Plaintiffs by their pleadings and oral evidence averred that a staff of the 1st Defendants I. M. Ekpa informed them that the Federal Government had approved the sum of N11 Million as their compensation and had released the sum of N3.66 Million to be paid as the 1st instalment. The 2nd and 3rd Defendants denied the averment in their statement of defence but did not adduce any evidence or contradict the averment of the Plaintiffs. The implication is that the averment of the Plaintiffs in this regard is unchallenged and established. This relief 27(b) (i) is therefore granted as prayed.”