UNOH & ORS v. NIGERIAN PRISONS SERVICE & ANOR (2022)

UNOH & ORS v. NIGERIAN PRISONS SERVICE & ANOR

(2022)LCN/16592(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, April 01, 2022

CA/C/182/2013

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. CHIEF UNOH A. UNOH 2. MR. EGONG OMALEKO 3. CHIEF CHRISTOPHER IYAM EGU 4. CHIEF KENNETH BASSEY UBI 5. OBOL DANIEL ETOWA ARIKPO 6. CHIEF BASSEY EYONG 7. MR. WILLIAM IDAM 8. CHIEF IBOR EYONG IBOR 9. HON. EYONG OFEM IKONA (FOR THEMSELVES AND ON BEHALF OF THE FAMILIES FROM ADIM & ABINI OF BIASE LOCAL GOVERNMENT AREA, CROSS RIVER STATE OF NIGERIA AND IDOMI & UGEP OF YAKURR LOCAL GOVERNMENT AREA OF CROSS RIVER STATE OF NIGERIA WHOSE 2,160 ACRES OF LAND WAS COMPULSORILY ACQUIRED BY THE FEDERAL GOVERNMENT OF NIGERIA FOR THE ADIM PRISON FARM CENTRE OF THE NIGERIAN PRISON SERVICE) APPELANT(S)

And

1. NIGERIAN PRISONS SERVICE 2. ATTORNEY GENERAL OF THE FEDERATION OF NIGERIA RESPONDENT(S)

RATIO

THE GUIDING PRINCIPLES ON WHEN THE EVALUATION OF EVIDENCE BY A TRIAL JUDGE IS IN ISSUE

The law is trite that when the evaluation of evidence by a particular trial Judge is in issue or being challenged the guiding principles are as follows:-
(i) Whether the evidence is admissible;
(ii) Whether the evidence is relevant,
(iii) Whether the evidence is credible,
(iv) Whether the evidence is conclusive,
(v) Whether the evidence is probable than that given by the other party.
See TUKUR V. UBA & ORS (2012) LPELR – 9337 (SC).

It is thus the primary duty of the trial Court to fully consider the totality of the evidence of both parties placed before the Court on an imaginary scale of justice and weigh it to determine the party in whose favour the scale tilts by making necessary findings of facts and then come to a logical conclusion. PER SHUAIBU, J.C.A.

WHETHER OR NOT THE COURT CAN RAISE AN ISSUE SUO MOTU

In our adversarial system of adjudication, Courts should be reluctant or loath to raise issues suo motu. If however, a Court raises an issue suo motu, it has removed itself from the exalted position to flirt with the parties and in the course get itself soiled in the litigation. This does not mean that a Court of law is totally inhabited from raising issues suo motu. It can and in relevant circumstances. In fact, there could be a situation where the case cannot be determined one way or the other resolving the issue. In such a situation, a Court is competent to raise it to enable it determine the case. In other words, the Court has jurisdiction to raise an issue suo motu, it has no jurisdiction to resolve the issue suo motu. Thus, the Court must give an opportunity to the parties to react to the issue by way of address. See STIRLING CIVIL ENGINEERING (NIG) LTD V. YAHAYA (2005) LPELR–3118 (SC). In OMOKUWAJO V. F.R.N (2015) 9 NWLR (prt 1359) 300 at 332, the Supreme Court has held that though a Court would be wrong to decide on issues not raised by the parties, without giving the parties a hearing, it would not be necessary to give the parties a hearing when a Court raises on its own motion or suo motu if:
(a) The issue relates to the Court’s own jurisdiction.
(b) Both parties are or were not aware or ignored a statute which may have bearing on the case. That is to say where, by virtue of statutory provision the Court is expected to take judicial notice under Section 73 of the Evidence Act.
(c) On the face of the record, serious questions of the fairness of the proceedings is evident. PER SHUAIBU, J.C.A.

THE BURDEN OF PROOF IN CIVIL CASES

The burden of proof in civil cases has two distinct facets, the first is the burden of proof as a matter of law and the pleadings often termed as the legal burden of establishing a case, the second is the burden of proof of adducing evidence usually described as the evidential burden. While the legal burden of proof is static and never shifts, the evidential burden of proof shifts as the scale of evidence preponderates. See EKWEOZOR & ORS V. REGISTERED TRUSTEES OF THE SAVIOURS (2020) LPELR – 49568 (SC).

By virtue of Section 131, (1) of the Evidence Act 2011, the primary onus of proof in a civil case lies on the plaintiff who are now the appellants in this case. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (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 Government’s 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 respondent’s 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 respondent’s 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 respondent’s letter dated 14th March, 2011.

The 1st respondent in defence of the appellants’ 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 appellants’ 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 respondent’s 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 respondent’s 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 respondent’s 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 respondent’s 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 respondent’s 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 appellants’ issues Nos 1 and 2 as well as the 1st respondent’s issue No.4 in determining this appeal as their respective issue No.3 can conveniently be accommodated in the said 1st respondent’s issue No.4.

ISSUE ONE
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?
The contention of the appellants on this issue is that the 1st respondent having filed notice of preliminary objection supported by an affidavit, it cannot again filed a counter-affidavit and written address opposing the substantive application. Counsel relied on Order 8 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 in submitting that after taking an objection to the jurisdiction of the Court to hear and determine the case of the appellants, the 1st respondent was barred from further filing a counter-affidavit and written address to the main application.

He further submitted that where there is a clear breach of a substantial point of law that goes to the root of litigation, it cannot amount to the adverse side using technicality as a bait. In other words, when the law presumes a fact on the satisfaction of certain conditions, a party who seeks to take advantage of such presumption must satisfy the conditions. And it is by no means a technicality to insist that such conditions must first be satisfied. In aid, counsel relied on the authority in the case of ARJANDAS HIRANAND MELWANI V. FIVE STAR INDUSTRIES LTD (2007) SC 120 to contend that failure to comply with statutory requirements constitutes a fundamental defect which renders the proceedings null and void.

On its part, the 1st respondent contended that the Court’s adjudicatory duty is to look at all processes placed before it and to refuse to do so would be tantamount to denial of justice. Counsel referred to ODEH V. F.R.N. (2008) 13 NWLR (Prt.1103)1 to the effect that dispensation of justice on the pedestal of technicalities is no longer fashionable. Thus, the trial Court was right in allowing the processes filed out of time in order to meet the end of justice.

Learned counsel for the 2nd respondent on his part contended that as at the time the appellants’ counsel made the objection, the trial Court had become factus officio and therefore could not have validly raised an objection urging the Court to discountenance the 1st respondent’s counter-affidavit and written address in opposition to the appellants’ substantive application without appealing against the order granted 1st respondent to regularize its processes.

Still in argument, counsel submitted that there is no provision under the Fundamental Rights (Enforcement Procedure) Rules 2009 which prohibits the 1st respondent from supporting its preliminary objection with an affidavit and that the 1st respondent according to learned counsel has met the conditions as stipulated in Order 8 of the extant Fundamental Rights (Enforcement Procedure) Rules.

As stated earlier, the appellants’ complaint is that the 1st respondent has two alternatives under Orders 2, and 8 of the Fundamental Rights (Enforcement Procedure) Rules 2009 that is either to file a preliminary objection and/or file a counter-affidavit to the substantive application but not both at the same time.
The provisions of Order VIII of the Fundamental Rights (Enforcement Procedure) Rules 2009 deals with notice of preliminary objection disputing the Court’s jurisdiction. Rules 2–4 thereof provides for the mode of raising the preliminary objection as follows:
“2. The respondent’s notice of preliminary objection must be filed along with the counter-affidavit to the main application.
3. Where the respondent elects, not to file a counter-affidavit to the main application, the Court shall presume that the respondent has accepted the facts presented by the applicant.
4. On the date of hearing the preliminary objection shall be heard along with the substantive application.”
Furthermore, Order II Rule 6 thereof provides that:-
“6. Where the respondent intends to oppose the application, he shall file his written address within 5 days of service on him such application and may accompany it with a counter affidavit.”
It is thus clear from the above that a respondent who is challenging the jurisdiction of the Court shall file his preliminary objection along with the counter-affidavit to the main application and at the hearing, both the preliminary objection and the substantive application will be taken together and decided by the Court in accordance with Rules 5 and 6 of the Fundamental Rights (Enforcement Procedure) Rules 2009. The 1st respondent in my view has strictly followed the procedure in Order VIII Rule 2 aforesaid by filing the preliminary objection with its counter-affidavit to the main application. It is therefore a misconception for the learned counsel for the appellant to assume as he did that the 1st respondent cannot take the two alternatives contemporaneously. I repeat, he has strictly complied with the applicable law and same cannot be described as having a second bite at the cherry. Issue one is resolved against the appellants.

ISSUE TWO
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 respondent’s 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?
The appellants’ contention here is that there was no evidence before the trial Court to the effect that they threatened to use extra-legal means to get the 1st respondent pay compensation but that there was ample evidence of the 1st respondent commending their peaceful deposition and demand for the payment of compensation through legitimate means relying on Exhibit “ADM I” attached to the 1st respondent’s counter-affidavit. Counsel therefore submitted that the learned trial Judge never properly appraised and evaluated the evidence before the Court otherwise the Court could not have come to the conclusion that the appellants were offered the sum of N4 Million as compensation because they were threatening violence.

Still in argument, counsel submitted that the issue that the offer of N4 Million was made by the 1st respondent because the appellants had threatened violence and unrest was not borne out by the evidence but was raised, suo motu and resolved against the appellants without affording them an opportunity of been heard which contravened the provision of Section 36 of the Constitution.

In further argument, counsel submitted that the offer of N4 Million after intense negotiation between the appellants and 1st respondent amounts to clear and unambiguous admission that the 1st respondent never paid compensation to the appellants for acquisition of their land as there is a clear distinction between payment of compensation for economic trees and payment of compensation for the land acquired.

On behalf of the 1st respondent, it was contended that all through the exchanged processes and documents, the payment of and receipt of the sum of N268,814.23 being previous compensation collected was not admitted by the appellants until the 1st respondent brought that fact to light in its counter-affidavit. Counsel submitted that where a party suppresses evidence, it will be presumed to be injurious to their case relying on Section 167 (d) of the Evidence Act, 2011.

As regards to the contention whether the payment of N4 Million was for economic trees and not compensation, counsel submitted that the burden of proving that fact is squarely on the shoulders of the appellants. He referred to Section 131 (1) of the Evidence Act, 2011 and the cases of ONUIGBO V. NWEKESON (1993) 3 NWLR (prt.283) 533 and AKINFOSILE V. IJOSE (1960) SCNLR 447.

Learned counsel for the 2nd respondent has reiterated the position canvassed by the 1st respondent that the plaintiff must succeed on the strength of his case and not on the weakness of the defence. He submitted further that several pieces of evidence abound on which the learned trial Judge relied on in arriving at his findings that the efforts of the 1st respondent to contain the restiveness of their host communities and safeguard their facilities from unnecessary and wanton destruction accounted for the offer of payment of N4 Million. He referred to Exhibit “ADM I” as well as paragraph (g) (h) and (i) of the 1st respondent’s counter-affidavit to the effect the issue of offering N4 Million being compensation because the appellants were threatening violence was not raised suo motu by the trial Court.

The law is trite that when the evaluation of evidence by a particular trial Judge is in issue or being challenged the guiding principles are as follows:-
(i) Whether the evidence is admissible;
(ii) Whether the evidence is relevant,
(iii) Whether the evidence is credible,
(iv) Whether the evidence is conclusive,
(v) Whether the evidence is probable than that given by the other party.
See TUKUR V. UBA & ORS (2012) LPELR – 9337 (SC).

It is thus the primary duty of the trial Court to fully consider the totality of the evidence of both parties placed before the Court on an imaginary scale of justice and weigh it to determine the party in whose favour the scale tilts by making necessary findings of facts and then come to a logical conclusion.

The appellants’ contention as stated earlier is that there was no evidence before the trial Court to warrant the findings that they were offered N4 Million by the 1st respondent as compensation to douse tension and threatened violence by the host communities. And that the issue was raised suo motu.

In our adversarial system of adjudication, Courts should be reluctant or loath to raise issues suo motu. If however, a Court raises an issue suo motu, it has removed itself from the exalted position to flirt with the parties and in the course get itself soiled in the litigation. This does not mean that a Court of law is totally inhabited from raising issues suo motu. It can and in relevant circumstances. In fact, there could be a situation where the case cannot be determined one way or the other resolving the issue. In such a situation, a Court is competent to raise it to enable it determine the case. In other words, the Court has jurisdiction to raise an issue suo motu, it has no jurisdiction to resolve the issue suo motu. Thus, the Court must give an opportunity to the parties to react to the issue by way of address. See STIRLING CIVIL ENGINEERING (NIG) LTD V. YAHAYA (2005) LPELR–3118 (SC). In OMOKUWAJO V. F.R.N (2015) 9 NWLR (prt 1359) 300 at 332, the Supreme Court has held that though a Court would be wrong to decide on issues not raised by the parties, without giving the parties a hearing, it would not be necessary to give the parties a hearing when a Court raises on its own motion or suo motu if:
(a) The issue relates to the Court’s own jurisdiction.
(b) Both parties are or were not aware or ignored a statute which may have bearing on the case. That is to say where, by virtue of statutory provision the Court is expected to take judicial notice under Section 73 of the Evidence Act.
(c) On the face of the record, serious questions of the fairness of the proceedings is evident.

In paragraph 4 (g), (h) and (l) of the 1st respondent’s counter-affidavit on pages 83-84 of the record, it averred as follows:-
“(g) That in order to secure the prison facility on the land and also maintain the existing cordial relationship with the communities, a committee was set up to visit the communities and to meet with the leaders/representatives thereof with a mandate to proffer lasting settlement.
(h) That the 3 men committee comprising the legal Adviser, Barr. Sam. C. E. Obong, D. C. P. S.M. Bello and A.C.G. (ITP) S. M. Argungu visited the community and held a meeting with leaders of the communities sometimes in June 2009.
(l) That the 1st respondent being well aware of the previously paid compensation was still ready to discuss and settle amicably with the applicant to forestall disturbance of her facility at the locus in quo.”

Furthermore, in Exhibit “ADM I” attached to the 1st respondent, it was inter alia recommended that some staffers who are causing problems by instigating the people against it be transferred. This clearly shows that on the face of the record, serious questions of fairness of the proceedings is evident. Similarly, that the issue of payment of compensation because of restiveness and threatened violence was borne out from the affidavit evidence placed before the trial Court.

The next germane issue is whether Exhibit “ADM I” established an admission by the 1st respondent that compensation has not been paid. Let me restate that Exhibit “ADM I” which was attached to the 1st respondent’s counter-affidavit contains recommendations by the 3 men committee set by it to interface and mediate with the leaders of the host communities to forestall violence and secure its facility.

The general rule is that when a fact is pleaded by the plaintiff and admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. However, for an admission to be binding on a party, it must be clear, unconditional and unequivocal. In ODUTOLA & ANOR V. PAPERSACK (NIG) LTD (2006) LPELR–2259 (SC) it was held that an admission against interest in order to be valid in favour of the adverse party must not only vindicate or reflect the material evidence before the Court, it must also vindicate and reflect the legal position.

In the instant case, the purported admission neither vindicates the material evidence nor reflect the legal position. In other words; it was quite opposite to an admission against interest. Issue two is also resolved against the appellants.

ISSUE THREE
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 them since 1976 was for Economic trees.
The appellants’ contention is that the findings of the trial Court based on the totality of the affidavit evidence placed before it does not justify the appellants’ claim that the Federal Government of Nigeria through the 1st respondent had not paid compensation to the appellants was erroneous. On the contrary, a dispassionate appraisal of the evidence shows that the 1st respondent admitted that the payment of N268,814.23k was for Economic trees and that payment of Economic trees cannot be equated with compensation. Counsel referred copiously to Exhibits NPS, 3 NPS 6 and NPS 7 attached to the affidavit in support of the appellants’ application in submitting that what was paid was for damages suffered by the appellants arising from the destruction of economic trees and crops when the land acquired was cleared by the 1st respondent. He also submitted that had the trial Court dispassionately appraised the affidavit evidence of the appellants, it would have come to the conclusion that they have established their case.

Learned counsel for the 1st respondent maintained that the offer of N4 million by 1st respondent to the appellants was all in an effort to bring peace and contain restiveness in the community which position has not been countered by the appellants. He submitted that unchallenged evidence stands and the Court should accept and act on it.

Aligning himself with the submission of the 1st respondent, counsel to the 2nd respondent also submitted that the affidavit evidence placed before the trial Court clearly show that the Federal Government paid compensation in 1976 to the appellants. Counsel referred to the averment in paragraph 4 (d), (e) and (k) of the 1st respondent’s counter-affidavit as well as paragraphs 9 and 10 of the 2nd respondent’s counter-affidavit to contend that the appellants expressly admitted receiving the sum of N268,814.23k from the Federal Government being compensation for the acquired land.

He further submitted that it is strange and intriguing that the appellants since after the payment of compensation for economic trees in 1976 waited for another thirty-three years before purporting to demand for compensation for the acquired land.

The burden of proof in civil cases has two distinct facets, the first is the burden of proof as a matter of law and the pleadings often termed as the legal burden of establishing a case, the second is the burden of proof of adducing evidence usually described as the evidential burden. While the legal burden of proof is static and never shifts, the evidential burden of proof shifts as the scale of evidence preponderates. See EKWEOZOR & ORS V. REGISTERED TRUSTEES OF THE SAVIOURS (2020) LPELR – 49568 (SC).

By virtue of Section 131, (1) of the Evidence Act 2011, the primary onus of proof in a civil case lies on the plaintiff who are now the appellants in this case.

Now the pertinent question is does the appellants as plaintiffs before the trial Court discharge their primary burden of proof? In paragraphs 6 to 14 of the affidavit in support of the application on pages 14–15 of the record, it averred as follows:-
6. That since the compulsory acquisition of these parcels by the Federal Government of Nigeria, these families/communities have been deprived of the use of these lands for agricultural purposes.
7. That the applicants have continuously exerted pressure on the Federal Government of Nigeria to pay them compensation which culminated in their instructing their solicitors in 2009 to formally write a letter to the 1st respondent demanding payment of compensation. A copy of the said letter is attached herewith and marked as Exhibit NPS 2.
8. That both applicants and the 1st respondent exchanged several correspondences on the subject matter in the course of their constructive engagement which culminated in the 1st respondent’s letter dated 14th March, 2011. The letter of the 1st respondent dated 14th March, 2011 is attached herewith and marked as Exhibit NPS 3.
9. That some of these correspondences that are relevant are attached herewith and marked as EXHIBITS NPS 4–6 respectively.
10. That the applicants have rejected the decision of the 1st respondent to pay compensation of N4 Million for acquisition of these lands. The reply of the applicants to the 1st respondent’s letter dated 18th March 2011 is attached herewith and marked as EXHIBIT NPS 7.
11. That between 1973 and 2011 when the 1st respondent took the decision to pay compensation is 38 years.
12. That I know as fact that the decision to pay the plaintiffs/applicants compensation of N4 Million is unreasonable and unconscionable taking into accounts that the 1st respondent has withheld payment of compensation to the applicants for 38 years.
13. That the 1st respondent did not hear the applicants before it took the decision to pay N4 Million as compensation after 38 years.
14. That the 1st respondent did not explain how it arrived at the decision to pay the sum of N4 Million as compensation to the applicants after 38 years.

It is pertinent to state that the totality of the evidence presented by the appellants did not support the claim before the lower Court. This is premised on the fact that the burden of proof is only discharged when a party persuades the Court that his version of the fact is more probable than that of his opponent. Thus, his case must be of such a nature that the Court after weighing the evidence of both parties must find the preponderance of evidence tilts in his favour. See Section 134 of the Evidence Act.

I have found elsewhere in this judgment that the 1st respondent offered N4 Million to assuage the appellants and douse tensions in the respective communities after the previous payment of compensation for the acquired land. I therefore have no hesitation in agreeing with the learned trial Judge when he found on page 164 of the record that:
“It is indeed intriguing and contrary to common sense that the applicants since after the purported payment of compensation for economic trees in 1976 waited for another thirty-three 33 years before demanding for compensation for the acquired land as per Exhibit “ADM 2” attached to the counter affidavit of the 1st respondent”.

The appellants in the instant case had woefully failed to discharge their primary burden of proof. However, the trial Court on its part had carried out a meticulous and thorough analysis of the affidavit evidence presented by both parties after assigning them to their respective pans in the imaginary scale of justice. Issue three is as well resolved against the appellants.

Having resolved all the three issues against the appellant, the destiny of the appeal is an outright dismissal. I hereby dismiss the meritless appeal.
Parties shall bear their respective costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in draft, the lead judgment of my learned brother Shuaibu, JCA and I agree with him that there is want of merit in this appeal. I join him in dismissing the appeal.

BALKISU BELLO ALIYU, J.C.A.: I read before now, in draft, the judgment just delivered by my learned brother, M. L. Shuaibu, JCA. I totally agree with his reasoning and conclusion reached and I adopt them as mine in also dismissing this appeal for lack of merit. I affirm the judgment of the Federal High Court, sitting at Calabar, delivered on the 1st June, 2011. I abide by the order of no cost.