DA Dalyop Gyang & Ors. V. The Attorney-general Plateau State & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

The appellants in suit No.PLD/J43/2003 pending at the Plateau State High Court, Jos Judicial Division claimed of the defendants in paragraph 36 of their amended statement of claim as follows: –

(a) A declaration that the plaintiffs are customary title owners of all that parcel of land located at and known as Kera or Zagon Shanu along Shen Road, Zawan, Bukuru measuring about 6500 square metres.

(b) An order of perpetual injunction restraining the defendants or their agents from trespassing into the land.

Both parties exchanged pleadings. By a motion dated 8th December, 2004 the defendants sought an order of the trial High Court “Dismissing the claim in this suit on the ground that same is statute barred.” The application was accompanied by a 7 paragraph affidavit which is reproduced in full below:

1. That l am the litigation clerk in the Ministry of Justice, Jos and by virtue of which position I am conversant with the facts and circumstances of this case.
2. That I have the consent and authority of my employers and the Defendants/Applicants to depose to this affidavit herein.
3. That I know as a fact that James Giwa is the counsel handling this matter on behalf of the Defendants/Applicants.
4. That the said James Giwa informed me whom I verily believe to be true as follows: –

(a) That the writ and statement of claim in this matter were filed on the 11th February, 2002.

(b) That on the 24th March, 2003, with leave of court the Plaintiffs/Respondents amended their claim.

(c) That issues have been joined in the matter.

(d) That this suit relate to land lying at Kara or Zangon-Shanu along Shen Road Zawan – Bukuru.

(e) That from paragraphs 4 to 34 of the Plaintiffs claim, the cause of action arose when 15 acres were acquired in 1965 and compensation paid and or on the acquisition of the greater portion which fell within the Mines Reclaimed Area for which compensation had been paid. The letters evidencing the said payments and site plans are herein attached and marked as Exhibits 1, 2 and 3 respectively.

5. That it will be in the interest of justice to grant this application.
6. That the Plaintiffs/Respondents would not be prejudiced if this application is granted.
7. That I depose to this affidavit in good faith.

The Respondents/Appellants filed an 8 paragraph affidavit also reproduced hereunder:-

1. That I am one of the Plaintiffs/Respondents in this matter; and as such very familiar with the facts of this case.
2. That I have the consent of my other Plaintiffs/Respondents to swear to this affidavit.
3. That I know as a fact that we have in quiet possession of the area in dispute from time immemorial
4. That I know that we went through the affidavits in support of the Applicants’ Motion, and we aver here that Exhibits “1”, “2” and “3” are not part of the land in dispute as that much i.e , acres were acknowledged in our statement of claim as having been compensated for.
5. That I know that Exhibit “3” attached to the Applicants’ motion does not reflect the area of land in dispute which is current still in our respective possessions while the remaining area referred to in Exhibit “1” are in the possession and control of the Applicants.
6. That I know that we have never been compensated for more than 15 acres and that is the reason we are still in possession of all the other pieces of land around the 15 acres undisturbed.
7. That I remember that it was just in 1996 that the plateau state Ministry of Agriculture and Natural Resources informed us (Respondents) that the land in dispute belong to it and that they (Respondents) should quit the place; and it was based upon our challenge to the Ministry of Agriculture’s claim of ownership that we were told by one Dr. A. G. Anono of the said Ministry that the land in dispute was given to them by the Jos Local Government Council (now Jos South Local Government Council) which then necessitated our suing the Jos South L.G.C. to court in this suit.
8. That I have been informed by Francis N. Okafor Esq. of counsel to the Plaintiffs/Respondents and I verily believe him as follows:

(a) that at the hearing of this Motion, he would rely on the entire processes in the court’s file in arguing the motion

(b) that he believes that the motion is calculated to frustrate and delay the hearing of this case on its merit.

(c) that he also believes that it would be in the interest of justice to refuse the application.