DA DALYOP GYANG & ORS. V. THE ATTORNEY-GENERAL PLATEAU STATE & ANOR.
(2013)LCN/6067(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/J/235/2006
RATIO
“Where, as in this case the case is yet to get to the leading of evidence to prove the parties pleadings, the court is not at liberty to interrogate the plaintiffs’ statement of claim with the applicants’ affidavit or oral evidence. The appellants’ statement of claim was very clear as to the land in dispute.” Per AGBO, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
DA DALYOP GYANG & 19 ORS. Appellant(s)
AND
THE ATTORNEY-GENERAL PLATEAU STATE & 1 OR. Respondent(s)
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.
(d) that he further believes that the Defendants/Applicants would not be prejudiced by the refusal of this application.
The parties proceeded to argument and in a considered ruling the trial court held that the suit was statute barred having run afoul of the English Real Property Limitation Act 1875 and struck it out.
Being dissatisfied with this judgment the appellants filed this appeal. In their notice of appeal they raised six grounds of appeal reproduced hereunder: –
(i) The trial High Court erred in Law when it failed to evaluate the evidence of the Plaintiff/Appellants before concluding its Ruling, thus denying the Appellants their rights to fair hearing.
(ii) The trial High Court misdirected itself in Law when it based its Ruling on Exhibit I annexed to the Respondents Affidavit which does not have any, evidence in support of its contents.
(iii) The trial High Court erred in Law when it looked beyond the Plaintiff/Appellants Writ of Summons and their Statement of Claim in determining the time the cause of action arose.
(iv) The trial High Court misdirected itself in Law when it misplaced the burden of proof in the suit.
(v) The trial High Court misdirected itself in Law when it held that “— documentary evidence takes precedence over evidence on oath, in the instant case, the affidavit evidence: and based its Ruling solely on same.
(vi) The Ruling is against the weight of evidence.
From these grounds of appeal the appellants distilled two issues for determination in their brief of argument to wit: –
(1) Whether the trial court was right when it held that documentary evidence takes precedence over evidence on Oath, in the instant case, the Affidavit evidence thereby refusing to evaluate the evidence of the Plaintiffs/Appellants before concluding its ruling.
(2) Whether the trial Court was right when it based its decision on Exhibits “1”, “2” and “3” annexed to the respondents affidavit and nothing more thereby looking beyond the Plaintiff/Appellant writ and statement of claim in determining the time the cause of action arose.
The Respondents filed no brief of argument.
In dealing with this appeal, I will take the two issues together.
In the application challenging the competence of the suit on the ground that it was statute barred, the applicants founded their application on the ground that it was in conflict with the provisions of the English Real property Act 1875 which was applicable in 1965 in Northern Nigerian when according to the applicants the causes of Act arose. When a defendant challenges the jurisdiction of the court to entertain a suit on the ground that the suit is statute barred, the court, to determine the period of limitation, has to look at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with that on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then that action is statute barred. See Nigerian Ports Plc vs. Osinuga [2001] 7 NWLR (Pt.712) 412; Egbe vs. Adefarasin (1987) 1 NWLR (pt.47) 1 and Omotayo vs. NRC [1992] 7 NWLR (Pt.254) 471.
Where, as in this case the case is yet to get to the leading of evidence to prove the parties pleadings, the court is not at liberty to interrogate the plaintiffs’ statement of claim with the applicants’ affidavit or oral evidence. The appellants’ statement of claim was very clear as to the land in dispute. It is the land called Kera or Zangon Shanu. They used to own 15 acres of land which the Northern Regional Government acquired and paid for. The land currently in issue is 6,500 square metres of land. The cause of action arose in 1995 when the Plateau State Ministry of Agriculture and National Resources stopped the appellants from cultivating their said land. The writ of summons was taken out in February 2002 i.e within 7 years from the accrual of the cause of action. HEARING WAS YET TO COMMENCE. It was therefore wrong for the trial court to vest in the appellants the onus to establish in the application the facts contained in their statement of claim which onus can only arise at the commencement of the hearing of the suit. At this point the court had no option but to accept that the facts set out in the statement of claim were correct for the purpose of the application. There was no basis for the interrogation of the plaintiffs’ statement of claim and the finding, based on such interrogation, that the action was statute barred.
This appeal succeeds. The Ruling of the trial court of 30th June 2005 is hereby set aside and in its place an order of dismissal of the motion is hereby entered. The suit is remitted back to the Chief Judge of Plateau State for assignment to another Judge for hearing. N30,000.00 costs to the appellants.
IBRAHIM SHATA BDLIYA, J.C.A.: I entirely agree with the reasoning and conclusions contained in the lead judgment just delivered by my learned brother, AGBO, J.C.A. His Lordship has had exhaustively treated all the issues raised in the appeal. I have nothing useful to add thereto. I allow the appeal for the same reasons contained in the lead judgment. I endorse all the consequential orders contained therein.
PETER OLABISI IGE, J.C.A.: I have read in advance the Judgment just delivered by my noble Lord Agbo, JCA in this appeal. The appeal succeeds, I abide with the order made that the suit be remitted back to the Chief Judge of Plateau State for assignment to another Judge for hearing. I also endorse the order as to the costs of N30,000.00 to the Appellants.
Appearances
Francis N. OkaforFor Appellant
AND
G. D. Fwomyon D.P.P. Plateau StateFor Respondent
