A Makurdi High Court presided by Honourable Justice Sampson Itodo, has fixed 5th March, 2021, for ruling on interlocutory application seeking to restrain Nigeria Air Force (NAF) from erecting a perimetre fence round the disputed land and further destroying property and economic trees at Tse Poor Community, Mbanima, Ugondo District, Makurdi Lical Government Area (LGA) of Benue State.
The application, which is in form of Notice on Motion was moved by Chief Dr. Mbafan Caroline Ekpendu Esq, on behalf of the plaintiffs to wit Philip Poor, Tarshar Cheku, Joseph Utsershima, for themselves and on behalf of Tse Poor Community, Mbanima, Ugondo District, Makurdi LGA of Benue State (plaintiffs/applicants) against the Chief of Air Staff (CAS) NAF Headquarters, Air Officer Commanding (AOC) Tactical Air Command (TAC) NAF Makurdi, the Honourable Minister Ministry of Defence Abuja, Executive Governor of Benue State, Deputy Governor of Benue State and Chairman, Benue State Boundary Committee, Attorney General of Benue State, Commissioner of Lands, Survey and Solid Minerals, Makurdi, Benue State (listed as 1st, 2nd, 3rd, 4th, 5th, 6th, 7th defendants/respondents respectively).
Brought pursuant to Order 39 Rule 1 of the Benue State (Civil Procedure) Rules 2007, the motion, which is dated 10th November, 2020 is supported by a 24 Paragraph affidavit to which four exhibits are attached.
Dr. Ekpendu, in urging the court to grant the application, drew the attention of the court to the fact that in the course of pendency of the application, the 1st, 2nd and 3rd defendants/respendonts have been carrying out acts inimical to the very essence of the application.
According to the learned counsel to the plaintiffs/applicants, contrary to the directive of the court that the status quo be maintained, nothing has changed as the defendants have damned the consequences as they destroy economic trees, property while erecting the fence as well as constant harassment of the locals because they are carrying guns.
It was the contention of Dr. Ekpendu, that the defendants/respondents have not filed a competent counter affidavit or written address before the honourable court, in response to her application and urged the court to so hold.
She explained that the court has clearly provided by Order 39 Rule 3 of Civil Procedure Rules, that a party intending to oppose an application shall do so within Seven days upon service of same through a written address and the defendants have failed to do so.
Dr. Ekpendu, therefore, submitted that there is no counter affidavit before the court and urged the court to grant her application in the interest of justice.Benny Chabki, State Counsel appearing for the 1st, 2nd and 3rd Respondents urged the court to refuse the application.
His 27 Paragraph counter affidavit, supported by a written address to that effect was filed on 14th January, 2021.Reacting to the argument that the defendants have no counter affidavit before the court and or have filed out of time, Chabki drew the attention of the court to the dictum of Nikitobi JSC (as he then was), reported in 1993, that humans by nature are liable to fumble and same cannot affect the competence of the court.
He however, admitted failure to take advantage of the remedy to seek leave of court to file processes out of time.Chabki, nevertheless prayed to be heard under the principle of fairness and justice.
Having listened to arguments by counsels for the partiea adjournes the matter for 5th March, 2021, for ruling.
It could be recalled that the Tse Poor community have severally protested destruction of their property and fencing of their land, thereby encapsulating them by the NAF.