Lawrence Okafor V Felix Nnaife (1987)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C.

The present Appellants were Defendants in the Onitsha High Court Suit No. 0/107/77. In that Suit the Plaintiff now Respondent claimed as follows:-

“(i) A declaration that the Defendants as customary tenants of the Plaintiffs according to native law and custom have no right, to put tenants on the Plaintiff’s land or farm outside their homesteads or utilize or cut economic trees on the said land without obtaining Plaintiff’s permission.

(ii) A declaration that according to the said native law and custom their holdings revert to the Plaintiff on their vacating the land.

(iii) N600.00 damages for trespass.

(iv) An injunction to restrain the Defendants, their servants and agents from putting tenants on the Plaintiff’s land or utilizing economic trees thereon or doing other acts therein inconsistent with their position as such customary tenants.”

Pleadings were ordered, filed and exchanged, and after due hearing on relevant evidence the learned trial judge found inter alia at pp. 23 and 24 of the copy of the judgment attached as Ex. D:-

(i) “. . . None of the Defendants can now challenge the title of the Plaintiff over Ogbundo land, just as they can no longer deny being customary tenants of the Plaintiff at Armagu Settlement in Ogbundo…….”

(ii) “Not having proved to be the owners of the Pink verge and also denying to be customary tenants of the Plaintiff, the Defendants have offered no explanation as to the basis of their presence in the- Pink verge and so are deemed to be trespassers. Accordingly the claim of the Plaintiff for N600.00 damages for trespass against the defendants jointly and severally succeeds and is hereby granted…….”

(iii) “On injunction, the plaintiff seeks to restrain the defendants from putting tenants on Ogbundo land or utilizing the economic trees thereon. The other “acts” sought to be restrained were not clearly defined. Accordingly I hereby grant a perpetual injunction restraining the defendants, by themselves, their servants and agents from putting tenants on Ogbundo land or utilizing the economic trees on the land verged Pink in Exhibit A (and also Pink in Exhibit J)………”

It is important to observe that for the purposes of the present appeal it is not necessary to decide whether the above findings and judgment of the trial Court were right or wrong as the only issue now on appeal is the rather limited issue of whether the Court below was right “in dismissing the motion praying a Stay of Execution of the judgment of the High Court”.

Having lost in the Onitsha High Court, the Defendants filed an appeal against the entire High Court judgment to the Court of Appeal Enugu Division. During the pendency of that appeal the Defendants brought a motion before the Onitsha High Court for “Stay in respect of injunction”. After hearing the parties who relied on their Affidavit and Counter Affidavit the learned trial judge, Awogu, J.. (as he then was) held:-

“Court: I am satisfied that the Applicants may no doubt have existing crops on the land in dispute. In view of the difficulty which the order of injunction may create in terms of the crops, the order of injunction will become operative with effect from May 1, 1987. The order in respect of putting tenants and cutting economic trees is not affected by this modification.”

Apparently dissatisfied with the Ruling of the Onitsha High Court on their “motion for a stay in respect of injunction,” the Defendants filed a fresh motion in the Court of Appeal praying “for an order that the judgment in the above suit, to wit, an order of perpetual injunction against the Appellants/Applicants be stayed pending determination of the appeal”. What were the reasons given by the Appellants/Applicants for their renewed application for a stay of the order for injunction Paragraphs 1 to 8 of their affidavit in support of their motion merely recounted the history of the case. Only paragraphs – 9, 10, 11 and 12 can be said to be in any sense connected with the present application. I will reproduce these paragraphs:-