Hon. Nze Herbert Osuji Vs Anthony Isiocha (1989)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C. 

The plaintiff claims against the defendants jointly and severally, general damages for malicious destruction of his building on the land leased to him by the defendants’ father, situate at No.2 Owerri/Onitsha Road, Owerri (formerly known as No.1 Owerri/Onitsha Road). The plaintiff claims in paragraph 10 of his statement of claim as follows:-

“10. The destroyed building and shed cost the plaintiff about Sixty Thousand Naira (N60,000) to build and its present value before destruction was about One Hundred Thousand Naira (N100,000),”

and prays for the following relief in paragraph 11 of the Statement of Claim-

11. The plaintiff has suffered an unjust damage and claims from the Defendants jointly and severally N100,000 (One hundred Thousand Naira) being damages.”

The defendants denied the plaintiffs claim. They filed a joint statement of defence.

At the conclusion of the trial the learned trial Judge (Chianakwalam) reviewed and considered the evidence adduced by the parties, made findings of facts and concluded-

“From the evidence before me, I find that the plaintiff has proved his case by balance of probabilities otherwise styled preponderance of evidence. He is entitled to judgment. Accordingly, judgment is hereby entered against the defendants jointly and severally in the sum of N100,000.00 (One hundred thousand Naira) with costs assessed at N500 (Five hundred Naira), which includes plaintiffs out-of-pocket expenses and filing fees.”

Dissatisfied with the judgment of the trial court, the defendants appealed to the Court of Appeal, Enugu, and the Court of Appeal, in a majority judgment delivered by Babalakin, J. C.A., with which Maidama, J.C.A., concurred, dismissed the appeal and confirmed the judgment of the trial court. Akpata, J .C.A., gave a dissenting judgment in which he agreed with the “reasonings and conclusions reached in all but one point” in the majority judgment which “relates to additional Ground 1, particular (iv).” After stating his reasons for doing so, he concluded his dissenting judgment thus –

“The position however is that there was trespass to a structure, a kiosk or a shed. As the remnants of the shed or kiosk may no longer be at the site it will not serve the interest of justice to remit this case to the High Court for retrial. As the learned trial Judge held that there was trespass to the structure in issue, I think, that justice demands that nominal damages be awarded to the respondent. In the circumstances, I award nominal damages of N5,000.00 (Five Thousand Naira), in favour of the respondent.”

The brief facts of the case can be stated thus –

Before 1966, the plaintiff who was at that time a motor driver was driving Chief J.K. Osuji to court and other places. Chief J.K. Osuji was the defendants’ father. And in 1966, apparently in appreciation of the plaintiffs services to him, Chief Osuji agreed to lease to the plaintiff (or a consideration of 30 Pounds and for a period of 60 years, his parcel of land lying and situate at No.2 Owerri/Onitsha Road (then known and called No.1 Owerri/Onitsha Road). The plaintiff went into immediate possession and put up 2 structures, a shed and a 15 bedroom house as per approved plans Exhibit A and B respectively. The 15 bedroom house is occupied by the plaintiff and his tenants while the shed was being used by plaintiff for storing and selling his wares. Both the house and the shed were constructed between 1966 and 1978 when the Defendants’ father, Chief Osuji, was still alive and he raised no objection. The Defendants also did not raise any objection at that time, until November, 1981, after the 1st defendant had been elected into Imo State House of Assembly and was appointed its Leader, when he sent his thugs onto the land to disturb and harass the plaintiff. The plaintiff complained to the Commissioner of Police and the Governor of the State about the incident and asked for protection but to no avail. The final onslaught came on 2nd December, 1982, when the Defendants, accompanied by their thugs, entered the plaintiffs land and destroyed the shed. The plaintiff immediately complained to the Police who advised him to take civil action against the defendants.

From now on, the plaintiff and the defendants will be referred to as the respondent and the appellants respectively.

Both parties filed and exchanged briefs. Learned counsel for the appellants formulated in his brief eight issues for determination while the respondent formulated four issues in his own brief for determination.

The issues formulated by both the appellants and the respondent can be narrowed down to