N.O. Motanya & Ors Vs Elijah Elinwa & Ors (1994)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C. 

At the Onitsha High Court the plaintiffs claimed against the defendants jointly and severally as follows:-

“(a) N50,000.00 (Fifty Thousand Naira) being general damages for trespass.

(b) Perpetual injunction restraining the defendants, their servants and agents from further acts of trespass in the land in dispute.”

Pleadings were ordered, filed and exchanged. The case then proceeded to trial.

At the trial both sides led evidence in accordance with their pleadings. The learned trial Judge Awogu J., (as he then was) reviewed the evidence and argument of counsel and found in favour of the plaintiffs on page 164 of the record as follows:-

“I find from the facts before me that the plaintiffs have proved a better title to the land in dispute verged GREEN less the above areas lost as a result of oath-taking.

The area of trespass is shown verged PINK on Exhibit A. The trespass is not denied. What is more, the defendants also admit alienating to others portions of land within the GREEN verge. The plaintiffs put their annual income from the land at N1,000.00 per year and so claim N50,000.00 as damages for trespass. I assess the damage at N10,000.00.

I also grant a perpetual injunction against the defendants, their agents and assigns. The injunction is only in respect of the PINK verge in Exhibit A. The cost of the action is assessed at N500.00 in favour of the plaintiffs.

Dissatisfied with the judgment of the High Court the defendants appealed to the Court of Appeal, Enugu. The Court of Appeal in a unanimous judgment delivered on 14th July, 1988 allowed the appeal and remitted the case to the High Court for trial de novo before another Judge. The present appeal and cross-appeal are against the decision of the Court of Appeal. The plaintiffs have appealed against the whole decision while the defendants have cross-appealed against the order for a re-trial of the case only.

Briefs were filed and exchanged by the parties. Chief Williams, learned Senior Counsel who prepared the plaintiffs’ brief submitted in the brief the following questions for determination:-

“(i) Whether the court below was correct in holding that the learned trial Judge wrongly put the onus of proof on the defendants.

(ii) Were Exhibits J & K wrongly admitted in evidence

(iii) What is the effect of Exhibits J & K on the issues for determination at the trial.