Chief Sunday Oriorio & Ors V. Chief Joseph Osain & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

In the Writ of Summons issued in the Registry of the Rivers State High Court of Justice, Yenagoa Judicial Division holden at Yenagoa on 20th day of February, 1984, the Respondents were plaintiffs and the Appellants were defendants. The plaintiffs sued for themselves and on behalf of the people of Biogbolo in Yelga. The defendants were sued for themselves and on behalf of the people of Edepie also in Yelga.

The plaintiffs (now Respondents) sued the defendants (now Appellants) for:

“1. N100,000.00 (One Hundred Thousand Naira) being special and general damages for trespass in that the defendants on or about February 1983 without the leave or licence of the plaintiffs broke and entered Azi-Biogbolo land which has been in the peaceful possession and ownership of the plaintiffs from time immemorial and cut down economic trees and cash crops and have cleared portions of the said land for farming.

2. A perpetual injunction restraining the defendants, their servants and or agents from further trespass on the land.” See page 5 of the record.

The parties filed and exchanged pleadings. In paragraph 11 of the Statement of Defence, the defendants now Appellants, described the claim as frivolous, speculative, devoid of merit and urged the Court to dismiss same with substantial costs to the defendants.

The plaintiffs opened their case on 6th April, 1987 before Tabai, J. (now Tabai, JSC). Plaintiffs called six witnesses and rested their case on 16/2/87. The defendants opened their case on 12th April 1988, called four witnesses and closed their case on 8/6/88. At the close of copious and extensive addresses of learned Counsel for the parties, the trial Court adjourned the case to 20th September, 1988 for judgment.

In the judgment delivered as scheduled, the trial court, after a review of the case and Counsel’s addresses, concluded thus:

“In conclusion I hold that the sum of N6,000.00 special damages has been proved and so I award the plaintiffs that sum. I also award the sum of N2,000.00 general damages for the trespass committed by the defendants on the plaintiffs’ land.” See Page 57 of the record.

On the claim for perpetual injunction, the trial Court concluded:

“I am reluctant to grant this relief. If the injunction were to affect only farm lands, its grant would have been a matter of course. But since the relief sought is in respect of an area in which there are dwelling houses and a Generator house, I am reluctant to grant it for the reason stated above. In the circumstances of this case, I would rather err on the side of refusing the injunction than granting it. The injunction is therefore refused.” See page 69 of the record.

Both sides were dissatisfied with the judgment of the trial Court. The plaintiffs, now appellants filed a notice and ground of appeal while the respondents, now respondents filed their notice and grounds of cross appeal.

The Court of Appeal Port Harcourt Division, Rivers State, in the judgment delivered on 17th December, 2001 held:

“In the final result, the defendants’ cross-appeal against the decision adjudging them liable in trespass fails and is accordingly dismissed. That decision is affirmed. Their appeal against the order on them to pay special damages of N6,000.00 succeeds and that order is hereby set aside. The plaintiffs’ appeal against the decision refusing to award special damages for the juju shrine and Halmus house is also dismissed. That decision is affirmed. As they had successfully proved trespass against the defendants however, they are entitled to an award of general damages assessed at N2,000. That amount is hereby awarded to them. That shall be the order of the trial Court. As there was no basis for the learned trial Judge’s decision to refuse to make the order of injunction sought, that decision is hereby set aside. In its place is recorded an order of perpetual injunction restraining the defendants, their servants, agents and/or their privies from entering upon and/or further committing any acts of trespass on the land verged brown on survey Plan No. A10/RV021-/86LD dated 20/3/86 and filed by the plaintiffs with their Statement of Claim and received in evidence by the trial Court as Exhibit A.” see page 138 of the record.

Appellants (defendants in the Court of trial) were aggrieved and appealed to this court on four grounds. In accordance with the rules of this court, learned counsel for the parties filed and exchanged briefs of argument.