Ekembai Opuzibau & Ors. V. Isaiah B. Kwokwo & Ors.(2001)

LawGlobal-Hub Lead Judgment Report

NSOFOR J.C.A.

This is an appeal from the decision of the Port Harcourt High Court (F. F. Tabai, J.) in Suit No. YHC/6/82 on the 5th of May, 1994. The plaintiffs, herein respondents, had claimed against the appellants, qua defendants in the trial court, the following reliefs as per paragraph 11 of the statement of claims:-

“a declaration that the plaintiffs are entitled to a right of occupancy under Gbarain customary law to all that piece or parcel of lands known and called Opubuo land and the adjoining Nguasa land situate near the left bank of Taylor Creek in Gbarain clain as shown in the plan No. ECRS/17/78 plea with this statement.

The sum of Two thousand Naira (N2,000)being general damages for trespass in that the defendants between January and April, 1977 without the permission of the plaintiffs broke and entered the said Opubuo land and adjoining Nguasa land and destroyed several economic trees on the said land while tracing survey line across the same.

A perpetual injunction restraining the defendants, their servants and agents from further acts of trespass upon the said lands”.

The plaintiffs sued and prosecuted the action in a representative capacity.

Pleadings were ordered in the suit. They were filed and exchanged. Subsequently, the defendants with leave of court filed an amended statement of defence. The case eventually came on for

trial on the issues joined on the original statement of claim and the amended statement of defence.

The case came before Tabai, J. (as he then was) on the 21st of January, 1987 when the actual hearing commenced. The plaintiffs testified, “viva voce” and called the evidence of other witnesses. In all eight (8) witnesses testified in support of the plaintiffs’ case.

The defendants similarly testified, “viva voce”, and called the evidence of other witnesses. Nine (9) witnesses testified in support of the defence case.

At the conclusion of all the evidence and after receiving the addresses by the counsel, the learned trial Judge reserved his judgment.

In a reserved and considered decision after making an elaborate review of all the evidence, the learned trial Judge acceded to the demands of the plaintiffs. He concluded in the following terms:( See Page 156 line 35, page 157 lines 1 to 12).

” It is my conclusion that the plaintiffs are entitled to the declaration sought over the land as claimed except the Opubou creek or stream from the junction of Okpoba creek upstream which portion of the Opubou stream has been adjudged to be that of the defendants”.

Since the plaintiffs assertion that the defendants entered upon the land and carried out a survey of same in the course of another suit is not denied in evidence there is in my view evidence of trespass for which the plaintiffs are entitled to some damages. And for this purpose I award N300.00 general damages for trespass.