James Onwe & Ors V. James Oge & Ors (2017)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of B.A.N. Ogbu J., of the High Court of Justice, Ohaukwu Judicial Division, Ebonyi State of Nigeria rendered on 28th April, 2009 wherein the learned trial Judge held at pages 163 to 164 of the printed record as follows:

“It is settled law that the principle upon which the Court acts in granting interlocutory injunctions must be strictly observed and it is impossible to lay down any general rule by which the discretion of the Court ought in all cases, to be regulated; but it must be borne in mind that injunctions are not granted as a matter of course. See MISSINI?s case supra.

In the peculiar facts and circumstances of this application, the discretionary power of injunction of this Court shall be issued against the Respondents because it is just and convenient to do so. Accordingly the Respondents particularly the 9th Respondent are hereby restrained from further continuing to carry quarry operations in respect of the stone deposits on the following lands viz Akuma Aja family land, Ituma Ogayi family land, Ituma Igboke family land

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and Ituma Ekunyi family land all at Ugbogbo lands pending the determination of the substantive suit in this case.

This court also makes an order that the Applicants shall undertake to pay the sum of N500,000 as damages to the Respondents in the event that this injunction ought not to have been made at the first instance on the final determination of the substantive suit. The undertaking shall be filed in this Court on or before the expiration of 7 days’ period from today. The order of injunction made herein shall begin to take effect from the day the undertaking is filed and it shall lapse if on the expiration of the said period of 7 days, the undertaking is not filed as ordered herein.

This is the order of this Court.?

Before rendering the opinion now on appeal, the learned Judge summarized the facts in dispute at pages 152 to 154 of the printed record to be as follows:-

“The subject matter of this application is the Motion on notice for interlocutory injunction pending determination of the substantive suit filed in this action. In the words of the motion paper if states as follows:

?1. An order of interlocutory injunction

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restraining the Defendants/Respondents, their agent or privies, or however called from committing further acts of trespass on the Plaintiffs/Applicants’ lands pending the determination of this suit.

2. An order of perpetual injunction Restraining (sic) the Defendants/Respondents, their agent or privies or howsoever called from committing further acts of trespass on the said parcel of land.
3. And for such further or other order(s) as this Honourable Court may deem fit to make in this circumstance.?

This motion was dated 1/6/08 and filed on 5/6/08. The motion was supported by an affidavit, a further, further and better affidavit and an affidavit of urgency ail deposed to by James Oge the 1st Plaintiff/Applicant. Several exhibits were exhibited by the Applicants and in the resolutions of the issues raised herein the various documentary exhibits would be exposed and discussed if necessary. In reaction to the motion and the affidavit, the 1st ? 7th Respondents filed a counter affidavit deposed to by one Joseph Udu the 5th Respondent while the 8th and 9th Respondents filed their own counter affidavit. There were also some documentary