Secondi Bogban & Ors V. Motor Diwhre & Ors (2005)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

The respondents as plaintiffs commenced this action before the High Court of Justice, Delta State, sitting at Effurun Judicial Division, wherein the respondents claimed the following reliefs:

(1) A declaration that the plaintiffs are entitled to a statutory right of occupancy, over that piece or parcel of land known as Orhan Ujo land, situate and lying at Obughere Quarters in Orhuwhorun Town in Udu Local Government Area of Delta State, a place within the jurisdiction of this Honourable Court.

(2) The sum of N100,000.00 (One hundred thousand Naira) as special and general damages for trespass committed by the defendants, when defendants broke and entered the said piece or parcel of land sometime in April, 1997.

(3) An Order of perpetual injunction restraining the defendants by themselves, their servants, agents, workmen and/ or privies and all persons claiming under and/or through them from entering, remaining and/or in any way interfering with the plaintiffs’ ownership of the said piece or parcel of land; and

(4) Any other suitable equitable reliefs as this Honourable Court may deem fit to make in the circumstances.

The respondents sought and obtained leave of the court to sue in a representative capacity.

The appellants as defendants filed a motion dated the 7th day of October, 1997, to set aside the writ of summons and/or vacating the order granting the respondents leave to sue in a representative capacity. The respondents then filed a motion on notice on the 14th September, 1999, seeking interlocutory injunction against the appellants. The motion dated the 7/10/97 was argued but not concluded. The motion dated the 14/9/99 was also not argued, when the respondents brought a motion ex-parte dated the 22/2/2001, for an order of interim injunction. The court on the 1st day of March, 2001, granted the order of interim injunction pending the hearing and determination of the motion on notice filed on the 14/9/99.

The appellants on the 16/3/2001, filed a motion seeking the leave of court to discharge the interim order of injunction. The court ruled on the motion to discharge the injunction and dismissed same.

Aggrieved by the ruling of the court dismissing the said motion, the appellants sought and obtained the leave of this court to appeal against the said order of injunction. The appellants filed five grounds of appeal. The grounds shorn of their particulars are as follows:

Ground One: –

The trial court erred in law, when it granted the order ex-parte on 1/3/2001.

Ground Two: –

The trial court erred in law, in refusing to discharge the ex-parte order of injunction.