Aisha Animashaun & Ors. V. Aishat Aliu Bakare & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA ABIAGELI NWODA, J.C.A. (Delivering the Leading Judgment)

The Respondents as Plaintiffs in the High Court of Lagos State commenced an action by Writ of Summons filed on 16/3/2001 against the Defendant now the Appellants seeking in the Statement of Claim five reliefs and two alternate reliefs. The Respondent also filed a Motion Ex-parte on 16th of March, 2001 seeking the following reliefs:

“1. AN ORDER OF INTERIM INJUNCTION restraining the defendants either by themselves, their agents; privies, servants, assigns or otherwise howsoever from entering, trespassing, alienating, interfering or committing other acts of trespass or in any manner whatsoever doing any act inconsistent with the property of the plaintiffs situate and lying at No. 15, Balogun Close, Bode Thomas, Surulere, Lagos where the plaintiffs reside pending the hearing and determination of the motion on notice in this suit.

2. SUCH FURTHER ORDER or other orders as this Honourable Court may deem fit to make in the circumstances”.

This motion was heard and Ruling delivered on 30th March, 2001 wherein the learned Trial Judge granting the Order of Interim injunction held:

“The Defendants/Respondents are hereby restrained either by themselves, their agents, privies, servants, assigns or otherwise howsoever, from entering, trespassing, alienating, interfering or committing other lets of trespass or in any manner whatsoever doing any act inconsistent with the property of the plaintiffs situate lying at No. 15 Balogun Close off Bode Thomas, Surulere, Lagos. The applicants shall enter into a bond in the sum of N50,000.00 as deposit for damages if this order is obtained by fraud”.

The Respondent thereafter filed a Motion on Notice on 5th of April, 2001. The 4 Appellants on the 27th of June, 2001 filed a Motion on Notice praying for an order setting aside the order of interim injunction made on the 30th of March, 2001.

The grounds of the application are as follows:

(1) That the order of interim injunction is null and void.

That the order was obtained by concealment of material facts and or misrepresentation of facts.

Arguments were taken by the learned Trial Judge and in a considered Ruling delivered on the 14th of March, 2003, the court held:

“Stating this far, and having carefully looked at the documents before the Court and having also given careful consideration of the submissions of Counsel on both sides. I hold that the discretion of that Judge cannot be substituted by mine and it therefore seems to me that the better course, in the interest of justice is to hear the motion on Notice dated 5th April, 2001. Consequently, I hereby so hold”.

Dissatisfied with the above decision of the court below, the Appellants filed a Notice of Appeal containing 3 Grounds of Appeal on 24th day of March, 2003.

The Respondent filed a Notice of Preliminary Objection on 16/5/07 challenging the competency of the Appellants appeal on 5 grounds. In line with the rules of court Briefs of Arguments were filed and served. At the hearing of the Appeal on the 28th 0f January, 2010, the learned counsel for the Appellant Mr. J.D. Oloyede adopted the Appellants Brief of Argument filed 11/7/05 settled by O.O. Aribaba. The learned counsel for the Respondent Mr. T. Akanwa adopted the Respondents’ Brief deemed filed and served on 25/2/07 informing the court that he has not argued the Notice of Objection in his Brief. The said Notice is deemed as abandoned.

The learned counsel for the Appellant Mr. O.O. Aribaba in the Appellants’ Brief distilled two Issues for determination which reads as follows: