Chief B. A. Allanah & Ors V. Mr. Kanayo Kpolokwu & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This is an appeal against the judgment of Court of Appeal (hereinafter referred to as “The Lower Court€) delivered on 19th day of December 2003. The facts of the case as could gleaned from the record are summarised as follows:-

The appellants herein, as plaintiffs, instituted an action at the High Court of Delta State, Asaba Judicial Division in the year 2000. At the time, Delta state High court was applying Bendel State High Court (Civil Procedure) Rules of 1988 and the suit filed at the Asaba Judicial Division of Delta State High Court (“the Trial Court” for short) was given No.A/170/2000. In the said suit the Plaintiffs/Appellants claimed the following declaratory and injunctive reliefs against the defendants who are respondents herein. The reliefs sought are:-

1. A declaration that under Asaba Native Law and Custom, the defendants, their servants and/or agents ore not entitled to sell, assigns, (sic) allicudle, transfer, mortgage or lease any interest on Obi Okonya family land layout) situate at Umuekwo Village, Umuaji Quarters Asaba without the Knowledge, consent and approval of the Djokpa (Head of family) and the principal members of Obi Okonya Family of Umuekwo Village, Umuaji Quarters, Asaba.
2. A declaration that any purported sale, assignment, alienation mortgage or lease without the knowledge consent and approval of Diokpa (Head of family) and the principal members is irregular, improper, invalid, null and void and of no effect whatsoever.
3. A perpetual injunction restraining the defendants, their servants and/or Agents from taking possession, dealing with the said property or doing any acts inconsistent with the ownership rights of Obi Okonya family Land (layout) situate at Umuekwo Village, Umuaji Quarters, Asaba.

At the same time, while filing the suit, the plaintiffs/appellants followed it up with a motion on notice seeking interlocutory injunction, dated 7th December, 2000 but filed on 8th day of December, 2000. In the said motion the plaintiffs/appellants, now appellants, sought one relief as reproduced below:-

“Interlocutory injunction restraining the Defendants/Respondents, whether by themselves, their servants and/of Agents from entering, tampering and/or dealing with the Obi Okonya family Land situate at Umuekwo Village, Umuaji Quarters, Asaba pending the final determination of this action€.

The motion for interlocutory injunction was supported by an eight paragraph supporting affidavit. Upon being served with the motion for Interlocutory injunction which was also accompanied by writ of summons, albeit, without Statement of claim, the defendants (now respondents) filed a counter affidavit. The trial court took arguments of both parties on the application and afterwards delivered its ruling granting the relief sought in the motion for Interlocutory injunction.

Aggrieved by the decision of the trial court granting the application of the plaintiffs, the defendants (now respondents) appealed to the Court of Appeal, Benin Division (the Lower Court). At the Lower Court, parties filed and exchanged their briefs of argument in keeping with the rules and practice in that court. The Lower Court heard the appeal and later delivered its considered judgment on 19th November 2003, wherein, it set aside the decision of the trial court.

Naturally the appellant herein, became dissatisfied with the decision of the Lower Court, hence they jointly appealed to this court against the decision of the Lower Court by filing a Notice of Appeal dated 3rd December 2003 containing lone ground of appeal.

Briefs of argument were filed by both parties, while the Respondents later amended their joint brief with leave of this court. Parties briefs were finally exchanged by the parties. The appellants, learned counsel Chief Ikenna Egbuna, at the hearing of this appeal before us, adopted and relied on his brief which he filed on which said brief of argument was deemed filed on 4/12/2013. On the other hand, the learned counsel for the Respondents adopted and relied on his Amended Respondents Brief of Argument, which was settled by E. F. Odojor Esq, and was filed on 10/3/2004. It is also note worthy that the Appellants learned counsel also filed Appellant’s Reply Brief on 2/4/2014 upon being served with the Respondents Amended brief of Argument.

As l said supra, the appellants learned counsel only filed one ground of appeal in his Notice of Appeal. Therefore, in the brief of Argument filed on behalf of the appellants, only one issue was distilled from the said sole ground of appeal, for the determination of the appeal. The sole issue for determination proposed by the appellants reads thus:-

”Whether or not the learned Justices of the court below were right when they held that the Appellants did not introduce enough facts to entitle them to on order of interlocutory injunction in the absence of a survey plan.

On their part, the Respondents, in their joint Amended Respondents, Brief of Argument, also decoded one issue for the determination of this appeal and the said issue is also reproduced below:-

”Whether the learned Justices of the Court below were right in reversing the interlocutory decision of the trial court on the basis that no reference was made to the extent and boundaries of the land and boundary neighbours, with the result that a surveyor cannot produce a plan of Obi Okonya family land.€

It is pertinent at this stage, to state that the, learned counsel for the respondents in his Amended Respondents Brief raised preliminary Objection which he also argued on pages 4 to 6 of the said Amended Brief of Arguments. The respondents did not however, formally file a Notice of preliminary Objection but he merely raised and argued it in his Amended Respondents’ brief. Perhaps it was the procedure adopted by the respondents counsel by simply incorporating the preliminary objection and arguing same therein, that triggered the learned counsel for the appellants to file his Appellants, Reply Brief and responded to the objection therein, even though he insisted or opined that such procedure offends the provisions of Order 2 Rule 9(1) of the Supreme Court Rules, as amended and argued that the alleged non-compliance with that rule rendered the preliminary objection incompetent and liable to be struck out and be urge us to do same. I shall therefore consider this appellants’ learned counsel grouse before deciding whether or not to strike out the Objection on that appellants€™ counsel compliant.