Chief John Attamah & Ors. V. The Anglican Bishop Of The Niger & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C.

The Plaintiffs in the High Court holden at Nsukka instituted this action against the Defendants claiming as follows:-

“(a) A declaration that the Plaintiffs are the owners of the land in dispute and are therefore entitled to the statutory right of occupancy over the land.

(b) A declaration that the 1st Defendant has breached the terms and conditions of the deed of lease and has therefore forfeited the lease.

(c) A declaration that the purported sublease or assignment of the land in dispute to the 3rd & 4th Defendants is null and void and of no effect.

(d) An order granting the Plaintiffs recovery and possession of the disputed land.

(e) An order of perpetual injunction restraining the Defendants, their servants, agents, privies and successors from further entering into the disputed land and from carrying on any activity on the said land.”

The suit was filed on 22/6/92. On the following day 23/6/92, the Plaintiffs filed a Motiion Ex-parte before the court seeking for an order of interim injunction against the Defendants pending the hearing and determination of the Plaintiffs’ application for an interlocutory injunction as a result of which the court on 25/6/92 made the following orders:

“1. That the Defendants/Respondents, their servants and Agents be and are hereby restrained from entering or carrying on any activity on the Plaintiffs/Applicants’ parcel of land situated opposite Bishop Shanahan Hospital along Enugu Road, Nsukka pending the hearing and determination of the Plaintiffs/Applicants’ Application for interlocutory injunction pending in this Court.

2. That the Plaintiffs/Applicants shall pay to the Defendants/Respondents the sum of N100.00 as damages if their application for interlocutory injunction proves to be frivolous.
3. That the case is fixed for 13th July, 1992 for the Hearing of the Motion on Notice”

On being served with the above orders, the Defendants on 7/7/92 filed a motion on Notice praying the court to discharge the orders.

There is no indication on the records when the motion was argued, but a Ruling was delivered on 12/8/92. In the Ruling the learned trial judge refused the application. In other words the court refused to discharge the ex-parte orders made on 25/6/92 set out above.

Dissatisfied with the Ruling of the trial court, the Defendants appealed to the Court of Appeal holden at Enugu. Having regard to the nature of the application and the order made by trial court, the Court of Appeal was of the view and rightly so to my mind, that the only issue for its determination was –

“Whether in the circumstances of this case, the trial court had exercised its discretion judicially and judiciously when it refused to discharge the order made in its Ruling dated 12/8/92. ”

The issue was carefully examined and in a unanimous judgment, the Court of Appeal held that the appeal had merit. The appeal was allowed. The order of interim injunction made by the trial court on 25/6/92 was vacated with costs in favour of the Defendants.