Chief Kalu Igwe & Ors V. Chief Okuwa Kalu & Ors (1993)

LawGlobal-Hub Lead Judgment Report

OGWUEGBU, J.S.C. 

This is an interlocutory appeal against the ruling of the Court of Appeal, Port Harcourt Division delivered on 6th June, 1990. The

appellants herein were plaintiffs in consolidated suit Nos. HU/24/74 and HU/43/74 and the respondents were the defendants. Judgment was delivered in the consolidated suits by the Umuahia High Court in the then Imo State but now Abia State on 23rd June, 1988. The plaintiff’s claim for title, trespass and injunction (HU/24/74) was dismissed while

judgment was given for the defendants for title. N64.800.00 special damages for trespass and injunction (HU/43/74).The plaintiffs appealed to the Court of Appeal. Port Harcourt Division against the decision of the High Court. They also filed a motion on notice in the Court of Appeal praying for the following orders:-

“(a) Stay of execution of the judgment for special damages awarded the respondents in these suits:

(b) Interim injunction restraining the respondents from alienating the land the subject matter of these suits or setting up or erecting any permanent buildings or structures or in any way damaging or wasting same pending the

determination of the appeal against the judgment in these suits dated 23:6:88:”

In a reserved ruling dated 6th June, 1990, the Court of Appeal granted the stay of execution of the judgment for special damages and dismissed the prayer for interlocutory injunction pending the determination of the appeal. The plaintiffs being dissatisfied with the ruling, brought this appeal. The plaintiffs/appellants filed three original grounds of appeal along with their notice of appeal. The first two grounds of appeal were struck out hence they filed three additional grounds of appeal with the leave of this court granted on 27th April, 1992. The appellants filed their brief of argument on 13th December, 1991 and the same was served on the defendants/respondents. The respondents filed no brief of argument despite the fact that they were granted an enlargement of time to do so. Two questions were submitted for determination in the appeal by the appellants:

(1) Whether the Court of Appeal was right in holding that the appellants have not appealed against the dismissal of Suit No. HU/24/74 in which they (the appellants) were plaintiffs and consequently would not have a declaration of title in their favour if the appeal were allowed;

(ii) Whether there were not such special circumstances as would warrant the preservation of the res and the grant of an order of interlocutory injunction pending the determination of the appeal.”

The first issue is covered by the first two additional grounds of appeal and the second issue is covered by the remaining original ground of appeal and the third additional ground of appeal. When the appeal came up for hearing on 18th January, 1993, Mr. R. Nnanna- Kalu appeared for the respondents. He informed the court that he was holding Chief K.

K. Ogba’s brief and that Chief K.K. Ogba was to be led by Chief F.R.A. Williams (S.A.N.). He further told the Court that Chief F.R.A. Williams (S.A.N.) informed him that morning that he had not filed the respondents’ brief of argument. He therefore applied for adjournment. There was no application for enlargement of time to file the respondents’ brief. The application for adjournment was refused and the Court proceeded to hear the appeal on the appellants’ brief of argument. Chief Onyiuke (S.A.N.) relied on the appellants’ written brief on 13/12/91. He made oral submissions as well.

Arguing issue one, he submitted that the appellants were plaintiffs in the consolidated suits. They were plaintiffs in Suit No. HU/24/74 filed by them and defendants in Suit No. HU/43/74 filed by the defendants. He stated that the High Court dismissed the plaintiffs’ claim in Suit No. HU/24/74 and allowed the defendants’ cross action against the plaintiffs in Suit No. HU/43/74. He further said that in the notice of appeal, the plaintiffs appealed against the whole decision of the learned trial Judge and the relief which they sought is that judgment be entered in their favour. In the said notice of appeal, it was stated in the heading that the suits in respect of which the appeal was lodged were Suit Nos. HU/24/74 and HU/43/74. The plaintiffs in the notice of motion for interlocutory injunction which gave rise to this appeal also stated that the suit numbers in the High Court were Suit

Nos. HU/24/74 and HU/43/74. The learned senior counsel further submitted that in spite of the foregoing, the learned Justices of the Court of Appeal in their ruling on the motion for interlocutory injunction held that the plaintiffs/applicants/appellants did not appeal against the dismissal of Suit No. Hu/24/74.