JAMES ONWE & ORS v. JAMES OGE & ORS (2017)

JAMES ONWE & ORS v. JAMES OGE & ORS

(2017)LCN/9456(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of February, 2017

CA/E/246/2009

RATIO

LAND LAW: PURPOSE OF INTERLOCUTORY INJUNCTIONS IN LAND DISPUTES
Generally speaking, interlocutory injunctions are granted to preserve the property in dispute from acts or further acts of trespass, destruction or injury, etc, upon terms that are just, pending the determination of the substantive suit. PER JOSEPH TINE TUR, J.C.A.
LAND LAW: POSITION OF THE LAW ON DECLARATION OF TITLE TO LAND
From the pleadings filed and exchanged by all the parties in the Court below it is clear that the 1st set of respondents founded their cause of action on the alleged continuous acts of trespass by the appellants and the 2nd set of respondents coupled with perpetual injunction and damages pending the determination of the suit. What triggered the dispute is the two leases pleaded by the parties authorizing the 2nd set of respondents to enter the parcels of land in dispute. The appellants denied the claims of the 1st set of respondents and gave notice they would be urging the Court below to dismiss their claims. The Court is usually concerned with the interest of the parties that have submitted their dispute or controversy before it for adjudication. The Court is not concerned with persons who are not before it, hence, whether other families’ lands are included by the 1st set of respondents in their claims is not the business of the Court below nor this Court since they had the right to apply and be joined in the proceedings in the Court below or as interested parties in this Court. In Anukanti vs. Ekwonyeaso (1978) 1 LRN 346, Idigbe, JSC held at page 351 to 352 as follows:
“In the instant case, the respondent who admittedly is in possession of the land in dispute while denying the appellant’s assertion that he (i.e the respondent) is on the land by permission of the appellant’s ancestors maintains that he is in possession by authority of Ajuwanta who, although not a party to these proceedings, duly gave evidence in support of the respondent’s case. While on the other hand Patrick Okoroma a descendant of Ukegbu, who according to the respondent, was a co-pledge of the land in dispute from Ajuwana testified in support of the appellant’s case and, not only confirmed the appellant’s claim to ownership of the land but said in addition that it was the appellant (not Ajuwana) who pledged the land to the respondent although he soon admitted under cross-examination that the pledge incident did not take place in his presence. Be that as if may there was therefore evidence before the Trial Court on which to make a categorical finding on the issue whether or not as between A (the appellant) and “B” (the respondent), “B, was on the land in dispute by the grace of C, i.e. Ajuwana (who although not a party in these proceedings was however a person through whom “B” (the respondent) claimed). Equally, he had inter alia, the evidence of Patrick Okoroma on which he could also have resolved the issue whether “B” (the respondent) was on the land by the grace of “A” (the appellant). The trial Court apparently did not realize it had a duty in the circumstances to make express findings on these vital issues, and not merely to rely, in the peculiar circumstances of these proceedings, on the general principles of law enshrined in the Ekpo vs. Ita (1932) XI NLR 68 and Kodilinye vs. Mbanefo Odu (1935) 2 WACA 336 cases. It is however not open to this Court which has not had the opportunity of observing the witnesses in this case give evidence, to make these important specific findings. Again, it is the law that where one party obtains possession of land by permission of another he cannot in law use that possession to support a plea of jus tertii against that other. Adverting therefore to the evidence before the trial judge we are of the view that he had a duty in the circumstances of this case, to make express findings on the issue whether as claimed by the appellant, the respondent obtained possession of the land in dispute by the grace of his ancestors (i.e the appellant’s ancestors); and had he made any express finding on this issue he would have been in a position to apply the above principle of law which prevents a party who is in possession of land (in this case, the respondent) from using such possession to support a plea of jus tertii against the party from whom he obtained such possession (i.e as alleged, the appellant and his ancestors).
As already stated the trial Judge had abundant evidence on which to resolve these vital issues, he however failed to do so because in our view he did not appreciate that he had a duty in the circumstances of these proceedings to go beyond the general principles of law enshrined in the Ekpo vs Ita and Kodilinye vs. Mbanefo Odu cases and make specific findings on the issues. Had he done so, his conclusions on the claims, based on the evidence before him, might or might not have been the same as stated in his judgment; the fact, however, remains that the judgment from which the appellant appeals neither took into consideration nor resolved the vital issues in this case. In the circumstances, we find ourselves unable to support the judgment of the Court below. It is our view that this is a proper case for an order for re-trial in the High Court of Imo State before another Judge. Accordingly, this appeal succeeds.”
In Okpala vs. Ibeme (1989) 3 SCNJ 152 the Supreme Court again held at pages 160 to 161 as follows:
“I must begin my consideration of this issue in this appeal by pointing out that the catch expression enunciated long ago in the case of Kodilinye vs. Mbanefo Odu (supra) that in a claim for the declaration of title the onus is on the plaintiff who must rely on the strength of his own case and not on the weakness of the defence now admits of at least two qualifications. The first is that the plaintiff can quite perfectly take advantage of those facts in the defence’s case which support the plaintiff?s. The second which is relevant in this appeal is that where an issue of title to land arises in litigation the Court is concerned only with the relative strengths of the titles proved by adverse parties in the litigation and not the titles of those not before the Court. Idigbe, JSC put this principle very succinctly in the case of Madam I. Arase vs. Peter U. Arase (1981) 5 SC 33, at p.35 where he held:
“It ought to be borne in mind always that at common law, where questions of titles to land arise in litigation the Court is concerned only with the relative strengths of the title proved by the rival claimant. If party A can prove a better title than party B, he (party A”) is entitled to succeed: Per Lord Diplock in Ocean Estates Ltd. vs. Norman Pinder (19^9) 2 A.C. 19, at pp.240-25.
Decided cases show that this common law principle has been fully received in our law. In addition to Arase vs. Arase (supra) in which it was cited with approval, reference may be made to the following cases: Anukanti vs. Ekwonyeaso (1980) 1 LRN 346 p.351. Karimu vs. Fajuba (1968) NMLR 151 p.152-153; Ramonu vs. Akinwunmi” SC.106/1965 of the 23rd of June, 1966. Applying the principle to the present appeal, it appears clear to me that the matter ought to have been decided by comparing the competing clams to the title to the land in dispute as between the appellants who have been adjudged to be part owners, and the respondents, who have been found to be strangers to the land in dispute. The appellants have in this appeal not asked us to declare title in their favour. Rather, they are contending that an order of dismissal which has the effect of shutting them off completely from the land in dispute of which they are part owners is wrong. I have no difficulty in agreeing with them. We have not been asked to pronounce on the peculiar situation which has arisen in this case which several members of the larger unit which PW1 alone says owns the land have testified that the land is in fact exclusive property of the appellants. Nor have we been asked to declare title in this appeal in favour of the appellants. For the limited relief which is sought in the appeal, I have no difficulty in saying that the appellants were at least entitled to an order of non-suit and that the order of dismissal is wrong.
See also Karimu vs. Fajuba (1968) NMLR 151 at 152-153. PER JOSEPH TINE TUR, J.C.A.

LAND LAW: WHAT CIRCUMSTANCES WILL IDENTITY OF LAND IN DISPUTES BECOME AN ISSUE
“The identity of the land in dispute becomes an issue where it is raised on the pleadings. See Fatuade vs. Onwoamanam (1990) 3 SCNJ 200 and Ezeudu vs. Obiagwu (1986) 2 NWLR (pt.21)208 at 210 and Atolagbe vs. Shorun (1985) 4 SC 250 at 257-259. There are two Lease Agreements, namely, 7th December, 2002 and 17th October, 2007 which the parties pleaded showing that they know the land over which the 1st set of respondents sought declaratory reliefs coupled with injunctive reliefs and damages in the Court below which the appellants are denying. The extent or identity of what is in dispute is not at large. What the learned trial Judge had to consider was whether the substantive suit was frivolous or not, namely, were there triable issues See Ajomale vs. Yaduat (1991) 5 SCNJ 178 at 189; Akibu vs. Oduntan (1991) 2 NWLR (pt.171) 1 at 14. PER JOSEPH TINE TUR, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

1. JAMES ONWE
2. MICHAEL AKUMA
3. SIMON ONWE
4. JOHN IDEBA
5. JOSEPH UDU
6. NWALI ITUMA
7. SIMON ITUMA Appellant(s)

AND

1. JAMES OGE
2. UCHE ONWE
(For themselves and on behalf of Akuma Aja family excepting 2nd – 3rd defendants)
3. SAMUEL ONWE
4. DANIEL UDU
(For themselves and on behalf of Ituma Ogayi family excepting 4th – 5th defendants)
5. LINUS ITUMA
6. JAMES ITUMA
(For themselves and on behalf of Ituma Igboke family excepting 6th and 7th defendants)
7. EZEKIEL ITUMA
(For himself and on behalf of Ituma Ekunyi Aja family)
[1ST SET OF RESPONDENTS]

8. ENERCO (NIG) LTD.
9. PROROX (NIG) LTD.
[2ND SET OF RESPONDENTS] Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of B.A.N. Ogbu J., of the High Court of Justice, Ohaukwu Judicial Division, Ebonyi State of Nigeria rendered on 28th April, 2009 wherein the learned trial Judge held at pages 163 to 164 of the printed record as follows:
“It is settled law that the principle upon which the Court acts in granting interlocutory injunctions must be strictly observed and it is impossible to lay down any general rule by which the discretion of the Court ought in all cases, to be regulated; but it must be borne in mind that injunctions are not granted as a matter of course. See MISSINI?s case supra.
In the peculiar facts and circumstances of this application, the discretionary power of injunction of this Court shall be issued against the Respondents because it is just and convenient to do so. Accordingly the Respondents particularly the 9th Respondent are hereby restrained from further continuing to carry quarry operations in respect of the stone deposits on the following lands viz Akuma Aja family land, Ituma Ogayi family land, Ituma Igboke family land

and Ituma Ekunyi family land all at Ugbogbo lands pending the determination of the substantive suit in this case.
This court also makes an order that the Applicants shall undertake to pay the sum of N500,000 as damages to the Respondents in the event that this injunction ought not to have been made at the first instance on the final determination of the substantive suit. The undertaking shall be filed in this Court on or before the expiration of 7 days’ period from today. The order of injunction made herein shall begin to take effect from the day the undertaking is filed and it shall lapse if on the expiration of the said period of 7 days, the undertaking is not filed as ordered herein.
This is the order of this Court.?

Before rendering the opinion now on appeal, the learned Judge summarized the facts in dispute at pages 152 to 154 of the printed record to be as follows:-
“The subject matter of this application is the Motion on notice for interlocutory injunction pending determination of the substantive suit filed in this action. In the words of the motion paper if states as follows:
?1. An order of interlocutory injunction

restraining the Defendants/Respondents, their agent or privies, or however called from committing further acts of trespass on the Plaintiffs/Applicants’ lands pending the determination of this suit.
2. An order of perpetual injunction Restraining (sic) the Defendants/Respondents, their agent or privies or howsoever called from committing further acts of trespass on the said parcel of land.
3. And for such further or other order(s) as this Honourable Court may deem fit to make in this circumstance.?
This motion was dated 1/6/08 and filed on 5/6/08. The motion was supported by an affidavit, a further, further and better affidavit and an affidavit of urgency ail deposed to by James Oge the 1st Plaintiff/Applicant. Several exhibits were exhibited by the Applicants and in the resolutions of the issues raised herein the various documentary exhibits would be exposed and discussed if necessary. In reaction to the motion and the affidavit, the 1st ? 7th Respondents filed a counter affidavit deposed to by one Joseph Udu the 5th Respondent while the 8th and 9th Respondents filed their own counter affidavit. There were also some documentary

exhibits attached to the counter affidavit of the 1st – 7th Respondents.
After the exchange of the motion on notice, the affidavits and counter affidavits between the parties, written addresses of Counsel in this application were ordered by this Court and filed and exchanged between the parties too.
It must be pointed at this beginning that the facts and circumstances exposed in this application do not pose any problem to this Court in appreciating, And in a brief form, the facts of immediate importance to this application are that the Applicants who are the Plaintiffs in the main suit in representative capacities sued the Defendants who are Respondents herein individually for a declaration that the 1st ? 6th Plaintiffs are entitled equally with the 2nd ? 7th Defendants to the use, sale, benefit and management of their families places of land known as Ugbogbo lands. A declaration that the 7th Plaintiff is entitled to the use, benefit and management of his family?s pieces of land also situate at Ugbogbo land, injunction restraining the Defendants their agents, etc, from committing further acts of trespass on the parcel of land

pending the determination of this suit. Perpetual injunction restraining the Defendants, their agent etc from further acts of trespass on the said parcel of land. There are also claim for reliefs of special and general damages by the plaintiffs.
The real contention of the Applicants was that being the co-owners of these lands, the subject of the substantive suit being the principal/leaders of their respective families, those lands were leased out by the 1st ? 7th Respondents to the 9th Respondents without the consent of the Applicants. And that the lease of the lands was for the operation of quarrying activities of the 9th Respondent. The Applicants therefore prayed an interlocutory injunction for the restrain of the 9th Respondent?s quarrying activities of these lands and damages to the Applicants farm land. The Defendants contended that even though the 1st ? 6th Applicants are co-owners of the lands in dispute in the substantive suit, the Applicants are not principal members of their respective families but the 1st ? 7th Respondents are the principal members of their respective families. The respondents also contended that among

other things the lands in dispute do not include the land of the 7th Applicant.
The main issue for determination in this application is whether the facts and circumstance of this case would entitle the Applicants to the discretionary order of interlocutory injunction against the Respondents pending the determination of the substantive suit.”

Aggrieved by this decision, the appellants filed a Joint Notice and Grounds of Appeal at pages 165 to 167 of the record of proceedings as follows;
2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF:
The whole decision granting an Order of interlocutory injunction over the land in dispute in favour of the plaintiffs/respondents.
GROUNDS OF APPEAL
1. ERROR IN LAW
The Learned Trial Judge erred in law when he granted an order of interlocutory injunction in favour of the Plaintiffs/Respondents over the disputed land when its dimension and location are unknown and the identity uncertain.
PARTICULARS OF ERROR
(a) The parcels of family land in dispute between the parties is situate at Ugbogbo land and which included other family lands who are not parties to this Suit.
(b) The

lease granted to the 9th Defendant/Respondent for quarrying of stone deposits a Ugbogbo lands included portions of land belonging to other families who were no parties to this suit,
(c) There was before the Court an admission by the plaintiffs/Respondents that there are other land owning families at Ugbogbo whose lands were included in the quarrying lease to the 9th Defendant and who had maintained Suit No.HKW/13/2008 against the plaintiffs/Respondents.
(d) There was not placed before the Court, any demarcation or boundary, or extent and scope of any of the respective family land holdings of Ugbogho land.
(e) There was no survey plan filed by the Plaintiff/Respondents to show the Court the exact area of Ugbogbo to which their claim for injunction related nor was their an identifiable feature of the Ugbogbo land shown in that regard.
ERROR IN LAW
The Learned Trial Judge erred in law when he granted an order interlocutory injunction in favour of the Plaintiffs/Respondents on the ground that the Defendants/Appellants did not complain of being misled as to the identity of the land in dispute.
PARTICULARS OF ERROR
(a) The onus of

proving the identity and location of the land to which a claim for interlocutory injunction relates is always on the Applicant.
(b) The Applicant can only succeed in that regard only on the strength of his case.
(c) In a claim for interlocutory injunction, not only the parties but the Court also should not be in the wood as to the extent, scope and dimension of the land in dispute to which the order for interlocutory injunction
relates.
3. ERROR IN LAW
The Learned Trial Judge erred in law when he granted the claim for interlocutory injunction to the Plaintiffs/Respondents who had earlier supplicated for an injunction relief in the same terms as in the substantive suit.
PARTICULARS OF ERROR:
(a) The discretion and jurisdiction of the Court is premised and dependent on the prayer the motion paper and unless amended, it becomes the pivot on which the Court decision revolves.
(b) The court has no business making out a case for a party outside his prayer in the motion paper.
(c) The law is settled that where the prayer for interlocutory injunction is made in identity terms with the perpetual injunctive relief in the

substantive case, the Court should into the hearing of the substantive case instead of granting the interlocutory injunction.
4. RELIEF SOUGHT FROM THE COURT OF APPEAL
To set aside the Ruling by the lower Court granting an order of interlocutory injunction favour of the Plaintiffs/Respondents and in lieu thereof, make an order dismissing the motion.?

The appellants’ Amended Brief of Argument was filed on 19th June, 2012. The learned Counsel formulated the following issues for determination:
“1. Whether the learned trial Judge was right when he made an order of interlocutory injunction over a part of Ugbogbo land belonging to the appellants and respondents’ families which was included in the five hecter lease to the defendant when the area, dimension and feature thereof in relation to the other family land owning parcels is not placed before the Court.
2. Whether the learned trial Judge was justified in suo motu formulating and granting a different relief from the prayers in the motion paper and on which the parties had joined issues without amendment or inviting the appellants to address him on the newly formulated

prayer.?

The 1st set of respondents distilled the following issues for determination in the brief filed on 19th October, 2012 to wit:
“1. Whether boundaries and identity of land were issue amongst the parties in this suit who have agreed that they own their distinct and separate portions of their family lands at a place called Ugbogbo in Amoffia Ngbo.
2. Whether the trial court formulated a new issue for determination suo motu in determination of the motion for interlocutory application.
3. Whether the plaintiffs/respondents proved a prima facie case to entitle them to an order of interlocutory injunction against the appellants and the 8th – 9th respondents.
4. On whether the defendants/appellants and the defendants/respondents are entitled to Court order having not complied with the order of the trial Court.”

The 2nd set of respondents formulated no issues for determination since they filed no brief of argument.
?
My humble view is that it is a party aggrieved with a decision of a Court that appeals and formulates issue for determination under Order 18 Rules 3(1)-(3) of the Court of Appeal Rules, 2011. The provisions

read as follows:
“3(1) The brief which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.”
The duty of the respondent that have not cross-appealed nor filed a Respondent’s Notice is to answer every important question raised in the appellant’s brief showing why the appeal should be

dismissed and the decision of the lower Court affirmed in their favour. This is the purport of Order 18 Rule 4(1) and (2) of the Court of Appeal Rules, 2011 which reads as follows:
“4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3(1), (2), (3), (4) and (5) of this Order.?
See Atanda & Ors. vs. Ajani & Ors. (1989) 2 NSCC (Pt.2) 511 at 537 per Nnaemeka-Agu, JSC.
The issues for determination must arise from the grounds in the Notice of Appeal. SeeAkinlagun vs. Oshoboja (2006) 12 NWLR (Pt.993) 60 at 180 paragraphs “D”-“E”. In a case that is contested on pleadings the issues distilled for determination must also arise from the pleadings. See Idahosa vs. Orosaye (1959) 4 FSC 166. I shall limit

the consideration of this appeal on the issues formulated by the appellants. The parties should assume I have read the pleadings, the briefs and reasoning of the learned trial Judge in arriving at this decision. I shall consider argument of Counsel that are relevant to the determination of this appeal. In Abudu Gbadamosi Ijale vs. B.A. Shonibare, Privy Council Judgments (1841-1923), 1980 Edition, by Olisa Chukura, SAN 947, Lord UpJohn held at page 948 to wit:
“There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said would contain entries relating to the transaction and would establish his case. The appellant denied the existence of any such book and the trial Judge decided this issue in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence.
Therefore it followed as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On

this ground they allowed the appeal. In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or JUSTICES .”
In Odutola Holdings Ltd. & Ors. vs. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63, Ejiwumi, JSC held at pages 79-80 as follows:
“Against the reversal of this decision, the appellants have raised several issues which I have reiterated above already. But in my humble view, not all the issues raised are necessary for the determination of the appeal. This is because several of the issues raised by the appellants and which the Court below made pronouncements upon did not flow from the ruling given by the trial Court in respect of the application brought before it by the respondents.
After a careful perusal of the judgment of the Court below, the grounds of appeal filed against that decision and the subject matter of the application that led to the ruling of

the trial Court, it is my respectful view that the only issue that are germane to this appeal are the 1st and 5th issues filed by the appellants. As the issues raised by the respondents are not dissimilar, they will be considered in the light of the arguments advanced in the consideration of the merits of the appeal.”
As the substantive suit is still pending in the Court below I have to be cautious not to make observations or pronouncements that may prejudice the main trial. The two issues formulated by the appellants in their Amended Brief of argument do overlap, hence, I shall merge them for the sake of brevity or precision. See Anie vs. Uzorka (1993) 1 NWLR (Pt.309) 1 at 16 paragraph “G” and page 17 paragraph ?G”.

The crux of the argument of the learned Counsel representing the appellants is set down in paragraph 4.1-4.17 pages 5-9 of the brief to wit.
“Arguing issue number 1 and relevant to grounds 1 and 2 of the notice and grounds of appeal reflected at pages 165-166 of the recodes, the appellants contend that the learned trial judge erred in law when he made in favour of the respondents, an order of interlocutory injunction over a

part of the five hecter radius of amorphous collection of family lands at Ugbogbo which was leased to the defendant on the grounds that the area of disputed land is well known to the parties in contest.
It is common ground between the parties before the Trial Court that Ugbogbo lands consists of lands belonging to other land owning families outside Akuma Aja, Ituma Ogayi, Ituma Igboke and Ituma Ekunyi families of the respondents and the appellants. It is a further common ground that the five hecter parcel of land leased out to the defendant for quarrying activities included the lands of the other land owning families of Ogalagu Oma, Icha Nwoke, Utobo Oriko, Eke Okwe, Ede Igboke, Onwe Ona and Okwe Ogata at the Ugbogbo lands.
The learned trial judge conceded the above state of affairs at page 162 lines 1-4 of the records. The Trial Court however tried to justify its stance by holding at page 163 tines 2-6 that the identity of the land to which the injunctive relief relates is well known to the parties, thereby dispensing with the need for a survey plan. This view inescapably informed the Court?s decision at page 161 lines 5-13 of the records to

limit its interlocutory injunctive relief to parcels of land belonging to the respondents’ families whilst giving a free hand to the quarrying activities of the defendant on the lands of other families within the same Ugbogbo land.
It is submitted with respect that the above decision of the Court cannot be justified in view of the failure of the respondents to file a composite survey plan showing the relative locations and dimensions of the different family land holdings against each other within the five hecter parcel of land leased to the defendant at Ugbogbo for quarrying activities. To worsen matters, there was not placed before the Court by the Respondents, any other oral or documentary description or feature of the disputed land to distinguish it from the other various lands not in dispute within the compartment of the five hecters leased to the defendant. See ARCHIBONG v. ITA (2004) 2 NWLR PART 558 PAGE 590; ICHU V. IBEZUE (1999) 2 NWLR PART 591 PAGE 437; OLADEJI V. ADEYEMI (2000) 3 NWLR PART 647 PAGE 25.
It is submitted with the greatest respect that the rule of law dispensing with the necessity to file a survey plan by an applicant for

injunction when the identity of the land is known to both parties was misapplied by the learned trial judge Court to the facts and circumstances of this case. The law always been that the knowledge of the identity of the land by the parties can only dispense with the requirement of survey plan, but never the proof thereof by oral description to the Court. It has been affirmatively restated in AJAGUNGBADE III v. ADEYELU II (2001) 10 NWLR PART 738 PAGE 126 at page 202 paragraphs E-F that:
“…Where parties know precisely the disputed land and its boundaries and the Court is so satisfied about their knowledge a survey plan may no longer be necessary. The identity of such land will be proved by oral evidence showing all the features of the land in such a way that a surveyor presented with the records can produce an accurate plan of such land. Such oral evidence was not available in the instant case…”
The Court of Appeal had no similar facts and circumstances as in the instant case did not decline to refuse on order of injunction trenchantly thus:
“An order for injunction can only be granted in respect to an ascertainable area of land in the

instant case, the area of land claimed by the 1st ? 5th Respondents is not clearly ascertainable and identifiable from the land belonging to other families whose land is also covered by the vesting declaration.” See AJAGUNGBADE III V. ADEYELU II (SUPRA) at page 202 paragraphs D-E…
It therefore stands to reason that in injunctive relief, the area and dimension of the land to which the claim attaches must not only be certain to the parties in contest but more importantly to the Court also as it is the later that would enforce its order when it is breached. This stance has been reechoed by the Court of Appeal in the following elucidatory words:
“But even where parties themselves may be in a position to identify the land in dispute, it is also necessary in case there happens to be a breach of the order, that the area should be easily identifiable by the Court” See ICHU V. IBEZUE (supra) at page 447 paragraph E.
The nagging poser at this juncture is how the Trial Court would be in a position to know that the offensive quarrying operations is being carried on within the family lands of the respondents at Ugbogbo for purpose of enforcing its

injunctive order in the absence of any identifiable and distinguishing feature separating the land from the other family units.
It is incumbent on the respondents supplicating for the interlocutory injunctive relief to either file a survey plan showing the juxtaposed positions of the various family lands within the five hecter radius leased to the defendant at Ugbogbo or give a detailed description in that regard. It is only by so doing that the Court, as an umpire can come to terms with the extent and location of the disputed land.
It is a desideratum and watershed in this specie of application that the Court should not be in the woods as to the identity, features and area of the land to which its injunctive order relates. The correct position of the law is that there must be placed before the Court, some form of description of the disputed land which the parties in contest agree. It is based on that agreed description or identity that the Court then attaches its injunctive order to; thereby dispensing with the necessity of filing a survey plan. This contention is vindicated by the following view point of the Court thus:
“….It is trite that

where the land in dispute is known to both parties, a survey plan is irrelevant… What is relevant is intelligible evidence of the features and description of the land in dispute… See OLUWOLE V. ABUBAKARE (2004) 10 NWLR (pt.882) page 549 at 567 paragraphs B-C.
The factual disposition of this case is not susceptible to an award of interlocutory injunction in the absence of survey plan or oral description of the features of the disputed land. The appellants merely conceded to co-ownership of the family lands with the respondents at a place called Ugbogho which was included but not limited to the five hectare radius leased to the defendant for quarry activities. The concession however did not relate to any description, area, size and feature of the different family lands leased to the defendant relative to each other at Ugbogbo.
In the complete dearth of an form of description of the features of the land in dispute, the concession by the appellants, is in law, incapable of dispensing with the onus placed on the respondents to show the Court the relative positions and features or descriptions of the diverse family lands within the five hectare

radius on lease to the Defendant at Ugbogbo.
The appellants’ stance is not only legal but commonsensical because the interlocutory injunctive order granted to the respondents did not extend to the entire five hectare leased to the defendant. The above was freely and unequivocally conceded by the Trial Court at page 162 lines 23 – 26 when he said:
“….It is a fact very clear from the affidavit evidence of the parties hereto that the Applicants are not claiming co-ownership of all the lands leased to the 9th Respondent but those ones they have mentioned?.
The above except by the trial Court squarely brings this appeal within the ambit of the reasoning of the Supreme Court in refusing the injunction sought in the case of Archibong v. Ita (supra) at page 651 paragraphs D-F in the following words:
“Although in this case, the claim is not for a claim for statutory right of occupancy but for an interest and right as co-beneficiaries which the respondents admit they had been sharing the benefits in the lands with the appellants from time immemorial, it behoves of the respondents to make a survey plan delineating the land in dispute for the

purpose of ascertaining the true nature of the land over which some form of interests are being claimed and which will enable the Court determine the specific area of land it has to impose an order of restraints, lf is my view that this is a case where the Respondents should definitely have procured a survey plan having regard to the geographical location to help to ascertain the truth of the matter in controversy. I do not share the view espoused by the Court of Appeal and supported by the respondents’ counsel that the plan of the area is not necessary on the erroneous belief that the two parties know the land in dispute…?
It is in the light of the above glaring absence of a survey plan or other description of the disputed land that we submit that there is no legal or factual justification for the learned Trial Court to polarize the five hecter parcel of land leased to the defendant into two; restraining the appellants and the defendant from carrying on quarry activities in one and allowing them continue their activities on the other at page 161 lines 5-13 of the records.
The above surgical dissection of the five hecter parcel of land

jointly leased to the defendant by the trial Court for the purpose of granting the interlocutory injunction, with respect, is palpably erroneous when it is realized that there was not placed before the Court, any dividing line or demarcation or feature of the land to guide the parties and the Court in complying with its order. Simply put, the demarcation of the Ugbogbo land by the Trial Court does not trace its paternity to any description or feature of the land placed by the respondent before it. It is floating in the air and is completely bereft of any factual pedestal to stand.
The Appellants in view of the foregoing hereby urge your Lordships to resolve issue number 1 in their favour.?

The 1st set of respondents argument is at page 7 paragraph 4.1 to page 9 paragraphs 4.11 to 4.17 to wit:
“It is common ground that the parties in this suit do not dispute boundaries or identity of their family lands at Ugbogbo. It is commons ground that parties in this suit and other families who are not parties in this suit have their distinct and separate portions of their family land at Ugbogho land.
It is important to bear in mind that the

plaintiffs/respondents being Heads/Principal members of their family, in a representative capacity sued their brothers, the defendants/appellants herein individually for easing their (plaintiffs/respondents and defendants/appellants) family lands to the 9th defendant/respondent for quarry operation without their consent.
It is common ground that the parties co-owned their distinct and separate portions of family land at Ugbogbo. See paragraph 14 of the statement of defence of the 1st ? 7th appellants at pages 14 and 15 of the record of appeal and paragraphs 5, 8, 12 of the Counter Affidavit of the 8th – 9th respondents at pages 73 and 74 of the record of appeal.
With respect, the poser is “whether the defendants/appellants who have admitted that they co-owned distinct and separate portions of family lands at a place called Ugbogbo with the plaintiffs/respondents could quickly turn around to say that the identity of their family lands are not known to them just because the said land were leased to the 9th defendant/respondent for quarry operation without their brothers’ consent.
Did the defendants/appellants not know the identity of their

family lands when they (defendants/appellants) leased same to the 9th defendant/respondent? Did the defendants/appellants lease family lands which identity and dimensions are unknown to them to the 9th defendant/respondent? Were the defendant/appellants, by virtue of the said lease of their distinct and separate portion of their Ugbogbo land to the 9th defendant/respondent, robbed of their senses, intelligence and capacity to know the identity and dimension of the portion of their family land which they leased to the 9th defendant without their brothers’ consent? Were these distinct and separate portions of the said family lands mixed up like grains or cereals that their boundaries and identity become difficult? What does the defendants/appellants mean when they at page 2 lines 1 and 2 of their brief of argument admitted that the parties have their distinct and separate portions of land at Ugbogbo.
With respect, it is in recognition of the facts that the parties co-owned their distinct and separate portions of their family lands which boundaries and identity of same are known to them that the trial Court granted an order of interlocutory injunction in

respect of those lands whilst the Court allowed the 9th defendant/respondent to carry its quarry operation on those other family lands where there exist no conflicts and where members of their family agreed to have consented to the lease of their family lands to the 9th defendant/respondent.
It is settled law that filing of survey plan in a claim for injunction is usually necessary though not always required in a case where identity and boundaries of land are not in issue. See Nwoke vs. Okere (1994) 5 NWLR (Pt.343) 159.
We respectfully submit that the circumstances of the case in and do not require the filing of survey plan as boundaries and identity of land is not in issue between the parties who co-owned their distinct and separate portions of lands at Ugbogbo.
we humbly urge the Honourable Court to so hold and to resolve issue No.1 in favour of the plaintiffs/respondents. We also submit that the case of Joe Golday co. Ltd. vs. CDB Plc cited by the Counsel to the defendants/appellants is not applicable to the facts and circumstances of this present case.”

Generally speaking, interlocutory injunctions are granted to preserve the property

in dispute from acts or further acts of trespass, destruction or injury, etc, upon terms that are just, pending the determination of the substantive suit. Paragraphs 22 to 29 of the Statement of Claim filed by the 1st set of respondents in the Court below pleaded the following facts:
?22. Both 1st – 6th plaintiffs and 2nd – 6th defendants respectively are co-owners in possession for their use and benefit of their respective families parcels of land situate and lying at Ugbogbo and which families’ land are known and called “Ugbogbo Lands” in Amoffia Ngbo.
23. The 7th plaintiff and his immediate family members only without 1st – 7th defendants are the owners in possession for their use and benefit of their family’s parcels of land situate and lying at Ugbogbo which lands are known and called “Ugbogbo Lands” in Amoffia Ngbo.
24. The 8th defendant had operated on the parcels of land situate and lying at and called “Ugbogbo Lands? in Amoffia Ngbo under Lease Agreement made, with the consent of the plaintiffs and the 1st – 7th defendants as lessors for five (s) years, five (5) hectares beginning from 29th day of December, 2007 for

quarrying purposes.
25. During the period, 29th day of December, 2002 to 29th day of December, 2007, where the Lease Agreement existed, the 8th defendant violated the vital terms of the agreement viz:-
(i) Exceeding five (5) hectares of land which was leased out to it (8th defendant) through the Lease Agreement dated 29th day of December, 2002.
(ii) The 8th defendant destroyed the plaintiffs’ houses far and above other houses in Amoffia community. The houses are as follows:
(a) 1st plaintiff – 3 houses at the cost of N1,850,000
(b) 2nd plaintiff – 1 house at the cost of N500,000
(c) 3rd plaintiff – 1 houses at the cost N500,000
(d) 4th plaintiff – 2 houses at the cost of N1,500,000
(e) 5th plaintiff , 3 houses at the cost of N1,200,000
(f) 6th plaintiff – 2 houses at the cost of N1,200,000
(g) 7th plaintiff – 2 houses at the cost of N1,200,000
(iii) The 8th defendant employed 1st, 2nd, 3rd, and 7th plaintiffs but they were not paid within some period to wit:-
(a) 1st plaintiff:
1. August, 2005 December, 2007 – N327,700 (N11,300 per a month)
2. Leave allowances – N10,000 (N5000 per a

year)
3. Christmas Bonus N15,000
(b) 2nd plaintiff:
1. December, 2005 January, 2007 – N270,400 (N16,900 per a month)
2. November – December, 2007 N33,800
3. February, 2007 – October, 2007 ? N39,200
4. Leave Allowances – N24,000 (for 2 years)
5. Christmas Bonus – N12,000 (for 2 years)
(c) 3rd and 7th plaintiffs:
1. January, 2007 – December, 2007 – N135,600 each
2. Leave Allowances – N6,500 each
3. Christmas Bonus ? N5,500 each
26. The 1st ? 7th defendants purporting themselves as beneficial owners and the Public Relation officer (P.R.O.) respectively of the plaintiffs and/or without the consent of the head/principal members (the plaintiffs) of Akuma Aja, Ituma Ogayi, Ituma Igboke, Ituma Ekunyi families, renewed the agreement dated sometimes in December, 2007 with the 9th defendant.
27. The 9th defendant has since the renewal of the said agreement forcefully and without the consent of the plaintiffs trespassed into the said pieces or parcels of land destroying crops, economic trees and land.
28. The plaintiffs on notice of the entry and operation of the 9th defendant on their

land (“Ugbogbo Lands”) without their consent wrote the following letters in attempt to stop the operation to wit:
(i) “A petition against inhuman treatment by ENERCO (NIG) LTD. and …Sunday Idenyi, Simon Onwe and Joseph Udu” dated 20th September, 2007 to Human Right Commission, Abakaliki, Ebonyi State.
(ii) “Letter of Notification” dated 12th November, 2007 to the Peace Committee of Amoffia Community.
(iii) “Notice of Discontinuance Re-Quarry operation at Ugbogbo Site” dated 4th January, 2008 to the General Manager ENERCO (NIG) LTD. through our Counsel. These letters are hereby pleaded and shall be relied on during trial.
29. Despite all the pleadings and letters the defendants continue to trespass on the plaintiffs, lands.?

The 1st set of respondents sought the following reliefs against the appellants in paragraph 30 of their Joint statement of claim:
“30. WHEREFORE the plaintiffs claim against the defendants severally and jointly as follows:
(a) A declaration that the 1st – 6th plaintiffs are entitled equally with the 2nd ? 7th defendants to the use, benefit, sale and management of their families parcels or

pieces of land lying and situate at Ugbogbo, known as “Ugbogbo Lands”.
(b) A declaration that 7th plaintiff is entitled to the use, benefit, sale and management of his family?s places or parcels of land lying and situate and called ?Ugbogbo Lands” excepting 1st – 7th defendants.
(c) An order of declaration setting aside the said renewal and/or sales.
(d) An order of injunction restraining the defendants, their agents, servants, privies or howsoever called from committing further acts of trespass on the parcels of land pending the determination of this suit.
(e) An order of perpetual injunction restraining the defendants, their agents, servants, privies or howsoever called from committing further acts of trespass on the said parcels of land.
SPECIAL DAMAGES:
1. Exceeding five (5) hectares of land in the lease agreement N2,000,000
2. Destruction of the plaintiffs, 14 houses N7,950,000
3. Non-payment of the plaintiffs wages ? N878,700.00
4. 5 (five) percent on judgment.
GENERAL DAMAGES – N20,000,000.”

The 1st – 7th appellants in the Court below pleaded in their Joint Statement of Defence in

paragraphs 14-22 the following facts:
“14. In reaction to paragraph 22 of statement of claim, the 1st ? 7th defendants in conceding that the enumerated family lands are the subject of family possession and ownership, nevertheless state that there are other land owning families of Amoffia whose lands were not only situate at Ugbogbo but which were also included in the lease agreement leading to this dispute. The land owning families are as outlined in paragraph 8 above.
15. In answer to paragraph 23, the 1st ? 7th defendants state that the ownership of Ituma Ekunyi land is vested in the extended family as outlined in paragraph 13 above.
16. Paragraph 24 of the statement of claim is admitted only to the extent that the 8th defendant was granted a 5 years lease of a 5 hectare stretch of land at Ughogbo from 2002. The 1st ? 7th defendants however contend that the lease Agreement was made with the consent of head/principal members of the involved families which did not include the named 1st – 7th plaintiff. Other members of the land owning families otherwise than the named 1st – 7th plaintiffs represented their families in the said lease Agreement which is hereby pleaded and would be founded upon

at the hearing of this suit.
17. In answer to paragraph 25 of the statement of claim, the 1st ? 7th defendants state that their respective families as lessors did not have any problem whatsoever with the 8th defendant during the duration of the lease Agreement from 2002 until it closed shop and left the quarrying site.
18. In answer to paragraphs 20-27 of the statement of claim, the 1st ? 7th defendants aver that Amoffia community and the land owning families at Ugbogbo got together sometimes in August, 2007 when the 8th defendant left the quarrying site and in writing, authorized some named members to represent them in land negotiations relating to the Ugbogbo Lands. The said written authority is hereby pleaded and would be founded upon at the hearing of this suit.
19. The authorized members negotiated and agreed with a new distinct legal entity, the 9th defendant for a 5 year leasehold of the parcels of land at Ugbogbo for quarrying activities. The said lease Agreement which was reduced into writing is hereby pleaded and would be founded upon at the hearing of this suit.
20. The 1st ? 7th defendants contend that the land

owning families involved in the second lease Agreement are not the same with the 1st Agreement and which is hereby pleaded.
21. The 1st ? 7th defendants deny paragraph 28 of the statement of claim in its entirety and contend that the documents under reference were at best made for the purpose of this suit and at worst irrelevant.
22. The 1st ? 7th defendants deny paragraphs 29 and 30 (a-e) of the statement of claim in their entirety and hereby urge the Court to dismiss them as the plaintiffs are not entitled to them as claimed or at all; the same being unmeritorious, speculative, unfounded and gold digging.?

Paragraphs 10-20 of the Joint Statement of Defence of the 8th and 9th 2nd set of respondents pleaded the following facts in the Court below:
?10. The Ugbogbo Lands is a vast area owned by the defendants Families together with the following Families of Amoffia Ngbo, namely:- Ogalegu Oma; Icha Nwoke; Utubo; Oriko; Eke Okwe; Ede Igboke; Onwe Ona and Okwe Ogala.
11. The lease of 2002 between the families of the 1st ? 7th defendants and the 8th defendant covered Lands belonging to the families of the

plaintiffs. This Lease was discharged by performance in December, 2007.
12. The Lease Agreement of 2007 involved the 9th December, and the Families of the plaintiffs except the Ituma Ekunyi Family together with Okwe Ogala, Onwe Ona, Ogalegu Oma, Icha Nwoke, Utobo, Oriko, Eke Okwe and Ede Igboke Families of Amoffia Ngbo.
13. The 8th and 9th defendants are not in a position to admit or deny paragraphs 8-23 of the statements of claim and put the plaintiffs to the strictest proof thereof.
14. The 8th and 9th defendants deny paragraphs 24-25 of the statement of claim. The Lease of 2002 was discharged by performance of their obligations by the parties. None of the parties breached or violated the terms of the Agreement.
15. The plaintiffs are not owned any arrears of salary or any other debt arising from the quarry operation. The 3rd and 7th plaintiffs who were once in the employ of the 9th defendant were terminated and paid off on 1st June, 2007 and 2nd September, 2007 respectively. The Payment vouchers of the 9th defendant covering both circumstances are hereby pleaded and will be relied upon at the trial.
16. The 8th and 9th defendants

did not exceed the agreed area of Land covered by the Lease nor destroy any House as they observed practices of the quarrying industry.
17. The 8th and 9th defendants deny paragraph 26 of the statement of claim. The Lease Agreement of 2007 involved the 9th defendant and the representatives of the plaintiffs’ family and the representatives of the other families with interests in the Ugbogbo lands. The said Lease Agreement is hereby pleaded and shall be relied upon at the trial.
18. The 8th and 9th defendants deny paragraphs 27, 28, and 29 of the statement of claim. The 9th defendant’s operations of quarrying activities are restricted to the lands envisaged under the lease.
19. The defendants shall contend that this suit does not disclose any cause of action and ought to be dismissed with exemplary cost.
20. The plaintiffs are not entitled to the remedies sought in paragraph 30 of the statement of claim.”

From the pleadings filed and exchanged by all the parties in the Court below it is clear that the 1st set of respondents founded their cause of action on the alleged continuous acts of trespass by the appellants and the 2nd set of

respondents coupled with perpetual injunction and damages pending the determination of the suit. What triggered the dispute is the two leases pleaded by the parties authorizing the 2nd set of respondents to enter the parcels of land in dispute. The appellants denied the claims of the 1st set of respondents and gave notice they would be urging the Court below to dismiss their claims. The Court is usually concerned with the interest of the parties that have submitted their dispute or controversy before it for adjudication. The Court is not concerned with persons who are not before it, hence, whether other families’ lands are included by the 1st set of respondents in their claims is not the business of the Court below nor this Court since they had the right to apply and be joined in the proceedings in the Court below or as interested parties in this Court. In Anukanti vs. Ekwonyeaso (1978) 1 LRN 346, Idigbe, JSC held at page 351 to 352 as follows:
“In the instant case, the respondent who admittedly is in possession of the land in dispute while denying the appellant’s assertion that he (i.e the respondent) is on the land by permission of the appellant’s

ancestors maintains that he is in possession by authority of Ajuwanta who, although not a party to these proceedings, duly gave evidence in support of the respondent’s case. While on the other hand Patrick Okoroma a descendant of Ukegbu, who according to the respondent, was a co-pledge of the land in dispute from Ajuwana testified in support of the appellant’s case and, not only confirmed the appellant’s claim to ownership of the land but said in addition that it was the appellant (not Ajuwana) who pledged the land to the respondent although he soon admitted under cross-examination that the pledge incident did not take place in his presence. Be that as if may there was therefore evidence before the Trial Court on which to make a categorical finding on the issue whether or not as between ?A? (the appellant) and “B” (the respondent), “B?, was on the land in dispute by the grace of ?C?, i.e. Ajuwana (who although not a party in these proceedings was however a person through whom “B” (the respondent) claimed). Equally, he had inter alia, the evidence of Patrick Okoroma on which he could also have resolved the issue whether “B”

(the respondent) was on the land by the grace of “A” (the appellant). The trial Court apparently did not realize it had a duty in the circumstances to make express findings on these vital issues, and not merely to rely, in the peculiar circumstances of these proceedings, on the general principles of law enshrined in the Ekpo vs. Ita (1932) XI NLR 68 and Kodilinye vs. Mbanefo Odu (1935) 2 WACA 336 cases. It is however not open to this Court which has not had the opportunity of observing the witnesses in this case give evidence, to make these important specific findings. Again, it is the law that where one party obtains possession of land by permission of another he cannot in law use that possession to support a plea of jus tertii against that other. Adverting therefore to the evidence before the trial judge we are of the view that he had a duty in the circumstances of this case, to make express findings on the issue whether as claimed by the appellant, the respondent obtained possession of the land in dispute by the grace of his ancestors (i.e the appellant’s ancestors); and had he made any express finding on this issue he would have been in a position

to apply the above principle of law which prevents a party who is in possession of land (in this case, the respondent) from using such possession to support a plea of jus tertii against the party from whom he obtained such possession (i.e as alleged, the appellant and his ancestors).
As already stated the trial Judge had abundant evidence on which to resolve these vital issues, he however failed to do so because in our view he did not appreciate that he had a duty in the circumstances of these proceedings to go beyond the general principles of law enshrined in the Ekpo vs Ita and Kodilinye vs. Mbanefo Odu cases and make specific findings on the issues. Had he done so, his conclusions on the claims, based on the evidence before him, might or might not have been the same as stated in his judgment; the fact, however, remains that the judgment from which the appellant appeals neither took into consideration nor resolved the vital issues in this case. In the circumstances, we find ourselves unable to support the judgment of the Court below. It is our view that this is a proper case for an order for re-trial in the High Court of Imo State before another

Judge.
Accordingly, this appeal succeeds.”
In Okpala vs. Ibeme (1989) 3 SCNJ 152 the Supreme Court again held at pages 160 to 161 as follows:
“I must begin my consideration of this issue in this appeal by pointing out that the catch expression enunciated long ago in the case of Kodilinye vs. Mbanefo Odu (supra) that in a claim for the declaration of title the onus is on the plaintiff who must rely on the strength of his own case and not on the weakness of the defence now admits of at least two qualifications. The first is that the plaintiff can quite perfectly take advantage of those facts in the defence’s case which support the plaintiff?s. The second which is relevant in this appeal is that where an issue of title to land arises in litigation the Court is concerned only with the relative strengths of the titles proved by adverse parties in the litigation and not the titles of those not before the Court. Idigbe, JSC put this principle very succinctly in the case of Madam I. Arase vs. Peter U. Arase (1981) 5 SC 33, at p.35 where he held:
“It ought to be borne in mind always that at common law, where questions of titles to land

arise in litigation the Court is concerned only with the relative strengths of the title proved by the rival claimant. If party ?A? can prove a better title than party ?B?, he (party ?A”) is entitled to succeed: Per Lord Diplock in Ocean Estates Ltd. vs. Norman Pinder (19^9) 2 A.C. 19, at pp.240-25.?
Decided cases show that this common law principle has been fully received in our law. In addition to Arase vs. Arase (supra) in which it was cited with approval, reference may be made to the following cases: Anukanti vs. Ekwonyeaso (1980) 1 LRN 346 p.351. Karimu vs. Fajuba (1968) NMLR 151 p.152-153; Ramonu vs. Akinwunmi” SC.106/1965 of the 23rd of June, 1966. Applying the principle to the present appeal, it appears clear to me that the matter ought to have been decided by comparing the competing clams to the title to the land in dispute as between the appellants who have been adjudged to be part owners, and the respondents, who have been found to be strangers to the land in dispute. The appellants have in this appeal not asked us to declare title in their favour. Rather, they are contending that an order of dismissal which

has the effect of shutting them off completely from the land in dispute of which they are part owners is wrong. I have no difficulty in agreeing with them. We have not been asked to pronounce on the peculiar situation which has arisen in this case which several members of the larger unit which PW1 alone says owns the land have testified that the land is in fact exclusive property of the appellants. Nor have we been asked to declare title in this appeal in favour of the appellants. For the limited relief which is sought in the appeal, I have no difficulty in saying that the appellants were at least entitled to an order of non-suit and that the order of dismissal is wrong.?
See also Karimu vs. Fajuba (1968) NMLR 151 at 152-153.

?The identity of the land in dispute becomes an issue where it is raised on the pleadings. See Fatuade vs. Onwoamanam (1990) 3 SCNJ 200 and Ezeudu vs. Obiagwu (1986) 2 NWLR (pt.21)208 at 210 and Atolagbe vs. Shorun (1985) 4 SC 250 at 257-259. There are two Lease Agreements, namely, 7th December, 2002 and 17th October, 2007 which the parties pleaded showing that they know the land over which the 1st set of respondents sought

declaratory reliefs coupled with injunctive reliefs and damages in the Court below which the appellants are denying. The extent or identity of what is in dispute is not at large. What the learned trial Judge had to consider was whether the substantive suit was frivolous or not, namely, were there triable issues? See Ajomale vs. Yaduat (1991) 5 SCNJ 178 at 189; Akibu vs. Oduntan (1991) 2 NWLR (pt.171) 1 at 14.

Economic factors/benefits attached to the property in dispute may be taken into consideration in granting an interlocutory injunction pending the determination of the substantive suit. See Adesina vs. Arowolo (2005) FWLR (Pt.245) 1123 at page 1140-1141 paragraphs ?F”-?G?.
One may also ask: At the close of trial, would the party that applied for the interlocutory injunction be entitled to a permanent or perpetual injunction? This question was posed and answered in Adenuga vs. Odumeru (2003) FWLR (Pt.158) 1288 at page 1304 paragraph ?H” to page 1305 paragraphs “A”-?G” per Uwaifo, JSC to wit:
“In an application for an interlocutory injunction, the plaintiff must show an existence of his right which needs to be

protected in the interim. He must at the same time satisfy the Court that there is a real question to be tried in the substantive suit: Egbe vs. Onogun (1972) 1 All NLR 95 at 98. This does not require the Court to determine the merit of the plaintiff?s entitlement to the claim. But it places on the plaintiff an initial burden. It is the burden of showing that there is a serious question to be tried upon the affidavit evidence (as well with averments in the statement of claim, if any has been filed): See Obeya Memorial Hospital vs. Attorney-General of the Federation (1987) 3 NWLR (pt.60) 325.
It is necessary to emphasize that it is of vital importance for a plaintiff seeking an interlocutory injunction to adduce sufficiently precise factual affidavit evidence to satisfy the Court that his claim for a permanent injunction at the trial is not frivolous; or at any rate, based on the substantive claim to produce affidavit evidence to satisfy the Court in justification of his application for an interlocutory injunction to maintain the status quo. It is only when this has been done that it will become necessary for the Court to proceed further with the

application to consider the balance of convenience. Otherwise the application ought to be refused at the point the Court is not so satisfied. This is clear from the observation made by Lord Diplock in American Cyanamid Co. vs. Ethicon Ltd. (1975) 1 All E.R. 504 at 510 as to what should be the approach in considering an application for an interlocutory injunction.
He said inter alia:
“It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence of affidavit as to facts on which the claims of either party may ultimately depend not to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial? so unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.”
It seems to me that even if there

had been no cause for me to comment adversely on the complaints laid in the grounds of appeal and the issues set down for determination, this appeal stood no chance of succeeding. The likelihood that a plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the Judge in weighing the risks that injustice may result from his deciding the application for an interlocutory injunction one way rather than the other: See NWL Ltd. vs. Woods (1979) 3 All ER 614 at 626.?
In my opinion, the granting or refusal of an application for interlocutory injunction pending the determination of a substantive suit should be based on legal and equitable principles, predicated on the relevant strength of the case the parties presented in the lower Court by an examination of their respective pleadings. The decision of the learned trial Judge in this appeal is amply supported by the weight of evidence adduced by the 1st set of respondents in favour of granting the application. The learned trial Judge granted reliefs that met the justice of the case. I do not see how the appellants

can allege that the learned trial Judge granted reliefs not claimed by the 1st set of respondents nor that issues were raised suo motu and determined by the trial Judge. That is not borne out from the proceedings in the Court below. Even if that is so, the answer lies in Order 4 Rules 9(1)-(5) of the Court of Appeal Rules, 2011 which provides as follows:
“9(1) on the hearing of any appeal, the Court may, if it thinks fit, make any such orders as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in paragraph (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the

Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial:-
(a) Substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;
(b) Reduce or increase the sum awarded by the Court below by such amount as appears in the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded.
But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.
(5) A new trial shall not be ordered by reason of the ruling of any judge of the Court below that a document is sufficiently stamped or does not require to be stamped.?

The appellants have not discharged the onus of showing to the satisfaction of this Court that some substantial wrong or miscarriage of justice had been occasioned by the decision of the learned trial Judge to

sway the mind of this Court to interfere with the decision of the learned trial Judge.

On the whole, this appeal lacks merit and is dismissed. I award N50,000.00 cost to the 1st set of respondents.

IGNATIUS IGWE AGUBE, J.C.A.: I have read the elaborate and erudite Judgment of my Learned Brother J. T. TUR, JCA before now and am in complete agreement with his reasoning and conclusion that this Appeal lacks merit and should be dismissed.

I abide by the order as to costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the opportunity of reading before now the lead judgment of my learned brother, HON. JUSTICE JOSEPH TINE TUR J.C.A. I agree with his conclusion that this appeal lacks merit. I too dismiss the appeal. I abide by the order for costs made therein.

Appearances:

E. Uwakwe, Esq.For Appellant(s)

For Respondent(s)

Appearances

E. Uwakwe, Esq.For Appellant

AND

For Respondent