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  • Kpolukwu v. Allanah
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  • 2004-11-22
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Kpolukwu v. Allanah

MR. KANAYO KPOLUKWU

MR. CHIKE ALLANAH

JIDEUCHE ALLANAH

V

CHIEF B. A. ALLANAH

DR. NGOZI ALLANAH

MR. ANDREW O. UDEH

( for themselves and on behalf of Obi-Okonya family of Umuekwo Village, Asaba excluding the defendants)

COURT OF APPEAL

( BENIN DIVISION )

KUMAI BAYANG AKAAHS JCA ( Presided )

AMINA ADAMU AUGIE JCA

NWALI SYLVESTER NGWUTA JCA (Read the Lead Judgment)

CA/B/11/2002

WEDNESDAY, 19TH NOVEMBER, 2003

APPEAL - Ground of appeal - Ground alleging error in law and a misdirection at the same time - Impropriety of

APPEAL - Ground of appeal - Ground split into a number of issues Impropriety of

COURT - Trial court - Duty on not to show prejudice in favour of any party before it

INJUNCTION - Case for - How plaintiff can establish

INJUNCTION - Interlocutory injunction - Purport of


INJUNCTION - Interlocutory injunction - Survey plan - Absence of Insufficiency of to deny grant of interlocutory injunction

INJUNCTION - Interlocutory injunction - Application for pending final determination of suit - Duty on applicant to sufficiently identify land to which claim for injunction relates

LAND LAW - Interlocutory injunction - Application for pending final determination of suit - Duty on applicant to sufficiently identify land to which claim for injunction relates

PRACTICE AND PROCEDURE - Interlocutory injunction - Application for pending final determination of suit -  Duty on applicant to sufficiently identify land to which claim for injunction relates

PRACTICE AND PROCEDURE - Interlocutory injunction - Case for -

How plaintiff can establish

Issue:

Whether the plaintiffs/respondents discharged the onus of proof on them to show clearly the area of land to which their claim for interlocutory injunction relates, to warrant an order of interlocutory injunction in their favour.

Facts:

The two sets of parties are members of the same family; Obi Okonya family of Umuekwo Village, Umuaji Quarters, Asaba. The plaintiffs/ respondents claim the following reliefs against the defendants/appellants in the court below:

“1. A declaration that under Asaba Native Law and Custom, the defendants, their servants and/or agents are not entitled to sell, assign, alienate, 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 Diokpa (Head of family) and the principal members.

2.              A declaration that any purported sale, assignment, alienation, transfer, mortgage or lease without the knowledge, consent and approval of the 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 act inconsistent with the ownership right

of Obi Okonya family over the Obi Okonya family land (layout) Asaba.”

During the pendency of the action, the plaintiffs/respondents sought for an order of interlocutory injunction restraining the defendants/respondents from dealing in any way with the said Obi Okonya family land pending the final determination of the action. Their application was granted

Aggrieved by the ruling, the defendants/appellants appealed to the Court of Appeal.