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Bogban v. Diwhre

SECONDI BOGBAN

GODWIN BOGBAN

MERE BOGBAN

(For himself and on behalf of the Bogban family of Orhuwhorun)

V

MOTOR DIWHRE

MADAM EWHUNURE GBETAMA

OYIBU MASAJUWA

(For themselves and on behalf of the Ujo family of Orhuwhorun)

COURT OF APPEAL

( BENIN DIVISION )

PATRICK IBE AMAIZU JCA ( Presided )

NWALI SYLVESTER NGWUTA JCA

UWANI MUSA ABBA-AJI JCA (Read the Lead Judgment)

CA/B/88/2003

FRIDAY, 20TH MAY, 2005

COURT - Formal applications -  When can be said to exist before a court

COURT - Relief not sought - Impropriety of court granting

INJUNCTION - Ex parte injunction - Application for - Need for evidence of real urgency before it can be granted - Effect of granting without real urgency

INJUNCTION - Ex parte injunction order - Basis for

INJUNCTION - Ex parte injunction order - Jurisdiction of court to vary or discharge - Time within which can be varied or discharged


INJUNCTION - Ex parte injunction order - Where made while the competence of the suit is challenged - Impropriety of

INJUNCTION - Interim injunction - Setting aside of - Grounds for

JURISDICTION - Competence of a suit - Whether ex parte order of injunction can be made against the party challenging

JURISDICTION - Fundamental nature of

PRACTICE AND PROCEDURE - Dates when motions were filed Impropriety of court amending suo motu

PRACTICE AND PROCEDURE - Formal application before the court -  When can be said to exist

WORDS AND PHRASES - ‘Amendment’ - Definition of

Issues:

1.              Whether it is proper to grant an ex parte order of injunction in the circumstances of this case.

2.              Whether the learned trial Judge was right in refusing to discharge the order of interim injunction when there was no affidavit of urgency in support of the application; and undertaking as to damages given by the applicant.

3.              Whether the learned trial Judge was right in making an order, suo motu, amending the date when the motion on notice was filed.

4.              Whether the trial court was right in granting the ex parte order of interim injunction when an earlier motion challenging the competence of the suit had not been determined.

Facts:

The main action is a land matter in which the title and possession of a parcel of land known as Orhan Ujo land situate at Obughere quarters in Orhuwhorun town, Udu Local Government Area of Delta State was in dispute. The appellants as defendants had filed a motion on notice dated 7 th October, 1997 challenging the competence of the suit. While hearing on the motion had commenced but before its determination, the respondents as plaintiffs filed a motion ex parte dated 22 February, 2001 for an order of interim injunction. The ex parte motion was heard and granted on the 1st March, 2001.

The defendants’ application to discharge the ex parte order of injunction was refused. Being aggrieved, the defendants brought this interlocutory appeal.