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Koleoso v. Ogunyemi

MADAM ASANATU ABIKE KOLEOSO

CHIEF TAJUDEEN IDOWU KOLEOSO

CHIEF BASIRU AKINBODE KOLEOSO

ISIAKA DUROJAYE KOLEOSO

( For themselves and on behalf of Koleoso family of

Oke-Oko village)

V

OLUKUNLE ADISA OGUNYEMI

EVANG. M.O. ADETUNJI A. OYEKAN

PRINCE BASIRU OLADELE ADENIJI

PRINCE MURAINA OLAWALE BANJOKO

COURT OF APPEAL

( IBADAN DIVISION )

STANLEY S. ALAGOA JCA ( Presided and Read the Lead Judgment )

SIDI DAUDA BAGE JCA

MODUPE FASANMI JCA

CA/I/214/08

MONDAY, 28 MARCH 2011

INJUNCTION - Interlocutory injunction - Application for - Objection to - Party wishing to raise - Proper step should take

INJUNCTION - Interlocutory injunction - Grant of - Discretionary powers of court therefor - Exercise of - Proper approach thereto

Issues:

  1. Whether the exercise of the discretionary power by the honourable court in the overall interest of justice was justiciable and hence appealable against.
  2. Whether the failure of the appellants to file a reply to the respondents’ counter-affidavit amounts to admission of all the facts as stated in the respondents’ counter-affidavit.

Facts:

The plaintiffs claimed that the land in dispute formed part of a larger land inherited from their progenitors and they had been exercising acts of possession thereon before the defendants trespassed thereon. They therefore commenced an action in the High Court of Ogun State claiming a declaration that they are entitled to the statutory right of occupancy on the land, N50,000.00 (fifty thousand naira) being damages committed by the defendants and perpetual injunction restraining the defendants from further trespass. The plaintiffs further filed an application praying for interlocutory injunction restraining the defendants from dealing with the land in any way whatsoever pending determination of the matter. The trial court granted the application restraining both parties. Aggrieved, the plaintiffs appealed to the Court of Appeal.

In determination of the appeal, the Court of Appeal considered the following statute:

Court of Appeal Rules, 2007, Order 17, rule 9(4):

“When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.”