Daniel Mmerem & Ors. V. Eugene Akujinwa & Ors. (2001)

LawGlobal-Hub Lead Judgment Report

O. OGEBE, J.C.A.

The appellants sued the respondents before the High Court of Oguta in Imo State for a declaration of title to a piece of land called “Ala Ulo Ubi Duruozuruoha”, damages for trespass and injunction. The parties exchanged pleadings which were subsequently amended by both parties.

The case of the appellants in the court below was that they inherited the land in dispute from time immemorial from their ancestors. They relied on long traditional history and on past and present acts of ownership and possession which included planting of rubber trees and other economic trees and planting of three juju shrines on the land.

The respondents on the other hand also claimed the land from their ancestors.

They call the disputed land “Ala Nwaedo”.

At the conclusion of the case the trial judge dismissed the appellants’ claim in its entirety.

Not happy with the decision the appellants have appealed to this court and have filed an amended of argument in which they identified five issues for determination.

In the course of argument, the learned counsel for them abandoned issue 5 which is hereby struck out. The remaining four issues read thus:

“1. Taking the pleadings and the evidence adduced at the trial did the Appellants prove their case sufficient enough to entitle them to judgment?

2. Was the conflict if any in traditional history put forward by the Appellants material enough to deny the Appellants Judgment in this suit?
3. Can the Appellants action be dismissed taking into consideration the pleadings and evidence adduced at the trial, the finding of fact by the Trial Judge that the Appellants were in possession of the land in dispute even before the institution of this action in 1985?
4. In the light of the abundant acts of ownership and possession adduced in evidence by the Appellants did they not satisfy the test laid down in EKPO V. ITA II NLR 68 as to raise the inference of exclusive ownership in their favour?”

The respondents also filed an amended brief of argument and identified four issues.

In the course of arguing their appeal the learned counsel for the respondents abandoned the fourth issue which is hereby struck out. The remaining issues are:-

“1. From the pleadings and evidence adduced by the Plaintiffs at the trial, can it be said that the Plaintiffs proved their traditional history of the land in dispute? If the answer is in the negative were they entitled to the reliefs they sought from the Court below?

2. Whether from the pleadings and evidence of both parties before the Court the lower Court was right in its finding of fact that the Plaintiffs were in possession of the land in dispute before 1985.

B. Would long possession, if proved; entitle the Plaintiffs to a declaration of title to the land in dispute?

3. Can it be said that from the preponderance of evidence before the lower Court the Plaintiffs were entitled to the judgment of the Court?

Issue 2A in the respondents’ brief quoted above does not arise from any of the grounds of appeal and is an attempt to challenge the finding of the trial court that the appellants were in possession of the disputed land before 1985 when the suit was instituted. This finding of fact has not been challenged by the respondents in a cross appeal and they cannot therefore raise this issue as if they have cross-appealed. That issue is accordingly struck out.