Aaron Awuzie & Ors. V. Ofurum Awujuo & Ors. (2001)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

The respondents sued the appellants in Owerri High Court in a writ of summons as follows:

“1. A declaration that the plaintiffs are entitled to the customary right of occupancy to that piece or parcel of land known as and called “Okpe Nwedo” situate at Mgbolu Okwukwu within the Owerri Judicial Division with an annual value of N10.00 (ten naira).

N1, 000.00 (one thousand naira) damages for trespass.

3. Perpetual injunction restraining the defendants, their agents, servants or workmen from committing further acts of trespass on the said land.”

Pleadings were exchanged and amended and the trial commenced on the 10th day of June, 1993. At the trial the first respondent testified as PW3 and nine other witnesses testified on behalf of the respondents. The first appellant testified as DW5 and seven other witnesses testified on behalf of the appellants.

The gist of the respondents’ claim as borne out by their pleadings and evidence was that the land in dispute which they called “Okpe Nwedo” and which is situate at Mgbolo Okwukwu descended on them from their forebearer through an unbroken line of inheritance. They have since then continued to farm on the land until 1987 when the appellants trespassed on to the land.

The appellants on their part based their claim of the land in dispute on traditional evidence by inheritance from their forefathers. They called the disputed land “Okwuedo”.

In the course of the trial before the lower court it became clear that in 1981 in Suit No. HOG/57/81 filed in the High Court of Oguta the present appellants had sued the present respondents in respect of the .same land claiming damages for trespass and injunction. That claim was dismissed on the 9th day o1 April, 1987 in a judgment tendered before the lower court as Exhibit A. The appellants appealed to this court in Appeal No. CA/PH/135/92 which appeals is yet to be determined. The trial judge in the present case on appeal gave judgment in favour of the respondents.

Dissatisfied with that judgment they have appealed to this court and filed a brief of argument in which they distilled three issues for determination as follows:

“1. Having regards to the pleadings and evidence led at the trial, whether the learned trial judge was right in holding that the identity of the land in dispute was not in issue.

2. Can the appellants be held liable in trespass in respect of the land in dispute notwithstanding the content of Exhibit “A” in the proceedings at the Court below?
3. Whether the pleadings and evidence of traditional history led by the respondents conclusively proved their ownership of the land in dispute by inheritance as to entitle them to a declaration of title in respect of same.”

The respondents also filed a brief of argument and distilled three issues for determination in the course of argument of this appeal the learned counsel for them abandoned issues (a) and (b) which are hereby struck out. The only remaining issue reads as follows:

“(c) If the appeal is competent then whether the respondents proved their case in the court below?”

The learned counsel for the appellants instead of arguing the issues for determination argued the grounds of appeal. This is clearly in contravention of our Rules of Court. See Order 6 of the Court of Appeal Rules. For example, to show that the learned counsel is arguing the grounds and not the issues, he ended each set of argument by urging the court to hold that the grounds of appeal succeed instead of asking the court to resolve the issues in his favour. However, I shall not strike out the brief because learned counsel stated the appropriate issues he has in mind to argue and I would take it that the arguments are in respect of those issues. See Kashidadi v. Noma (2000) 15 NWLR (Pt 692) 807.

On the first issue the main argument of the learned counsel for the appellants was that the identity of the disputed land was not established and that the parties joined issue on the identity of the land. The trial court was wrong; in holding that the respondents were absolved of the responsibility of proving the identity of the land.