Anuonye Wachukwu & Anor. V. Amadike Owunwanne & Anor (2011)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C,

This appeal is on land matter. It is against concurrent decisions of the High Court of the then East Central State of Nigeria, holden at ABA, which later metamorphosed into the High Court of the present Imo State (trial court) and the Port Harcourt Judicial Division of the Court of Appeal (the court below). The plaintiffs at the trial court, (who are the respondent herein) took out a writ of summons wherein they made the following claims against the defendants (who are now the appellants):

1. “Declaration of title to all that piece or parcel of land known as IKEOHA UMUARAPARA/OKPULOR UMUARAPARA situate at Uratta – Okpu-Umuobo in Aba Urban Division valued at N20.00 annually.
2. N500.00 being general damages for trespass committed by the Defendants on the said land on or about the 13th day of September, 1975.
3. Perpetual injunction to restrain the defendants their servants or agents from committing further acts of trespass on the land.”

Paragraph 17 of the Amended Statement of Claim repeated the above reliefs sought from the trial court. The plaintiffs sued the defendants for themselves and as representatives of Umuarapa family in Uratta Community-Okpu Umuobo in Aba Division. The defendants are members of Umuaduru family in the same Uratta community and were sued personally.

The respondents as plaintiffs at the trial court traced their traditional history of the land in dispute by way of grant from Mgboko led by Afaraukwa, the original customary owners of the vast area of land including the land in dispute. According to the respondents, Mgboko who originally founded the vast area of land including the land in dispute settled Okpokoroipi of Uratta Umuobo, the respondents kinsman, on a part of the said land. The respondents’ people of Umuarapara in Uratta Umuobo through Ikpeameze traced theirs kinsman, Okpokoroipi, to Mgboko and Okpokoroipi sub-granted the respondents the land in dispute, being a portion of the land granted to him (Okpokoroipi) by Mgboko.

The appellants/defendants case was total denial of the defendants’ claim over the land in dispute which the defendants claimed was deforested by their own ancestors who were in possession as owners until it devolved on them.

After full trial, the trial court in its judgment found for the plaintiffs and granted all the reliefs sought by them. This, on appeal, was affirmed by the court below.

On further appeal to this court, the parties filed and exchanged their respective briefs of argument. Each of the parties respective counsel adopted his brief of argument in respect of his case on the hearing date of the appeal. Learned counsel for the respondents filed a Notice of Preliminary Objection which he moved on the hearing date and urged this court to sustain the Preliminary Objection. He embedded arguments thereof in his said brief of argument. The learned SAN for the appellants fired a response to the Preliminary Objection which he adopted and relied

upon.

In his brief of argument the learned SAN for the appellants formulated the following issues for consideration by this court:

1. “Whether in affirming the decision of the trial court, the court below was not in violation of the well settled principle that in a claim for declaration of title, the onus is on the plaintiff (not the defendant) to prove his title by satisfactory, clear, cogent uncontroverted evidence. (grounds 2 & 3).
2. Whether the contradictions apparent in the respondents’ account of title by traditional history/evidence were not material, and if they were, whether the court of appeal’s affirmation of the title of the respondents based on such contradictory account was not perverse and occasioning miscarriage of justice. [grounds 3 and 4].
3. Whether a party who has not proved possession can maintain an action for trespass and whether the grant of the relief of general damages for trespass and order of perpetual injunction against the appellants and in favour of the respondents as affirmed by the court below is not perverse. [ground 41].”

Learned counsel for the respondents formulated the following 3 issues for determination:

1. “Whether the respondents proved “Grant” of the land in dispute traced from Mgboko and whether the appellants specifically appealed against the specific findings of the trial court in respect of the respondents’ traditional evidence of history.
2. Whether there were material contradictions in the evidence of the respondents’ witnesses as to make the Supreme Court interfere with the concurrent findings of the two lower courts.
3. Whether by the circumstance of this case, the identity of the land, the subject matter of this suit, was in dispute and, if yes, whether same was proved by the respondents.”

I shall now take a look at the RESPONDENTS’ PRELIMINARY OBJECTION.

The Notice of the Preliminary Objection which was brought pursuant to Order 2(r) 9(1) of the Supreme Court Rules, was filed on the 25/02/2011.

The Preliminary Objection is based on the following ground.

“Issue 3 formulated and argued by the appellants in the appellants Amended Brief dated 5th day of October, 2010 is not derived from any of the appellants’ grounds of appeal filed in this court.”