A RESPONDENT WHO HAS NOT CROSS-APPEALED OR FILED A RESPONDENT NOTICE CANNOT RAISE ISSUES UNRELATED TO THE APPELLANTS GROUNDS OF APPEAL

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CASE TITLE: IGBOJIONU & ORS V. UKO & ORS (2018) LPELR-45875(CA)

PRACTICE AREA: LAND LAW

LEAD JUGDMENT BY: ITA GEORGE MBABA, J.C.A.

FACTS OF THE CASE:

This appeal is against the judgment of Abia State High Court, delivered by Justice J.E. Adiele.
At the trial Court, the Plaintiffs/Respondents had claimed as follows:

“(1) A Declaration that the Plaintiffs are entitled to statutory or Customary rights of occupancy of the following pieces of land:

(i) Uhuochie Amaoghoro

(ii) Ala-Uhu Amaoghoro

(iii) Mpirim

(iv) Dibia Okai

(v) Korokoro

(vi) Nchi

(vii) Aboh Uhuochie

(viii) Iyiochaelu

(ix) Iyi-Una

(x) Ala Enne

all in Akoli Imenyi within the jurisdiction of this Court.

(2) TEN MILLION NAIRA being general damages for trespass.

(3) Perpetual injunction restraining the Defendants, their servants, agents, privies and representatives from further acts of trespass.”

At the end of the trial and after considering the addresses by Counsel on both sides and the evidence adduced, the trial Court found in favour of the respondents.

Dissatisfied, appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The issues for determination, as nominated by the appellants, are:

“(1) Whether the Claimants discharged the burden of (sic) onus of proof placed on them by law to be entitled to the reliefs sought before the Court.

(2) Whether Exhibit ‘A’, Certified True Copy of Proceedings in HUZ/15/2004, is a subsisting Court judgment that can operate as an estoppels against the Appellants in this Suit.

(3) Whether the fact that the Defendants did not field in their ancestors to prove a historical fact of how the Plaintiffs ancestor settled at Ndioze compound in 1938 can be held against the Defendants by application of Section 149(d) of the Evidence Act, Laws of the Federation 1990.”

DECISION/HELD:
In the final analysis, the appeal was dismissed.

RATIO DECIDENDI:

  • LAND LAW – POSSESSION OF LAND - Who does the law ascribe possession to where two parties claim to be in possession of a land
  • APPEAL – ISSUE(S) FOR DETERMINATION - Whether a respondent who has not cross-appealed or filed a respondent notice can raise issues not related to the grounds of appeal filed by the appellant
  • EVIDENCE – WITHHOLDING EVIDENCE - Instance where the presumption of withholding evidence will not apply

lawpavilion • November 23, 2018


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