The respondents' case as averred in their pleadings is that one Uda was the original owner from time immemorial of the land in dispute, the plan of which was admitted in evidence as Exhibit A, and is now the communal land of Amuda which includes the defendants and respondents; that upon the death of Uda, the land devolved to his three issues, namely Okala, Okpugu and Ogwudu who used it in common as a family land and it has remained as such ever since; that the descendants of the said three issues include the respondents and the defendants who form the Amuda community consisting of Umuokala, Unuokpugu and Ama Ogwudu families; that the Amuda people have been farming the land, harvesting the economic trees thereon in common and using the proceeds of sale of palm fruits for communal development; that in 1965 the defendants started to demarcate and plant survey pillars on the land with a view to selling portions thereof without the con¬sent of the respondents and despite the injunction of the Amala (elders) of Eluama that the defendants should stop committing wrongful acts on the communal land, the defendants did not heed the decision of the elders. So the respondents instituted this suit.

In their defence, although the defendants admitted that Uda was a remote an-cestor of both themselves and the respondents, they denied the land in dispute was ever occupied by Uda. Their case is that one Uduma from whom the defend-ants directly descended and inherited the land, had cleared and cultivated the land and occupied it from time immemorial; that since that time the defendants' ancestors and themselves have been in exclusive possession of the land and have their old plantations of rubber, cashew, oil palm and other cash crops thereon. They admitted having planted survey pillars on the land but denied having made any attempt to sell any portion thereof.

After having considered the evidence adduced by the parties, the trial Judge found that, contrary to the claim of the plaintiffs that they have been in exclusive possession of the land in dispute since the death of Uda, the defendants had proved acts of possession on their part over a portion of the land in dispute, to wit the area verged violet in the defendants' plan exhibit B. The defendants have had cashew and palm plantations thereon since 1958 and had put D.W.5 on a portion of the land as a tenant who farmed there for eight years without any interference.

The trial Judge further found contrary to the plaintiffs' case. He observed that some of the lands owned individually are bigger than the land in dispute while some are equal to it in size. The plaintiffs were unable to account to the satisfaction of the trial court for the individual ownership of the vast area of the Amuda land surrounding the land in dispute and how and why the small piece of the Amuda land in the middle, to wit the land in dispute, came to be communally owned. Applying the provisions of section 45 of the Evidence Law, the trial Judge concluded that since the surrounding lands are individually owned, the land in dispute is likely to be individually owned also. This presumption coupled with the defendants' acts of possession of a portion thereof supported the defendants' case that they are the exclusive owners of the land in dispute.

Finally, the trial Judge held that on the totality of the evidence the plaintiffs had not proved their case. He dismissed their claim.

The plaintiffs were not satisfied with the decision of the trial Judge and so appealed to the Court of Appeal, which allowed the appeal and granted to the plaintiffs the reliefs sought.

A further appeal to the Supreme court was made.