Ezeakabekwe V. Emenike (1998)

LAWGLOBAL HUB Lead Judgment Report

ANTHONY I. IGUH

In the High Court of former Anambra State of Nigeria, the plaintiff, who is now the respondent, for himself and on behalf of the Emenike family of Amaba, Umuchu instituted an action jointly and severally against the appellants, who therein were the defendants, claiming as follows:-

“(1) Declaration of Title (ownership) to the plaintiff’s piece or parcel of land known as and called ‘Ude Uchu’ situate at Amaba, Umuchu in Awka Judicial Division and more particularly shown or delineated in survey plan No. E/GA1583/73 filed with the plaintiff’s statement of claim.

(2) N400.00 (four hundred naira) damages for trespass committed by the defendants on the said land in dispute.

(3) Perpetual injunction restraining the defendants, their agents, servants and workmen from entering the said parcel of land and repeating or furthering any acts of trespass.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. In paragraph 3 of his statement of claim, the plaintiff pleaded as follows-

“3. The land in dispute is shown on survey plan No. E/GA1583/73 filed with this statement of claim and is therein verged pink. It is a portion of the plaintiff’s land known as and called ‘Ude Uchu’ and is situate at Umuchu within the Awka Judicial Division.”

There is also paragraph 4 of the statement of claim in which he averred thus-

“4. The whole of Ude Uchu, the land of the plaintiff, including the one in dispute, was a forested swamp on the bank of and along the course of Uchu stream from which it derives its name.”

The defendants, by paragraph 3 of their statement of defence, replied to the said paragraphs 3 and 4 of the statement of claim as follows

“3. The defendants deny paragraphs 3 and 4 of the statement of claim and aver that the land in dispute and the area verged green on plan No. MEC/336/74 filed with the statement of defence is known as and called Ohia Iyi.”

I think it ought to be emphasised that from the plaintiff’s pleadings and the entire evidence adduced on his behalf at the trial, the whole of “Ude Uchu” land claimed by him is more particularly delineated on his plan No. E/GA 1583/73 tendered and marked Exhibit 3 and it is therein verged green. The areas in respect of which declaration of title and the other reliefs sought were tied to were clearly shown verged pink in the said Exhibit 3. It is of importance to note that the said areas verged pink are indicated within the piece or parcel of “Ude Uchu” land verged green in the said Exhibit 3.

There is also the defendants’ survey plan No. MEC/336/74, Exhibit 4. It is the finding of both courts below that the two survey plans, Exhibits 3 and 4, are entirely identical as to the area of land put in issue by the plaintiff.I will revert to this aspect of the case later in this judgment. It is however note-worthy that in both survey plans, Exhibits 3 and 4, and the pleadings of the parties, the land said to be in dispute is therein verged green.

It is the case of the plaintiff that “Ude Uchu” land in dispute was acquired by his father Emenike several years ago by “first deforestation” as the same was originally a thick virgin forest before his father enter therein and became the first person to deforest and/or clear the same. It was originally a thick juju forest which the town’s people feared to enter. But Emenike introduced Christianity in the town and, as a Christian, ventured into the forest and cleared the area of it along the bank of the stream shown verged green in Exhibit 3. Subsequently, he planted raffia palms in the entire area, he deforested and remained in exclusive possession thereof and enjoyed the fruits of his adventure until his death about the year 1946.