Bonny & Ors (For Themselves And On Behalf Of The People Of Toru- Orua Village And Bulu –orua Village In The Western Ijaw) V. Theophilus B. Yougha & Ors (For Themselves And On Behalf Of All The People Of Ebedebiri-village In Western Ijaw) (1969)

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MADARIKAN, J.S.C. 

This is an appeal from the judgment of Prest J. on the 28th of March, 1966, in the High Court, Warri (Suit No.W/87/1963). The present appellants as defendants were sued by the present respondents who were plaintiffs in the action in which the writ of summons was endorsed as follows:

“Plaintiffs claim against the defendants jointly and severally is for:

(a) A declaration that the plaintiffs and the defendants are the owners in title and possession from time immemorial of the fishing pond known as and called “okau” situate near Ebedebiri village in Western Ijaw within the Ward Judicial Division. The exact area and boundaries of the said “Okau” fishing pond will be more particularly described in a survey plan to be filed later in court by the plaintiffs. Annual value of the fishing pond is assessed at £10 per annum.

(b) An injunction to restrain the defendants their servants and/or agents from entering further the said fishing pond and catching fish therefrom without the consent of the plaintiffs”.

At the trial, it was common ground that the fishing pond in dispute had been litigated upon in Suit No. 29/155/48 in the Tarakri Clan Court at Ebedebiri between the privies of the parties to the action. In the 1948 case, one Olomu on behalf of the Ebedebiri group instituted proceedings against one Alagua on behalf of the Toru-Orua group claiming:

“Declaration of title to “Okau fishing pond” discovered by an Ebedebiri man and was used in common with Orua village and stopped Ebedebiri village group from fishing one year ago”.

On the 19th of November, 1948, the Tarakri Clan Court decreed that the pond belonged to both village groups of Ebedebiri and Toru-Orua and further ordered that:

“If a village group goes and fishes in the fishing pond without the Information of the other village group, she is to pay the other village group £100 and if an Individual villager from each village is caught both village groups are to combine and sue the person for £6 for contravening the rule of the Clan Court”.

In the Instant case, pleadings were ordered and duly delivered. It would appear from the plaintiffs’ statement of claim that what sparked off the present dispute was that in spite of the 1948 judgment which as stated earlier, vested ownership of the pond jointly in both parties, the defendants were asserting the right of exclusive ownership and preventing the plaintiffs from fishing in the pond.

The defendants, for their part, contended in their statement of defence that the present action was an abuse of the process of the court as the claim had been previously adjudicated upon “as between the same parties in the same capacity and the judgment still subsists” The learned trial Judge found as a fact that the 1948 judgment subsisted, but, as he was of the opinion that the wording of the judgment “left the rights of the parties in the air and needed clarification in order to avoid disputes between them” he entered judgment as follows:

(1) A declaration that the people of Ebedebiri village group and the people of Toru-Orua village group are joint owners of the fishing pond known as “OKAU” and particularly delineated on the plan exh. “P1” filed by the plaintiffs in this case;

(2) An injunction restraining the defendants, their agent/or servants from fishing the “OKAU” fishing pond without the knowledge and consent of the plaintiffs, such consent not to be unreasonably withheld.

(3) An injunction restraining the defendants, their agents and/or servants from preventing the plaintiffs, their agents and/or servants from fishing the “OKAU” fishing pond subject to the consent of the defendants being first obtained, such consent not to be unreasonably withheld.