Isikuru Uyovwukerhi v. Ibatere Afonughe & Anor. (1976)

LawGlobal-Hub Lead Judgment Report

OBASEKI, Ag. J.S.C. 

The action in the court below was commenced in the Uwherun/Evwreni Customary Court in 1971. On the 4th day of March 1971, the Chief Magistrate, Ughelli, in exercise of his powers as Supervising Authority, transferred the case to the Olomu/Effuruntor Customary Court holden at Umolo, for hearing and determination. Before that Court, the items of claim of the appellants were (in terms stated in the summons):-

“(a)A declaration of title of ownership over a fishing fence known and called Iniemu Fishing Fence lying and situated in Edjuto Creek in Erovie Bush of Uwherun Town;

(b)An injunction to restrain the Defendants, their agents or servants from a further or continued trespass into the said fishing fence in that sometime in two months ago, the Defendants on their own accord went into Edjuto Creek and there at prepared and constructed “Iniemu” fishing fence for fishing purposes without the permission and the consent of the Plaintiff.

(c) 90 (ninety pounds) as special damages due to Plaintiff against the Defendants representing the value of the fishes killed within 60 days of fishing occupation by the Defendants in the said fence, at the estimated value of 10/per day. 10 pounds (ten pounds) being general damages for the trespass made into the said fishing fence as indicated in item “b”.
After hearing evidence, the members of the Olomu/Efuruntor Customary Court inspected the Edjuto Creek and the Iniemu Fishing Fence in dispute. On return from the judicial inspection, the Court gave a considered judgment in which it allowed the claims, granted the declaration of title, the order of injunction and awarded 25 special and 10 general damages. The Defendants being dissatisfied appealed to the Magistrate Court. The Chief Magistrate heard the appeal, dismissed the appeal against the grant of declaration of title, the order of injunction and 10pounds general damages, but allowed the appeal against the 25 special damages.

Still being aggrieved and dissatisfied with the judgement of the learned Chief Magistrate sitting on the appeal, dismissing their appeal, the Defendants lodged a further appeal to the High Court, Ughelli.

Ovie Whiskey, J., (as he then was), heard the appeal and allowed it. It is against this judgment that the Plaintiff/respondent has appealed. The four grounds of appeal filed and argued are:-

(1) The learned Judge erred in law when he held that section 3(1) of the Minerals Act Cap 121, Laws of the Federation of Nigeria, Lagos vests the ownership of all rivers, streams, water courses throughout Nigeria in the State whether they be tidal or non-tidal.

(2) The learned Judge erred in law  when he impliedly held that  the claim before the Olomu/Effuruntor Customary Court was caught by section 3(1) of the Minerals Act Cap 121, Laws of the Federation of Nigeria and Lagos, when there was no evidence that the Creek was tidal.

(3) The learned Judge erred in law when he dismissed the claim of Plaintiff/respondent/appellant despite the abundant evidence from both parties to the case that the areas of fish fences along the particular Creek are individually owned.

(4) The learned Judge misdirected himself in holding that no declaration can be made in favour of Plaintiff/respondent/respondent/appellant as he was not the exclusive owner of Edjuto Creek, whereas the claim before the  court was never for a declaration over the Creek, but for a fish fence known and called “Iniemu Fish Fence”.
It is here necessary to pause and set out the facts of the case before dealing with Counsels arguments on the grounds of appeal.

The Plaintiff and the Defendants are natives of Uwherun village, well watered by creeks and rivers.  They however do not belong to the same quarter. While the Plaintiff hails from Erovie Quarter, the Defendants hail from Ohoro Quarter.  It appears that the principal occupation of the parties is fishing, and this made them to create fish ponds for dry season fishing.  Fishing fences were constructed across the creek. The creek running through Erovie Quarter and Ohoro Quarter is known and called Edjuto Creek by the appellant and Edjubi by the respondents. The appellants ancestor is one Iniemu and it appears he was the earliest settler in Erovie Quarter.  He constructed 6 fishing fences across the Edjuto Creek in his lifetime.  Those fishing fences were renewed yearly by the family until recent times.
The respondents are descended from one Onosioko who was a Juju Priest of Urhide Juju and resident in Ohoro Quarter.  He too had fishing fences in Edjuto Creek and in recent times, 10th July 1970, to be definite, his descendants, including the two respondents were found to have set up or constructed a fishing fence on the site of the Iniemu Fishing Fence.  On being challenged by Plaintiff, the Defendants claimed that the lake created by the fence in question was owned by their mothers father.
It is admitted by the appellants that the Edjuto Creek is jointly owned by both the Erovie Quarter and Ohoro Quarter.  P. W. 1 put it more  correctly when he said that “the Edjuto Creek situates in a busy jointly owned by the Erovie and Ohoro Quarters.”The Plaintiff having found that the Defendants would not retract their claim instituted these proceedings in the Customary Court.  Testifying on the cause of action, he said, according to the record:
“I have sued both of you for preparing and constructing the fishing fence in question without our knowledge and consent.

The discovery of the fish fence was made by Aguohgbo Ohoroh, P.W.1, whose relevant evidence reads:

“When it was nearing wet season, Plaintiff sent us to see the fishing fences to see that trees might not disturb us when we are ready to construct the fish fences. There we found that someone had constructed a fishing fence on our fishing fence.”