Dibie Ajuwa & Ors. V. Sebastian Benjamin Odili (1985)

LawGlobal-Hub Lead Judgment Report

O. COKER, J.S.C.

In the High Court of Bendel State, the plaintiff, on behalf of the Arumona Family of Aboh, claimed from the three defendants – .

(1) damages for trespass, in that they entered the land in dispute at a place called and known as Ani Obodo (Uyi-Oji) in the Ndokwa Local Government Area in Bendel State, “and began fishing in the lakes or ponds encompassed by it, namely, Oforboh fishing pond indiscriminately, killing young fish put in there for breeding purposes by the plaintiff,” and

2) an order of injunction restraining them from further acts of trespass on the land and the fishing ponds or lakes.

Pleadings were filed and amended by both parties and the plaintiff filed a plan which was admitted in evidence by consent. The surveyor who prepared it was not called to give evidence as it was common ground that the identity of the lakes was not in issue.

The parties called evidence. The plaintiff himself and another member of his family (P.W.1) gave traditional evidence and of user. In addition, he called three other witnesses who were not natives of Aboh. The 1st and 3rd Defendants testified and, in addition, called one witness who was a member of the Obi of Aboh Council. Both plaintiff and defendants are natives of Aboh and its paramount ruler is the Obi of Aboh, although the 1st P.W. in his testimony said all the natives recognised him as such excepting members of his Arumona Family.

The learned trial judge found that the traditional evidence given by the plaintiff and his witnesses was inconclusive and unconvincing and the evidence as to acts of user, equally unreliable. He found that the plaintiff failed to prove that his ancestor, Eze Iwerie, was the first person to settle on the land on which the lakes are situated or that members of his family were in exclusive possession of the land around them. He found that the surrounding land belonged to the entire Aboh people and reserved for the Obi of Aboh. The traditional head of the Aboh people has the right of exclusive use of all the nine lakes and that he rightfully permitted the defendants to fish in

them, including the Oforboh lake. In support of his findings, he found that the then Obi of Aboh and one other Aboh native, on behalf of the Aboh people in 1950, successfully prosecuted a suit to assert the tide of the Aboh people to own and possess the Oforboh lake against one Joseph Okuguni, a native of Igbuku, who claimed its ownership and right to fish in it. On these findings, he dismissed the plaintiff’s claims.

The plaintiff appealed against this decision to the Court of Appeal, which on the 15th May 1984, reversed the decision and allowed the appeal, entered judgment in favour of the plaintiff for N400.00 damages for trespass and made an order of injunction against the defendants, their agents and servants. It is pertinent that Ikwechegh, J.C.A. wrote a judgment with which Pepple J.C.A., agreed, while Nnaemeka-Agu, J.C.A. wrote a separate judgment concurring. Each gave almost different reasons for coming to his decision. The defendants, with leave of the Court, appealed to this Court. Grounds 1, 2 and 3 of the seven original grounds of appeal, mainly of mixed law and fact, were struck out after they were abandoned and after the Court had given leave to the defendants/appellants to argue three additional grounds.

Mr. Agbamuche first argued grounds 4 and 10 together and the remaining grounds were argued together. I do not propose to set out these grounds, but the points and arguments will be stated and discussed in the course of this judgment.

I propose first to summarise the reasons for reversing the judgment of the trial court given by the two Justices of Appeal in their respective judgment before going into the arguments of learned Counsel for the parties.

Ikwechegh, J.C.A., who wrote the main judgment of the Court gave the following reasons for his decision.

(1) Misdirection by the trial judge on the question of possession of the lake in dispute on the finding that the plaintiff and his people were not in exclusive possession. He accepted the submission of Dr. Enemeri, counsel for the plaintiff/appellant that there was clear undisputed evidence that plaintiff and his people were in possession of the surrounding land and the lake. Also, he accepted the submission of the same Counsel that the trial judge:-

(a) overlooked the testimony of P.W.3 that Oko Bush and Ogodo bush are in the same area as Oko where the plaintiffs ancestor, Eze Iwerie, first settled, after examining the plan, Exhibit A, when the surveyor who prepared it did not testify;