Erdmann Evoyoma And Ors ( For Themselves And On Behalf Of The Olota Village, Okparabe Clan, Central Urhobo) V Okiki Daregba And Ors (For Themselves And As Representing The People Of Ogoda Village, Ewu Clan, Urhobo Central) (1968)

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LEWIS, J.S.C.

In his appeal the appellants were treated by Prest, Acting, J. (as he then was) in the High Court sitting at Warri as plaintiffs in two consolidated suits in the first of which, W/31/62, the appellants claimed:-

(1) Declaration of title to land on either side of ‘Ugboprevborevbo’ fishing stream as well as the said fishing stream which flows through plaintiff’s land of Olota. Land and fishing stream in dispute are situated at ‘Olota’ ‘Okpa rabe Clan’ within the jurisdiction of this court. Area In dispute to be indicated on a survey plan to be filed in support of this action and thereon appropriately coloured.

(2) £300 damages for trespass in that in the month of March, 1962 the defendants by themselves, their people, servants and or agents without plaintiff’s consent wrongfully broke and entered on plaintiff’s land and fishing stream as at (1) above and destroyed plaintiff’s fishing traps thereat.

(3) Perpetual injunction to restrain defendants, their servant and or agents from further going on plaintiff’s land and or fishing stream as shown on the survey plan filed in support of this action”,

whilst in the other, W/34/62, the respondents who were treated as defendants for their part claimed:-

“(1) A declaration of title to all that fishing pond known as and called ‘Ugborevborevbo’ which is situation near Ogoda village in Ewu Clan Central District within the Warri Judicial Division. Value of the fishing pond is £15 per annum.

(2) £500 being damages for trespass by the defendants into the said fishing pond called Ugborevborevbo on or about the 6th day of March, 1962 by entering into the said fishing pond and catching fish therefrom by means of their fishing materials including nets, without the knowledge and consent of the plaintiff.

(3) An injunction to restrain the defendants and their servants or agents from further breaking and entering into the said fishing pond.”

On the 16th July, 1965, Prest, Acting J. dismissed the plaintiffs’ claim and gave judgment with 400 guineas costs for the defendants in the following terms:-

Declaration of title to the stream called ‘Ugborevborevbo in defendants’ plan No. MWC/63/62 exhibit ‘D1.’

£too damages for trespass in the stream called Ugborevborevbo, in defendants’ plan exhibit ‘D1.’

Injunction to restrain the plaintiffs, their agents and/or servants from further trespass in the stream called Ugborevborevbo in the defendant’s plan exhibit ‘D1’’.

The essence of this dispute was that the appellants, the plaintiffs (the Olota people), and the defendants (the Ogoda people) were each claiming a declaration of title in respect of a riverine area called Ugborevborevbo which the defendants described as a “fishing pond” whilst the plaintiffs described it as a “fishing stream.” The exact area claimed by each party was not identical as the plaintiffs claimed a larger area of Ugborevborevbo than the defendants, but each alleged the other side trespassed in the area which they claimed and each sought an in-junction to prevent further trespassing as well as damages for the past trespass. The plaintiffs had also claimed a declaration of title to land on either side of “Ugborevborevbo” fishing stream, but the learned trial judge, as we have stated, dismissed that claim and Chief Rotimi Williams has not sought to contend before us that that dismissal was wrong but has made his main point that the effect of section 3(1) of the Minerals Act which reads:-