Isikuru Uyovwukerhi v. Ibatere Afonughe & Anor. (1976) LLJR-SC

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

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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.”

On these facts the judgement of the courts below were based.

One might ask ” In respect of which fishing fence is the declaration sought  Is it the one to be constructed by the Plaintiff/appellant or the one already constructed by the Defendants/respondents

We think and find that the Plaintiff/appellants claims are grossly misconceived.

The admission by Plaintiff that Edjuto Creek is jointly owned by both Erovie Quarter and Ohoro Quarter together with the admission by Plaintiff that the Defendants constructed the fence without Plaintifs consent cannot support a claim by Plaintiff for a declaration of title to the fence. Similarly, the admissions cannot support the claim for an order of injunction and damages for trespass.

We think that the basic question raised in these proceedings at the Trial Court related to ownership of Fishing Rights in the area of the Fishing Fence in dispute.” This is apparent from the evidence of the Plaintiff, the relevant portion of which reads:-

“From time immemorial, all the six fishing fences are being erected only by the children of our said late great-grandfather (referring to Iniemu).  The fishing ponds that are within the fishing fences are fished  only by us, during the dry season of every year.  In our family, we appointed two dividers” Aguonigbo and Ekikivwe; they are all men. Their duty is to distribute among members of the family, fishes killed in  our fish ponds and those killed from the fences”

Note the claim as framed does not permit of the determination of this question, and moreover, the evidence does not disclose that the exclusive right to fish reside in the Plaintiff. For it is on record that under cross-examination, the Plaintiff stated as follows:-

“Yes, I have sued both of you for preparing and constructing the fishing fence in question without our knowledge and consent.  At the dry season of the year, we fish in Edjuto Creek, by bailing the fish ponds therein. At times, the womenfolk fish therein with baskets.  The women folk are mainly from the Ohoro and Erovie Quarters..

As stated earlier, this case originated in the Customary Court, Olomu/Effuruntor Customary Court, and in civil matters, that court can only administer customary law” the law stated in section 23 of the Customary Courts Edict 1966 No. 30 of Mid-Western State subsections 1 and 3(b).

In the course of his judgement, the learned appellate Judge in his comment on the effect of section 3(1) of the Minerals Act said correctly in our view that:

“The observation of the members of the Customary Court showed clearly that “Edjuto” is a Creek which flowed into a big river called “Urbuide”.  As I said earlier, this being so, the ownership of the Creek vests in the Federal Government of Nigeria.

But when he went further to hold that

“In that case, the right to fish on any such river or creek is vested in all Nigerians”

We find ourselves unable to share his view in the light of the facts on record especially as there is nothing in the Minerals Act pointing to an intention to affect existing rights of fishery by vesting the rivers etc, in the State.  The provisions of section 3(1) of the Minerals Act and its effect on fishing rights came up for further examination by this Court in 1965 in the case of Adeshina v Lemonu (1965) 1 All N. L. R 223 where Bairamian J.S.C. (delivering the judgement of the Court) observed at pages 236 and 238 as follows:-

“There are four grounds of appeal against this judgement.
The fourth is that the judgement is against the weight of evidence and the third is that there is no proof that the water is tidal or, if it is, how far the tide goes. These have been dealt with. The other two read as follows:-

(1)That the learned trial Judge erred in law in granting injunction to the Plaintiff when, according to the Minerals Ordinance, the said area in dispute is vested in the Crown.

(2)That Braide v Adoki 10 N. L. R 15 applied by the Court was wrongly decided.

(a) In that the rights contained in section 3(1) of the Minerals Ordinance are vested in the Crown and not in the public.
Alternatively ”

(b) That the Mineral Ordinance was applied when in fact there is no question of Minerals involved.

“Braide v Adoki referes to Amachree v Kalio 1914 2 N. L. R 108 (which decided that in accordance with the Common Law and with Natural Law, the use of the New Calabar River, which is tidal and navigable  for ordinary purposes including fishing was common to all inhabitants of the country) and then goes on to say that section 3 of the Minerals Ordinance (passed in 1916) did not affect the general right of  common fishery over the tidal waterways.  The argument for the appellant is that those public rights of fishing were taken away by section 3 which vested the rivers, streams and watercourses in the Crown  (now in the State). This argument overlooks the presumption against implicit alteration of the law.  See Maxwell on the Interpretation of Statutes (10th Edition) p. 81, and Craies on Statute Law (5th Edition)  p. 310.  Maxwell puts it as follows:-

“One of those presumption is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares either in express terms or by clear implication, or in other words, beyond the immediate scope and object of the statutes.  In all general matters outside those limits, the law remains undisturbed.  It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness, and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual, or their natural sense, would be to give them a meaning other than that which was actually intended. General words and phrases, therefore, however wide and comprehensive they may be in their literal sense, must, usually be construed as being limited to the actual objects of the Act. It would be perfectly  monstrous to construe the general words of the Act so as to alter the previous policy of the law. In construing the words of an Act of Parliament, we are justified in assuming the legislature did not intend to  go against the rules of law, unless the language they have used obliges the court to come to the conclusion that they did so intend.”

A number of cases are cited in the footnote.  For present purposes, it will be more to the point in law to quote from what Byles, J., said in R v Morris (1867) 1 CCR 90-95:-

“It is sound rule to construe a Statute in conformity with the Common Law, rather than against it, except where or so far as the Statute is plainly intended to alter the course of the Common Law.”

Learned Counsel for the appellant has not referred to any provisions of the Minerals Ordinance as pointing to an intention to affect existing rights of fishery by the vesting of the rivers etc, in the Crown, and we do not think that the right of public fishing stated in Amachree v. Kalio (Supra) was affected by the Ordinance. The two grounds of appeal in that respect fail. ”

Grounds 3 and 4 were abandoned after a feeble attempt to argue them, quite wisely in our view, for, the evidence to which we have already referred and set out above does not show that the areas of the fishing fences as distinct from the fishing fences along Edjuto Creek are individually owned.

As regards Ground 4 in particular, it is true that the claim before the Court was never for a declaration of ownership of Edjuto Creek; it is for the ownership of Iniemu Fishing Fence.  It is also true that  the evidence before the Court established that the alleged Iniemu Fishing Fence, i.e., line of posts in the Creek now being claimed, was prepared and constructed by the Defendants/respondents without Plaintiffs consent in Edjuto Creek. The Court was then asked to declare Plaintiffs/appellants the owner of the fence constructed without their consent or authority by the Defendants/respondents. On what basis we ask

We find no legal basis for such a declaration and hold, therefore, that the appellants claim was rightly dismissed by the learned Judge who heard the appeal from the Chief Magistrate Court. The  further appeal  to this Court fails and is hereby dismissed with costs to the respondents assessed at N130.00.


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