Sugar Ogiri Ebimotureh & Ors V. Isowei Inekembagha & Ors (1988)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A. 

The plaintiffs appealed while the defendants cross appealed against a judgment of Tabai J given on 29 September, 1988 at the High Court, Yenagoa, Rivers State. The reliefs sought by the plaintiffs as finally contained in paragraph 16 of their statement of claim read:

“Wherefore the plaintiffs’ claim against the defendants is for a declaration that they are entitled to the fishery (sic) right in every alternative (sic) year or in rotation with the family of Balubou and or any other family or people claiming through that family in and over Pupa lake or pond.

Perpetual injunction restraining the defendants from interfering with the right of the plaintiffs in the use and enjoyment of Pupa in the alternative (sic) years.”

From the statement of claim, it would appear the plaintiffs attempted to rely on traditional history and some court judgments in support of their claim. The defendants to some extent also relied on history and court judgments. In particular, the defendants tendered a judgment of the Customary Court of Olobiri Kaiama dated 19 September, 1961 in Suit No. 21/61 which was decided on appeal in Brass County Court Appeal Civil Suit No. 69/61. The case was between Isedani, Abadani and Foubiri families as plaintiffs (similar to the present defendants except that Borodani family replaced Foubiri family) and Balubou family as defendants. The judgment together with the record of proceedings was admitted as exhibit G.

The learned trial Judge based his judgment virtually on his understanding of the judgment as contained in exhibit G. He said, after quoting from it, as follows inter alia:

Prior to this judgment it would appear that the plaintiffs and Balibou people fished the Puipa lake in rotation. But by this judgment the defendants were also allowed a right to fish in the lake … Upon a careful examination of the text the meaning I ascribe to the judgment is that the defendants be also allowed to fish in the lake in rotation with the other two parties and for the purpose of these fishing rights each of the Okpotulobou, Balubou and the defendants families is regarded as a Unit.

In view of the foregoing interpretation therefore I shall not grant a declaration to the extent sought by the plaintiffs. Rather I declare that the plaintiffs Okpotulobou family are entitled to fish in the Puipa lake one year in every three years and the Balubou and defendants each are entitled also to fish one year. For the avoidance of doubt it is hereby ordered that the plaintiffs should be entitled to resume fishing in the Puipa lake from 1st January, 1989-31st December, 1989. Balubou 1st January, 1990-31st December, 1990 and Isedani, Abadani and Borodani Okoloba 1st January, 1991-31st December, 1991.”

Both parties contend that the judgment is erroneous. The plaintiffs/appellants have raised two issues for determination and the defendants/cross-appellants three. I think the cross-appellants have fairly recast the two issues raised by the appellants which they then stated along with their own three issues as follows, the first two being for the appellants:

“(i) Whether the plaintiffs/appellants have any vested rights in the Puipa lake against the defendants/respondents, and if so, whether the trial court has divested them of such rights because of Exhibit G.

(ii) Whether the learned trial Judge based his judgment on Exhibit G, and if so was he right in so basing it.

(iii) Whether the learned trial Judge was right in holding that the appellants are the exclusive owners of the lands abutting the lake.

(iv) Whether the order of rotational fishing in which the appellants and Balubou family are each given a year and the three families of the respondents/cross-appellants are together given one year is justifiable in law and in equity.

(v) Whether the learned trial Judge was not wrong to have not dismissed the appellants’ claim since none of the reliefs they claimed was granted.”