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.”

I think the question whether the appellants have a vested right in the Puipa (or Pupa) lake must depend on where that right originated from (in other words, the source of that right), the evidence in proof thereof, and the nature and extent of the vested right. The facts that created that vested right must be pleaded and proved. The nearest the appellant went in pleading such facts is the averment in paragraph 4 of the statement of claim. It reads:

“4. The Pupa lake which flows from the Igbedi Creek has been the property of the plaintiffs from time immemorial. They inherited it from their grandfather, Ingbanke and members of which family as owners in possession have always exercised maximum acts of ownership in and over the Pupa by fishing in it exclusively and from time to time allowing licencees (sic) to fish in it in return for rent or tribute. This exclusive fishing right of the said family in the said fishery were (sic) generally respected by the members of the other families who had lands in the vicinity of the fishery.”

This appears to be a plea of traditional history but not a proper pleading of it. It was obviously inadequately pleaded how Ingbanke owned the lake originally, followed by the histories or names of the several ancestors who successively became owners or enjoyed the vested right thereto: See Akinloye v. Eyiyola (1965) NMLR 92 at 95; Total Nigeria Ltd. v. Nwako (1977) 5 S.C. 1 at 10-12; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413 at 424-425. In a matter like this, it is not enough to allege or show that the land was inherited from a particular ancestor or person. There must be proof further how that ancestor or person came to have title vested in him. In the present case, it must be pleaded and proved how Ingbanke became the owner of the lake; see Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393 at 429.The appellants also pleaded, half-heartedly, some court decisions which they said were in regard to the ownership of the lake such as suit No. 516/1922 (not tendered), suit No. 25/35, case No. 87/55 and suit No. P/36/64 (not tendered). But the cross-appellants who contended that they have a right to jointly fish in the lake with owners of land abutting the lake, as they claim they are, tendered the proceedings and judgment on appeal in suit No. 69/61 already referred to as Exhibit G. That judgment specifically considered five previous Native Court Cases Nos. 516/22, 3/38, 104/55, 178/59 and 361/54 tendered before the court, and many more generally on certain points as they arose.

The parties to that case, as I have already stated, were Isedani, Abadani (two branches of the present cross-appellants’ three families) and Foubiri families as plaintiffs, and the Balibou (or Balubou) family as defendants.

The judgment in suit No. 69/61 (Exhibit G) is, in my view, very relevant to this case. The typed copy which was tendered is in a fairly brittle condition capable of rendering it liable to unpatchable damage through handling and with time. I shall rely on the judgment substantially. If it will help preserve its contents, I intend to quote therefrom in extenso (for use), inter alia:

“As was seen from Case 516/22. The Pupa Fishery in dispute was, prior to 1922, under the control of the defendants’ family (the Balibou Family). But in 1922, Chief Orovu of the Okpotulubou family sued late Azigba the head of defendants’ family for title to the Pupa Fishery to the exclusion of the defendants’ family on the ground that his family (the Okpotulubou family) has lands bordering the fishery on both banks. Chief Orovu’s evidence-in-chief reads:

‘The pond in question was formerly a creek which was shut and became a pond. I had my own juju in the pond also I had a farm on its edge and some other countries also get their farms in boundary with me. The pond is using by the whole town in general.’

The court’s decision reads:

‘We’ve inspected the pond. It was a creek and enclosed by defendants’ land both sides. Therefore defendant has right to govern it though not for himself and family individual. He have to close the season on behalf of the town as being a creek he would not own it for himself and his family alone.’

From the above it is clear that the Pupa Fishery is not the defendants’ private property but a short of common property of which they (defendants) are the controllers.

In 1938, Orubena the son of Azigba (defendant in case 516/22), sued Chief Oruvu (plaintiff in 516/22) for title to this same Pupa Fishery to the exclusion of the Okpotulubou family. But the Native Court stuck (?) to the judgment in case 516/22 and place the fishery under the joint control of the Balibou (defendants) and Okpotulubou families of Igbedi. The case (3/38) went on review to the District Officer, A.F.FP. Newns, Esq., who restored sole control of the fishery to the defendants’ family (Balibou family…)

Cases 5/6/22 and 3/38 establish two facts material to the present case before us:

(i) ownership of land bordering the fishery goes with right to the fishery itself, and

(ii) the control of the fishery rests in the Balibou Family (defendants) but it is not their private property

Defendants admit this was so, but contended that plaintiffs are not true land owners but usurpers. However, cases 621/16. 182/48, 130/50, 143/51,76/53 and 85/53, all of which are for title to various portions of land bordering the fishery on both banks, were won by plaintiffs in competent courts. Plaintiffs are therefore legitimate land owners and not usurpers. Cases 182/48 and 130/50 have plans showing the Pupa Fishery and plaintiffs’ portions of land bordering it on both banks, and when it is taken into consideration that these two plans do not show the portions involved in the other four cases, all of which are admittedly bordering the fishery on both banks, it can be safely assumed that plaintiffs’ land bordering the fishery goes with right to the Fishery itself as defendants themselves admit plaintiffs have right to the Fishery … Again, incase 104/55 of 18/5/55, plaintiffs sued defendants’ late family head, Ase, for an injunction to restrain Ase and his fisher tenants from touching their land when fishing the Pupa fishery. Case 104/55 was obviously a round-about way to force defendants to recognise the fact that plaintiffs are equally with defendants in lawful possession of right to the fishery. And it succeeded. Two agreements put in evidence by plaintiffs – the one with Seimokumo Igwe for ?40 dated 25/9/58 and the other with Daniel Ikpoto for ?60 dated 14/10/59 – were for permission to fish in the Pupa fishery. At first we thought these two agreements were purposeful arrangements on the part of the plaintiffs without the knowledge of the defendants. But this was eliminated by case 178/59 put in evidence by defendants themselves. In this case (178/59) the Borodani branch of the plaintiffs’ family sued Seimokumo Igwe who was permitted by the plaintiffs (vide the agreement dated 25/9/58) to fish in the Pupa Fishery. The claim was for trespass in the ‘Pouoruggu’ fishery – a branch of the Pupa which branch the Borodanis regarded as their exclusive property. They claimed that the Agreement dated 25/9/58 covered only the main Pupa fishery. The Isedani and Abadani branches of the plaintiffs’ family came in as witnesses for Seimokumo Igwe and testified that the fishing permit granted to Seimokumo Igwe vide the agreement covered the entire Pupa fishery and that no branch of the Pupa is a private property. Late Ase, the then head of the defendants’ family, also came in as a witness for Seimokumo Igwe, that he also permitted Seimokumo Igwe to fish in the Pupa and that no branch of the Pupa fishery is exclusively owned by anybody or family. As a result, the Borodani branch of the plaintiffs’ family lost the case.

… We are therefore convinced that plaintiffs have been exercising right to the Pupa fishery jointly with the defendants. This our conviction is further strengthened by defendants’ letter to plaintiffs dated 28/4/61 put in evidence by plaintiffs and which reads:

‘When it is your turn we are not going to interfere you people. After our turn any side may take up, and that people may be fishing without trouble.’

Defendants admit they wrote this letter to plaintiffs in reply to plaintiffs’ message to them (defendants) on rotational fishing of the Pupa fishery in dispute…

We now come to the order for rotational fishing of the Pupa Fishery sought by the plaintiffs. Defendants, on their grounds of appeal contended that the claim is premature and that plaintiffs must first establish joint right or title with defendants to the fishery.

This contention is untenable, defendants have recognised plaintiffs’ right to the fishery and plaintiffs have been exercising this right side by side with defendants as seen in case 178/59 and in defendants’ letter dated 28/4/61.

In view of Mr. Newns’ Review judgment in case 3/38, we would not have justified the claim. But in case 361/54 of 8/2/55, the court has made an order for rotational fishing of the Pupa fishery between defendants’ family and the Okpotulubou family and this confirmed on review by the D.O. Mr. G.O. Ugwuh. This being so, it will not be fair to discriminate the plaintiffs who are equally with Okpotulubou family in lawful possession of right to the Pupa Fishery.”

The judgment has, in my view, quite painstakingly considered all available decisions throwing light directly and indirectly on what may confer on any family an interest in, and a right to the use of, the Pupa lake in question. Cases as early as 1916 and 1922 and as late as 1959 and 1961 were adverted to and applied where appropriate. Such a judgment given by a Native Court of Appeal in such a reasoned manner needs to be commended – and I do commend it.

The claim in that case of 1961 which was allowed by the Native Court of Kolokuma -Opokuma and confirmed by the Brass County Appeal Court was for the court to declare that the plaintiffs were entitled to fish yearly with the defendants in the Pupa Creek on rotational basis. The claim was framed thus:

“Assistance of court for defendants to share with the plaintiff’s yearly fishing i.e. to fish in rotation in the fishery known as ‘Pupa Creek’ dispute arose 2 months ago.”

The rationes decidendi laid down in that case following other previous decisions considered are that:

(i) A family owning land which abuts on the Pupa lake automatically has a fishing right in that lake.

(ii) No part of the Pupa lake is exclusively owned by anybody or family.

The Balibou family takes charge of the Pupa lake but it is not its private property.

I suppose this last ratio may cover the responsibility of ensuring that the lake is not misused in any way, that any family entitled to the right to fish in the lake is not denied access, and that in case of rotation, the period agreed and the order of rotation are maintained.

The question of fishing in the lake for a year by a given family before the right to fish in it the following year by another family on rotational basis may have been due to a misunderstanding of the way the claim in civil case No. 21/61 (on appeal, No. 69/61) as contained in Exhibit G was couched. In my view, the claim there did not ask for or talk about a yearly rotation. It sought for a declaration or order to share (or take part) in the yearly fishing but in rotation. The rotation could well be on short terms, say, a week, a fortnight or a month within a given year to qualify as a yearly fishing in rotation. But if it is a yearly rotation and there are many families as the cross-appellants argue for five families, there could be a long abeyancy of about 4 years by each family in the exercise of fishing rights. If there are more families entitled 10 the lake, the period of waiting could be longer still.

That appears intolerably harsh, of no economic relevance, and may just as well be regard as a right in limbo.

I do not think the decision as per Exhibit G contemplated such type of rotation. The idea of a yearly rotation was imported by Tabai J into the said decision. What cannot now be disputed is that each family shown to own land which abuts on the lake has a vested right to fish in the lake. There could be many such families. The survey plan No. ECRS/25/81 produced by the defendants in the present case (Exhibit D), shows as many as seven such families. That number would certainly accentuate the unbenign effect of a yearly rotation. If any family is without such land abutting the lake bur has a right to the lake, it can only gain access to the lake, it would seem, either by the permission of a land owner, or by community consensus allowing such access howsoever, or by trespass.

To answer the questions for determination, I shall say as follows:

(i) Issue 1: The plaintiffs/appellants wanted a declaration that would make only their family and the Balubou family entitled to fish in the Pupa lake. They failed to prove that claim. Their vested right in the lake is not more than they can enjoy with other families. The judgment on appeal has not divested them of any right to fish in the lake. The appellants have argued that the judgment as per Exhibit G is re inter alias act a as far as they are concerned since they were not a party to the proceedings. I have endeavoured to show the principles established by that judgment. Among the several cases considered therein were case No. 516/22 (1922 case) and case No. 3/38 (1938 case).

In these two cases, the present plaintiffs/appellants were parties. It was from these two cases that the Brass County Appeal Court (which gave the judgment in Exhibit G) found laid down the following two principles: (a) that ownership of land bordering the Pupa lake confers the right to fish in the lake on such land owner; and (b) that the control of the lake is in the Balubou family. That court appeared to have recognised a further principle as testified to by some witnesses in one of the cases considered, i.e. case No. 178/59, namely (c) that no part of the Pupa lake is exclusively owned by anybody or family.

I think it will be idle to contend, as the appellants have done, that because they were not parties to case No. 69/91 (Exhibit G) they are not bound by it. They may not be bound by the order made therein but they are, in my view, bound by the principles enunciated in that case, derived essentially from some earlier cases in which the appellants were either the plaintiffs or the defendants unless they were able to make out a good case of either exclusive ownership or ownership jointly only with the Balubou family and none other. This they have failed to do.

(ii) Issue 2: The learned trial Judge was entitled to consider the effect of the judgment as per Exhibit G upon the claim made by the appellants and to see to that extent it could be maintained. Any court will, of course, be entitled to apply as appropriate the principles laid down therein. Whether the learned trial judge properly applied that judgment is another matter. (iii) Issue 3: The answer is no. (iv) Issue 4: I will say there is no support for a yearly rotation. As many families as have land abutting the lake would, on the reasoning in the judgment as per Exhibit G, be entitled to fish in the lake. The period of rotation, if rotation is preferred, may be agreed by all concerned as may be convenient, or resolved by litigation in a properly constituted action. The defendants are made up of three different families sued together by the plaintiffs. They are not one unit but three families. They must be treated as three separate families for the purpose of a rotational right to fish in the Pupa lake.

(v) Issue 5: The appellants failed in toto to prove their case. They were unable to prove the traditional history relied on and could not show by the decided cases that their case, which is that their family and the Balubou family have exclusive right to the lake, has merit. The proper order is that of dismissal: see Ejiofor v. Onyekwe (1972) 12 SC 171; Green v. Green (1987) 3 NWLR (Pt.61) 480.

I think this is the proper place to state the real plaintiffs in this action. The defendants took time to point this out in their brief of argument. The writ of summons was purportedly taken out by (1) Sugar Ogiri Ebimotureh, (2) Mark Eke, (3) Biscoe A. George and (4) Ikpofengi Kikile, on behalf of the Okpotolubou and Balubou families of Igbedi.

But in the statement of claim, which in law supersedes a writ of summons, the names, Ikpofengi Kikile and the Balubou family, were dropped. To keep no one in doubt as to who the plaintiffs were it was pleaded in paragraph I of the said statement of claim as follows:

“1. The plaintiffs are members of the Okpotulobou family of Igbedi in the yenagoa Local Government Area of the Rivers State and bring this action for themselves and as representing the said Okpotulobou family and with the leave of this Honourable Court.”

It must therefore be made clear that any later documents filed or made in respect of the proceedings still bearing Ikpofengi Kikile and Balubou family or either of them as if constituting part of the plaintiffs should be regarded as due to inadvertence. This particularly applies to the statement of defence, the judgment of the lower court, the notice of appeal and the briefs of argument.

Having said that, I hold that the appeal of the plaintiffs fails. The cross-appeal of the defendants succeeds in the manner the issues raised by them have been decided in this judgment. The judgment of the lower court as regards the rotational period of one year and by which each family would have access to the lake is set aside for the reasons I have given in this judgment. The plaintiffs’ action is accordingly dismissed. I award N1,000.00 costs in the court below and N1,000.00 costs in this court in favour of the defendants/cross-appellants against the plaintiffs/appellants.

Other Citations: (1988) LCN/0055(CA)