Brigbo & Ors v. Enyin Pessu & Ors (1974)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C

CLAIM

The plaintiffs’ claim against defendants jointly and severally is for:

(a) a declaration of title to the Creek known as AROTAGHAN lying and situate at Korokoto in the Warri Division.

(b) and against the 1st to 7th defendants the 1st and 2nd plaintiffs claim jointly and severally the sum of 300 pounds being damages for trespass in that on or about the month of May 1956 without plaintiffs’ consent first obtained the 1st to 7th defendants entered the plaintiffs’ Creek AROTAGHAN and there fished the same and continue to fish the same.

ALTERNATIVELY: The 1st and 2nd plaintiffs claim against 1st to 7th defendants the sum of 300 pounds for use and occupation of the said Creek Arotaghan.

(c) And against the 1st to 7th defendants the plaintiffs seek an order of injunction to restrain the said defendants their servants and/or their agents from fishing the said Creek Arotaghan.

(d) And against the 8th defendant the plaintiffs seek an order of court to restrain the 8th defendant his servants and/or his agents from placing tenants to fish in or otherwise using the said Creek Arotaghan without consent of the plaintiffs.”

In this judgment, the 1st to the 7th defendants named above would be referred to as the “first set of defendants”.

Later in the proceedings, after the order for pleadings had been made, there was an application by one Akuke Awe for himself and on behalf of the entire Ijaw people of Gbekebo, Western Ijaw Division to be joined to defend the action in a representative capacity for himself and the Ijaw people of Gbekebo. The application was granted.

In this judgement this defendant would be referred to as the third set of defendants”. At a later stage in the proceedings, the court was informed that the 8th defendant, i.e. the second set of defendants had died. An application was made to substitute two persons for him, namely, original 8th defendant, as well as the two new substituted persons, were being sued as representatives of the “Numa family of Ogbe-Ijeoh at Aretaghan”.

The parties duly filed their first set of pleadings and the main defence, as appearing on the statements of defence, was that the plaintiffs were asking for a declaration over creeks the ownership of which, by statute, was vested in the State. The plaintiffs then sought leave to amend their writ and their statement of claim. When the application of the plaintiffs to amend their writ was granted, the second set of defendants appealed against the order granting leave to the plaintiffs to amend their writ to the Federal Supreme Court. The appeal was struck out by the Federal Supreme Court and further proceedings in the action continued in the High Court, Warri. It was at this stage that the two persons hereinbefore named were substituted for the 8th defendant or rather the second set of defendants.

On the 14th October, 1963, the first hearing of the case commenced in the Warri High Court before the Honourable Mr. Justice Ekeruche. The 1st plaintiff, Enyi Pessu, gave evidence for four days at the end of which the learned trial judge adjourned the further hearing of the case to a named date. On the date named, the hearing was further adjourned and in themeantime, the coon became differently constituted. The action came before the Honourable Mr. Justice Rhodes- Vivour on the 25th of May, 1964, when he adjourned it fonher on three other occasions. On the 10th November, 1965, when the case came up again before the same judge and counsel for the plaintiffs was not prepared to proceed with the case, the action was struck out with costs. By motion paper dated 13th November, 1965, an application was made to re-list the case and because of the importance attached to this motion, it is expedient to set out the contents of the motion paper in full as follows:

1 Enyi Pessu