Bonny & Ors (For Themselves And On Behalf Of The People Of Toru- Orua Village And Bulu –orua Village In The Western Ijaw) V. Theophilus B. Yougha & Ors (For Themselves And On Behalf Of All The People Of Ebedebiri-village In Western Ijaw) (1969)

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MADARIKAN, J.S.C. 

This is an appeal from the judgment of Prest J. on the 28th of March, 1966, in the High Court, Warri (Suit No.W/87/1963). The present appellants as defendants were sued by the present respondents who were plaintiffs in the action in which the writ of summons was endorsed as follows:

“Plaintiffs claim against the defendants jointly and severally is for:

(a) A declaration that the plaintiffs and the defendants are the owners in title and possession from time immemorial of the fishing pond known as and called “okau” situate near Ebedebiri village in Western Ijaw within the Ward Judicial Division. The exact area and boundaries of the said “Okau” fishing pond will be more particularly described in a survey plan to be filed later in court by the plaintiffs. Annual value of the fishing pond is assessed at £10 per annum.

(b) An injunction to restrain the defendants their servants and/or agents from entering further the said fishing pond and catching fish therefrom without the consent of the plaintiffs”.

At the trial, it was common ground that the fishing pond in dispute had been litigated upon in Suit No. 29/155/48 in the Tarakri Clan Court at Ebedebiri between the privies of the parties to the action. In the 1948 case, one Olomu on behalf of the Ebedebiri group instituted proceedings against one Alagua on behalf of the Toru-Orua group claiming:

“Declaration of title to “Okau fishing pond” discovered by an Ebedebiri man and was used in common with Orua village and stopped Ebedebiri village group from fishing one year ago”.

On the 19th of November, 1948, the Tarakri Clan Court decreed that the pond belonged to both village groups of Ebedebiri and Toru-Orua and further ordered that:

“If a village group goes and fishes in the fishing pond without the Information of the other village group, she is to pay the other village group £100 and if an Individual villager from each village is caught both village groups are to combine and sue the person for £6 for contravening the rule of the Clan Court”.

In the Instant case, pleadings were ordered and duly delivered. It would appear from the plaintiffs’ statement of claim that what sparked off the present dispute was that in spite of the 1948 judgment which as stated earlier, vested ownership of the pond jointly in both parties, the defendants were asserting the right of exclusive ownership and preventing the plaintiffs from fishing in the pond.

The defendants, for their part, contended in their statement of defence that the present action was an abuse of the process of the court as the claim had been previously adjudicated upon “as between the same parties in the same capacity and the judgment still subsists” The learned trial Judge found as a fact that the 1948 judgment subsisted, but, as he was of the opinion that the wording of the judgment “left the rights of the parties in the air and needed clarification in order to avoid disputes between them” he entered judgment as follows:

(1) A declaration that the people of Ebedebiri village group and the people of Toru-Orua village group are joint owners of the fishing pond known as “OKAU” and particularly delineated on the plan exh. “P1” filed by the plaintiffs in this case;

(2) An injunction restraining the defendants, their agent/or servants from fishing the “OKAU” fishing pond without the knowledge and consent of the plaintiffs, such consent not to be unreasonably withheld.

(3) An injunction restraining the defendants, their agents and/or servants from preventing the plaintiffs, their agents and/or servants from fishing the “OKAU” fishing pond subject to the consent of the defendants being first obtained, such consent not to be unreasonably withheld.

(4) An order that during the fishing season both parties to agree on a date on which the “OKAU” fishing pond is to be fished in common, and in the absence of such agreement, the matter is to be referred to the Divisional Adviser of the area whose decision shall be final; Alternatively, the two parties are to fish the “OKAU” fishing pond alternatively every fishing season, beginning with the plaintiffs during the next fishing season after the date of this judgment”.

The present appeal is from that judgment. Before us on appeal, learned counsel for the appellants dealt with the foregoing orders in the order in which they were made. He indicated that he had no complaint against the first order which in effect granted a declaration that both parties are joint owners of the pond and defined clearly the area by reference to a plan unlike the earlier declaration of the Tarakri Clan Court. With regard to the second order, namely,

“An injunction restraining the defendants their agents/or servants from fishing the “OKAU” fishing pond without the knowledge and consent of the plaintiffs, such consent not to be unreasonably withheld.”

Counsel conceded that the order is in accordance with the relief sought in the second head of the plaintiffs’ claim, but pointed out that the order enjoins the defendants to obtain the consent of the plaintiffs before fishing in the pond whereas the 1948 judgment only required the village group to inform the other before fishing in the pond.

It was counsel’s final submission that the third and fourth orders contained reliefs which ought not to have been granted as they were not claimed by the plaintiffs in their writ. In reply, Chief Coker for the respondents submitted that it was competent for the court to make the third and fourth order even though they were not claimed in the writ.

As authority for his submission, he referred us to the case of Harrison Broadley and others v. Smith [1964] 1 All E.R. 867 where the plaintiffs had asked for injunctions restraining the defendant from remaining in occupation of a house and land on the ground that the defendant was a trespasser.

The defence to the action was that the defendant had a tenancy of the house and land under Agricultural Holdings Act, 1948, and that he was therefore entitled to remain in possession by virtue of the Act. The court came to the conclusion that it was not proper to grant the injunctions sought but, in the particular circumstances of the case, it granted a declaration that the defendant was not entitled to the protection of the Act as that declaration was considered necessary even though the relief by declaration was not claimed by the plaintiffs.

In our view Harrison-Broadley’s case (supra) is easily distinguishable from the present case where the plaintiffs were seeking a discretionary remedy and there was no question of a declaration of the existence or non-existence of legal rights under a statute. Chief Coker further argued that even though in 1948 the parties were adjudged to be joint owners of the fishing pond, under customary law one village group had to obtain the consent of the other village group before fishing in the pond. We find ourselves unable to accept this submission as, if it was part of the plaintiffs’ case that there was such custom, it ought to have been pleaded and proved at the trial.

The normal incident of joint ownership is that joint owners are each free to exercise rights of ownership and it seems to us that to establish a fetter on the exercise of such rights by customary law would require cogent proof. Chief Coker also contended that the 1948 judgment was practically ineffective as it did not preclude the appellants from laying claim to exclusive ownership of the pond.

Being dissatisfied with that judgment, counsel conceded that the proper course for them was to have lodged an appeal, but he argued that failure to lodge an appeal could not prevent them from instituting fresh proceedings seeking a more effective remedy.

When asked by the court whether he had any authority for this novel proposition, he was candid enough to indicate that he had none. It was not disputed that the legal rights of the parties with regard to the fishing pond were determined by a court of competent jurisdiction in 1948. If the present respondents were dissatisfied with that decision, they ought to have lodged an appeal within the time prescribed by law.

This they failed to do. We are clearly of the view that they had no right to start litigation again on precisely the same issue as had been determined in 1948. If this were permitted, there would be no finality in litigation, and it would violate a fundamental doctrine of all courts that there must be an end to litigation.

The doctrine which is expressed in the legal maxim Interest republicae ut sit finis litium ensures that rights of litigants are set to rest. We do not propose to disturb the first order made by the lower court as it is substantially the same as the 1948 judgment and it has an added advantage in that is is tied to plan No.M/GA. 41A/64 (exhibit P.1) which clearly demarcates the fishing pond in dispute See Seriki v. Solaru 1965 N.M.L.R. 1.

We are, however, unable to sustain, in its present form, the second order granting an injunction as, contrary to the 1948 judgment; it requires the defendants to obtain the consent of the plaintiffs before fishing in the pond. With regard to the third and fourth order, we accept the submission of learned counsel for the appellants that they ought not to have been granted as they were never sought for.

We mean no disrespect when we say that the third order did not convey clearly what was intended as it purports to restrain the defendants from preventing the plaintiffs from fishing in the pond “subject to the consent of the defendants being first obtained.” In the result, the appeal is allowed and the judgment of Prest, J. in the High Court, Ward, in Suit No.W/87/1963 including the order for costs, is hereby set aside and it is ordered as follows:

(1) The plaintiffs are hereby granted a declaration that the people of Ebedebiri village group and the people of Toru- Orua village group are joint owners of the fishing pond known as OKAU and delineated on plan No.M/GA.41A/64 (exhibit P1) and therein edged pink.

(2) The defendant, their agents or servants are hereby restrained from fishing in the said pond without the knowledge of the plaintiffs.

(3) The respondents shall pay the cost of this appeal fixed at 80 guineas, and in the lower court at 60 guineas. Appeal allowed.

Other Citation: (1969) LCN/1644(SC)