Erdmann Evoyoma And Ors ( For Themselves And On Behalf Of The Olota Village, Okparabe Clan, Central Urhobo) V Okiki Daregba And Ors (For Themselves And As Representing The People Of Ogoda Village, Ewu Clan, Urhobo Central) (1968)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

In his appeal the appellants were treated by Prest, Acting, J. (as he then was) in the High Court sitting at Warri as plaintiffs in two consolidated suits in the first of which, W/31/62, the appellants claimed:-

(1) Declaration of title to land on either side of ‘Ugboprevborevbo’ fishing stream as well as the said fishing stream which flows through plaintiff’s land of Olota. Land and fishing stream in dispute are situated at ‘Olota’ ‘Okpa rabe Clan’ within the jurisdiction of this court. Area In dispute to be indicated on a survey plan to be filed in support of this action and thereon appropriately coloured.

(2) £300 damages for trespass in that in the month of March, 1962 the defendants by themselves, their people, servants and or agents without plaintiff’s consent wrongfully broke and entered on plaintiff’s land and fishing stream as at (1) above and destroyed plaintiff’s fishing traps thereat.

(3) Perpetual injunction to restrain defendants, their servant and or agents from further going on plaintiff’s land and or fishing stream as shown on the survey plan filed in support of this action”,

whilst in the other, W/34/62, the respondents who were treated as defendants for their part claimed:-

“(1) A declaration of title to all that fishing pond known as and called ‘Ugborevborevbo’ which is situation near Ogoda village in Ewu Clan Central District within the Warri Judicial Division. Value of the fishing pond is £15 per annum.

(2) £500 being damages for trespass by the defendants into the said fishing pond called Ugborevborevbo on or about the 6th day of March, 1962 by entering into the said fishing pond and catching fish therefrom by means of their fishing materials including nets, without the knowledge and consent of the plaintiff.

(3) An injunction to restrain the defendants and their servants or agents from further breaking and entering into the said fishing pond.”

On the 16th July, 1965, Prest, Acting J. dismissed the plaintiffs’ claim and gave judgment with 400 guineas costs for the defendants in the following terms:-

Declaration of title to the stream called ‘Ugborevborevbo in defendants’ plan No. MWC/63/62 exhibit ‘D1.’

£too damages for trespass in the stream called Ugborevborevbo, in defendants’ plan exhibit ‘D1.’

Injunction to restrain the plaintiffs, their agents and/or servants from further trespass in the stream called Ugborevborevbo in the defendant’s plan exhibit ‘D1’’.

The essence of this dispute was that the appellants, the plaintiffs (the Olota people), and the defendants (the Ogoda people) were each claiming a declaration of title in respect of a riverine area called Ugborevborevbo which the defendants described as a “fishing pond” whilst the plaintiffs described it as a “fishing stream.” The exact area claimed by each party was not identical as the plaintiffs claimed a larger area of Ugborevborevbo than the defendants, but each alleged the other side trespassed in the area which they claimed and each sought an in-junction to prevent further trespassing as well as damages for the past trespass. The plaintiffs had also claimed a declaration of title to land on either side of “Ugborevborevbo” fishing stream, but the learned trial judge, as we have stated, dismissed that claim and Chief Rotimi Williams has not sought to contend before us that that dismissal was wrong but has made his main point that the effect of section 3(1) of the Minerals Act which reads:-

‘The entire property in and control of all minerals, and mineral oils, in, under or upon any lands in Nigeria, and of all rivers, streams and watercourses throughout Nigeria, is and shall be vested in the State, save in so far as such rights may in any case have been limited by any express grant made before the commencement of this Ordinance.”

was not considered at all in the trial either by the parties or by the learned trial judge. He submitted that the onus was on the person claiming title to a river, stream or watercourse, as defined for the purposes of section 3(1) of the Minerals Act, to satisfy the court that it was not vested in the State.

He referred us also to the cases of Braise v. Adoki 10 N.LR. 15, Adeshina v. Lemonu F.S.C. 94/1963 of the 2nd of July, 1965 and Bassey v. Ekanem 14 W.A.C.A. 364, all of which dealt with fishing rights as, in our view, though in Bassey v. Ekenem the plaintiffs claimed “a declaration of tide to the fishing pond known as In-yang Asinyang property of the plaintiffs,” Verity, C.J. In his judgment did state:-

“Neither the claim nor the terms of the judgment are precise as to the nature of the title held to be vested in the respondents but it was stated in the course of argument by counsel that they claim exclusive fishing rights over the stretch of water described as the ‘fishing pond known as Inyang Asinyang.’

It appears from the evidence that this water is not strictly speaking a pond although so described but is in fact part of a series of creeks or streams linked with the No creek or river and eventually, it would appear, with the Cross River.”

and when dealing with the Minerals Ordinance (as it then was) not being considered he said “it was therefore a matter for consideration whether or not either party is by law entitled to any Fishing rights therein.”

The common law of England recognises no rights of ownership in running water, and we would agree that If a declaration of tide to a river, stream or water-course is sought then it would be necessary not only to have evidence of any rights recognised by the customary law of the area but also to consider the exact meaning to be given to section 3 (1) of the Minerals Act and in so doing to determine whether the words “property in the control of in that subsection governs the words “rivers, streams and watercourses” as well as “minerals and mineral oils,” or whether only the words “control of govern the words “rivers, streams and watercourses.

”In the present appeal, however it does not appear to us that it was ever properly established before the learned trial judge whether what each side sought was a declaration of title to the stream or pond, as they respectively refer to the area, or a declaration of title to fishing rights within that stream or pond. If it was the latter then the cases to which Chief Williams referred us that we have mentioned supra, are indeed material, but if it was not so confined to fishing rights then wider considerations will apply. It was submitted to us by Mr. Akpofure for the respondents that section 3(1) of the Minerals Act did not apply unless there was both evidence that the area was tidal and also a finding of fact by the judge to that effect and here that was not done. Indeed, he sought to submit that when the first defendant said:

‘The three streams, Oghrughru, Ogborevborevo and Obrifo contain water all the year round. The streams are tidal. The tide rises and falls during the dry season. The high tide flows from Ogoda down to Oghrughru through Obrifo and ebbs in the other direction. The tide does not carry the oyster shells with it,”

he was not using ‘tidal” in the normal sense of the term but solely as meaning “water flowing from one stream into another,” but it seems to us that his evidence was not sufficiently clear as to what he really meant and there was no other evidence given at the hearing on the question of whether the waters in question were or were not tidal. If section 3(1) of the Minerals Act be given a restricted meaning or if fishing rights alone are in issue then the questions as to whether the waters are or are not tidal is likely to be material.

In our view, therefore, the issues before the learned trial judge were never properly clarified and it is impossible for this court on appeal to determine what was the real issue between the parties. In the circumstances we see no alternative but to allow this appeal and to non-suit both parties, and notwithstanding the dismissal of the plaintiffs’ claim by the learned trial judge we consider the fairest course is to non-sui

Other Citation: (1968) LCN/1595(SC)