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CHIEF NSIDINTAK BASSEY AND ANOTHER
V.
CHIEF ASUQUO EKANEM AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
5TH DAY OF NOVEMBER, 1953
W.A.C.A. No. 101/1953
2PLR/1954/53 (WACA)
OTHER CITATION(S)
2PLR/1954/53 (WACA)
(1953) XIV WACA PP. 364-365
LEX (1953) – XIV WACA 364-365
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
COUSSEY, J.A.
DE COMARMOND, S.P.J., NIGERIA
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BETWEEN:
1. CHIEF NSIDINTAK BASSEY
2. ONOYOM EKPENYONG
FOR THEMSELVES AND REPRESENTING THE PEOPLE OF ATAN – Appellants
AND
1. CHIEF ASUQUO EKANEM
2. OKON AKPAN
FOR THEMSELVES AND REPRESENTING THE PEOPLE OF IDERE – Respondents
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ORIGINATING COURT(S)
Appeal by defendants from the judgment of the Supreme Court
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REPRESENTATION
Wachuku, Esq. — for Appellants
Udo Udoma, Esq. — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for declaration of title to a fishing pond and for damages for trespass – Evidence that the “pond” was part of a series of creeks or streams linked with a river – Where the plaintiffs-respondents were the occupiers of land on one bank of the so-called pond and claimed the fishing rights in relation to their rights to that land – How treated
ENVIRONMENTAL LAW:- Rights of fishing – Watercourse, Minerals Ordinance, section 3 – Rights of Crown in rivers, etc.
AGRICULTURE AND FOOD LAW:- Fishing rights over pond/creeks/streams/rivers linked to occupation of adjoining land – How treated
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CASE SUMMARY
Appeal by defendants: W.A.C.A. No. 101/1953: (sub nom. Chief Asuquo Ekanem and Another (Plaintiffs-Respondents) v. Chief Nsidintak Bassey and Another (Defendants-Appellants) with names of people on either side).
In the Supreme Court the plaintiffs (for the people of Idere) sued the defendants (for the people of Atan) for a declaration of title to a fishing pond “property of the plaintiffs” and for damages for trespass; they succeeded and the defendants appealed. The evidence showed that the “pond” was part of a series of creeks or streams linked with a river. The plaintiffs (respondents) were the occupiers of land on one bank of the so-called pond and claimed the fishing rights in relation to their rights to that land. The defendants (appellants) alleged that the fishing rights were enjoyed communally by themselves and other people. The Minerals Ordinance by section 3 (first enacted in 1916) vests the property in and control of all rivers, streams and watercourses in the Crown. It was not adverted to in the Court below and its effect on rights of piscatory in the case was not considered, There was no evidence whether the streams involved in the case were a part of tidal waters (and affected by Braille v. Adaki, 10 N.L.R., p. 15, which decided that all inhabitants had common rights of piscatory in tidal waters in view of the said section 3) or non-tidal (on which there is no case decided on fishing rights).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (setting aside the Judgment and entering an order of non-suit) that:
There being no evidence on whether or not the waters in which rights of fishing were claimed were a part of tidal waters, the judgment of the Court below would be set aside and a non-suit entered; and the Law Officers would be informed in view of section 3 of the Minerals Ordinance.
Case cited:-
(1) Braide v. Adoki, 10 N.L.R., p. 15.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.J., NIGERIA
In this case the plaintiffs sought “a declaration of title to the fishing pond known as Inyang Asinyang property of the plaintiffs” and damages for trespass in respect thereof. In these claims they succeeded and the defendants have appealed.
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. The respondents claim to be the owners of the land on the northern bank of this particular stretch of water though it would appear from earlier litigation that they have been held to be no more than occupiers thereof, the ultimate ownership thereof being vested in the Ito people. It is in relation to these rights in the land that the respondents claim the fishing rights also. The appellants on the other hand assert that the fishing rights in this water are enjoyed communally by themselves, the Umon and the Ito people.
At no time during the trial or indeed at the hearing of the appeal does it appear to have occurred to either party or to the learned Judge in the Court below that by reason of the Mineral Ordinance (Cap. 134), section 3, all property in and control of the streams of which the so-called “pond” forms part would appear to be vested in the Crown and that it was therefore a matter for consideration whether or not either party is by law entitled to any fishing rights therein. In this connection it is to be observed that in Braide v. Adoki (1) it was held by Berkeley, J., that the effect of this section, which was first enacted by the Minerals Ordinance, 1916, is that as to tidal waters the vesting thereof in the Crown conferred upon all the inhabitants common rights of piscatory and this view does not appear to have been dissented from by the Full Court before which the case came on appeal. I have not been able to refer to any case in which a judicial decision has been reached as to the effect of vesting property in and control of all rivers, streams and watercourses in the Crown upon such rights of piscatory in non-tidal waters.
It is apparent that in the absence of evidence as to whether or not the streams involved in this case are a part of tidal waters it is impossible to determine whether the decision in Braide v. Adoki (1) is applicable to the present case. It is equally apparent that in the absence of such evidence and of any pleadings or arguments addressed to this aspect of the matter in the Court below, it would be idle for this Court now to attempt to determine what would be the position if the waters in issue were non-tidal.
After consultation with counsel for both parties in open Court we decided that in these circumstances the appeal should be allowed, the judgment of the Court below set aside and a non-suit be entered in substitution therefor. This will enable the plaintiffs to bring a fresh suit, if so advised, in circumstances which will enable this aspect of the matter to be fully argued and receive due consideration.
The question is one of the utmost importance we have no doubt to a large number of persons who are claiming fishing and other similar rights in this or other parts of the country and in view of the possible rights of the Crown in this regard it may be that should a fresh suit be brought the Crown would desire to be joined as a party. In any event we propose to forward a copy of this judgment to the Law Officers for their information.
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COUSSEY, J. A.
I concur.
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DE COMARMOND, S. P. J.
I concur.
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Judgment set aside; non-suit entered.
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