Adamo Lawani Adeshina V Lamidi Lemonu (1965)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC

This appeal is by the defendant in the Lagos High Court Suit 169/59, who complains of the judgment given by Onyeama J. on 1st  June, 1962, when a judge of that court. The plaintiff’s claim is for an injunction to restrain the defendant from molesting the plaintiff from fishing in the Lagos lagoon near Apapa, and for damages, on the ground that on the 1st May, 1959, while the plaintiff was fishing in the part of the lagoon shown yellow on the Government Survey Sheet 6 (5th ed.) for Lagos and environs, the defendant seized the plaintiff’s net. The plaintiff is a native of Ibeshi in the Badagry district and a fisherman; he says that he and his forebears had been fishing in the Lagos lagoon and the Badagry Creek (sometimes called Porto-Novo Creek) without paying tribute to the defendant or anyone; and he contends that the Lagos Lagoon and waterways in and around Lagos are vested in the Government of Nigeria – and contention for which he relies mainly on section 3(1) of the Minerals Act, cap. 121; it reads

‘The entire property in and control of all minerals, and mineral oils, in, under or upon any land in Nigeria, and of all rivers, stream and watercourses throughout Nigeria, is and shall be vested in the Crown, 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.”

The defence is that the Onisiwo Family (of which the defendant is the Chief) owns a large area of land at Ibekun and, as appurtenant to the land, has always owned under native law and custom the Tomaro Creek (otherwise known as Lighthouse Creek), Ito Agon and Ito Maro (otherwise known as Porto-Novo Creek) Ogogoro Creek and the lagoon starting from Lagos Bar and Harbour entrance to the mouth of Abekun Creek or Ogogoro point and otherwise known as Harbours waters, as well as the fishing right over these waters, which have boundaries in the East with the Oluwa and on the West with the Oniru; that the Onisiwo Family from ancient times gives annual permission to fishermen of These and other areas to fish in those waters on payment of rent; that the Family’s agent about 1st May, 1959 found the plaintiff fishing at Ogogoro point, shown yellow on map AL 144/1959, and had to report to the police to prevent a breach of the peace, and it was the police who seized nets. And there is a counterclaim for money for unlawful user of the Family’s fishing rights at Ogogoro Creek and Ogogoro point, Badagry Creek and Porto-Novo Creek and the Harbour waters, and for an injunction to restrain the plaintiff from further fishing in those waters.

There was no evidence to show that the plaintiff was, as alleged in the defence, fishing at Ogogoro point; and the evidence for the plaintiff, that he was fishing in the stretch of water which washes Apapa, far from Ogogoro point as shown in his survey sheet, remained uncontradicted. On that issue the trial judge found in the plaintiff’s favour and his finding was not seriously contested on appeal.

The trial judge also made a finding that the stretch where the plaintiff was fishing when arrested by the police was tidal water. On appeal it was argued, but not with any show of good reasons, that the finding was wrong, and the finding cannot be disturbed.

In view of his finding that k was tidal water, the trial judge followed the decision in Braide v. Adoki, 10 NLR. 15, that by reason of section 3(1) of the Minerals Act (already quoted) the plaintiff was free to fish in tidal water and the defendant had no justification to interfere; and as for the argument that even if that section applied to vest the water in the Crown an order of injunction could not be made at the plaintiff’s instance, the judge recalled that an injunction was granted to protect public fishing in tidal waters in Sowa v. Amachree and upheld on appeal: 11 NLR. 82. Therefore the judge made an order of injunction, to restrain the defendant from interfering with the plaintiff’s right to fish in the area coloured yellow on the Survey sheet he put in. It is a rather wide stretch of water along Apapa; it is named Porto-Novo creek on that sheet and is shaded in yellow. The judgment is confined to that, and is silent on the defendant’s counterclaim. The appeal does not complain on the ground that the counterclaim in not dealt with in the judgment, but complains only of the judgment in favour of the plaintiff.

There are four grounds of appeal against that judgment. The fourth is that the judgment is against the weight of evidence, and the third that there is no proof that the water is tidal or, if it is, how far the tide goes. Those have been dealt with. The other two read as follows –

“(1) That the learned trial judge erred in law in granting injunction to the plaintiff when according to the Minerals Ordinance, the said area in dispute is vested in the Crown.

(2) That Braide v. Adoki, 10 NLR. 15 applied by the court was wrongly decided.

(a) In that the rights contained in section 3(1) of the Minerals Ordinance [are] vested in the Crown and not in the public. Alternatively.

(b) That the Minerals Ordinance was applied when in fact there is no question of Minerals involved.”

Braide v. Adoki refers to Arnachree v. Kalio (1914) 2 NLR 108 (which decided that in accordance with the common law and with natural law the use of the New Calabar River, which is tidal and navigable, for ordinary purposes, including fishing, was common to all the inhabitants of the country) and then goes on to say that section 3 of the Minerals Ordinance (passed in 1916) did not affect the general right of common fishery over the tidal waterways. The argument for the appellant is that those public rights of fishing were taken away by section 3, which vested the rivers, streams and water-courses in the Crown (now in the State). This argument overlooks the presumption against implicit alteration of the law: see Maxwell on the Interpretation of Statutes (10th ed.) p. 81 and Craies on Statute Law (5th ed.) p. 310. Maxwell puts it as follows:

“One of these presumptions is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication, or, in other words, beyond the Immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness, and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual, or their natural sense, would be to give them a meaning other than that which was actually intended. General words and phrases, therefore, however wide and comprehensive they may be in their literal sense, must, usually, be construed as being limited to the actual objects of the Act.”