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CHARLIE KING AMACHREE
DANIEL KALLIO AND OTHERS.
THE SUPREME COURT OF NIGERIA (FULL COURT)
(1908) 2 N.LR.108
BEFORE THEIR LORDSHIPS
SPEED Chief Justice.
Williams, Gibson, Taylor, Brew, and Clark – for the Appellants
Clinton – for the Respondents
AGRICULTURE AND FOOD LAW:- Communal rights to fish in waterways – When control of use of waterways can be tied to land – Waterways and resources which are not amenable to control by first settler’s rights or historical exercise of sovereignty
ENVIRONMENTAL AND NATURAL RESOURCES LAW:- Rivers – Distinction between creeks and main river arteries – Appropriation or use of main river artery by local inhabitants – Attitude of court to claims for exclusive control/ownership of water body connecting several villages
ENVIRONMENTAL AND NATURAL RESOURCES LAW:- Excusive right to use of tidal waters based on proof of being settlers – Use of oral history as evidence for same – Attitude of courts thereto
ENVIRONMENTAL AND NATURAL RESOURCES LAW:- Water resources – Ownership of and claim to right of exclusive use – How determined – Distinction between small creeks (or veins) and large rivers (main arteries) – Implication – Proof of settlement or control of adjoining lands – Relevance – How treated
ENVIRONMENTAL AND NATURAL RESOURCES LAW:- Fishing rights in tidal water ways – Authority competent to control same – Whether can be based on historical/pre-colonial Nigeria sovereignty or kingdoms which no longer exists – How treated
CONSTITUTIONAL AND PUBLIC LAW:- Assertion of rights attaching to communities by virtue of sovereign rights of forebears – Where such sovereign authority had been displaced – Implication for exclusive control over land and waterways and rights to claim tributes – Public policy and public interest basis for same
CONSTITUTIONAL AND PUBLIC LAW:- Powers over Nigeria’s tidal and navigable waterways – Whether amenable to historical incidents, ancient kingdoms or rules of customary law – Whether subject only to laws passed by the Government of the Federal Republic of Nigeria –Customary law principle recognising such rights – Whether repugnant to natural justice and equity and thus unenforceable
REAL ESTATE AND LAND LAW:- Communal control over land and waterways – Right to assert and exact tribute from users of same – Where based on long displaced pre-colonial Nigeria sovereignty – Validity of – Attitude of court thereto
REAL ESTATE AND LAND LAW:- Proof of ownership of land and natural resources via oral history – Proof not adequate to assert control of tidal or navigable waterways – Whether can sustain claim over creeks and land adjoining creeks and tidal waterways – Relevant consideration
CUSTOMARY LAW:- Powers of traditional rulers under the modern legal order of the Federal Republic of Nigeria – Exercise of sovereign waters – Whether exclusively vested on the government of Nigeria – Whether different rule applies to land to which such waterway runs – Customary law assertion tending to put control of navigable and tidal waterways under a community – Whether contrary to the principles of natural justice and equity and unenforceable
HUMAN RIGHT – RIGHT TO USE OF NATURAL RESOURCES:- Invocation of natural law in asserting the inherent rights of all the inhabitants of a country to the use of the elements that are common to all – Tidal and navigable waterways for transportation and fishing – Nature of proof required to grant exclusive control to any group over such common resources to the detriment of fellow citizens
TRANSPORTATION AND LOGISTIC LAW:- Control over Nigeria’s tidal and navigable waters open to large water vessels – On whom reside – How ascertained – Nature of waterways that courts are prepared to cede to the exclusive control of individuals or groups distinct from the State
TAXATION AND REVENUE:- Customary law taxation – Historical imposition and collection of tributes for the use of waterways and fishing grounds – Validity of – Competency of a native community to collect same based on historical but no longer existing sovereignty – Proper treatment of
EDUCATION AND LAW:- Oral historical accounts – Use of in asserting legal rights over natural resources especially land and waterways – When it would be a dangerous thing to decide a point of law based on same without the support of some written history or some corroborative facts – Whether agreement of parties relevant – Attitude of court
This is an appeal by the Defendants from the judgment of the Divisional Court, sitting at Degema, which was delivered on the 14th day of October, 1913.
In the original action the Plaintiffs sought-
(1) (a) An injunction to restrain the Defendants from fishing by casting nets in the New Calabar river and in the creeks and ponds being the small tributaries of that river and from fishing near to the towns and villages of the said river and creeks.
(b) An injunction to restrain the Defendants from erecting huts and other temporary structures on the banks of the said river and creeks without the permission of the Plaintiffs.
(2) £300 damages; and
(3) Such further relief as to the Court may seem fit
The Defendants joined issue and denied the Plaintiff’s right to such injunction, contending that they, the Defendants, had the right of prior occupation of the said river and creeks, in which they had ever fished without let or hindrance, and further claimed to continue fishing therein without the payment of tribute to or the permission of the Plaintiffs.
On these issues, the learned judge in the court below found that the said river and creeks were occupied by the Plaintiffs sometime before the advent of the Defendants; that the Defendants had admitted the right of the Plaintiffs to the exclusive fishing in the said river and creeks by the payment of tribute and the asking of permission; and that the Plaintiffs were therefore entitled to the injunctions sought for: £100 damages were also awarded to the Plaintiffs for the trespass committed by the Defendants in erecting huts and temporary structures on the banks of the said river and creeks.
A great deal of evidence was adduced by both parties to show that each side had a prior right to the occupation of the river and creeks, the Plaintiffs on the one hand, calling witnesses to show that the Defendants had always paid tribute and obtained permission, and the Defendants on the other hand contending that in no instance had any tribute been paid or permission sought: moreover, the Defendants called evidence to establish the native custom that all rivers and creeks in the locality and round about the New Calabar river were free to the use of all natives of the surrounding country for fishing.
The learned Counsel for the Appellants in this Court divided his argument into three heads, namely:
(a) the excessive damages awarded, if indeed, damages should at all be awarded to the Plaintiffs;
(b) the weight of evidence;
(c) the law on the point of exclusive right to the fishing in the river and creeks.
He contended on the third head that the Common Law of England applied in all its principles and that fishing on all the tidal and navigable waters of the country was free to the inhabitants thereof.
I do not propose to deal with the first head at present.
On the second head, with regard to the weight of evidence, on a careful perusal of the evidence ‘before the Court, I am satisfied that permission was sometimes asked by the Defendants to fish, and that tribute or some payment of the like nature was made in kind by the Defendants; but I am left in great doubt as to whether that permission and payment had any reference to the large New Calabar river; in fact, I think that upon weighing the evidence, the balance of probability is in favour of the contention that it was confined to the smaller creeks, and did not refer to the main artery.
These smaller creeks which shoot off from the main river and meander throughout the land occupied by the Plaintiffs, are, I think, the property of the owners of the land surrounding them, and I am satisfied that the Defendants have all along paid tribute (however small), and asked permission to fish therein, and have thus admitted the right of Plaintiffs to deal with the fishing in these small veins of the great artery, the New Calabar river.
Now, the New Calabar river is the great water highway of that part of the country: it is tidal and has been used for years and years by the large vessels which run the trade between the towns of New Calabar, Okrika, and other large towns and the sea.
It may be convenient at this stage to refer to the history of the parties to this suit. Much discussion has been heard as to which of these groups of persons had a first footing in the environs of the New Calabar river-and I am of opinion that it is still a debatable point: History in this country is unwritten, and people have to rely on their memories and what is called tradition, whenever any matter of not quite recent date comes into question, and it is well known that tradition on the same subject often consists of stories which bear no sort of relation to one another every judge who has ever sat in these Courts knows that fact well, and it would be a dangerous thing to decide a point of this magnitude on these traditions without the support of some written history or some corroborative facts, unless the witnesses who speak to it agree with each other in every main particular and are above all things, not interested parties to the suit. In this case, the result is that the Plaintiffs have not made out to my satisfaction a case so strong that I should feel justified in definitely coming to the conclusion that they were the first occupiers and users of the New Calabar river.
With regard to the smaller creeks, the veins so to speak, of this great artery, the case is different. It has been proved that the Plaintiffs first settled on the lands surrounding these creeks, and the Defendants have admitted their claims to the creeks with the consequent exclusive right of fishing therein.
To continue the history of the case; years ago, the Plaintiffs had a king who was called King Amachree-he died many years ago–and long before the British Government came and assumed government over this country as a Protectorate of Great Britain. Assuming for a moment that the Plaintiffs before and in the time of their king’s lifetime, did occupy the New Calabar river, and had during that time the rights now claimed by them; how would the case stand to-day?
There is no king over the Plaintiffs, and consequently there is no one to exercise these rights of sovereignty claimed over a great water highway like the New Calabar river. When the king died, no successor took his place and the people remained on the land they occupied without a so-called sovereign. Then came the time of the British occupation, and the country became a Protectorate under the aegis of the British Crown, and subject to all laws passed .by the Government.
I now refer to the Supreme Court Proclamation, and later to the Supreme Court Ordinance after the amalgamation of the Lagos and Southern Nigeria Governments. In that law it is clearly stated to what laws the people within the jurisdiction of the Court are amenable, and it will be there found that the Common Law of England with all it principles was made applicable to the country. By the Common Law of England, the use of all tidal and navigable rivers for ordinary purposes, including fishing, is enjoyed alike by all the inhabitants of the country, so that even if King Amachree were still alive, or if he had been succeeded by some other king, prima facie he and his people would ‘be amenable to that law.
This would be the case even if it had been conclusively proved that the Plaintiffs had a prior occupation and right to this large water highway.
Further, by all natural law, the inhabitants of a country have an inherent right to the use of the elements that are common to all and in the absence of strong proof to the contrary, I am of opinion from the evidence of custom and native law that this natural right to such use obtained in the New Calabar river.
The New Calabar river is the great high road, not only from the sea to the portions of the land occupied by the Plaintiffs, but beyond those parts to the lands occupied by persons who are not parties to the suit. From time immemorial, this highway must have been the only route for all trade to and from the towns in the delta, as shown on the map. For this Court to grant to any
one section of the inhabitants the sole right to use and fish in or any sole right over this great natural highway in the absence of the strongest possible evidence, would be a proceeding fraught with danger to the community at large, against every principle of the law applicable to the country, and to all such rivers, and against public policy and natural justice.
I have now- to consider the point as to whether the Plaintiffs are entitled to the benefit of any native law or custom under the provisions of section 19, of the Supreme Court Ordinance, which is identical in terms with section 18 of the old Southern Nigeria Proclamation which native law and custom, if consistent with the principles of natural justice, equity and good conscience, might be held to prevail, even over the Common Law of England, which is now the ordinary law of the land. On that point, in the first place I am not satisfied that any native law or custom exists or ever existed which secures to the Plaintiffs the rights which they demand, and in the second place if such law or custom were clearly proved, I should be prepared to hold that it was contrary to the principles of natural justice and equity, and that it was accordingly not enforceable by this Court.
On the question of the erection of huts and structures on the banks of the river, there is evidence to show that this river runs through the land owned by the Plaintiffs; the Defendants have therefore no right to any occupation of the land of the Plaintiffs through which the river runs.
Now, as to the question of damages. There is no evidence to show that the Plaintiffs have suffered any real damage at the hands of the Defendants-the evidence of the building of huts or structures is of so scanty a nature that I am of opinion that there is no justification for the award of other than nominal damages. I find, however, that the Defendants are not entitled to build anywhere on the land owned by the Plaintiffs, either on the banks of the New Calabar river, or along the creeks running out of it and through the land of the Plaintiffs without permission. Any tribute or payment for fishing in the creeks and ponds-the veins of the New Calabar river, the artery must be left to arrangement between the parties, and the Defendants must be restrained from fishing in such creeks and ponds without permission.
In my opinion the findings of the Court should be:-
The judgment of the Court should be as follows:-
That the judgment of the learned Judge in the court below be reversed as regards the exclusive rights of fishing in the New Calabar river by the Plaintiffs;
That it be affirmed as regards the injunction to restrain the Defendants from fishing without permission in the creeks, including the Ekwe creek and ponds running out of the New Calabar river, and through the lands of the Plaintiffs:
That the judgment of the court below as regards damages be varied, and that the Plaintiffs be awarded the sum of 40s. by way of damages.
The Court further orders that each side shall pay its own costs, both in this Court, and in the court below.
The judgment to be carried out by the court below.
I have had the advantage of reading the judgment just delivered by my brother Ross. I concur in that judgment, and I have nothing to add. Judgment will be given accordingly in the terms laid down by my learned brother.
I also concur with the finding of my learned brother Ross, I feel that my finding in the court below, that the Respondents are entitled to the exclusive fishery in the New Calabar river cannot be maintained.
This principle of a common fishery in the open navigable and tidal rivers of the Protectorate referred to by my learned brother in his judgment, is based on no theory of ownership of the river-beds by the Crown: it is a principle which must be maintained on the ground of public policy and of public interest, even if native law and custom are inconsistent with it.
It therefore follows that my judgment must be varied, and that the injunction restraining the Appellants from fishing in the New Calabar river, must be removed.
As to the question of damages, I also concur that this Court is not justified in awarding any but nominal damages. The evidence does not show that the Respondents suffered any special damage by reason of the acts of trespass complained of. They admitted that the trespass were brought about to test the fishery rights in this river and in its creeks and ponds, and beyond the act of taking a few fish on one or two occasions in one of the creeks and refusing to pay the usual nominal tributes, there was nothing in the evidence that might be regarded as sufficiently serious as to justify the awarding of substantial damages.
I also think that the parties should bear their own costs in this Court, and in the court below.
It is the only equitable adjustment conceivable, whilst it is true that the Respondents have succeeded in their claim for an injunction restraining the Appellants from fishing in their creeks and ponds; the Okrikas have succeeded on a question upon which they mainly relied in the Appeal Court, and they have had the amount of damages awarded by the court below substantially reduced.