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 :hey 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 and 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 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 therefore. 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.
Coussey, J.A. I concur. de Comarmond, S.P.J. I concur.
Judgment set aside; non-suit entered.