Appeal Court 11th March, 1940  Appeal from judgment of Cooper, Ag. J.

Claim for possession of a creek, and injunction to restrain from entry therein-Meaning of" a fishery period of five years "-Appeal dismissed.

Held: The term" a fishery period of five years" means that the lease is for a period of years until the creek is flooded sufficiently for the purpose of fishing five seasons. It does not mean five years certain and no longer.

The facts are fully set out in the judgment .

E. C. Quist (with him A. M. Akiwumi and K. A. Bossman) for Appellant.

C. S. Acolatse for Respondent.

The following joint judgment was delivered :- .

KINGDON, C.]., NIGERIA, PETRIDES, C.J., GOLD COAST AND STROTHER-STEWART, ].

On the 18th March, 1935, the Plaintiff-Appellant caused to issue against the Defendants-Respondents a writ in the Tribunal of the Paramount Chief of Big Ada, and on the 26th March, 1935, an amended writ was issued in the following terms :-

•• The Plaintiff's claim :-In 1926 Head of the Adabaar Family, the owner of the Adutor Creek, together with its Caretaker Gbadavu leased the said Creek to defendants for the term of 5 years (five years). After expiration of the said lease defendants took fresh lease from the said Caretaker Gbadavu without the knowledge and concurrence of the plaintiff. Plaintiff therefore claims possession from the defendants of the said creek and an Injunction to restrain defendants, their agents, .servants and workmen from entering or working in the said Adutor Creek ..

The suit was transferred to the Divisional Court, Accra, and after much delay came on for hearing before Cooper, Ag. J. on . the 6th March, 1939. Judgment was delivered on the 21st March, 1939,in favour of defendants. From that judgment the plaintiff now appeals to this Court.

The dispute is in respect of the Adutor Creek which is thus described by the learned Judge in the Court below in the course of his judgment :-

•• This property is of a peculiar and amphibious nature. It adjoins the River Volta and is from time to time flooded by that river when it rises in the rainy season. When it is flooded there is a fishery of some value but at other times the so-called creek is dry and used for farming cassava and other crops. There is evidence that the land is not so regularly flooded as in the past."

At the hearing Counsel for Plaintiff-Appellant opened his case as follows :-

•• Creek originally acquired by Adoo who was a member of Adabaar Family. Creeks are situated in Aggrave district. In that district was a Safohene (Gbadavu). Adu asked him to supervise all the creeks as caretaker. He was not a member of the family. From time to time Adoo and his family let the fishing rights. Gbadavu received remuneration. He died. Gbadavu II. succeeded. In 1926 he invited the then head of the family to come and see him. The fishing season was approaching. The present plaintiff went to Adutor. Question of leasing the creek arose. Defendants came and said they wanted to lease the creek. A formal lease at £100 lump sum was made for five years. After expiration of five years defendants continued to remain on the property. They said that they had obtained another lease from Gbadavu. They refused to pay rent to us. Gbadavu has often admitted creek is property of Adabaar family. A receiver has been appointed."

To this Defendants-Respondents' Counsel pleaded :-

" Defendants plead not liable. They are lessees of creek claimed by plaintiffs by lease granted in 1926 by Gbadavu. The creek and land belong to Gbadavu and his family from time immemorial. Defendants and lessor are Ewe speakers. They are Aggraves. Politically they are under Ada Stool. They deny any right in plaintiff's family. They are Adas and unrelated to defendants or lessors."

•• Defendants further plead that in any event Gbadavu was joint lessor with the family and was held out by them as having power to lease."

The first so-called lease referred to in the opening for Plaintiff is Exhibit" B " in the case. It is dated 29th April, 1926, and is in the following terms :-

•• We, the undersigned. Asafohene Gbadavu and Dogbe Zah on behalf of ourselves and all other members of our family in consideration of the sum of One hundred (£100) sterling received from Asafohene M. Agomeda Amussu II. of Adutor and Amega Nungu Sekpey of Agordameh we hereunto pledged or pawned to the said parties the Adutor Creek for a fishing period of Five (5) years by a high inundation or flood of the Volta River supplying its water to the said Creek Adutor.

" It is agreed upon that, in the event of the Volta River failing to give. its water supply to the said Adutor Creek same is to be counted an exclusive period out of the five (5) years afore-mentioned

" Provided that in the event of the Adutor Creek being supplied with the Volta River water supply, but without any cause of fishery until another season sets in the same shall be counted. but shall have the liberty of shutting up the tributaries to disallow passage of the, fishes to the other creeks adjoining the Adutor Creek .

. " That the said Asafohene M. Agomeda Amussu II and Amega Nungu Sekpey have the right to collect tolls on the farming industries in the said Adutor Creek at dry season. which chief products are corn, cassava, sugar canes, plantain and bananas at whatever privilege the owners are entitled to

" That the important tributaries running to the said Creek (Adutor) formed the main question of fishing privilege to the said purchasers, without any incumbrance.

"That the boundaries of the said Creek by the Creek forming the tributaries are as follows :-On the North by the· Adutor-Kpo on the South by the Lotoe Creek running into the Mutor Creek (South-western portion) by the Ajetorrui Creek flowing to the Fodueh Creek on the South­eastern portion. On the East by the Adutorrui to the Avu Creek forming the eastern boundary with its water supply from the Tordjen River. On the West by the Aforklortoi Creek to the Kplibiti. Yort.ah, Dabala, Djokpleh, Akah and Tsidjen having its water supply from the Volta.

"That the said Asafohene M. Agomeda-Amusu and Nungu Sekpey (Amega) have the sole privilege to enjoy the liberty of this creek at whatever extent until the five (5) years wears out.

"That at the expiration of the said terms the said property which boundaries are delineated within this document seemed void and due redemption and to the sole ownership of the said Gbadavu and Dogbe Zah."

The meaning to be attached to the expression .. a fishery period of five years" is of great importance in the case. It was considered by Yates, J. in the Divisional Court in another case, viz :-Suit No. 56/1934 between Asafohene Gbadavu and Twani Degbezah as plaintiffs and Asafohene Amusu and Amega Nungu Sekpey as defendants. He interpreted it as meaning .. that the lease is for a period of years, until the Volta River floods the creek sufficiently for the purpose of fishing five (5) seasons. If it fails to flood the creek at all-that season is to be excluded from the lease, but if it only floods it slightly, then, that season is to be reckoned as a fishing season but the defendants are to have the right of blocking up adjacent tributaries to prevent the fish from entering other creeks adjoining."

The learned Trial judge in the present case seems to have accepted this interpretation and we may state at once that we agree with it and disagree with the interpretation sought to be put upon the document by Plaintiff-Appellant throughout these pro­ceedings, viz. :-that the period is for five years certain and no longer.

The Trial judge, however, holding on the evidence that the five fishing seasons had already occurred, found as a fact that this so-called first lease had expired. We take this to mean that it had expired at the date of the hearing of the case. We agree with that finding of fact, but the Trial judge seems to have overlooked the point that what really mattered was not whether the document had expired at the time of the trial, but whether or not it was in force at the date of the issue of the writ. Now. although the Trial Judge did not apply his mind to this point or record any finding upon it, there is sufficient evidence upon the record to enable this Court to come to the necessary conclusion. It is clear that, as found by Yates, J. in the case already referred to, there had been four fishing seasons up to the end of 1934. It appears from the evidence in the present case that the fifth occurred either in 1936 or 1937 -the witness James Kwakuvi speaks of "fishing in the creek" in 1937.

This being so we think it must be accepted as a fact that at the time the writ was issued there had been only four fishing seasons and the first so-called lease was still operative. It is part of the Plaintiff-Appellant's case that the then head of his family was the real grantor of this so-called lease. Therefore the Defendants ­Respondents' plea that they were in possession by virtue of that document was a good and complete answer to the claim on the writ, and on this ground judgment should have been entered for the Defendants-Respondents in the Court below and the appeal must be dismissed in this Court. The appeal is dismissed with costs assessed at £38 16s.