Jonah Abbey Kalio & Ors V. Chief M. D. Daniel-kalio (1975)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

The present appeal is against the judgment of Holden, CJ., delivered on June 18, 1973 at the High Court, Port Harcourt, in Suit No. PHC/20/1972 in which the plaintiff had claimed as Head of the Chief Kalio House of Okrika a declaration of title to land at Kalio Ama occupied by the defendants, an order of forfeiture of that piece of land, 500Pounds damages for trespass to it, and an injunction to restrain the defendants from continuing the trespass.

The plaintiff’s case is that the defendants had taken part of the community land and allocated it to certain members of the family as building plots without his consent when, as he claimed, he is the only person who had the right to allocate land. It was admitted by the defendants that they tried to depose him and had indeed published statements in the newspapers denying that he was still the Chief. The plaintiff averred that such denial of his chieftaincy would in former times have led to their being ‘tied hand and foot and thrown into the creek, or perhaps sent to Nembe and exchanged for a canoe”. He, however, asked for a lesser punishment, that of having their property declared forfeited to him. The defendants, for their part, agreed that the chief, with the concurrence of the elders of the community, is the right and only person who can allocate land to members of the family in need of it, but they claim that, as the plaintiff was no longer their Chief, his consent had ceased to be necessary. They submitted that they had given land to three members of the family for building purposes without the consent of the plaintiff, although the latter conceded that four similar allocations to other members of the family had been in his presence and with his approval.

On the basis of the evidence before him, the learned trial Chief Justice proceeded to make “a declaration of title to the effect that as Chief he is the title owner of all the land held communally by the family”. As regards plaintiff’s claim for damages for trespass, the learned trial Chief Justice held as follows:

“So far as the plots personally occupied by the defendants are concerned, I can see no trespass. They were properly allocated some years ago to their predecessors, and until forfeiture is ordered the defendants are in lawful possession and are not trespassers.”

In respect of the three members to whom land might have been irregularity allocated, the learned trial Chief Justice recommended that they and the plaintiff “take such steps as may be requisite to regularise their positions”. On the issue of damages claimed by the plaintiff, the learned trial Chief Justice held as follows:-

“I have not been shown anything in the plaintiff’s case that convinces me that he has suffered any financial damage by reason of the allocation of these three plots. The only damage is to his personal pride as his status as Chief has been usurped and his office insulted. This I concede is a genuine damage and does merit some compensation which I assess at N25 in respect of each occasion. There are three such incidents, so the defendants are to pay Seventy-Five Naira damages jointly and severally under this item of the claim.”

The learned trial Chief Justice also granted an injunction to restrain the defendants from “usurping” the plaintiff’s functions as Chief, to whom “the defendants have behaved with considerable disrespect”. Finally, the learned trial Chief Justice refused to grant the plaintiff’s request for forfeiture of the land occupied by the defendants because “those cases where forfeiture has been ordered, and in some the order was upheld by the Supreme Court, have all concerned a forfeiture of land improperly taken over for their own use by the defendants from the lawful owner, the plaintiff”. It is from this judgment that the appellants have brought the present appeal before this court.

Mr. Akinjide, learned counsel for the appellants, asked for and was granted leave to argue four grounds of appeal. The first ground reads as follows:-

“The learned trial Chief Justice erred in law in holding:

‘…..the first part of his claim must succeed and there will be a declaration of title to the effect that as Chief he is the titular owner of all the land held communally by the family” (p. 69 lines 25-26) when the declaration sought by the plaintiff in his writ and by paragraph 23(1) of his Statement of Claim is for:

‘….. title to all those pieces or parcels of land at Kalio Ama at present occupied by the defendants’

and which the court found to be their homes where they have lived for some generations after grant perfectly, correctly and properly made to the defendants by the plaintiff’s predecessors.”

He began his argument by drawing attention to the relief sought by the plaintiff in the High Court as follows: