William Pikibo Daniel-kalio & Anor V. Lemuel Daniel-kalio (2004)

LawGlobal-Hub Lead Judgment Report

MICHAEL EYARUOMA AKPIROROH, J.C.A.

This is an appeal against the judgment of K.D. Ugbuku, former Chief Judge of Rivers State, delivered on 28th February, 1995, in suit No.PHC/583/91.

In paragraph 15 of his statement of claim, the plaintiff now respondent claimed the following reliefs:
“(i) A declaration that the plaintiff is a co-owner of the property, known as No. 81 Victoria Street, Port Harcourt, otherwise known as Block No. 78 Plot A in lease of 12th November, 1930, with No. 17/17/303 with the defendants under Okrika customary law of inheritance.

(ii) Alternatively, a declaration that the said property belong to the Daniel-Kalio family of Okrika jointly under customary law.

(iii) A declaration that the Power of Attorney registered as No. 54 at 54 in Volume 139 at the Lands Registry, Port Harcourt, granted in favour of I.A. Adedina, Esq. cannot be used to issue notice and eject the plaintiff and is to that extent, illegal and void as against the plaintiff.

(iv) An order of perpetual injunction restraining the defendants whether by themselves or through their agents, attorney, privies and/or servants from harassing or molesting the plaintiff in his enjoyment of the property and/or from disposing of the said property without the prior consent of the plaintiff.

(v) Such further and/or other reliefs as this Honourable Court may deem fit to make.”

Briefly, the appellants’ case in the lower court was that the respondent is not the first son of late Michael Daniel-Kalio, but the son of Erasmus Daniel-Kalio. The respondent used to be known as Lemuel Amarvi until 1965, when he was assisted by Christopher Wokoma Daniel-Kalio (lst defendant now deceased) to change his name to Lemuel Daniel-Kalio by an affidavit sworn to by him.

The property in dispute originally belonged to late Chief Daniel-Kalio and not late Madam Henrietta Daniel- Kalio. Late Chief Daniel Kalio in his life time, erected a building on the land but when he died, his direct children themselves agreed that their sister, Henrietta should administer the property on their behalf and she obtained letters of administration to that effect hence, her name was used in the deed of lease.

The current building on the premises was erected from the money and materials realized from the Estate of late Chief Daniel Kalio by late Chief Johnson Kalio, the husband of late Madam Henrietta Daniel-Kalio.

As the surviving sons of late Chief Daniel-Kalio, they are the only ones entitled under Okrika, native law and custom to inherit the property in dispute as joint owners to the exclusion of any other person. Under the said custom, until all the natural and direct children of a man die, his grand children like the respondents cannot inherit. When they noticed that the respondent had occupied part of the property in dispute, they and the respondents’ father in their family meeting asked him to vacate the premises, but he refused and later sued them to court.

Briefly, the respondent’s case was that he is the 1st son of late Chief Michael Daniel-Kalio who was the 1st son of Chief Oju Daniel-Kalio of Kalio House Okrika. He is a product of “IYA” marriage which entitled him to inherit the property of his late father and also to enjoy any interest in the family property through his late father.

The property in dispute, No. 18 Victoria Street, Port Harcourt, originally belonged to late Madam Henrietta Daniel-Kalio, who was the eldest daughter of late Chief Oju Daniel-Kalio and was of the same father with his father, and the appellants on records. Henrietta Daniel-Kalio died intestate in 1979 without having any surviving male child and the property reverted to the Daniel-Kalio family and his late father Chief Michael Daniel-Kalio as the head of the family administered it even during the life time of Henrietta. His father, late Chief Michael Daniel-Kalio allocated to him one room which he used as an office and the facilities in the office were also used by the appellants any time they held family meetings.

Under Okrika native law and custom on inheritance, he as a product of “Iya” marriage and having performed the customary “Ash” to “Ash” of “Kenie Gwa” ceremony during the burial of his late father as the 1st son is entitled to succeed and inherit the right or share of his late father both as his first son and also a member of late Chief Daniel-Kalio family. It was also his case that the property in dispute on the death of Madam Henrietta Daniel-Kalio devolved on Daniel-Kalio family jointly and not exclusively for the biological children of late Chief Oju Daniel-Kalio, who was not the original owner. The appellants have been harassing him by issuing notices to him to quit the room he has been occupying in the property in dispute, hence he sued them to court.