3PLR – JONAH ABBEY KALIO & ORS. V. CHIEF M.D. DANIEL-KALIO

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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JONAH ABBEY KALIO & ORS.

V.

CHIEF M.D. DANIEL-KALIO

SUPREME COURT OF NIGERIA

14TH FEBRUARY, 1975

SUIT NO. SC 238/1974

3PLR/1975/41  (SC)

 

OTHER CITATIONS

(1975) 2 S.C. (REPRINT) 14

 

BEFORE THEIR LORDSHIPS                         

ELIAS, C.J.N.

SOWEMIMO, J.S.C.

IBEKWE, J.S.C.

 

REPRESENTATION

Mr. R.O.A. Akinjide – for Appellants

Mr. O. Ajose-Adeogun – for Respondent

MAIN ISSUES

Land Law – Declaration of title – Order of Forfeiture – Damages for trespass – Injunction to restrain continuation of trespass – Wrong allocation of property to fancily members – Traditional Chief as owner of Communally held family land – Compensation for damage to personal pride.

MAIN JUDGEMENT

ELIAS, C.J.N. (Delivering the Judgment of the Court):

The present appeal is against the judgment of Holden, C.J., 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, £500 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 has 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 admitted 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 for 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 titular 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 irregularly allocated, the learned trial Chief Justice recommended that they and the plaintiff “take such steps as may be requisite to regularise their position.” 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 top 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 follow:

 

‘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 High Court as follow:

 

“(1)   Declaration of title to all those pieces or parcel of land at Kalio Ama at present occupied by the defendants.

 

(2)     Forfeiture of all those pieces or parcels of land at Kalio Ama at present occupied by the defendants. The various plots occupied by the defendants are shown clearly on the plan filed along with this Statement of Claim and verged black In ink.

 

(3)     £500 damages for trespass to the area of land verged red on the plan filed along with this Statement of Claim on which the defendants have put up buildings without the knowledge, consent and approval of the plaintiff.

 

(4)     An injunction restraining the defendants and each of them by themselves their agents servants or others from continuing the acts complained of.”

 

He pointed out that the learned trial Chief Justice gave to the plaintiff a relief not sought by the plaintiff when he held as follows:

 

‘Thus 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.”

 

The plaintiff filed a plan showing a whole island communally held by the entire community including the plaintiff, the defendants and others not before the court, while the defendants also filed a plan showing the same island, called Kalio Ama. It was his contention that, as the learned trial Chief Justice did not find trespass proved against the defendants and also refused the plaintiff’s request for forfeiture against them, he should not have made a declaration of title in favour of the plaintiff in the terms in which he did. We think that there is merit in this submission since it is trite law that a declaration of title is never granted to a plaintiff member of a family against another member of the same family; both parties are in such cases co-owners of the family property. Besides, we think it unnecessary to hold that the Chief is ‘the titular owner of all the land held communally by the family’, because the learned Chief Justice had earlier held as follows:

 

“Having not been removed from office, plaintiff is obviously still Chief, and no decision is needed from this Court on that point.”

The next ground argued by learned counsel for the appellants reads thus:

 

‘The learned trial Chief Justice erred in law in awarding damages to the plaintiff on the grounds that:

 

‘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 …..’

 

when there was no such claim before the court and the only claim for damages is in paragraph 23(3) of the Statement of Claim.”

 

The main complaint of learned counsel for the appellants under this head was that the award of damages for insult to the plaintiff as Chief which the learned trial Chief Justice granted is in strange contrast to his refusal to award him damages for trespass. We note that the learned trial Chief Justice had himself held as follows:

 

‘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 …..”

 

The learned trial Chief Justice thereupon proceeded to award N25 in respect of each of the three occasions when he found that the defendants had so usurped the status and office of the Chief and awarded N75 damages jointly and severally “under this item of the Claim.” We agree with learned counsel for the appellants that there is no such item either in the Writ or in the Statement of Claim quoted above.

 

The third ground argued by learned counsel for the appellants is in these words:

 

‘The learned trial Chief Justice erred in law in making a vague order of injunction in favour of the plaintiff against the defendants restraining them from committing ‘acts Inconsistent with his authority as Head of that House’ when the injunction sought by the plaintiff in his writ is for trespass and the Court found that he could find no trespass In the plots occupied by the defendants and the court said he was unable to come to any decision in respect of the three plots allocated without plaintiff’s consent to three members of the family and on which those three family members have built their homes, since they are not party to the proceedings.”

 

Learned counsel pointed out that an injunction was granted by the learned trial Chief Justice when the complain was about trespass, in respect of which he did not find for the plaintiff; and yet he granted an injunction “restraining the defendants from committing further acts inconsistent with his authority as Head of that House.” We agree with learned counsel for the appellants that this is a relief not sought by the plaintiff who had merely requested an injunction restraining the defendants from “continuing the acts complained of namely, trespass.

 

The fourth ground argued by learned counsel for the appellants is the omnibus one which complained that the judgment is against the weight of evidence. Mr. Ajose-Adeogun, learned counsel for the respondent, submitted that the appeal raised some legal problems of considerable importance, even though the facts are simple enough. He submitted that the court should not merely look at the Statements of Claim and of Defence but should consider what he regarded as the wider implications of the plaintiff’s request for the area edged pink to be declared forfeited to him against the background of the defendants’ conduct. He maintained that, on the pleadings as a whole, the real issues are as follows: (a) Was the plaintiff the Head (Chief) of the community at the time when the action was instituted? and (b) If he was such a Chief in charge of the land, who had control and management of the land in question?

 

We are however, of the opinion that, interesting as these questions undoubtedly are, they have not been directly put in issue in both the Statement of Claim and the Statement of Defence, to both of which the court is bound to confine itself if it is not to assume to exercise jurisdiction over matters as to which both parties have not joined issue before it.

 

Finally, learned counsel for the respondent strenuously argued that the following passage be included in the judgment of the Court:

 

“…… the documents produced by both sides make it clear that plaintiff was never deposed and is still Chief. Whether as he alleges the defendants by reason of their descent are not eligible for the chieftaincy is a matter which may fall to be decided by the competent authority (clearly NOT this Court) when plaintiff for any reason ceases to be the Chief. At the moment it is not relevant. As Chief he is clearly to be described as ‘owner’ of the communal land at Kalio Ama, and has the right and perhaps the duty to sue in that capacity without consulting the rest of his people if their property is under attack. The ‘owner’ is of course a Trustee for his people and has no personal right in the property, any more than any other member of the family. Thus the first part of his claim must succeed and there will be a declaration of title to the effect that as Chief he is titular owner of all the land held communally by the family.”

 

Mr. Ajose-Adeogun drew our attention to the provisions of section 22 of the Supreme Court Act, 1960, which he insisted gave this Court the discretion to make an order that would achieve justice between the parties, especially an order restraining the defendants from continuing their challenge to the authority of the plaintiff as Chief. While we are anxious to determine the issues in controversy between the parties as definitively as possible, we regard it as out duty not to allow ourselves to be drawn into assuming jurisdiction over a chieftaincy matter “Which may fall to be decided by the competent authority (clearly NOT this Court) when plaintiff for any reason ceases to be the Chief.” The question whether plaintiff or any of the defendants is eligible for the chieftaincy does not seem to us to be the one immediately in issue in this appeal.

 

Accordingly, the appeal is allowed, and the judgment of the High Court, Port Harcourt in Suit No. PHC/20/1972 delivered by Holden, C.J., on June 18, 1973, together with the order as to costs, is hereby set aside. We hereby award N200 as costs in the court below and N170 in this Court, and this shall be the judgment of the Court.

 

Appeal allowed.

 

 

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