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KAI TONGI
V.
SULAIMAN KALIL
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
12TH DAY OF JUNE, 1953
W.A.C.A. NO. 2/53
2PLR/1953/87 (WACA)
OTHER CITATION(S)
2PLR/1953/87 (WACA)
(1953) XIV WACA PP. 331-332
LEX (1953) – XIV WACA 331-332
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
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BETWEEN:
KAI TONGI – Appellant
AND
SULAIMAN KALIL – Respondent
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ORIGINATING COURT(S)
Appeal from Supreme Court by plaintiff
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REPRESENTATION
R. W. Beoku-Betts — for Appellant
C. S. T. Edmondson — for Respondent
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ISSU(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Real property — Land allocated to member of tribe — Member’s right to occupy — How treated
TORT AND PERSONAL INJURY LAW:- Trespass — Occupier’s right to sue — Relevant considerations
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PRACTICE AND PROCEDURE ISSUE(S):-
JUDGMENT AND ORDER:- Order of Non-suiting of plaintiff — Relevant considerations
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CASE SUMMARY
Appellant (plaintiff below) sued respondent (defendant below) for trespass and recovery of possession; the respondent pleaded that appellant was not the owner, that the premises were built by the people of the Chiefdom and that the tribal authority had given him possession. At the trial the plaintiff (appellant) led evidence that the land was allocated to him by the Chiefdom, that he built the premises on it at his own expense, not as Chiefdom property, that he occupied the premises for years and then went away leaving them locked up, and later found the defendant (respondent) in occupation. At the close of plaintiff’s case defendant submitted that as the land, and the buildings thereon consequently, belonged to the Tribal Authorities, plaintiff had no right to sue: whereupon the trial Judge non-suited the plaintiff, stating that the Tribal Authority should be made a party. The plaintiff appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal and ordering for a new trial) that:
1. Under native customary law, when land has been allocated to a member of the tribe, he acquires & right to occupy it.
2. Moreover trespass is only actionable at the suit of the person in possession. The only evidence before the Court supported the plaintiff’s claim and ought to sue the defendant as a trespasser, and the plaintiff ought not to have been non-suited.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
In this case the plaintiff, a native of Buedu, claimed against the defendant, a non-native, damages for trespass alleged to have been committed by the defendant on a shop and store situate at Main Street, Buedu, belonging to the plaintiff, and for recovery of possession.
By his defence the defendant denied that the plaintiff was or is the owner of the premises in dispute and alleged that he the defendant had been put into possession of them by the Tribal Authority of the Kissi Tongi Chiefdom. He also alleged that the premises were built by the people of the Kissi Tongi Chiefdom and not by the plaintiff.
The case came for trial before Beoku-Betts, J., and the plaintiff led evidence that the land upon which the shop and store were built was allocated to him by the Buedu Kiui Tongi Chiefdom, that in the year 1946 he paid for and built the premises, that they were not built as Chiefdom property, that he and his brother occupied and carried on business in the premises from the year 1946 until 1951 when the plaintiff who was then the Paramount Chief was deposed, that they then locked the premises, retaining the key, that various stores were left behind in the premises, and that when the brother went back to the premises two months later she found them open and the defendant carrying on business in them.
At the close of the plaintiff’s case the defendant’s counsel submitted that as all land is vested in the Tribal Authorities and under the Interpretation Ordinance land includes buildings thereon the plaintiff had no right to sue, such right being only in the Tribal Authorities.
The learned trial Judge thereupon non-suited the plaintiff, stating that “Tribal Authority should be made a party to this action as under Cap. 186 all land is vested in the Tribal Authority”, and it is against that decision that the plaintiff has appealed.
It is obvious that counsel for the defendant and the learned trial Judge lost sight of the fact that under Native Customary Law, once land has been allocated to a member of the Tribe by the Tribal Authorities such member acquires a right to occupy the land which is transmissible to his successors.
Moreover trespass is only actionable at the suit of the person in possession, actual or constructive, at the time of the trespass committed unless the trespass has caused permanent injury to the land affecting the value of the inheritance when the person entitled in reversion may sue for the injury to his interest, but there was no suggestion in this case of such injury.
At the close of the plaintiff’s case the only evidence before the Court was that led by the plaintiff which supported his claim and his right to sue, and it seems to me to be beyond argument that the trial Judge erred in entering a non-suit. At the hearing of this appeal respondent’s counsel maintained the attitude he took up at the trial and further submitted that the appellant ought to have pleaded his title with certainty, and that there was not sufficient evidence of title in the appellant to oust the respondent who was in de facto possession.
The appellant in his statement of claim pleaded facts which prima facie entitled him to possession of the premises as against the respondent. No authority was quoted in support of the proposition that more was required and I am satisfied that there is no substance in the point. Indeed, further research would, I feel sure, have persuaded respondent’s counsel that the point was not one which could seriously be argued.
As the evidence stood when the non-suit was entered the respondent’s “de facto possession” was that of a trespasser, and in view of the fact that at that stage the only title to possession was that proved by the appellant the last submission made by respondent’s counsel is untenable.
The only other point it is necessary to deal with is one raised by appellant’s counsel. He submitted that if it were necessary that the Tribal Authority be joined the learned trial Judge should have acted under the provisions of Order 12, rule 11, and directed that they be joined, instead of non-suiting the appellant. The object of the rule is “to enable the Court effectively and completely to adjudicate upon and settle all the questions· involved in the cause or matter “before it, and the Court is empowered to act” either upon or without the application of either party”.
In the circumstances of this case I am of the opinion that the Tribal Authority could not have been properly joined as a plaintiff, nor do I think it was necessary that they be joined as a defendant, but had it been necessary I think it would have been proper for the Court to act under the powers conferred by the rule in question.
For the foregoing reasons the decision of the learned trial Judge cannot, in my view, be supported. I would, therefore, allow this appeal, set aside the judgment of the Court below and order a new trial before another Judge. The appellant to have his costs on this appeal to be taxed and the costs of the two days hearing in the Court below to be taxed. Any costs paid by the appellant to the respondent to be refunded.
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SMITH, C. J.
I concur.
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COUSSEY, J. A.
I concur.
Appeal allowed: order for a new trial.
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