Kai Tongi V. Sulaiman Kalil (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Real property—Land allocated to member of tribe—Member’s right to occupy.
Tort—Trespass—Occupier’s right to sue.
Practice arid Procedure—Non-suiting plaintiff.

Facts

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.

Held

Under native customary law, when land has been allocated to a member of the tribe, he acquires a right to occupy it; 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 right to sue the defendant as a trespasser, and the plaintiff ought not to have been non-suited.

Appeal allowed: order for a new trial.