Alhaji Aminu Dantsoho V. Alhaji Abubakar Mohammed (2003)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C. 

This is an appeal from a judgment of the Court of Appeal, Kaduna Division delivered on the 26th of February, 1996.

The respondent as plaintiff in the Kano State High Court took out a writ of summons against the appellant as defendant claiming as follows:

(i) Damages

(ii) A declaration that the defendant is not entitled to the premises in such manner as to dig trench and put heaps of sand on the plaintiff’s said land.

(iii) A declaration that the defendant is not entitled to continue to retain the nuisance (i.e. heaps of sand) on the land.

(iv) An injunction restraining the defendant from continuing to keep the sand and the trench on the plaintiff’s land so as to be nuisance to the plaintiff.

The case went to trial before Saleh Minjibir, CJ of Kano State. After Hearing evidence the learned CJ entered judgment for the plaintiff.

In the course of his judgment, he held thus:

“In my own considered opinion, two documents are crucial for the just determination of this case and they are exhibits 1 and 4. Exhibit 1 is Certificate of Occupancy No. LKN/CON/RES/82/632 in the name of Abubakar Mohammed the plaintiff in this case. The commencement date of exhibit 1 is 15/5/78 and was signed by Muhammed Kabir, the then Commissioner for Land and Survey on the 11th August, 1982. exhibits 3, Certificate of Occupancy No. KN 4136 in the name of the plaintiff gave birth to exhibit 1 from the evidence adduced during the trial proceedings in this case. The commencement date is also 15/5/78. Exhibit 4 Certificate of Occupancy No.LKN/CON/81/00082 in the name of Alhaji Aminu Dantsoho has its commencement date as 18/12/81 and was signed by the then Commissioner for Land and Survey Muhammad Kabir on the 7th October 1982. It is clear that even if exhibits 1 and 4 are in respect of the same plot it goes to show that the equities are equal. It is settled that where the equities are equal, the first in time shall prevail. Thus assuming that exhibits are even genuine,

the fact that exhibit 1 the Certificate of Occupancy of the plaintiff is first in time and has therefore a superior title over that of the defendant. That being so, I hold that exhibit 1 has rendered nugatory the contents of exhibit 4. In other words exhibit 4 is a worthless document by virtue of the contents of exhibit I.” Consequently, the learned trial CJ made the following orders:

1. That the defendant shall remove the nuisance he has created on the plaintiff’s plot situated at No. 79, Sharada Layout covered by Certificate of Occupancy No. LKN/CON/RES/RC/82/632. The nuisance should be removed without any delay.
2. The plaintiff is awarded =N=5000.00 damages and against the defendant for trespass on his land by the defendant.”

The learned Chief Judge also ordered that if the defendant failed to remove his structures on the land within the three months the maxim quic quid plantatur solo solo cedit should apply.

The first and second orders of Minjibir CJ were affirmed by the Court of Appeal. The third order i.e. that the defendant should remove his structures on the land in question was set aside on the ground that the relief was not pleaded.

The defendant now appeals to this court.

The plaintiff also appealed against the setting aside of the order that the defendant remove his structures on the land in dispute within three months or forfeit them under the maxim quic quid plantatur solo solo cedit.

The material facts are not in dispute. In brief summary they are as follows:

“1. Both the plaintiff and the defendant are holders of a Statutory Right of Occupancy over the same piece of Land known as plot 79 Sharada, Kano in the Kano Municipality.

2. Exhibit 1 is Certificate of Occupancy No. LKN/CON/RES/RC/82/632 in the name of Abubakar S. Mohammed, the plaintiff. The commencement date of exhibit 1 is 15/5/78 and was signed by Mohammed Kabir, the then Commissioner for Lands and Survey on 11th August, 1982.
3. Exhibit 4 is Certificate of Occupancy, No. LKN/CON/18/00082 in the name of Alhaji Aminu Dantsoho. Its commencement date is 18/12/81 and was signed by Mohammed Kabir, the then Commissioner for Lands and Survey on 7th October, 1982.”

The defendant (referred to hereafter as “the appellant”) filed his brief of argument. Based upon the grounds of appeal filed, the appellant raised three issues for determination. These read as follows:

1. Whether the non-joinder of the issuing authority of a grant of statutory right of occupancy in this instance, the Governor of Kano State was fatal to the respondent’s case, which was that the said authority issued a subsequent certificate of occupancy, over and above that issued to him by the same authority
2. Where, as in this appeal, both parties rely on prima-facie authentic certificates of occupancy evidencing a statutory right of occupancy over the same parcel of land in an urban area which of the certificates will supercede (sic) the other, is it the one issued earlier on in time or is it as prescribed by section 5-(2) of Land Use Act, Cap.202 LFN 1999, which regards the latter certificate as the better of the two.
3. Whether the appellant is a trespasser in the circumstances of this appeal

For his part, the respondent submitted four issues for determination in this appeal. They are:

1 When two holders of statutory right of occupancy trace their title to the same Governor and over the same piece of land which of the holders takes precedence over the other; the first in time or the latter holder

2. Whether the non-joinder of the Governor of Kano State as party in the instant case was fatal to the decision reached by the lower Court.
3. Whether their Lordships at the Court of Appeal were not right in adjudging the appellant in this case a trespasser
4. Whether their Lordships at the Court of Appeal were right when they failed to affirm the decision of the trial court on the application of the maxim quic (sic) plantatur solo solo cedit after the expiration of the 3 months giventhe defendant to remove his structures on the plot on the ground that the respondent did not amend his pleading to claim the house built on plot 79 Sharada by the appellant against a court order not to build.

ISSUE 1

The material point to bear in mind is that the two crucial documents for the just determination of this appeal are exhibits 1 and 4. Exhibit 1 is C of 0 No. LKN/CONIRTS/RC/82/632 in the name of Alhaji Abubakar S. Mohammed, the respondent in this appeal. The commencement date of exhibit 1 is 15/5/78 and was signed on 11th August, 1982.

Exhibit 4 is C of 0 No. LKN/CON/81/00082 in the name of Alhaji Aminu Dantsoho, the appellant herein with a commencement date of 18/12/81. It was signed on 7th October, 1982. Both certificates of occupancy are in respect of the same plot of land. This is not in dispute.

It was said, for the appellant, that on the state of pleadings and evidence, the respondent was aware that there was a duplication of the grant over plot 79 Sharada Kano. It was therefore the contention of the appellant that the trial court and the Court of Appeal were in grave error when they described that appellant’s grant as conferred in exhibit 4 as worthless. It was further pointed out that both courts went on to declare that once the Governor or his delegate had made a grant, as in this case, exhibit 1, he was incompetent to create or make another grant, without recourse to section 28(1) of Land Use Act, based on the maxim Nemo dat quod non habet. It was the submission of the appellant that this position overlooks the fact that the Land Use Act a sui generis legislation on land in Nigeria supersedes the common law and equity principles hitherto in existence. It was further submitted that recourse to equitable principle of first in time is first in law was the source of error of both lower courts. It was said that the applicable law is section 5(2) of the Land Use Act which provides that:

“Upon the grant or a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”

It was contended that the plain meaning of the above provision is that exhibit 4 issued on the 7th October, 1982 had extinguished exhibit 1 issued on the 11th August, 1982 in the respondent’s name. Learned Senior Counsel for the appellant relied on Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 416 Per Obaseki JSC. Dabup v. Kolo (1993) 8 NWLR (Pt. 317) 254 at 277, Ganko v. Ugochukwu Chemical Industries Limited (1993) 6 NWLR (Pt. 297) 55 at 73 Per Karibi-Whyte JSC.

For his part, the respondent submitted that both the trial High Court and the Court of Appeal were right when they declined the invocation of section 5(2) of the Land Use Act. Both courts were also right when they held that since exhibit 1 was first in time, it prevailed over exhibit 4 which was issued later to the appellant. Besides, it is the age long position of the law that where two persons claim possession of the same piece of land, possession resides in the party who has a better title. Counsel relied on case of Ekpan v. Uyo (1986) 3 NWLR (Pt. 26) 63.

It was the further contention of the respondent that section 5(2) of the Land Use Act has no applicability in the instant case. This is because the section is only applicable to a conflict between a holder of a Statutory Right of Occupancy granted by the Governor and a holder of a Customary Right of Occupancy granted by the Local Government over the same plot of land. But it was pointed out that the customary right of occupancy in this regard must not arise from a deemed right because the Governor does not have the power to dispossess people of their family land at will. In a situation where there is a conflict between two holders of statutory right of occupancy granted by the Governor, as in this case, it was contended that equity would be called into play. Counsel further said that even though the Governor has the right to revoke a right of occupancy, it must be for overriding public interest and for requirement by the Federal Government for public purposes as prescribed by section 28 of the Land Use Act.

That being so, learned counsel for the respondent argued that the cases of Saude v. Abdullahi (supra), Dabup v. Kolo (supra) and Ganko v. Ugochukwu Chemical Industries Ltd. cited by the appellant do not apply to the facts and circumstances of the present case.

Power of the Governor to revoke rights of occupancy. The power of the Governor to revoke rights of occupancy under the Land Use Act is provided for in section 28. The relevant provisions thereof are section 28(1), (2), (4), (5), (6), and (7). They provide that:

“28(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.

(2) Overriding public interest in the case of a statutory right of occupancy means –

(a) the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;

(b) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;

(c) the requirement of the land for mining purposes connected there with.

(4) The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes.

(5) The Governor may revoke a statutory right of occupancy on the ground of –

(a) a breach of any of the provisions which a certificate of occupancy is by section 10 of this Act deemed to contain;

(b) a breach of any terms contained in the certificate of occupancy or in any special contract made under section 8 of this Act;

(c) refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under sub-section (3) of section 9 of this Act.

(6) This revocation of a right of occupancy shall be under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.

(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub-section (6) of this section or on such later date as may be stated in the notice.”

The right of occupancy talked of herein, in my view, includes deemed rights of occupancy derived under sections 34(2) and 36(4).

The power of the Governor to revoke a right of occupancy must be for overriding public interest and for requirement by the Federal Government, for public purposes. So that any revocation for purposes outside the ones prescribed by section 28 of the Act is against the policy and intention of the Act and can be declared invalid, null and void by a competent court. See Osha v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157. From the established facts of this case, it is crystal clear that the Governor did not act under the provisions of section 28 of the Land Use Act.

So, what happened in this case. Both the appellant and the respondent were granted a statutory right of occupancy over the same piece of land known as plot No.79 Sharada in the Municipality of Kano at different times. It is not in dispute that the grant to the respondent was first in time. Both ‘the trial court and the Court of Appeal held that the earlier grant took precedence over the latter one; that it conferred title to the disputed land on the respondent.

In the course of its judgment, the Court of Appeal per Umaru Abdullahi, JCA (as he then was) held thus:

“From the established facts in this case, I cannot agree more with the learned counsel for respondent, that the learned senior counsel for appellant has grossly misconstrued the applicability and intention of the provision of section 5(2) of the Land Use Act. Considering the factual situation in this case, the provision of section 5(2) cannot apply. I agree with the view that where two contesting parties trace their title in respect of the same piece of land to the same grantor the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor because the grantor having successfully divested himself of his title in respect of the piece of land by the first grant would have nothing left to convey to a subsequent purchaser (grantee) under the elementary principles of nemo dat quod non habet as no one may convey what no longer belongs to him. See Gabriel Adewole Tewogbade v. Mrs A. Obadina (1994)4 NWLR (Pt.388) 326; (1994)4 SCNJ particularly at page 79 where IGUH JSC stated the law as follows:

‘When there exists two competing conveyances which have been duly registered each takes effect as against the other from the date of registration so that the one executed earlier looses its priority if it was registered later, in point of time.’

In this case, exhibit 1 granted to the respondent was doubly first, both in grant and registration to exhibit 4 to the appellant. See also the case of Michael Rahains v. Romaine (1992) 5 SCNJ 25, where the Supreme court declared an instrument by grant a nullity because by the time the grant was made the grantor had no more interest in the land so granted.

I cannot also accept the view of the learned senior counsel that no other interpretation will be acceptable with regard to the provision of section 5(2) of the Land Use Act, other than that exhibit 4 which was later in time automatically extinguished exhibit 1, which was earlier and subsisting grant by the same grantor. In fact to accept the view of the learned senior counsel will negate the purpose for which section 28 of the same Land Use Act was enacted. Even on ground of common sense, the law makers would not expect each holder of a right of occupancy to feel so insecure that another Governor would come along one day to issue a fresh right of occupancy to another person over the land granted to the holder previously by another Governor and to be asked to start packing out of the land on ground that his title has been extinguished by a new grant.

In the circumstances, I have no difficulty in holding that the respondent’s title with regard to plot No. 79 Sharada Kana has not been extinguished by exhibit 4. Exhibit 1 still remains intact. I also agree with the learned trial Chief Judge that exhibit 4 is a worthless piece of paper.”

Learned senior counsel for the appellant has attacked this decision on the ground that it overlooked the provision of section 5(2) which states that:

“Upon the grant of a statutory right of occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”

He strongly argued that section 5(2) causes a statutory right of occupancy to extinguish all existing rights, whether they are preexisting customary rights.

As I have already indicated earlier on, the power of the Governor to revoke a right of occupancy has been clearly set out in section 28 of the Land Use Act. But this section was not called into play in this case. With regard to section 5(2) of the Act which I have already quoted, the respondent contends that it clearly does not apply to the facts and circumstances of the instant case. The section, it was argued, is only applicable to a conflict between a holder of a right of occupancy granted by Governor and a holder of a customary right of occupancy granted by the Local Government over the same piece of land.

The authorities relied upon by the learned senior counsel do not support his submission that under section 5(2) a latter statutory right of occupancy extinguishes all existing rights including all existing statutory right. In Saude v. Abdullahi (supra) section 5(2) of the Act was not the object of the decision. Throughout the lead judgment no reference was made to section 5(2) of the Act. The view of Obaseki JSC. touching on section 5(2) were clearly obiter.

In the case of Dabup v. Kola (supra) the earlier right granted was a customary right of occupancy issued by the local Government. This court held that the latter grant of a statutory right of occupancy by the Governor clearly extinguished the existing customary right granted by the Local Government. In Teniola v. Olohunkun (1999) 5 NWLR (Part 602) 280 (supra) the Government right of occupancy was over a land alleged to have been held under a customary right of occupancy. But that right was in fact not shown to exist because in two previous litigations those who asserted it in two separate Area Courts failed to establish it. This court invoked the provision of section 5(2) of the Act and dismissed the appeal.

Be that as it may, I am of the opinion that revocation ought to precede a grant of a statutory right by the Governor under section 5(2) even where the prior right is a customary right of occupancy in the light of section 28(3) which provides:

“(3) overriding public interest in the case of a customary right of occupancy means –

(a) the requirement of the land by the Government in the State or the requirement of land by the Government of the Federation for public purposes of the Federation;

(b) the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith;

(c) the requirement of the land for the extraction of building materials;

(d) the alienation by the occupier by sale, assignment, mortgage, transfer of possession, sub-lease, bequest or otherwise of the right of occupancy without the requisite consent or approval.”

This means that the power of the Governor to revoke rights of occupancy includes statutory right of occupancy as set out in subsection (2) of section 28 and customary rights of occupancy as provided for in sub-section (3) of section 28. This is good law and good sense. A customary right of occupancy like a statutory right of occupancy entitles a holder to undertake development on the land. Revocation under section 28 of the Act entitles the holder and the occupier to compensation for the value at the date of revocation of their unexhausted improvements. See sections 29, 30 and 35 of the Act. It is not the intention of the Act that an earlier grant be undermined and impliedly revoked by a later grant for which no compensation may be made.

Now, the rights which I believe will be automatically extinguished upon the grant of a statutory right of occupancy include licenses and usufruct. These rights do not carry with them a right to develop the land. Such rights may be abrogated at a moment’s notice with little or no hardship done to the users of the land.

In a situation such as the one we have in the instant case, where two contesting parties trace their title in respect of the same piece of land to the same grantor, the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor because the grantor having successfully divested himself of title in respect of the piece of land in question by the first grant would have nothing left to convey to a subsequent grantee under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him. This is an obvious truism. The Governor in the present case is the common grantor. The respondent’s certificate of occupancy (exhibit J ) was issued on 11th August, 1982. By the time the appellant’s certificate of occupancy (exhibit 4) was issued on 7th October, 1982 over the same plot of land, the Governor no longer had anything at plot 79 Sharada Kano having not revoked the earlier grant exhibit 1 made to the respondent. See Tewogbade v. Mrs. Obadina (1994) 4 NWLR (Pt.388) 326, (1994) 4 SCNJ 79. It goes without saying that the appellant got nothing from the Governor am therefore in complete agreement with the decision of the trial court and the Court of Appeal on this issue.

I turn now to issue No.2. It was submitted for the appellant that since the validity of the radical title of the appellant is in issue, the respondent in order to succeed ought to have joined the Governor of Kano State and prayed for the setting aside of the latter certificate of occupancy. Learned counsel relied on Osha v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157.

For his part, the respondent submitted that the Governor of Kano State is not a necessary party to this suit. It was contended that the cause of matter in this case is not liable to be defeated by the non-joinder of the Governor.

Learned counsel for the respondent pointed out that the validity of the grant made to the respondent was never challenged at the trial of this action. He submitted that the appellant cannot without the leave of this court raise the issue in this appeal.

The short answer is this. Where there is no complaint against a party, the non-joinder of that party will not affect the proper determination of the issues joined. It must be stressed here that the radical title of the land is not in issue. That being so, the non-joinder of the Governor of Kano State did not affect the proper determination of the issue joined. Again it must be pointed out that the complaint of trespass was against the appellant and not against the Governor of Kano State. The bottom line is that the Governor of Kano State is not a necessary party to this suit see Osho v. Foreign Finance Corporation (supra). This issue also fails.

The third issue is a complaint against the affirmation by the Court of Appeal of the appellant as a trespasser. It was pointed out that the appellant was a bona fide holder of a genuine certificate of occupancy – exhibit 4. He entered the land without any notice of the respondent’s adverse claim. He was in lawful possession of the land in question. That being so, it could not be said that the appellant was guilty of trespass.

In his reply, the respondent submitted that both the trial court and the Court of Appeal were right in their finding of trespass against the appellant. This is so because the trial court restrained the appellant by injunction from further construction on the land, yet he continued to completion in defiance of these orders.

Now, trespass is an unwarranted or unjustifiable entry or intrusion by one person upon land in possession of another. It does not depend on the intention of the trespasser. Nor can he plead ignorance as to true owner or that he thought the land belonged to him. It is enough that the right of the owner or person in exclusive possession was invaded. It is a settled principle of law that where a person who initially entered upon land lawfully or pursuant to an authority given by the true owner, or person in possession subsequently abuses his position or that authority, he becomes a trespasser ab initio, his conduct relating back so as to make his initial entry trespass. See Ajibade v. Pedro (1992) 5 NWLR (pt. 241) 257.

Although generally speaking, a claim for trespass is rooted in exclusive possession or the right to such possession of the land in dispute, once a defendant claims to be the owner of the land in dispute, title to it is put in issue, and in order to succeed, the plaintiff must show a better title than that of the defendant: see Amakor v. Obiefuna (1974) 1 All NLR 119.

The respondent as the plaintiff here, claimed ownership of the land in dispute as per exhibit 1. The defendant, the appellant herein, also claimed ownership of the same piece of land as per exhibit 4. The parties have thus joined issue on their title on the land in dispute. That being the case what falls for the determination is who has a better title. I have earlier on in this judgment resolved the issue of title in favour of the respondent. The appellant failed to prove a valid title and his possession of the land in question was that of a trespasser. The trial court and the Court of Appeal were right when they held the appellant liable in trespass. This issue also fails.

All the issues having been resolved in favour of the respondent, this appeal fails and I dismiss it. I accordingly affirm the decision of the Court of Appeal.

The respondent’s fourth issue relates to his cross-appeal. It questions the refusal of the Court of Appeal to affirm the decision of the trial court on the application of the maxim quic quid plantatur solo solo cedit. In the course of his judgment the learned trial Chief Judge said:

“The defendant has now the responsibility of removing his building which has constituted a nuisance on the plot of the plaintiff. This should be done within a reasonable time. I consider three months to be a reasonable time within which defendant should carry all his structures from the plaintiff’s land. If he fails to do so within three months the principle or maxim of quic quid plantatur should apply.”

The Court of Appeal disagreed. It held in its judgment that:

“This finding has no support from the respondent’s pleading filed before the trial court and in my view is such a major finding to be regarded as a consequential order. The relief should have been clearly claimed in the pleadings.”

So what is a consequential order A consequential order is one giving effect to a judgment or order to which it is consequential. It is directly traceable to or flowing from that judgment or order duly prayed for and made. See Agu v. Odofin (1992) 3 NWLR (Pt.229) 350; (1992) 3 SCNJ 161; Akinbobola v. Plisson Fisko Nigeria Lid. (1991) 1 NWLR (Pt. 167) 270.

The respondent in the instant case claimed damages for trespass and injunction. Having found that title to the land in dispute is in the respondent, the learned trial Judge should have granted an injunction to protect the respondent’s title. Since title to the land is in the respondent, everything that accedes to the land belongs to the respondent on the principle of quic quid plantatur solo solo cedit. I think that principle is consequent on a declaration of title. It need not be claimed nor does it need an order of court for it to operate in favour of a person who has succeeded in the title claimed. Any argument that the court is wrong to pronounce on it because it was not sought as a relief is an utter misconception.

In the event, I dismiss the main appeal. As regards the cross appeal, I hereby grant all injunction as claimed by the respondent. The respondent is entitled to costs which I assess at N10,000.00 against the appellant.

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SC.51/1996