⦿ CASE SUMMARY OF:
ALHAJI AMINU DANTSOHO V. ALHAJI ABUBAKAR MOHAMMED (2003) – SC
⦿ LITE HOLDING
When title is in issue, the first in time has better title.
⦿AREA OF LAW
– Certificate of occupancy;
– Quic quid plantatur solo solo cedit;
ALHAJI AMINU DANTSOHO
ALHAJI ABUBAKAR MOHAMMED
(2003) JELR 44743 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
A. I. KATSINA-ALU, JSC
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The material facts are not in dispute. In brief summary they are as follows:
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.
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.
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.
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:
(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. The Court of Appeal upheld the judgement of the Trial Court.
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?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: APPEAL DISMISSED; N10,000 cost against the Appellant]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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. SeeTewogbade 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.
2. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
3. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Katsina-Alu, JSC
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.
⦿ REFERENCED (STATUTE)
Section 5 & 28 Land Use Act.
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
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. – Katsina-Alu, JSC. Dantsoho v. Mohammed (2003)
Furthermore, it is the law that in construing any provision of a statute, a court ought, and is indeed bound, to consider any other parts of the statute which throw light upon the intention of the legislature and which may serve to show that the particular provision ought not to be construed as it would if considered alone without reference to such other parts of the statute. – Katsina-Alu, JSC. Dantsoho v. Mohammed (2003)
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. – Katsina-Alu, JSC. Dantsoho v. Mohammed (2003)
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. – Katsina-Alu, JSC. Dantsoho v. Mohammed (2003)
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. – Katsina-Alu, JSC. Dantsoho v. Mohammed (2003)