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Dantsoho v. Mohammed

ALHAJI AMINU DANTSOHO

V

ALHAJI ABUBAKAR MOHAMMED

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC

UTHMAN MOHAMMED, JSC

ALOYSIUS IYORGYER KATSINA-ALU, JSC ( Read the Lead Judgment )

UMARU ATU KALGO, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

EMMANUEL OLAYINKA AYOOLA, JSC

SC. 51/1996

FRIDAY, 21ST FEBRUARY, 2003

COURT - Superfluous orders - Need for court to avoid

INTERPRETATION OF STATUTE - Land Use Act, section 5(2) - ‘Existing right’ therein - How construed

INTERPRETATION OF STATUTE - Principles of construction of statute Need to consider any other part of the statute which may throw light upon the intention of the legislature

JUDGMENT AND ORDERS - Consequential order - Meaning of

LAND LAW - Nemo dat quod non habet - Incident of the principle of with respect to grant of right of occupancy to two persons on same piece of land

LAND LAW - Ownership of land - When defendant claims ownership of Burden on plaintiff to show a better title

LAND LAW - Right of occupancy - Holder and occupier of land - Right of to compensation when right of occupancy is revoked - Whether an earlier grant is impliedly revoked by a later grant without compensation

LAND LAW - Right of occupancy - Power of governor to revoke - Scope of -  Section 28(2)(3) of the Land Use Act

LAND LAW - Statutory and customary right of occupancy - Entitlement of holders of to undertake developments on the land

LAND LAW - Statutory and customary right of occupancy - When granting -  Need for governor to revoke prior right before granting - Section 5(2)  and 28(3), Land Use Act

LAND LAW - Title to land - Where declared in favour of plaintiff - Court subsequently making a superfluous order that defendant should remove his building thereon within three months - Impropriety of in the light of the principle quic quid plantatur solo solo cedit

LAND LAW - Trespass - Lawful occupier of land - When becomes a trespasser

LAND LAW - Trespass - Nature and meaning of

LAND USE ACT - ‘Existing right’ in section 5(2) of Land Use Act - How construed

LAND USE ACT - Revocation of right of occupancy - Purpose for which the governor should revoke

LAND USE ACT - Right of occupancy - Holder and occupier of land Right of to compensation when right of occupancy is revoked Whether an earlier grant can be impliedly revoked by a later grant without compensation - Section 28, Land Use Act

LAND USE ACT - Right of occupancy - Power of governor to revoke Scope of - Section 28(2)(3) of the Land Use Act

LAND USE ACT - Right of occupancy - Purpose for which the governor may revoke - Effect of revocation for purposes outside the ones prescribed by section 28 of the Land Use Act

LAND USE ACT - Rights of occupancy - Rights of usufruct and licences which may be automatically extinguished upon grant of

LAND USE ACT - Statutory and customary right of occupancy - Entitlement of holders to undertake development on land

LAND USE ACT - Statutory and customary right of occupancy - When granting  - Need for governor to revoke prior right before granting -  Section 5(2) and 28(3) of

PRACTICE AND PROCEDURE - Parties to an action - Non-joinder of a party - Whether will affect the proper determination of issues joined

TORT - ‘Trespass’ - Meaning of

WORDS AND PHRASES - ‘Consequential order’ - Meaning of

WORDS AND PHRASES - ‘Trespass’ - Meaning of

Issues:

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 supersede  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?

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 quid plantatur solo solo cedit after the expiration of the 3 months given by the 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.

Facts:

Both the appellant and the respondent in this case 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. While the respondent’s right of occupancy was granted in 1978, the appellant’s was granted in 1981. Appellant, however, commenced building on the land as a result of which the respondent took out a writ of summons against the appellant claiming inter alia, damages and injunction.

At the conclusion of hearing the trial court entered judgment for the respondent and also ordered that if the defendant failed to remove his structures on the land within three months the maxim quic quid plantatur solo solo cedit should apply. On appeal to the Court of Appeal, judgment of the trial court was affirmed and on the third order that the defendant should remove his structures on the land in question, the Court of Appeal set same aside on the ground that the relief was not pleaded.

Aggrieved, appellant further appealed to the Supreme Court. Respondent 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 Supreme Court considered section 5(2) and section 28 of the Land Use Act which provides:

Section 5(2): “Upon the grant of statutory right of occupancy under the provisions of subsection (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.”

Section 28 of the Land Use Act reads:

“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;

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

(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 purpose.

(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)          a 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 subsection (3) of section 9 of this Act

(6)          This revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized 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 subsection (6) of this section or on such later date as may be stated in the notice.”