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.