LEGAL PRINCIPLE: LAND LAW – Land Use Act – Grant of Right of Occupancy – Land Already Subject of Deemed Grant Cannot Be Regranted – Nemo Dat Quod Non Habet
PRINCIPLE STATEMENT
The land in dispute having been deemed granted to the appellant by the operation of law by the Konduga Local Government as from the 29th March, 1978 could not thereafter be lawfully or validly granted a second time by the same Local Government during the subsistence of the first grant as the land would then not be free for allocation under the well known maxim, nemo dat quod non habet. The purported grant under Exhibit A is therefore patently unjustifiable, unlawful and, clearly invalid and of no effect.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Kyari v. Alkali & Ors (2001) NLC-2241993(SC) at p. 28; Paras A–C.
"The land in dispute having been deemed granted to the appellant by the operation of law by the Konduga Local Government as from the 29th March, 1978 could not thereafter be lawfully or validly granted a second time by the same Local Government during the subsistence of the first grant as the land would then not be free for allocation under the well known maxim, nemo dat quod non habet. The purported grant under Exhibit A is therefore patently unjustifiable, unlawful and, clearly invalid and of no effect."
EXPLANATION / SCOPE
The maxim nemo dat quod non habet (no one gives what they do not have) applies to grants of land under the Land Use Act. Once land is subject to a deemed grant under Section 36(2), the Local Government cannot validly grant the same land to another person during the subsistence of the first grant. The land is not free for allocation. A subsequent grant is invalid and of no effect. The Local Government cannot give what it no longer has (the right to allocate free land). This protects deemed grantees from being dispossessed by later grants. The first grant in time prevails.