Land Use Act 1978 – Consent

The land tenure system in Nigeria was revolutionized in 1978 with the enactment of the Land Use Act (“LUA”). Under the LUA, all lands within the territory of each state (except for lands vested in the Federal Government or its agencies) now belong to the State Governor, who holds it in trust for the citizens of the State.

By virtue of article 22 of the LUA, the alienation -by the holder of a legal right of occupation granted- of his right of occupation by assignment, mortgage, transfer of possession, sublease, etc. is prohibited without the consent of the Governor (first had and obtained). Therefore, it is very important to ensure that you obtain the Governor’s consent, as any transaction or instrument purporting to vest or confer upon any person any interest or right in land without the Governor’s consent will be null and void (section 26 LUA ). In Savannah Bank v. Ajilo (1989) 1 NWLR (pt. 97), Judge Nnamani JSC stated that:

“Any holder of a right of occupation, whether statutory or not, is deemed to have been granted the right by the Military Governor or Local Government, as the case may be, for the purpose and control of the administration of all lands comprised Accordingly, each holder, whether under sections 5, 34 or 36 of the Land Use Act, requires the prior consent of the Military Governor before he can transfer, mortgage or otherwise dispose of their interest in the right of occupation”.

Since governors are often very busy with the business of running the state, section 45 of the LUA allows a governor to delegate to the state commissioner any or all of the powers vested in the governor by the LUA, including the power to grant consent. However, problems may arise when the official transmitting or granting consent has done so under the Governor’s delegation. This problem usually occurs when the Deputy State Commissioner does not give consent, but a lower official in the ministry (Ag. Chief Lands Officer, Permanent Secretary or Director of Lands) gives consent. In UBN Plc v. Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR (Pt. 1052), it was argued that the consent given to the two legal mortgage deeds was inconsistent with the provisions of the LUA as it was not given by the Governor or the State Commissioner but by the Kwara State Chief Land Officer Ag. By annulling the consent granted, the Court held that,

“Since the person who signed was not the Governor’s deputy, it would be a mistake to assume that the signature of the Chief Land Officer Ag. on Exhibit D1 cannot be seen as substantially consistent with the signature of the Governor or his deputy, the Commissioner of Land and Housing”.

In view of the Supreme Courts’ earlier decision and a plethora of decisions sharing the same sentiment as the Supreme Court in UBN Plc v. Ayodare & Sons (Nig.), it is vital that when approval for mortgage consent is to be granted (in relation to land covered by a legal right of occupancy), the letter of grant is signed by the Governor or his designee do you agree