WHY IS GOVERNOR’S CONSENT NECESSARY FOR ALIENATION OF LAND IN NIGERIA

Introduction

 

In this edition of Akintunde Esan Legal Illumination, the focus is why is the consent of the Governor of any State in Nigeria, where a land is located  necessary  before the alienation of such a land by selling,assigning,leasing, mortgaging or transferring of any interest in the land can be said to be valid or perfected. 

Alienation of Land

 

The law which governs the alienation of lands in Nigeria is the Land Use Act. The Act was enacted on the 29th March 1978 and right from said date the Governor became the Landlord of all the lands in any State in Nigeria and it is only those who the Governor gives the right of occupancy known as "statutory right of occupancy" that have a valid title to any land, except lands not designated as Urban Lands. For a more illuminations on the Land Use Act and the  right of occupancy under the Act click to view  Illuminations on Certificate of Occupancy and the Right of Occupancy  in Nigeria. 

It is the Local Government that gives right of occupancy called “customary right of occupancy” over lands not designated as Urban land. A "customary right of occupancy" means the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under Land Use Act. 

Why is the Consent of the Governor necessary for Alienation Land

 

The consent of the Governor is necessary for the alienation of any land designated and published in a State’s Gazette as an Urban land by virtue of Sections 22 and 26 of the Land Use Act which provides that:

“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained:”

Section, 22 (1) clearly prohibits the holder of a statutory right of occupancy from alienating his or her right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the Governor first had and obtained. Owoniboys Technical Services Limited v Union Bank of Nigeria (2003) 9 MJSC 38 AT 53-54, per Ejiwunmi, JSC. 

Thus, the reason why the consent of the Governor is a condition precedent to a valid sale, assignment or transfer of any interest in land  is simply because the Land Use Act stipulates  that it shall not be lawful to transfer your interest in an Urban land without the Governor’s consent and that by virtue of Section 26 :

“Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of the Land Act shall be null and void.”

In essence, any alienation done by any form of transaction or instrument including a Power of Attorney without the Governor’s consent first had and obtained is by virtue of Section 26  null and void. Awojugbade Light Industries Limited v. Chinukwe (1995) 4 NWLR (Pt.390) 379; Savannah Bank of Nig. ltd. v. Ajilo (1987) 2 NWLR 421; Brossette Manufacturing Nig. Ltd. v. M/S Ola Ilemobola Limited &3 Ors. (2007) 30 NSCQLR 1137.

 

When the Consent of the Governor is not Necessary  

The Consent of the Governor is not necessary: 

a.    for the creation of a legal mortgage over a statutory right of occupancy in favour of a person in whose favour an equitable mortgage over the right of occupancy has already been created with the consent of the Governor; 

b.   for the reconveyance or release by a mortgagee to a holder or occupier of a statutory right of occupancy which that holder or occupier has mortgaged to that mortgagee with the consent of the Governor; 

c.   though the consent of  the Governor is not necessary for lands not designated and published in a Gazette as Urban land, it is however required when  any customary right of occupancy or any part of it alienated by assignment, mortgage, transfer of possession or sublease  is to be sold by or under the order of any court under the provisions of the applicable Sheriffs and Civil Process Law . 

Option to Renew Clause

 

It should be noted that, the consent of the Governor to the renewal of a sub-lease shall not be presumed by reason only of his having consented to the grant of a sub-lease containing an option to renew the same. Section 22 (1) (c).

Document of Title Prepared in Anticipation of obtaining Governor’s Consent 

 

Section 22(2) of the Land Use Act is clear as to what the holder of a statutory right of occupancy must do to obtain the consent of the Governor. He must submit an instrument executed in evidence of the alienation by way of assignment, mortgage or sublease. 

In the case of Brossette Manufacturing Nig. Ltd. v. M/S Ola Ilemobola Limited & 3 Ors. (2007) 30 NSCQLR 1137, per Katsina-Alu, JSC at pages 1163-1164 an agreement (Exhibit 3), was prepared in anticipation of obtaining Governor’s consent. In his evidence the Plaintiff said: “the document was not dated because we had not yet obtained the approval of the Governor.” It was held by the Supreme Court that, the agreement though; inchoate was in substantial compliance with Section 22 of the Land Use Act. 

How to Apply for Governor’s Consent in Lagos State 

 

In practice, to apply for the consent of the Governor in Lagos State as at February,2017, the following  are the requirements:

• Application letter
• 3 copies of original Deed of Assignment 
• Survey Plan  (2 clothe and 1 paper)
• Photograph of site showing date, time and street name where the property is situated
• Location sketch
• Evidence of lodgement of Record Copy
• Four passport photograph of Assignee (buyer),
• CTC of Root of Title
• Duly executed Form 1C
• Charting
• Endorsement fees
• Admin fees.

For more illumination on the how to apply for Governor’s Consent in Lagos State in respect of any land you are advised to contact Akintunde Esan. Akintunde Esan is the  leading online Legal Consultant in Nigeria. He is the Managing Partner, Ase Olodumare Chambers   

WHY IS GOVERNOR’S CONSENT NECESSARY FOR ALIENATION OF LAND IN NIGERIA is a legal illumination of AKINTUNDE ESAN known as The LEGAL ADVISER ONLINE. Akintunde Esan is the Managing Partner & Principal Consultant @ ASE OLODUMARE CHAMBERS (Legal Practitioners/Consultants & Chartered Mediators)

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