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)

Click to also view:

THE NECESSARY LEGAL DOCUMENTS TO PROTECT YOUR LAND IN NIGERIA

21 THINGS TO KNOW ABOUT A POWER OF ATTORNEY IN NIGERIA
ILLUMINATIONS ON CERTIFICATE OF OCCUPANCY AND THE RIGHT OF OCCUPANCY IN NIGERIA

GROUNDS FOR GRANTING DIVORCE IN COURT IN NIGERIA

LEGAL TIPS FOR LAND PURCHASERS IN NIGERIA

	LAND LAW : PROTECTING YOUR INVESTMENT  IN LAND AND  PROPERTIES IN NIGERIA
1.	Legal Protection of Your Landed Properties	Investing your hard earned money in a land or landed property without legal protection is holding a time bomb in your hand. Legal protection of your property is to have all the necessary legal documents that, guarantees and protects your right to exclusive ownership and enjoyment of your property.
2.	Means of Acquisition of land and the Necessary Legal Documents	Purchase - Purchase Receipt, Deed of Assignment. Leasing/Renting - Deed of Lease or Lease Agreement or Tenancy Agreement. Devolution - Testate - Probate or Intestate - Letter of Administration. Gift or Grant - Deed of Grant or Gift. Allotment of family or communal land - Traditional Evidence or Minutes of Meeting.  Sale or Purchase on behalf of another - Power of Attorney Proof of Identity and location of the land -  Survey Plan
3.	Due Diligence - Verification of Status of Land	Conduct searches in the Land Registry: To know whether the land is encumbered e.g. mortgaged. Charting of Survey Plan at the Office of the Surveyor-General: To verify whether the land has been acquired by Government or the right of occupancy has been revoked or has the right setback. This is done by making a formal application to the Surveyor-General requesting for land information certificate.
4.	Statutory and Regulatory Requirements	In Writing : The Contract of sale of a land or landed property must be in writing. Stamp Duties: An unstamped title document cannot be tendered in court as evidence. Certificate of Occupancy: Confers a statutory right of occupancy which overrides any counter claim to the land unless held otherwise by the court. Governor’s consent : The consent of the Governor of a State must be obtained before any Assignment, Lease or Mortgage of an interest in land in a State in Nigeria can be recognised as valid in law. Registration of Title Documents with the Registrar of Title: Any document affecting land - except a Will - must be registered. An unregistered title document is not admissible in court as evidence of legal title. Payment of Ground rent for Certificate of Occupancy or land use charges. Approval of Building Plans.
5.	Methods of Proving Ownership Of Land	The court will presume ownership of land in favour of the Claimant who provides: Proof by traditional evidence ( History of family or communal land); Proof by production of documents of title duly authenticated and executed; Proof by acts of ownership in and over the land such as selling, leasing, making grant, renting out all or any part of the land or farming on portion thereof, extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;  Proof by acts of long possession and enjoyment; Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. In the case of Idundun v. Okumagba  (1976) 1 9-10 SC 227 , the Supreme Court laid down what today has become the five methods, means or ways of proving or establishing  ownership to land above.
	Legal Remedies for Threat to Right of Ownership or Enjoyment of Land
1.	Sue for Trespass to Land	Where another without lawful justification or without your invitation or permission: (a)enters upon your land, or (b) remains upon  your land, or (c) directly places or projects any material objects upon your land.  You can sue for trespass to your land.
2.	Sue for Recovery of Possession of Land	A person who has been in exclusive possession of land but was wrongly dispossessed is entitled to sue for recovery of possession.In Nigeria, a right of action for recovery of land is extinguished twelve years after the date on which the cause of action accrued.
3.	Declaration of Title to Land	Where there is a conflict in claim of ownership of a land, the Claimant with proof of title can sue for declaration of title i.e. for the court to pronounce the person who has proved his title to the land as the one with the exclusive right to the land.
4.	Nominal Damages	Money claimed by or ordered to be paid to a person as compensation for trespassing on the claimant’s land or infringing on the claimant’s  right of ownership.
5.	Special Damages	Compensation for financial loss suffered as a result of trespass.
6.	Specific Performance	The court may order or compel the party who breached contract of sale of land to perform the contract by making a decree of specific performance.
7.	Injunction	Perpetual injunction restraining the trespasser from further trespassing on the land
8.	Compensation	You are entitled to claim for compensation for the compulsory acquisition by the Government of a land covered by a Certificate of Occupancy.
9.	Will	If you are bothered about the fate of your landed property in case of death, contact a lawyer to prepare you a Will.
Limitation Period		By virtue of the Limitation Law and Act, a right of action for recovery of land is extinguished twelve years after the date on which the cause of action accrued. S. 16 (2) (A), 17 & 21 of the Limitation Law CAP. L67 Laws of Lagos State.
Further Illuminations: If you are confused or in a dilemma on your land documents or the remedies available to you on how to resolve a legal issue or dispute on your landed property, you are advised to contact Akintunde Esan for further illuminations. For illumination on the preparation of your Will, Deed of Assignment, Lease and other necessary legal documents you are also advised to contact Akintunde Esan.  © 2015 Akintunde Esan, Managing Partner, Ase Olodumare Chambers THE REQUIRED LEGAL DOCUMENTS FOR  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) Click to view: LAND LAW: LAND LITIGATION IN NIGERIA