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A CRITICAL OVERVIEW OF THE CONSENT PROVISIONS UNDER
THE LAND USE ACT, 1978.
A RESEARCH PROJECT
BY
NWATU, JOSEPH IKECHUKWU
REG. NUM. 05/61657
SUBMITTED TO
THE FACULTY OF LAW
ABIA STATE UNIVERSITY, UTURU
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE AWARD OF BACHELOR OF LAW (LL.B) DEGREE
AUGUST, 2010.
CERTIFICATION
This is to certify that this research work was carried out by NWATU, JOSEPH
IKECHUKWU under the thorough and painstaking guidance and supervision of
the indefatigable Barrister P.C. UGOCHUKWU LL.B (Hons), B.L, LL.M, Senior
Lecturer and former Acting Dean, Faculty of Law, Abia State University, Uturu.
SUPERVISOR’S SIGNATURE
DATE ---------------------------------------------
STUDENT’S SIGNATURE
DATE ---------------------------------------
APPROVAL PAGE
This project has been approved for the Faculty of Law, Abia State University,
Uturu, Nigeria.
BY:
SUPERVISOR/ADVISER -----------------------------------
Bar. P.C. UGOCHUKWU.
DEAN, FACULTY OF LAW -----------------------------------
Prof. U.O UMOZURUIKE.
DEDICATION
This research work is dedicated to the Omniscient God by whose mercy and
grace I live every day of my life.
To God Be the Glory!
LIST OF ABBREVIATIONS
J.C.A Justice of the Court of Appeal of Nigeria
Anor Another
C.A Court of Appeal
J.S.C Justice of the Supreme Court of Nigeria
L.U.A Land Use Act, 1978
N.W.L.R. Nigeria Weekly Law Report
W.A.C.A. West African Court of Appeal
S.C. Supreme Court of Nigeria
S Section
Ss Sections
All E.R. All England Law Reports
N.R.N.L.R. Northern Region of Nigeria Law Report
N.L.R. Nigeria Law Report
Ors Others
S.C.N.J. Supreme Court of Nigeria Judgments
Supra Above cited
V. Versus (and)
ANLR All Nigeria Law Reports
P Page
Pt Part
Op.cit Cited opposite (in the book cited earlier)
F.S.C Federal Supreme Court of Nigeria
Ibid in the same place
TABLE OF STATUTES
Interpretation Act, Cap 89, LFN, 1958.
Land & Native Rights Act NO 1, 1916 & 1918.
Land Registration Act, 1924.
Land Tenure Law, 1962.
Land Use Act (Amendment) Bill, 2009.
Land Use Act, Cap L LFN, 2004.
Mortmain & Charitable Uses Act, 1888.
Native Lands Acquisition Act, 1917
Native Rights Proclamation & Ordinance, 1916.
Property & Conveyancing Law, Cap 100, Laws of Western Nigeria, 1959.
State Land Act, 1916
Statutes of Frauds, 1677.
TABLE OF CASES
CASE PAGE
Abina V. Farhat(1938) 14 NRL 17 51
Abioye V. Yakubu(1991) SCNJ 69 29,52
Abdurahahman V. Oduneye & Ors(2009) 48
Adedibu V. Makanjuola(1944) 10 WACA 33 26
Adewujui V. Ishola(1958) WRNLR 110 13
Adetuji V. Agbojo(1997) 1 NWLR(pt.848) 705 49
Agbole V. Sappor(1947) 12 WACA 187 5
Alao V. Ajam(1989) 6 SCNJ 243 7
Amodu Tijani V. Secretary of Southern Nigeria(1921) 2 A.C.399 3
Archibong V. Archibong(1947) 18 NLR 117 6
Ariori V. Elemo(1933) ECNLR 1 25
Awojugbagbe Light Industries Ltd V. Chinukwe(1995) 4 NWLR
(pt. 390) 379. 37,49
Baba V. Jibrin(2004) 16 NWLR(pt. 899) 249 61
Brosette Manufacturing (Nig) Ltd V. M/S Ola Ilemobola Ltd
(2007) 14 NWLR(pt. 1054) 109 38
Calabar Central Co-operative Thrift & Credit Society V. Bassey
Ekpo(2008) 1-2 SC 229 37,50
Dahiru V, Kamale(2005) 9 NWLR(pt.929) 8 62
De Facto Bakeries & Catering Ltd V. Ajilore & Anor(1974) 41
NSCC 569
Ekpendu V. Erika(1959) 4 FSC 79. 5,14
Etim V. Butt(1997) 11 NWLR(pt.527) 71 12.
Eyamba & Ors V. Koure(1937) WACA 186. 21,23
Federal Mortgage Bank V. Akintola(1998) 4 NWLR(pt. 545) 327 62
Foko V. Foko(1965) NMLR 5 13
Harry V. Martins(1949) 19 NLR 42 74
Kachalla V. Banki & 2 Ors(2006) 2-3 SC 14 39,40,41
Kosoko V Kosoko(1937) 13 NLR 131 7
Kwino V. Ampong(1952) 14 WACA 250 15
Lopez V. Lopez(1924) NRL 50 6
Mcfoy V. U.A.C. Ltd(1961) 3 A.E.R. 119 50
Mohammed V. Abdulkadir(2008) 4 NWLR(pt.1076) 119 42
Nkwocha V. Governor of Anambra State(1984) 1 SC 634. 71
Nwokoro V. Nwosu(1990) 4 NWLR(pt.129) 679. 73
Odekilekun V. Hassan(1997) 12 NWLR(pt.531) 56 5
Ogunbambi V. Abowab(1951) 13 WACA 222 26
Ogunmefun V. Ogunmefun(1931) 10 NLR 82 7
Okonkwo V. C.C.B. (Nig) Plc(1997) 6 NWLR(pt.507) 48 42
Olowu V. Desalu(1955) 14 WACA 662 14
Omozeghian V. Adjarho & Anor(2006) 4 NWLR(pt.969) 33 41,61
Pharmatek V. Trade Bank Ltd(2009) 13 NWLR(pt.1159) 577 62
Sam Warri Esi V. Moruku(1940) 15 NLR 116 19,74
Savannah Bank V. Ajilo(1987) 2 NWLR(pt.57) 421 32,35,40
Secretary LTC V. Soule(1939) 15 NLR 72 14
Solanke V. Abed & Anor(1962) NRNLR 92 18,74
Ugochukwu V. C.C.B. Ltd(1996) 6 NWLR(pt.456) 524 59,60
Union Bank 9Nig) Plc V. Ayodare & Sons (Nig) Ltd & Anor
(2007)NWLR(pt.) 60
TABLE OF CONTENT
CONTENT PAGE
Title page i
Certification ii
Approval Page iii
Dedication iv
List of Abbreviations v
List of Statutes vii
Table of Cases viii
Acknowledgement ix
Abstract xiv
Introduction xv
Chapter One: SYSTEM OF LAND TENURE IN NIGERIA
BEFORE THE LAND USE ACT, 1978.
1.1 Introduction 1 - 2
1.2 Customary Land Tenure 2 - 9
1.3 Land Holding under the Received English Law 9 - 11
1.4 The Consent Requirement in Retrospect
1.4.1 Meaning and Nature of consent Requirement 12 - 14
1.4.2 Consent Requirement in Retrospect 14 - 23
Chapter Two: THE LAND USE ACT, 1978.
2.1 Historical Review 24 - 28
2.2 Objectives of the Act viz a viz the consent requirement 29 - 32
2.3 Scope of the Consent Requirement under the Act 32 - 34
2.4 Analysis of the Consent Provisions on:
2.4.1 Sale of Land 35 - 41
2.4.2 Mortgages 41 - 43
2.4.3 Leases 43 - 45
2.4.4 Devolution of Interest in Land 45 - 46
Chapter Three: THE CONSENT REQUIREMENT- A CRITICAL VIEW
3.1 Legal effects 47 - 52
3.2 Socio-economic effects 52 - 55
3.3 Implementation problems 55 - 58
3.4 Other consequences 58 - 62
Chapter Four: THE NEED FOR REFORM
4.1 A review of the Amendment Bill, 2009 before the National
Assembly 63 - 67
4.2 Suggested Reforms 67 - 76
4.3 Conclusion 76 - 77
Bibliography. 77 - 80
ABSTRACT
The Land Use Act as a single piece of legislation which came into force on 29th
March, 1978 has generated more controversy than any piece of legislation of its
kind. The sore point of this enactment is the consent requirement provided
under the Act especially Sections 21 and 22 therein.
Ever since the consent requirement of the Land Use Act made its first debut in
our courts for interpretation in the case of Savannah Bank V. Ajilo(1989) 1
NWLR(pt.97) 305, much juristic ink has been expended in debate for or against
the usefulness of the provisions. Judges, in their duty of interpreting the
provision have sung incoherent and discordant notes on the issue. Some writers
too, have tried to either show support for its relevance or call for its repeal or
amendment.
However, the convergent point in this contentious issue of the consent
requirement is the retrogression and retardation, which the requirement, has
continued to inflict on the socio-economic life and development of the country.
This project work x-rayed the difficulties associated with, and incidental to the
strict implementation of the consent requirement with their attendant legal,
socio-economic and developmental dysfunction. Moreover it reviewed the
current Amendment Bill before the National Assembly while unattended areas
were highlighted, which, if not taken care of, may resonate another call in no
distant future for a further amendment.
INTRODUCTION
Human society the world over is heavily dependent on Land and its
resources. It is not an overstatement to say that without land there would be no
human existence. This is because it is from land that man gets items very
essential for his survival such as food, fuel, clothing, shelter, medication and
others1
In the words of Omotola,
“Every person requires land for his support, preservation
and, self actualization within the general ideals of the society. Land
is the foundation of shelter, food and employment. Man lives on land
during his life and upon his demise, his remains are kept in it
permanently. Even where the remains are cremated, the ashes
eventually settle on land. It is therefore crucial to the existence of the
individual and the society. It is inseparable from the concept of the
society. Man has been aptly described as a land animal.”2
Global recognition of the relevance of land to the life of man can be gleaned
from the proceedings at the United Nations conference on Human settlement
(Habitat II), 1996, where many countries committed themselves to
“promoting optimal use of productive land in urban and rural areas
and protecting fragile ecosystems and environmentally vulnerable
areas from the negative impacts of human settlements, inter alia,
through developing and supporting the implementation of improved
land management practices that deal comprehensively with
potentially competing land requirements for agriculture, industry,
1 Datong, P.Z.: “The role of State Government in the Implementation of the Land Use Act in The Land Use Act
Administration and Policy Implication (ed.) by Olayide Adigun, Unilag Press, 1991, P.64.
2 Omotola, J.A. (Prof.) Law and Land Rights: Whither Nigeria,Uinlag, Akoka, Inaugural lecture series
1988 P.6
transport urban development, green space, protected areas and other
vital needs.”3
It is this importance of land to man and the society that influenced the state
intrusion into property legislation in order to ensure adequate and efficient
management technique for the benefits of the greatest number of the
members of the society.
The Land Use Act which is the umbrella statute, under which the
consent requirement is to be critically analyzed in this work, was
promulgated by the Obasanjo administration in 1978 to address this
importance of land to mankind, and therefore provide viable management
options to land administration in Nigeria. This salient fact is borne out of the
preamble to the Act. Consequently, section one of the Act vests ownership of
all land within the territory of a state in the Governor of the state who will in
turn administer such land for the benefit of all Nigerians.
As an incidence of the vesting of the radical title in the Governor,
sections 7, 15(b) 21, 22, 23(1), 24(b), and 34(7) provide for the Governor’s
consent (or LG’s approval in relevant cases) to be sought and obtained
before a holder of a right of occupancy can alienate his whole or part of his
right thereof by way of assignment, transfer of possession, sublease or
otherwise howsoever. These provisions have attracted a lot of comments and
criticisms from various learned authors and the law courts with a near
3 See Declaration of United Nations Conference on Human settlements available at www. un.
Org/Conference/habitat II
unanimous call for their amendments to suit, in practicality, the noble
intendments of the Act.
This, no doubt has evoked my interest to delve into this contentions
area of the Act with a view to critically appraise this thorny issue of the
consent requirement. However, I must concede that this project work is not
the first on this issue. It is, in fact, a part of a continuing discourse on land
management and reforms in Nigeria. But this critical appraisal may be
regarded as a bold attempt on the issue, coming after the Amendment Bill
might have been presented before the National Assembly. It is intended
therefore, to in addition, highlight those areas of the consent requirement
which seems to have been ignored by the Bill, while urging the national
assembly to expeditiously save Nigerians from the stranglehold of this
consent requirement of the Land Use Act.
CHAPTER ONE
SYSTEM OF LAND TENURE IN NIGERIA BEFORE THE LAND USE
ACT, 1978
1.1 INTRODUCTION
It is necessary to understand the antecedents that have led to the current
state of land administration and the agitation for reforms. Hence, the essence of
this chapter is to review the system of land tenure in Nigeria before the Act in
1978.
Land is one of the three major factors of production; capital, Labour and
land. It is a generally held belief that the use and control of land as a productive
asset requires the establishment of a legal and institutional framework for land
management. But that framework has exercised very little influence in Nigeria
on the way property rights to land have developed over the years. This is largely
due to strong feelings which the subject of land evokes. The reasons for this are
not far fetched. First, the supply of land is virtually fixed yet it is required to
provide security (either productive, investment or both) in such forms as food
shelter as well as a base for the rapid transformation of the Nigerian economy.
Secondly, land management in Nigeria comprises a multitude of irregular units
in the ownership use and management by different individuals, corporate bodies
and even the state. The major decision taken by these groups have implications
not only for the other groups but also society at large. Thirdly land is the focus
of much wealth, power and status. Indeed, the current concern in the use of land
as a vehicle for investment gain as well as a hedge against inflation under
condition of economic turbulence, points to the centrality of land in present day
Nigeria, and more importantly how it is managed.
In considering this topic, I shall first discus the customary land tenure,
that is to say, the practice before the coming of the British Colonialists to
Nigeria. This will be followed by the system operational with the colonialisation
of Nigeria. The chapter will be capped with an examination of the consent
requirements in the stages of land management developments afore-mentioned.
It is intended that this chapter will serve as a basis for the discussion of the
existing land use management policy, the land use Act of 1978 under chapter
two.
1.2 CUSTOMARY LAND TENURE
Land in its most legalistic of senses is under customary law owned not by
man but by his creator. This is an overriding principle guiding all
types of customary land tenure in Nigeria.4 Men merely have use and
occupation thereof and any abuse must be remedied by propitiatory sacrifices.
1. Adedipe, Olawoye & Okediran; Rural Communal tenure regimes and Private Landownership in
Western Nigeria available at www.fao.org/ed/ltdirect/LR972/w6728t14.htm, accessed on 23-10-2009 at
23.10GMT.
This right of use belongs primarily to the ancestors, but is also for the living and
the future generations2. According to the Eleshi of Odogbolu3,
“Land belongs to the vast family of which
many are dead, a few are living, and countless
others still unborn”
However, the prevailing view seems to be that land belongs to the
community and as such, the decision of the Privy Council in Amodu Tijani V.
Secretary of Southern Nigeria4, that land belongs to the community, the village
or family and never to the individual was widely accepted as substantially true.
The meaning of land belonging to the family or community as interpreted
by Dr. Musa G. Yakubu5 is to the effect that, it does not mean that all the
members possess and use the land at the same time, for the same purpose and
equally. The true meaning is that individual members of these families or
communities have certain rights, claims, powers, privileges and immunities in
and over the land. No member shall be denied of profits that accrued from it or
the privilege of participating in the management of the land. The whole idea, as
professor Oluyede6 succinctly put it, is that,
“group ownership in African context is an
unrestricted right of the individual in the group to
what is held to be the common asset
Of land; the right of all in the group to claim
2. Craigwell-Handy. The Religions significance of Land, RAS, (1939) P. 114 cited in Adedipe, Olawoye &
Okediran, op.cit
3. Before the West African Land Committee; 1908
4. (1921) 2 A.C. 399.
5. A former Dean of Law, ABU, Zaria- A paper presented on “Principles of property Law”
6. Oluyede: Modern Nigeria Law, Evans Bros (Nigeria) P.12
support from the group’s land and the tacit
understanding that absolute ownership is vested
in the community as a whole”
Although there is no uniform system of customary laws operating throughout
Nigeria, there are as many systems of customary law as there are ethnic groups
and within an ethnic area there are may be variations, not in essence but in
detain, in respect of the particular localities of the area. Nevertheless a careful
examination of the various systems reveals some common characteristics7.
Land, as a community or family property, is entrusted in the hands of the
headman, chief or traditional ruler8a (in the case of communal land) and the
family head8b (in the case of family land), who exercises the powers of control
and management of such land on behalf of the community or family as the case
may be. The same corporate theory of land management is
applicable to both. It is to be taken therefore, that references to the family head
is applicable to the community chief, and references to principal members of a
family is equally references to the various family heads that make up a village
or community, and vice-versa.
7. Olawoye, C.O. (1974), Title to Land in Nigeria, Evans Brothers Ltd, London . 8a. Per viscount Haldane in Ahmodu Tijani .V. Secretary of Southern Nigeria (supra) P. 404.
8b. Ibid
Although the chief or headman of the community in the exercise of his powers
is sometimes described as a trustee, he is not strictly speaking a trustee in the
English sense. This is because the title to the land is not vested in him, but
remains vested in the community as a corporate entity. That’s not withstanding,
the head or chief of the community as the community’s alter ego is the proper
person to exercise the ownership rights, of the community subject to the
individual rights of members9. Hence any outright alienation of land by the
family without the active participation of the head is void as was established in
the Ghanaian case of Agbole V. Sappor10 and adopted in the Nigerian case of
Ekpendu V. Erika11. The same principle has been restated by the Supreme Court
in Odekilekun V. Hassan12, where it was held that sale of communal or family
land by the head of the community without the consent of the principal
members of the family is voidable at the instance of the family or community.
In that case, the Supreme Court drew a distinction between sales by community
head in a representative capacity and one in his personal capacity. In the case of
his sale for and on behalf of the community without the requisite consent of the
members, the sale is voidable while a sale in his personal capacity is void, the
principle being ‘nemo dat quod non habet’.
9. Nwabueze, B.O: Nigerian Land Law, (1982) Nwamife publishers P. 151
10. (1947) 12 WACA 187
11. (1959) 4 FSC 79
12. (1997) 12 NWLR (pt. 531) 56.
It has been submitted that the court will rarely interfere with the rights of the
family head in the management of family property, he must not, however, abuse
such power13. The powers are traditionally given to him to be used for the
benefit of the family as a whole as well as himself. Therefore, if he treats the
family property as his personal property, he is wittingly abusing his powers.
Thus in Lopez V. Lopez14, the court noted as follows:
When there has been a persistent refusal by the
head of the family or some members of the family
to allow other members of the family to enjoy
their rights under native law and custom in
family land, the courts have exercised and
will continue to exercise its undoubted right
to make such orders as will ensure that members
of the family shall enjoy their rights, and if such
rights cannot be ensured without partitioning
the land, to order a partition”
Accordingly, in the celebrated case of Archibong Vs Archibong15, certain beach
land belonging to the community of Duke-Town in calabar has been
compulsorily acquired by the government and $3,000 paid as compensation.
The money was given to Rev. Effiong as the representative of the community.
Rev. Effiong called the meeting of the community at which he brought out the
sum of $1,579 as compensation paid for the community land. Two other sub-
family members of the community were not included in the meeting that took
13. Ndukwe O, Comparative Analysis of Nigerian Customary Law, UNICAL Press, Calabar, Nigeria, (1999).
P. 75]
14. (1924) 5 N.R.L. 50 @ 54, per Combe, C.J.
15. (1947) 18 N.L.R 117
place neither were their shares given to them. It was held that the first defendant
was liable to render an account and to pay over whatever might be found due
thereon. The court equally observed that the requirement of consultation is a
requirement of law and not just a matter of convenience to be observed or
disregarded16. Again, even family property allotted to members cannot be
alienated to any other persons without the consent of the family. Craig, J.S.C in
Alao V. Ajam17 put it thus
“A members of the family is not permitted to
introduce a stranger into the family by the
back door, nor is he permitted to fetter the
reversionary interest due to the family by a
complex commercialization of the simple
possession granted to him”
Hence, alienation of family property by any member without the consent of the
family head is void abinitio18.
At this juncture, it is pertinent to consider briefly the land tenure in the
Northern states of Nigeria under the Islamic law of the Maliki School which is
applicable in Nigeria. Land is regarded as a gift of Allah (God) while each
person has usufructuary rights. Under the Islamic Land tenure law in Nigeria,
land can be divided into three legal categories-occupied, unoccupied and
common land19.
16.See also Kosoko V. Kosoko (1937) 13 NLR 131 17. (1989) 6 S.C.N.J. 243.
18.See Ogunmefun V. Ogunmefun (1931) 10 N.L.R 82
19..Mamman, A.B; Land management in Nigeria, P. 97
Occupied land is that land which is under use and which basic tenet is that the
occupier in free to deal with the land as he likes, subject to not causing any
injury to members of the public and subject to acquisition for public purpose.
Thus, he can sell, pledge or loan and enter into tenancy agreements without the
consent of the Emir or ruler or any authority. Unoccupied land, on the other
hand, can be sub-divided into two; land close to the emirate capital and/or other
towns and those far away from the capital or town. The Emir is the main land
manager. Thus one cannot occupy any land in towns or in their vicinity without
first obtaining the consent of the Emir. But once allocated, the person to who it
is allocated became the absolute owner. According to Yakubu20, this means that
the occupier has a title against all persons and he is free to use it the way he
likes but cannot alienate it to a total stranger without the consent of the Emir.
However, Land which is far away from the town is free for all persons or a ‘no
man’s Land’ where any person can acquire land by clearing, cultivating,
building or planting or economic tress etc, without the consent of any authority.
A third variant of land category, whether occupied or unoccupied land, is the
waqf or common land which an Emir can declare such land as common or
public land. Mostly land gained from war, cession and treaty were excluded.
They include land used for markets, praying grounds or grazing land.
20.Yakubu, M.G. (1985): Land Law in Nigeria, Macmillan, London
In situations were such land were occupied, the occupier was given another
piece of land somewhere and compensation, where required, was paid. It should
be noted that Islamic Law doe not recognize holding of land for a fixed tenure,
at the expiration of which rights in the land lapse. Again the Emirs had no
proprietary rights to land and were, therefore, not land owners. They had rights
over inhabitants as district from rights over land21.
1.3 LAND HOLDING UNDER THE RECEIVED ENGLISH LAW
One of the impacts of colonization is that it imported into the country the
English common Law, the doctrines of equity and the statutes of general
application in relation to land law that were in force England on the 1st day of
January, 190022. Some of these statutes are: the Real property Act, 1845, statute
of frauds, 1877, the Wills Act, 1837, the limitations Act, 1833 and 1877, the
partition Act, 1868, the conveyancing Act, 1881, the settled Land Act, 1882 and
the Land Transfer Act, 1887. Accordingly, the English common Law rules
relating to tenures, disposition of real property, estates, inheritance, perpetuities
and a number of others became applicable in Nigeria. The same could be said of
the doctrine of the equity, which included the construction of Wills, institution
and settlement of Land, legal and equitable estates and interests in Land and the
doctrines of notice.
21.Yakubu; Op. cit
22. See S.45 Interpretation Act, cap 89, repealed by Act of 1964, No 1.
In a nutshell, colonization brought about the substitution of ownership of Land
with such concepts as rights, interest, possession and occupation23.
The Received English Land Law is based on the doctrines of tenure and
estate24. By the doctrine of tenure, all Lands in England belong to the crown.
The doctrine of estate on the other hand concedes to the individual the right of
seisin or what is known in common phraseology as possession which he holds
either directly or indirectly of the crown as a tenant. It is of two types; freehold
and Non-freehold. The freehold estate is subdivided into fee-simple estate, life
estate and fee-tail or estate-entail. The fee-simple estate is the largest possible
interest in Land received into Nigerian Law, and which, theoretically in
England, does not amount to absolute ownership25. It denotes inheritance by any
manner of successor, - brother, wife etc, and for as long as it has successors
from generation to generation26. The life estate is an estate whose duration is
measured by the life of the tenant or the life of another person. It may be created
by express limitation or by operation of law. It is expressly created where, for
example, Land is limited in favour of X for life or where in the alternative it is
limited in favour of X for the life of Y.
23. Amiko and Amidu; Women and Land Rights Reforms in Nigeria, a paper presented at the 5th FIG Regional
conference in Accra, Ghana, March 8-11, 2006; available at www. oauife.edu.ng/articles. (accessed on 01-
06-2010)
24. Nwabueze, B.O; Op. Cit, P. 75
25. Amiko & Amidu; Op. cit, P.5.
26. Egwummuo, J.N; Principles and practice of Land Law , (1999) P. 82
In the first instance, the estate is measured by the life of X, and in the second
place by the life of Y by way of an estate per autre vie (that is, in the life of a
person other than the tenant). The fee-tail or Estate-entail is where the right of
inheritance is limited to the specified descendants of the original tenant or
grantee, and the estate reverts to the grantor on failure of the descendant entitled
to inherit it.
Any estate whose duration is fixed or ascertainable at inception (during
the grant) is called a Non-free hold estate. It does not matter that it is stated to
be for a million years, once it is known or can be ascertained at the beginning,
the date on which the estate will end, the estate is said to be non-freehold. In
modern Land Law, the only surviving non-freehold estate is the leasehold. It
now includes subleases or assignments.
As a result of the application of the received English Land Law in
Nigeria, between 1900 and 1978, Nigeria had the problem of applying two types
of tenure to our land system. Nigerians were allowed, however, to decide which
tenure to apply during land transactions. The situation gave rise to property
legislations which regulated the allocation and use of Land in Nigeria. The
effects of these legislations as well as communal tenure on alienation, with
particular emphasis on the requirement of consent, will form the nucleus of the
next discussion.
1.4 THE CONSENT REQUIREMENT IN RETROSPECT
1.4.1 MEANING AND NATURE OF CONSENT REQUIREMENT
The word ‘consent’ has been defined as ‘agreement, approval or
permission as to some act or purpose, esp. given voluntarily by a competent
person; legally effective assent’.27 Under the Nigeria Land tenure, the word
represents a legal necessity for the validity of an alienation of Land. It denotes
the approval of a person(s) recognized by the Law to give such approval, and
the absence of which may void a transaction in Land at which such approval is
expected to be obtained, or at least make the transaction voidable, depending on
the status of the approving authority.
Consent is often but not always preceded by consultation. In Etim V.
Butt28, Niki Tobi, JCA (as he then was) put the relationship in the following
way:
27. Garner, B.A (Ed) Black’s Law Dictionary (8th Ed.) P. 323
28. (1997) 11 NWLR (pt. 527), P. 71
“In human behaviour and human conduct,
consultation comes before consent. As a matter
of fact, it is consultation which generally gives
rise to or results in consent. While consultation may not
invariably result in consent, it generally comes
first before consent. There are, however, instances
where there is no consultation but parties give
their consent on the conclusion of the act,
which shall have been subject, or the subject
of consultation. If the consultee gives his consent
without the act of consultation following from the
consulter, the act of consultation becomes
spent or otiose”.
The requirement about consent is designed to protect the interest of the
person(s) with allordial little to the Land, and especially in a community, to
ensure that the interest of the unborn generations will not be easily defeated
without full discussion by all the members concerned. It is therefore prohibitive
and inhibiting in nature.
Consent could, however, be a standing or general one covering not just
one but all transactions of a particular type, as for example the granting of
leases29, or it may be implied from conduct, as where the members have held
out the chief to the grantee or purchaser as having
29. Adewujui V. Ishola (1958) W.R.N.L.R 110; Foko V. Foko (1965) N.M.L.R.5
authority to conclude the transaction in question30, or where a member, knowing
of a proposed deal, did nothing to express his objection31. Be that as it may, the
overriding principle is that alienation of Land without the requisite consent has
a far-reaching legal consequences on the property, be it family’s, community’s,
or otherwise.
1.4.2 THE CONSENT REQUIREMENT IN RETROSPECT
The requirement of consent for alienation of Land either by sale, transfer,
lease, mortgage or otherwise howsoever is not the peculiarity of the Land Use
Act. The requirement in one form or another has featured in older laws. Also, it
is not the prerogative of enacted legislations. Under the customary Law, the
consents of the family head and the principal members are required for the
alienation of family Land. The principle was established in Ekpendu V. Erika
(supra), and adopted in a long line of decided cases. It is to the effect that
alienation of family Land without the consent of the family head first had and
obtained is void ab initio. But where the alienation is done without the consent
of a principal member of the family, the transaction is only voidable at the
instance of the member or members whose consent where not obtained.
30. Secretary, L.T.C.V Soule (1939) 15 N.L.R. 72
31. Olowu V. Desalu (1955) 14 WACA 662
It should be borne in mind that the objective of the customary Law is to
preserve the family Land for the family. In the eyes of customary Law, Land is
sacrosanct and therefore virtually inalienable. The consent requirement
therefore is to serve as an encumbrance on family Land to guard against
arbitrary and unrestricted alienation. But it is noteworthy the point that
customary Law makes a distinction between absolute and non-absolute
aleination32. Absolute alienation such as outright sale or gift is aimed at
achieving a conversion from communal or family ownership to individual
ownership. This requires consent. But non-absolute alienation such as a
conditional lease, mortgage or pledge passes only a possessory right to the
transferee, while the ownership remains with the transferor. This type of
transaction, strictly speaking, would not require consent since the right passed is
redeemable at any time by any member of the family. On such redemption,
ownership reverts to the family33.
The old English Mortmain and charitable uses Act of 188834 requires the
consent of the crown for any foreign company to acquire Land from a private
citizen. It is suggested that the restriction was necessary to discourage
indiscriminate acquisition of Land by foreign companies and to protect thee
private citizen from unguided alienation of his valued possession.
32. Nwabueze, B.O; Op. cit, P.38
33. Kwino V. Ampong (1952) 14 WACA 250
34. Section 8
However, if a foreign company somehow succeeds in acquiring Land without
the requisite consent, a private citizen, including the grantor, has no standing to
raise objection. It is only the crown to whom the Land illegally acquired is
forfeited, that can sue for forfeiture.
The Land and Native Rights Act No. 1 of 1916, modified by the Act No.
18 of 191835, provide as follows
“3. All native lands, and rights over the same,
are hereby declared to be under the control
and subject to the disposition of the Governor
and shall be held and administered for the
use and common benefit of the natives
of Northern Nigeria; and no title to the
occupation and of any such lands shall
be valid without the consent of the
Governor”.
“4. The Governor, in exercise of the powers
conferred upon him by this proclamation with
respect to any land, shall have regard to the
native laws and customs existing in the
district in which such Land is situated”.
35. Section 3 & 4.
Sir P. Girouard36 explained the term ‘native Land”, at page 27 of his
memoranda as follows:
“If land were nationalized and alienation
in fee simple made impossible, they would,
for the time being, be best described, in my
opinion as ‘native land, the description
national Land which might suggest itself,
being today, for obvious reasons, a misnomer.
As the native or national lands would include
the land requirement of their government,
there would appear to be no necessity for
the term ‘crown lands”.
Other powers granted the governor by the Land and Native Rights Act include:
(a) To grant rights of occupancy to ‘natives’ as well as ‘non-natives’.
(b) To demand and revise rents for such grants
(c) To render null and void any attempted alienation by an occupier of his
right of occupancy without the governor’s consent.
(d) To revoke the grants to occupiers for ‘good cause’ shown.
The Land and Native Rights Act of 1916 (with later amendments)
36. Elias, T.O Nigerian Land Law (4th Ed) Sweet and Maxwell, London, 1971, P. 31.
was refurbished into the Land Tenure Law of 1962 whose influence on the
enactment of the Land use Act is so remarkable that it may not be an
overstatement to say that the Land use Act of 1978 is a mere shadow of the
Land tenure Law of 1962.
Section 5 of the Land Tenure Law of 1962 places the management,
control and disposition of Land in the North under the minister for Land, who
holds and administer all lands for the use and common benefit of the ‘natives’,
and by section 11 of the Law, “no title to occupation and use of any such lands
by a non-natives is valid without the consent of the ministers”. A ‘non-native’
by the tenor of the Law is a person whose father is not a member of any tribe
indigenous to each state in Northern Nigeria.
Again, a holder of a statutory right of occupancy cannot alienate without
the minister’s consent. In Solanke V Abed and Anor37, a holder of a statutory
right of occupancy leased same to a tenant without the minister’s prior consent.
He attempted to eject the tenant on the ground that the lease was illegal for lack
of consent. The tenant sued the Landlord for trespass, claiming damages. The
court found for the plaintiff. It was held that the lease was void but not illegal,
and that the Landlord cannot rely on his own wrongful act to claim that the
37. (1962) N.R.N.L.R. 92
contract was unenforceable.
Section 6(ii) (c) of the State Land Act of 1916 prohibits subleasing of
state land or any part of it without the governor’s written consent. Thus in Sam
Warri Esi V.J.A Moruku38, the plaintiff who held a lease of crown Land under
the state Land Act sublet part of the premises to the defendant. The plaintiff
later sued for arrears of rent. The court held that the sublease was illegal and
therefore cannot be enforced. The learned judge observed that the covenant not
to assign without the governor’s consent was a covenant designed by the
legislature for the management and disposal of crown (State) lands in which the
whole public have an interest.
State Land was defined under section 2 of the Act to mean;
“All public lands in the federation which
are for the time being vested in
the president on behalf or for the benefit
of the federal republic…. and all lands
heretofore held or hereafter acquired by
any authority of the federation for any
purpose…”
38. (1940) 15 NLR 116
The court further observed that the reasons for these statutory restrictions
to assign, sublet or otherwise part with possession of Land, were that it was
undesirable from the Landlord’s point of view that the Land should fall into the
lands of a person of no substance or of doubtful character. Where the Landlord
was the state itself, it had power to enact positive prohibitions.
In the same vein, the Native Lands Acquisition Act (No 32 of 1917) that
regulated the acquisition of land by aliens from the people of the southern
provinces provided as follows39
“3 (a) No alien shall acquire any interest or
right in or over any land within the
protectorate from a native except under
an instrument which had received the
approval in writing of the Governor.
(b) Any instrument, which has not received
the approval of the Governor as required
by the section shall be null an void.
4. Where any interest or right in or over
any Land has been acquired by an alien
from a native with the approval in
writing of the governor …, such interest
or right shall not
39. Sections 3 & 4
(a) be transferred to any other alien
without the approval in writing of the
Governor40.
The Native Lands Acquisition Act of 1917 was later re-enacted as the
Native Lands Acquisition Law of 1952 for the West and Midwestern Nigeria
and the Acquisition of Land by Aliens Law, 1956 in the Eastern States. These
regional enactments carried over the consent requirement restrictions of their
precursor. It was argued that the restrictions were necessary to protect the then
unsophisticated natives from being lured by the attraction of cash in undertaking
unguided and indiscriminate alienation of their valuable heritage.
From the foregoing, copious evidence has been adduced to prove that the
consent requirement has a long history of restrictive, prohibitive, even
discriminating Land management, disposition and acquisition policy. As
commented by Justice T.O. Elias on the Native Land Acquisition Act of 1917,
that
“ the government has pursued a policy of
restricting alienation of Land in the formed
southern provinces only to dealings among
the peoples themselves”41
40. This provision was repealed in the 1938 amendment of the Act such that an alien can transfer his interest to
another alien without the consent. This new position was established in the case of Eyamba & Ors V. Koure
(1937) 3 WACA 186.
41. Elias, T.O; Op. Cit, P. 31
It has been submitted that the consent requirement of the customary Land
Law is a built-in mechanism for discouraging alienation of family Land since
the objective of customary Land law is the retaining of family Land to the
family. The question that begs for answer is, is the consent requirement of the
Land use Act a strange bed fellow in its new environment or a mere pedant
vestige of older enactment that serves no useful purpose in its present garb?
This question become poignant when the restrictive nature and prohibitive
origin of consent requirement are juxtaposed with the liberal objectives of the
Land Use Act of “streamlining and simplifying the management and ownership
of Land in the country and assisting the citizen irrespective of his social status
to own a place where he and his family will live a secured and peaceful life.”
It has been canvassed that the consent clause gives the Governor the
required effective supervisory control of all land in the territory. This argument,
as cogent as it may seem, cannot stand erect before the prohibitive and
inhibiting effect of the requirement in the realization of the well-intended
objectives of the Land use Act.
Be that as it may, it is worth bearing in mind that even in old enactments
such as the Native Land Acquisition Act, 1917 (as amended), the consent
requirement was discarded when its restriction was adjudged unnecessary, as
when the interest of an alien was being transferred to another alien42. Under
such a situation, the consent of the Governor will not be required as it will be
time wasting and economically inexpedient to the alien who might be leaving
the country for good.
From the totality of what I have posited so far, it is incontestable to
deduce that the requirement of consent in Land transaction is as old as the
society itself; though with little modifications here and there to suit the
circumstances of each locality and the intentions of the authority. The next
chapter will be devoted to the Land use Act, 1978 with respect to the consent
requirement provisions thereof.
42. Eyamba V. Kouri, Supra
CHAPTER TWO
THE LAND USE ACT 1978
2.1 HISTORICAL REVIEW
The Land use Decree (now Act) come into force via Decree No. 6 of
1978 by the military administration of General Olusegun Obasanjo. It is a
revolutionary legislation which enactment was necessitated by a number of
socio-economic factors militating against conferment of valid title to Land, the
realization of use and enjoyment of Land in Nigeria for the sustenance of
Nigerians and the effective utilization of land by private entrepreneurs and the
government for purposes of development.
Before the Land use Act, it can be said that the Land tenure system in
Nigeria follows broadly the usual South and North dichotomy characterization.
The common denominator, however, was that the rules relating to alienation and
conferment of valid title to purchasers were cumbersome, erratic and incapable
of precise definition1. Another common feature of these systems was the
emphasis on preserving Land either for the group, as is the case with customary
Law or for the natives as is the case with the Land tenure Law.
1. Oluyede, P.O; Legal Development in Nigeria since 1960: The Land Use Act 1978, Unilag Publication, 1992.
The customary Law, it must be noted, held sway in the South in the
regulation of rights and ownership of Land while in the North, Land rights were
regulated by the Native Rights proclamation and ordinance of 1916 which was
substantially re-enacted as the Land Tenure Law of 1962. None of these systems
was effective in making Land available to the government or individuals for the
much needed socio-economic and infrastructural development.
One incidence of the firm establishment of colonial administration in
Nigeria was the emergence of a new economic system regulated by cash. Land
which was hitherto inalienable quickly assumed a new economic status and
become freely alienable. On the heels of this development arose a cabal of Land
speculators who buy up Land cheap, preserve it to sell only when the price is
high.
Consequently, the price of Land was taken out of the reach of the
ordinary citizen of this country. The government on its own was made to pay
prohibitive compensation for land it acquired for development purposes. Land
disputes and bitter controversies became the order of the day. Our courts were
inundated with Land litigations, some of which lasted up to ten years or more2.
Many people resorted to violence in order to secure interest in Land and many
questionable sales were carried out.
2. See Ariori V. Elemo (1933) ECNLR, 1
The court in Ogunbambi V. Abowab3 wondered aloud why some people still
purchased Land from a particular family, when all they are purchasing was a
Lawsuit.
This situation was quite unfavourable for effective developmental take
off, or any meaningful socio-economic advancement. There was therefore the
need for a Land Law that will put premium on the development need of the
society and the welfare of the generality of the citizens in the management and
use of Land, in contradiction to the existing Land tenure systems with sectional,
clannish, communal or family-inspired philosophies, the rules of which were
over protective of the respective groups4. These provoked the thoughts for Land
reforms which eventually led the way to the Land use Act.
In 1975, the federal government appointed an Anti-inflation Task force
with the task of examining the current inflation tendencies in the economy and
identifies their causes, and recommends short and long term solutions. In its
interim report it made a radical recommendation for the promulgation of a
decree “that will have the effect of vesting al lands in principle on the state
governments”5. This approach according to the task force “will remove in one
stroke all the racketeering and interminable litigations which now characterize
3. (1951) 13 WACA 222 at 223 per verity, Ag. P
4. See Adedubu V. Makanjuola (1944) 10 WACA 33 @ 36
5. Main Report of the Land Use Panel May-Nov. 1977, P.15
Land transaction in the country”6 The federal government did not accept this
report although there was no doubt that it loomed large in its consideration of
Land reform in Nigeria.
Similarly, the Rent Panel in its report submitted to the federal government
in 1976 also reiterated the urgent need for Land reform in Nigeria. The
government in its white paper accepted the recommendation of the panel in
principle while promising to study the practical implications before any further
action was taken. It is noteworthy that the report of the Rent panel and that of
the Anti-inflation Task force provided the requisite impetus for setting up of the
land use panel on the 16th May, 1977 with the following terms of reference:
i To undertake an in-depth study of the various Land tenure, Land use and
conservation practices in the country and recommend steps to be taken to
streamline them;
ii. To study and analyze the implications of a uniform Land policy for the
country;
iii. To examine the feasibility of a uniform Land policy for the entire country,
making necessary recommendation and propose guidelines for their
implementation; and
6. Ibid
iv. To examine steps necessary for controlling future land use and also
opening and developing new Land for the needs of the government and
Nigerian’s growing population in both urban and rural areas, and make
appropriate recommendations.
The majority reports of the panel recommended against nationalization of
Land in Nigeria7. The panel rather suggested uniformity on aspects of Land use
and conservation practices, extensive reforms in planning and zooming laws,
registration Laws, mining Laws and others.
On the other hand the minority report8 unequivocally recommended
nationalization of Land in the whole country. No white paper was released
on the panel’s report. However, the federal military Government proceeded
to promulgate the Land use Decree, based on the minority report, which
came into force on 29th March 1978.
7. Report of the Land Use Panel Op. Cit, P. 61.
8. Only one member of the panel, Prof. R.C. Udo, supported nationalization
of Land, and accordingly submitted a minority report on the issue.
2.2 OBJECTIVES OF THE ACT VIZ A VIZ THE CONSENT
REQUIREMENT
The general intendment of the Act can be deduced from the preamble,
which reads as follows:
“whereas it is in the public interest that the
rights of all Nigerian to the Land of Nigeria
be asserted and preserved by Law. And whereas
it is also in the public interest that the right
of all Nigerians to use and enjoy Land in
Nigeria and the natural fruits thereof in
sufficient quantity to enable them to provide
for the sustenance of themselves and their
families should be assured, protected and
preserved”
In the words of Karibi-whyte, J.S.C (as he then was) in the case of Abioye V.
Yakabu9, he said
“… in construing a Law like the land use
Act, it is always of considerable assistance
to consider the history and also purpose of the
Law as enshrined in its preamble, and if
possible the social objectives… the intention
of the Act as clearly stated is to assert and
preserve the rights of all Nigerians to the Land
of Nigeria in the public interest. It is also in
9. (1991) SCNJ 69
the public interest that the right of all Nigerians
to use and enjoy Land in Nigeria and the
natural fruits thereof to sustain themselves
and their families should be assured,
protected and preserved”
It has been submitted that the Act was enacted to deal with the problems
of uncontrolled speculations in urban lands, make land easily accessible to
every Nigerian irrespective of gender, unify tenure system in the country to
ensure equity and justice in land allocation and distribution, and amongst others,
prevent fragmentation of rural lands arising from the application of the
traditional principle of inheritance10.
Professor Omotola11 and P.A Oluyede12 have in their separate works
also listed some other objectives and aims the Act was set to realize.
According to Omotola, some of the objectives in dude:
1. To remove the bitter controversies, resulting at times in the loss of
lives and limbs
2. To streamline and simplify the management and ownership of land in
the country.
10. Amiko and Amidu, Op. Cit, P. 6
11. J.A Omotola, Essays on the Land Use Act, 1978, Lagos University Press,
Lagos, 1980.
12. P.A. Oluyede, Op. Cit, P. 288.
3. To assist the citizenry, irrespective of his social status to realize his
ambition and aspiration of owing the place where he and his family
will live a secure and peaceful life.
4. To enable the government to bring under control the use to which land
can be put in all parts of the country and zoning programmes for
particular uses.
P.A. Oluyede added
1. To facilitate the living together on a permanent basis of all Nigerians
from all parts of the country by not regarding any of them as ‘non-
natives’ and thereby making it easy for them to acquire statutory or
customary right of occupancy in any part of Nigeria.
2. To make land available for both the federal and the state governments to
enable them realize their commitments on infrastructural developments,
public sector housing and the implementation of conservation schemes.
3. To raise revenue for development to the government
4. To secure for every Nigeria, a piece of land for his use within his
financial means.
5. To avoid land speculation.
These objectives are undoubtedly laudable. To realize these objectives, it has
been canvassed, that the consent clause was inserted to enable the governor
have effective supervisory control of all land in the territory of his state; and to
ensure that all transactions in land comply with the provisions of the Act.
However, whether these set objectives have been achieved by the Act in its 32
years of existence, when viewed in the light of the consent requirement, will be
critically examined later in this work.
2.3 THE SCOPE OF THE CONSENT REQUIREMENT UNDER THE
ACT
On the whole, part IV of the Land use Act deals with alienation and
surrender of Rights of occupancy. The part is therefore the centre-piece of the
consent requirement. Right of occupancy is the only interest in Land created by
the Act. It can be statutory13 or customary14. Such statutory or customary right
of occupancy may be actually15 granted or deemed16 granted. In Savannah
Bank V. Ajilo17, the supreme court equated ‘deemed grant’ with ‘actual grant’
of the Act, with all its attendant consequences thereby removing any seeming
6. S. 5 (1)
7. Ibid
8. S.5 (1)
9. S.6 (1)
17. (1987) 2 NWLR (pt.57) 421
dichotomy between the rights of occupancy granted under sections 5 and 6, and
those granted under sections 34 and 36 of the Act.
A holder of a right of occupancy retains the rights to use, enjoy and
occupy the Land to the exclusion of every other person but the Governor. He
also has an impaired right to alienate the right of occupancy by way of
assignment, Mortgage, transfer of possession, sublease or otherwise howsoever;
provided the consent of the Governor or the Local government (as the case may
be) is sought and obtained18. Such consent, however,
(a) “shall not be required to the creation of a legal mortgage over a
Statutory right of occupancy in favour of person in whose favour an
equitable mortgage over the right of occupancy has already been created
with the consent of the Governor.
(b) Shall not be required to the reconveyance or release by a mortgagee to a
holder of a statutory right of occupancy which that holder or occupier has
mortgaged to that mortgagee with the consent of the Governor.
(c) To the renewal of a sublease shall not be presumed by reason only
18. Ss.21 & 22 L.U.A
of his having consented to the grant of sublease containing an option to renew
same19
It is submitted that the consent requirement does not make any difference
wither the Land is situated in the urban or rural area; whether the grant is Actual
or Deemed; whether the transaction for alienation is equitable or legal, the
import is that the consent of the governor or approval of the appropriate Local
Government is required.
Section 23 (1) creates a double consent requirement, that of the Governor
as usual, and the approval of the holder of the statutory right of occupancy for a
sublease to demise by way of sub-underlease to another person.
Moreover, although the consent of the Governor is not required for the
devolution of a customary right of occupancy or statutory right of occupancy
upon the death of the holder, but where such devolution will result to the
division of a statutory right of occupancy into two or more parts, the Governors
consent becomes due by virtue of proviso (b) of section 24 of the Act.
Having explored the scope of the consent requirement, I shall in the next sub-
chapter take a voyage of the analysis of these Provisions in relation to the
various modes of alienation as provided under the Act.
19. S.22 (1) (a), (b) and (c), L.U.A.
2.4 ANALYSIS OF THE CONSENT PROVISIONS ON;
2.4.1 SALES OF LAND
There is no doubt that before the Land Use Act, individuals and
communities were capable of having absolute ownership of Land in form of
freehold, either under the English scheme of estates or under customary
inheritance or out right purchase.
The position under the Land Use Act is different. No absolute title to land
exists under the Act. The quantum of transferor’s right on Land is described as a
Right of occupancy of which from the judicial standpoint is considered to have
a resemblance of lease20. It has been submitted that this cannot be taken to be an
authoritative pronouncement on the character of a right of occupancy as an
equivalent to a lease 21. It does not matter that the right on land was hitherto a
freehold converted into a right of occupancy deemed granted under the Act
since it has the same tenor as an actual grant made by the governor under the
Act. The Land Use Act has thus made it impossible to have a conveyance of
freehold interest on land. So whatever nomenclature is ascribed to this peculiar
species of property right, its existence is no doubt characterized by quiet
enjoyment of improvements made by the holder, the right to alienate the
20. Per Obaseki; J.S.C. (as he then was) in Savannah Bank .V. Ajilo, supra at
P. 328 para BC.
21. Uwakwe Abugu; Principles of the Land Use Act, 1978, P.49
interest with the requisite consent, as well as the legal and constitutional
protection of the right against forfeiture otherwise than for the purpose and
exclusively through the means established by law and in such cases, not without
compensation.
A sale of land is by way of an assignment of a right of occupancy by the
assignor to the assignee subject to the Governor’s consent 22or the local
government 23, the subject matter of assignment being a term of years. The use
of any other terminology does not necessarily render the transaction ineffectual
but has the effect contemplated by the Land Use Act 24. Transfer of land by sale
is complete upon execution of a formal deed of conveyance which the two
parties must sign. Without document either party may repudiate the transaction
for it is unenforceable by a court action unless it is reduced into writing or there
is sufficient act of port performance 25. Thus it is only after a building contract
of sale is arrived at that the need to pursue the procedure for acquiring title will
arise. It is then that the need to obtain consent becomes an issue in order to
make the alienation valid.
The position of section 22 of the Land Use Act is that a holder of a right
of occupancy may enter into an agreement or contract with a view to alienating
his said right of occupancy.
22. S.22 LUA
23. S.21 L.U.A
24. S.48(1) LUA
25. S.4 of the statute of frauds 1677
To enter into such an agreement or contract, he does not require the consent of
the Governor26. But when he comes to the next stage of alienating or
transferring his Right of occupancy which is done by a conveyance or deed,
culminating in vesting the said right in the purchaser, he must obtain the consent
of the Governor to make the transaction valid. In Calabar central co-operative
thrift and credit society Ltd & Ors V. Bassey Ekpo27, the Supreme Court
held that, provided that an interest is purported to have been transferred without
the consent of the Governor, the irreversible consequence is that the purported
act is null and void, for all purposes under the sun, in accordance with section
26 of the Land use Act.
The dispute that led to that case was in respect of a property at 3c
Enebong Avenue, Calabar. The plaintiff/Respondent was the owner of the
property. He was also an employee of the 1st defendant/Appellant from July
1964 until June, 1987 when he was suspended on an allegation of committing
some fraudulent acts which was being investigated. In the course of the said
investigation, the Respondent was arrested by the police at the instance of the
appellants on three occasions. He was taken to the state police headquarters
during his third arrest and the police threatened to lock him up with hardened
criminals
26. Awojugbagbe Light Ind. Ltd .V. Chinukwe (1995) 4 NWLR (pt. 390) 379.
27. (2008) 1-2 SC 229
unless he signed a mortgage deed in respect of his said property at No 3c
Enebong Avenue, Calabar. The mortgage deed was prepared by the appellants
and the respondent has by the deed of mortgage assigned his interest in the
property in favour of the 1st appellant. The respondent signed the deed of
mortgage so that he could avoid being incarcerated along with the hardened
criminal in the police headquarters cell. This action was taken to set aside the
transfer of the property to the 1st appellant as expressed in the mortgage deed.
The court of first instance granted the reliefs of the respondent as claimed
and N100, 000 as general damages. This was upheld by the court of Appeal. On
further appeal to the supreme court, the court unanimously dismissed the appeal
and held that by virtue of section 22 (1) of the Land use Act, it is unlawful for a
holder of a right of occupancy to alienate same or any part-thereof by
assignment, mortgage, transfer of possession, sublease or otherwise without the
consent of the governor first had and obtained28 In fact in Brosette
manufacturing (Nig) Ltd V M/S Ola Ilemobola Ltd29, the court was emphatic
that until the consent of the governor is obtained no legal interest can pass.
One expects naturally that the purchaser will at worst be deemed to be
holder of an equitable interest in accordance with the common Law doctrine.
28. Per Onnoghen JSC at P. 252-253
29. (2007) 14 NWLR (Pt. 1054) 109
Against every known Legal principle, the supreme court per Obaseki; JSC (as
he then was) in Savannah Bank V. Ajilo, (supra) at P. 324 posited that the
terms of the Land use Act exclude equitable intervention. To prove that the
statement cannot be taken as a statement by the way, the court again, exactly
19years after Ajilo’s case, in Kachalla V. Banki and 2 ors30 per Musdapher,
JSC reiterated thus
“Now there is no doubt that a distinction exists
between a legal estate or “fee simple” as opposed
to an equitable interest in land, but that distinction
cannot apply in situation such as this and where
the disputed Land is governed by the provisions of
the Land use Act in which the maximum interest
any person can hold is a right of occupation and
the legal estate or legal interest is vested in the
Governor of the state… The nature of interest
any person can acquire is a right of
occupancy and no more. So the distinction
between “a legal estate in Land” and “an
equitable estate in Land” under the
circumstance of this case cannot arise”31.
The rationale for this pronouncement is found in the reasoning of his Lordship
that “the tenor of the Land Use Act was to nationalize all lands in the country by
vesting its ownership in the state and the fact that the maximum interest
30. (2006) 2-3 SC. 14
31. Ibid at P. 49
preserved in private individual hands is a right of occupancy”32.
With due respect to his lordship, and I stand to be corrected, this
proposition has no foundation in Law. First, let me start by acknowledging that
section 5 (1) of the LUA actually recognizes the distinction between legal and
equitable interest when it defines ‘mortgage to include an ‘equitable mortgage’
while one of the exceptions to the requirement of Governor’s consent under the
Act is where a legal mortgage is created over a property the subject matter of an
earlier equitable mortgage created with the consent of the Governor.33 Secondly,
there are provisions in the Act that are consistent with the recognition of trust
that arise by operation of Law34. It should be noted that legal estate is a product
of positive Law which prescribes the essential formalities for vesting same
while an equitable interest goes to conscience, sanctity of agreement and the
desire to forestall using statute as an engine of fraud in many cases. And so if
the Supreme Court had reminded itself of the aforementioned features of equity,
the decisions in the likes of Savannah Bank V. Ajilo (supra) and Kachalla V.
Banki (supra) would have been decided differently. To this end, the court
32. Ibid
33. S.22 (1) @ LUA
34. See for instance S.7 LUA. See also Remigius Nwabueze; Equitable Bases of the Land Use Act’ (2010) 54
Journal of African Law 1 at P. 121 available at www.journals.cambridge.org.
of Appeal though followed the Supreme Court decisions, had consistently
criticized them35.
2.4.2 MORTGAGES
A mortgage is a legal or equitable conveyance of title as a security for the
payment of debt or the discharge of some other obligation for which it is given
subject to a condition that the title shall be reconveyed if the mortgage debt is
liquidated36.
The Land use Act does not stipulate how a mortgage shall be created
unlike the property and conveyancing Law37 but it did preserve the existing Law
in mortgages subject to such modifications whether by way of addition,
alteration or omission as will bring those Laws into conformity with the Act or
its general intendment. (See S. 48 LUA, 1978).
Hence there are modifications as to the form of interest to be created. The
Act having swept away all unlimited interest on land, substituting thereof a right
of occupancy, a conveyance of fee simple is no longer possible. Thus where
reference is made to a conveyance of fee simple in creating a mortgage at
common Law, an assignment of a right of occupancy is substituted. Also where
the property and
35. See Kachalla V. Banki (2001) 10 NWLR (Pt.721) 442 at P. 466-467) per Nzeako, JCA; Omozeghian V.
Adjarrho & Anr.(2006) 4 NWLR(pt.969) 33 at 66 para A-C per Augie, JCA
36. See Defacto Bakeries and catering ltd V. Ajilore & Ann (1974) NSCC 569.
37. Cap 100, Laws of Western Nigeria, 1959
conveyancing Law requires that a mortgage of Land can only be effected by the
demise of fee simple where the estate is freehold or by sub-demise where the
estate is leasehold a sub-grant or a sub-under grant would be substituted
respectively38.
Statutory Right of occupancy granted by the Governor whether actual or
deemed over land in an urban area may be mortgaged subject to the governor’s
consent first had and obtained (see S.22 LUA). In Mohammed V.
Abdulkadir39, the court observed that the prior execution of a mortgage deed
before an approach is made to the governor for his consent is not illegal but
failure to obtain the consent renders the mortgage transaction void by virtue of
section 26 of the Land use Act40.
A deemed customary Right occupancy is inalienable as there is a total bar
on alienation of such right41. As a result, no mortgage can be created thereon.
Governor’s consent is, however, not required where a legal mortgage over a
statutory right of occupancy is created in favour of a person in whose favour an
equitable mortgage over the right of occupancy had been created with the
consent of the governor42
It is also provided by the Act that in giving his consent to a mortgage,
assignment etc,
38. S. 23 LUA
39. (2008) 4 NWLR (Pt. 1076) 119 @ 149-150
40. See also Okonkwo V. CCB (Nig) Plc (1997) 6 NWLR (Pt. 507) 48
41. S. 36 (5) LUA
42. 5.22 (1) (a)
the governor may require that the applicant for such consent produce an
instrument in evidence thereof to which the consent of the governor shall be
endorsed. This means that the mortgage instrument has to be prepared before
consent of the governor is endorsed thereon. The result therefore is that the form
of mortgage remains unaltered whether legal or equitable. Creating a viable
mortgage depends on security of the title so that investigation of the title by the
mortgagee is paramount. The relevant question now is how secured is a
mortgagee’s interest in a mortgage transaction in the face of the provisions of
the Land use Act? This will be critically examined in the next chapter.
2.4.3 LEASES
A lease creates a leasehold estate which is an estate less than freehold.
It may be a legal estate or equitable interest in land depending on its
mode of creation. It may be granted for a term of years, ranging from the
periods of 999 years to a year. The expression ‘term of years’ includes a term
for less than a year or for a year or years and a fraction of a year or from year to
year43.
43. A.A Utuama: Nigerian Law of Real Property, 1990, P. 60
A lease may also be a contract by which a rightful possessor of real
property conveys the right to use and occupy the property in exchange for
consideration44.
However the Nigerian Law of Landlord and tenant antedate the Land use
Act and remains an existing Law preserved by the Act itself with such
modifications as will bring the Law into conformity with the provisions of the
Act or its general intendment (see section 48 LUA). Since a right of occupancy
is in principle less than freehold interest, the holder cannot create anything more
than a sublease in favour of a third party. Creation of a lease by the holder of a
statutory Right of occupancy after 28th March, 1978 for example, merely creates
a sublease since in fact; the holder has an interest less than freehold.
Also no sublease may be validly created without the consent of the
Governor in respect of a statutory right of occupancy or the local government in
respect of a customary right of occupancy. Any sublease created without
requisite consent is void.
Finally, it is to be observed that Section 23(1) creates a double consent
requirement, that of the Governor, as usual, and the approval of the holder of the
statutory Right of occupancy for a sublease to demise by
44. Byran A. Grant; Black’s Law Dictionary (8th Ed.) P. 907
way of sub-underlease to another person. The question persists: since
the sublease is not a holder of a right of occupancy by virtue of Section 51(1) of
the Act, who goes for the Governor’s consent? Again, assuming the sublease is
of a short period of not more than 3 years which by law does not require any
formal deed, with what document would the sublease use to obtain the
Governor’s consent?
2.4.4 DEVOLUTION OF INTEREST IN LAND
Although the consent of the Governor is not required for the devolution of a
customary right of occupancy or statutory right of occupancy upon the death of
the holder, but where such devolution will result to the division of a statutory
right of occupancy into two or more parts, the Governor’s consent becomes due
by virtue of proviso (b) of Section 24 of the Act.
In other words, the interest of an occupier can only devolve on the beneficiaries
wholly without any divisions. The implication of this is that the division of land
can only be validly made with the consent of the governor. This is a strange
requirement because it restricts the rights of a testator who is merely an occupier
to give out his occupational rights in parts to several persons. This raises some
crucial questions. (Who should obtain the consent? - beneficiary or testator), at
what stage should the consent be obtained? Et cetera.
It must however be emphasized that the consent of the governor is only required
where the land subject matter of the right of occupancy is to be divided and
where it is a statutory right of occupancy of an occupier. Thus, where the
devolution does not entail division of the land but the whole of it, or the will is
made by a holder and not an occupier or where it is a customary right of
occupancy, the consent is not required for there to be a valid transfer by way of
devolution as a will or devolution under Customary Law as a transfer. (See
section 21 and 22 of the Act) Act.
It is therefore unsafe for a mortgagee to accept statutory right of occupancy by
an occupier who became vested by devolution upon the death of the original
occupier as security for a loan unless he the mortgagor relying on devolution
must have received the whole property and not as a result of partition of a larger
land. Such security is liable to be voided for as little as the title was not properly
conferred on the mortgagor, he cannot transfer a better title to the mortgagee.
CHAPTER THREE
THE CONSENT REQUIREMENT: A CRITICAL VIEW
3.1.1 LEGAL EFFECTS
Section 26 of the Land Use Act renders null and void any transaction or
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 Act itself.
Likewise, any instrument purporting to transfer any undeveloped Land in
contravention of Section 34(7) LUA shall be null and void and of no effect
whatsoever in law and any party to any such instrument shall be guilty of an
offence and liable on conviction to imprisonment for one year of a fine of
N5,000:00.1 These can only be lawful if the prior consent of the Governor is
obtained. By law, therefore, such instrument is not registrable.2 Consequently, it
will not be admissible in evidence for declaration of title over Land. This makes
it imperative for the Land registry to make the inclusion of the Governor’s
consent a condition for registering an instrument of title. Where this becomes
the case, a great deal of time will be wasted to register a single Land instrument.
This will work to deny government the much needed revenue it could have
generated from Land registration fees.
1. S.34 (8) LUA.
2. Ss. 11 & 13 Land Registration Act, 1924
It seems also that the date of obtaining Governor’s consent rather than the date
of registration will determine priority of instrument. This is so because
registration without the governor’s consent is itself a nullity. Again registration
does not cure the document its defects.3 It is also the law in the light of the
recent decision of the Court of Appeal, Lagos division in ABDUL WAHAB
ABDULRAHAHMAN V. SAMUEL ODUNEYE & ORS,4 that illegitimate
Land transaction is incurable even with the Governor’s consent. In the words of
Chikwe, JCA.
“Where there is want of legitimacy in a
Land transaction, the Governor’s
consent cannot legitimize it.”
Be that as it may, it is contended that the wealthy and the influential members of
the society will have a legal edge over the poor in matters of declaration of title
because it is a lot easier for the former especially political allies of the Governor
to seek and get the consent than it will be for the latter, the ordinary citizens of
this country. For instance, until recently in Lagos State, a prospective seeker of
the consent of the governor is expected to pay 2% of the value of the Land as
stamp duty; 15% of the value as capital Gains tax; 10% of the value as consent
fee, and 6% of the value as title Registration fee.5a For Cross-Rivers State,5b
3. S. 19 Ibid
4. Suit No CA/L/439/01 delivered on 18th May, 2009 and reported in this day Law report at P. IV of this day Lawyer of 14th July 2009.
5a. Olusola Adun; Investing in Real Estate in Nigeria: Land Acquisition procedures, A Lagos Example,
Available at www. ngex.com/reports/investing-in –real estate. pdf. accessed on 27th May, 2010. at
11p.m.
5b. World Bank doing business report; the standard requirement for accessing property in Cross Rivers
State available at www. doingbusiness. org/ subnational / ExploreTopics/Registering property,
accessed on 1st June, 2010 at 11.25 p.m
stamp duty is 3% of the property value; N1,000 plus 15% of value as consent
fee; 10% of value as capital gain tax and, N1,000 for registration.
By virtue of Section 28(3)(d) of the Land Use Act, such transaction without the
consent of the governor shall be one the overriding public interest under which
the governor is empowered to revoke the right of occupancy without
compensation.6a The Governor may, however, in lieu of revoking the statutory
right of occupancy concerned in breach of Section 22, demand that the holder
shall pay an additional and penal rent for and in respect of each day during
which the Land the subject-matter of the statutory right of occupancy or any
portion thereof or any building or other works erected thereon shall be or remain
in possession, control or occupation of any person whomsoever other than the
holder.6b The acceptance by the governor of such additional and penal rent shall
not operate as a waiver of his exercising his power under Section 28 of the Act
should the breach continue beyond the date in respect of which such additional
and penal rent has been paid or is due and owing.6c
It should be noted that the contravention of Sections 21 & 22 of the Act is
affected only when transaction has been completed.7 Thus Akintan, JCA in
ADETUYI V. AGBOJO8 explained;
6a. Community reading of Ss.28(3) (d) 29 (1) and 29 (2) LUA
6b. S.20 (1) LUA
6c. S.20 (2) LUA
7. See Awojugbagbe Light Ind. Ltd V. Chinukwe, supra.
8. (1997) I NWLR (pt. 484) 705
“what Section 22(1) of the Act prescribes is a
situation where, for example, the appellant
paying the agreed price and the respondent
thereafter executing a complete deed of sale in
favour of the appellant without the Governor’s
consent being sought and obtained.”
This position is reinforced by subsection (2) of Section 22 of the Act.
Moreover, the contention that the failure to obtain the consent will, at worst,
makes the transaction inchoate has been rejected by the Supreme Court. In
CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY
LTD & Ors V. EKPO,9 the SC, per Onnoghen, JSC noted;
“… it is clear that before the alienation can be
valid or be said to confer the desired right on the
party intended to benefit there from, the consent
of the governor of the State concerned must be
‘first had and obtained’. That does not, by any
means, make the transaction without the requisite
consent inchoate. It makes it invalid until consent is
obtained…”10
It has been suggested that the effect of Section 34(8) LUA is that such
transaction is void ab initio. This is in apparent show of distinction the said
section and Section 26 of the Act. The irreversible effect of both sections is that
transaction becomes null and void. Lord Denning explained the situation in
MCFOY V. U.A.C LTD11 as follows;
9. Supra
10. Ibid at 252
11. (1961) 3 A.E.R. 119 at 172
“if an act is void, then in law it is a nullity.
It is not only bad but incurably bad. There
is no need for an order of the court to set it aside.
It is automatically void without more ado, it is
sometimes convenient to have the court declare
it to be so. And every proceeding which is founded
on it is also incurably bad. You cannot put something
on nothing and expect it to stay there, it will collapse.”
Furthermore, Section 23(1) LUA provides;
“A sublesse of a statutory right of occupancy may, with the prior
consent of the governor and the approval of the holder of the
statutory right of occupancy, demise by way of sub-underlease
to another person the Land comprised in the sublease held by
him or any portion of the Land.”
A sublesse is not a holder of a right of occupancy and therefore not qualified to
seek and obtain the governor’s consent. However, by the above provisions, he
can do so with the approval of the holder of the statutory right of occupancy.
What then is the nature of the approval? This question becomes pertinent given
the fact that Section 22(2) of the Act applies to Section 23(1), mutatis mutandi.
It is the law that an attorney who is required to execute a deed must be
appointed by deed.12 It follows, then, that if the sublesse must seek and obtain
the consent of the governor using an instrument executed for the sublease, the
approval of the holder of the statutory right of occupancy must also be by a deed
or power of Attorney under seal. Such a case of double consent is not only
superfluous but economically inexpedient.
12. Abina V. Farhat (1938) 14. N.R.L. 17
Again, it is trite that the Land Use Act does not in any way vitiate customary
law.13 It, therefore, follows that for any effective disposition of family or
communal Land, a two fold consent would be required namely, those of the
family or community head and the principal members, and that of the governor
or Local government as the case may be. The consent of the governor or the
local government will not validate a disposition of family property that is not in
accordance with this rule.14 For the above reasons, most holders of right of
occupancy evade the consent provisions leading to multiplicity of titles.15
3.2 SOCIO-ECONOMIC EFFECTS
One important objective of the Land Use Act as could be deduced from the
recommendation of the Panel, was the stimulation of economic growth and
infrastructural development through the use of simplified and expeditious
transfer of Land. It is intended that this would work to make Land easily
available to both government and private developers. This in turn would ensure
effective housing policy and adequate housing development especially in urban
areas.
While it would be agreed to some extent that the aim has been achieved by
making Land available to the government, the same cannot be said in relation to
the individuals and organizations. The consent clause of the Land Use Act
13 .See Abioye V. Yakubu (1991) 5 NWLR (pt.190) 130 SC.
14. Elujekor, “The Effect of the consent Requirement for a mortgage under Land Use Act.” The Calabar Law
Journal, 1990.
15. Nigeria: As Land use Act Undergoes Amendment vol. 1. available of www. all Africa.com, courtesy of this
day online, accessed on 26th April, 2009.
constitutes an effective hindrance against the private sector acquiring Land for
the much needed housing development. And since the government alone cannot
cater for the housing need of the teeming population, the result has remained the
ever escalating increase in rent inspite of the rent laws and tribunals. This is
undoubtedly so because the combined forces of legislations and tribunals will
do little or nothing to erase the economic law of demand and supply. More than
thirty years after the promulgation of the Land Use Act, the World Bank scores
Nigeria very badly on property Rights and Land registration arrangements.16
The World Bank study puts Nigeria at number 173 (out of 178) in the country
ranking of registering property with 14%, or a duration of 82 days and costs of
22% of the property value.
At the moment, Nigeria has a housing deficit burden of 17 million units hanging
down its neck which requires about N35 trillion (about $27 billion) to fund.17
According to World Bank estimates, Nigeria needs to produce about 720,000
housing units for the next 20 years to be able to close the housing gap in the
country. Available statistics show that since its inception in 1973 up to 2006, the
Federal Housing Authority (FHA) has built only 30,000 housing units. When
this housing output in the last 33 years is juxtaposed with the present housing
16. NIGERIA: Financial. Systems strategy 2020 (Housing finance) March 2008-World Bank First project
Initiative, cited in a memorandum submitted by the Mortgage Banking Association of Nigeria to the senate
Ad-hoc Committee on constitution Review on Amendment of the Land Use Act on 14th October, 2009. P.
3.
17. Ayo Akinwale; ‘Governor’s power of consent hampers real estate development’, available at www.
yourlogo.com/property/governors power of consent hampers real estate development; accessed on 16 th
December, 2009 at 22.30 GMT.
need, a gloomy picture of the critical housing situation in the country is
apparent.18
This is manifest in overcrowding, slum housing and the development of shanties
in virtually every major Nigerian cities.19
The matter is made worse by the fact that Landowners cannot use their Lands to
raise loans to either establish business or build their own houses. The big time
farmer, the property developer, the small and medium scale industrialists, the
sole-trader, and the partnership, all require capital to carry on their vocations.
The easiest way of raising ready capital is by securing loan from the banks.
Where the Landowner is in any way incapacitated in using his property to raise
such loan, the property would have served little or no useful purpose. One of the
major problems confronting Land security in Nigeria is the requirement of
consent by the appropriate authority for any dealing in Land.20 The procedure
for obtaining consent is cumbersome and very expensive with adverse effects on
commerce. As Obaseki, JSC, observed in Ajilo’s case21;
“it is bound to have a suffocating effect on the commercial
of the Land and housing owning class of the society who use
their properties to raise loans and advances from the banks.”
18. This day Editorial-‘As Land use Act undergoes Amendment’, April, 26th 2009 cited in the memorandum
submitted by MBAN op. cit, P. 7.
19. J.A. Onyike, Acting Head Dept of Estate Mgt, Imo State University, Owerri: Addressing the Urban
Housing problems in Nigeria in the 21st century, available at www. niesv.org:ng/NIESV conference papers
/Addresing the housing problems of Nigeria in the 21st centu.doc, accessed on 16th May, 2010 at
23.00GMT.
20. Inam Wilson; Enhancing Nigeria’s Economic Development: A case for institutional and Regulatory
Reforms in Nigeria Banking Sector, 2005; P. 6 available at www. proshareng. com/Templars-Enhancing
Nigeria Economic Potentials. pdf; accessed on 21st May, 2010 at 22.30 GMT.
21. Supra
Apart from the prohibitive consent fee and other fees payable by the mortgagor,
precious time is wasted in processing the application for consent which may
take months to go through. The result of the suffocating effect has been mass
unemployment, low level of commercial activities and stunted economic
growth. The Federal government conscious of the inaccessibility of bank loans
to ordinary Nigerian citizen with its concomitant economic downturn and
widespread poverty established in 1987, the Peoples’ bank as a means of
providing soft loans to individuals who desire to set up their own businesses.
However, the Peoples’ bank was a failure because of mismanagement. The
measure would have been unnecessary were individuals free in using their Land
to secure capital from the commercial banks.
3.3 IMPLEMENTATION PROBLEMS
First, there are always delays in the Governor granting the consent.
Developments have shown that applications for consent stay well over one year
before receiving the governor’s attention. The reason for this delay is not far-
fetched. The governor or the Commissioner(where the governor had delegated
to the State Commissioner his power22) work schedule is enormous, such that
endorsing his consent may not come handy as there are some verification that he
would want to make before signifying his consent. Unfortunately, even the
provision to delegate is subject to the governor’s inclination such that under an
22. See S.45 LUA
overweening Governor, the provision will worth no more than a dead letter.
Even where the governor is very liberal, the delay will still not be abated
considering our corrupt, undisciplined, inefficient and tottering bureaucratic set
up. Professor Niyi Osundare in his poem23 characterised our dysfunctional
public service system thus;
“I have been through the secretariat where Civil
Servants are all but civil;
Here files are lost and found; found and lost by
mysterious messenger’s magic;
The CORRESPONDENCE tray is the coffin of ailing
democracy;
PENDING is heavier than OUT and both together are
leaner than IN
The precarious tilt on the master’s bureau engenders
a rift outside the doors;
The tremors are felt to the roots of the house”
With a bureaucracy so morbidly ineffective and inefficient as depicted above,
the possibility of obtaining the governor’s consent at a record time will prove
much more difficult to realize than a camel passing through the biblical eye of a
needle. Mr. Justice Augustine Nnamani who as Attorney-General of the
Federation was responsible for drafting the Act and its incorporation into the
constitution aptly summarized the deficiency thus;
“in the course of these years, it has become clear that due to
its implementation not its structure or intendment, the objectives
for which the Land Use Act was promulgated have largely remained
unfulfilled; indeed they have been distorted. Abused and seriously
undermined…”24
23. Niyi Osundare: Songs of the Market place (1983).
24. Nnamani; The Land use Act: The aim is Humane but the Deed is Rancorous’ The Guardian, March 31st
1980, P.10.
Secondly, the Act makes no specification on what the applicant for the
governor’s consent requires for a successful application. As a result, each State
makes its own regulations according to its financial needs. For instance, to
apply for the governor’s consent n Lagos State, the following requirements are
imperative25;
1. Application for governor’s consent in Land form 1C
2. Current Income tax clearance certificate of the parties for three(3) years
preceding the application.
3. Receipts of payment of all tenement rates for three(3) years if a
developed Land.
4. Affidavit in lieu of payment of tenement rate if undeveloped Land.
5. Survey or building plans whichever is applicable.
6. Duly executed Deed of Assignment (6 copies).
7. Original or CTCs of Assignor’s title documents.
8. Receipts of payment of all ground rent.
9. Receipts of payment of development levy.
10. Receipts of payment of all Land charges.
11. Covering letter addressed to the Governor through the Lagos State
Minstry of Lands & Survey, Alausa, Ikeja. Applying for consent and
attaching all documents listed above.
25. Olusola Adun, op. cit
This is in addition to the various financial requirements26 already highlighted in
this project work. These requirements are inimical to the objectives of the Act in
streamlining and simplifying the management and ownership of Land in the
country.
3.4 OTHER CONSEQUENCES
First, the Land Use Act has the task of removing the obstacle in Land
transaction posed by earlier Land tenure system as one of its objectives. As I
earlier submitted, the requirement of the consent of the family head and those of
the principal members formed an encumbrance on family Land. Incidentally,
the consent of the governor required in all transactions on Land, does the same
to Land transfers, mortgages, dispositions, leases, etc. this manifests in the
discouraging technicalities involved in requisitioning the governor’s consent,
the time it takes to obtain same, and the arbitrary and exorbitant fees charged by
States. As a result, it became obvious that those who may be desirous to invest
in property development will divert their capital elsewhere rather than engage in
the rigorous exercise of chasing Governor’s consent.
Moreover, a veritable lacuna of the Land Use Act is its failure to specify under
which circumstances the governor may give or refuse consent, and what time
frame within which the governor should give his consent or notice of his refusal
of consent.
66
26. Ibid, P.6
These vital aspects of the provision are left to the whims and caprices of the
governor. In other words, there is no corresponding obligation on the part of the
governor. As a matter of fact, it has been said that an order of mandamus cannot
compel the performance of similar function of the governor in approving
mortgage transactions.27 This basically is susceptible to abuse for any law or
provision of an enactment that is removed from the scrutiny of the court is
draconian and undemocratic. If the governor holds the Land in trust for the
benefit and use of the citizenry, it is logical that a citizen whose rights to use the
Land is denied unjustifiably should have access to the court to assert his rights.
Anything short of this portends injustice. The question is, should the governor
refuse the consent at this stage considering the provisions of Section 22(2) of
the Act, what happens to the contract? Under the contract of assignment and
sublease, at the stage of the execution of the instrument of assignment or lease,
the assignee must have made the statutory 10% part payment. Again,
professional fees such as valuer’s, legal practitioner’s and surveyor’s must have
been paid. Who bears the cost where the governor refuses consent? ‘Ubi jus ibi
remedium’: a law that allows one to suffer loss without a remedy is a bad law.
Again, in UGOCHUKWU V. C.C.B.(NIG.) LTD28, Belgore, JSC(as he then
was) confirmed that the responsibility of obtaining consent in accordance with
Sections 21 & 22 of the Act resides with the holder of the right of occupancy
27. See Queen V. Minister of Land and survey. Ex-parte, the Bank of the North (1963) CCHCJ 1617/73 @ 61.
cited in Amodu; Efficiency of mortgage transactions under the Land use Act: Myth or Reality available at
www. rougandco. org/articles/ I. doc, accessed on 21st May 2010 at 23.00GMT.
28. (1996) 6 NWLR (pt.456)524
which is the subject of the alienation. And by virtue of Section 52(1) of the Act,
a mortgagee, lessee, transferee, etc is not a holder of a right of occupancy. In
addition, the tenor of Section 22(2) suggests that the governor would want to
see the instrument executed in evidence of the transfer, an indication that the
consent is sought when the transaction is virtually completed. This condition
puts the transferee, mortgagee, lessee, etc in a precarious situation especially
when confronted with a fraudulent alienor who may deliberately refuse to go for
the consent and turn around to claim that the consent is void by the absence of
the governor’s consent. This was exactly the situation in Ajilo’s case (supra).
Some of them may even resort to obtaining a defective consent with the hope of
voiding the contract later, on the same ground as was the case in Ugochukwu V.
CCB (supra).29
Despite the apparent display of fraudulent act in Ajilo’s case (supra) as well as
the recent case of Kachalla V. Banki (supra), the apex court in Nigeria
overlooked the maxims ‘Ex turpi non oritur action’ (an action does not arise
from a base cause) and ‘res inter alios nocere non debet’ (a transaction between
two parties ought not to operate to the disadvantage of a third party) insisting
that the tenor of the Land Use Act excludes equitable intervention. I have
already commented on this in chapter two. The neglect of these maxims by the
Supreme Court has remained a sore point of its decisions. In OMOZEGHIAN
29. See also Union Bank of Nig. Plc & Anor V. Ayodare & Sons (Nig) Ltd & Anor , Suit No SC.375/2001
Delivered on the 27th day of April, 2007.
V. ADJARHO30, the Court of Appeal per Augie, JCA observed;
“any plea by a vendor to nullify a transaction for lack of governor’s
consent is reprehensible because the responsibility of obtaining the
consent rests with the vendor; and particularly so when consideration
has passed. The party in delict should not be allowed to profit from
his fraud. In the instant case, the appellant cannot be heard to complain
that the governor’s consent was not obtained before Exhibit D was
executed. Simply stated, it does not lie in his mouth to say that the
transfer of the property in question was not properly perfected”31
Yet, the Court has no option than to follow the decision of the Supreme Court in
Ajilo’s case (supra) in the spirit of stare decisis. The difficulty at which the
Court of Appeal follow this decision, was aptly summarized by Cletus Centus
Nweze, JCA in PHARMATEK V. TRADE BANK32, when his Lordship
observed that the court had no option but to “… allow it(the appellant) to
benefit from its own perfidious pranks”. He further observed “…it is an
unfortunate situation but… that is the law”. The Pharmatek’s case was, in a
number of respects similar to those of the Ajilo’s. Professor Sagay had
commented on the decision in Ajilo’s case thus;
“The decision sent alarm bells ringing in many banks announcing
the ominous possibility of abuse and exploitation to which the
principle could be put by unscrupulous debtors and concluded
there was danger that bank lending activities would be stalled
with its concomitant economic regression”33
30. (2006) 4 NWLR (pt.969) 33.
31. Ibid at P. 66 para A-C. See also BABA V. JIBRIN(2004) 16 NWLR(pt.899) 249 per Muktar, JCA.
32. (2009) 13 NWLR (pt.1159) 577
33. Sagay I.E; Nigerian Law of contract, spectrum Law Series, 2nd Ed; Ibadan, 2000. P. 376-377.
Furthermore, I have earlier explained that in an effort to circumvent the consent
requirement, certain unconventional methods were adopted by Land dealers
such as the use of the ‘Power of Attorney’ with its attendant limitations;
backdating of survey plans and other informal arrangements. These engender
insecurity of titles. No doubt, uncertainty of title is a veritable disincentive to
investment in Land. The result has been low level of property development, as
no prudent investor would want to invest where the security of his title cannot
be assured.
All I have laboured to bring out so far points to the indubitable facts that the
consent requirement works in opposition to the laudable objectives of the Land
Use Act. It was one of the paramount aims of the Act, ‘to remove the bitter
controversies resulting in the loss of lives and limbs which Land is known to be
generating’. Ironically, the consent requirement has generated more
controversies and litigations than all the other provisions of the Act put together.
Some of these litigations are as ridiculous as they are dubious. From Savannah
Bank V. Ajilo, to Ugochukwu V. CCB, Federal Mortgage Bank V. Akintola34,
Awojugbagbe Light Industries Ltd V. Chinukwe, Dahiru V. Kamale35 and a
host of others, all point to the indisputable fact that the consent requirement is
antithetical to the set objectives of the Land Use Act.
34. (1998) 4 NWLR (pt.545) 327
35. (2005) 9 NWLR (pt. 929) 8
CHAPTER FOUR
THE NEED FOR REFORM
4.1 A REVIEW OF THE AMENDMENT BILL, 2009 BEFORE THE
NATIONAL ASSEMBLY.
The Nigeria Government established a Presidential Technical Committee on
April 2, 2009 to undertake the reform of the Land Tenure system in the country
following on the various problems emanating from the Land Use Act, 1978. The
Committee was headed by Professor Akin Mabogunje.
As noted in this project work, the Land Use Act, 1978 was meant to usher in a
new Land reform in Nigeria; rather it became a clog in the wheel of
development over the years. The objectives of the Act remained unattainable
and this failure has been blamed more on the consent requirement.1 By way of
recapitulation, certain characteristics of the consent requirement which set in
contra-distinction with the objectives of the Act have been underscored in this
work and can be summed up as follows:
1. The consent requirement has a long history of restrictive, prohibitive, and
even discriminating Land use and management policy. This stands clearly
in opposition with the liberal objective of the Act.
2. The over-extensive scope of the consent provision reinforced by Section
26 of the Act give it a prohibitive rather than a regulatory character.
1. Mabogunje: Land Reform in Nigeria: Process, Problems & Prospects, 2009, available @ www.
Siteresources.worldbank.org/extard/resources/mabogunje, accessed on 10-3-2010@23.00GMT
3. The administrative bottleneck associated with the process of obtaining
the consent is time consuming and discourages those who genuinely want
to get the consent.
4. Also the exorbitant amount charged by States for obtaining the consent
makes it look like an imposition on the citizenry, resulting in Land
dealers circumventing the requirement in their transactions.
No doubt the consent provision has been identified as the major drawback of the
Act.2
The aftermath of the Committee’s work was a Bill for the establishment of a
National Land Reform Commission to guide and co-ordinate the process of
reform across the length and breadth of the country. Consequently, a Bill for the
amendment of the Land Use Act known as the Land Use Act (Amendment) Bill,
2009 or the Constitution (First Amendment) Act, 2009 was dispatched by the
Late President Umaru Musa Yar’Adua to the National Assembly. The then
Special Adviser to the late President on Media, Mr. Segun Adeniyi, said the
amendment,
“is to restrict the requirement for Governor’s
consent in Land transactions to assignments only.
The amendments will render such consent
2. Martain Dada; Land Reforms in Nigeria: The Lingering debate vol. I; Daily independent Newspaper, 10th January, 2010, available at www. naijaproperty.com/estate agent/property articles accessed on 2nd
February, 2010.at 23.00GMT
unnecessary for mortgages, subleases, and other
Land transfers in other to make transactions in Land
less cumbersome and facilitate economic growth”.3
The Bill proposed the amendment of Sections 5, 7, 15, 21, 22, 23, and 28 of the
Land Use Act as follows:4
Section 2 of the Bill provides for the amendment of subsection (1) (f) of Section
5 of the Act by deleting all the words immediately after ‘sale’ in third line. The
effect is that the Governor can no longer impose penal rent for the alienation of
a right of occupancy by way of mortgage, transfer of possession, sublease,
bequest or otherwise except if it is by way of sale (assignment) only.
Section 3 of the Bill proposes the amendment of Section 7 of the Act by
a. Deleting the words ‘or subletting’ immediately after the word ‘assignment’
in the second line.
b. Deleting the words ‘or subletting’ immediately after the word ‘assignment’
in the third line of paragraph (a) of the proviso.
Section 4 of the Bill seeks to amend Section 15 of the Act by deleting the words
‘or mortgage’ immediately after the word ‘assign’ in the first line.
Section 5 of the Bill provides for the amendment of Section 21 of the Act by
deleting all the words after ‘assignment’ and the inclusion of a sub-section
stating ‘the right of a holder of a customary right of occupancy to alienate such
3. Nigeria: As Land Use Act undergoes Amendment, Op. cit
4. Land use Act (Amendment) Bill, 2009 available at www. cislac Nigeria. org/Bills/SB 20251-Land-use-act
pdf, accessed.
right by mortgage is hereby recognised’. The effect is that holders of customary
rights of occupancy will now be empowered to alienate their rights by way of
mortgage, transfer of possession, or sublease without requiring the consent of
the Governor or the Local government. However, it should be noted that any
alienation by way of an assignment will still require the consent of the
appropriate authority.
Similarly, Section 6 of the Bill provides for the amendment of Section 22 of the
Act by deleting the words ‘mortgage, transfer of possession, sublease, or
otherwise’ immediately after the word ‘assignment’; the deletion of the proviso
after sub-section (1); deleting from sub-section (2) the words ‘mortgage or
sublease’ immediately after the word ‘assignment’ in the first line; and the
creation of a new sub-section (3) stating ‘the consent of the Governor shall not
be required for the creation of a mortgage or sublease under this Section.
Therefore, like the holder of a customary right of occupancy, a statutory right
holder may alienate his rights by mortgage, transfer of possession, or sublease
without requiring the consent of the governor.
Section 7 of the Bill introduces new provisions to replace the current Section 23
of the Act as follows;
“a sub-lessee of a statutory right of occupancy may
with the approval of the holder of the statutory right
of occupancy demise by way of sub-underlease to
another person, the Land comprised in the
sublease held by him or any other portion of the Land”.
Finally, the Bill seeks to remove the powers of the Governor under Section 28
of the Act to revoke a right of occupancy where the holder of the said right
alienates the property by way of mortgage, transfer of possession, or otherwise
other than by assignment or sublease.5 Hence, subsection (2) of Section 28 of
the Act is amended by substituting paragraph (a) with the following new
paragraph:
“(a) the alienation of the occupier by assignment or sublease contrary to
the provisions of this Act or any regulations made thereunder”.
Again, subsection (3) of Section 28 of the Act is amended by substituting
paragraph (d) with the following new paragraph:
“(d) the alienation by the occupier by sale, assignment or sublease without the
requisite consent or approval”.
While I salute the doggedness of the present administration to give the Land
Use Act a human face, I must confess that if the Bill is passed into law the way
it is now, the problem will persists to a reasonable extent.
4.2 SUGGESTED REFORMS
First, the substitution of the Governor’s consent with the consent of the holder
of the statutory right of occupancy in the new Section 23 may cause other
problems. It may lead to the imposition of ‘signing or consent fee’ by holders of
the statutory rights of occupancy.
5. Section 8 of the Bill
The current draft Bill does not appear to anticipate the emergence of these fees
and as such does not regulate it.
This could therefore lead to significant costs in the completion of property
transactions. Additionally, it may also lead to significant delays. It is my strong
view that Section 23 as a whole should be deleted. Parties to individual
transactions may choose the option of retaining such consent as a contractual
requirement and not a statutory requirement.
Secondly, it has been suggested that it will be more advisable and also in the
interest of the people to pay consent fee on mortgage and let the government
remove totally the consent fees on assignment because mortgages are not really
popular in the country and as such most people buy Land and properties cash-
down.6 This view is even substantiated by the Lagos Business School, which
said in one of their programmes that only 600,000 mortgages have been
completed in the whole country; which means that a larger percentage of
property buyers would in the end not benefit from the proposed amendment.7
With due respect, the suggestion is myopic. It is on record that the low rate of
mortgage transactions in the country is simply because of the effects of the
consent requirements contained in the Act. It is expected that with the passage
of the Bill, a large number of people will embrace mortgages as a way of raising
capital rather than selling such Land cash down. It is not only wise but
6. Sanni Azeez; “Yar’Adua set to Review Land Use Act” available at www. goodlife. com. ng/Realestate;
accessed on 27th October, 2009.
7. Sauni Azeez; Op cit
economically expedient. What I had rather expected is the complete removal of
the consent requirements in all its ramifications from the Act. That Bill is a
mere cosmetic and would not fulfill the expectations of the majority of
Nigerians. Instead of the retention of the consent requirement to assignments
only, total removal has been suggested and then registration of all transactions
inland should be made mandatory in the appropriate Land registries.8
The United Arab Emirate (UAE) is today a world tourism destination simply
because of the changes it made in its Land rules. In 2002, UAE liberalized its
Land rules, granting foreigners the right to acquire and develop Land in the
country. Today the story is what we see as Masdar City in Abu Dhabi; Burj
Dubai and Burj Al-Arab, both in Dubai. It is believed that Nigeria can surpass
UAE’s record if only there could be the political will to remove completely the
consent requirement and liberalise Land tenure in Nigeria.
In addition, there is every tendency that the problem of multiplicity of titles will
continue to live with us. This is in view of the fact that a landowner who needs
to sell his Land will device a means of circumventing the requirement of the
governor’s consent. Hence, irrevocable power of Attorney will remain a key
factor in Land transactions. This, I had earlier noted, is one of the causes of
multiplicity of titles on Land. Invariably, the bitter controversies which results
in loss of lives and limbs will persist. The aftermath will be insecurity of titles
8. Chief Emeka Onuorah, President NIESV; in Chinedu Uwaegbulam (ed); “Estate Surveyors fault proposal
for Land Use ACT Amendment” available at www Nigeriabestforum.com/Real estate, accessed in July 13,
2009.
which will affect the mortgage institution because the ability of a mortgage
lender to realize its security is important in the development of an effective
mortgage market.
I have not been able to fathom the legal basis for the inclusion of the word
‘sublease’ in the proposed amendment to Section 28. For the amendment to
have restricted the requirement for governor’s consent in Land transactions to
assignments only, it becomes difficult to substantiate the inclusion of sublease
as one of the overriding public interest under which the governor is empowered
by the Act to revoke a right of occupancy when his consent is not obtained. This
is an indirect way of saying that alienation by sublease is still outlawed despite
the express provisions of the proposed amendments to Sections 21 & 22 of the
Act. I therefore, call for the removal of the word ‘sublease’ from the proposed
amendment to Section 28 of the Act.
Land is fundamental to the socio-economic and infrastructural development of
any society. It stands to reason therefore that any instrument regulating the use,
management and control of Land must be flexible, functional and liable to
constant review in order to conform to the ever-changing development need of
the society. That is why any meaningful suggestion for review of the Land Use
Act must take cognizance of the fact that the Act is shielded under the
constitution of the Federal Republic of Nigeria by virtue of Section 274 of the
1979 Constitution, now Section 315 of the 1999 Constitution. The extent and
implications of this constitutional protection of the Act have been settled by the
Supreme Court in the case of NKWOCHA V. GOVERNOR OF ANAMBRA
STATE.9 In the words of Eso, JSC(as he then was);
“it is my considered view that in spite of the fact that the Land
Use Act is declared to be an exclusive Federal enactment by
Section 274 of the constitution, the Act remains under the
executive authority of the State Governor by virtue of
Section 276 of the constitution”.
It was the consensus opinion of the majority of the Supreme Court Justices that
sat over the case that the Land Use Act is not an integral part of the constitution
but claims the special protection of Section 9(2) of the constitution.
Section 9(2) of the constitution, it must be noted, entrenches the mode of
altering the provisions of the constitution, those of the Land Use Act inclusive,
and provides as follows;
“An Act of the National Assembly for the alteration of this
Constitution, not being an Act to which Section 8 of this
Constitution applies, shall not be passed by either House
of the National Assembly unless the proposal is supported
by votes of not less than two-thirds majority of all members
of each House, and also approved by resolutions of the Houses
of Assembly of not less than two-thirds of all the States”.
From the foregoing analysis, it is obvious that excising the Land Use Act from
the constitution is a necessary operation to cure the Act of its functional defect.
Once this is done, the Act will be subjected to the proposed review of the
controversial consent requirement.
9. (1984) 1 S.C. 634
It has been submitted that getting the votes of some States for such necessary
amendment may be tantamount to the proverbial biblical camel passing through
the eye of a needle, considering the enormous revenue being realized for such
States from consent fees. Particularly, it has been submitted that States like
Lagos, Ogun, Rivers, etc may not support the proposed amendment.10 Lagos
State alone was able to generate in 2006, 2007 and 2008, N1.95 billion, N2.42
billion and N3.22 billion respectively from consent approvals.11 With the
present situation of dwindling fortune in Oil revenue, this may seem plausible.
However, I had earlier pointed out, if there is the political will, then we can
succeed, as there are one and a thousand other sources of revenue available to
those States.
Furthermore, it is the sacred duty of the court to interpret the law. Even where
the language of the legislative enactment is ambiguous, absurd or inconsistent,
the court is always guided, in construing the law, by the eternal need to attain
justice. However, with due respect to our eminent jurists, the inconsistent and
controversial decisions of our courts to the issue of consent requirement of our
Land Use Act have not been helpful.
The discordant tunes being sung by our courts on this issue have been blamed
on the court’s neglect of established principles and maxims of law when
deciding on this issue. For example, in deciding the case of Savannah Bank V.
10. Sanni Azeez; Op. cit.
11. Ibid
Ajilo (supra), the court overlooked two important maxims to wit
“Ex turpi causa non oritur action (an action does not arise from a base cause)
and res inter alios nocere non debet (a transaction between two parties ought not
to operate to the disadvantage of a third party)”
The neglect of these maxims worked injustice against the Appellant bank by
allowing the Respondent to benefit from his own misdeed. Also, the Auctioneer
was made to lose by the Supreme Court decision declaring his notice to be null
and void. I have already criticized this judgement in the preceding chapter. The
final analysis being that the Supreme Court failed to approach the case on the
basis that equity does not allow a statute to be used as a cloak for fraud. Nothing
burdens the conscience more than a mortgagor’s reliance upon statutory rules to
defeat obligations arising from a mortgage. It is clearly unconscionable for a
mortgagor to insist on retaining the beneficial ownership after obtaining an
advance based on the security of the mortgaged property. In such circumstances,
equity would consider the mortgagor’s conscience to be overburdened and in
need of moral regeneration.12
The court of Appeal, on the bindingness of transaction on a third party, decided
in NWOKORO V. NWOSU13 that
12. Renifius Nwabueze, Op. cit P. 124
13. (1990) 4 NWLR (pt.129) 679
“A transaction between two parties ought not to operate to the
disadvantage of a third. This is embodied in one of the most
important and most useful maxims related to the law of evidence…
The effect of the maxim, res inter alios nocere non debet, is to
prevent a litigant from being precluded or even affected, by acts,
conducts or declaration of strangers. A man’s own acts are binding
upon himself and his conduct and declarations are evidence against
him but it is not only highly inconvenient but also manifestly unjust
that a man should by bound by the acts of a mere unauthorized
stranger”.
Professor Sagay has observed that the courts have failed to apply the correct
principles of law when deciding on the issue of consent and that this failure has
resulted in conflicting rationes decidendi. In reviewing the cases of Harry V.
Martin14, Sam Warri Esi V. Moruku15 and Solanke V.Abed16, he opined that the
courts failed to distinguish between a contract which is illegal as formed and
one which is only illegal as performed. According to the learned Professor,
“where the contract is illegal as formed, the contract is
absolutely void and no person can claim any right or
remedy whatsoever under it. But where the contract is
merely illegal as performed, only the party who knowingly
perform it in illegal manner suffers the penalty of being
denied any right or remedy under the contract”17.
14. (1949) 19 NLR 42
15. (1940) 15 NLR 116
16. (1962) NRNLR 92
17. Sagay, I.E; Op. cit P. 375
It is quite unfortunate that 19 years after Ajilo’s case, the Supreme Court,
despite the crocodile tears shed in that case, failed to rectify this obvious
anomaly in the case of Kachalla V. Banki (supra) and Union Bank V. Ayodare
& Sons (supra). In Union Bank’s case, the bank was denied judgement on the
basis that the mortgagor instead of obtaining the consent of the local
government in accordance with Section 21, the property, subject-matter of the
mortgage being in the rural area, fraudulently obtained that of the governor. The
court held that the mortgage transaction is null and void for lack of valid
consent in accordance with Section 26 of the Act.
The present attitude of the Supreme Court will no doubt continue to encourage
litigant trouble fomentors who may want to use the consent provision as vehicle
for fraud. Now, if the Bill is passed, the consent requirement still lives with us
at least with regards to assignment, and it is expected that the problem will
continue unless Savannah Bank V. Ajilo is overruled. The courts must be bold
and consistent in construing the consent provisions always bearing in mind that
the end of law is to achieve justice. The court must also have at the back of its
mind when taking decisions on the consent provisions that the Land Use Act
does not invalidate or abrogate existing Land laws, rather, such laws by virtue
of Section 48 of the Act shall have effect, subject to such modifications
(whether by way of addition, alteration or omission) as will bring those laws
into conformity with the Act or its intendment. The courts should apply its
judicial powers to relax the consent requirement where it is likely to work
manifest injustice. This, it must do, by using any opportunity henceforth to
overrule Ajilo’s case on the basis of equity.
4.3 CONCLUSIONS
The Land Use Act, 1978, by its laudable objectives, can be seen as a law with a
mission. However, it has been established in this essay that the mission has
failed and as such remained unattainable. The failure has been blamed on the
provisions of the consent requirement. The Federal government of Nigeria
under the Late Musa Yar’Adua had acknowledged these obvious lapses. As a
way of effecting corrections, an Executive Bill is presently at the floor of the
National Assembly seeking to restrict the consent requirement to assignment
only. Much as this noble initiative is appreciated, I believe that a lot still need to
be done otherwise we will get ourselves back square one, facing the same
problems we are trying to avoid. While I acknowledge the obvious difficulty in
the elaborate process of constitutional review as entrenched in Section 9(2) of
the 1999 constitution which the Bill must go through to effect the desired
change, the onus lies with the courts to interpret its provisions, especially the
consent requirement, in such a manner that judgement arrived at will reflect the
general intendment of the Act.
Finally, I must add that President Goodluck Jonathan and the members of the
National and States’ Houses of Assembly must not fail Nigerians. The Land Use
Act was a myth which having defiled all attempts to exorcise it only needed a
Moses in Yar’Adua to march the people of Nigeria into the ‘promised Land’.
The present administration must not allow this to fail. As we accept this
opportunity with both hands, we must equally make sure that a thorough and
meaningful amendment is made as suggested to ensure full realization of the
laudable objectives of the Land Use Act.
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