A CRITICAL OVERVIEW OF THE CONSENT PROVISIONS UNDER THE LAND USE ACT, 1978

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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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