The land tenure system in Nigeria was revolutionized in 1978 with the promulgation of the Land Use Act (“LUA”). In accordance with the LUA, all land comprised in the territory of each state (except land vested in the Federal Government or its agencies) are now vested in the Governor of the State, who holds the same in trust for the citizens of the State.
By virtue of section 22 of the LUA, the alienation – by the holder of a statutory right of occupancy granted – of his right of occupancy by assignment, mortgage, transfer of possession, sublease, etc. is prohibited without the consent of the Governor (first had and obtained). It is therefore highly critical to ensure that one obtains Governor’s consent as any transaction or any instrument which purports to confer on or vest in any person any interest or right over land without Governor’s consent shall be null and void (section 26 LUA). In Savannah Bank v. Ajilo (1989) 1 NWLR (pt. 97), Justice Nnamani J.S.C. stated that:
“Every holder of a right of occupancy whether statutory or otherwise is regarded as having been granted the right by the Military Governor or Local Government as the case may be, for the purpose and control of management of all land comprised in the state. Accordingly, every such holder, whether under sections 5, 34 or 36 of the Land Use Act requires the prior consent of the Military Governor before he can transfer, mortgage or otherwise dispose of his interest in the right of occupancy.”
As Governor’s are typically very busy with the business of leading the state, section 45 of the LUA permits a Governor to delegate to the State Commissioner all or any of the powers conferred on the Governor by the LUA including the power to grant consent. Problems, may however arise where the official conveying or granting the consent has done so under the delegation of the Governor. This problem typically occurs where the delegated State Commissioner does not grant the consent but a lower official in the ministry (Ag. Chief Lands Officer, Permanent Secretary or Director of Lands) grants the consent. In U.B.N. Plc v. Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR (Pt. 1052), it was argued that the consent granted to the two deeds of legal mortgage was inconsistent with the provisions of the LUA as it was not granted by the Governor or the State Commissioner but it was granted by the Ag Chief Lands Officer of Kwara State. In voiding the consent granted, the Court held that,
“Since person who signed was not the Governor’s delegate it would be wrong to assume that the Signature of the Ag. Chief Lands Officer on exhibit D1 cannot be seen as being in substantial conformity with the signature of the Governor or his delegate, the Commissioner for Lands and Housing.”
In view of the foregoing decision of the Supreme Courts and a plethora of decisions sharing the same sentiment as the Supreme Court in U.B.N. Plc v. Ayodare & Sons (Nig.), it is of critical importance that where the approval for consent is to be granted to a mortgage (in connection with land covered by a statutory right of occupancy), the Governor or his delegate should sign the letter granting consent.
