The land ownership system in pre-colonial Nigeria was communal. Land was deemed not owned by individuals but by communities and families in trust for all the family members. The legal estate under customary land tenancy is vested in the family or community as a unit.
The
Land Use Act of 1978 was enacted to redirect the general philosophies of
pre-existing land tenure systems in Nigeria through the application of a
uniform statutory regulation of ownership and control of land rights and to
stimulate easier access to land for greater economic development as well as
promote national and social cohesion.
The
statutory right of occupancy granted by a Governor is presently the highest
right to land in Nigeria. This right of occupancy is a right which allows the
holder to use or occupy land to the exclusion of all other persons except the
Governor and is granted for a maximum holding period of 99 years, subject to
the payment of ground rent fixed by the Governor throughout the holding period.
An
individual in possession of Land with a certificate of occupancy who desires to
transfer ownership of a titled land with CofO would require as provided under the Land Use Act, 1978 the consent of the
Governor of that state for such transaction before the
transaction can be deemed legal in the eyes of the Government.
In UNION
BANK OF NIGERIA AND ANOR V. AYODARA AND SONS (NIG) LTD (2007)13 NWLR Pt 1052 Pg
567, the respondent obtained a loan from the appellant and executed a deed
of legal mortgage on his property. The consent of the Governor in respect of
alienation of the property was communicated by the chief land officer for the
permanent secretary who acted for the honorable commissioner of lands and
housing to who powers to give consent was delegated.
When the
respondent/mortgagor defaulted in payment, the appellant move to sale the
property. The respondent challenge the sale of the property on the ground that
the consent of the Governor was not duly obtained. The Supreme Court held that
the chief land officer for the permanent secretary for the commissioner of land
and housing was not the proper person to give consent as such power cannot be
exercise by him. Thus non-conformity with Section 22 of the land use act renders
the mortgage transaction void.
The power of the Governor to
give his consent in certain transactions is provided for in Section 22 of the Land Use Act 1978 which
states that: “It shall not be lawful
for the holder of a statutory right of occupancy granted by the Governor to
alienate his right of occupancy or any part thereof by assignment, mortgage,
and transfer of possession, subleases or otherwise howsoever without the
consent of the Governor first had and obtained”.
This power confers on the Governor the right
to consent to any of the transactions stipulated in the Act, provided that they
are valid. However, if the initial certificate of occupancy which is the root
title of the land is obtained fraudulently, the Governor may revoke same
immediately. The promulgation of the Act brought about the vesting of exclusive
powers over land within the territory of any given State in the Governor of
that State.
Sections 21 and 22 of the
Act prohibit alienation, assignment, mortgage, transfer of possession, sub –
lease or otherwise howsoever customary or statutory rights of occupancy in
Nigeria without the consent and approval of the Governor of the state where
such right of occupancy was granted.
Since the land is held in trust by the state
government, the Governor needs to approve that transaction. Otherwise, the
title that will be passed would be deemed imperfect. This means that the final
authority on landed matters is not aware of the transaction, the implications
can be terrible a times especially if one of the parties to the transaction
decides to be “dubious”.
In the occasion where a property owner
desires to exercise his rights over his property in which he holds an equitable
interest when such owner decides to resell, mortgage, grant an interest in the
property for long periods of time (3 years or more) or carry out other
transactions prescribed by the Act on the property, the consent of the Governor
will be required to validate such transaction. Failure to obtain the required
consent renders the transaction null and void, thus making the rights of any
third party unenforceable in the event of a breach of contract.
Therefore,
for a transaction of this nature to be valid, a deed of assignment, deed
sub-lease, deed of partition, deed of mortgage and so on must be drafted by a
Lawyer, duly signed by both parties and acknowledged by the Governor through a
consent vesting a valid title on the purchaser and subsequent transactions on
the same land would be registered as a Governors Consent.
In
other words, the first person on a land is the only person or group of persons
entitled to obtain a Certificate of Occupancy. Every subsequent buyer of that
land must get a Governor’s consent. There can only be one Owner of the Certificate of Occupancy on a
Land and it will not be replicated for another person once the land has
been sold or transferred to another person.
In addition, an advantage of having a Governor’s
consent is that you can transfer your land to another person without going back
to the initial seller or Family Baale to sign your deed and Form 1c which are
compulsory requirements needed before one can process Governors consent.
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