Obtaining Governors consent
from the Land Bureau is not the simplest thing to get a hold of despite the
importance attached to it. On the Lagos state website, it is stated that a
Governors Consent can be obtained within 30 days but in our experience that has
been nearly impossible even though the Government is trying all it can to meet
up with this expectation. A Governor’s consent that naturally should be
concluded within 30 days could translate to 6-months or a Year to perfect based
on the strength of the agency/consultant handling the job.
The requirement of
Governor’s consent is critical and of great importance to mortgage transaction
.In SAVANNAH BANK V. AJILO (1989)1 NWLR Pt97 Pg 305, the respondent mortgaged
his land which he acquired before the Land use act to secure a loan. Being a
legal mortgage, the appellant who is the mortgagee decide to exercise his statutory
power of sale when the mortgagor/respondent refuses to pay the loan. The
respondents commence an action to stop the sale of the mortgaged property on
the ground that the Governor’s consent was not obtained. The Supreme Court held
that for both actual grant and deems grant the consent of the Governor is
needed and failure to obtain such consent renders the mortgage void (that is
not enforceable by the court).
ADVANTAGES
OF OBTAINING GOVERNORS’ CONSENT
1. Evidence
of Ownership
2. Higher
Property Value
3. Security of Title
4. Ease of Transaction.
THE
FEATURES OF GOVERNORS CONSENT MUST CONTAIN THE FOLLOWING
1.
The
Form 1c; which must be signed by the purchaser and vendor that has either a
Gazette or Global C of O or in the case of an Individual that has a private C
of O granted to him by the Governor.
3.
A certified original copy of the Title
document of the property.
4.
Four
copies of a Deed of Assignment prepared by the buyer's Solicitor who must
include signatures of the parties to the transaction, the cost of the
land/property, size of the land description of the land, the copy of the survey
attached to it and signature of witnesses to the transaction.
- Photographs’ of the property
- Three passport photographs of the Assignee
on white background attached to the front page of each copy of the deed.
7.
Current tax clearance certificate of the
parties involved in the property transaction. Please note that if you do not
have one, an assessment is raised immediately in that regard.
All these documents are
forwarded to the office of the Surveyor General for charting. If there are no
defects in the survey plan, a clean report is sent to the Lands Bureau and a
demand notice is issued to the applicant for the following fees which are
percentages of the assessed value of the property. These fees are paid via bank
draft in the name of Lagos State Government and receipts are issued.
Ø Consent
fees – 8%
Ø Capital
gains tax – 2%
Ø Stamp
duty fee – 2%
Ø Registration
fee – 3%
From experience it takes
three months to conclude a Governors’ consent from the point of payment of the
assessment.Although the State
Government has a 30days Approval project which was launched in the early
part of the ACN government in Lagos, however what applies in practice is simply
a case of “WHAT THE LAW IS AND WHAT THE LAW OUGHT TO BE”
PERFECTION
OF LEGAL TITLE: GOVERNOR’S CONSENT
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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