The land tenure system in Nigeria was revolutionized in 1978 with the enactment of the Land Use Act (“LUA”). According to the LUA, all lands within each state’s territory (except lands vested in the Federal Government or its agencies) are now vested in the State Governor, who holds them in trust for the citizens of the State.
By virtue of article 22 of the LUA, the alienation – by the holder of a granted legal occupation right – of his occupation right by assignment, mortgage, assignment of possession, sublease, etc. it is prohibited without the consent of the governor (first had and obtained). Therefore, it is very important to ensure that you obtain the consent of the Governor, as any transaction or instrument that purports to confer or confer on any person any interest or right in the land without the consent of the Governor will be null and void (section 26 LUA ). In Savannah Bank v. Ajilo (1989) 1 NWLR (pt.97), Justice Nnamani JSC stated that:
“Any holder of a right of occupation, whether statutory or otherwise, is considered to have received the right of the military governor or the local government, as the case may be, for the purposes and control of the management of all lands owned by the incumbent state, either under sections 5, 34 or 36 of the Land Use Act requires the prior consent of the Military Governor before you can transfer, mortgage or otherwise dispose of your interest in the right of occupation “.
As Governors are often very busy with the business of running the state, section 45 of the LUA allows a Governor to delegate to the State Commissioner some or all of the powers vested in the Governor by the LUA, including the power to grant consent. However, problems may arise when the official transmitting or granting the consent has done so under the delegation of the Governor. This problem usually occurs when the delegated State Commissioner does not give consent, but a lower ministry official (Ag. Chief of Lands, Permanent Secretary or Director of Lands) gives consent. In UBN Plc v. Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR (Pt. 1052), it was argued that the consent granted to the two legal mortgage deeds was incompatible with the provisions of the LUA as it was not granted by the Governor or by the State Commissioner, but was awarded by the Kwara State Farm Land Chief. By annulling the consent granted, the Court held that,
“Since the person who signed was not the Governor’s delegate, it would be incorrect to assume that the Signature of the Chief Land Officer Ag. In Annex D1 cannot be considered in substantial conformity with the signature of the Governor or his delegate, the Land Commissioner and Housing “.
In light of the previous Supreme Court decision and a plethora of decisions that share the same sentiment as the Supreme Court in UBN Plc v. Ayodare & Sons (Nig.), It is vitally important that when consent approval is given to a mortgage (in relation to land covered by a legal right of occupancy), the Governor or his delegate must sign the consent letter.