No Governor’s consent? No problem

By Stephen Azubuike

The issue of obtaining Governor’s consent to land transactions in Nigeria has been the subject of many cases before the courts. In fact, Nigerian Real Property Law is replete with case law on the point. The requirement of Governor’s consent is statutorily provided for under Section 22(1) of the Land Use Act: “It shall be 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 obtained.” Section 26 further provides that, “Any transaction or any instrument which purports to confer on or rest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.” 

In view of the above provisions, it became a trend at some point where a person would sell his land, transferring title to another, but would turn around to attempt to void the transaction on the ground that Governor’s consent was not obtained. In some pathetic cases, such persons succeeded but the Supreme Court has since moved to stop such trending mischief especially when it is clear that the person who has the primary duty to obtain consent is actually the seller. Although, in practice, it is the buyer that ensures that consent is obtained so as to effectively secure his or her interest.

One controversy associated with the consent provisions of the Land Use Act was the issue of whether the land transaction was absolutely void in the absence of Governor’s consent, and whether consent must be “first had and obtained” before the transaction can be said to have been effectively concluded. While the waves of uncertainty trailed, the Supreme Court in the famous case of Awojugbagbe Light Ind. Ltd. v. Chinukwe [1995] 4 NWLR (Pt. 390) 379 rose to the occasion and clarified the point, holding that parties are at liberty to hold negotiations over land transactions and even validly execute relevant documents of transfer such as deeds, prior to obtaining Governor’s consent. The Court reasoned that: “The holder of a statutory right of occupancy is certainly not prohibited by Section 22 (1) of the Land Use Act, 1978, from entering into some form of negotiations which may end with a written agreement for presentation to the Governor for his necessary consent or approval. This is because the Act does not prohibit a written agreement to transfer or alienate land. Thus to hold that a contravention or non-compliance with Section 22 of the Act occurs at the time when the holder of a statutory right of occupancy executes or seals the deed of mortgage will be contrary to the spirit and intendment of Section 22 of the Act.” The apex Court concluded that the legal consequence was that such transaction without consent was inchoate (not void) till consent was obtained.

Read more: https://stephenlegal.ng/no-governors-consent-no-problem/#comment-228

Credits: This post was originally published on Stephenlegal.ng by Stephen Azubike, legal practitioner, consultant and social entrepreneur.