INTRODUCTION
The Land Use Act (LUA) of 1978 is one of the most transformative pieces of legislation governing land administration in Nigeria[1]. Its principal aim is to rationalize the fragmentation and complexity of land tenure systems inherited from colonial and customary frameworks, establish a unified system for land use, and promote equitable access to land as a key economic resource[2]. Central to this framework is the requirement that certain land transactions must obtain the Governor’s Consent, a provision that has generated significant legal and practical implications for landowners, investors, and the real estate sector as a whole.
OVERVIEW OF THE LAND USE ACT
Section 1 of the Land Use Act vests all lands in each state in the Governor, who holds it in trust for the people, to be administered for their use and common benefit. This section effectively transfers ownership from individuals or communities to the state government for public use and development. Those who owned lands before the enactment of the 1978 Act were divested of their ownership of land whether occupied or not[3]. The Governor is thereby charged with the responsibility for the allocation and administration of land in all urban areas to individual residents in the State and to corporate bodies for residential, agricultural, commercial, and other lawful purposes, while corresponding powers in respect of non-urban areas are conferred on the Local Governments[4].
From the foregoing, it is evident that prior to the enactment of the Land Use Act, 1978, land could be owned absolutely by individuals, families and communities. However, upon the commencement of the Act, all existing forms of absolute ownership were extinguished by operation of law and vested in the Governor of each State, and in the case of the Federal Capital Territory, in the President or such Minister as may be designated by him for that purpose. The Governor of each State thereby became the overlord of all land within the State, holding same in trust for the use and benefit of all Nigerians.
Consequently, irrespective of the mode of acquisition, whether by inheritance, purchase, customary grant, or long possession no individual, family, or community retains absolute ownership of land in Nigeria. What subsists in their favor is merely a right to use and enjoy the land, subject to compliance with the conditions and regulations imposed by the Governor. It is for this reason that Nigerian courts have consistently held, in a plethora of cases, that the highest proprietary interest cognizable under the Land Use Act is a right of occupancy, and not ownership[5].
The practical implication of this statutory arrangement is that a person can no longer validly assert that “this land is mine forever.” Any interest held in land is conditional, defeasible, and subject to revocation in accordance with the provisions of the Act. Furthermore, such interest cannot be freely alienated, whether by assignment, mortgage, lease, sublease, or transfer of possession, without the prior consent of the Governor. Any transaction carried out in the absence of consent is deemed inchoate and confers no legal interest until the Governor’s consent is sought and obtained. Consequently, no alienation of land interests is recognized until the Governor’s Consent is “first had and obtained[6].
Although the Land Use Act divested individuals of absolute ownership of lands existing prior to its commencement and vested such land in the Governor of the State, it did not extinguish private proprietary interests. Rather, the Act preserves individual landholding by conferring on citizens a proprietary interest known as “Right of Occupancy”[7].
Lands vested in the Federal Government or its agencies before the commencement of the Act are not affected by section 1 of the Land Use Act as Section 49 of the same Act provides that;
“Such ownership does not affect any title to land whether developed or undeveloped, held by the Federal Government or any agency of the Federal Government at the commencement of the Land Use Act and such land shall continue to be so vested in them.”
Section 51(2) further vests the power to manage and control lands vested in the Federal Government or any of its agencies and those within the Federal Capital Territory in the President or the minister designated by him to exercise such powers.
By implication, the Governor lacks the authority to grant a right of occupancy over lands vested in the Federal Government or any of its agencies, as this power lies exclusively with the President or such Minister as may be duly designated by him.
LEGAL EFFECT OF FAILURE TO OBTAIN GOVERNOR’S CONSENT
The Supreme Court in the case of Savannah Bank (Nig) Ltd v Ajilo[8] held that all transactions under which an interest in land is being transferred require the Governor’s consent for their validity, and failure to obtain such consent renders the transaction void. However, in Awojugbagbe Light Industries Ltd v. Chinukwe &NIDB[9], the Court held that, notwithstanding the phrase “without the consent of the Governor first had and obtained”, parties can lawfully execute a deed of mortgage. So long as the understanding is that the Governor’s consent shall subsequently be obtained.
The distinction between the two cases lies in the manner in which the requirement of the Governor’s consent was treated. In Savannah Bank Ltd v. Ajilo, the consent of the Governor was not sought at all, and the Supreme Court consequently held the transaction to be null and void for non-compliance with section 22 of the Land Use Act. By contrast, although the Act stipulates that such consent ought to be obtained prior to the transaction, the respondent in Awojugbagbe Light Industries Ltd v. Chinukwe sought the Governor’s consent after the transaction had been concluded, and the appellant sought to rely on this procedural lapse as a basis for invalidating the transaction between the parties, the court adopted a more equitable and pragmatic approach by holding that such transactions are not illegal but merely inchoate, and therefore enforceable in equity, so as to prevent the Land Use Act from being deployed as an instrument of fraud.
Section 28 of the Act provides that the Governor can revoke a right of occupancy for overriding public interest.
Subsection 2 of the section further provides thus:
(2) Overriding public interest in the case of a statutory right of occupancy means-
(c) the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;
Subsection (3) provides thus:
(3) Overriding public interest in the case of a customary right of occupancy means-
(d) the alienation by the occupier by sale, assignment, mortgage, transfer of possession, sub-lease, bequest otherwise requisite consent or approval.
Flowing from the above, it is evident that the requirement of Governor’s Consent applies only to the assignment, mortgage, lease, or sublease of land that is the subject of either an actual or a deemed grant under the Land Use Act. Failure to obtain the Governor’s Consent does not, in itself, automatically render the transaction or the instrument of transfer null and void where there is clear evidence that the parties validly concluded the transaction and executed the relevant instrument expressly subject to the grant of Governor’s Consent.
The implication is that the transaction remains inchoate, with no legal or proprietary interest passing to the transferee until the Governor’s Consent is duly obtained.
While the governor’s consent is indispensable for a successful alienation of land, delay or default in obtaining the consent does not affect the land instrument as the document is still useful for the following purposes[10];
(a) The instrument may be admissible in evidence to prove the existence of the transaction between the parties, although it is not admissible to prove title;
(b) The instrument is admissible in evidence to prove that the transaction had some form of consideration and not gratuitous
(c) The interest or title acquired by the grantee remains equitable until consent is granted
(d) That the transferor is holding the property in trust for the transferee;
(e) The transferor cannot escape performance of his own obligations under the transaction because the governor’s consent has not been obtained
There are however some exceptions to the consent provision. Some of these exceptions are provided for in Section 22 (a)-(c):
- Governor’s consent shall not be required to the creation of a legal mortgage over a statutory right of occupancy in favour of a person in whose favour an equitable mortgage over the right of occupancy has already been created with the consent of the Governor.
- It shall not be required to the re-conveyance or a release by a mortgagee to a holder or occupier of statutory right of occupancy which that holder or occupier has mortgaged to the mortgagee with the consent of the Governor.
- Also, consent shall not be required for the renewal of a sublease granted with requisite consent;
- Governor’s consent is not required in granting new facility so long as consent had been obtained when the first mortgage was created. Thus, in the case of Owoniboys Tech Service Ltd v U.B.N Plc[11], the Supreme Court held that Governor’s consent is not required for Up-stamping.
CONCLUSION
Governor’s Consent remains one of the most defining and consequential features of land administration under the Land Use Act in Nigeria. While conceived as a regulatory mechanism to ensure orderly land management, prevent speculative dealings, and safeguard public interest, its practical operation has had far-reaching legal and economic implications. The requirement directly affects the validity of land transactions, the security of title, and the ability of landholders to deploy land as a productive economic asset.
Although the absence of consent does not invariably extinguish the underlying transaction where parties have acted subject to consent, such transactions remain legally inchoate and incapable of conferring enforceable proprietary interests until consent is duly obtained. However, persistent administrative delays and procedural challenges have diminished its practical effectiveness, underscoring the need for reforms that balance regulatory control with efficiency, certainty, and ease of land dealings in Nigeria.
[1] A. Edison, The Land Use Act of 1978: A complete guide to property right for every Nigerian. Available at https://www.nigeriahousingmarket.com/guides/nigeria-land-use-act-guide
[2] Understanding Land Use Act in Nigeria: A comprehensive Guide, The Trusted Advisors. Available at https://trustedadvisorslaw.com/understanding-the-land-use-act-in-nigeria/
[3] The Land Use Ac, CJ Okoye lawview. Available at https://cjokoyelawview.com/law-422-land-law-ii/topic-1-non-customary-land-law-land-use-act
[4] M. Nabiebu, M.T Otu, The consent provisions under the Nigerian land use act: The equal and unequal scale of justice. Available at chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.lawjournals.org/assets/archives/2019/vol5issue4/5-4-37-445.pdf
[5] Kachalla v. Banki (2006) 8 NWLR (Pt. 982) 364, Eleran v. Aderonpe (2008) 11 NWLR (Pt. 1097) 50, Ogualaji v. A.-G., Rivers State (1997) 6 NWLR (Pt. 508) 209, Abioye v. Yakubu (1991) 5 NWLR (Pt.190) l30 at 223
[6] Section 22 Land Use Act
[7] ibid
[8](1989) 2 NWLR (Pt. 57), P. 421.
[9] (1995) 4 NWLR (pt. 390) 379.
[10] S. Udemezue, Delimiting the Governor’s Consent Requirement in Land Transactions in Nigeria in Light of the Current Judicial Intervention Over Savannah Bank v. Ajilo(Part 2), African Journal of Law and Human Right (AJLHR)(8)12024.Availableat https://journals.ezenwaohaetorc.org/index.php/AJLHR/article/view/2866
[11] (2003) 15 NWLR, (Pt 844) @ P. 545