ALIENATION OF CERTIFICATE OF OCCUPANCY
1.0 INTRODUCTION.
2.0 OBJECTIVE
MAIN CONTENT
EFFECT OF ALIENATION OF RIGHT OF OCCUPANCY WITHOUT GOVERNOR’S CONSENT.
3.2. ASSIGNATION OF GOVERNOR’S DUTY TO SIGN LETTER GRANTING CONSENT
BURDEN OF PROOF OF VALIDITY OF CONSENT
PENAL SANCTIONS
3.5. JURISDICTION OF COURT
4.0 CONCLUSION
5.0 SUMMARY
6.0 TUTOR MARKED ASSIGNMENT / SUGGESTED ANSWER
7.0 SUGGESTED FURTHER READING / REFERENCES STATUE
ALIENATION OF CERTIFICATE OF OCCUPANCY
INTRODUCTION.
The general intendment of the Land Use Act is to expressly vests title, management and control of the use of land in the Governor and regulate the interest of the land holder by prescribing consent to alienate in all cases which involve subsequent transaction in land covered by a right of occupancy.
OBJECTIVE
The objective of this unit is to acquaint students with the requirement of obtaining of the consent of the Governor of the state where the land is located as a procedural necessity for the conferment of a valid title in land under the Land Use Act and expose them to the requisite application for consent form.
MAIN CONTENT
By operation of law every holder of a right of occupancy, whether statutory or otherwise is regarded as having been granted the right by the State Government or Local Government for the purpose of control and management of the said land.
The holder of a right of occupancy pursuant to section 5, 34 or 36 of the land use Act requires the prior consent of the Governor before he can transfer, mortgage or otherwise dispose of his interest in the right of occupancy. Section 21 of the Land Use Act 1978 provides that it shall not be lawful for any customary right of occupancy or any part of it to be alienated by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor in cases where the property is to be sold by or under the order of any court under the provisions of the applicable Sheriffs and Civil Process Law or in other cases without the approval of the appropriate local Government. It is similarly provided by section 22 of the land Use Act 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, transfer of possession , sublease or otherwise however without the consent of the Governor first had and obtained.
Section 23(1) also provides:
A sub-lease of a statutory right of occupancy may with the prior consent of the Governor and with the approval of the holder of the statutory right of occupancy demise by way of sub-under lease to another person the land comprised in the sublease held by him or any portion of the land.
By the tone and tenor of this provision, it is clear and unequivocal that the provision is mandatory. It makes the obtaining of the Governor’s consent a pre condition for the validity of any alienation of a right occupancy under the land Use Act 1978. Although there is no time limit to the obtaining of the consent, before the alienation can be valid or confer the desired right on the party intended to benefit from it, the consent of the Governor is mandatory. It does not by any means make the transaction without the requisite consent inchoate. It makes it invalid until consent is obtained.
Section 22 (2) of the Land Use Act takes cognizance of cases where some form of written agreement executed in evidence of a transaction is submitted to the Governor in order to obtain his consent as required by the section. e.g for a transaction in the nature of conveyance to be valid the parties to it must first enter into a binding agreement to alienate subject to the consent of the Governor. It is that consent that vests a valid title on the purchaser. See savannah bank of Nig. Ltd & anor. V Ammiel. O. Ajilo & anor (1989) ANLR 26 and C.C.C T.C.S Ltd v Ekpo (2008) 6 NWLR (PT 1083) 362
EFFECT OF ALIENATION OF RIGHT OF OCCUPANCY WITHOUT GOVERNOR’S CONSENT.
The consequence of the unlawful act of alienating a right of occupancy without the requisite consent of the Governor is stated in section 26 of the land use Act 1978 as:
any transaction or any instrument which purports to confer on or vest in any person any interest or right over hand other than in accordance with the provisions of this Act shall be null and void.
As observed by Unsworth F. J in Solanke v Abed (1962) 1 ANLR 230, where a statute not only declares a contract or transaction void but imposes a penalty for making it the contract is not merely void but is also illegal.
The use of the word “shall” makes compliance with the provision mandatory and not directory or discretionary.
In Awojugbagbe light Ind. Ltd v Chinukwe (1995) 4 NWLR (PT 390) 379 the supreme court held that the mandatory provision of section 22 (1) does not prohibit the holder of a statutory right of occupancy 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. It does not cover any transaction which effectively purport to enable an assignee, mortgagee or sublessee of the right of occupancy to exercise his rights thereunder without the prior consent of the Governor. However, such an agreement becomes inchoate until the consent of the Governor is obtained after which it can be said to be complete and fully effective.
See also section 23 (1) of the Land Use Act which provides that: a sublease of a statutory right of occupancy may with the prior consent of the Governor.
In P.I.P Ltd v Trade Bank (Nig) Plc (2009) 13 NWLR (PT 1159) 577,
the 2nd Respondent attempted to sell the property charged under the mortgage transaction between it and the appellant without the prior consent of the Governor having first had and obtained. The court held it was attempting the impossible in view of the absolute prescription of section 26 of the Land Use Act.
ASSIGNATION OF GOVERNOR’S DUTY TO SIGN LETTER GRANTING CONSENT
Section 22 of the Land Use Act postulates that the Governor shall sign the letter granting consent. In a situation where the Governor cannot give the consent himself. Section 45 of the Land Use Act provides that:
- The Governor may delegate to the state commissioner all or any of the powers conferred on the Governor by this Act subject to such restrictions, conditions and qualifications not being inconsistent with the provisions or general intendment of this Act as the Governor may specify
- Where the power to grant certificate has been delegated to the state commissioner such certificates shall be expressed to be granted on behalf of the Governor
In U.B.N. PLC v Ayodare & Sons (Nig) Ltd (2007) 13 NWLR (PT 1052) 567, where the letter of approval for consent was not written by the commissioner of Lands but by an Acting Chief Lands Officer of the Ministry, the Supreme Court held that it negatively affected the validity of the mortgage since for a letter of approval consent to fulfill the consent provision of section 22 of the Land Use Act must be written and signed by the commissioner for Lands as the Governor’s delegate and not a mere officer of the ministry as the exercise of such authority by him was inappropriate
Section 45 (1) of the Land Use Act only gives a Governor the power to delegate the authority granted under the Act. There is no corresponding power of delegation granted to the Local Government Samples of forms for subsequent transactions for Statutory Rights of occupancy and Customary Rights of occupancy are as indicated in samples 1, 2 and 3
BURDEN OF PROOF OF VALIDITY OF CONSENT
The burden of proving the invalidity of consent as recognized by the Land Use Act lies on the Plaintiff who alledges that there was no valid consent granted for the subsequent transaction. This is in consonance with the evidential burden placed on the Plaintiff to the effect that he who asserts must prove.
PENAL SANCTIONS
The Land Use Act criminalized the subdivision and laying out in plots in excess of that granted by a right of occupancy without the prior consent in writing of the Governor. See section 34 (7) of the Land Use Act.
Any instrument purporting to transfer any interest in land in contravention of section 34(7) was declared null and void and of non effect. Any part to such instrument was guilty of an offence and liable on conviction to a term of imprisonment for one year or a fine of N5, 000. see section 34 (8)
Where the land is situated in a non urban area, any instrument purporting to transfer any land shall be void and of no effect whatsoever and every party to any such instrument was guilty of annoffence and on conviction be liable to a fine N5,000 and imprisonment for one year.
JURISDICTION OF COURT
The High Court was conferred with exclusive original jurisdiction in respect of proceeding relating to any land which was the subject of a statutory right of occupancy granted by the Governor including deemed grants as well as proceedings for a declaration of title to a statutory right of occupancy
See section 39 (1) (a) where the proceedings relate to customary right of occupancy granted by a Local Government under the Land Use Act, an area court or customary court or other court of equivalent jurisdictions was conferred with the jurisdiction to determine issues relating to the grant of a customary right of occupancy
see section 41 of the Land Use Act.
CONCLUSION
The consent provisions of the Land Use Act is evidently to control land development and land acquisition with a view to ensuring that the vesting of the control and management of land in a State in the Governor of a state is not eroded.
SUMMARY
- Section 21 and 22 of the Land Use Act prohibits the alienation of a certificate of occupancy by the occupier of land by assignment, mortgage, transfer of possession, sublease or otherwise either wholly or partially
- The Land Use Act mandates every such subsequent transaction in land to be with the consent of the Governor first had and obtained by virtue of section 21(a) section 22, and 23 (1) of the Land Use Act.
- The Governor is empowered to delegate his powers to grant consent to alienate land to the state commissioner who can validly grant the requisite consent
- The Land Use Act criminalizes any subsequent transaction in land without the requisite Governor’s consent and an offender is liable on violation to a term of imprisonment of one year or N5,000 fine. See section 34 (8) and section 36 of the Land Use Act
- The High Court of the state is conferred with original jurisdiction to entertain issues relating to land which is subject to a grant of a statutory right of occupancy that is located in an urban area. Area courts or customary courts or courts with equivalent jurisdiction are conferred with jurisdiction to adjudicates on issues arising from land covered by customary right of occupancy. Sections 39 and 41 of the Land Use
TUTOR MARKED ASSIGNMENT
- Analyse the effect of alienation of land without Governor’s consent under the Land Use Act
SUGGESTED ANSWER
See section 26 of the Land Use Act 1976 and the cases of:
- Awojugbagbe Light Industry Ltd v Chinukwe (1995) 4 NWLR (PT 390) 397
* C.C.C. T.C.S Ltd v Ekpo (2008) 6 NWLR (PT 1083) 362
- Olalomi Ind. Ltd v NIDB Ltd v N.I.D.B. Ltd (2009) 16 NWLR (PT 1167) 266
SUGGESTED FURTHER READING / REFERENCES
NIKI TOBI Cases and Materials on Nigerian Land Law (Lagos: Mabrochi Books, 1997)
J.A Omotola ed. The Land Use Act, Report of a National Workshop (Lagos: Lagos University Press, 1986)
STATUTE
The Land Use Act 1978.