By Omogbolahan Sheba Esq.
Land as a free gift of nature is of intrinsic value to the Nigerian people, as it signifies cultural heritage, economic, social and political strength.
This paper seeks to explain theinherent rights of Nigerians to transfer interest in Land withoutthe need of obtainment of the Governor’s consent as is contained inSection 22 (1) of the Land use Act.
Section (1) of the Land use Actstates;
‘’Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Act’’.
At the end of this paper, the reader is able to understand in details the decision of the Supreme court as held in the case of Ibrahim v Obaje on whether obtaining the Governor’s consent is necessary before transferring, conveying, alienating or divesting interest in land.
Going by the provisions of Section 22 (1) of the Land use Act, it states clearly the necessity of obtaining the consent of the governor before transferring interest of title to land. The provision of that section states thus;
- 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 howsoever without the consent of the Governor first had and obtained.
In understanding this section, one averts its mind to the word ‘’Consent’’ that for any interest in land to rightfully pass from Point ‘’A’’ to ‘’B’’ the consent of the Governor is necessary to be obtained.
This wasthe position in the decided case of HARUNA v. YARO 2016 LPELR 41554 (CA), where the court held that;
‘’ On the issue of Governor’s consent, it is correct that the combined effect of Sections 22 and 26 of the Land Use Act is to render null and void any alienation or transfer of a right of occupancy or interest or right there under without the consent of the Governor first had and obtained’’ – Also See Savannah Bank of Nigeria Plc Vs Ajilo (1989) 1 NWLR (Pt 97) 309,
This reaffirms the provision of Section 22(1) that renders null and void any alienation of land or transfer without obtaining the consent of the governor. The provisions of Section 26 further give strength to this section it states;
‘’Any transaction or any instrument which purports to confer on or vest 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 light of the above discuss that ultimately seeks to render null and void any conveyance of land without the obtainment of the Consent of the Governor. As a result, it becomes expedient to explain the Supreme Court decision in Ibrahim v Obaje.
BRIEF FACTS OF THE CASE:
The matter is an appeal against the decision of the Court of Appeal, Abuja division delivered on the 19th day of January, 2005 dismissing the appellant’s appeal from the High Court of Justice, Abuja.
The Respondent then plaintiff issued a writ of summons against the appellants, then defendants at the High Court of Justice, Abuja on the 7th day of March 2001 claiming the following reliefs:
- Declaration of title over plot F96 in his favour.
- An order of perpetual injunction restraining the Defendants/Appellants and their servants, agents and privies from and further trespass to the land.
iii. N1,600,000 (One million, Six Hundred Thousand Naira) special damages and listed are the items of the damages and value.
Also claimed is interest on the judgment sum at the current bank rate until the judgment is delivered and thereafter at such rate and for such periods as the Court should think fit. From the statement of claim, the plaintiff/Respondent asserted that he was the owner of the landed property known and described as Plot F96, and Dutse Alhaji, Abuja and that he also had possession of the said parcel of land; that he bought the Plot from the former owner, Mr. Otitoju Bonte who conveyed title to him, (Respondent) by virtue of an irrevocable Power of Attorney dated 19th October, 2000 given for value; that the said Plot F96 Dutse Alhaji is covered by a Certificate of Occupancy No. FCT/M2TP/OD/276 of 15th June, 1995 granted by Bwari Area Council; that a building plan for development of the plot was applied for and approved, by the Supervisory Authority.
It was alleged further that the respondent commenced development on the plot with the initial structure totally completed; that while construction was on, the Defendants/appellants trespassed into the construction site, harassed the workers and disrupted the work. When these acts did not deter the work, the appellants got police who ordered the workers of the Respondent to stop work. In the absence of the workers the Appellants got into the plot and destroyed the concrete structure and a report of this destruction was made by Respondent to the police and hence the suit filed before the High Court.
All the appellants as defendants in their joint statement of defence denied all the allegations levied per the plaintiff’s claim. They emphasized further that the plaintiff was not entitled to his claims which should be dismissed in its entirety as it is fraudulent, vexatious and frivolous. The learned trial judge however found for the Plaintiff/Respondent and made far reaching orders in accordance with the claim of the Respondent. An appeal lodged to the Court of Appeal by the appellant was unsuccessful and dismissed. The appellants were dissatisfied again with the judgment of the Court of Appeal hence their appeal to the Supreme Court.
The Appellants in their brief of argument raised Four issues for determination, however we are more concerned with the fourth issue of determination which conspicuously bothers on this discuss;
- Whether the consent of the Minister of Federal Capital Territory is not necessary before the title of the property in contest in this case could be said to have been validly passed to the Respondent. (raised suo motu).
In answering this issue, the Supreme court carefully was of the contention that resort must be made to the preamble to the Land Use Act 1978 which was largely drawn from the (Minority report of the Land use Panel set up in May 1977), which states;
‘’Whereas it is in the public interest that the rights of all Nigerians to the land of Nigeria be asserted and preserved by law. And whereas it is also in the public interest that the right of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured protected and preserved.”
The Learned Justices in explaining the implication of these, were of the view that the intendment of the Land use Act was for Nigerians to have unfettered enjoyment to their property and also enjoy the fruits thereof. Instructively explaining what the term ‘’Enjoyment of the Land, and Fruit thereof’’ means, the Supreme court explained that it should be given it’s simple and literal interpretation, which can be ‘’ houses, installations in minerals and plants’’.
The Supreme court concurring with the argument of the Respondent, explained that relying on the provisions of Section 22 (1) of the Land Use Act, on the obtainment of the Governor’s Consent would amount to limiting and denying a person’s right to use and enjoyment of the fruits of the Land thereof. Therefore, in a non-contentious transaction or alienation, where it involves two private individuals and there is no existing overriding interest, the consent of the Governor is not needed to be obtained.
The Supreme court further explained that in interpreting a Law like the Land Use Act, recourse must be made to the intendment of the drafters of the Act, which in most cases is the preamble to the Act.The Supreme court Per Karibi-Whyte in the decided case of Abioye v Yakubu (1991) LPELR -46 (SC) stated;
“…in construing a law like the Land Use Act, it is always of considerable assistance to consider the history and also purpose of the law as enshrined in its preamble, and if possible, the social objectives …the intention of the Act as clearly stated is to assert and preserve the rights of all Nigerians to the land of Nigeria in the public interest. It is also in the public interest that the right of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof to sustain themselves and their families should be assured, protected and preserved.”
In light of the Supreme court decision in Ibrahim v Obaje, one is constrained to accepting the idea that the consent of the Governor is not necessary in the transfer of interest in land, this position is however subjected however to two validity tests which are;
1.Whether the transaction is non contentious and between private individuals.
2.Whether the transaction overrides public interest.
To my mind, private individuals by every intent and purpose are natural persons who act on behalf of themselves and not any company, organization or firm. When alienation of interest in property is made between such individuals without the ownership of the property or its title being in contention, or as such parties not being dispute as to the ownership of the property, the consent of the governor will not be required.
On the second fundamental issue, on whether the transaction does not override public interest. The provisions of Section 28 (1) of the Land Use Act, lists the grounds at which the Statutory Right of occupancy can be revoked on the altar of ‘’Overriding public Interest’’.
(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a statutory right of occupancy means-
(a) 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;
(b) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation.
(c) the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
Where in this case the transaction falls short of what is spelt out in Section 28(1) of the Land use Act, such transaction as a matter of authenticating its legality requires the governor’s consent.
It is important to note however that although the consent of the governor is not necessary before an interest in land can be alienated, the governor in many cases still bears the yam and the knife, considering the provisions of Section (1) of the Land use Act which vests all lands in the governor and the provisions of Section 28(1) that empowers the governor to revoke such interest in land for overriding public interest. As a matter of fact, the governor could grant consent and still at the governor’s behest revoke such consent. The implication of this is that even though we ostensibly bypass the requirement of obtaining the governors consent, we still find ourselves running in the maze. What has simply been averted in the case of Ibrahim v Obaje is the fact that not obtaining the governors consent, does not in any way render a conveyance void, but does not preclude the governor from waking up from the wrong side of the bed and revoking a Statutory Right of Occupancy of already granted.
In conclusion, we have been able to discuss the validity of the alienation of interest in land without the necessity of obtaining the consent of the governor as is the position in the case of Ibrahim v Obaje. The courts have in subsequent cases ruled in favor of this position as was the situation in the Court of Appeal decision in of Haruna v Walli & Anor (2019) LPELR – 4776 (CA). This was also the position in the most recent decision of the High court in Daniel K. Kip v The Cross-River State Government & 3 Others suit number – Hc/401/2019.
Citation: Ibrahim V Obaje (2017) LPELR -43749 (SC)
Omogbolahan Sheba Esq, writes from Abuja, Nigeria and Partner at Mobile Law. Contact: firstname.lastname@example.org, Phone No: 07039075997