The land tenure system in Nigeria was revolutionized in 1978 with the enactment of the Land Use Act (“LUA”). Under the LUA, all land within the territory of each state (except land vested in the Federal Government or its agencies) now belongs to the Governor of the State, who holds it in trust for the citizens of the State.

Pursuant to article 22 of the LUA, the alienation -by the holder of a legal right of occupation granted- of his right of occupation by assignment, mortgage, transfer of possession, sublease, etc. is prohibited without the consent of the Governor (had and obtained first). 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), Judge Nnamani JSC stated that:

“Every holder of a right of occupancy, whether statutory or not, is deemed to have received the right from the Military Governor or Local Government, as the case may be, for the purpose and control of the administration of all lands comprised in Accordingly, each holder, whether under sections 5, 34 or 36 of the Land Use Act, requires the prior consent of the Military Governor before he can transfer, mortgage or otherwise dispose of his 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 any or all of the powers conferred on the governor by the LUA, including the power to grant consent. However, problems may arise when the official transmitting or granting consent has done so under the Governor’s delegation. This problem usually occurs when the deputy State Commissioner does not give consent, but a lower official in the ministry (Ag. Chief Lands Officer, 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 given to the two legal mortgage deeds was inconsistent with the provisions of the LUA as it was not given by the Governor or the State Commissioner but by the Chief Ag Land Officer of Kwara State. In annulling the consent granted, the Court held that,

“Since the person who signed was not the Governor’s deputy, it would be a mistake to assume that the signature of the Principal Ag Land Officer on Exhibit D1 cannot be viewed as substantially compliant with the signature of the Governor or his deputy, the Commissioner Land and Housing”.

In view of the previous decision of the Supreme Courts 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 approval for the consent of a mortgage (in relation to land covered by a legal right of occupancy) is to be granted, the Governor or his deputy signs the letter of grant do you agree