Why Your Certificate of Occupancy Might Be Worthless Without One Signature
By Oravbiere Osayomore Promise, LLB.
It is perhaps the most litigated, most cursed, and most misunderstood provision in Nigeria’s land law arsenal. Section 22(1) of the Land Use Act, Cap L5, Laws of the Federation of Nigeria, 2004, provides that “it shall not be lawful for the holder of a statutory right of occupancy 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.” On its face, the provision appears clear, even peremptory. Yet, after nearly five decades of judicial interpretation, the consent clause remains a fertile ground for litigation, confusion, and, dare I say, judicial acrobatics. The question that continues to haunt practitioners, bankers, and landowners alike is simple: what happens to a transaction entered into without the Governor’s consent? Is it void ab initio, voidable, or merely unenforceable until consent is obtained? The Supreme Court has spoken, and spoken, and spoken again. But the echoes have not produced a consistent melody.
The trouble began in earnest with the landmark decision of the Supreme Court in Savannah Bank of Nigeria Ltd v. Ajilo (1989) 1 NWLR (Pt. 97) 305. In that case, the court, per Nnaemeka‑Agu JSC, held that any transaction that requires the Governor’s consent under Section 22 is not void but merely inchoate; it becomes enforceable only upon the subsequent grant of consent. The learned justice argued that to declare such transactions void ab initio would be to defeat the commercial expectations of parties who had acted in good faith. That decision was hailed by commercial lawyers as a pragmatic intervention. But pragmatism, as every first‑year law student learns, is not always the handmaiden of legal certainty.
Barely a decade later, the Supreme Court appeared to row back. In Ogunleye v. Oni (2000) 6 NWLR (Pt. 659) 113, the court held that a mortgage executed without the Governor’s consent is null and void and cannot be validated by subsequent consent. The decision sent shockwaves through the banking industry. If a mortgage was void, then a bank could not appoint a receiver or exercise any power of sale, even if the debtor had defaulted. The commercial consequences were catastrophic. Yet, in C.B.N v. Interstella Communications Ltd (2018) 7 NWLR (Pt. 1618) 213, the Supreme Court, in a remarkable display of institutional memory loss, reverted to the Savannah Bank position, declaring that a transaction without consent is not void but merely voidable and can be regularised by subsequent consent. The court even went further to suggest that a purchaser who pays full value and takes possession may acquire an equitable interest that a subsequent consent can perfect.
What, then, is the law today? The short answer is that there is no short answer. The long answer is that Nigerian courts have consistently failed to distinguish between the legal effect of a transaction on the parties inter se and the effect on third parties, particularly the Governor who holds the radical title. It is submitted that the better view is that a transaction entered into without the Governor’s consent is not void ab initio as against the contracting parties, but it is void as against the State. The State cannot be bound by a dealing in land that it has not sanctioned. However, as between the vendor and the purchaser, or the mortgagor and the mortgagee, the transaction should be treated as valid but inchoate — a contract that is capable of being performed if and when the impediment (lack of consent) is removed. This is the position that best respects the dual nature of interests under the Land Use Act: the radical title in the Governor and the right of occupancy in the holder.
The legislature, having watched the judiciary twist itself into knots, has done nothing. The Land Use Act remains unamended. The consent clause remains a bottleneck, a source of corruption, and a deterrent to investment. The writer respectfully suggests that Section 22 be amended to provide that consent is not required for any transaction in land except the transfer of the entire right of occupancy to a third party. Mortgages, leases for terms not exceeding ten years, and transfers by operation of law should be exempted. Alternatively, the requirement of consent should be replaced with a simple registration requirement: the transaction must be registered with the Land Registry within ninety days, failing which it shall be void as against any subsequent bona fide purchaser for value. This would remove the discretion of the Governor (or his delegate) and replace it with a clear, time‑bound, administrative procedure.
Until such reforms are made, the prudent lawyer must advise his client that any transaction in land subject to a statutory right of occupancy carries a risk. The risk is not that the transaction is necessarily void, but that its enforceability may be contested if the Governor refuses consent. The safest course, therefore, is to obtain consent before completion. Where that is impossible, the parties should enter into a conditional agreement that is explicitly made subject to the obtaining of consent, with a long stop date. The deposit should be held in escrow. Possession should not be handed over until consent is granted. These precautions may be inconvenient, but they are the price we pay for living under a statute that has been called many things — revolutionary, controversial, and, as one commentator put it, “a curse masquerading as a blessing.”
In the final analysis, the consent clause of the Land Use Act is not merely a legal technicality; it is a reflection of the unresolved tension between state control and individual enterprise. Until the law is reformed, the courts will continue to struggle, and the litigants will continue to suffer. As the great legal philosopher once said, the life of the law has not been logic; it has been experience. In Nigeria, the experience of the consent clause has been one of confusion, delay, and despair. It is time for logic to have its day.
📩 Stone Reporters News | 🌍 stonereportersnews.com
✉️ info@stonereportersnews.com | 📘 Facebook: Stone Reporters News | 🐦 X (Twitter): @StoneReportNew | 📸 Instagram: @stonereportersnews
Add comment
Comments