A CRITICAL OVERVIEW OF THE CONSENT PROVISIONS UNDER THE LAND USE ACT, 1978.

(Law)

A CRITICAL OVERVIEW OF THE CONSENT PROVISIONS UNDER THE LAND USE ACT, 1978.

ABSTRACT

The Land Use Act as a single piece of legislation which came into force on 29th. March, 1978 has generated more controversy than any piece of legislation of its kind. The sore point of this enactment is the consent requirement provided under the Act especially Sections 21 and 22 therein.

Ever since the consent requirement of the Land Use Act made its first debut in our courts for interpretation in the case of Savannah Bank V. Ajilo(1989) 1 NWLR(pt.97) 305, much juristic ink has been expended in debate for or against the usefulness of the provisions. Judges, in their duty of interpreting the provision have sung incoherent and discordant notes on the issue. Some writers too, have tried to either show support for its relevance or call for its repeal or amendment.

However, the convergent point in this contentious issue of the consent requirement is the retrogression and retardation, which the requirement, has continued to inflict on the socio-economic life and development of the country. This project work x-rayed the difficulties associated with, and incidental to the strict implementation of the consent requirement with their attendant legal, socio-economic and developmental dysfunction. Moreover it reviewed the current Amendment Bill before the National Assembly while unattended areas were highlighted, which, if not taken care of, may resonate another call in no distant future for a further amendment.

TABLE OF CONTENT        

Chapter One: SYSTEM OF LAND TENURE IN NIGERIA        
    BEFORE THE LAND USE ACT, 1978.        
1.1    Introduction        
1.2    Customary Land Tenure        
1.3Land Holding under the Received English Law        

1.4    The Consent Requirement in Retrospect

1.4.1    Meaning and Nature of consent Requirement    
1.4.2    Consent Requirement in Retrospect    
Chapter Two: THE LAND USE ACT, 1978.    
2.1    Historical Review    
2.2    Objectives of the Act viz a viz the consent requirement    
2.3    Scope of the Consent Requirement under the Act    

2.4    Analysis of the Consent Provisions on:

2.4.1    Sale of Land    
2.4.2    Mortgages    
2.4.3    Leases    
2.4.4  Devolution of Interest in Land    
Chapter Three: THE CONSENT REQUIREMENT- A CRITICAL VIEW
3.1    Legal effects    
3.2    Socio-economic effects    
3.3    Implementation problems    
3.4    Other consequences    

 

Chapter Four: THE NEED FOR REFORM

4.1    A review of the Amendment Bill, 2009 before the National

    Assembly    
4.2    Suggested Reforms    
4.3    Conclusion    
Bibliography.

LIST OF ABBREVIATIONS

 


J.C.A    Justice of the Court of Appeal of Nigeria

Anor    Another

C.A    Court of Appeal

J.S.C    Justice of the Supreme Court of Nigeria

L.U.A    Land Use Act, 1978

N.W.L.R.    Nigeria Weekly Law Report

W.A.C.A.    West African Court of Appeal

S.C.    Supreme Court of Nigeria

S    Section

Ss    Sections

All E.R.    All England Law Reports

N.R.N.L.R.    Northern Region of Nigeria Law Report

N.L.R.    Nigeria Law Report

Ors    Others

S.C.N.J.    Supreme Court of Nigeria Judgments

Supra    Above cited

V.    Versus (and)

ANLR    All Nigeria Law Reports

P    Page

Pt    Part
Op.cit    Cited opposite (in the book cited earlier)

F.S.C    Federal Supreme Court of Nigeria

Ibid    in the same place
TABLE OF STATUTES

Interpretation Act, Cap 89, LFN, 1958.

Land & Native Rights Act NO 1, 1916 & 1918. Land Registration Act, 1924.

Land Tenure Law, 1962.

Land Use Act (Amendment) Bill, 2009. Land Use Act, Cap L LFN, 2004. Mortmain & Charitable Uses Act, 1888. Native Lands Acquisition Act, 1917

Native Rights Proclamation & Ordinance, 1916.

Property & Conveyancing Law, Cap 100, Laws of Western Nigeria, 1959. State Land Act, 1916

Statutes of Frauds, 1677.
TABLE OF CASES    
CASE    
Abina V. Farhat(1938) 14 NRL 17    
Abioye V. Yakubu(1991) SCNJ 69    
Abdurahahman V. Oduneye & Ors(2009)    
Adedibu V. Makanjuola(1944) 10 WACA 33    
Adewujui V. Ishola(1958) WRNLR 110    
Adetuji V. Agbojo(1997) 1 NWLR(pt.848) 705    
Agbole V. Sappor(1947) 12 WACA 187    
Alao V. Ajam(1989) 6 SCNJ 243    
Amodu Tijani V. Secretary of Southern Nigeria(1921) 2 A.C.399    
Archibong V. Archibong(1947) 18 NLR 117    
Ariori V. Elemo(1933) ECNLR 1    
Awojugbagbe Light Industries Ltd V. Chinukwe(1995) 4 NWLR    
(pt. 390) 379.    
Baba V. Jibrin(2004) 16 NWLR(pt. 899) 249    
Brosette Manufacturing (Nig) Ltd V. M/S Ola Ilemobola Ltd    
(2007) 14 NWLR(pt. 1054) 109    
Calabar Central Co-operative Thrift & Credit Society V. Bassey    
Ekpo(2008) 1-2 SC 229    
Dahiru V, Kamale(2005) 9 NWLR(pt.929) 8    
De Facto Bakeries & Catering Ltd V. Ajilore & Anor(1974)    
NSCC 569    
Ekpendu V. Erika(1959) 4 FSC 79.    
Etim V. Butt(1997) 11 NWLR(pt.527) 71    
Eyamba & Ors V. Koure(1937) WACA 186.    
Federal Mortgage Bank V. Akintola(1998) 4 NWLR(pt. 545) 327    
Foko V. Foko(1965) NMLR 5    
Harry V. Martins(1949) 19 NLR 42    
Kachalla V. Banki & 2 Ors(2006) 2-3 SC 14    
Kosoko V Kosoko(1937) 13 NLR 131    
Kwino V. Ampong(1952) 14 WACA 250    
Lopez V. Lopez(1924) NRL 50    
Mcfoy V. U.A.C. Ltd(1961) 3 A.E.R. 119    
Mohammed V. Abdulkadir(2008) 4 NWLR(pt.1076) 119    
Nkwocha V. Governor of Anambra State(1984) 1 SC 634.    
Nwokoro V. Nwosu(1990) 4 NWLR(pt.129) 679.    
Odekilekun V. Hassan(1997) 12 NWLR(pt.531) 56    
Ogunbambi V. Abowab(1951) 13 WACA 222    
Ogunmefun V. Ogunmefun(1931) 10 NLR 82    
Okonkwo V. C.C.B. (Nig) Plc(1997) 6 NWLR(pt.507) 48    
Olowu V. Desalu(1955) 14 WACA 662    
Omozeghian V. Adjarho & Anor(2006) 4 NWLR(pt.969) 33    
Pharmatek V. Trade Bank Ltd(2009) 13 NWLR(pt.1159) 577    
Sam Warri Esi V. Moruku(1940) 15 NLR 116    
Savannah Bank V. Ajilo(1987) 2 NWLR(pt.57) 421    
Secretary LTC V. Soule(1939) 15 NLR 72    
Solanke V. Abed & Anor(1962) NRNLR 92    
Ugochukwu V. C.C.B. Ltd(1996) 6 NWLR(pt.456) 524    
Union Bank 9Nig) Plc V. Ayodare & Sons (Nig) Ltd & Anor    
    
CHAPTER ONE
INTRODUCTION

Human society the world over is heavily dependent on Land and its resources. It is not an overstatement to say that without land there would be no human existence. This is because it is from land that man gets items very

essential for his survival such as food, fuel, clothing, shelter, medication and others1

In the words of Omotola,

“Every person requires land for his support, preservation

and, self actualization within the general ideals of the society. Land is the foundation of shelter, food and employment. Man lives on land during his life and upon his demise, his remains are kept in it permanently. Even where the remains are cremated, the ashes eventually settle on land. It is therefore crucial to the existence of the individual and the society. It is inseparable from the concept of the society. Man has been aptly described as a land animal.”2


Global recognition of the relevance of land to the life of man can be gleaned

from the proceedings at the United Nations conference on Human settlement

(Habitat II), 1996, where many countries committed themselves to

 

“promoting optimal use of productive land in urban and rural areas and protecting fragile ecosystems and environmentally vulnerable areas from the negative impacts of human settlements, inter alia, through developing and supporting the implementation of improved land management practices that deal comprehensively with potentially competing land requirements for agriculture, industry,

 

1    Datong, P.Z.: “The role of State Government in the Implementation of the Land Use Act in The Land Use Act Administration and Policy Implication (ed.) by Olayide Adigun, Unilag Press, 1991, P.64.

2    Omotola, J.A. (Prof.) Law and Land Rights: Whither Nigeria,Uinlag, Akoka, Inaugural lecture series
 

1988 P.6
 

transport urban development, green space, protected areas and other vital needs.”3

It is this importance of land to man and the society that influenced the state intrusion into property legislation in order to ensure adequate and efficient management technique for the benefits of the greatest number of the members of the society.

The Land Use Act which is the umbrella statute, under which the consent requirement is to be critically analyzed in this work, was promulgated by the Obasanjo administration in 1978 to address this importance of land to mankind, and therefore provide viable management options to land administration in Nigeria. This salient fact is borne out of the preamble to the Act. Consequently, section one of the Act vests ownership of all land within the territory of a state in the Governor of the state who will in turn administer such land for the benefit of all Nigerians.

As an incidence of the vesting of the radical title in the Governor, sections 7, 15(b) 21, 22, 23(1), 24(b), and 34(7) provide for the Governor’s consent (or LG’s approval in relevant cases) to be sought and obtained before a holder of a right of occupancy can alienate his whole or part of his right thereof by way of assignment, transfer of possession, sublease or otherwise howsoever. These provisions have attracted a lot of comments and criticisms from various learned authors and the law courts with a near

3    See Declaration of United Nations Conference on Human settlements available at www. un. Org/Conference/habitat II
 

unanimous call for their amendments to suit, in practicality, the noble intendments of the Act.

This, no doubt has evoked my interest to delve into this contentions area of the Act with a view to critically appraise this thorny issue of the consent requirement. However, I must concede that this project work is not the first on this issue. It is, in fact, a part of a continuing discourse on land management and reforms in Nigeria. But this critical appraisal may be regarded as a bold attempt on the issue, coming after the Amendment Bill might have been presented before the National Assembly. It is intended therefore, to in addition, highlight those areas of the consent requirement which seems to have been ignored by the Bill, while urging the national assembly to expeditiously save Nigerians from the stranglehold of this consent requirement of the Land Use Act.
 
SYSTEM OF LAND TENURE IN NIGERIA BEFORE THE LAND USE

ACT, 1978

 


1.1    INTRODUCTION

It is necessary to understand the antecedents that have led to the current

state of land administration and the agitation for reforms. Hence, the essence of this chapter is to review the system of land tenure in Nigeria before the Act in 1978.

Land is one of the three major factors of production; capital, Labour and land. It is a generally held belief that the use and control of land as a productive asset requires the establishment of a legal and institutional framework for land management. But that framework has exercised very little influence in Nigeria on the way property rights to land have developed over the years. This is largely due to strong feelings which the subject of land evokes. The reasons for this are not far fetched. First, the supply of land is virtually fixed yet it is required to provide security (either productive, investment or both) in such forms as food shelter as well as a base for the rapid transformation of the Nigerian economy. Secondly, land management in Nigeria comprises a multitude of irregular units in the ownership use and management by different individuals, corporate bodies and even the state. The major decision taken by these groups have implications
 

not only for the other groups but also society at large. Thirdly land is the focus of much wealth, power and status. Indeed, the current concern in the use of land as a vehicle for investment gain as well as a hedge against inflation under condition of economic turbulence, points to the centrality of land in present day Nigeria, and more importantly how it is managed.

In considering this topic, I shall first discus the customary land tenure, that is to say, the practice before the coming of the British Colonialists to Nigeria. This will be followed by the system operational with the colonialisation of Nigeria. The chapter will be capped with an examination of the consent requirements in the stages of land management developments afore-mentioned. It is intended that this chapter will serve as a basis for the discussion of the existing land use management policy, the land use Act of 1978 under chapter two.

1.2    CUSTOMARY LAND TENURE

Land in its most legalistic of senses is under customary law owned not by

man but by his creator. This is an overriding principle guiding all types of customary land tenure in Nigeria.4 Men merely have use and occupation thereof and any abuse must be remedied by propitiatory sacrifices.


1. Adedipe, Olawoye & Okediran; Rural Communal tenure regimes and Private Landownership in

Western Nigeria available at  www.fao.org/ed/ltdirect/LR972/w6728t14.htm, accessed on 23-10-2009 at 23.10GMT.
 
This right of use belongs primarily to the ancestors, but is also for the living and

the future generations2. According to the Eleshi of Odogbolu3,

“Land belongs to the vast family of which many are dead, a few are living, and countless others still unborn”

However,  the  prevailing  view  seems  to  be  that  land  belongs  to  the

community and as such, the decision of the Privy Council in Amodu Tijani V.

Secretary of Southern Nigeria4, that land belongs to the community, the village

or family and never to the individual was widely accepted as substantially true.

The meaning of land belonging to the family or community as interpreted

by Dr. Musa G. Yakubu5  is to the effect that, it does not mean that all the

members possess and use the land at the same time, for the same purpose and

equally.  The  true  meaning  is  that  individual  members  of  these  families  or

communities have certain rights, claims, powers, privileges and immunities in

and over the land. No member shall be denied of profits that accrued from it or

the privilege of participating in the management of the land. The whole idea, as

professor Oluyede6 succinctly put it, is that,

“group ownership in African context is an unrestricted right of the individual in the group to what is held to be the common asset

Of land; the right of all in the group to claim

2.    Craigwell-Handy. The Religions significance of Land, RAS, (1939) P. 114 cited in Adedipe, Olawoye & Okediran, op.cit

3.    Before the West African Land Committee; 1908

4.    (1921) 2 A.C. 399.

5.    A former Dean of Law, ABU, Zaria- A paper presented on “Principles of property Law”
6.    Oluyede: Modern Nigeria Law, Evans Bros (Nigeria) P.12
 

support from the group’s land and the tacit understanding that absolute ownership is vested in the community as a whole”


Although there is no uniform system of customary laws operating throughout Nigeria, there are as many systems of customary law as there are ethnic groups and within an ethnic area there are may be variations, not in essence but in detain, in respect of the particular localities of the area. Nevertheless a careful examination of the various systems reveals some common characteristics7. Land, as a community or family property, is entrusted in the hands of the headman, chief or traditional ruler8a (in the case of communal land) and the family head8b (in the case of family land), who exercises the powers of control and management of such land on behalf of the community or family as the case may be. The same corporate theory of land management is

applicable to both. It is to be taken therefore, that references to the family head is applicable to the community chief, and references to principal members of a family is equally references to the various family heads that make up a village or community, and vice-versa.

 

 


7. Olawoye, C.O. (1974), Title to Land in Nigeria, Evans Brothers Ltd, London .

8a. Per viscount Haldane in Ahmodu Tijani .V. Secretary of Southern Nigeria (supra) P. 404. 8b. Ibid
 

Although the chief or headman of the community in the exercise of his powers is sometimes described as a trustee, he is not strictly speaking a trustee in the English sense. This is because the title to the land is not vested in him, but remains vested in the community as a corporate entity. That’s not withstanding, the head or chief of the community as the community’s alter ego is the proper person to exercise the ownership rights, of the community subject to the individual rights of members9. Hence any outright alienation of land by the family without the active participation of the head is void as was established in the Ghanaian case of Agbole V. Sappor10 and adopted in the Nigerian case of Ekpendu V. Erika11. The same principle has been restated by the Supreme Court in Odekilekun V. Hassan12, where it was held that sale of communal or family land by the head of the community without the consent of the principal members of the family is voidable at the instance of the family or community. In that case, the Supreme Court drew a distinction between sales by community head in a representative capacity and one in his personal capacity. In the case of his sale for and on behalf of the community without the requisite consent of the members, the sale is voidable while a sale in his personal capacity is void, the principle being ‘nemo dat quod non habet’.

 

 


9.    Nwabueze, B.O: Nigerian Land Law, (1982) Nwamife publishers P. 151

10.    (1947) 12 WACA 187

11.    (1959) 4 FSC 79

12.    (1997) 12 NWLR (pt. 531) 56.
 

It has been submitted that the court will rarely interfere with the rights of the family head in the management of family property, he must not, however, abuse such power13. The powers are traditionally given to him to be used for the benefit of the family as a whole as well as himself. Therefore, if he treats the family property as his personal property, he is wittingly abusing his powers. Thus in Lopez V. Lopez14, the court noted as follows:
When there has been a persistent refusal by the

head of the family or some members of the family

to allow other members of the family to enjoy

their rights under native law and custom in

family land, the courts have exercised and

will continue to exercise its undoubted right

to make such orders as will ensure that members

of the family shall enjoy their rights, and if such

rights cannot be ensured without partitioning

the land, to order a partition”

Accordingly, in the celebrated case of Archibong Vs Archibong15, certain beach

land  belonging  to  the  community  of  Duke-Town  in  calabar  has  been

compulsorily acquired by the government and $3,000 paid as compensation.

The money was given to Rev. Effiong as the representative of the community.

Rev. Effiong called the meeting of the community at which he brought out the

sum of $1,579 as compensation paid for the community land. Two other sub-

family members of the community were not included in the meeting that took

 


13.    Ndukwe O, Comparative Analysis of Nigerian Customary Law, UNICAL Press, Calabar, Nigeria, (1999). P. 75]

14.    (1924) 5 N.R.L. 50 @ 54, per Combe, C.J.

15.    (1947) 18 N.L.R 117
 
place neither were their shares given to them. It was held that the first defendant

was liable to render an account and to pay over whatever might be found due

thereon. The court equally observed that the requirement of consultation is a

requirement of law and not just a matter of convenience to be observed or

disregarded16.  Again,  even  family  property  allotted  to  members  cannot  be

alienated to any other persons without the consent of the family. Craig, J.S.C in

Alao V. Ajam17 put it thus

“A members of the family is not permitted to introduce a stranger into the family by the back door, nor is he permitted to fetter the reversionary interest due to the family by a complex commercialization of the simple possession granted to him”

Hence, alienation of family property by any member without the consent of the

family head is void abinitio18.

At this juncture, it is pertinent to consider briefly the land tenure in the

Northern states of Nigeria under the Islamic law of the Maliki School which is

applicable in Nigeria. Land is regarded as a gift of Allah (God) while each

person has usufructuary rights. Under the Islamic Land tenure law in Nigeria,

land  can  be  divided  into  three  legal  categories-occupied,  unoccupied  and

common land19.

16.See also Kosoko V. Kosoko (1937) 13 NLR 131 17. (1989) 6 S.C.N.J. 243.

18.See Ogunmefun V. Ogunmefun (1931) 10 N.L.R 82 19..Mamman, A.B; Land management in Nigeria, P. 97
 

Occupied land is that land which is under use and which basic tenet is that the occupier in free to deal with the land as he likes, subject to not causing any injury to members of the public and subject to acquisition for public purpose. Thus, he can sell, pledge or loan and enter into tenancy agreements without the consent of the Emir or ruler or any authority. Unoccupied land, on the other hand, can be sub-divided into two; land close to the emirate capital and/or other towns and those far away from the capital or town. The Emir is the main land manager. Thus one cannot occupy any land in towns or in their vicinity without first obtaining the consent of the Emir. But once allocated, the person to who it is allocated became the absolute owner. According to Yakubu20, this means that the occupier has a title against all persons and he is free to use it the way he likes but cannot alienate it to a total stranger without the consent of the Emir.

However, Land which is far away from the town is free for all persons or a ‘no man’s Land’ where any person can acquire land by clearing, cultivating, building or planting or economic tress etc, without the consent of any authority. A third variant of land category, whether occupied or unoccupied land, is the waqf or common land which an Emir can declare such land as common or public land. Mostly land gained from war, cession and treaty were excluded. They include land used for markets, praying grounds or grazing land.

 

20.Yakubu, M.G. (1985): Land Law in Nigeria, Macmillan, London
 

In situations were such land were occupied, the occupier was given another piece of land somewhere and compensation, where required, was paid. It should be noted that Islamic Law doe not recognize holding of land for a fixed tenure, at the expiration of which rights in the land lapse. Again the Emirs had no proprietary rights to land and were, therefore, not land owners. They had rights over inhabitants as district from rights over land21.


1.3    LAND HOLDING UNDER THE RECEIVED ENGLISH LAW

One of the impacts of colonization is that it imported into the country the

English common Law, the doctrines of equity and the statutes of general application in relation to land law that were in force England on the 1st day of January, 190022. Some of these statutes are: the Real property Act, 1845, statute of frauds, 1877, the Wills Act, 1837, the limitations Act, 1833 and 1877, the partition Act, 1868, the conveyancing Act, 1881, the settled Land Act, 1882 and the Land Transfer Act, 1887. Accordingly, the English common Law rules relating to tenures, disposition of real property, estates, inheritance, perpetuities and a number of others became applicable in Nigeria. The same could be said of the doctrine of the equity, which included the construction of Wills, institution and settlement of Land, legal and equitable estates and interests in Land and the doctrines of notice.
 

21.Yakubu; Op. cit

22.  See S.45 Interpretation Act, cap 89, repealed by Act of 1964, No 1.
 

In a nutshell, colonization brought about the substitution of ownership of Land with such concepts as rights, interest, possession and occupation23.

The Received English Land Law is based on the doctrines of tenure and estate24. By the doctrine of tenure, all Lands in England belong to the crown. The doctrine of estate on the other hand concedes to the individual the right of seisin or what is known in common phraseology as possession which he holds either directly or indirectly of the crown as a tenant. It is of two types; freehold and Non-freehold. The freehold estate is subdivided into fee-simple estate, life estate and fee-tail or estate-entail. The fee-simple estate is the largest possible interest in Land received into Nigerian Law, and which, theoretically in England, does not amount to absolute ownership25. It denotes inheritance by any manner of successor, - brother, wife etc, and for as long as it has successors from generation to generation26. The life estate is an estate whose duration is measured by the life of the tenant or the life of another person. It may be created by express limitation or by operation of law. It is expressly created where, for example, Land is limited in favour of X for life or where in the alternative it is limited in favour of X for the life of Y.

 

 


23.    Amiko and Amidu; Women and Land Rights Reforms in Nigeria, a paper presented at the 5th FIG Regional conference in Accra, Ghana, March 8-11, 2006; available at www. oauife.edu.ng/articles. (accessed on 01-06-2010)

24.    Nwabueze, B.O; Op. Cit, P. 75

25.    Amiko & Amidu; Op. cit, P.5.

26.    Egwummuo, J.N; Principles and practice of Land Law , (1999) P. 82
 

In the first instance, the estate is measured by the life of X, and in the second place by the life of Y by way of an estate per autre vie (that is, in the life of a person other than the tenant). The fee-tail or Estate-entail is where the right of inheritance is limited to the specified descendants of the original tenant or grantee, and the estate reverts to the grantor on failure of the descendant entitled to inherit it.

Any estate whose duration is fixed or ascertainable at inception (during the grant) is called a Non-free hold estate. It does not matter that it is stated to be for a million years, once it is known or can be ascertained at the beginning, the date on which the estate will end, the estate is said to be non-freehold. In modern Land Law, the only surviving non-freehold estate is the leasehold. It now includes subleases or assignments.

As a result of the application of the received English Land Law in Nigeria, between 1900 and 1978, Nigeria had the problem of applying two types of tenure to our land system. Nigerians were allowed, however, to decide which tenure to apply during land transactions. The situation gave rise to property legislations which regulated the allocation and use of Land in Nigeria. The effects of these legislations as well as communal tenure on alienation, with particular emphasis on the requirement of consent, will form the nucleus of the next discussion.
 
1.4    THE CONSENT REQUIREMENT IN RETROSPECT

1.4.1    MEANING AND NATURE OF CONSENT REQUIREMENT

The  word  ‘consent’  has  been  defined  as  ‘agreement,  approval  or

permission as to some act or purpose, esp. given voluntarily by a competent person; legally effective assent’.27 Under the Nigeria Land tenure, the word represents a legal necessity for the validity of an alienation of Land. It denotes the approval of a person(s) recognized by the Law to give such approval, and the absence of which may void a transaction in Land at which such approval is expected to be obtained, or at least make the transaction voidable, depending on the status of the approving authority.

Consent is often but not always preceded by consultation. In Etim V. Butt28, Niki Tobi, JCA (as he then was) put the relationship in the following

way:

 

 


27.    Garner, B.A (Ed) Black’s Law Dictionary (8th Ed.) P. 323

28.    (1997) 11 NWLR (pt. 527), P. 71
 

“In human behaviour and human conduct, consultation comes before consent. As a matter of fact, it is consultation which generally gives

rise to or results in consent. While consultation may not invariably result in consent, it generally comes

first before consent. There are, however, instances where there is no consultation but parties give their consent on the conclusion of the act,

which shall have been subject, or the subject

of consultation. If the consultee gives his consent without the act of consultation following from the consulter, the act of consultation becomes

spent or otiose”.

 

The requirement about consent is designed to protect the interest of the

person(s) with allordial little to the Land, and especially in a community, to

ensure that the interest of the unborn generations will not be easily defeated

without full discussion by all the members concerned. It is therefore prohibitive

and inhibiting in nature.

Consent could, however, be a standing or general one covering not just

one but all transactions of a particular type, as for example the granting of

leases29, or it may be implied from conduct, as where the members have held

out the chief to the grantee or purchaser as having
 

 


29.  Adewujui V. Ishola (1958) W.R.N.L.R 110; Foko V. Foko (1965) N.M.L.R.5
 

authority to conclude the transaction in question30, or where a member, knowing of a proposed deal, did nothing to express his objection31. Be that as it may, the overriding principle is that alienation of Land without the requisite consent has a far-reaching legal consequences on the property, be it family’s, community’s, or otherwise.

 

1.4.2  THE CONSENT REQUIREMENT IN RETROSPECT

The requirement of consent for alienation of Land either by sale, transfer, lease, mortgage or otherwise howsoever is not the peculiarity of the Land Use Act. The requirement in one form or another has featured in older laws. Also, it is not the prerogative of enacted legislations. Under the customary Law, the consents of the family head and the principal members are required for the alienation of family Land. The principle was established in Ekpendu V. Erika (supra), and adopted in a long line of decided cases. It is to the effect that alienation of family Land without the consent of the family head first had and obtained is void ab initio. But where the alienation is done without the consent of a principal member of the family, the transaction is only voidable at the instance of the member or members whose consent where not obtained.

 

30.    Secretary, L.T.C.V Soule (1939) 15 N.L.R. 72

31.    Olowu V. Desalu (1955) 14 WACA 662
 

It should be borne in mind that the objective of the customary Law is to preserve the family Land for the family. In the eyes of customary Law, Land is sacrosanct and therefore virtually inalienable. The consent requirement therefore is to serve as an encumbrance on family Land to guard against arbitrary and unrestricted alienation. But it is noteworthy the point that customary Law makes a distinction between absolute and non-absolute aleination32. Absolute alienation such as outright sale or gift is aimed at achieving a conversion from communal or family ownership to individual ownership. This requires consent. But non-absolute alienation such as a conditional lease, mortgage or pledge passes only a possessory right to the transferee, while the ownership remains with the transferor. This type of transaction, strictly speaking, would not require consent since the right passed is redeemable at any time by any member of the family. On such redemption, ownership reverts to the family33.

The old English Mortmain and charitable uses Act of 188834 requires the consent of the crown for any foreign company to acquire Land from a private citizen. It is suggested that the restriction was necessary to discourage indiscriminate acquisition of Land by foreign companies and to protect thee private citizen from unguided alienation of his valued possession.

 

32.    Nwabueze, B.O; Op. cit, P.38

33.    Kwino V. Ampong (1952) 14 WACA 250

34.    Section 8
 
However, if a foreign company somehow succeeds in acquiring Land without

the requisite consent, a private citizen, including the grantor, has no standing to

raise objection. It is only the crown to whom the Land illegally acquired is

forfeited, that can sue for forfeiture.

The Land and Native Rights Act No. 1 of 1916, modified by the Act No.

18 of 191835, provide as follows

“3. All native lands, and rights over the same, are hereby declared to be under the control and subject to the disposition of the Governor and shall be held and administered for the use and common benefit of the natives

of Northern Nigeria; and no title to the occupation and of any such lands shall be valid without the consent of the

Governor”.

 

“4. The Governor, in exercise of the powers conferred upon him by this proclamation with respect to any land, shall have regard to the native laws and customs existing in the district in which such Land is situated”.

 

 

 

 

35.  Section 3 & 4.
 

Sir  P.  Girouard36   explained  the  term  ‘native  Land”,  at  page  27  of  his

memoranda as follows:

“If land were nationalized and alienation in fee simple made impossible, they would, for the time being, be best described, in my opinion as ‘native land, the description national Land which might suggest itself,

being today, for obvious reasons, a misnomer. As the native or national lands would include the land requirement of their government, there would appear to be no necessity for

the term ‘crown lands”.

 

Other powers granted the governor by the Land and Native Rights Act include:

(a)    To grant rights of occupancy to ‘natives’ as well as ‘non-natives’.

(b)    To demand and revise rents for such grants

(c)    To render null and void any attempted alienation by an occupier of his right of occupancy without the governor’s consent.

(d)    To revoke the grants to occupiers for ‘good cause’ shown.

The Land and Native Rights Act of 1916 (with later amendments)

 

 

 


36. Elias, T.O Nigerian Land Law (4th Ed) Sweet and Maxwell, London, 1971, P. 31.
 

was refurbished into the Land Tenure Law of 1962 whose influence on the enactment of the Land use Act is so remarkable that it may not be an overstatement to say that the Land use Act of 1978 is a mere shadow of the Land tenure Law of 1962.

Section 5 of the Land Tenure Law of 1962 places the management, control and disposition of Land in the North under the minister for Land, who holds and administer all lands for the use and common benefit of the ‘natives’, and by section 11 of the Law, “no title to occupation and use of any such lands by a non-natives is valid without the consent of the ministers”. A ‘non-native’ by the tenor of the Law is a person whose father is not a member of any tribe indigenous to each state in Northern Nigeria.

Again, a holder of a statutory right of occupancy cannot alienate without the minister’s consent. In Solanke V Abed and Anor37, a holder of a statutory right of occupancy leased same to a tenant without the minister’s prior consent.

He attempted to eject the tenant on the ground that the lease was illegal for lack of consent. The tenant sued the Landlord for trespass, claiming damages. The court found for the plaintiff. It was held that the lease was void but not illegal, and that the Landlord cannot rely on his own wrongful act to claim that the

 

 


37.  (1962) N.R.N.L.R. 92
 

 

contract was unenforceable.

Section 6(ii) (c) of the State Land Act of 1916 prohibits subleasing of

state land or any part of it without the governor’s written consent. Thus in Sam

Warri Esi V.J.A Moruku38, the plaintiff who held a lease of crown Land under

the state Land Act sublet part of the premises to the defendant. The plaintiff

later sued for arrears of rent. The court held that the sublease was illegal and

therefore cannot be enforced. The learned judge observed that the covenant not

to  assign  without  the  governor’s  consent  was  a  covenant  designed  by  the

legislature for the management and disposal of crown (State) lands in which the

whole public have an interest.

State Land was defined under section 2 of the Act to mean;

“All public lands in the federation which are for the time being vested in

the president on behalf or for the benefit of the federal republic…. and all lands heretofore held or hereafter acquired by any authority of the federation for any purpose…”

 

 

38.  (1940) 15 NLR 116
 

 

The court further observed that the reasons for these statutory restrictions

to assign, sublet or otherwise part with possession of Land, were that it was

undesirable from the Landlord’s point of view that the Land should fall into the

lands of a person of no substance or of doubtful character.  Where the Landlord

was the state itself, it had power to enact positive prohibitions.

In the same vein, the Native Lands Acquisition Act (No 32 of 1917) that

regulated the acquisition of land by aliens from the people of the southern

provinces provided as follows39

“3 (a) No alien shall acquire any interest or right in or over any land within the protectorate from a native except under an instrument which had received the approval in writing of the Governor.

(b)    Any instrument, which has not received the approval of the Governor as required by the section shall be null an void.

4.    Where any interest or right in or over any Land has been acquired by an alien from a native with the approval in writing of the governor …, such interest or right shall not

 


39.    Sections 3 & 4
 


(a)    be transferred to any other alien without the approval in writing of the Governor40.


The Native Lands Acquisition Act of 1917 was later re-enacted as the Native Lands Acquisition Law of 1952 for the West and Midwestern Nigeria and the Acquisition of Land by Aliens Law, 1956 in the Eastern States. These regional enactments carried over the consent requirement restrictions of their precursor. It was argued that the restrictions were necessary to protect the then unsophisticated natives from being lured by the attraction of cash in undertaking unguided and indiscriminate alienation of their valuable heritage.

From the foregoing, copious evidence has been adduced to prove that the consent requirement has a long history of restrictive, prohibitive, even discriminating Land management, disposition and acquisition policy. As commented by Justice T.O. Elias on the Native Land Acquisition Act of 1917, that

“ the government has pursued a policy of restricting alienation of Land in the formed southern provinces only to dealings among the peoples themselves”41


40.    This provision was repealed in the 1938 amendment of the Act such that an alien can transfer his interest to another alien without the consent. This new position was established in the case of Eyamba & Ors V. Koure (1937) 3 WACA 186.

41.    Elias, T.O; Op. Cit, P. 31
 

It has been submitted that the consent requirement of the customary Land Law is a built-in mechanism for discouraging alienation of family Land since the objective of customary Land law is the retaining of family Land to the family. The question that begs for answer is, is the consent requirement of the Land use Act a strange bed fellow in its new environment or a mere pedant vestige of older enactment that serves no useful purpose in its present garb? This question become poignant when the restrictive nature and prohibitive origin of consent requirement are juxtaposed with the liberal objectives of the

Land Use Act of “streamlining and simplifying the management and ownership of Land in the country and assisting the citizen irrespective of his social status to own a place where he and his family will live a secured and peaceful life.”

It has been canvassed that the consent clause gives the Governor the required effective supervisory control of all land in the territory. This argument, as cogent as it may seem, cannot stand erect before the prohibitive and inhibiting effect of the requirement in the realization of the well-intended objectives of the Land use Act.

Be that as it may, it is worth bearing in mind that even in old enactments such as the Native Land Acquisition Act, 1917 (as amended), the consent requirement was discarded when its restriction was adjudged unnecessary, as
 

when the interest of an alien was being transferred to another alien42. Under such a situation, the consent of the Governor will not be required as it will be time wasting and economically inexpedient to the alien who might be leaving the country for good.

From the totality of what I have posited so far, it is incontestable to deduce that the requirement of consent in Land transaction is as old as the society itself; though with little modifications here and there to suit the circumstances of each locality and the intentions of the authority. The next chapter will be devoted to the Land use Act, 1978 with respect to the consent requirement provisions thereof.

42.    Eyamba V. Kouri, Supra

 

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