Tuesday, 22 May 2018

GOVERNOR’S CONSENT

User Rating: 5 / 5

Star ActiveStar ActiveStar ActiveStar ActiveStar Active
 
All land in each state of the Federation belongs to the Governor of each state. Sounds weird right? But this is the current position of the Nigerian law.  The Governor of each state holds such land in trust and administers the land for the common benefit of all Nigerians and according to the provisions of the Land Use Act in Nigeria.
In relation to land in Nigeria, the governor of each state has the following powers:
  • To grant statutory rights of occupancy to any person for all purposes
  • To grant easements attached to statutory rights of occupancy
  • To demand rental for land granted to persons
  • To revise the rental to be paid at specified intervals
  • To impose a penal rent for a breach of any covenant in a certificate of occupancy which requires its holder to develop or make improvements on the land.
  • To impose a penal rent for the breach of any condition which prevents the holder of a statutory right of occupancy from alienating such right of occupancy or any part of it by sale, mortgage, transfer of possession, sub-lease, or bequest without the prior consent of the Governor.
  • To extend the time a holder of a statutory right of occupancy may perform the conditions of the right of occupancy upon certain terms and conditions as the governor may deem fit.
  • To waive any or all of the covenants or conditions over a statutory right of occupancy where performance of such covenants/conditions will be impossible or cause great hardship to the holder of the right of occupancy.
The consequence of the Governor of each stating owning the land in each state is that a holder of a right of occupancy is prohibited from alienating his right of occupancy or any part of it by assignment, mortgage, transfer of possession, sub-lease or some other form, without the prior consent of the Governor

Documents to be submitted when applying for Governor’s consent are:
  • Four copies of a duly executed Deed of Assignment
  • Photocopy of Certified True Copies of prior deeds
  • Deposits on consent fees, charting and endorsement fee
  • Current three year Tax clearance certificate of the parties
  • Where a corporate or working-class person is involved, he will be required to provide evidence of his Pay as You Earn (PAYE) returns
  • Evidence of payment of tenement rate or a statement in lieu of this where the property is undeveloped. In Lagos state, it is evidence of payment of Land Use Charges.
  • Payment of Capital Gains Tax
  • Receipt of payment of development levy
A covering Letter (Application)Please note that ownership of land in Nigeria existed even before the advent of the Land Use Act. Thus, where a person owned land before the commencement of the Land Use Act, and the land is developed, ownership of the land shall remain with the person in whom the land was vested before the advent of the Land Use Act. The result is that it is as though the holder of the land was granted a statutory right of occupancy by the Governor of the state where the land is situate. However, where the land is undeveloped, a portion of the land is held by the holder as though a statutory right of occupancy was so granted by the Governor, but in respect of the excess portion of land left, the Governor takes over the portion and administers it in accordance with the provisions of the Land Use Act.
 
Effect of failure to apply for Governor’s consent on a land transaction
The purported legal transfer of the land; whether by a sale, mortgage, transfer of possession over land, or sub-lease is void. Only an equitable interest in the land subsists. This is because the Land Use Act specifically provides to the effect that any transaction seeking to vest interest in land in a person in any manner different from that provided by the Act shall be null and void.
 
Land transactions that do not require Governor’s consent
It should be noted that not every land transaction requires Governor’s consent.
Where a preliminary contract of sale of land is executed between parties before the actual deed of assignment is made, the contract of sale of land does not require Governor’s consent.
It is also not required where a legal mortgage is to be created over land upon which an equitable mortgage had been created and Governor’s consent obtained on same.
Governor’s consent is not required for the reconveyance of interest in land to the holder of a statutory right of occupancy upon the end of a mortgage transaction. Such reconveyance does not require Governor’s consent where the holder mortgaged the property with Governor’s consent in the first place.
Governor’s consent shall also not be presumed by reason of the fact that the Governor had given his consent to a sub-lease which contains an option to renew clause. In other words, Governor’s consent is not required at every point of renewal of a sublease.
 
When a right of occupancy may be revoked
A right of occupancy granted to a person may be revoked by the Governor of the state where the land is situate for “overriding public interest”. This could mean a situation where an occupier or holder alienates his interest in the land in any manner contrary to the provisions of the Land Use Act or any regulations made pursuant to the Land Use Act. Overriding public interest can also mean the Government of the state or a local government in the state or the Government of the Federation requires the land for public purposes.
A holder and occupier of land which has been acquired for public purposes is entitled to compensation for the land so acquired.
 
Federal Land and the Federal Capital Territory, Abuja
It should be noted that certain land may be located in certain states but are Federal Lands. Thus, all land situate in the territory of each state except those vested in the Federal Government or any of its agencies is vested in the Governor of the state concerned. Any title to land held by the Federal Government or any of its agencies at the commencement of the Land Use Act continues to lie in the Federal Government or agency as the case may be.
 
 
**Statutory right of occupancy is a right of occupancy granted by the Governor of the state where land is situate.
Easements are rights attached to land which allow the owner of land to use the land of another person in a particular way or restrict the other person’s use of his land to a particular extent. Easements usually occur between owners of adjoining land.
Holder of a right of occupancy is a person entitled to a right of occupancy by virtue of an assignment or to whom a right of occupancy has validly passed upon the death of a holder. An invalid assignment does not make a transferee a holder of a right of occupancy.  A mortgagee, sub-lessee or sub-underlessee are also not holders of a right of occupancy.
Alienation is the transfer of title to land from one person to another.
 
References
  1. The Land Use Act, CAP L5, Laws of the Federation of Nigeria, 2004.
  2. Property Law Practice notes from the Nigerian Law School.
  3. I.O Smith, Practical Approach to Law of Real Property in Nigeria, 2nd Edition, Ecowatch Publications (Nigeria) Limited, Lagos.

Newsletter

Subscribe to our Newsletter.

AFC Legal Consult
5, Jubilee (CMD) Road,
Magodo, Lagos.

Email:

contact@naijalegaltalkng.com

Phone:

07066565942