By Oyewole Sherif.O
TABLE OF CONTENTS’
✓Abstract
✓Introduction
✓Meaning,nature and The Legal Framework of the doctrine of Governor’s consent In Nigeria
✓Historical Development of Land Tenure in Nigeria and land use act 1978
✓Differences between Statutory Right of occupancy and customary Right of occupancy
✓Judicial evolution of the doctrine of Governor’s consent From Savannah Bank Ltd v Ajilo (1989) to Yakubu vs Simon (2017)
✓Current Judicial Position on Governor’s Consent
✓Challenges & Reforms
✓ Conclusion
Recommendation
ABSTRACT
Beyond sentiment, the power to manage and control a land is vested into the hands governor of every state as a trustee for the benefits the of citizens as provided under section 1 of the land use Act 1978. Subsequently,it has been provided under section 22 of the same land use Act ,that any interest on land transferred, mortgage or alienation without the consent of the governor will be regarded as void. This position has been strongly affirmed in the pronouncement of the court in the case of Savannah Bank vs Ajilo 1989 without any exceptions which automaticaly thereby creating doubts as to the effectiveness of section 43 of the 1999 constitution of the federal republic of Nigeria as amended that guarantees right to acquire immoveable property in Nigeria bearing in mind that it is not in the previous constitution especially 1979 but just added in 1999 constitution.. This paper will expose the evolutive journey of the doctrine of Governor’s consent under the Nigeria land law,it’s meaning, historical development, challenges and recommendations and how supreme court departed from it’s very restricted era to liberal era in the case of Yakubu vs Simon.
INTRODUCTION
The doctrine of Governor’s Consent occupies a central position in Nigerian land jurisprudence, particularly under the provisions of the Land Use Act 1978. Introduced as a regulatory mechanism to control and supervise the alienation of statutory rights of occupancy, the doctrine requires the consent of the Governor before any valid transfer, mortgage, assignment, or sublease of land can be effected. Over the years, this requirement has generated intense judicial controversies, especially regarding its rigidity, validity, and practical implications on commercial transactions and property rights in Nigeria.
The judicial interpretation of the doctrine has evolved significantly through a series of landmark decisions. Beginning with the strict and technical approach adopted by the Supreme Court in Savannah Bank Ltd v Ajilo, where transactions conducted without Governor’s Consent were declared null and void, Nigerian courts gradually moved towards a more liberal and equitable interpretation to prevent injustice and commercial hardship. This jurisprudential transition became more evident in subsequent decisions, culminating in Yakubu v Simon, where the courts adopted a more pragmatic approach towards the doctrine.
This paper therefore examines the evolutive journey of the doctrine of Governor’s Consent under Nigerian land law, tracing its judicial development from Savannah Bank Ltd v Ajilo (1989) supra to Yakubu v Simon (2017) supra. It critically analyses the changing attitudes of Nigerian courts, the legal and economic implications of the doctrine, and the extent to which modern judicial interpretations have balanced statutory compliance with the realities of land and commercial transactions in Nigeria.
Meaning,nature , historical development of land tenure in Nigeria legal system and the legal frame work of governor’s consent in Nigeria
It’s a general knowledge that land is the source of material wealth,in which upon it both human being and animals survive ranging from food we eat,shelter, cloth,water, precious stone,fuel,oil, because comes from land and unto it everything shall return to. Simpliciter land is a solid part of the earth surface that is not covered by water in a layman understanding but legally and jurisprudencially beyond that . Land is anything include surface of the earth,soil and air space above it and everything permanently attached to the land . Therefore land may also be refer to as surface of the air. In the ancient time there are ways acquiring land because all lands belong to crown either Queen or King both in common law likewise in customary law of some part of Nigeria like Benin . All lands belongs to the community and Oba of Benin was seen as a trustee for the people and all other people have only possessive rights of occupancy which is also subjected to the approval of the King ,therefore ,the moment the person given a possessive rights of occupancy done with farming on the land ,the ownership of the land will return automatically to the community through the Oba of Benin as trustee . Likewise under common law in which the ownership of the land belongs to the king ,only the possession can be given out to the members of the society on different methods like Spiritual or frankalmoign, knight service, Villein, sergeant, socage, and so on for the tenure in which the land will be used by the possessor.
Furthermore ,it is sine qua non to know that under the common law ,land has never seen or regarded as owned by individuals as said above ,the land is said to be owned by the majesty or the crown and rights to enjoy possessive rights by the tenants are subject to the mode of tenure system they entered bargain into with the majesty or crown . For instance,Life estate,fee simple estate,fee tail, estate for years and period estate .
Under the Life estate in common law doctrine, The holder of ownership otherwise known as a mere tenant will use the land from the time that the land has been allotted to him by the majesty till the time of his death . The moment he does the ownership will return to the crown in other words,his heirs can not inherit it, it’s just mean for his life only.
For instance, Mr Olubodun Abdullah sought for ownership of land from the crown, he will be enjoying the benefits and interest on land through out his life time but Hassan Faruw, a son to Olubodun can not inherit the land after the demise of his father.
Moving further to Fee simple tenure system,this is a type of tenure in which the land can be inherited by the heirs of the holder of the ownership given to him by the crown . Vice verser to the life estates. Another one is fee tail estate in which the heirs of the holder of ownership can inherit the land but it will be reverted back to the crown after the death of the last heirs of the holder of ownership.
For instance Mr Luqman gave birth to 5 children , namely, Ibrahim Luqman, Rozaaq Luqman, …after the death of Mr Luqman, his children ranging from Ibrahim Luqman can inherit the land till the death of the last son . afterward,the land I’ll be reverted to the crown
To make it short,the estate for years, which is also applicable in our judicial system today is a type of estate refer them as tenancy for a term that will last for a definite term like 99 years maximum as it’s also provided under section 1 of the land use Act that all land compromised in the territory of each state in the federation are hereby vested in the Governor if that state and such land shall be held in trust and administered for the use of and common benefits of all Nigerians in accordance with the provision of this act. This provision is the standpoint foundation that give the governor the right to control and manage affairs of all the land as a trustee for the community for the period of 99 years and anyone that wants to transfer interest or alienate a land must seek the consent of the governor as provided under section 21&22 of the land use act as it was also established in the case of Savannah Bank vs Ajilo supra. Then what is Governor’s consent?
Governor’s Consent is a mandatory legal authorization required to validate any property transaction where a previously titled land is sold, transferred, or mortgaged in Nigeria. Without it, land ownership is deemed legally imperfect, voidable by the state, and cannot be used for formal bank transactions like mortgages. What is the rationale behind it? Nemo dat quod non habeat “You can not give what you don’t have” ordinarily,you were also given the land as holder for your benefits as provided under section 1 of the act, now if you want to give it to another person,it must be with the consent of that person. An instance of this is rent agreement between landlord and tenant. If Mr Felix OKAFOR rented an apartment from Mr Yakubu Isaac,then Mr OKAFOR wants to transfer the possessive rights to Mr Jamilu Abubakar his friend,then he must inform or seek the consent of the landlord for the approval either they should enter into novation agreement and they should maintain ordinary status quo or status quo ante bellum.
In Nigerian property law, an initial allottee of land is issued a primary title document, such as a Certificate of Occupancy (C of O). However, if that person decides to sell the property to a new buyer, the transaction cannot be finalized legally until the state Governor gives formal approval. This subsequent approval is known as Governor’s Consent. While the original owner receives a C of O, every subsequent buyer must obtain Governor’s Consent to perfect their title. This is the question of law in the case of Savannah Bank vs Ajilo 1989 supra where my lord said,you can not use the law as instrument of fraud. In that case, Ammel O. Ajilo, mortgaged his property to Savannah Bank of Nigeria Limited as security for a loan granted to the 2nd respondent company. The property had originally been acquired before the enactment of the Land Use Act 1978, but after the Act came into force, the interest became a deemed statutory right of occupancy.
The mortgage transaction was executed without obtaining the prior consent of the Governor as required under section 22 of the Land Use Act that it shall not be lawful for the holder of a statutory right of occupancy granted by the governor to alienate his rights of occupancy or any part thereof by assignment or mortgage, transfer of possession,sublease or otherwise howsoever without the consent of the Governor first had and obtained. When the borrower defaulted in repayment, the bank sought to exercise its power of sale over the mortgaged property. Ajilo challenged the validity of the mortgage and argued that, the mortgage was null and void because Governor’s consent was not first obtained; and consequently, the bank could not lawfully sell the property.
The central issue before the court therefore became whether a deemed holder of a statutory right of occupancy must obtain Governor’s consent before alienating or mortgaging his interest in land under the Land Use Act
The Supreme Court in Savannah Bank Ltd v Ajilo (supra) held that the consent requirement under section 22 of the Land Use Act applies equally to deemed holders of statutory rights of occupancy. Consequently, any mortgage or alienation executed without prior Governor’s consent is null and void. Interestingly.
Under Nigerian law, absolute, unrestricted private land ownership does not exist. The radical title (ultimate ownership) of all land within a state is vested in the state Governor, who holds it in trust for the benefit of the people. Citizens hold only a “Right of Occupancy”.
Because you cannot transfer what you do not outrightly own, any act of alienation (such as a sale, assignment, sub-lease, or mortgage) requires the explicit permission of the ultimate trustee (the Governor) and likewise Obtaining Governor’s Consent “perfects” a Deed of Assignment. It officializes the transfer, protects against land fraud (like multiple sales by traditional land grabbers, or popularly known as omo-onile in Lagos and some other civilized part of the country. It also allows the property to be used as bank collateral.
By implications, The primary legal framework governing this requirement is the Land Use Act of 1978. Its specific provisions establish the legal necessity of this consent:
This is the core provision. It states that it shall not be lawful for the holder of a statutory right of occupancy (land in urban areas) to alienate their right by assignment, mortgage, transfer of possession, or sublease without the consent of the Governor first had and obtained.
This section provides a similar framework for customary rights of occupancy, requiring requisite state or local government approval before alienation. This provision dictates that any instrument purporting to transfer or alienate land rights without the necessary Governor’s consent is void and of no effect in law.
These are the meaning ,implications of not seeking governor’s consent shortly.the historical tenure system and others. Now, let’s get the judicial evolutive journey of the doctrine of governor’s consent started. Ranging from Savannah Bank vs Ajilo (supra) which was the restricted era to more liberal era of Yakubu vs Simon 2007 (supra).
Differences between Statutory Right of occupancy and customary Right of occupancy
As provided under section 5 and 6 of the land use Act 1978 respectively, Statutory and customary rights of occupancy are the two primary land holding systems under the Nigerian Land Use Act of 1978. Statutory rights usually issued by the governor on lands in urban areas. For company ,banks and so on for 99-year terms). It offers stronger legal protection and higher commercial value, on the other hands,customary rights of occupancy usually issued by the local government or customary head for lands in rural areas. It is often informal and suited to agricultural, communal, or traditional or residential uses.
JUDICIAL EVOLUTION OF THE DOCTRINE OF GOVERNOR’S CONSENT
From Savannah Bank Ltd v Ajilo to Yakubu vs Simon
The judicial evolutive journey of governors consent will be trace prior Savannah Bank vs Ajilo, during and post Savannah Bank vs Ajilo till Yakubu Simon liberal era.
In 1989, The case of Savannah Bank Ltd v Ajilo (supra) marks the evolutive journey of the consent of Governors’ consent in transferring or alienation of land. In this case, Ajilo secured a loan from Savannah Bank and mortgaged his property as security. The mortgage transaction was executed without obtaining the Governor’s consent as required under section 22 of the Land Use Act. When Ajilo defaulted, the bank attempted to enforce the mortgage, and Ajilo challenged its validity.
The Court Held that any alienation or mortgage of a statutory right of occupancy without Governor’s consent is null and void. The mortgage transaction was therefore unenforceable. Interestingly but so harsh, right?
Moving further to 1995 in the case of Awojugbagbe Light Industries Ltd v Chinukwe.
Where a company benefited from a loan transaction secured with land. After receiving the benefit, it sought to avoid liability by arguing that the agreement was invalid because Governor’s consent had not been obtained . The Supreme Court held that equity would not permit a party to use absence of consent as an instrument of fraud after benefiting from the transaction. The party remained bound by the agreement. What liberal and brilliant pronouncement of the supreme court. Some people will directly or indirectly, intentionally or unintentionally because of their scrupulous act want to use law as an instrument of illegality or fraud but the judiciary will outsmart them in performing their duty as just dicere non jus dare i.e judiciary are to interpret the law not to make law and giving the overriding interpretation of a particular provisions of law because statutory law does not guaranteed authomatic implementation,the circumstances of the case will determine how the court will interpret such law. This serve as a mitigative journey to the consent of the governor doctrine.
In 1996,an exception was also made to the governor consent to only statutory rights of occupancy not extended to customary right of occupancy, in the case of Ugochukwu v Co-operative & Commerce Bank.
Where a borrower mortgaged property to a bank as security for a loan. Upon default, the validity of the mortgage was challenged because Governor’s consent had not been obtained
The court held that Governor’s consent is mandatory for a valid mortgage affecting statutory rights of occupancy.
What are the differences statutory right of occupancy and customary Right of occupancy? Statutory Right of occupancy is sought on lands in Urban areas using for company,banks and so on and such right of occupancy of that particular land is to be granted by the governor while customary Right of occupancy related to those lands in rural areas using for farming, habitual residence and it’s granted by the local government or the customary head. Emphasize will be laid on it later.
In 1999, The case of International Textile Industries Nig Ltd v Aderemi serves great asset to our judicial system where the court distinguished from valid ,voidable and void of the land transfer agreement without the consent of the governor. In this case,
The parties entered into a land agreement before obtaining Governor’s consent. One party later challenged the validity of the transaction.
The Supreme Court held that such agreements are not automatically void but merely inchoate until Governor’s consent is obtained. This pronouncement is great contribution to the restricted principle In the case of Savannah Bank vs Ajilo (supra). A party wants to hide on the provision of the law to cheat other party,the court held that truly the agreement is not valid but defect which is the governor’s consent can be rectified,then after rectification,it will become valid transaction. Far away shifted from the total restricted position of the supreme court in the case of Savannah Bank vs Ajilo (supra).
In 2001, what a joyous pronouncement was made which everyone was seen as injustice and harshness in the case of Savannah Bank vs Ajilo (supra) in the case of Onagoruwa v Akinremi
If you didn’t forget, in the case of Savannah Bank vs Ajilo (supra) the land use act was not existence before they made transaction,then how will an written law that is not in existence during the time of making agreement be applicable to that transaction. This is comparing to the issue of Jonathan eligibility to contest for the president of Nigeria because it’s now provided under section 137 of the constitution that anyone that completed a tenure can not go for more than one term. But center of argument is that this section was altercated after Jonathan tenure. And it’s not in existence during the time he completed the tenure of the former president Musa Yar,adua (may pleases with his soul)
In this case,The dispute concerned land transactions concluded before the commencement of the Land Use Act. One party claimed the transaction was invalid for lack of Governor’s consent.
The supreme court held that,transactions completed before the Land Use Act came into operation were not subject to the consent requirement under section 22.
By implications, any transactions made before the operation of land use act will not be enforced on the grounds of section 22 or any provisions of this section.
This can be corroborated again in 2001 in the case of Nigerian Engineering Works Ltd v Denap Ltd
Where The parties entered into a land transaction requiring Governor’s consent. One party argued that the agreement was void because consent had not been obtained. The court held that transactions awaiting Governor’s consent are not void ab initio but remain unenforceable until consent is secured.
In 2008 ,the position of shifted from total restricted view to liberal era by giving exception to generality in the case of Savannah Bank vs Ajilo (supra) in the case of Adole v Gwar.
Where the The parties disputed ownership and transfer of land subject to a statutory right of occupancy under the Land Use Act. This remain unchanged and balanced with the provision of section 22 of the land use act
Moving to recent pronouncement of the supreme court in the case of Yakubu vs Simon (supra) that shield light from the position of the consent governor in sales of land.
In brief, the facts leading to Yakubu’s case are that the Respondent as Plaintiff, filed an action against the Appellants as Defendants, at the High Court of the Federal Capital Territory Abuja, seeking inter alia, damages for trespass allegedly caused by the Appellants to the Respondent’s property during construction activity. The Respondent also sought a declaration of title to the property which he allegedly bought by virtue of an Irrevocable Power of Attorney covered by a certificate of occupancy issued by the Bwari Area Council in 1995. The Appellants however, denied the claim. The High Court found in favour of the Respondent. Dissatisfied, the Appellant appealed to the Court of Appeal. The appeal was also dismissed, as the Court of Appeal upheld the decision of the High Court. Consequently, the Appellant appealed to the Supreme Court. In considering the appeal, the Supreme Court on its own, raised the issue whether it was the proper interpretation of the law that the consent of the Minister of Federal Capital Territory (“FCT”), who occupies a position akin to that of a State Governor, was required before the title to the property in issue could validly pass to the Respondent. In resolving the issue, Ogunbiyi JSC, who delivered the lead judgement put it this way:“…. I agree with the Respondent’s Counsel that it is not the intendment of the legislature that section 22 of the Land Use Act, on consent would limit and deny parties of their rights to use and enjoy land and the fruits thereto in a non-contentious transaction or alienation. The section cannot be given a literal interpretation as would be seen from the preamble. The preambles to the Land Use Act, if looked at carefully and relating it to the case at hand, would reveal that the provision for consent of the Governor must not be applied to transfer of title or alienation of rights between private individuals where there is no overriding public interest or conflict between the parties. The application of the various sections and provisions of the Land Use Act must be done with a view to the intendment of the law as mischief rule of interpretation. The historical antecedent or what defect the law written last cure is sine qua non. The wisdom of using governor as the trustee on land is not to punish citizen of the community as it’s provided in the said section for the benefits.
Supreme Court in Yakubu’s case, it appear to me that not many people are aware of the decision of the court in this case,as it’s seems,they are still languishing in the old position of law in the case of Savannah Bank vs Ajilo. Many people still carry on as though the rule on Governor’s consent for alienation of interest in land in a that very restricted and harsh pronouncent. The Recent Decision of The Supreme Court in Yakubu v. Simon Obaje (supra) is like a Coup d’etat Against Governor’s Consent Under the Land Use Act.
awareness by members of the public coupled with the inaction on the part of public authorities who have the argued further that Yakubu’s case reflects the new and correct position of the law, which not only binds the Supreme Court in Yakubu’s case, the requirement for Governor’s consent under the Act does not apply to alienation of rights in land between private individuals where there is no overriding public interest or conflict between the parties or customary Right of occupancy. Like land for farming, habitual residence and so on.
CHALLENGES AND REFORMS
It’s so glaring that restricted pronouncement of the court in the case of Savannah Bank vs Ajilo (supra) is so rigid and harsh to the extent that ordinary citizen of country will find it so difficult to acquire a land even just for farming because of the fee that the will go with the process of seeking the Governor’s consent especially the impoverished citizens that are still languishing and struggling to put 3 times daily food on the table for their family but wants to struggle to get a land so that he can build small apartment to live and accommodate his family. If the position is so restricted,it will be difficult and tough for these kind of people even fit those that engage in real estate business. As we are approaching the new era from the case of Yakubu vs Simon that give exception to only statutory Right of occupancy likewise individual transactions without overriding public interest is a good reform.but astonishingly people are still languishing in with case of Savannah Bank vs Ajilo that the supreme court has departed from.
CONCLUSION
In conclusion, the doctrine of Governor’s consent under Nigerian land law has witnessed a remarkable judicial evolution from the rigid and technical approach adopted in Savannah Bank Ltd v Ajilo (supra) to the more flexible and equitable interpretation in Yakubu v Simon (supra). While the earlier authorities treated non-compliance with consent requirements as fatal to land transactions, subsequent judicial decisions gradually shifted towards protecting commercial realities, equity, and the intentions of parties. This jurisprudential transition reflects the courts’ attempt to balance the regulatory objectives of the Land Use Act with the need to prevent injustice and undue hardship in land dealings. Ultimately, the modern position of the law demonstrates a progressive movement from strict legal formalism to substantial justice in the administration of land transactions in Nigeria.
RECOMMENDATIONS
Creation of awareness
Amendment of the governor’s consent provisions in the land use Act
Suo motu of the court/judge
Public enlightenment programs
Ignorantia juris non excusat I.e ignorance of the law is not an excuse ”
There are plethora of incidents in which people especially uneducated members of the society will just say ,please I’m not awared. Yes,it’s true,how do we expect a old woman selling pepper along the road side to be awared of Land use Act or when the position of law has shifted even professors in other field will not know this except he’s following the trend on legal matters. Therefore,the should be awareness either by NBA or any related body to educate people on their rights and implications of their act or omission.
Secondly, the provision of the Governor’s consent should be amended by using very clear,plain,clear and unambiguous word to give more liberal meaning to the position of law on Governor’s consent because the purpose of law will not be to punish the ordinary citizens of the society.
Thirdly, sou motu by the court, The court should be helping the Society to get justice in any position of the law that is known to them to serve uprightly as justice because as the position of law has shifted from Savannah Bank vs Ajilo 1989 (supra) in the case of Yakubu vs Simon, some lawyers, law students are still using it as their authority,funny enough! Old law? The students and lawyers should be reading recent position of the law and be updated to the time at hand and modernized their knowledge by reading law reports and court judgments weekly or daily.
Last but not least,there should be public enlightenment programs on the rights of the citizens, especially for uneducated ones or laymen.
16/05/2026
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A student of Law, Usman Dan Fodio University, Sokoto.
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