4.3 Alienation, Consent and the Nullity Rule

4.3 Alienation, Consent and the Nullity Rule

Statutory reference: Land Use Act 1978, sections 21, 22, 23 and 26.

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1. Statutory rights: the Governor's consent (section 22)

It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor 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.

Five words carry most of the weight.

• "Alienate" is defined by the listed modes and then extended by "or otherwise howsoever". The list is illustrative, not exhaustive.
• "Transfer of possession" is the phrase that catches pledges, informal handovers and possessory arrangements which parties do not think of as conveyancing at all.
• "Or any part thereof" means a partial alienation - selling half a plot - engages the section just as fully as an outright sale.
• "First had and obtained" locates the consent before the transaction, not after it.
• "Not be lawful" rather than "shall be void" - the voiding is done by section 26.

Section 22 also provides that the Governor's consent is not required for the creation of a legal mortgage over a statutory right of occupancy in respect of which a legal mortgage has already been created with the Governor's consent - a narrow carve-out that candidates often overstate into a general exemption for mortgages.

Section 23 applies the parallel requirement to subleases, and to the assignment or transfer of a sublease.

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2. Customary rights: a two-limb rule (section 21)

Section 21 is drafted differently, and the difference is the examination point.

It shall not be lawful for any customary right of occupancy or any part thereof to be alienated by assignment, mortgage, transfer of possession, sublease or otherwise howsoever -

(a) without the consent of the Governor in cases where the property is to be sold by or under the order of any court under the provisions of the applicable Sheriffs and Civil Process Law; or

(b) in other cases without the approval of the appropriate Local Government.

So the default consenting authority for a customary right is the Local Government, and the Governor's consent is required only in the narrow case of a court-ordered sale under the Sheriffs and Civil Process Law. A candidate who writes that the Governor's consent is required for all alienations of customary rights has inverted the section.

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3. The nullity rule (section 26)

Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.

Section 26 is deliberately wide. It is not limited to consent - it voids any transaction or instrument that purports to confer an interest otherwise than in accordance with the Act. But its most frequent application is to unconsented alienations under sections 21 and 22.

"Null and void" is stronger than "voidable". A void transaction transfers nothing, is not capable of ratification by the parties, and does not become good by the passage of time or by the purchaser taking possession and building. That is the commercial reality behind every consent application.

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4. The leading authority

Savannah Bank of Nigeria Ltd v Ajilo (1989) is the case every candidate must be able to state. Its significance is not that unconsented alienations are void - section 26 says that. Its significance is reach: the Supreme Court held that the consent requirement in section 22 applies to a holder of a deemed grant under section 34 just as it applies to the holder of an express grant.

That extension is what made the consent provisions bite across the whole economy. Before Ajilo, holders of pre-1978 urban land could plausibly argue that, never having received a grant from the Governor, they had nothing requiring his consent to alienate. After Ajilo, a deemed statutory right of occupancy is a statutory right of occupancy for section 22 purposes, and mortgages executed over such land without consent are void.

The decision is also the origin of the long-running policy debate about the consent provisions: commentators have argued ever since that a requirement designed to give the State oversight has in practice become a transaction cost and a source of title insecurity. That debate is good Paper VII material - and, unlike most essay themes, it comes with a case name attached.

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5. Where the surveyor comes in

A consent application is, in substance, a request to the Governor or Local Government to approve a dealing in an identified parcel. Identification is the surveyor's function.

• The application requires a survey plan of the parcel being dealt with, prepared and signed by a surveyor. Without it there is nothing for the consent to attach to.
• Where a part of a holding is being alienated - section 22 catches "any part thereof" - a new plan of the part is required, and the residue must remain identifiable. Sub-division without survey is one of the commonest sources of later dispute.
• State land administrations check the plan against the Pillar Index Map or equivalent cadastral index for overlap with existing grants. A plan that is not connected to Government control cannot be checked for overlap at all - which is exactly why regulation 4 of the Survey Regulations requires connection to Government framework beacons within three miles.
• Where the search reveals an overlap, the surveyor's role is to report it accurately, not to resolve it. Regulation 23 governs the position where an adjoining owner objects, and regulation 31(e) permits different verge colours to distinguish conflicting claims on the same plan.

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6. A worked scenario

A client holds a developed urban plot occupied by his family since 1965. He has no certificate of occupancy. He wishes to mortgage the property to a bank and asks whether consent is needed, since "the land was never granted to anybody".

The reasoning:

1. The land was in an urban area and developed at the commencement of the Act, so section 34 applies: the client is treated as the holder of a deemed statutory right of occupancy.
2. Savannah Bank v Ajilo holds that section 22 applies to deemed grants. The Governor's consent is therefore required, first had and obtained.
3. A mortgage executed without that consent is caught by section 26 and is null and void - it confers no security, and the bank's remedy against the property fails.
4. The consent application requires an approved survey plan of the parcel; the surveyor's task is to define it, connect it to Government control, and lodge the copy with the Surveyor-General within one month of completion under section 4 of the Survey Law.
5. If the archive search reveals that part of the parcel is covered by a later statutory grant to a third party, section 5(2) has already extinguished the client's rights over that part - and the surveyor must show it, not smooth it over.

That is the shape of a strong Paper VI answer: identify the type of right, identify the consenting authority, apply section 26, cite the authority, and then say what the surveyor must actually do.