AN APPRAISAL OF ALIENATION OF RIGHT OF OCCUPANCY UNDER THE NIGERIAN LAW: ISSUES AND CHALLENGES

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AN APPRAISAL OF ALIENATION OF RIGHT OF OCCUPANCY UNDER THE NIGERIAN LAW: ISSUES AND CHALLENGES

ABSTRACT

One of the problems this research discovers is that of conflict of interpretation of the requirement of consent provision as provided under sections 21 and 22 of the Land Use Act. This problem leads to conflicting decisions by the Apex court, the development that always puts the lower courts in dilemma as to which of the decisions of the court to apply in cases relating to alienation of land. Another problem the research discovers is that of noncompliance in that the cumbersome nature of the consent requirement makes people to alienate land without complying with the requirement of the law. Therefore, the research appraised and analyzed consent requirement, the hardship meted out by its interpretation by the courts. It also looked at the issues and challenges of the research and finally proffered some solutions to same. The methodology adopted in this work is doctrinal which is library oriented. The research found that there is conflict of decisions by the courts on cases relating to alienation of land. It also found that consent requirement is too wide, thus making the powers of the governor to be discretionary and cannot be challenged even by the holder himself. It again found that people engage in land transaction without complying with the requirement of the law. Finally, it has been recommended that the apex court should judicially and judiciously look at their previous decisions on consent requirement in order to avoid conflict of interpretations. It also recommended that consent clause should completely be removed or time limit for governors to give consent be fixed and if it expires, consent should be deemed granted. Banks need to be very careful by ensuring that mortgagors obtained consent and from proper authority.

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction

The results of population pressure, urbanization and socio-economic growth have great social and economic impact on land issues in Nigeria. This therefore makes people to move from rural to urban areas and therefore, congested urban areas are in need for expansion but land is too scarce.2 Hence, to acquire land became even impossible because of the cost of compensation. These difficulties faced by both the people and governments make it necessary for the government to do something about land distribution in Nigeria. Consequently, the Rent Control Panel was appointed in 1976 and saddled with the responsibility to study the system of land distribution and speculation. They therefore recommended among other things, that the federal military government should take over all land in the country. This and many panels and committees necessitated the enactment of the Land Use Act which provides the framework of national policy in Nigeria and enables the government to control the use of which the land can be put in all parts of the country.

To make the above policy of nationalizing land effective, the land use Act provides for

“right of Occupancy” 8 which gives the holder a mere right of possession and not ownership.9 Hence, two types of occupancies are provided for namely: Statutory Right of Occupancy (SRO) and Customary Rights of Occupancy (CRO). However, the Act stipulates that those rights granted to holders can only be alienated when governor‟s consent is first had and obtained. And failure to secure that consent may render any transaction or alienation null and void.

Therefore the above provisions of the land use Act make land transactions very difficult, thereby making grants very complicated. These problems can among others be attributed to inadequacy of the law regulating land transaction (Land Use Act), on one hand and the conflict of interpretation of the requirement of Governor‟s consent on the other. Thus, the research aims at appraising and analyzing alienation of right of occupancy, consent requirements and the problems it created. It also looks at the issues and challenges of the area and proffers some solutions.

1.2 Aim and Objectives of the Research

The aim of this research is to appraise alienation of the right of occupancy under the

Nigerian law. The objectives of the research are:

a. To analyze Governor‟s consent under the Land Use Act,

b. To examine problems and controversies created by the consent requirement as well as the hardship meted out by the interpretation of sections 21 and 22 of the Land Use Act.

c. To also bring out some issues and challenges and finally offers some solutions to the problems associated with the area of the research.

1.3 Scope of the Research

This research work is restricted to Alienation of Right of Occupancy in Nigeria. Hence, more emphasis is placed on right of occupancy, alienation of right of occupancy and the requirement of governor‟s consent as provided under Sections 21 and 22 of the Land Use Act. More so, the work touches some aspects of alienation under customary law, other laws and some other legislation As such, local cases on alienation of land in Nigeria, some of the provisions of the Land Use Act and other legislations on alienation of land are referred to.

1.4 Statement of the Problem

One of the problems the research discovers is that of consent requirement, to which the Act stipulates that it must be first had and obtained from the governor of a state. This is because even though there have been interesting developments from the courts since the ruling in Savannah Bank Ltd. v. Ajilo concerning governor‟s consent, yet some decisions appear to be directly opposite of Ajilo‟s case. This creates problems of conflict of interpretation of the provisions of governor‟s consent as well as controversial decisions by the courts. This is because, the Supreme Court has recently gone back to its earlier decision in Ajilo and held that any alienation without the consent Government of the Governor or Local Government as the case may be is null and void

Thus, in Nigeria Industrial Development Bank Ltd v. Olalomi Industrial Ltd . There was a mortgaged transaction without Governor‟s consent and the mortgagor wanted to invalidate the transaction on ground of lack of governor‟s consent. The court in refusing the mortgagor‟s application held inter alia that “… It is my view that it will be in the interest of justice to do so rather than allow the mortgagor to eat his cake and still have it back, the court shall resist at all cost the attempt at using it as an engine of fraud or cheating or dishonesty‟‟.

Again, in Alh. Ayotunde Seriki v. Sefi’u Olukorede . It was held that one cannot have a right of action when he or she comes to a court of justice in an unclean manner. It goes to say that equity will not allow a person to benefit or profit from his own crime, fraud, immorality or illegality as in the case of failure to obtain the Governor‟s consent to alienate his or her right .

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