The Effect of Governor’s Consent on Priority of Interest Under the Land Use Act: Has Anything Changed?

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ABSTRACT

The Effect of Governor’s Consent on Priority of Interest Under the Land Use Act: Has Anything Changed?

Olugbenga Ojo*

This paper examines the issue of priority of interest in land under the Land Use Act, emphasising the effect of the mandatory requirement for consent of the Governor to the alienation of an interest in land on the existing priority rules before the Land Use Act. After investigating the rules of priority before and after the promulgation of the Act, adopting doctrinal methodology, the paper concludes that the Land Use Act has not changed the law on the priority of interest in land. The Governor’s consent only validates the transaction and renders the alienation void without the consent, but priority is determined by registration after obtaining the consent. The paper suggests that Judges should read the Act as a whole as against reading a section or two in isolation or referring to irrelevant common law concept or maxims of equity and not making any reference to the provision(s) of the Act as was done in the case of Orunwese v Amu.

Keywords: Alienation, Land Use Act, Governor’s Consent, Registration

INTRODUCTION
We must enter a caveat from the outset. This paper is not on priority of interest in land of where there are equal equities, the law prevails which learned author Emeka Chianu₁ has rightly termed as: the Priority of Second Purchaser, who is a bonafide purchaser of legal estate without notice of the earlier equitable interest.₂ This paper is also not on priority based on successive assignments of pure personalities or intangibles,₃ which can only be enforced by action in court and not by taking physical property.₄ This paper is also not on competing claims of priority where the Governor issues two inconsistent certificates of occupancy to two different persons in respect of one parcel of land under section 5(1). The courts have resolved this by adopting the normative rules of priority of first in time is stronger in law. Judicial authorities,₅ academic opinions,₆ and the opinions of textbook

* LL.M, BL. Principal Counsel, Gbenga Ojo & Co, Lagos Nigeria.

1. Emeka Chianu, Law of Sale of Land (Law Lords Publications 2009) 450.
2. Cave v Cave [1880] 15 Ch.D 639, Animashaun v Olojo [1990] 6 NWLR (pt 154) 111, Orasanmi v Idowu [1959] 4 FSC 40 , Pilcher v Rawlins [1872] LR 7 Ch. App 268-269
3. Dearle v Hall [1813] 3 Russ 1. See Fidelis Oditah, Legal Aspect of Receivables Financing (Sweet and Maxwell 1991) 129 for a detailed analysis of the rule of priority of intangibles or choses in action.
4. Ecobank v Ngomadi [2016] LPELR 41482, Unity Bank PLC v Ahmed [2020] 1 NWLR (pt 1705) 364, Julius Berger Nig PLC v TRCB Limited [2019] NWLR (pt 1665) 219
5. Ogunleye v Oni [1990) 2 NWLR (pt 135) 280, The Registered Trustees of the Apostolic Church v Owoleni [1990] 6 NWLR (pt158) 514, Nigeria Engineering Works Ltd v Denap Ltd [2002) 2 FWLR (pt89)1062, Lang v Mohammed [2000] FWLR (pt 28) 2152,, Abioye v Yakubu [1991] 3 NWLR (pt190) 130, Dantsoho v Mohammed [2003] 6 NWLR (pt 817) 457, Ibrahim v Mohamed [2003] 6 NWLR (pt 817) 615, Mulima v Usman [2014] 16 NWLR (pt 1432)160 Ikhimnwin v Elema [2015] 8 NWLR (pt 1461) 201.
6. FO Adeoye and H Oguniran, ‘Priority of Interest in Land Under The Land Use Act’ [1989) 23, Emeka Chanu ‘Land Use Act and Individual Land Rights Land Use Act, 25 years thereafter’ 128, G Ezejiofor, ‘Interpreting Section 5 of the Land Use Act’ [1993/1994) 19, 20 & 21 JPPL 27

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW VOL.12 NO.3