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TWO CASES WHERE CONSENT BEFORE ALIENATION WAS NOT SOUGHT, AND TRANSACTION WAS DECLARED VOID

Dictum

✓ In Dickson v. Solicitor-General, Plateau State (1974) 5 SC 21 (1974) NSCC (vol.9) 268, the respondent as plaintiff who was the Solicitor-General, brought an action against the appellants as defendants seeking the eviction of the appellants from some premises. The appellants were in those premises by virtue of a certificate of occupancy granted to a company whose statutory right of occupancy had been determined by the sale of the premises by the said company to the 2nd appellant. The trial Judge held that the sale or purported sale of the property and the power of attorney in respect thereof to the 2nd appellant through whom the 1st appellant occupied the property was illegal and ineffective not having been done with the prior ministerial consent, and gave judgment for the respondent. On appeal to this court, S.28(1) of the Land Tenure Law came up for consideration and Coker J.S.C. observed at pages 269-270 as follows: “The plaintiff’s case is that the consent of the Commissioner of Lands was not obtained as it should have been obtained to either of these transactions [i.e. the sale of the property and the power of attorney]. It is not disputed that the consent of the Commissioner of Lands was not obtained to these transactions and indeed the 1st defendant in the course of his evidence at the trial stated that to the best of his knowledge no consent of the commissioner of Lands was obtained to the purported agreement of sale. The section prescribes as a prerequisite to the legality of any of the transactions contemplated by it that the consent of the Commissioner of Lands should ‘first be had and obtained’. This means what the section says and unless such consent was first had and obtained before the occurrence of the relevant transactions, the consequence envisaged by the action must follow. We have come to the conclusion clearly in our minds that both transactions offend against the clear provisions of section 28(1) of the Land Tenure Law, Cap.59. Section 28(1) provides, inter alia, as follows: ’28(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Military Governor or the Commissioner to alienate his right of occupancy or any part thereof by sale, assignment, mortgage, transfer of possession, sublease, bequest or otherwise howsoever without the consent of the Commissioner first had and obtained.’ The first clause in the power of attorney, … transfers to the donee of the power of attorney the right to the possession of the premises in question. As this is one of the matters contemplated by section 28(1), it is manifest that the power of attorney itself offends against that section. It is easy to see that the defendants had made out no case at all to entitle them to be in lawful possession or occupation of the property in question and that the learned trial Judge was right to conclude that they should be evicted. [parenthesis in square brackets supplied].”

✓ The case of Nakyauta v. Maikima (1977) 6 SC 1at 76 (1977) NSCC (vol. 11) 355 enunciates a similar principle. It is enough, without stating the facts of that case, to quote the observation of Udoma J.S.C. at pages 363-364, inter alia, as follows: ” …. It occurs to us that learned counsel for the second defendant would appear to have overlooked the covenant contained in the certificate of occupancy granted to the plaintiff by the Minister in 1961, and the provisions of section 42 of the Land Tenure Laws, Cap.59 both of which must be read together. In section 42 of the Land Tenure Law, it is provided as follows: ‘No right of occupancy granted under the provisions of this law or under the provisions of any written law replaced by this law which is subject to a covenant, whether expressed or implied, by the holder not to assign, or which under any law may not be alienated, without the consent or approval of the Military Governor or the Commissioner or a Native Authority or Local Authority shall be sold by or under the order of a court save to a purchaser approved in writing by the Commissioner and upon terms also so approved.’ Then covenant 13 of the Certificate of Occupancy, No.10466, granted to the plaintiff provides: ’13.Not to alienate the right of occupancy hereby or any part thereof by sale, mortgage, transfer of possession, sublease or bequest or otherwise however without the consent of the commissioner first hand and obtained’ We are, therefore, of the opinion and hold and declare that the purported sale of the said property on or about 4th October, 1969 by the first defendant, pursuant to a writ of attachment in satisfaction of the judgment/debt in Suit No.K/ 66/64 – Martin Gutman v. Northern Buying and Shipping Association Limited – was null and void ab inito. It was irregular, improper and invalid and of no legal effect whatsoever.”

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THERE HAS TO BE AN EXISTING CONTRACT FOR GOVERNOR’S CONSENT TO BE GIVEN

But the holder of a statutory right of occupancy is certainly not prohibited, by section 22(1) of the Land Use Act, 1978 from entering into some form of negotiation which may end with a written agreement for presentation to the Governor for his necessary consent. I think this is good sense because the Governor when giving his consent may require the holder of the statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage sublease in order that his consent under subsection (1) may be signified by endorsement thereto.

– Katsina-alu JSC. Brossette v. Ilemobola (2007)

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CONSENT BY GOVERNOR BEFORE ALIENATION IS A REQUIREMENT

As I have stated before, this is the category to which section 34(2) belongs. When the holder even if in fee simple becomes the holder of a statutory right of occupancy he becomes subject to the express and implied terms of the grant. The term relating to prior consent in writing by the Governor to alienation is a statutory requirement which will be inconsistent with any contrary provision. I therefore will answer the question to be determined in this case in the affirmative.

– Karibe-Whyte, JSC. Savannah v. Ajilo (1989)

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PARTIES CAN START NEGOTIATION BEFORE GOVERNOR/MINISTER’S CAN BE APPLIED FOR

However, this does not mean that parties cannot start negotiation and settlement of the terms on which the transaction is to be hinged before applying for the Minister’s approval e.g. preparing a deed of assignment. Parties would not be expected to apply for the Minister’s approval without settling and agreeing on the terms related to the transaction; likewise the Minister would not be expected to give approval to a transaction the terms of which are not known to him. See Dickson v. The Solicitor-General of Plateau State (1974) 5 SC 21 (1974) NSCC (Vo19) 268; Labaran Nakyauta v. Ibrahim Maikima (1977) 6 SC 51 and Savanah Bank Ltd. v.A.O. Ajilo (1989) All NLR 26 (1989) 1 NWLR.

— Wali, JSC. Rockonoh v. NTP (2001) – SC.71/1995

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