Land Use Act

• Pages: 1-75

LAND USE ACT

(1) ACQUISITION OF LAND

1. Can land be acquired outside the procedure in Land Use Act?

“Exhibit 1 affects interest in land and had already been expunged for offending Sec-

tion 15 of the Kaduna State Land Registration Law Cap. 85. It also offends Section

6 subsection (4) of the Land Use Act Cap. 202 which provides for payment of

compensation for unexhausted improvement and not outright purchase as done by

the appellant in respect of Exhibit 1. Subsection (4) of Section 6 of the Land Use Act

Cap. 202 provides as follows: - “6(4) The Local Government shall have exclusive

rights to the lands so occupied against all persons except the Governor”. Exhibit 1 is

contrary to the spirit of the Act Cap. 202 and cannot stand. The Act has provided for

acquiring land under it and any acquisition which is not in accordance with the spirit

of the enactment will not be protected by the Act. The Court will not allow departure

from the prescribed procedure. See generally Pasmore v. Oswaldtwistle Urban

District Council (1898) A.C. 386, 394.” - Per Salami, J.C.A. in Lawson v. Afani

Cont. Co. Ltd Suit No. CA/K/174/97; (2002) 2 N.W.L.R (Pt. 752) 585 at 615.

(2) ALIENATION OF LAND

2. Alienation and surrender of rights of occupancy under Sections 22 and 26

of the Land Use Act 1978.

“Section 22 of the Land Use Act made it unlawful to alienate a right of occupancy

howsoever without the consent of the Governor first had and obtained and by Section

26 of the said act failure to obtain such consent would render the alienation null and

void.” - Per Muhammad, J.C.A., in Ibekwe v. Maduka Suit No. CA/J/7/25; (1995)

4 N.W.L.R (Pt. 392) 716 at 723.

3. Is agreement to alienate land without prior consent of Governor void?

“Reading the two sub-sections of S. 22 together; it could be seen that an agreement

to alienate without first obtaining consent does not make the agreement void. The

effect of S. 22 is to make any agreement to alienate conditional upon obtaining the

necessary consent.” - Per Muhammad, J.C.A. in Ogbo v. Adoga Suit No. CA/J/69/

93; (1994) 3 N.W.L.R. (Pt. 333) 469 at 478.

4. Prohibition of alienation of statutory right of occupancy without consent of

Governor.

(1) “Under Section 22 of the Land Use Act, it is unlawful 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 etc. or otherwise howsoever without the con-

sent of the Governor first had and obtained.” - Per Amaizu, J.C.A in N.I.D.B. v.

1

Acquisition of land Paras. 1-4

Olalomi Ind. Ltd. Suit No. CA/IL/6/2001; (2002) 5 N.W.L.R (Pt. 761) 532 at 562.

(2) “It is further observed that the Section only prohibits the alienation or mortgage by

a holder of a statutory right of occupancy of his right of occupancy without the

consent of the appropriate authority. A holder of a statutory right of occupancy does

not require the consent of a Governor before he can issue or accept a debenture.

This is because, the mere fact that a person has a legally enforceable right over

another’s property does not mean that the property has been alienated or assigned or

mortgaged to that person.” - Per Amaizu, J.C.A in N.I.D.B. v. Olalomi Ind. Ltd.

Suit No. CA/IL/6/2001; (2002) 5 N.W.L.R (Pt. 761) 532 at 563.

5. Prohibition of alienation of statutory right of occupancy without consent of

Governor under Section 22 of the Land Use Act 1978, renders an agree-

ment to sell illegal.

“From the above authorities, it is my firm view that an agreement to sell simpliciter

is not unlawful. An agreement to sell, not being an agreement to sell even if the

consent is withheld, is not unlawful by virtue of S. 22 of the Act, which is silent on

agreement. An agreement to alienate is inchoate till consent is obtained. After the

consent is obtained the agreement becomes complete and effective.” - Per

Muhammad, J.C.A. in Ogbo v. Adoga Suit No. CA/J/69/93; (1994) 3 N.W.L.R. (Pt.

333) 469 at 477.

(3) ALIENATION OF RIGHT OF OCCUPANCY

6. Alienation of land under the Act must be with the Governor’s consent.

“As far as I am aware, the plaintiffs have not been exempted by the Governor-in-

Council from the provisions of the Native Lands Acquisition Law. Therefore, in view

of the admission made by the plaintiffs that the company was incorporated in En-

gland, I hold that the plaintiffs’ company is an “alien” for the purposes of the Native

Lands Acquisition Law. On the evidence before me I also hold that the defendant is

a “native”. In the circumstances, it seems to me that, to create a valid equitable

mortgage the transaction between the plaintiffs and the defendant should have been

approved by the Governor in accordance with the provisions of Section 3(1) of the

Native Lands Acquisition Law. This approval has not been proved in this case and in

view of the provisions of subsection (3) thereof, the equitable mortgage intended to

be created by the transaction between the plaintiffs and the defendant whereby Ex.

A. was deposited as security for the overdrafts is void and of no effect.”– Per

Fatayi-Williams, J. in The British and French Bank Ltd. v. Akande Suit No. 1/220/

61; (1961) All N.L.R. 849 at 854.

Paras. 4-6 Vol. 15: LAND USE ACT 2

3 Alienation of right of occupancy Par a. 7

7. Alienation of land without consent where consent is required is void.

(1) “The land upon which this house is built is shown to be Crown Land held by the

plaintiff-appellant upon a lease granted to him by the Crown under the Crown Lands

Ordinance (Cap. 84). That lease the Magistrate found to be one which contained the

covenant not to sublet as set out in Section 6(ii) (e) of the Crown Lands Ordinance

and upon determining this fact the learned Magistrate ruled that the plaintiff-appel-

lant had no cause of action for the reason stated by him as follows: - “Under Section

6(ii)(c) of Cap. 84 Crown Lands Ordinance he was not entitled to part with the

possession of any part of the land in question without the approval from Government.

From Exhibits “E” and “F” which he tendered himself, it is clear that he sublet to

defendant in open defiance of the implied covenant and therefore his contract with

defendant was illegal. No Court ought to enforce an illegal contract, or allow itself to

be made the instrument of enforcing obligations which arise out of a contract or

transaction which is illegal. This Court, therefore, finds that it cannot assist plaintiff to

recover any rents which have accrued to him as a result of the illegal transaction he

entered into with defendant and the case is dismissed. No order as to cost.” - Per

Jackson, Assistant J. in Esi v. Moroku (1940) 15 N.L.R. 116 at 117.

(2) “There is no express provision in the Ordinance that a subletting without consent

is illegal. It is not an illegal contract if it is a subletting of private land, so far as I know;

and it would require some very clear and indubitable indication in the Ordinance

before one could say safely that it is an illegal contract in the case of Crown Land.

One’s view of public policy is a dangerous guide, as I have already remarked. The

indication is supposed to be found in Section 35, which states: - “Any person who

shall unlawfully occupy Crown Land, in any manner whatsoever, “shall be liable to a

fine of fifty pounds”. It was the view in the judgment in Sam Warri Esi’s case that

the sub-lessee was guilty under that Section. That view was of course a corollary of

the view that the subletting was illegal: obviously one must first decide that the sublet-

ting is illegal before one can say that sub-lessee is a person in unlawful occupation,

otherwise the argument is in a circle and therefore fallacious. So far as I can see the

whole judgment in Sam Warri Esi’s case at bottom rests on a view of public policy.

The covenant not to sublet is there to promote an object of public policy, says the

judgment; from that it is deduced that subletting in breach of that covenant is an

illegal contract. Take away the unsafe foundation of public policy and there is nothing

left for the view that the subletting is an illegal contract. I have not seen any authority

for saying that a sub-lessee whose contract is made in breach of a covenant not to let

without consent is in unlawful occupation in case of private land, and I have seen no

reason for saying that he is in unlawful occupation in the case of Crown Land.

It is an accepted rule that a person is not guilty of an offence unless he

clearly comes within the wording of the enactment creating the offence. I think that

in the absence of some clear provision in the Ordinance that such a sub-lessee is in

unlawful occupation or at least that the subletting is an illegal act, it cannot be said