The land ownership system in pre-colonial Nigeria was communal. Land was deemed not owned by individuals but by communities and families in trust for all the family members. The legal estate under customary land tenancy is vested in the family or community as a unit.

The Land Use Act of 1978 was enacted to redirect the general philosophies of pre-existing land tenure systems in Nigeria through the application of a uniform statutory regulation of ownership and control of land rights and to stimulate easier access to land for greater economic development as well as promote national and social cohesion.

The statutory right of occupancy granted by a Governor is presently the highest right to land in Nigeria. This right of occupancy is a right which allows the holder to use or occupy land to the exclusion of all other persons except the Governor and is granted for a maximum holding period of 99 years, subject to the payment of ground rent fixed by the Governor throughout the holding period.

An individual in possession of Land with a certificate of occupancy who desires to transfer ownership of a titled land with CofO would require as provided under the Land Use Act, 1978 the consent of the Governor of that state for such transaction before the transaction can be deemed legal in the eyes of the Government.

In UNION BANK OF NIGERIA AND ANOR V. AYODARA AND SONS (NIG) LTD (2007)13 NWLR Pt 1052 Pg 567, the respondent obtained a loan from the appellant and executed a deed of legal mortgage on his property. The consent of the Governor in respect of alienation of the property was communicated by the chief land officer for the permanent secretary who acted for the honorable commissioner of lands and housing to who powers to give consent was delegated. When the respondent/mortgagor defaulted in payment, the appellant move to sale the property. The respondent challenge the sale of the property on the ground that the consent of the Governor was not duly obtained. The Supreme Court held that the chief land officer for the permanent secretary for the commissioner of land and housing was not the proper person to give consent as such power cannot be exercise by him. Thus non-conformity with Section 22 of the land use act renders the mortgage transaction void.

The power of the Governor to give his consent in certain transactions is provided for in Section 22 of the Land Use Act 1978 which states that: “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, and transfer of possession, subleases or otherwise howsoever without the consent of the Governor first had and obtained”.

This power confers on the Governor the right to consent to any of the transactions stipulated in the Act, provided that they are valid. However, if the initial certificate of occupancy which is the root title of the land is obtained fraudulently, the Governor may revoke same immediately. The promulgation of the Act brought about the vesting of exclusive powers over land within the territory of any given State in the Governor of that State.

Sections 21 and 22 of the Act prohibit alienation, assignment, mortgage, transfer of possession, sub – lease or otherwise howsoever customary or statutory rights of occupancy in Nigeria without the consent and approval of the Governor of the state where such right of occupancy was granted.

Since the land is held in trust by the state government, the Governor needs to approve that transaction. Otherwise, the title that will be passed would be deemed imperfect. This means that the final authority on landed matters is not aware of the transaction, the implications can be terrible a times especially if one of the parties to the transaction decides to be “dubious”.

In the occasion where a property owner desires to exercise his rights over his property in which he holds an equitable interest when such owner decides to resell, mortgage, grant an interest in the property for long periods of time (3 years or more) or carry out other transactions prescribed by the Act on the property, the consent of the Governor will be required to validate such transaction. Failure to obtain the required consent renders the transaction null and void, thus making the rights of any third party unenforceable in the event of a breach of contract.
Therefore, for a transaction of this nature to be valid, a deed of assignment, deed sub-lease, deed of partition, deed of mortgage and so on must be drafted by a Lawyer, duly signed by both parties and acknowledged by the Governor through a consent vesting a valid title on the purchaser and subsequent transactions on the same land would be registered as a Governors Consent.

In other words, the first person on a land is the only person or group of persons entitled to obtain a Certificate of Occupancy. Every subsequent buyer of that land must get a Governor’s consent. There can only be one Owner of the Certificate of Occupancy on a Land and it will not be replicated for another person once the land has been sold or transferred to another person.

In addition, an advantage of having a Governor’s consent is that you can transfer your land to another person without going back to the initial seller or Family Baale to sign your deed and Form 1c which are compulsory requirements needed before one can process Governors consent.