Learning Objectives

By the end of this lesson, the student will be able to:

Identify and classify the principal categories of transactions affecting land in Nigeria — sale, lease, mortgage, gift, and inheritance.

Analyse the statutory requirements for perfection of land transactions under the Land Use Act 1978, the Conveyancing Act 1882 (as received), the State Registration of Titles Laws, and the Stamp Duties Act, with emphasis on Governor’s consent under sections 21 and 22 LUA.

Evaluate the legal consequences of failure to obtain Governor’s consent (Savannah Bank v. Ajilo (1989)).

Describe the legal framework governing inheritance of land in Nigeria under testamentary and intestate succession, including statutory, customary, and Islamic law.

Explain requirements for a valid gift of land.

Demonstrate understanding of the perfection process: stamping, registration, and consent.

Introduction

The law governing transactions affecting land in Nigeria is the product of received English law, indigenous customary law, Islamic law (in northern states), and post-independence statutory enactments — foremost the Land Use Act 1978. Each transaction must be analysed against this plural legal background.

The principal categories: sale (outright alienation), lease (right to exclusive possession for a defined term), mortgage (security interest), gift (voluntary transfer without consideration), and inheritance (devolution upon death).

The sale of land is the most commercially significant transaction. It involves outright alienation of the vendor’s interest — whether a statutory right of occupancy, a customary right of occupancy, or a residual interest subsisting under pre-Act customary law — in exchange for consideration.

The deed of conveyance is the principal instrument in southern states. It is in writing, executed under seal (or by signature with attestation), and conveys all of the vendor’s estate, right, title, and interest.

The deed typically recites root of title, describes parties, sets out parcels (legal description), contains operative words ("the Vendor hereby conveys and assigns"), includes covenants for title, and concludes with execution clause.

Registration in Lagos is governed by the Land Registration Act (Cap. L47, Laws of Lagos State 2015). In Abuja, the Land Registration Act (Cap. L35, LFN 2004) applies at AGIS. Failure to register doesn’t invalidate the transaction inter partes but renders the instrument ineffective against a subsequent purchaser for value who registers first.

Section 22 LUA: It shall not be lawful for the holder of a statutory right of occupancy to alienate by assignment, mortgage, transfer of possession, sublease, or otherwise without the consent of the Governor first had and obtained.

The consent requirement intended to prevent land speculation, ensure government control, and enforce zoning/planning. In practice, it has become one of the most problematic aspects of Nigerian land administration. The process is slow, costly, and often characterised by opacity.

In Lagos: consent fees calculated as percentage of transaction value, submission of extensive documentation (title evidence, survey plans, tax clearance, valuation reports), and waiting periods extending months to years.

Consequence of failure: Savannah Bank v. Ajilo — null and void ab initio.

A lease is a transaction granting the right to exclusive possession for a defined period in consideration of rent. The lease creates privity of estate and privity of contract. The lessor retains the reversion.

The grant of a lease by holder of SRO is alienation requiring Governor’s consent under section 22. A sublease for term exceeding three years (or with renewal making aggregate over three years) is similarly subject to consent.

Leasehold transactions are significant in major commercial centres. In Lagos (Victoria Island, Ikoyi, Lekki), commercial leases are typically 2-5 years with renewal options.

Perfection requires Governor’s consent (where applicable), stamping under the Stamp Duties Act (Cap. S8, LFN 2004), and registration. A lease not stamped is inadmissible in evidence (section 22(4) Stamp Duties Act). A lease not registered is inoperative against a subsequent bona fide purchaser who registers first.

A mortgage creates a security interest in favour of a lender to secure repayment of a loan. The mortgage doesn’t transfer ownership; it creates a charge entitling the mortgagee, on default, to exercise remedies including power of sale, appointment of a receiver, and foreclosure.

Forms recognised in Nigerian law:

Legal mortgage: legal estate or interest conveyed to the mortgagee, subject to proviso for reconveyance.

Equitable mortgage: equitable interest created, typically by deposit of title documents.

Statutory mortgage: created under applicable Property and Conveyancing Law (e.g., Mortgage and Property Law of Lagos State 2010).

Creation of a mortgage over SRO land is subject to section 22 consent. Without Governor’s prior consent, the mortgage is void ab initio (Savannah Bank v. Ajilo).

Chief Ajilo obtained a statutory right of occupancy and mortgaged the property to Savannah Bank to secure a loan. The mortgage was executed and the bank advanced funds, but Governor’s consent was never obtained. When Ajilo defaulted, Savannah Bank sought to exercise its power of sale.

The Supreme Court held the mortgage was null and void ab initio. Section 22 imposed a mandatory and absolute requirement. The language is imperative: "it shall not be lawful" to alienate "without the consent of the Governor first had and obtained." The absence of consent was not a mere irregularity that could be cured by subsequent ratification.

Savannah Bank was unable to enforce its mortgage. The loan became an unsecured debt.

The Savannah Bank principle has been reinforced in Awojugbagbe Light Industries Ltd v. Chinukwe (1995) 4 NWLR (Pt. 390) 379.

A gift is a voluntary transfer without consideration. Two categories:

Gift inter vivos: made during the donor’s lifetime — immediate and irrevocable.

Gift mortis causa: in contemplation of death — conditional, revocable before death.

Under received English law, essential elements: (a) donor’s intention to make a present and irrevocable transfer; (b) delivery (deed of gift, since land cannot be physically handed over); (c) acceptance by donee.

The deed of gift must comply with the same formality requirements as a deed of conveyance.

Under customary law, gift of land is effected in accordance with community customs. In Yoruba communities, requires consent of family head and principal members; completed by a ceremony. Under Islamic law, governed by Maliki school requirements including qabd (taking possession).

A gift of land held under SRO constitutes alienation under section 22 — subject to Governor’s consent. The fact that the transfer is gratuitous doesn’t exempt it. Failure to obtain consent renders the gift void.

Under the Stamp Duties Act, a deed of gift is subject to ad valorem stamp duty on the market value at the date of gift.

Inheritance is governed by one of three bodies of law depending on the deceased’s personal law:

Statutory law of succession (received English law)

Customary law

Islamic law

A person subject to received English law may make a testamentary disposition by executing a valid will.

Under the Wills Law of Lagos State (Cap. W2, 2015): testator must be of sound mind and majority age; will must be in writing; signed by testator (or by another in testator’s presence and direction); signature made or acknowledged in presence of at least two witnesses who also sign in testator’s presence.

The Administration and Succession (Estate of Deceased Persons) Law of Lagos State 2015 has introduced further modifications.

A codicil supplements, amends, or partially revokes a will. Must be executed with the same formalities.

Where a person dies without a valid will, devolution is governed by intestate succession rules.

Under the Administration of Estates Law of Lagos State 2015: surviving spouse entitled to personal chattels absolutely and life interest in deceased’s dwelling house, with remainder passing to children.

Under customary law of several Igbo communities, widow entitled to remain in matrimonial home but cannot inherit the land — which passes to male children or, absent male children, to deceased’s brothers. This was challenged constitutionally and the Supreme Court in Ukeje v. Ukeje (2014) held the Igbo customary law that denied female children inheritance was discriminatory and unconstitutional under section 42 of the 1999 Constitution.

Under Islamic law, intestate succession (faraid) prescribes fixed shares:

Surviving wife: one-eighth of estate if deceased left children; one-quarter if no children.

Male children receive twice the share of female children.

Parents, siblings, and other relatives have prescribed fractional shares.

Section 24 LUA addresses devolution upon death. Upon death of holder of SRO, the right shall be inherited under applicable law. The section doesn’t on its face require Governor’s consent for transmission by inheritance.

In practical terms, the heir must apply to the Governor for a new C of O in his or her name, which functions as a de facto consent requirement.

Three principal categories of requirements:

(a) Governor’s or Local Government consent under the LUA.

(b) Stamping under the Stamp Duties Act.

(c) Registration under applicable lands registration legislation.

Mandatory; applies to all forms of alienation; non-compliance renders the transaction void ab initio. The consent is personal to the specific transaction.

A significant proportion of land transactions in Nigeria — particularly in secondary and informal markets — are concluded without consent. The risk is acute for mortgage lenders. Due diligence requires careful examination of every transaction in the chain.

The Stamp Duties Act requires instruments to be stamped. Failure renders the instrument inadmissible in evidence (section 22 SDA), unless subsequently stamped with payment of penalty. Doesn’t invalidate the transaction.

Distinction: unstamped deed can be cured by late stamping; deed executed without Governor’s consent cannot be cured.

Governed by lands registration legislation of each state. In Lagos, the Land Registration Law 2015 requires registration of all instruments affecting land.

Two systems exist: registration of deeds (constructive notice; protects registered holder against subsequent unregistered claimants) and registration of title (Torrens-style; register itself is primary evidence of title).

Perfection involves three sequential steps:

Obtaining Governor’s (or LG’s) consent.

Stamping the instrument.

Registration at the Lands Registry.

The sequence is strictly enforced by registration authorities. Lands Registry will not accept unstamped instruments. Stamping authority won’t stamp without Governor’s consent endorsement.

Timeline varies: in Lagos, perfection of a sale can take 6 months to 2 years. In Abuja, somewhat shorter. Costs include consent fee (3-6% in Lagos), stamp duty, registration fee, and professional fees.

Mr. Adewale (C of O holder) sells residential property in Lekki Phase 1 to Mrs. Okonkwo for N50 million. She finances with mortgage from Unity Mortgage Bank. Eight steps: contract of sale; title investigation; deed of assignment by Adewale to Okonkwo; Governor’s consent to assignment; deed of legal mortgage by Okonkwo to Unity; Governor’s consent to mortgage; stamping; registration. Only upon completion of all is the bank’s security fully protected.

Alhaji Garba (SRO holder over commercial property in Kano) dies intestate, survived by three sons and two daughters. Under Islamic faraid, sons receive twice daughters’ shares. Heirs wish to sell to a developer. Steps: letters of administration from Kano State High Court (or Sharia Court of Appeal); distribution under Islamic succession; application for new C of O; deed of assignment by all heirs; Governor’s consent; stamping; registration. Complexity compounded by potential disputes and signature collection.

KEY TAKEAWAYS

Five principal transactions: sale, lease, mortgage, gift, and inheritance.

Governor’s consent under sections 21 and 22 is mandatory; a transaction without consent is void ab initio (Savannah Bank v. Ajilo).

Mortgage lenders face the risk of losing their security if consent is not obtained.

Inheritance governed by statutory succession, customary law, or Islamic law depending on personal law of deceased; Ukeje v. Ukeje invalidated customary rules discriminating against female heirs.

Gifts of land are subject to consent and registration; ad valorem stamp duty on market value.

Perfection requires consent, stamping, and registration — sequential and interdependent.

Land administration reforms in Lagos (LSLA), Abuja (AGIS), and Kano (KANGIS) aim to reduce delays.

Knowledge Check (10 Questions)

1. Which section of the Land Use Act requires the consent of the Governor for the alienation of a statutory right of occupancy?

   1. Section 5
   2. Section 15
   3. Section 22
   4. Section 28

2. In Savannah Bank of Nigeria Ltd v. Ajilo, the Supreme Court held that a mortgage executed without Governor’s consent is:

   1. Voidable at the option of the mortgagor
   2. Valid but unenforceable
   3. Null and void ab initio
   4. Valid if subsequently ratified

3. Under the LUA, the consent of the Local Government is required for the alienation of which type of right?

   1. Statutory right of occupancy
   2. Customary right of occupancy
   3. Both statutory and customary
   4. Neither

4. Which of the following is NOT a step in the perfection of a land transaction?

   1. Governor’s consent
   2. Stamping of the instrument
   3. Registration at the Lands Registry
   4. Publication in the Federal Gazette

5. Under the Stamp Duties Act, an unstamped instrument is:

   1. Void ab initio
   2. Inadmissible in evidence in civil proceedings
   3. Valid and admissible in all proceedings
   4. Voidable at the option of either party

6. In Ukeje v. Ukeje (2014), the Court held that:

   1. Female children cannot inherit land under customary law
   2. The LUA overrides customary succession law
   3. Customary law that denies female children inheritance rights is unconstitutional
   4. Islamic succession rules apply to all Nigerians

7. Which of the following transactions does NOT require Governor’s consent under section 22 LUA?

   1. Sale of a statutory right of occupancy
   2. Mortgage of a statutory right of occupancy
   3. Sublease for a term of two years with no renewal clause
   4. Gift of a statutory right of occupancy

8. The deed of conveyance in a sale of land is required to be:

   1. Oral and witnessed by two persons
   2. In writing, signed, and attested by witnesses
   3. Endorsed by the Chief Justice of the state
   4. Approved by the National Assembly

9. Under Islamic law, the share of a surviving wife where the deceased husband left children is:

   1. One-half
   2. One-quarter
   3. One-eighth
   4. One-sixth

10. Registration of a land instrument under the registration of deeds system provides:

    1. A government guarantee of the validity of title
    2. Constructive notice and priority over subsequent unregistered claimants
    3. An automatic grant of Governor’s consent
    4. Exemption from stamp duty

Answers

Answers: 1. (c) 2. (c) 3. (b) 4. (d) 5. (b) 6. (c) 7. (c) 8. (b) 9. (c) 10. (b)

References and Further Reading

Land Use Act 1978 (Cap. L5, LFN 2004), sections 1, 5, 21, 22, 24, 26, 28, 36

Stamp Duties Act (Cap. S8, LFN 2004), sections 4, 12, 22(4), 23

Savannah Bank of Nigeria Ltd v. Ajilo (1989) 1 NWLR (Pt. 97) 305

Awojugbagbe Light Industries Ltd v. Chinukwe (1995) 4 NWLR (Pt. 390) 379

Ukeje v. Ukeje (2014) LPELR-22724(SC)

Wills Law, Cap. W2, Laws of Lagos State 2015

Administration and Succession (Estate of Deceased Persons) Law of Lagos State 2015

Property and Conveyancing Law, Cap. 100, Laws of Western Nigeria 1959

Mortgage and Property Law of Lagos State 2010

Land Registration Law 2015, Laws of Lagos State

I.O. Smith, Practical Approach to Law of Real Property in Nigeria (3rd edn, Ecowatch Publications 2012)

T.O. Elias, Nigerian Land Law (4th edn, Sweet & Maxwell 1971)

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