Is Obtaining the Governor’s Consent Mandatory Before Land Can Be Alienated?

CASE TITLE: YAKUBU v. KARAL & ORS (2024) LPELR-61854(CA)

JUDGMENT DATE: 27TH MARCH, 2024

JUSTICES: ITA GEORGE MBABA JCA
PATRICIA AJUMA MAHMOUD JCA
PETER OYINKENIMIEMI AFFEN JCA

DIVISION: YOLA

PRACTICE AREA: LAND LAW

FACTS:
The Appellant lodged an appeal against the decision of the Adamawa State High Court in Suit No. ADSY/113/2012, delivered on February 5, 2020.

At the trial Court, the Appellant, as Plaintiff, sought various reliefs, including a declaration of entitlement to a piece of land, a perpetual injunction, damages, and alternative land. The Plaintiff presented evidence and exhibits, and the Defendants also provided evidence, except for the 1st Defendant who did not participate in the trial. Despite the proceedings, the trial Court dismissed the Plaintiff’s claim. The Court held that the Plaintiff failed to prove ownership of the disputed land, emphasizing the lack of consent from the Governor as required by the Land Use Act. Consequently, the trial Court deemed the disputed land a government layout for the benefit of Adamawa indigenes. This judgment forms the basis of the appeal.

ISSUES FOR DETERMINATION:
The appeal was determined on the following issues:

• Whether having regard to the facts and evidence presented before the trial Court, the trial Judge was not wrong to have held that Appellant failed to prove the area in which Appellant sought a declaration and an order of injunction?
• Whether the trial Judge was not wrong to have raised suo motu the issue of non-compliance with Section 22(1) of the Land Use Act and decided on same without calling on parties to address the Court on same?
• Whether the trial Judge was not wrong when the trial Court dismissed the claim of the Appellant and held that the Government of Adamawa State can allocate the same to any indigene of the State that apply for a grant of a right of occupancy?

COUNSEL SUBMISSIONS:

Counsel for the Appellant argued that the trial Court improperly raised the issue of the lack of the Governor’s consent for the sale of the property, which was sold to the Appellant by his elder brother, Alhaji Sa’adu Sarki Yakubu, without the consent being discussed by either party during the trial. He cited the trial Court’s statement that no consent was given as required by law and that one cannot claim what does not legally belong to them. He argued that this issue should not have been raised suo motu and decided without giving the parties a chance to address it, referencing the case of Ojukwu vs. Yar’Adua & Ors. to support his point.

Counsel further explained that the property initially allocated to the Appellant’s elder brother was re-allocated to another person, but before that re-allocation, the Appellant had purchased the title and taken possession. When a settlement was reached, the property in dispute was allocated to the elder brother, with an agreement that the Appellant would take this new allocation. The Appellant was given the allocation papers and possession, and these facts were not contested by the Respondents. Counsel asserted that the issue of the Governor’s consent was raised prematurely since the Appellant and his brother were still negotiating the full transfer of interest in the property. He argued that the Appellant had acquired an equitable interest in the property, which should not be defeated by the lack of registration or Governor’s consent. He referenced cases like Monkom & Ors vs. Odili and I.T.I. (Nig) Ltd vs. Aderemi to argue that the Land Use Act allows for written agreements subject to the Governor’s consent and that the trial Court acted prematurely in invoking the provisions of Section 22(1) of the Land Use Act.
Counsel noted that there was no written agreement between the Appellant and his elder brother that could be used to determine whether the sale was absolute or conditional. He urged the Court to resolve the issues in favor of the Appellant.

The 1st Respondent’s counsel argued that according to Section 22(1) of the Land Use Act, the Governor’s consent must be sought before any interest in land can be alienated. He contended that the Appellant failed to present any document proving rightful ownership of the land. Citing Ebundon vs. Incorporated Trustees RRCG & Ors. he stated that a judge can draw inferences from the facts of a case, and these inferences were not introduced suo motu but were based on the case’s facts and final addresses. He argued that the issue of the Governor’s consent was properly raised during the trial and that the Appellant was not prejudiced by this issue being addressed by the Court.

Counsel for the 5th and 6th Respondents maintained that the Appellant was not the recognized titleholder because no instrument of transfer was registered in his name. They agreed that the trial judge was correct in stating that the Appellant did not comply with Section 22(1) of the Land Use Act. They argued that even if the trial Court had raised the issue suo motu, the Appellant must show that this failure resulted in a miscarriage of justice, citing Imah vs. Okoogbe and Olubode vs. Salami. They added that while Courts should not raise factual issues suo motu, they can invoke applicable laws, supported by Tukur vs. Govt. of Gongola State. They urged the Court to dismiss the appeal.

DECISION/HELD:
The appeal succeeded in part. The Court also made an order of non-suit of the case.

RATIO:
LAND LAW – GOVERNORS CONSENT: When is Governor’s consent required under Section 22 of the Land Use Act

“What is intriguing about this case is the timing of the suit by Appellant and capacity in which he took out the action, in my view. Having not yet perfected the transfer of interests in the land from his (Appellant’s) elder brother, Alhaji Sa’adu Sarki Yakubu, who was late at the time of taking out this suit, I think Appellant should have been more circumspect, as to the proper step to take in the challenge or alleged trespass by the 1st to 4th Respondents. He needed to pursue the formal transfer of title from his late brother to himself by satisfying the formalities of seeking and obtaining the requisite transfer of title to the land, from his brother, Alhaji Sa’adu Sarki Yakubu, to himself through the office of the 5th Respondent, and that entailed drawing up the instrument of transfer of interest in the land from the brother to him (agreement of sale or Deed of Assignment) and bringing same to the Notice at Government (5th and 6th Respondent) for the requisite consent of the Governor, under Section 22(1) of the Land Use Act, 1978.

That Provision of the Act, says:
22(1): “It shall not be lawful for the holder of statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained: Provided that the consent of the Governor: –

(a) Shall not be required to create a legal mortgage over a statutory right of occupancy in favour of a person in whose favour an equitable mortgage over the right of occupancy has already been created with the consent of the Governor;
(b) Shall not be required to the reconveyance or release by a mortgage to a holder or occupier of a statutory right of occupancy which that holder or occupier has mortgaged to that mortgagee with the consent of the Governor;
(c) To the renewal of a sub-lease shall not be presumed by reason only of his having consented to the grant of a sub-lease containing an option to renew the same.”

In this case, since Appellant had never even drawn up any formal agreement of sale, transfer or assignment of the land in dispute between himself and his said elder brother, in whose name the title deeds of allocation of the land (Exhibits ‘D4’ and ‘D5’ and F1 & F2) were made, I think his resort to title to the land in his name, was rather ambitious, and ill advised.

In this case, Appellant’s Counsel had argued that “there is (was) no written agreement between Appellant herein and his elder brother to enable the Court deduce whether it was an absolute sale or an agreement to sale (sic). It was thus premature for the trial Court to invoke the provisions of Section 22(1) of the Land Use Act to defeat the suit of the Appellant.” (See Paragraph 4.16 (Page 9) of the Appellant’s Brief).

The above argument of Appellant appears to be admission against interest and rather tended to justify the decision of the trial Court, to question the locus standi of the Appellant to claim title to the land, In my opinion, the absence of any written agreement between the brothers on the transfer of interests in the land appeared sufficient to deny him any right in equity or in law.

It would have been a different situation if Appellant had sued as representative of the interest of the late brother (or jointly with his estate or his family) while the formulization of transfer of the interest was pending.

I do not therefore think the learned trial Judge acted wrongly by invoking the provision of Section 22(1) of the Land Use Act, 1978, to question the assertion of claims of Appellant over the land, that he was entitled to the land in dispute, in the absence of consent of the Governor, transferring interest in the said land from Alh. Sa’adu Sarki Yakubu (Appellant’s late elder brother) to him (Appellant).” Per MBABA, J.C.A.

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