Introduction

Land remains the primary engine of socio-economic development, serving as the essential substrate for agriculture, housing, and critical infrastructure. Historically, Nigeria’s land management was bifurcated: Southern Nigeria favoured free alienation under customary communal ownership, while Northern Nigeria operated under the Land Tenure Law. [1] This pluralism was unified by the Land Use Act of 1978, which introduced a centralised statutory mandate. Under Sections 21 and 22 of the Act, the Governor’s consent became a condition precedent for any valid alienation of a right of occupancy, whether by assignment, mortgage, or transfer of possession.

This consent requirement is philosophically grounded in the trusteeship policy, predicated on the notion that the Governor, as a trustee of the land, must oversee all transactions to protect the state's interest.[2] However, in practice, this statutory safeguard has morphed into a significant administrative bottleneck. Exorbitant fees, unconscionable delays, and bureaucratic inefficiencies have hampered the fluidity of land transactions, yielding negative economic consequences and casting the consent provision as a hurdle rather than a help.  [3] Despite these criticisms, the necessity of Governor’s consent appeared to be a settled point of law. That certainty was unsettled by the Supreme Court’s decision in Yakubu Ibrahim v. Simon Obaje[4] which has reignited the debate over the legal threshold for consent, particularly regarding the use of Powers of Attorney. This article seeks to re-examine this fresh controversy by addressing a pivotal research question: To what extent does the nature of the interest transferred dictate the necessity of Governor’s Consent in alienations facilitated via Power of Attorney under the Land Use Act? Through a critical review of the decision in Obaje’s case, this paper aims to clarify the distinction between legal title and equitable interest in alienation of right of occupancy.

Statement of Facts

The facts of Obaje’s case [5] were that Simon Obaje (the Respondent) filed the suit against Yakubu Ibrahim (the Appellants) at the FCT High Court claiming for inter alia a declaration of title over plot F96 covered by a Certificate of Occupancy No. FCT/M2TP/OD/276 of 15th June, 1995 granted by the Bwari Area Council and situate at Dutsen Alhaji in Abuja. The Respondent claimed he was the owner of plot F96 having bought same from one Mr. Otitoju Bonte who conveyed it to the Respondent by virtue of an Irrevocable Power of Attorney dated 19th October, 2000. The Appellants however, denied all the allegations leveled per the Respondent’s claim. At the end of the case, the trial court gave judgment in favour of the Respondent. Dissatisfied with the judgment, the Appellants appealed to the Court of Appeal which upheld the findings and decision of the trial court. Still dissatisfied, the Appellants appealed to the Supreme Court.

The Decision of the Supreme Court

The apex court, while considering the appeal, suo motu raised the issue whether the consent of the Minister of the FCT was necessary before the title of the property in issue could validly pass to the respondent. Another issue raised by the Appellants was whether in law a Power of Attorney can transfer interest in land to a donee.  In unanimously dismissing the appeal, the Supreme Court held as follows:[6]

The Preambles to the Land Use Act, if looked at carefully and relating it to the case at hand, would reveal that the provision for consent of the Governor must not be applied to transfer of title or alienation of rights between private individuals where there is no overriding public interest or conflict between the parties. The application of the various sections and provisions of the Land Use Act must be done with a view to the intendment of the drafters of the law, which is expressed often in the preamble.

On the issue whether Power of Attorney can transfer interest in land to a donee, the Supreme Court held that for all intent and purposes, the general rule relating to power of Attorney is apt. However, like every general rule, there could be exceptions to allow room for the fulfilment of the intention of the parties to an agreement, which they entered into voluntarily and based on the meeting of their minds.[7] Thus, this case at hand is considered as an exception on the basis of the agreement of the parties by virtue of which the donor has bonded himself to transfer the interest in the land to the donee.

Notwithstanding the foregoing, the first issue arising from the decision of the Supreme Court is whether Power of Attorney can be used as an instrument for transfer of interest land. The Supreme Court seems to have created an exception to the general rule already established in a long line of judicial authorities that the Power of Attorney is not an instrument for transfer of interest in land. However, the court relied on the intention of the parties to conclude that the parties, by the Power of Attorney intended to transfer the interest in the land to the donee. This is obviously a radical departure from the established precedent, confirming a Power of Attorney as an instrument of delegation, not transfer of title to land. In Ezeigwe v. Awudu[8], the Supreme Court held that an irrevocable Power of Attorney is not a document of title conferring title to the property in issue on the donee. As such, it would still be necessary for the donee to prove title to the property where title is in issue. Indeed, the existence of the irrevocable Power of Attorney is a clear evidence or confirmation of the fact that the title to the land in dispute resides in the donor of the power. The only document that can prove any passing of the title to the donee would be a conveyance or an assignment.[9] Similarly, the Supreme Court also held in Malami v. Ohikhuare[10] that a power of attorney is not an instrument which confers, transfers, limits, charges or alienates any title to the donee; rather, it is a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party.[11]

However, it is submitted that the determination of the question whether a Power of Attorney can transfer interest in land depend on the interest sought to be transferred. Unfortunately, the Supreme Court did not consider the distinction between legal title and equitable interest co-existing in a property. A donee of a Power of Attorney who has paid the purchase price is entitled to an equitable ownership of the land.[12] Therefore, although power of Attorney does not transfer or confer legal title, it confers equitable interest on the donee who has furnished consideration for the Power of Attorney.  This position aligns with conveyancing practice involving two known stages of transfer of title to land:  the contract stage, ending with the formation of a binding contract for sale, and the conveyance stage culminating in the legal title vesting in the purchaser by means of appropriate instrument under seal.[13] It is instructive to note that at the contract stage, the interest created by the contract is equitable interest while at the conveyance stage, legal title is conveyed to the purchaser. To acquire legal title to the property, there must be perfection of the instrument of transfer which involves compliance with statutory requirements of governor’s consent, stamping and registration.[14] In respect of Governor’s consent, Prof. Smith argued that section 22 of the Land Use Act requires that Governor’s consent must be sought and obtained before a valid legal transfer can be effected.[15] Therefore, the consideration is the nature of the interest which is determined by the stage of the contract rather than the form of the contract. In acknowledgment of the distinction between the two stages in conveyancing, and the stage at which Governor’s consent is required, the Supreme Court also held thus:[16]

The position of section 22 of the Land Use Act, 1978 is this: A holder of a right of occupancy may enter into an agreement or contract, with a view to alienating his said right of occupancy. To enter into such an agreement or contract, he does not need the consent of the Governor. He merely operates within the first stage of a transfer or sale of an estate in land which stage ends with the formation of a binding contract for a sale constituting an estate contract at best. But when he comes to embark on the next stage of alienating or transferring his right of occupancy which is done by a conveyance or deed, culminating in vesting the said right in the purchaser, he must obtain the consent of the Governor to make the transaction valid. If he fails to, then the transaction is null and void under section 26 of the Act. It is necessary to bear the two stages clearly in mind.

Therefore, it is settled that the prohibitive ambit of Section 22 of the Land Use Act does not extend to the contract stage of land transactions when parties are free to bridge the gap between negotiation and perfection through written agreements before obtaining Governor’s consent. The Supreme Court’s treatment of irrevocable Powers of Attorney, however, produces a judicial inconsistency. By exempting the Power of Attorney from the rigor of the consent requirement, the Court has facilitated a triumph of form over substance, a miscalculation that allows an instrument of delegation to masquerade as a final conveyance, thereby undermining the Land Use Act policy of ensuring the land are under the control of the Governor.

Conclusion

The decision of the Supreme Court has generated intense debates on the statutory requirement of Governor’s consent. This article observes that the Supreme Court's decision in Obaje’s case fosters a conceptual blurring between the transfer of equitable interests and the alienation of legal title via a Power of Attorney. The current judicial trend, as exemplified in this case, appears to establish a blanket exemption from the requirement of Governor’s consent under Section 22 of the Land Use Act. By failing to distinguish the nature of the interest being conveyed, the Court suggests that a Power of Attorney, regardless of whether it is intended to grant immediate legal title or merely creates an equitable interest does not trigger the statutory requirement for consent. In this regard, this article proposes that the Supreme Court adopts a more considered, interest-based analysis when interpreting instruments of alienation. Rather than focusing on the nomenclature of the document (e.g., a "Power of Attorney"), the Court should look to the substance of the transaction to ascertain the specific nature of the interest created.

[1] Adefi M D olong, Land Law in Nigeria, (Second Edition, Malthouse press Ltd, Lagos, 2011), pp.15-16;

Jude O Ezeanokwasa, and Anthony Ifeanyichukwu Eze, ‘The Requirement of Governor’s Consent in the Alienation of Interest in Land under the Land Use Act: A Critical’ Review’, Awka Capital Bar Journal (2021)(2), 23-24

[2] T A Yusuf ‘Requirement of Consent in the Alienation of Interests in Land in the Federal Capital Territory, Abuja: The Case of UNA v ATENDA Revisited’, IRLJ 2019(1)(3),139.

[3] Adefi M D Olong, Land Law in Nigeria (Second Edition, Malthouse Press Ltd), 121-122.

[4] (2019) 3 NWLR pt. 1660, 389

[5] ibid.

[6] ibid. p.412, paras. C-D

[7] ibid, p413, paras. D-F.

[8] (2008)11 NWLR (pt.1097) 158;

[9] ibid, p.176, paras. A-C.

[10] (2019)7 NWLR (pt.1670) 132

[11] ibid, p.156,paras.G-H

[12] Samuel U. Visitor v. Mrs. Margaret Fakarode (2018)10 NWLR (pt.1628).p.416,p.423,para.E; Azccala v. Edosa (2018)6 NWLR (pt.1616, p.528,p.549,paras.A-D

[13] NBA v. Moses (2016)10 NWLR (pt.1520),p. 366,p.388,paras.E-G

[14] I O Smith, Practical Approach to Law of Real Property in Nigeria, (Revised Edition, Ecowatch Publications Nigeria Ltd, 2013), 229-232.

[15] ibid, p.230.

[16] Owonioys Tech. Serv. Ltd. UBN ltd (2003)15 NWLR (Pt.844), p545, pp.581-582, paras. H-E.