Governor’s Consent: Daniel K. Kip Esq Asks Cross Rivers State Govt To Comply With Supreme Court Judgement In Yabuku v. Simon

A legal practitioner based in Cross River State, Daniel K. Kip
has written a letter to the Permanent Secretary, Ministry of lands
and urban development.

In the letter dated the 11th day of September, 2019, he notified
the state government of the decision in Engr. Yakubu Ibrahim &
Ors v. Simon Obaje (2017) LPELR-43749 (SC) , by registering land
transactions between private individuals and entities without the
mandatory requirement of the consent of the Governor and ask them
to comply with the decision.

According to him, he will take a public interest suit against
the Government if they fail to comply with the decision.

Below read this letter

11th September 2019.

The Permanent Secretary Ministry of Lands and Urban
Development,
Slate Secretariat, Calabar,
Cross River State.

Dear Sir.

Notification Of Judgment And Demand To Comply With The
Supreme Court Decision In Engr. Yakubu Ibrahim 8, Ors. V. Simon
Obaje (20171 LPELR• 43749 (SC).

We are a Firm of Solicitors practicing within Calabar, and
Cross River Slate at large. As part of our core practice areas. we
are engage in registration of land instruments such as Deed of
Assignment, Deed of Conveyance, Deed of Mortgages, Debenture Deeds,
etc., and perfection of title. These we have been undertaking for
Clients since the inception of the Firm.
It has been the practice of the Ministry of Lands and Urban
Development, Cross River State, that consent of the Governor of the
Stale. or whoever he so empowers, is mandatorily required, and 10%
of the consideration for the property paid as Consent Fee, before
registrable land instruments are registered.

The Procedure is that the application is made to the
Director of Lands requesting for consent and registration of the
land instrument, where an assessment of fees payable for the
registration is issued, the Applicant or his Solicitor now makes
all the necessary payments and submit all copies of the land
instrument with receipts/tellers evidencing such payments which
goes through the Account Section for confirmation and thereafter
the Instruments are placed before the Governor for
Consent.

Afterwards, the Land Instruments are forwarded to the
Registry of Deeds for registration where consent is
granted.

It is notorious fact that since 2015, the Issuance of
consent to land transactions In Cross River State has become a
myth. A lot of land instruments belonging to private Individuals,
including our clients. are lying at the Ministry of Lands &
Urban Development, due to the failure and neglect of the Governor
of Cross River State, to issue consent so the they can be
perfected.

Most of the land transactions denied consent and in effect
registration. are between private individuals, and also juristic
persons. without overriding interest. This status Quo is no longer
tenable in law and thus violates the extant position of the law on
the requirement of consent of a Governor in land
transactions.

We wish to inform you that by the Supreme Court decision in
Engr, Yakubu Ibrahim and Ors v. Obaje [20171 LPELR 43749 (SC),
consent a not required as a relates to or affects transfer or
alienation of land between private individuals where there is no
overiding public interest or conflict between the parties. May I
reproduce same hereunder thus: IBRAHIM & ORS v. OBAJE (2017)
LPELR-43749(SC) Per OGUNBIYI J.S.C. (Pp. 31-38, Paras. D-D) ”For
purpose of resolving this 1$3110, It will be pertinent to resort to
the preamble to the Land Use Act 1978 (which was largely drawn from
the minority report of the Land Use Panel set up in May, 1977).
This report nationalized land In Nigeria and the general intendment
of the Act can be deduced from the preamble which states: -Whereas
it is in the public interest that the rights of all Nigerians to
the land of Nigeria be asserted and preserved by law. And whereas
it is also in the public interest that the right of all Nigerians
to use and enjoy land in Nigeria and the natural fruits thereof in
sufficient quantity to enable them to provide for the sustenance of
themselves and their families, should be assured protected and
preserved.’

Following from the foregoing re-statement, it is clear that
the essence of the Act is to preserve and protect the rights of
Nigerians to enjoy and use land, and further enjoy the fruits from
the land. Citizens should be allowed to transact an their
properties without unnecessary and undue interference by the State.
By the phrase the enjoyment of the land and the fruits thereof
should be given a simple and ordinary Interpretation.

In other words, the fruits of the land can be houses,
installations in minerals and plants. I agree with the respondent,
counsel that it is not the intendment of the legislature that
Section 22 of the Land Use Act. on consent would limit and deny
parties of their rights to use and enjoy land and the fruits
thereto In a non contentious transaction or alienation. The Section
cannot be given a literal interpretation as would be seen from the
preamble. Section 22(1) of the Land Use Act provides that: ”It
shall be unlawful for a holder of a right of Occupancy to alienate
same or any part thereof by assignment, mortgage, transfer of
possession, sublease or otherwise without the consent of the
Governor first had and obtained.”

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 mu, be done with a view
to the intendment of the drafters of the law, which is expressed
often in the preamble. seek to buttress and support the forgoing
contention with the view held by the learned jurists Karibi-Whyfe,
JSC in the case of Abioye v. Yakubu (supra) wherein he said:- “…in
construing a law like the Land Use Act, it is always of
considerable assistance to consider the history and also purpose of
the law as enshrined in preamble, and if possible the social
objectives …the intention of the Act as clearly staled is to assert
and preserve the rights &all Nigerians to the land in the
public interest. It is also in the public interest that right of
all Nigerian to use and enjoy land in Nigeria and the natural
fruits thereof to sustain themselves and their families should be
assured ,protected and preserved. As rightly submitted on behalf of
Respondent, the Act was enacted to address the problems of
uncontrolled speculations in Urban lands, make land easily
accessible to every Nigerian irrespective of gender, unify tenure
system in the country to ensure equity and justice in land
allocation and distribution, and amongst others, to certain extent
prevent fragmentation of Rural lands arising from the application
of rho traditional principle of inheritance. The consent clause in
the Act therefore gives the Governor the required supervisory
control of lands in the territory. The learned counsel for the
appellants related strongly to the case of Oredola Okeya Trading
Co. v. A. G. Kwara State (supra) to support the contention Olaf the
consent of the Governor and of the Minister of FCT (as the case may
be) Is a prerequisite requirement Ono of the necessary
considerations laid down by this Court was “the true import of the
document-In the matter under consideration herein, the import of
the parties’ intention can be construed from exhibits A, B and C.
The Certificate of Occupancy of Mr. Otitoju Bonte is dated 15th
June 19. and he made an irrevocable Power of Attorney to
Plaintiff/Respondent on 19th October, 2000. The 1st
defendant/appellant who claimed the unregistered agreement,
Exhibit()between him and the Mohammed Kalgo, (whose source was in
1996) cannot qualify to have acquired an interest earlier than that
of Respondent, who had by the Power of Attorney stepped into the
shoes of Mr. Otitoju Bonte.

I seek to relate against the case of Cardoso v. Dante,
(sup.) wherein it was held that the Court owes it the duly lo
consider the case and claim of parties on its merit and not allow
the coverings and clouds of technicality to dim its vision on the
road to justice.

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 mu, be done with a view of the intendment of the
drafters of the law, which is expressed often in the preamble. seek
to buttress and support the forgoing contention with the view held
by the learned jurists Karibi.Whyfe, JSC in the case of Abioye v.
Yakubu (supra)wherein he said:- “…in construing a law like the Land
Use Act, it is always of considerable assistance to consider the
history and also purpose of the law as enshrined in preamble, and
if possible the social objectives …the intention of the Act as
clearly staled is to assert and preserve the rights of all
Nigerians to the land in the public interest. It is also in the
public interest that right of all Nigerians to use and enjoy land
in Nigeria and the natural fruits thereof to sustain themselves and
their families should be assured ,protected and
preserved.”

As rightly submitted on behalf of Respondent, the Act was
enacted to address the problems of uncontrolled speculations in
Urban lands, make land easily accessible to every Nigerian
irrespective of gender, unify tenure system in the country to
ensure equity and justice in land allocation and distribution, and
amongst others, to certain extent prevent fragmentation of Rural
lands arising from the application of rho traditional principle of
inheritance. Tho consent clause in the Act therefore gives the
Governor the required supervisory control of lands in the
territory.

The learned counsel for the appellants related strongly to
the case of Oredola Okeya Trading Co. v. A. G. Kwara State (supra)
to support the contention Olaf the consent of the Governor and of
the Minister of FCT (as the case may be) Is a prerequisite
requirement Ono of the necessary considerations laid down by this
Court was “the true import of the document-In the matter under
consideration herein, the imp. of the parties’ intention can be
construed from exhibits A, B and C. The Certificate of Occupancy of
Mr. Otitoju Bonte is dated 15th June 19. and ho made an Irrevocable
Power of Attorney to Plaintiff Respondent on 19th October, 2000.
The 1st defendant/appellant who claimed the unregistered agreement,
Exhibit ()between him and the Mohammed Kalgo, (whose source was in
1996)

The Court, other in words, is enjoined to resolve dispute
between the parties as presented by them and not make a case for
either or both, different from the initial case set out before the
Court. See the case of Adebanjo Dev. Society Ltd v. Mumuni (1977)
SC 57: and G.S. Poser. v. Adecentro A’ig. Ltd. (1997) 11 NWLR
(P9529) 467. The Court also has an inherent obligation not to
sacrifice justice on the altar of technicality. See the plethora of
authorities in support – Obadiaru v. Uyigue (1986) 3 SC. 39;
British/American Insurance Co. Ltd v. Eserno Sit. (1993) 2 NWLR
(P1.277) 570; Osita Nwosu v. Imo State Environmental Sanitation
Authority & Ors (1990) 2 NWLR (P11)5) 685.

For all intents and purposes, the general rule relating to
Power of Attorney apt and as restated in the plethora of
authorities cited especially by the learned counsel of the
appellants. However, like every general rule, there could be
exceptions to allow room for the fulfillment of the intention of
the parties to an agreement, which they entered into voluntarily
and based on the meeting of their minds. In the case at hand, it is
revealed on the record that the parties intended to enter an
irrevocable Power &Attorney as evidenced at paragraph 4 of the
plaintiff, statement of claim and supported by his un-contradIcted
evidence before the trial Court. The peculiar situation of exhibits
A, 13 and C is very clear and raises the question, Whether, it just
and equitable to refuse parties the benefit of their agreement
intention which was reduced into writing on account of the general
rule relating to and governing Power of Attorney? In response to
the question raised, the courts hold the firm view that the
imposition of the general rule to the matter herein would inhibit
the right to free contractual agreement. This is view of the
peculiar circumstance of this case, thus resulting to injustice and
giving room to technicality, which this Court had consistently
warned against. This is more so especially when regard is had to
the general Intendment of the Act as was reproduced earlier from
preamble of the Land Use Act, 1978.

In other words, the essence of the Act is to preserve and
protect tho rights of Nigerians to enjoy and use land, and further,
enjoy the fruit from the land. I will repeat again that it is not
therefore the intention of the legislature that Section 22 of the
Land Use Act should limit and deny parties of their rights to use
and enjoy land and the fruits thereto in non-contentious
transaction or alienation.

The case at hand is a private transaction between
Individuals. Again the view held by this Court per Kabiri- Whyte,
JSC In At., v. Yakubu (sup(a) lob point and comes to force. The
intention of parties are given duo respect in private contractual
agreements. This is paramount and the contrary should not be forced
upon them. I wish to emphasise without any fear of contradiction
that the Supreme Court authorities cited by tho appellants’ counsel
are applicable in the contexts and terms of agreement with which
the Power of Attorney was executed and agreed upon. It ts correct
to say also that those terms in the authorities under reference are
distinguishable from the case in issue which is an exception to the
general rule. The parties herein have bonded themselves to an
irrevocable form of agreement and their Intention ought to be
respected and given full effect”.

We also wish to inform you that the case mentioned above is
a Supreme Court decision, and by virtue of Section 287(1) of 1999
Constitution (as amended), decisions of the Supreme Court are to be
enforced by all Courts, Authorities and Persons throughout the
Federation.

Flowing from the above, you are hereby required to abolish
the practice of refusing registration of land transactions between
private individuals where there is no overriding public interest or
conflict between the parties, duo lo the absence of Governor’s
consent or non-payment of Consent Fee, and forthwith publish a
circular directing the registration of Land Instruments that fall
within this class. Note that if the judgment of the Supreme Court
is not obeyed and the directive given within 14 days of receipt of
this letter, we may be constrained to approach the Court of law to
enforce compliance.

Thanks for your anticipated
cooperation.
Yours faithfully,
Daniel K. Kip Solicitor — 08036964847

CC:

The Permanent Secretary/Solicitor General, Ministry of
Justice New Secretariat Muritala Mohammed Highway, Calabar
The Director of Lands Ministry of Lands 8 Urban Development,
New Secretariat Muritala Mohammed Highway, Calabar.
The Registrar of Deeds Cross River State, Geographic
Information Agency Old Secretariat Road, Calabar.