Who Is Statutorily Obligated to Obtain Consent
The position of the Land Use Act is clear that it is the duty of the holder to obtain the requisite consent before alienation or transfer of interest. However, in practice, there exists a situation where the holder who ought to have obtained such consent would turn around seeking to avoid the transaction based on lack of consent as was the case in Savannah Bank V. Ajilo. By way of judicial activism, the Courts had addressed this situation. Instead of nullifying the transaction out rightly based on lack of consent, the Courts had sought to know whose duty it was to obtain the consent. The one question the Courts asked had been: “Was it the mortgagor’s duty to have obtained the consent?”
The answer had invariably been in the positive because he is the holder under the Act. Thus, in Solanke V. Abed the document was defective in such a manner as to make void under the Land Tenure Law. The Court held that the Defendant would not be allowed to take advantage of his wrong and void the transaction.
Furthermore, in the decided case of Adedeji V. National Bank the Mortgage transaction was without the consent of the Governor. The Mortgagor defaulted and in an attempt to prevent the enforcement of security, he contended that the transaction was void. The contention was dismissed by the Court as it was his duty to obtain the consent. The Court further held that
Apart from the principle of law involved, it is morally despicable for a person who benefitted from an agreement to turn around and say that the agreement is null and void.
The above decisions of the Court are in accordance with the maxim ex turpi causa non oritur actio, meaning that no action arises out of a wrongful consideration. However, in the case of Savannah Bank (Nigeria) Ltd V. Ajilo, the Supreme Court considered the wording of Section 26 of the Land Use Act and held that it was undesirable to invoke the maxim ex turpi causa non oritur action. The Court further held as follows:
Although the first Plaintiff/Respondent by the tenure of the Land Use Act committed the initial wrong by alienating his statutory right of occupancy without prior consent in writing of the Governor, the express provision of the Land Use Act makes it undesirable to invoke the maxim ex turpi causa non oritur action.
Therefore, despite the equitable viewpoints that the Courts stated in the prior cases, the recent judgment swung in favour of Savannah Bank V. Ajilo. Also in Onamade & Ors V. A.C.B the Supreme Court emphasized that no alienation of a Right of Occupancy whether by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained shall be lawful.