Customary Inheritance and the Governor’s Consent: Reconciling the Paradox of the Land Use Act

By P.L Osakwe

□ Introduction

One of the most enduring puzzles of Nigerian land law lies in the apparent tension between customary inheritance of land and the requirement of Governor’s consent before alienation of land. On the one hand, the Land Use Act 1978 (LUA) recognizes that land can pass from one generation to another under native law and custom. On the other hand, the Act also insists that no landholder can sell, transfer, mortgage, or otherwise dispose of their land without the Governor’s consent. To the untrained eye, this looks like a contradiction, but a closer look reveals that the difference lies in how the law classifies inheritance versus alienation.

■ The Framework of the Land Use Act

The Land Use Act revolutionized land tenure in Nigeria. Section 1 vests all land in the territory of each state in the Governor, to be held in trust for the people. This effectively converted individual ownership of land into rights of occupancy, either statutory or customary.

Under this new regime:

Citizens and families can hold rights of occupancy.

Customary tenure is preserved, particularly in rural areas where families and communities occupy land according to native law and custom.

However, any transfer or alienation of those rights, especially by sale, mortgage, lease, or gift, requires the Governor’s consent (Section 22 LUA).

■ Why Customary Inheritance is Recognized

Inheritance is regarded as a natural devolution of interest, not a transaction. When a person dies, their landholding simply passes to their heirs or family members. This is not a commercial dealing with the land but a continuation of ownership within the family line.

Thus, the Act allows land to pass from father to son, or from one family member to another, in line with customary succession rules. This respects cultural continuity and prevents the disruption of family landholding systems that existed before 1978.

■ Why Sale and Transfer Require Governor’s Consent

By contrast, when a landholder decides to sell, mortgage, or otherwise dispose of land, the law treats this as alienation. This is more than a personal family matter, it introduces an outsider or third party into the ownership structure.

The rationale for requiring Governor’s consent includes:

1. Centralized Control: To ensure the Governor, as trustee of all land, knows who is acquiring rights and under what terms.
2. Preventing Abuse and Speculation: Without consent, powerful individuals or corporations could buy up vast portions of land, undermining equity and access.
3. Uniformity and Certainty: Consent ensures that transfers are properly documented, reducing disputes and multiple sales of the same land.

■ The Balance Between Recognition and Restriction

This explains the seeming paradox:
Inheritance: Recognized under the LUA because it is a passive, natural succession of rights within a family.

Sale or Transfer: Restricted under the LUA because it is an active, voluntary alienation that alters landholding patterns and requires state oversight.

■ Conclusion

The Land Use Act thus draws a delicate line: it protects the cultural integrity of customary inheritance while simultaneously curbing the uncontrolled alienation of land. For landholders, the lesson is simple:

You do not need the Governor’s consent to inherit land.

But if you wish to sell, mortgage, or otherwise alienate that land, the law compels you to seek the Governor’s approval.

This duality may appear restrictive, but it reflects the Act’s central philosophy: to balance private rights with the Governor’s duty as trustee of all land in the state.