¹ S. 1.

² See for example Omotola, J.A., Essays on Land Use Act, Lagos, 1980, 27.Google ScholarJames, R.W., Nigerian Land Use Act: Polity and Principles, Ile-Ife, 1987, 92, 104, 130 et seq.Google Scholar

³ Savanah Bank (Nig) plc v. Ajilo (1989) 1 NWLR (pt. 97) 305.Google Scholar

⁴ Awojugbagbe Light Industries Ltd v. Chinukwe (2) N.I.D.B. Ltd (1995) 4 NWLR (pt. 390) 379 (SC);Google ScholarIvagunima v. Uchendu (1996) 2 NWLR (pt. 428) (CA).Google Scholar

⁵ Kasunmu, A.B., Report of a National Workshop on the Land Use Act, 1982, 93.Google Scholar

⁶ (1996) 6 NWLR (pt. 475) 749.Google Scholar

⁷ James has argued that the grant of a power of attorney to dispose of a right of occupancy or the grant of a licence requires no consent because it transfers neither interest in nor possession to the land. He concedes that if the licence by its terms gives possession to the licensee then consent would be required. It can be argued that the consent of the appropriate authority should be obtained if the power of attorney is such that the donee can execute an instrument disposing of the right of occupancy. See James, , op. cit., 131.Google Scholar

⁸ It is argued that an equitable mortgage, like any other enforceable agreement to transfer an interest in land, passes an equitable interest in the land to the mortgagee. See ibid., 131.

⁹ Dias, R.W.M. and Hughes, G.B.J., Jurisprudence, London, 1957, 17.Google Scholar

¹⁰ S. 50.

¹¹ Hill v. William Hill (Park Lane) Ltd [1949] A.C. 530 at 546; Nasr v. Bouari (1969) 1 All N.L.R. 35 at 41;Google ScholarSavanah Bank (Nig) plc v. Ajilo (1989) 1 NWLR (pt. 97) 305 at 329.Google Scholar

¹² 5th ed., 590.

¹³ Very many equitable mortgages are created in this way, and in reality they are not a preliminary step for the creation of a legal mortgage. There is never an intention to create a legal mortgage.

¹⁴ According to Waldock the following agreements have the effect of equitable mortgages: a defective legal mortgage: Taylor v. Wheeler (1709) 2 Salk 449;Google Scholar appointment of a receiver to receive rents and profits from the land with power to pay a debt therefrom: Craddock v. Scottish Provident Institution (1893) 69 L.T. 380;Google Scholar a power of attorney to a creditor to receive rents and profits for the purpose of paying off his debt: Spooner v. Sandilands (1842) 1 Y & CCC 390;Google Scholar an authority to a creditor to sell the land and to retain his debt out of the proceeds. See Waldock, G.H.M., The Law of Mortgages, 2nd ed., London, 1950, 45.Google Scholar

¹⁵ A mortgage is denned as including any charge on any property for securing money or money's worth and a legal chargee has all the powers, privileges and remedies of a legal mortgagee. See Conveyancing Act, 1881, s. 2(iv); Property and Conveyancing Law, Cap. 100 Laws of Western Nigeria, 1959, ss. 2(i) and 110.

¹⁶ Wingham, Re [1949] 187;Google ScholarSavanah Bank (Mg) plc v. Ajilo (1989) 1 NWLR (pt. 97) 305 at 326, 333 See, however, Nkwocha v. Gov. of Anambra State, Suit No. E/167/81 in which Nwokedi, J. exhibited typical anti-policy sentiment which is embraced by ultra-conservative judges.Google Scholar

¹⁷ Conveyancing Act, 1881, s. 19; Property and Conveyancing Law, 1959, s. 123.

¹⁸ Waldock, op. cit.

¹⁹ Hodson, Re & Howe's Contract [1887] 35 Ch. D 668.Google Scholar

²⁰ Megarry, and Wade, , The Law of Real Property, 4th ed., London, 1975, 922.Google Scholar

²¹ Waldock, , op. cit., 56.Google Scholar

²² Except land held by the Federal Government or its agency, s. 49.

²³ S. 1.

²⁴ Ss. 34 and 36.

²⁵ Ss. 5 and 6.

²⁶ Ss. 21 and 22.

²⁷ The Land Use Act contains no guidelines to control the appropriate authorities in the exercise of the discretion to withhold or give consent, but they are expected to be guided by these considerations which have been worked out to regulate the exercise of such discretion by similar authorities in jurisdictions that have similar systems. See James, , op. cit., 126.Google Scholar

²⁸ Except a charge by way of legal mortgage.

²⁹ Re Famel Eades Irvine & Co. Ltd [1915] 1 Ch. 22 at 24.

³⁰ Conveyancing Act, 1881, s. 25(2); Property and Conveyancing Law, 1959, s. 114.

³¹ (1882) 21 Ch.D. 9.Google Scholar

³² Megarry, and Wade, , op. cit., 923.Google Scholar

³³ ibid., 908.

³⁴ Backhouse v Charlton (1878) Ch.D. 444; New York Banking Co. v Artley (1879) 11 Ch.D. 205.Google Scholar

³⁵ It was thought in many judicial quarters that communal land was originally inalienable. See for example, Oyekan v. Adele [1957] 1 WLR 876.Google ScholarOkiji v. Adejobi (1960) 5 F.S.C. 44. Among reasons given for the inalienability are that land was regarded by the members of the traditional community as a god, a supreme deity; that it was sacred because the dead members of the community were buried therein, and that it was necessary to conserve the land in the interest of the dead and unborn members of the group.Google Scholar

³⁶ Agbloe v. Sappor (1947) 12 W.A.C.A. 187;Google ScholarEkpendu v. Erika (1959) 4 F.S.C. 29.Google Scholar See generally, Nwabueze, B.O., Nigerian Land Law, Nwamife, 1972, ch. 11.Google Scholar

³⁷ This is the necessary implication of s. 36(2) and (4).

³⁸ (1989) 1 NWLR (pt. 97) 305 at 332 (emphasis added).Google Scholar

³⁹ Ss. 34(5) and (6); 36(2).

⁴⁰ Ss. 30 and 47(2).

⁴¹ Ss. 5 and 6.

⁴² Ss. 21 and 22.

⁴³ See Kasunmu, op. cit., ed. Dmotola, 93.

⁴⁴ Doe d Pitt v. Hogg (1824) 4 Dow & Ry 226;Google ScholarM'Kay v. M'Nally L.R. Ir. [1879] 4, 438; 41 L.T. 230.Google Scholar

⁴⁵ Church v. Broivn (1808) 15 Ves. 258 at 265;Google ScholarGrove v. Portal [1902] 1 Ch. 727.Google Scholar

⁴⁶ Sweet & Maxwell IM v. Universal News Services Ltd [1964] 2 Q.B. 699.Google Scholar

⁴⁷ Cook v. Shoesmith [1951] 1 K.B. 752.Google Scholar

⁴⁸ James, , op. cit., 4.Google Scholar