Abstract
The incidence of land tenure and land ownership in Nigeria has been an issue great controversy in recent times. These transcends from the fact that lands prior to the enactment of Land Use Act 1978 was held by individuals by themselves as against what is presently contained in the land lavws where the state governors are seen as trustees of the lands in the respective states which the govern. In this regard, the citizens are only afforded a right of occupancy to the term granted by the governor as per their application for the grant. The foregoing notwithstanding and in view of the fact that the Nigeria economy is one that encourages the entrance of investors to do business vide foreign direct investment which involves domiciling the said investment in Nigeria, could one conveniently assert that the right accruing to citizens to apply for a right of occupancy thereby owning lands in Nigeria also extend to foreigners? This poser shall posit as the yardstick upon which subsequent issues ensuing in this topic will gravitate.
CAN A FOREIGN NATIONAL OWN LAND IN NIGERIA?
While this seems like a simple question to answer, a look at the provisions of the statutes. Books and case laws seem to say otherwise.
Section 43 of the Constitution' provides that subject to the provisions of the constitution, every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria. A citizen, by reference to section 2s, 26 and 27 of the Constitution is clearly anyone who, whether or not was born in Nigeria, has a parent who is a citizen of Nigeria or one who has been accorded citizenship by nationalization or naturalization in line with the provisions of the constitution. Thus, while the Constitution has expressly given right to citizens to acquire and own immovable property anywhere in Nigeria, it has however not precluded a foreigner from acquiring or owning land in Nigeria. Recourse must therefore be had to other legislations in order to correctly answer this question.
Prior to the enactment of the Land Use Act, 1978 (LUA), various state laws existed which permitted an alien/foreigner to own land in Nigeria, namely the Native Land Acquisition Laws', Acquisition of Land by Aliens Laws and Land Tenure Law. By these laws, the highest interest that a foreign party can hold in land is a leasehold interest. Furthermore, foreign parties cannot acquire land for more than 90 years in the Northern states' and 99 years in old Western and Mid-Western Nigeria.
With the enactment of the LUA, all lands comprised in the territory of each State in the Federation became vested in the Governor of that State and such land is to be held in trust and administered for the use and common benefit of all Nigerians in accordance with the Article prepared by Omotolani Akinwande, LL. B, B.L, ICSAN (In View)
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Now contained in Cap L8, Laws of the Federal Republic of Nigeria, 2004
Cap 80, Laws of Western Nigeria 1959
Cap 2, Laws of Eastern Nigeria 1963
Cap 59, Laws of Northern Nigeria 1963
Regulation 4, ibid at 6
Regulation 4, ibid at 4
provisions of the Act. However, Section 46 (a) of the LUA allows the National Council of States to make regulations for the purpose of transferring by assignment or otherwise howsoever of any right of occupancy, whether statutory or customary including the conditions applicable to the transfer of such rights to persons who are not Nigerians. By virtue of these provisions, despite the fact that section 1 provides that land is for the benefit of 'all Nigerians', section 46 contemplates a situation where foreigners can States make regulations.
Furthermore, the Acquisition of Land by Aliens Lawi (ALAL), which is similar to enacted by other states provides that "no alien shall acquire any interest or right in from a native of Nigeria unless the transaction under which the interest or right is acquire been previously approved in writing by the Governor." The interest or right to be acquired however shall not be greater than a term of 25 years, including any option to renew.
In other words, by the ALAL, an alien, who has been defined as any person other than a native of Nigeria and any company or association or body of persons corporate or unincorporated other than companies, incorporated trustees, and co-operative societies whose majority shareholders/ members are Nigerians, and can acquire interest in land subject to approval by the Governor.
Section l, ibid at 3
own land where the above-stated provisions of ALAL have not been expressly held to be void despite the enactment of the LUA and the provisions of section 1 of the Act. However, this position may not remain for so long in view of the recent Supreme Court decisions in Gerhard Huebner v. Aeronautical Industrial Engineering & Project Management Co Ltd", In this case, the Supreme Court, whilst reaffirming its decision in Chief S. O Ogunola v. Hoda Eiyekole & Ors: stated as follows: "the appellant being an alien had no legal capacity to hold interest in land.
The appellant cannot benefit from a property which he was incapable of owing... " The Court held that the Appellant, a German National could not hold an interest in land because he was a (ALAL), Cap AI, Laws of Lagos State 201S National Council
(2017) 14 NWLR (Pt I586) Pg.396
(1990) 4 NWLR (PL. 146) Pg. 632
The Court stated that the LUA did not repeal any laws which limit the right of foreigners to own land and, the expression "any person" as used in sections 5, 6 and 36 of the foreigners. The Land Use Act were to be interpreted to refer only to Nigerians because the Land Use Act expressly stated that Nigerians were its beneficiaries. As a result, a foreigner could neither apply for nor receive a grant of a statutory or customary right of occupancy which are creator of the LUA.
The above decision of the Supreme Court has clearly interpreted the LUA to state that no foreigner can own land in Nigeria'. However, despite the statement by the SC that the LUA did not repeal any laws which limit the right of foreigners to own land, its decision has rendered the provisions of existing law allowing foreigners to own land void and unenforceable. This is especially so because of the doctrine of covering the field which states that where there is a conflict between a Federal law and a State law over the same matter, the Federal law shall prevail. Thus, in addition to the fact that the LUA has been interpreted to apply only to Nigerians (i.e. that only Nigerians can own land), it has also stated that it is the National Council of States who can make regulations to assign or transfer interest in land to a foreigner and not the Governor as stipulated in ALAL.
CONCLUSION
In view of the foregoing, it is clear that a foreigner cannot own land in Nigeria except the National Council of States makes regulations permitting the same. Furthermore, the provisions of ALAL permitting aliens to own land cannot be enforceable except the regulations made by the national Council of States gives the Governor the power to give approvals to foreigners.
https://www.linkedin.com/company/gresyndale-legal/
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
