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Can a Foreigner Own Land in Nigeria? The Supreme Court Decision in Gerhard Huebner v Aeronautical Industrial Engineering and Project Management Company Limited

Published online by Cambridge University Press:  20 January 2020

Chukwunweike A Ogbuabor*
Affiliation:
University of Nigeria
Damian Uche Ajah*
Affiliation:
University of Nigeria

Abstract

In a landmark decision on 17 April 2017, the Supreme Court of Nigeria held that foreigners cannot legally and validly own land in Nigeria. This decision is of significant interest for the international investing community. The decision is a curious one and deserves close scrutiny. It was based on the court's interpretation that the Land Use Act provides that all lands in Nigeria are to be held in trust by the governor of each state for the use and benefit of all Nigerians. This note posits that the Supreme Court decision was completely erroneous and that, contrary to that decision, the correct position of the law is that foreigners can lawfully and validly own land in Nigeria provided that they are not enemy aliens.

Type
Case Note
Copyright
Copyright © SOAS, University of London 2020

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Footnotes

*

LLB, LLM, PhD (Nig), BL. Senior lecturer and former acting head, Department of International Law & Jurisprudence, Faculty of Law, University of Nigeria Enugu Campus.

**

LLB, LLM (Nig), BL. Lecturer, Department of Public Law, Faculty of Law, University of Nigeria Enugu Campus.

The authors are very grateful to the anonymous reviewers. The authors are also grateful to Dr FO Ukwueze for his comments on the initial draft of this note.

References

1 Enacted as Decree No 6 of 1978, now cap L5, Laws of the Federation of Nigeria (LFN), 2004.

2 See generally Omotola, JAEssays on The Land Use Act, 1978 (1984, Lagos University Press)Google Scholar; Ezejiofor, G and Okafor, IJurisdiction to entertain judicial proceedings under the Land Use Act” (1994–97) 6 Nigerian Juridical Review 21Google Scholar; Nkwocha v Governor of Anambra State (1984) 6 SC 1. In Savannah Bank of Nigeria Ltd v Ajilo [1989] 1 NWLR (pt 97) 305, Obaseki JSC observed (at 324) that “this case has once more highlighted the unnecessary difficulties created by lack of precision and inelegant drafting of statutes. The Land Use Act … leaves a lot to be desired in its drafting”.

3 [2017] LPELR 42078 (SC).

4 [1990] 4 NWLR (pt 146) 632.

5 [2004] 7 NWLR (pt 468).

6 Ogunola v Eiyekole, above at note 4 at 656.

7 Huebner, above at note 3 at 15.

8 [2004] All FWLR (pt 220) 1185 at 1211–12, paras E–A.

9 (1998) 6 SCNJ 102.

10 (1997) 5 SCNJ 94.

11 Huebner, above at note 3 at 15–16.

12 Omotola Essays on The Land Use Act, above at note 2 at 17.

13 Olawoye, COStatutory shaping of land law and land administration up to the Land Use Act” in Omotola, JA (ed) The Land Use Act: Report of a National Workshop (1982, Lagos University Press) 14 at 19Google Scholar (emphasis original). See also Smith, IOThe certificate of occupancy: Nature and value” in Smith, IO (ed) The Land Use Act: Twenty-Five Years After (2003, Department of Private & Public Law, Faculty of Law, University of Lagos) 169Google Scholar.

14 Olawoye, id at 18. See also Omotola Essays on The Land Use Act, above note 2 at 15–24.

15 Olawoye, id at 19.

16 Note that the trusteeship created by sec 1 of the LUA is itself a subject of great controversy as academics are agreed on the fact that the provisions do not meet the requirements of trust. See Omotola, Essays on The Land Use Act, above note 2 at 16–18; CO Adekoya “Land Use Act and constitutional matters arising” in Smith (ed) The Land Use Act, above at note 13, 19 at 36–37; MA Banire “Trusteeship concept under the Land Use Act: Mirage or reality? in Smith, id, 90; Abugu, ULand Use Reform in Nigeria: Law and Practice (2012, Immaculate Prints) at 1923Google Scholar; Nwabueze, BONigerian Land Law (1982, Nwamife Publishers Ltd) at 239Google Scholar; Umezulike, IAABC of Contemporary Land Law in Nigeria (2013, Snaap Press Ltd) at 135–49Google Scholar.

17 See also Omotola Essays on the Land Use Act, above at note 2 at 17.

18 Huebner, above at note 3 at 14 (emphasis original).

19 LUA, sec 50(1).

20 Ogunola v Eiyekole, above at note 4 at 655–56.

21 Emphasis added.

22 [1913] All ER 241 at 252; [1913] AC 107 at 128.

23 [1986] 2 NSCC 1257 at 1285, per Karibi-Whyte JSC.

24 Above at note 4.

25 Id at 646.

26 See sec 1(1)( a) of the Acquisition of Land by Aliens Edict 1971, cap 1, Laws of Lagos State 1971, now cap 2, Revised Laws of Lagos State of Nigeria 2017; sec 3(1)–(2) of the Native Land Acquisition Law, cap 80, Laws of Western Nigeria 1959, now adapted by the various states constituting the then Western Nigeria; sec 4(1)–(2) of the Acquisition of Land by Aliens Law, cap 2, Laws of Eastern Nigeria 1963, adapted by the various states constituting the then Eastern Nigeria; and secs 27 and 28 of the Land Tenure Law, cap 59, Revised Laws of Northern Nigeria, 1963. These laws have been re-enacted by the states succeeding to the regions. For example, in Enugu State, the law is re-enacted as the Acquisition of Land by Aliens Law, cap 3, Revised Laws of Enugu State of Nigeria, 2004.

27 See the judgment of Mary Peter-Odili JSC.

28 See A Wahab and R Erega “Supreme Court decision restricts foreign ownership of land in Nigeria” (2018, Kayode Sofola & Associates), available at: <http://www.kslegal.org/wp-content/uploads/2015/11/Restrictions-on-Foreign-Ownership-of-Land-in-Nigeria.pdf> (last accessed 17 November 2019). See also G Ukwuoma and K Owolabi-Davids “The rights of an alien to acquire land under the Land Use Act cap L5 Laws of the Federal Republic of Nigeria 2004: Gerhard  Huebner v Aeronautical Industrial Engineering and Project Management Co Ltd (AIEP / Dana) – 2017 LPELR-42078 (SC)” (August 2017) Advocaat Law Practice Litigation Update, available at: <http://www.advocaat-law.com/assets/resources/e7d62973ea754e518435746aa22a86ed.pdf> (last accessed 17 November 2019).

29 Enacted as Edict No 7 of 1971, now cap 2, Laws of Lagos State of Nigeria, 2013.

30 Entered into on 27 February 1990. See also art 1 of the BIT between Nigeria and the United Kingdom, entered into at Abuja on 11 December, 1990; arts 1 and 3 of the BIT between Nigeria and the Netherlands, entered into at Abuja on 2 November 1992; art 1 of the BIT between Nigeria and Democratic People's Republic of Korea, entered into at Lagos on 26 April 1996; and art 1 of the BIT between Nigeria and China, entered into at Abuja on 12 May 1997.

31 Now cap 120, LFN 2004.

32 Cap N 117, LFN 2004.

33 See Werner, JTrade explosion and some likely effects on international arbitration” (1997) 14/2Journal of International Arbitration 1 at 6Google Scholar.

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