19 May 2008

Nigeria: Re - Can Foreigners Own Land in Nigeria?


Lagos — Two weeks ago I wrote a piece titled "Can Foreigners own land in Nigeria?" Since then my phones have been busy, and so for my emails. The article raised more questions than it provided answers - a deliberate ploy to elicit responses. I hope that in the weeks ahead we can gather enough feedback to build on the existing "jurisprudence" regarding this question and our land tenure system generally. To keep the ball rolling, please find below an article from a learned gentleman - Emmanuel John. I hope it stokes the fire a bit more while we wait to hear from others. Ayuli Jemide

Aliens & Land Owner ship in Nigeria - Matters Arising

The query raised in your column on land holding or ownership by foreign entities - human or corporate has helped to highlight the tardiness in our legislation and our national attitude in promoting incomplete projects.

The subject of your discussion is apt in the illustration of one of such incomplete or better still abandoned projects in Nigeria.

Firstly, let me put in perspective the Land Use Act, a rather revolutionary piece of legislation which had the potential of unifying Land Administration and addressing the nagging problem of uncertainty of title more than any other law before it in Nigeria. That potential has since lost its momentum due to inept application that has witnessed some of the provisions remaining "Part VI- Transitional and Other Related Provisions" thirty years after its application!

The Land Use Act 1978 vests all land comprised in the territory of each State of the Federation except land that is vested in the Federal Government of Nigeria or its agencies solely in the Governor of the State who would hold such land in trust for the people and would be responsible for allocation in urban areas of the State to individuals and organisations for agricultural, commercial and other purposes. See the case of Calabar Central Co-operative Thrift and Credit Society Limited Ors. v. Bassey Ebong Ekpo (2008) 6 N. W. L. R.part 1083 362 at pp.414 per Muhammad J. S. C.

The above statement gives judicial punch to Section 1 of the Land Use Act. By the said Section land is so vested in the Governor "to be held in trust and administered for the use and common benefit of ALL NIGERIANS in accordance with the provisions of the Act.

Secondly, the Land Use Act has no provision for ownership of land by persons who are not Nigerians. Rather in Section 46 (1) (a) the Act empowered the National Council of States to inter alia make regulations for the purpose of carrying the Act into effect and particularly with regard to the following matters:

(a) the transfer 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.

It is doubtful if the National Council of States has made the envisaged regulations. It seems to me that there is a void here yearning for filling.

The above provision brings to focus the existence of such existing laws such as the Acquisition of Lands by Aliens Law 1971 (Lagos State), and the Regulations made pursuant to the same.

The applicability of any State Law on the subject of acquisition of interest in land by non-Nigerians will certainly be subject to Section 46 aforesaid. Whatever regulation is made under any State Law cannot be interpreted to mean regulations envisaged under the Act. The Act has prescribed a body and enjoins same to make regulations towards the acquisition of rights in land by non - Nigerians. It seems to me that in the absence of an amendment to the Act the State Law on the point will not apply.

Moreover, such State Laws will have to be read subject to the Act by virtue of Section 48 of the Land Use Act and for a stronger reason Section 315 of the Constitution which provide :

48. " All existing laws relating to...............transfer of title to any interest in land shall have effect subject to such modifications, (whether by way of additions, alterations or omissions) as will bring those laws into conformity with the Act or its general intendment."

315. " (1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of the Constitution......"

Therefore the Acquisition of Land by Aliens Law pre-dating the coming into effect of the Act will be read subject to the Act on the issue under consideration.

It becomes more imperative when considered against the inclusion of the Act in the Constitution of the Federal Republic of Nigeria. By virtue of Section 315 (5) nothing in the Constitution shall invalidate the Land Use Act and its provisions shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of Section9 (2) of this Constitution. An amendment of the Act is therefore a Constitutional issue.

Furthermore the deemed inclusion of the subject of Land in the Exclusive Legislative List makes the application of any State Law of doubtful authority. That List makes express legislative reservation of subject therein for the Federal Government or the National Assembly. By Section 315 (6) of the Constitution, the Land Use Act shall continue to have effect as a Federal Enactment and as if it relates to matters included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution.

Thirdly, with the predominant participation of foreign entities in the mineral mining industry in Nigeria there is a need to consider the holding of proprietary interests in land by such entities. Land in law is not limited to the surface of the earth but includes the underneath and the space above. This is usually referred to as the three dimensional definition - see Blacks Law Dictionary 7th Edition. The issue to be considered is what is the constituent of a mining lease? Certainly it is not limited to the access to the mineral under the soil but includes access to the land bearing the mineral. The law recognises this distinction. By the provision of Section 1 (1) of the Minerals and Mining Act Cap M12 Laws of the Federation of Nigeria the property in and control of minerals in, under or upon land etc throughout Nigeria is vested in the Government of the Federation and in Section 1 (2) the land bearing the mineral shall be acquired by the Government of the Federation in accordance with the provisions of the Land Use Act. Therefore in granting any Title to mine to persons in accordance with the Minerals and Mining Act the title holder is deemed to be assigned the possessory right of the land to the exclusion of all other persons including the grantee subject only to compliance with the terms and conditions of the grant. The Minerals and Mining Act does not prohibit foreigners from applying for mining leases but defines the qualification for the grant. For example, the applicant has to be a body corporate duly incorporated under the Companies and Allied Matters Act.

Finally, the environment has been made liberal for the promotion of investment in the country. Sections 17 and 31 of the Nigerian Investment Promotion Act Cap N117 Laws of the Federation of Nigeria, permits a non Nigerian to invest and participate in the operation of nearly any enterprise in Nigeria. Therefore, a wholly foreign entity is not precluded from participation in any business that involves the holding an interest in land.

In order to accord clarity to the state of our law in this regard, there is need for an explicit and categorical legislation. The Land Use Act should receive a just application of the overdue legislative scalpel. We certainly can do better!

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