A foreigner is a person who is an origin of a foreign country. Nigeria is viewed by many as a land filled with opportunities, thus attracting a large number of foreigners who seek to harness this vast opportunities available in Nigeria. These foreigners are faced with an immediate challenge of whether they are permitted to own land in Nigeria.
The constitution of the Federal Republic of Nigeria under section 43 provides for the right to acquire and own immovable property anywhere in Nigeria. Sequel to the provision of section 43 of the constitution of the Federal Republic of Nigeria, a question comes to mind; whether foreigners are absolutely bared from owning a land under the Land Use Act 1978 CAP L5 LFN 2004.
This question was answered in the recent case of HUEBNER v AERONAUTICAL INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT & CO. LTD (2017) 14 NWLR (PT 1586) 396 the Supreme Court Per GALUNJE JSC in pp 13-16, para A-B reaffirming the decision in Chief S.O. Ogunola v. Hoda Eiyekole & 9 ors (1990)4 NWLR (Pt 146) pg 632 stated and 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….”.
Section 46(1) (a) of the Land Use Act empowers the National Council of State to make regulations for the transfer by way of assignment or otherwise and to prescribe conditions applicable to the transfer of such right to persons who are not Nigerians.
A cursory look at this section would suggest that foreigners can validly own a land with the consent and upon the terms prescribed by the National Council of States. This is in clear contrast with Heubners case (supra) which seems to have placed an absolute bar.
The question then is which supreme? I am of the opinion that the land use Act been the Apex legislation regulating land matters in Nigeria should usually take priority over judicial decisions such as Heubners case (supra).
However, the national Council of state have not fully utilized these powers granted to them under the Land Use Act and till that is done the decision of the court in Heubners case in my opinion remains the position.