The Customary Land Tenure System Flashcards
What is customary land law?
It is the law relating the the use or occupation of land belonging to a community, which has evolved from the community itself
What is customary land?
It is land that is owned by a community and administered by the customary land laws
What is the basic principle of customary land law?
Land belongs to the community or families of the chief or headman of the community or to the family as the manager or trustee of the customary land.
How can ownership of land be obtained?
they will own it if they continuously possess the land without being disturbed
- or by conquest
- or by permanent transfer via a sale or a gift
- inheritance is governed by the will of the dead or the customary laws of intestacy
- by settlement by ancestors who had exclusive ownership of it
- conveyed by deed
What is the difference between partitioning and apportioning land?
If the land is partitioned it means
- it is divided between the members of the community/family - is henceforth treated as private property.
- This takes it out of the customary land law system.
Whereas when it is apportioned,
- it still remains in the customary land system
- members of the family just get possessory right in the part of the land designated to them. - The title in the land is still held communally
Have the courts enforced the principle of ownership under customary land law? And in what case?
Yes.
OMOROKA OVIE v ONORIOBOKIRHIE 1957
The court said:
- The law applied in the courts is that all land in Nigeria are communally owned in the area where they are constituted and except in certain well established circumstances.
- They are not the objects of individual ownership
ABRAHAM v OLORUNFUNMI 1991
Ownership consists of 4 elements
1- The power of enjoyment
2- The right to posession
3- The power to leave the res by will and
4- The power to alienate or charge as security
Name the advantages of the communal land tenure system
1- No man could have monopoly or private ownership of the land. Otherwise, that one person could deprive future generations of land.
Is a communal member’s right to a share in the land dependent on the pleasure of the community head?
NO! It is an inalienable right, which a member can enforce against the head or any member who unlawfully deprives him of this right.
ARASE v ARASE 1981
The supreme court of Nigeria held that the allocation of communal land to a member of the community for building confers ownership.
- This case shows that in some communities, a member can acquire permanent rights in community land that may be equivalent to ownership
- However, the allotted member only enjoys exclusive possession as the community still has absolute ownership of the land.
OKOH v OLOTU 1953
Once the communal property has been allocated, the communal authority cant then make an inconsistent allocation or grant the same bit of land to another person without the prior inconsistent consultation and agreement of the person you first gave land to.
ADEWOYIN v ADEYEYE 1963
Where the same parcel of land is granted to two people, the earlier grant is superior to the later grant.
BASSEY v COBHAN
Communal property does not cease being just that merely because improvements were made to the land.
- it does not generate a new right to alienate the improvement without consulting the communal head
- At most, one may have the rights to enjoy the improvements he has made
**In this case a member repaired the swampy comunity land and tried to claim ownership of it becuase he had done so with his own money.
HELD- the improvements did not confer on him any special interest in the land claimed as against the title of the family/community members.
What is the key principle of customary land law?
Individual ownership of land does not exist because at no point does the individual in a community have the right to alienate his apportioned plot of land.
THOMAS v THOMAS 1932
members rights in communal property
Here, the supreme court set out the following rights of individual members in a communal property.
1- Right of residence
2- Right to reside in the family house
3- Have a voice in managing the family property
4- Have a share in any surplus or income
5- To demand partition or sale
6- To protect the communal property
7- To make physical use of the land
To devolve his interest in the communal property to his offspring.
