INDIVIDUAL RIGHTS IN COMMUNITY LAND
CONTENTS
1:0 Introduction
2:0 Objectives
3:0 Main Content
3:1 Right of Allotment
3:2 Right to Share in Communal Income
3:3 Right to Participate in Management of Communal Land
3:4 Position of Strangers
4:0 Conclusion
5:0 Summary
6:0 Tutor Marked Assignment
7:0 Reference/Further Reading
INTRODUCTION
Every member of community in Africa and under customary law has certain important rights in the community which must be respected by the chief and enforceable by the individual members of the community. All the powers of the chief are expected to be exercised for the benefit of the entire community. While strangers may not be able to enforce any specific rights in the community, the individual can enforce his rights within the framework of customary law.
OBJECTIVES
At the end of this unit the student must be able to explain the rights and privileges of individuals in the community, and the position of strangers in the community.
MAIN CONTENT
RIGHT OF ALLOTMENT
Every member of the community is entitled to use the communal land, the chief must ensure that every deserving member of the community is allotted a parcel of land for farming and to build his house thereon. The right does not depend on the pleasure of the chief or discretion. He is under a duty to allot land to every member from the communal land. The member is entitled to enforce this right in court. (See Lewis v Bankole op. cit). The court’s jurisdiction extends to protection of individual rights of members of the community. If the court discovers that any member is being cheated, the court may order outright sale of the land and or partition of the land. (Ajoke v Oloko (1959) LLR 152). Once a communal land has been allotted to a member of the community, then he exercises all occupational rights thereon, to the exclusion of any other member of the community. The chief can no longer allot the same portion to another member of the community, in effect; the individual member acquires permanent rights in the land. The rights being permanent are actually ownership rights and are inheritable by his heirs. In the case of Oragbade v Onitiju (1962) 1 All N.L.R. 32. It was held where land has been allocated to some individuals within the community land, that such land are no longer the property of the community. In such areas the allocation of community land to a member confers ownership on the member.
The effect of this is that the chief cannot make inconsistent grant of the communal land to members of the community, where this is done the latter allotment is void. The chief cannot revolve the grant already made to a member of the community and re-allocate to another member or strangers in the case of Adewoyin v Adeyeye (op. cit) and also Asiyanbi v Adeniji (1966) NMLR 106 the Supreme Court held that the Oni of Ife could not grant land already enjoyed by a family to another person, whether a member of the family or not, without consulting the family, and that any rule of customary law will be rejected as being contrary to natural justice, equity and good conscience. In the case of Agbloe v Sappor. (op. cit). The chief and principal members of the family were ordered to pay damages for trespass committed through unlawful entry into land lawfully occupied by a member; he is also entitled to injunction to restrain any threatened interference, and to a declaration of his possessory title.
The member of the community’s interest is akin to that of a tenant; except that he does not pay any rent and cannot be evicted for any reason except for acts that are totally criminal to the community such as armed robbery, and other serious misconduct that threaten the existence of the community. Forfeiture is possible under customary law but is rarely resorted to.
RIGHT TO SHARE IN COMMUNAL INCOME
Apart from actual user, whatever income or profit is derived from communal land is the property of the entire community. Income or profit may accrue to the community in form of rents from customary tenants, sale of communal lands; compensation from government paid for acquisition of community lands, etc. in effect the income is paid to the chief, who must give account of the moneys to the community. The chief is entitled to deduct all charges and outgoings, after which the money must be shared amongst all members of the community..Every member of the community has a right to share in the income accruing to the community from proceeds from the community land. If the chief appropriates the money for his own personal use, the members are entitled to ask for account of the entire income. In the case of Osuro v Anjorin (1946) 18 N.L.R 45, the court entered judgment in favour of a member of a family for account and payment of whatever is due to the member of the family. See also Achibong v Archibong (1947) 18 N.L.R 117.
RIGHT TO PARTICIPATE IN MANAGEMENT OF COMMUNITY LAND
The chief is obliged to inform the individual family heads and important elders of the community before taking any impendent step affecting the community property. The family heads must also inform members of his family who participate in decision making in the community. The consent of the entire principal members of the community is required before the chief may take important decisions affecting the community land. It is also important that all principal members must agree to a sale or disposition of community land, where this is not done, the sale is not void, but the members may challenge the sale, and ask for account, but cannot nullify the sale.
POSITION OF STRANGERS
The communal land is exclusively for the benefit of the members of the community and not strangers. A stranger interested in community land may apply for a grant of the land from the chief or traditional authorities. The stranger cannot acquire ownership of communal land, when granted, he will remain a tenant of the community and the stranger may only use the land for the purpose for which the land was granted to him, which may only be for farming purposes; and where the stranger builds houses on the land, he remains customary tenant of the community.
CONCLUSION
Individual rights of members of the community have long been recognized under Native Law and custom. These are rights to allotments, income sharing and management of the communal rights.
SUMMARY
The individual rights of the members of the community are legally enforceable rights, and assist in ensuring that there is probity , transparency, and discourages cheating.
TUTOR MARKED ASSIGNMENT
Discuss the individual rights of members of a community in community land.
REFERENCES/FURTHER READING.
B .O.NWABUEZE, 1972, Nigerian Land Law,Nwamife Publishers Limited Enugu
Coker, Family Property among the Yorubas,(2nd ed)
Lloyd, (1962) Yoruba Land Law
Lloyd, 1965, Yoruba Inheritance andSuccession in Derret,ed. Studies in Law of Succession in Nigeria
Elias, British Colonial Law
Elias, Nigerian Land Law and Custom Elias,Nature of African Customary Law
Pollock, 1961, Jurisprudence and Legal Essays, London.
Omotola, 1984, Essays on the Land Use Act , Lagos University Press
Olawoye ,1970, Meaning of family property,NJCL vol 2 p300
Oluyede, 1989,Modern Nigerian Law, Evans Bros,(Nigerian publication)Ltd Olawoye, Title to Land in Nigeria,
Obi, 1963, The Ibo Law of Property.