By Evarist Baimu Nyaga Mawalla - Home

section 2 of land ordinance, 1922 is not property within the meaning of Article 24 ofthe constitution and is therefore not protected by the constitution. The DeputyAttorney-General cited a number of authorities, including the case of Amodu Tijani v.The Secretary, Southern Nigeria and the case of Mtoro Bin Mwamba v. Attorney-General. The latter arising from our own jurisdiction. The effect of these authorities isthat customary rights in land are by their nature not rights of ownership on land, butrights to use or occupy land, the ownership of which is vested in the community orcommunal authority. The deputy Attorney-General also contended to the effect thatthe express words of the constitution under Article 24 makes the right to property“subject to the relevant laws of the land.”Mr. Lobulu for the respondents has countered Mr. Mrema’s contention by submittingto the effect that whatever nature of customary rights in land, such rights have everycharacteristic of property as commonly known, and therefore a fall within the scopeof Article 24 of the constitution. He cited a number of authorities in support of thatposition, inlciding the Zimbabwe case of Hewlett v. The minister of finance and thecase of Shah v. Attorney-General (No.2) and the scholarly article by Thomas Alle,lecturer in law, University of Newcastle, publisher din the international ancomparative Law quarterly.Undoubtedly the learned trial judge, appears to have been of the view that customaryor demoded rights of occupancy are property within the scope of Article 24 of theconstitution when she stated in her judgment:I have already noted earlier on that the petitioners legally posses the suit land undercustomary land tenure under section 2 of the land ordinance cap 113. They have notin this application sought any special status, rights or privileges and the court has notconferred any on the petitioners. Like all other law abiding citizens of this country,the petitioners are equally entitle d to basis human rights including the right to possesthe deemed rights of occupy they lawfully acquired pursuant to Article 24 (1) of theconstitution and section 2 of the land ordinance, cap 113.79