By Evarist Baimu Nyaga Mawalla - Home

such consent is required only in cases involving disposition of land by indigenousinhabitants or natives to non-natives in order to safeguard the interests on the former.Were are satisfied in our minds that the indigenous population of this country arevalidly in occupation of land as beneficiaries of such land under customary law andany disposition of land between them under customary law is valid and requires noprior consent form the president.We are of course aware of the provisions of the land regulations, 1948 andspecifically regulation 3 which requires every disposition of a right of occupancy tobe in writing and to be approved by the president. In our considered opinion the landregulations apply only to a right of occupancy granted under section 6 of the landordinance and have no applicability to customary or deemed rights of occupancy,where consent by a public authority is required only in that case of a transfer by anative to a non-native. A contrary interpretation would result in the absurdity we havementioned earlier.As to the contention by the Deputy Attorney-General to the effect that the right toproperty under Article 24 of the constitution id derogated from by the provisioncontained therein expression which is to be found in other law. It is a fundamentalprinciple in any democratic society that the constitution is supreme to every other lawor institution. Bearing this in mind, we are satisfied that the relevant proviso meansthat what is stated in the particular part of the constitution is to be exercised inaccordance with relevant law. It hardly needs to be said that such regulatory relevantlaw must not be inconsistent with the constitution.For all these reasons therefore we have been led to the conclusion that customary ordeemed rights in land, though by their nature are nothing but rights to occupy and usethe land, are nevertheless real property protected by the provisions of Article 24 ofthe constitution. It follows therefore that deprivation of a customary or deemed rightof occupancy without fair compensation is prohibited by the constitution. Theprohibition of course extends to a granted right of occupancy. What is fair83