4. SOME LEGAL CONCEPTS

ONE should not commence the study of the customary land law of an area by looking for people whom one may describe as 'owners'; even less should one search to find the owner of estates in fee simple, for this tenure, which was first conceived in the English feudal period and persists until today, cannot exist in an African customary law. This is not to say that customary tenures may not exist which have many common features with ancient or modern English tenures; but one must analyse customary law as it exists and not attempt to fit it into tenurial categories which have developed in other continents and at other eras.


RIGHTS IN LAND

We often talk glibly of rights held in land and of the need to catalogue all the rights which can possibly be held by various persons in a plot of land. But this is a permissible figure of speech only if we recognize that rights are not held in relation to inanimate objects but in relation to other people. A right is not held in land but against another person; thus one holds a number of rights against various people in respect of a plot of land. The term 'property' has a double use -- in everyday speech to mean a physical object capable of ownership and in legal terms the rights held by a person in respect of the object. The comparison between these two usages has led English law to distinguish between corporeal rights -- in respect of things which can be handled like land itself or houses -- and incorporeal rights, which are in respect of things that have no physical existence such as rights of way, rights to light, etc. English law also distinguishes between rights in rem -- rights in a thing -- and rights in personam -- rights against a person. Here, too, the rights are not of two different kinds, for the first term means rights held against all persons, while the latter denotes rights held against a limited number of specified persons. Yoruba customary law does not recognize these concepts and there seems to be no advantage in employing them here. Property as we have already seen it defined is a 'web of social relationships' and if we analyse the rights held by individuals we shall, I think, come closer to the concepts held by the Yoruba themselves when they think of their land.

Our term 'rights', with the Yoruba phrase mo l'as + ̩e + 〩, covers a multitude of juridical concepts which the American jurist Hohfeld has distinguished with a more elaborate set of terms.1 These are not matched by

____________________
1
W. N. Hohfeld. Fundamental Legal Conceptions as applied in Judicial reasoning and other essays, (ed.) W. W. Cook, 1923.

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