12. EQUITY

IN the previous chapters we have noted a variety of transactions in land which are recognized today by the customary courts; these may be conveniently grouped under the three heads -- tenancies, charges (pawning and pledging), and sales. Most of the land cases in the customary courts arise from a dispute over the nature of a transaction, and of the rights conveyed. These cases are of two types: first are those in which the transaction was void either because the grantor did not hold the rights he purported to convey, or because he held them but had no power to transfer them; second are cases which arise when a person holding a dependent interest exceeds the rights granted to him, as when an annual tenant or a creditor-pawnee plants permanent crops. In these cases the customary courts' first task is, usually, to ascertain the nature of the original transaction, for the vendor in a void sale will perhaps claim that he had the right to convey the land, and the erring tenant or pawnee may aver that the land was sold to him, or granted outright in the customary manner. The judges examine the evidence of the original grant, but where this is inconclusive their decision may be guided by the subsequent behaviour of the parties. Thus a plaintiff claims that the man to whom he has pawned his cocoa farm has planted fresh cocoa, claiming these as his own personal property; the creditor claims that the land was sold to him and cites his planting, to which the plaintiff raised no objections for several years, as a proof of his rights. In some cases in which the court finds in favour of the plaintiff -- that the grant was void or that the defendant has exceeded the rights conveyed to him -- it is possible to restore his rights and re-establish the status quo ante. But in many cases the defendant has improved the land, perhaps even innocent of his lack of rights, while the plaintiff has done nothing for several years to protect his own interests. The courts must here decide what rights can in equity (using this term to mean 'fairness' and not in its strict English legal sense) be restored to the plaintiff and what should be confirmed to the defendant.


LIMITATIONS OF ACTIONS IN CUSTOMARY LAW

Cheshire writes: 'Most systems of law have realised the necessity of fixing some definite period of time within which owners who have been unlawfully deprived of their interests in land must prosecute their claims. It is an evil that a person who has wrongfully seized land belonging to another should be allowed to keep the land against the true owner, but it would be a greater evil if a dispossessed owner were

-338-

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Yoruba Land Law
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Maps x
  • Preface xi
  • Part One - Concepts 1
  • 1. Prologue 3
  • 2. Customary Law 13
  • 3. Yoruba Towns 30
  • 4. Some Legal Concepts 60
  • Part Two - Four Kingdoms 95
  • 5. Ondo 97
  • 6. Ijebu 136
  • 7. Ado Ekiti 185
  • 8. Egba 225
  • Part Three - Some General Problems 277
  • 9. Succession 279
  • 10. Land and Credit 308
  • 11. the Sale of Land 326
  • 12. Equity 338
  • 13. Local Government Councils and Land 354
  • Appendix - The Volume of Litigation in Customary Courts 362
  • Select Bibliograph 364
  • Index 368
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