This was an appeal against a decision of the High Court to dismiss the appellant’s claim for loss of occupation of communal land. Her second claim was that the land was unlawfully expropriated without compensation by the respondents.
The court determined whether or not the appellant had acquired a valid customary law tenure right in the land in dispute and whether this right was unlawfully interfered with. Further, whether any liability attached to the council arising from its interference with that right.
The first respondent (“the council”), contended that the land belonged to it and had ceased to be communal land thus extinguishing communal land tenure. The court found that the appellant acquired and held a customary land tenure right and the state’s succession to the communal land did not extinguish communal land tenure but the state simply held the land in trust for the affected communities.
The court established that the Constitution guaranteed the enforcement of customary land rights. The court therefore, concluded that the appellant had an exclusive right to the use and occupation of the land in dispute; and that the right attached to the land even after its proclamation as town land.
Accordingly, they court upheld the appeal with costs in favour of the appellant. The matter was remitted to the High Court for the adjudication of the appellant’s claim of unjust enrichment and compensation.