This is a sequel to my first article on the land tenure system in Sierra Leone written about 1 year ago and published primarily in the electronic media and recently in the Sierra Leonean newspapers. The purpose of this follow-up article is to analyze some of the recommendations and modifications being proposed with regards to our land laws. For ease of reference and as in the past, I will divide my analysis into the land tenure rules applicable in the Western Area and the Peninsula and the land laws applicable in the Provinces.
Community Land vs. State Land & Private Land:
These are the 3 interested parties involved in disputes concerning land in the Western Area. Community land which purportedly vests title in the village headman/woman for the benefit of the community is a new form of claimed interest in land. It derives its root from the land ownership system in the provinces where land is normally held by the paramount chief in trust for the people. As individuals and local chiefs move into the Western Area and the Peninsula, an attempt is being made to replicate this system of land tenure in this region. It is also a strategy used by community youths and land grabbers to intimidate others and acquire land where the identity of the true owner is unknown, disputed or irrelevant to the acquirers.
The law frankly is that community ownership of land in the Western Area is a legal impossibility and is not supported by the existing laws. Leases and conveyances granted by village headmen are thus technically void and unenforceable and at best, give rise to a possessory interest in land which after prolonged occupation could result in a claim of adverse possession. If the land in question is State Land, then the lease or conveyance must emanate from Central Government or should reflect a leasehold or conveyance to the Local Government and a sub-lease from the Local Council to the individual or entity in question.
Enforcement of Judgments & the Courts:
The core problem with regard property rights in the Western Area is the length of time it takes to complete disputed land cases and the inability of litigants to enforce interlocutory and final Orders of the Court. Enforcement of preliminary and final injunctions is met with resistance from youths with machetes, sticks and stones and judgments and orders are costly and difficult to enforce. Due to the length of time these land cases take before judgments are issued, many a time the illegal occupant has completed building a structure on the disputed land in question. This makes enforcement even more costly, emotionally charged and problematic. A classis example is the length of time it took for the Sierra Leone Grammar School to obtain an enforceable judgment from the Court and the attendant costs of demolishing the structures built upon their land.
1. The Government and the Registrar General’s Office should publicly declare and inform the public (duly gazetted if necessary) that community land conveyances and leases are illegal, void and not registrable. Such leases and conveyances already registered should be identified, de-registered and cancelled and the affected parties duly informed.
2. All land cases currently pending in Court should be “fast–tracked” and emergency sittings held to sort through these cases. Funding for additional judges to hear these cases should be sought from the JSDP and other donors and testimonial hearings in Court expedited by the use of court stenographers or audio recordings. This way the Judges don’t spend days and weeks writing by hand the lengthy oral evidence of witnesses. If this cannot be done for any reason, then the parties should be encouraged to resort to binding arbitration and a system of arbitration introduced and staffed so that willing litigants can have a resolution of their land cases in a timely manner.
3. A new cadre of Court Bailiffs and Land Enforcement Police should be trained and deployed for the enforcement of Court Orders. The current disdain and disrespect showed to Court Orders and Judgments is alarming and should be curtailed immediately. If necessary, military police should be used routinely to enforce judgments in those areas where the losing party is likely to resist enforcement of the Court’s Order. A country that cannot protect or enforce its real property rights is unlikely to be able to protect other proprietary and pecuniary rights.
4. We need to move quickly to a system of title registration so that conveyances and other documents once registered are conclusive proof of ownership. We can start as was done in the United Kingdom in the 1980’s with a system of voluntary title registration for those areas and instances where title to the land is unlikely to be disputed such as developed properties in Freetown. This can thereafter be followed with compulsory registration of all conveyances with a moratorium for properties whose title is still in dispute. This process will also generate substantial fees and income for the Government if properly done.
5. Lastly, we must introduce a GPS mapping or so some other full-proof system of determining the metes and bounds of properties so that it can be easily determined from the survey when a property owner’s boundary has been encroached upon.
Local Council vs. Chiefdom Councils
It must be stated that the passing of the Commercial Use of Land Act currently stalled as a Bill entitled The Land (Acquisition and Commercial Use) Act 2005 will usher in much needed reforms to the land tenure system in the Provinces. It provides in Section 2 that any Sierra Leonean may acquire a freehold interest in land in any part of Sierra Leone. By so doing, the discriminatory effect of the Provinces Land Act 1961 against Krios, Kroos and Akus is eliminated and the Act confirms the existence of freehold land ownership in the Provinces. The Provinces Land Act is in fact repealed in Section 25 of the Bill.
If further provides in Section 3 for the sale of land by deed which is the mode of transfer in the Western Area which deed must be registered in Freetown or the district land registry. Section 6 provides for the existence of leases of up to ninety (90) years with a further renewal for an additional twenty one (21) years. By virtue of Section 6, long terms leases in excess of 100 years can now be obtained in the provinces by anyone as compared to a maximum term of seventy one years found in the earlier statute. Indeed, in Ghana, one can only obtain leases of customary land for up to fifty (50) years. Further, by virtue of Section 18, lenders (i.e. Banks) are prohibited from refusing to grant loans to owners of land in the provinces since such owners now have registrable deeds and leases. A mortgage on land in the provinces is expressly permitted under section 13 which instrument will be registrable. The above statute once passed therefore goes a long way in radically changing land ownership rules in the Provinces. However, the Bill in my opinion contains a few fatal defects and raises questions which need to be urgently addressed before it is passed into law and these are:
Potential conflict between chiefdom council and local council created?
1. The above Bill vests sole authority for the sale of land or granting of a lease to third parties on the paramount chief / chiefdom council who must consent and are signatories to all land transactions in the provinces (save arguably individual & privately held land). Apart from a passing reference in Section 3 (3) that a contract for sale of land shall state the purpose for which the land is to be used, which shall be compatible with the development plan of the local council, there is no mention of the role or authority of the Local Council in these land transactions.
2. Section 20 (1) of the Local Government Act 2004 explains however that “A local council shall be the highest political authority in the locality and shall have legislative and executive powers to be exercised in accordance with this Act or any other enactment, and shall be responsible generally for promoting the development of the locality and the welfare of the people with the resources at its disposal and with such resources and capacity as it can mobilize from the central government and its agencies, national and international organizations and the private sector.”
3. Land is the most important natural resource available to the Local Council and to isolate it from the process of reviewing and granting conveyances and leases in the provinces is tantamount to be-heading the captain. The Chiefdom Councils are a creation of the colonial government duly confirmed by legislation in the 1960’s which at that time vested supreme political, legislative and executive powers in the Paramount Chiefs and the Chiefdom Council.
4. The Local Councils were obviously intended to take over this process by virtue of the Local Government Act 2004. Indeed, Section 20 (2) of the above Act states the function of the local council is to “(a) mobilize the human and material resources necessary for the overall development and welfare of the people of the locality; (b) promote and support productive activity and social development in the locality (c) Initiate and maintain programmes for the development of basic infrastructure and provide works and services in the locality ..(h) oversee Chiefdom Councils in the performance of functions delegated to them by the local council, (j) approve the annual budgets of Chiefdom Councils and oversee the implementation of such budgets.”
5. From the above, it is clear that the Local Council is the superior entity as regards developmental and other issues affecting an area and the use of land is at the core this. Local councils maintain bank accounts – section 63; can sue or be sued – section 112; is a body corporate with perpetual succession – section 3 (1); is composed of a Chairperson, elected councilors and paramount chiefs and is in my opinion the proper authority to oversee land transactions envisaged by the Bill. It includes a wider selection of people and is not subject to the whims and caprices of a paramount chief. Section 21 provides that a Local Council may delegate functions to the Chiefdom Council thus confirming the supremacy of the Local Council over the Chiefdom Council. However, by not expressly acknowledging the role of the Local Council as the supervising entity on all land transactions in the Commercial Use of Land Bill, it creates a lacuna and a potential area of conflict between the two Councils.
Who receives the Sales Price or Rent and How is the Money Shared?
1. The Bill is also silent as to who is authorized to receive the sale proceeds or rent flowing from a land transaction in the Provinces but it is nevertheless implied based upon the way the Bill is drafted that it goes to the Paramount Chief and the Chiefdom Council. Normally, a statute will have a specific provision as to how revenue will be shared or it will indicate that the formula will be determined by a third party such as the Minster of Lands or Minister of Local Government. We are told in section 19 of the Bill that the Chiefdom Treasury shall appoint an officer and provide facilities for the receipt, safe custody and processing of documents relating to land transactions required to be deposited with or kept by the Chiefdom Treasury. Since the Paramount Chief holds land on trust for the local community in the provinces, he is obviously a necessary party to any transaction concerning community land or family land.
2. The Third Schedule to the Local Government Act however has the following devolved functions regarding land entrusted to the Local Council, namely land surveying, land registration, leasing government land, strategic local plans, preparation of land use plans. The Local Government Act also specifically provides in section 58 for the sharing of local taxes and mining revenue between the Local Council and Chiefdom Council. Given that the Bill envisages the commercial use of land in the provinces, it is important that this revenue stream be channeled through the appropriate Authority.
3. Many companies have unfortunately had a negative experience in their desire to acquire land in the provinces from Paramount Chiefs. The lease amounts demanded have been subject to unilateral increases; there have been competing claims from different Paramount Chiefs as to who has the authority to grant the lease or in whose territory the land is located. In some instances, the companies have had to pay for the land several times over even though they were in possession of what was initially believed to be a binding lease agreement. The Bill by vesting the sole authority for the grant of leases and conveyances upon the Paramount Chief and the Chiefdom Council risks duplicating this experience which will ultimately be a disincentive to investors wishing to acquire land in the Provinces.
Where and How is the Conveyance or Document Registered?
1. According to the Bill, the conveyances, leases etc can be registered in Freetown presumably at the Registrar General’s Office or in the applicable District Land Registry. The problem though is we still maintain in Freetown a system of registration of instruments rather than registration of title. To put it another way, since this will involve a new regime of title registration for the Provinces, why don’t we effect registration in such a way that it involves conclusive proof of title ownership rather than seek to duplicate the same problems inherent in property registration in Freetown.
2. Creating a system of title registration simply involves:
(i) Ensuring the accuracy of the documents being registered
(ii) Mandating that registered documents are bonafide and conclusive proof of title / interest in land enforceable against third parties.
(iii) Implementing a system of cautions and challenges for registered documents that are disputed
(iv) Introducing a system of title insurance or indemnification for those affected by the wrong doing or negligence (erroneous registration) of the Title Register’s Office.
(v) Confirmation that registration is conclusive proof of the applicant’s claim to the title or interest in land.
3. Registration of title and instruments in land in Freetown may soon be revamped to provide for the above situation thus the Bill must minimally provide for the upgrading of the title registration process. Section 23 (2) of the Bill states that “Until registration of title to land is effected in the Provinces, a Chiefdom Council shall compile a list of families and individuals that have freehold estates in land situated in its chiefdom, together with the names and address of each head of such families and individuals.”
4. Firstly, this overlaps with a function already delegated to the Local Council by virtue of the Local Government Act 2004. Secondly, there is no reason why the Bill cannot “take the bull by the horn” and provide for the registration of title to land for all conveyances, leases etc registered under this Statute. This registration can be done within the local government area in question with a back-up filing in Freetown. Council. Herein lays a unique opportunity to start a process of title registration for the Provinces not encumbered by years of disputed title, duplicated and forged instruments, illegal conveyances etc plaguing title registration in the Western Area.
Recommendations & Conclusions:
1. The Local Council should be substituted for or minimally made a party in the Bill to all transactions pertaining to sale or leases of land in the Provinces so as to ensure that it can discharge its role in shaping economic and social development in the local government area in question. Failing this amendment, the efficacy of the Act to encourage the commercial use of land in the Provinces may be lost.
2. A provision should be inserted in the Bill wherein a formula for the sharing of the proceeds of sales and rentals of land is specified or the responsible Minister is specifically vested with the authority to determine the allocation of revenue between all interested parties as is done usually in mining leases.
3. Registration of conveyances, leases, mortgages etc of land in the Provinces should be “leap-frogged” and a system of title registration introduced or phased in within the Bill so as not to duplicate the problems inherent in the registration system in the Western Area. We must learn from our mistakes and not duplicate them!
By Maurice R. Garber
Barrister & Legal Consultant