Can the fragility of the land tenure system in the Provinces be mitigated by the intervention of the GoSL, by buying up large tracts of land to make available to large scale investors? The situation is unclear. There are two types of State lands in the country: Crown Lands (in the Western Area) and Government Reservations (in the Provinces). Crown Lands comprise lands which have been acquired “for the service of the Colony” under the Public Lands Ordinance, 1898 (Cap 116), and lands which were “claimed as Crown Lands” under the Unoccupied Lands Ordinance, 1911 (Cap 117). The Crown Lands Ordinance, 1960 (No. 19 of 1960) specifically defines Crown Lands as: “all lands which belong to the Crown by virtue of any treaty, cession, convention or agreement, and all lands which have been or may hereafter be acquired by or on behalf of the Crown, for any public purpose or otherwise howsoever and land acquired under the provisions of the Public Lands Ordinance and includes all shores, beaches, lagoons, creeks, rivers, estuaries and other places and waters whatsoever belonging to, acquired by, or which may be lawfully disposed of by or on behalf of the Crown.”
Under the Public Lands Ordinance, 1898 the government can acquire any land in the public interest simply by publishing a declaration in the Gazette and informing the owners of the land accordingly. The Ordinance also provides for the payment of compensation to those affected by the declaration. Such lands are taken over by the State and are managed and controlled by the State.62 Though the Ordinance does not expressly state this, its provisions demonstrate clearly that the Ordinance does not apply to the Provinces.
The Unoccupied Lands (Ascertainment of Title) Ordinance, 1911 (Cap 117) states that whenever it appears to the government that any land is unoccupied for upwards of 12 years, the government can declare such land to be Crown Land and proceed to control and manage such lands as public lands. There is evidence that this provision may be misunderstood by some village headmen and chiefs in the Western Peninsula who are assigning land through conveyances and leases to unsuspecting buyers. Until there is a proper devolution of authority to the Local Council from Central Government to distribute crown land on behalf of the state, these grants and conveyances of vacant land are of no legal effect.63 Admittedly with a prolonged period of occupation, (12 years) land can be acquired by prescription. However, it is doubtful if prescription rights can be acquired over Crown land and against the government; rights of prescription normally inure to the benefit of the individual and are not an unincorporated entity.64 From a practical point of view also, should such documents prove to have no legal effect, this sends a powerful negative signal to potential investors about the process and validity of conveyances in Sierra Leone.
Government Reservations are lands leased from traditional authorities. Section 9 of the Concessions Ordinance, 1931 (Cap 121), empowers Government to acquire interests in land of any size for periods longer than 99 years. It is unclear whether, but unlikely that, this includes freehold interests given that the system does not allow transfer of land through freehold. Lands acquired in this way are referred to as Government Reservations. Such lands were usually reserved as residential quarters for government employees, offices for the machinery of government, forest reserves, etc.
Registration of Title vs. Registration of Conveyance
Notwithstanding a formal system of land ownership in the Western Area, many families inherited property without properly documenting their lineal transfer of ownership. The problem was compounded by a failure of successive governments to introduce and implement a system of land registration of title. In the case of Seymour Wilson v Musa Abess, (1979) the late Chief Justice, Livesey Luke commented about this problem which was causing a plethora of land lawsuits. He stated “In my opinion, registration of an instrument under the Act confers priority over other instruments affecting the same land which are registered later. Registration of an instrument under the Act does notconfer on the purchaser, mortgagee etc. title nor does it render the title of the purchaser indefeasible.” In other words, although each land owner has their own conveyance, the fact that it is registered does not denote good title.
To compound the problem, land surveys are usually plotted using beacons which are unfortunately removable. In the absence of a digitally drawn G.P.S. mapping, many owners are unable to track the exact coordinates of their land once the beacons have been removed. In some cases, neither the GoSL nor the public are truly aware of who owns what land and neither side has the requisite title instrument to back up their claim to ownership. Presumably, the government relies on its assertion that the land is Crown land and shifts the onus to the private individual to show that the land in question is not state land but private land. The law however is that he who claims ownership must prove it. Unfortunately, Sierra Leoneans do not have a culture of taking the government to court so where they occur, many of these claims of state land ownership are not challenged. Those that have proof spend years in court, effort and money trying to claim what is rightfully theirs.
Implications of Land Tenure for Commercial Agricultural Development
The existing land tenure system is just adequate for the kind of small-scale subsistence agriculture currently prevalent in the country. However, where Sierra Leone is competing with other countries in the sub-region and worldwide for foreign direct investment, the land situation bears closer scrutiny and review to ensure that land is put to productive use for the benefit of the current and future generations of farmers and businesses in the country.
Hernando de Soto, a Peruvian economist estimated that the value of rural land ploughed or grazed by African farmers, which they did not formally own; or owned but had no formal title was worth over $30 billion dollars. Customary or informal land ownership effectively undermines the ability of rural communities to make their lands productive. Babashola Chinsman in his book “Uncommon Thinking” referring to the situation in Sierra Leone, explains “The most crippling effect of poverty stems not from the inadequacy of incomes, but from a lack of assets”65 He goes on to explain: “Even the land on which most of them live or depend for their livelihood, is often not secured by proper title, leaving them without any assets”.66 The irony is that the prime asset which many rural communities have, which is land, remains locked in a system of ownership which leaves them effectively poor, i.e. without assets. This explains the urgency of many Sierra Leoneans to buy up land in the Western Area which has a formal system of land ownership.