The freehold system has obvious advantages, which may assist in agricultural development. In the first place, the freehold interest provides its owner security from dispossession – an overriding advantage over the communal system of ownership. Freehold confers ownership and not mere use-rights. Moreover, one can transfer the freehold interest without any hindrance, either inter vivos or by testamentary disposition. It is therefore inheritable and ensures security and sustenance to the landowner’s survivors. Acquisition of interests in the Provinces does not confer any of these advantages. It has been acknowledged that even where land has been lawfully acquired from traditional authorities, the beneficiaries could be dispossessed for a number of reasons including (a) if they challenged the interest of their landlords, (b) if a new chief was installed who considers the grantee a threat or an enemy for whatever reason, and (c) if at some future date the community felt it needed its land. It is unclear whether the interest acquired from the communal owners is registrable67 and capable of being inherited.
For large-scale commercial farming, it appears that there already exists some movement towards formal arrangements under which farmers acquire longer term leases on land. This is permitted in accordance with the Concessions Ordinance, 1931 (Cap 121). Section 5 of the Ordinance provides for Tribal Authorities to alienate land for cultivation only under the Ordinance or under the Protectorate Land Ordinance, 1927 (Cap 122) except that all alienations made under Cap 121 should receive the assent of the Governor.68 Section 9 of the Ordinance limits the interest that could be alienated by the Tribal Authority in land larger than 50 acres to 99 years except where the land is alienated to the GoSL for a public purpose. In many cases, these leases have been arranged informally between the farmer and the family head and only a few have formally been registered in the Deeds Registry.
One simple way, in the short term, to provide security of title to land in the provinces would be to recognise and routinely register leasehold interests.69 These are different from mere leases (whether short or long term) currently used in Sierra Leone, which are sort of tenancy agreements. A leasehold interest on the other hand is a legal interest in land, which lasts for a number of years, entitles the holder to quiet possession of the land and which can be passed on to one’s successors after death. The lease could be for either bare land (ground lease) or developed land (occupational lease) and it is a condition in all leases that the leaseholder pays a rent to the landlord.
In the case of a ground lease, the rent reserved in the lease is a ground rent, which is usually minimal and does not reflect the true value of the land. This is because, as is the case in all leases, on the expiry of the lease, the leaseholder must surrender the land and all fixtures on it to the landlord. For the purposes of agricultural development, the fixtures may be in the form of structures or economic trees cultivated by the leaseholder. The landlord and the leaseholder may also agree to some conditions (covenants), which may be inserted in the leasehold document to guide their relations.70 In the case of Sierra Leone’s agricultural development, the optimum approach would be to provide leasehold interests in land for terms of 50, 75 and 99 years, in order to provide security of title and investment.
Secure title makes assets fungible, so the absence of formal documents of title precludes loans and financing from banks. Also, banks cannot provide farm credit based on the current system of land holding because they do not consider the existing system provides sufficient security on which farm credit could be advanced. The individual’s usufructuary estate does not provide the needed security, because the individual cannot mortgage the land on which s/he works without the consent of the family head and even where s/he can obtain the consent, the financial institution cannot sell the land to a third party who is not a member of the family should the farmer default in payment. Where there are good property laws, almost anyone can use a house or a piece of land as collateral to raise a loan. The key issue here is the transformation of land into a useful economic asset. However, given that the issue of land tenure is a politically sensitive one, care must be taken in crafting alternatives to the present system in the Provinces.
As noted above, a simple solution would be the recognition in law of leasehold interests in land in Sierra Leone. One of the advantages of the leasehold interest is that it is a valuable asset which may be bought, sold or inherited. It is acceptable by banks and other financial institutions as collateral for credit. Because it is a legal relationship recognised by the law and enforceable by the courts, it provides the leaseholder with sufficient security to enable them to plan their agricultural investments. A major advantage to the lessor is the fact that while the leasehold interest generates periodic incomes to them, at the end of the lease the land and everything on it reverts to them. They can then occupy the land themselves or lease it to another tenant.
Another similar approach to the transformation of land into economic assets can be found in Tanzania, where a solution to this particular problem was found, which may be instructive for Sierra Leone. In Tanzania, the underlying system of communally owned land has been kept intact. An additional system has been superimposed on top of the communal system; a system of user rights which are tradable and capable of being mortgaged. After a mapping exercise to determine what land was lying unproductive, the government of Tanzania re-classified certain land in order to establish a system of user rights. Such user rights are transferred to individuals and firms on payment of a land grant or fee, usually a one-off payment. Under the terms of the right, a particular user has rights similar to that of an owner. The land is transferable and can be leased and mortgaged, and may be inherited. The title to the user right is registered in a permanent Register of Title as would be the case with a freehold interest. Sierra Leone could consider adopting this system of user rights both to provide security of title to farmers and to provide a way for their rights over land to be more collateralised, and therefore capable of being put to productive use.