6. Tenure in Sierra Leone

Tenure is the set of conditions on which land is held. The word is from tenere, to hold. In feudal theory the King was lord paramount. Under him were tenants in chief, then mesne lords, then the tenant in demesne, who had the actual occupation. What was held was not the soil but an estate in it. Seisin was the possession that mattered.

Free tenure divided into lay and spiritual. Military tenures, knight service and the rest, and socage, were the lay tenures. Spiritual tenure was frankalmoign, the duty to pray. Unfree tenure was villeinage, later copyhold, and customary tenure. Quia Emptores 1290 stopped tenants granting further feudal rungs. The Tenures Abolition Act 1660 left socage as the one free tenure that mattered. By the time English law reached Sierra Leone, a Crown grant in socage was, in practice, absolute ownership.

The Western Area was the Colony. It rests on cession, then on Crown grants after Sierra Leone became a Crown Colony on 1 January 1808. There is an argument that the indigenous grantors never meant an out-and-out transfer. The law that was applied, all the same, was English law. Fee simple, leases, mortgages and conveyancing in the Western Area, and in the Bonthe Urban District, are worked out in that received law. After independence the State stands where the Crown stood. The State Lands Act is the statute the later cases use for that succession.

The Provinces were the Protectorate, declared in 1896. Native title was recognised, not replaced. The Protectorate Land Ordinance of 1927, extended in 1933, said that lands in the Protectorate are vested in the Tribal Authorities for the native communities. Section 2 of the Provinces Land Act, Cap 122 of the 1960 edition, keeps that trusteeship. The next point needs care. The chiefdom council is not the owner. It holds for the communities and the families who are.

Forfeiture for felony has gone. Escheat was put on a statutory footing by the Escheat Act 1886, Cap 20 of the 1960 laws, and has been overtaken by bona vacantia. The Unoccupied Lands (Ascertainment of Title) Ordinance, 1911, Cap 117, deals with unoccupied land. The doctrine of estates was not abolished with the old tenures. It is still the language of ownership in the Western Area.

A fee simple in Sierra Leone is treated as absolute ownership. Jabba v Radar is cited (1950–56) ALR SL 97 for that equation. Proof of that ownership is a different question. A conveyance is not, by itself, proof that the vendor had a fee simple to give. Registration of the deed does not cure a gap in the root of title.