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A Paper Delivered by Dr. Henry D.R. Carrol, the Solicitor
General and Legal Secretary, at the Gambia Tourism Authority
Workshop at the Senegambia Beach Hotel, on Thursday 7th June
2007
The key Land Laws of The Gambia are as follows:
1. THE STATE LANDS ACT – 1991
2. THE MORTGAGES ACT – 1992
3. THE GAMBIA TOURISM AUTHORITY ACT - 2001
4. LAND (REGISTRATION OF DEEDS) ACT
STATE LANDS ACT - 1991
The State Lands Act was enacted by the then Gambian Parliament
(now National Assembly), on the 10th of May 1991. The Act
was promulgated, to amend the law relating to the administration
of Land in The Gambia, to introduce a unitary title system
in designated areas, and to make provisions for matters connected
therewith.
Section 4 of the Act states that all land in Banjul and Kombo
Saint Mary, shall be vested in the State absolutely and regarded
as "State Land," except land that is held in fee
simple (i.e. freehold land or land which were acquired during
the Colonial era). It goes without saying, that a "State
Land" is evidenced by a lease document, which in the
best proof of title of that land. The "Lessor" in
the lease document, is the "Honourable Secretary or State
For Local Government And Lands For The Time Being", whilst
the "Lessee", is the person to whom the leasehold
land has been granted, for a specified term.
Section 18 of the State Lands Act, states the conditions
on which a lease may be granted, and they are:
A. for an initial term of 99 years.
B. a provision for renewal of the lease as set out in the
Schedule.
C. the payment of land rent or premium.
D. the purpose for which the land is to be used.
E. the existence of appropriate Covenants set out in the
Regulations to the State Lands Act.
Section 20 of the State Lands Act, empowers the Secretary
Of State For Local Government Lands, to re-enter and take
possession of any "State Land", in the event of
a lessee, violating any of the Covenants, stated in the lease
document.
Section 19 of the State Lands Act, clearly states that, no
"State Land" or leasehold land, should be sold or
mortgaged to a third party by the "lessee", except
he or she has obtained a clearance in writing to do so, from
the Honourable Secretary Of State For Local Government and
Lands.
MORTGAGES ACT - 1992
The Mortgages Act, which regulates the law of mortgages and
to make provisions on matters connected therewith, was enacted
on the 31st of December 1992. The Mortgages Act applies to
all mortgages, which have been created, after the aforesaid
Act has entered into force. It is not retrospective or retroactive
in nature. It does not govern or regulate mortgages, which
were created before the Act was enacted. In Latin we say,
it does not have an "ex post facto" effect. Section
3(1) of the Mortgages Act 1992, authoritatively defines a
"Mortgage" in the following terms:
"A Mortgage for the purposes or this Act is a contract
charging. immovable property as security for the due repayment
or debt and any interest accruing thereon or for the performance
or some other obligation for which it is . given, in accordance
with the terms or the Contract".
A person who takes a loan from a bank, and deposits his lease
with the bank as a collateral or a security for the loan taken,
is called a "Mortgagor" or the "Borrower".
The bank which has given out the loan, is called the "Mortgagee"
or the "Lender". The loan is called the "Mortgage
debt". The legal document, which states the rights, duties
and obligations of both the "Mortgagor" and the
"Mortgagee", is called the "Mortgage Deed",
which should be registered with the Deputy Solicitor General
and Registrar General at the Attorney General's Chambers.
If the "Mortgagee Deed" is not registered, the legal
effect of this legal omission is that, in the event of a dispute
arising between the "Mortgagor" and the "Mortgagee",
the "Mortgage Deed", which has been drafted by a
fully qualified Lawyer, on basis of the provisions of The
Mortgages Act, would not be admissible evidence in a Court
of Law. The "Mortgagor", has a legal duty or obligation
to pay the "Mortgage debt" to the "Mortgagee"
plus the interest on the loan, within the time frame which
is stated in the "Mortgage Deed". If the Mortgagor
fails to do so, the "Mortgagee" has the right to
sell the leasehold land, the title of which the "Mortgagor"
has deposited with the bank or "Mortgagee" in order
to recover the "Mortgage Debt" or the loan. The
"Mortgagor" is legally empowered to do so, because
in law, it has an "equitable lien" over the landed
property, which the "Mortgagor" had deposited, as
a collateral or security, for the "Mortgage Debt"
or loan. Conversely, if the "Mortgagor" fully pays
the "Mortgagee" the "Mortgage Debt", plus
the interest on the loan, the "Mortgagee" or Lender,
has no right in law to sell the landed property, which has
been deposited as a collateral or security, for the loan or
"Mortgage Debt". On the contrary, both the "Mortgagor"
and the "Mortgagee", will have to go to a Lawyer,
who would draft a "DEED OF RELEASE". This Deed as
the named implies, releases the landed property back to the
"Mortgagor" , who had' deposited it to the "Mortgagee",
as a collateral or security for the "Mortgage Debt"
or loan. "ONCE A MORTGAGE ALWAYS A MORTGAGE", as
the aged -old and time-honoured maxim in . Land Law goes.
1"his means, that the legal nature of a Mortgage, should
always remain the same or constant, the passage of time, does
not alter the rights, duties and obligations of both the "Mortgagor"
and "Mortgagee", as they are clearly stated in the
"Mortgage Deed" . In fact the parties to a "Mortgage
Deed", that is the "Mortgagor and the "Mortgagee"
and their witnesses, are estopped from denying the contents
of the "Mortgage Deed". This in the Law Of Evidence,
is known as "ESTOPPELS BY DEED".
THE GAMBIA TOURISM AUTHORITY ACT 2001
This Act was promulgated on the 19th of July 2001. This Act
established The Gambia Tourism Authority, with shall be responsible,
for promoting and developing all aspects of the Tourism Authority
in The Gambia, and for matters connected therewith.
According to the "Interpretation Section" of the
Act "Tourism Development Area" (T.D.A.) is defined
thus;
"a piece or land, whether or not it is covered by water,
historical monument, Wild lire, forest or any other natural
phenomenon, flora, fauna, that has been declared by the President
under Section 58 or this Act, to be reserved for the development
or tourism".
The Gambia Tourism Authority indeed has a lot of authority
over all State Land, which are within the T.D.A., but as we
will see later in this lecture or paper, The Gambia Tourism
Authority Act 2001, indeed has grey areas, like other laws
of The Gambia, which deal with land either exclusively or
among other things.
WHAT ARE THE GREY AREAS?
It goes without saying, that all of the above-named laws,
which are either land laws or a law which concerns land, indeed
have grey areas. I would now proceed to deal with the grey
areas of the above-named laws, on a point by point basis.
(A) THE STATE LAND LANDS ACT - 1991
Section 5(1) of The State Lands Act, empowers the Honourable
Secretary Of State For Local Government and Lands, to declare
any land in the provinces, as "State Land" and Section
5(2) (b), of the aforesaid Act clearly goes on to say, that
the Lands (Provinces Act), shall not apply, to those areas
in the provinces, which have been declared as "State
Land", by the aforesaid Secretary Of State.
This is indeed a very grey area of the law, some provincial
lands are customary lands, and the owners of such lands, locally
known as "KABILOS", have acquired those lands traditionally
over the years, by farming on those lands, or the lands in
question, have been traditionally used by certain families
in the local communities, for generations. For the Honourable
Secretary Of State For Local Government Lands to declare such
customary lands in the provinces as "State Lands",
is easier said than done. This is so because, of the sacrosanct
and inviolable Section 11 (1) of The Gambia's 1997 Constitution
of The Second Republic Of The Gambia, which expressly provides
for the important fundamental Human Right of freedom, namely
"PROTECTION FROM DEPRIVATION OF PROPERTY".
Section 22 (1) (a), (b), and (c) of the aforesaid Constitution
reads:
"No property or any description shall be taken possession
or compulsorily and no right over or interest in any such
property shall be acquired compulsorily in any part or The
Gambia, except where the following conditions are satisfied:
(A) the taking or possession or acquisition is necessary
in the interest or defence, public safety, public order, public
morality, public health, Town and Country planning, or the
development or utilisation or any property in such manner
as to promote the public benefit and
(B) the necessity therefore is such as to afford reasonable
justification or the causing or any hardship that may result
to any person having an interest in or right over the property;
and
(C) provision is made by law applicable to that taking or
possession or acquisition
(i) for the prompt payment compensation; and or adequate
(ii) securing to any person having an interest in or right
over the property, a right or access to a Court or other impartial
and independent authority for the determination or his or
her interest or right, the legality or taking or possession
or acquisition or the property, interest or right, and the
amount or any to which he or she is entitled and for the purpose
or obtaining prompt payment or that compensation"
It goes without saying, that if the Honourable Secretary
Of State For Local Government and Lands, exercises the power
vested in him, by The State Lands Act or any other similar
law, to compulsorily, acquire any land in the provinces as
a "State Land", he or she! must fully satisfy all
of the aforesaid important conditions, that are clearly stipulated
in 22 (1) (A) (B) and (C ), of the aforesaid Constitution,
otherwise, such a Declaration can be rightly regarded as illegal,
unlawful and unconstitutional, and it can be successful challenged,
in a Court of law with competent jurisdiction, because "HE
WHO COMES TO EQUITY, MUST COME WITH CLEAN HANDS", as
the aged -old and time-honoured maxim of the doctrine of Equity
goes. In this regard, it is crucial to quote Section 4 of
the aforesaid Constitution, which is indeed of great concern
and relevance, to this contentious and vexatious matter, and
it reads thus:
"This Constitution is the Supreme Law or The Gambia,
and any other law, round to be inconsistent with any provision
or this Constitution shall, to the extent or the inconsistency
be void", eminent Jurists would also add for emphasis,
sake - "WITH NO LEGAL EFFECT", although the addition
of the latter phrase, is highly tautological, because it is
trite law, that whatever is null and void in law, also does
not have any legal effect
THE MORTGAGES ACT - 1992
The Mortgages Act, requires that a Mortgagor should deposit
a leasehold document or any other similar legal instrument
relating to land, with the Mortgagee, as a collateral or security
for the loan or "Mortgage Debt", which the "Mortgagor"
has taken from the "Mortgagee". The grey area in
this matter is that, at times a Mortgagor who is co-owner
of a piece of land, would unilaterally go and deposit the
legal instrument in respect of that land as a collateral or
security for a personal loan, without the consent, of the
other co-owners of that land, in question. In the event of
the Mortgagor being unable to pay his or her loan to the bank,
the bank or Mortgagee, would not be able to sell the Mortgaged
property, which the Mortgagor had deposited with it, as a
collateral or security for the loan, because the Mortgagor,
is not the exclusive owner of the Mortgaged land, and the
land in question, was wrongfully, illegally and unlawfully
mortgaged, without the consent or authorisation, of the other
co-owners of the land in question. The Mortgagor, in this
interesting legal scenario, is only entitled to mortgage his
share in the land, which has multiple owners, and this requires
a partition of the land in question, as a condition precedent.
- "NEMO DAT NON QUOT HABET" (Latin i.e. YOU CANNOT
GIVE AWAY, THAT WHICH YOU DO NOT OWN).
Another important grey area in the law on Mortgages is that,
when a Mortgagor deposits a leasehold document or other similar
legal instrument with a Mortgagee as a collateral or security
for the Mortgagor's loan, before giving out the loan, the
Mortgagee or the Bank, has the legal duty or obligation, to
first of all conduct a diligent search in the Land Register,
which is in the custody, of the Deputy Solicitor and Registrar
General, at the Attorney General's Chambers, to make assurance
double sure, that the land in question is "free from
all legal encumbrances". If the Mortgagee fails to do
so, and when the Mortgagor fails to pay the loan, it is discovered
that the same land in question, had already been pledged as
a collateral for another loan from another Bank or Mortgagee,
the first Mortgagee, will indeed have a better claim over
the landed property, which have been unscrupulously mortgaged
twice, to two different Mortgagees, because of two important
maxims in law, namely:
1. "QUI PRIORE EST TEMPORE, PORTIO EST JURE" (Latin
i.e. HE WHO IS FIRST IN TIME, HAS PRIORITY IN LAW".
2. "EQUITY AIDS THE VIGILANT AND NOT THE INDOLENT"
The latter, is a maxim of the doctrine of Equity, which applies
to a lazy and negligent Bank or Mortgagee, which failed to
do its home work, before giving out a loan, to a prospective
Mortgagor.
THE GAMBIA TOURISM AUTHORITY ACT – 2001
The grey area in this Act, is that, the Act empowers The
Gambia Tourism Authority, to issue Demand Notes to all Hotel,
Motels, Restaurants etc within the T.D.A., for the payment
of rates to the aforesaid Authority. These same hotels, motels
etc, are also situated within the Kombo St. Mary Division,
and under a Local Government Act, they are traditionally supposed
to pay rates to, the Kanifing Municipal Council (K.M.C.).
The problem on the ground presently is that, all hotels, motels
etc which are situated within the K.S.M.D., are receiving
two Demand Notes for the payment of rates, one from The Gambia
Tourism Authority and another from K.M.C. The legal question
which inevitably arises is that -- in such a confusing scenario,
to whom should the aforesaid hotels, motels etc pay rates
to?
The correct answer, to this important legal question is that,
the aforesaid hotels, motels, etc, should rightly and lawfully
pay rates, to The Gambia Tourism Authority and NOT the K.M.C.
because
(1) I t is a cardinal rule of construction or interpretation,
that in a legal scenario in which an Act of Parliament or
Statues conflicts with another Act, the latter in time, would
take precedence over the former
(2) It is a cardinal principle of the doctrine of "PARLIAMENTARY
SOVEREIGNTY/SUPREMACY", that "ONE PARLIAMENT CANNOT
BIND ANOTHER PARLIAMENT" - This means that, an Act or
Statute which was enacted by a previous Parliament, cannot
be binding on latter Parliaments.
LAND {REGISTRATION OF DEEDS} ACT
This Act also has a grey area. The obvious intention of Parliament,
as far as Section 12 of the Act is concerned, is to bring
finality to and litigation, which has gone through the Courts,
regulating title holding with an unquestionable judicial decision,
which is eventually recorded in an official Record Book (see
Section 5 of the Act).
Apart from this dimension, the main aim of formulating a
Land Registry, is to regularise title holding, so that the
extensive and complicated searches relating to land ownership,
would be reduced to the bearest minimum. It seems that, an
enterprising commencement is contemplated, with judicially
ascertained titles.
However, the approach to the problem of land registration
as envisaged in Section 12, defeats the primary objective
of identifying ownership. If the failure to register a judgement,
should render a good title defective, then the whole process
of ascertaining ownership is grossly militated against, and
the ownership of that particular parcel of land, would remain
blurred, Why should a failure to register a valid Court Judgement,
confirming ones ownership of land, be extinguished due to
lack of registration, within a specified time limit? As we
comprehend it, people who are contesting ownership of a suit
land, are given the chance to prove their claim of ownership
in Court. After the cumbersome exercise of proving title in
Court, significant principles of law become applicable, namely
"RES JUDICATA", "ESTOPPEL BY JUDGEMENT OR RECORD"
etc. What the aforesaid well known legal principles are saying,
with one powerful "Master's Voice" is that, once
a Court of competent jurisdiction, has handed down its judgement,
if after the time, within which an appeal should be lodged
against the judgement of the Court of first instance, has
elapsed, and no appeal has been filed in an appellate Court,
then the judgement of the Court of first instance, becomes
final, and it is binding on all the parties to this case.
It would be inequitable, for a litigant whose title of land
has been confirmed by a Court of competent jurisdiction, to
be negated, just because he or she fails to register his or
her judgement, within the time stated in Section 12 (1) of
the LAND (REGISTRATION OF DEEDS) Act, because of two powerful
irrebuttable maxims of the doctrine of equity, namely:
(1) "EQUITY REGARDS AS DONE, THAT WHICH OUGHT TO HAVE
BEEN DONE"
(2) EQUITY WOULD NOT ALLOW A STATUTE, TO BE USED AS AN ENGINE
FOR FRAUD".
Finally, according to the locus classicus (Latin i.e. best
known) "EARL OF OXFORD CASE" , the ratio decidendi
or legal principle of that case, is that - "WHERE EQUITY
AND COMMON LAW CONFLICTS, EQUITY SHALL PREVAIL".
In the case of LUCY MENSAH Vs GRAHAM (2006), The Gambia Court
of Appeal, declared the aforesaid Section 12 (1), to be unconstitutional,
in that it amounts to a legislative encroachment into the
powers of the Court, thereby violating the doctrine of "SEPERA
TION OF POWERS", which is well entrenched, in The Gambia's
1997 Constitution.
CONCLUSION
To conclude, because of the extensive grey areas that are
prevalent in land laws and laws affecting land in The Gambia,
I would strongly advise that the Honourable Secretary Of State
For Local Government And Lands, should come up with a framework
legislation, which he should convince, The Gambia's National
Assembly to pass. This new and all embracing land legislation,
would for all intents and purposes, make the aforesaid grey
areas, things of the past, or things that should be confined,
to the dustbins of History.
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