ABSTRACT
Section 277(2)(a) and (b) of the Land Act, 2020 (Act 1036) criminalises the conduct of a person who “purports to make a grant” of land without title or without authority. The punishment is an imprisonment term of seven to fifteen years.
The author appreciates the mischief at which the entire section is aimed. More often than not, some land merchants, Heads of Families and Clans sell the same land to multiple purchasers. In the course of this research, my attention was drawn to one such sale for residential purposes which dimensions, upon superimposition were entirely on the sea. Such has been the mischief that the law maker is determined to clamp down.
Nevertheless, the law needs to be clearly drafted to achieve its intended objective. This article argues that the provision of Section 277(2)(a) and (b) suffers from a fatal drafting defect, herein termed “the purport trap”. By omitting “knowingly” which anchored Section 34 of the Land Registry Act, 1962 (Act 122), it criminalises mere claim, boast or advertisement, without requiring fraudulent intent, knowledge or loss. It thereby transmutes civil misadventure into a felony, criminalises honest Heads of Families, bona fide litigants, customary usufructuaries, and even prospective vendors who merely advertise. In doing so, it renders the phrase “no title” a chameleon, undefined and uncertain. It usurps the jurisdiction of the courts to declare title and imposes a punishment that is grossly disproportionate.
The article proposes a legislative amendment to insert mens rea, a defence of bona fide claim of right, and a requirement of prior civil determination of want of title. Section 277(2)(c) on conflicting grants, which inherently imports dishonesty, should be retained.
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