Academic journal article Current Politics and Economics of Africa

Land Registration per Se Cannot Guarantee Landed Property Ownership Security in Africa: A Theoretical Explanation

Academic journal article Current Politics and Economics of Africa

Land Registration per Se Cannot Guarantee Landed Property Ownership Security in Africa: A Theoretical Explanation

Article excerpt

INTRODUCTION

In the developing world, traditional/customary systems of landed property ownership operate alongside formal systems, which were introduced during the colonial era. The traditional systems are not based on any form of documentation; customarily, proof of owner-ship is by physical possession and occupation and the recognition of that fact by the community, particularly, adjoining owners (Abdulai, 2010; Antwi, 2000). The longstanding argument that traditional landed property rights are insecure and that registration of such rights is the answer to insecurity is common knowledge. The argument, which dates back to the colonial era, is premised on the common notion that there is security of landed property rights in the advanced world because all landed property ownership is registered in every developed country. This common notion is, however, unsustainable when one considers what obtains in for example the UK, which is an advanced nation. In England and Wales, 26% of landed property ownership is currently unregistered; this percentage represents the national average and in some counties it ranges from 35% to 53% (HM Land Registry, 2011). Despite these percentages of unregistered ownership, it is common knowledge that there is security of landed property rights in those areas that ownership is unregistered.

However, extending the equation of land registration to ownership security argument, it is asserted that land registration provides a secure form of collateral for mortgage purposes and thus guarantees access to formal capital for investment, wealth creation, poverty reduction and economic development (Derban et al., 2002; de Soto, 2000). Land registration policies have therefore been religiously pursued since the colonial era up to the present time, supposedly, to establish security of landed property rights.

Even though land registration is often equated to ownership security, various studies conducted in countries like Afghanistan (World Bank, 2006), Cambodia and Rwanda (Durand-Lasserve and Payne, 2006), Philippines and Honduras (World Bank, 2005a), Egypt (Sims, 2002), Ghana (Abdulai, 2010; Abdulai et al., 2007), Kenya (McAuslan, 2000; Migot-Adholla et al., 1994), Uganda (McAuslan, 2000; West, 2000), Ivory Coast (Stamm, 2000), India (Banerjee, 2002; Sukumaran, 1999) and Pacific Islands (Acquaye, 1984) have established that land registration per se is incapable of guaranteeing security of property ownership. The same evidence has been established by the studies of Payne et al. (2009), Bromley (2008), Toulmin (2006), Fitzpatrick (2005), de Janvry et al. (2001) and Barrows and Roth (1990). Indeed, in the advanced world, evidence from case law, for example, Eliason v. Wilborn (1929) (American case), Attorney-General v. Odell (1906) 2 Ch 47 (English case), Gibbs v. Meyser [1891] A.C. 248 (Australian case), Gill v. Frances Co (1937) (American case) and Frazer v. Walker [1967] 1 A.C. 569 (New Zealand case) has shown that owners of registered landed property under the title registration system have lost their ownership via civil litigation.

It is, therefore, not surprising that Payne et al. (2007) have done a critical analysis of various studies that have supposedly linked land registration to ownership security in the developing world and conclude that the residents in those studies already enjoyed ownership security before the introduction of land registration programmes. According to Okoin (1999) in Ivory Coast, although reports of land registration under the Rural Land Plan in some parts showed that open landed property disputes or conflicts were non-existent when the property was being registered, it was because outstanding disputes had been dealt with by informal dispute resolution institutions prior to the land registration team's arrival. It implies that the informal dispute resolution institutions had been able to resolve any disputes or conflicts before registration and the lack of open disputes was not due to land registration. …

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