How Do I Apply for Tenure Conversion?

The procedure under the Land (Tenure Conversion) Act 1963 is deliberately deliberate. Because a conversion order abolishes customary rights, the Act builds in publicity, inspection and agreement at every stage.

Section 7 — who applies, and for what

Two things follow. The applicant must be a citizen — consistent with section 56(1)(b) of the Constitution, since what conversion produces is a fee simple. And the application may be for the land or for an interest in it.

Unlike Part IIIA registration under the Land Registration Act, which only representatives of an Incorporated Land Group may initiate, an individual citizen may apply here. But agreement of everyone interested is what ultimately decides it.

Section 8 — the conversion plan and the notice

When the Commission decides the application should be dealt with, it shall:

1. (a) prepare a conversion plan of the area;
2. (b) publish notice of the application and of the plan by such means as will in the circumstances ensure reasonable notice to all persons affected or likely to be affected — or as provided in the rules of the Commission; and
3. (c) specify a period not less than 30 days for objections.

The plan shall show the location and boundaries of the land, and as far as practicable the ownership or alleged ownership (s 8(3)).

Section 8(4) — the boundaries are walked

This is where most boundary disagreements surface and are settled. Section 13 then provides for the permanent marking of boundaries, and section 12 requires the Commission to amend the conversion plan if necessary to conform with the conversion order.

The 30-day objection period

Under section 8(2)(c) a person may object on either of two grounds:

• they claim ownership of, or an interest in, the land and are not included in the application as owning or having it; or
• they are incorrectly represented in the application as being agreeable to the registration.

The second ground is the one that protects a group against an application made over its head. See how objections are dealt with.

Section 9 — what the Commission must be satisfied of

After the objection period, the Commission considers the application and any objections, and must be satisfied of a number of matters — among them that:

• the land is customary land; and
• all persons interested in the land are in agreement with the application.

Section 9(3) and (4) allow the Commission, with the consent of the Minister, to include Government land in a conversion area as though it were customary land; and, with the consent of the Custodian for Trust Land, to include trust land in a conversion order on the same footing.

Section 9(5) — when compensation provision is not required

The Commission does not need to be satisfied that adequate provision for compensation has been made where:

• (a) the applicant is a business group or a land group and all the members of the group owning the land are members of it; or
• (b) the application is by not more than six natural persons who are members of the owning group, and the Commission is satisfied that a substantial number of that group have expressly waived the requirement.

Paragraph (a) is another reason an ILG is the sensible vehicle: where the ILG is the owning group, there is nobody outside it to compensate.

Section 10 — procedure

• The Commission may consider a number of applications and objections together, may adjourn to allow further applications or objections to be made, and may deem a person to have made an application or objection.
• In determining who is interested, it has regard to its own findings as to ownership and to any claim made under the Act to another interest.
• It need not determine the claim of a person other than the applicant to have an interest if that person agrees to the application.
• Section 10(4) — before deciding, it shall assure itself that all persons interested understand the effect, both as to the rights by custom which would be abolished and the rights which would be created.

Hearings are held in public (s 18) and, unless the parties consent otherwise, as close to the land as is reasonably practicable (s 19).

Practical checklist

1. Settle the membership and the boundaries first, with the older people who know them.
2. Consider incorporating as an ILG — it addresses the compensation requirement, the six-owner limit, and the question of who signs.
3. Check the food-production limit before applying — garden land will not be converted.
4. Prepare a written schedule of every interest to be preserved, for entry in the order under section 11(1)(b). What is not specified is abolished.
5. Attend the boundary inspection and the public hearing.
6. Watch the 30 days if you are objecting.
7. Take advice for the group — the Public Solicitor, or a firm from the law firms directory.