In a few weeks the public will find out whether the assurance given by the Government for the setting up of a Land Court or Tribunal is credible or deceptive. More importantly is the question of whether the tribunal will finally live up to its mission to restore justice or not
There are questions worth asking. There are causes worth fighting for. Clency Harmon’s hunger strike for regaining his ancestral lands has won the respect, admiration and support of all Mauritians who want greater justice for our citizens. In a few weeks the public will find out whether the assurance given by the Government for the setting up of a Land Court or Tribunal is credible or deceptive. More importantly is the question of whether the tribunal will finally live up to its mission to restore justice or not.
At this point we cannot help feeling that a jurist like former Judge Rajsoomer Lallah would have done an excellent job presiding over such a tribunal, but we are hopeful that there are still many of our jurists who will live up to the people’s expectations and ensure that justice is not delayed. Notwithstanding these issues, land grabbing is such a daily occurrence that a movement such as ‘Aret Kokin Nous La Terre’ or ‘Ran Nou Nou La Terre’ has become a necessity.
Only a couple of weeks ago, an overseas Mauritian who came visiting to trace his family roots and genealogy informed me that he had discovered during his research that his ancestral residential land in Port-Louis had been prescribed in 2005. A few years ago, a history student at UoM was able to trace her ancestral land in Camp Malgache, Curepipe, and since it was unoccupied, she was able to take back possession of the land. We regularly come across similar stories of families who have lost their lands, or discovering that their lands are being occupied illegally, or in case they are occupied legally since they had been rented or leased in the past, they had stopped receiving rent after the death of the proprietor.
Since land grabbing is a major issue in our society and involves many vested interests, even the setting up of a Land Court will only be the beginning of a far more protracted struggle to obtain justice. One should expect land grabbers to rope in an army of experts on the subject have on their side – legal practitioners, property developers, land surveyors, possibly the support of the state as well as some public officers, and it would require a team of public-spirited experts to argue the cases on behalf of those who wish to regain their land rights and to contest the validity of fake documents that might come into play.
This reminds us of the forged document known in history as the Donation of Constantine – a forged Roman imperial decree by which the 4th century emperor Constantine the Great supposedly transferred authority over Rome and the western part of the Roman Empire to the Pope. The forgery was discovered by scholars in the 15th century and was finally admitted by the Church.
Why the element of forgery is invoked here is because there are many stories which are circulated privately of the various stratagems and dubious practices used in the past and maybe in present times to grab other people’s lands. Unfortunately those who are knowledgeable on this subject would not come forward to explain these various processes. In the absence of expert opinion, we can only provide a few gleanings of what we have come across, and hope that some experts can eventually and publicly come with a public rebuttal or even confirm these stories.
In a valuation report in 1996 by a respectable firm on the lands and other assets belonging to the Anglo-Mauritius company Lohro (Mauritius) Ltd in the south of the island before they were sold to the Illovo Company, it is written in black and white that ‘As far as the uncultivated lands are concerned the estates themselves cannot always determine the location of these lands’.
One of the many reasonable inferences that can be drawn from this uncertainty is that the sugar estates might have annexed lands of other proprietors – lands which they would not have the necessary title deeds to prove their ownership of these lands nor the site plans and land survey reports. Coincidentally, one of those proprietors once wrote in a local newspaper that that the lands of her ancestors had been annexed, though until the 1960s her family was receiving some rent for their property.
Until somebody comes forward with an alternative version of what had happened in the past regarding loss of lands by a number of families, one can make a few suggestions that can be tested and verified. Contrary to the metayer system where the sugar estate leased its own lands in a profit-sharing arrangement, many proprietors with substantial agricultural lands entrusted their cane lands to the sugar estates in return for a rent and a sharing of the profits. This practice has been going on since the early decades of the 18th century with the take-off of the sugar industry. It so happened in some cases that after the death of their proprietors, the latter’s heirs continued to obtain the rent and profits until such time when these payments stopped altogether for a number of reasons, namely the absence of the heirs from the country. The problem gets compounded when heirs who may still be around or even those who have settled down abroad have no knowledge on, let alone title deeds of, their grandparents’ patrimony. The lands are incorporated in the sugar estate until some heir comes back a century later to reclaim their lands.
Another development that took place in the 19th century was the initiative of British proprietors to transform their sugar estates in the 1880s into joint stock companies. Other companies quickly followed suit. Later, under the leadership of Sir Henry Leclezio, the Company Act was passed and most of the family sugar estates became limited companies. All the proprietors of the sugar estates had their lands transformed into shares of the joint stock companies and shareholders were paid dividends.
In this new context, the proprietors received their dividends and so did their heirs. But some of the latter stopped receiving the dividends because they could not be traced after settling down in foreign lands. What might have happened, according to some stories, is that unscrupulous accountants or administrators could have stealthily transferred the shares to their own names resulting in their becoming the main shareholders of the company.
It sounds incredible but this is how, in a new version of this practice, we are told about some accountants/administrators of liquidated companies becoming the main shareholder/s of the companies they had been working for. How could this have happened? The answer, we are told, is very simple. The accountant/s or administrator/s had knowledge of the institutional history of the company, its past ownership, right from the formation of a sugar estate, for example, in the 19th century to the present day. It is alleged that an unscrupulous a notary could have prepared a document transferring the lands or the shares through a private contract.
The title deed was not registered; it was not even deposited at the Colonial Archives, it remained in the custody of the notary in his office. Who was going to dispute a signature on a deed with an old stamp bearing the appropriate year, given that notaries, it is said, kept stamps issued in different years? Unless detailed research is carried out and the services of experts enlisted, it would not be easy to contest what appears to be legally drawn up deeds bearing the sellers’ signatures.
When all is said and done, one has to admit that the transfers of lands from one proprietor to another have been legally done over the centuries for a number of reasons. There has always been a brisk land market in the island ever since Pierre Christophe Lenoir gave himself the first land grant in the early years of French rule. Many families or individuals and their heirs sold their lands, and many lands were also lost through bankruptcy and sale by levy, or even by partible inheritance (a system of inheritance in which property is apportioned among heirs) or through marriage, but a significant part was also transferred through fraudulent means. It is the illegal appropriation of lands that a Land Tribunal is expected to address urgently.