ARMAH KAMARA and HENRY KOLLIE, Appellants, v. BINDU KINDI, TERNI KINDI, et. al., Lineal Heirs of the late FAHN KINDI, Appellees.
APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.
Heard July 9 & 10, 1986. Decided August 1, 1986.
- The interest of a tribe in lands is converted into communal holdings upon proper application to government. The chiefs and elders, as tribal authorities, are then designated as trustees of said communal lands for the tribe.
- As trustees, the Chiefs or Tribal Authorities have not power to convey fee simple title in such land to any other person outside the tribal community designated therein.
- In no such case was a deed granted in fee simple to any family of the tribe for an area of more than twenty-five acres.
A deed conveying 204 acres of land from the Republic of Liberia to Chief Fahn Kendeh (also spelled Kindi) and Families of Kendeh town, now the area of Paynesville, was executed by President Daniel E. Howard on March 7, 1916. Because of a dispute between the heirs of Chief Fahn Kendeh and other families of the then Kendeh town, appellees, representing the heirs of the said chief filed a petition for declaratory judgment before the Sixth Judicial Circuit. The trial judge ruled that the land grant conferred an absolute fee simple estate on Chief Fahn Kendeh and his lineal heirs alone, to the exclusion of any and all other families of Kendeh Town.
The Supreme Court, looking at the habendum clause of the disputed deed as well as statutory laws affecting tribal lands, held that the subject land is communal property belonging in common to the family of Chief Kendeh and other families of Kendeh at the time of the grant. Accordingly, the ruling of the lower court was reversed.
Toye C. Bernard appeared for appellees. M Fahnbulleh Jones appeared for appellants.
MR. JUSTICE JANGABA delivered the opinion of the Court.
The genesis of these proceedings is rooted back in a deed issued by the Republic of Liberia, under the signature of President Daniel E. Howard to one Chief Fahn Kendeh and Families of Kendeh Town, now in the area of Paynesville, on March 7, A. D. 1916, in the 69th year of this Republic. Thereafter, it was probated and registered on March 14, 1916 in the Monthly and Probate Court, Montserrado County. The records revealed that the parties on this appeal had quarreled over the plot of land granted in the said deed by the Republic of Liberia, to the extent that in A. D. 1981, they had to resort to the judicial process to determine the truth of their disputed rights to the said plot of land.
Consequently, appellees sought relief, at the time, in the People’s Civil Law Court, the Sixth Judicial Circuit, Montserrado County sitting in its December Term, A. D. 1981. They prayed for a declaratory judgment to construe and interpret the land grant and to rightly determine which of the parties on this appeal is properly entitled to the said piece of property consisting of about 204 acres of land.
In their answer, appellants contended, as now, that the said piece of property was not only granted by the Republic of Liberia to Chief Fahn Kendeh and his lineal families of Kendeh Town, but also to all other families that happened to have lived in Kendeh Town, in order to give them a chance to vote and to contest elections under the law. Appellants maintained that ifthe grant was meant only for the family of Chief Fahn Kendeh, then it would not have exceeded 25 acres to which a family plot is limited for aborigines under the law; and the fact that said land grant exceeded 25 acres and went as far as 204 acres, indicates that the grant was meant to be a community grant under the law in order to extend the franchise to aborigines that had accepted civilization. As evidence of said community ownership they proferted two warranty deeds showing how both parties had jointly issued the same as joint owners over these years, albeit they contended that said community property cannot legally be alienated.
Appellees, on the other hand, contended, as now, that the property granted in said deed by President Howard was for Chief Fahn Kendeh and his lineal heirs alone, considering that the habendum clause in the instrument referred only to the Chief and his heirs, and successors in the singular and therefore was intended merely for the Chief and his lineal heirs in fee simple. They maintained that the warranty deeds proferted by appellant could not have been issued in 1958 by Chief Fahn Kendeh who, it was established, passed away earlier in 1957, even though no death certificate was proferted along with the pleadings and even though appellees failed to sufficiently rebut appellants’ contention that a family grant would not have exceeded 25 acres.
From what we gather from this matter there is only one issue for our determination here: whether or not the Aborigines Land Grant Deed issued by President Daniel E. Howard in 1916 to Chief Fahn Kendeh and families of Kendeh Town, Settlement of Paynesville, was in fact a community grant in fee or a mere individual family grant to said Chief and his family?
It is interesting to note that this was the identical issue confronting the trial judge in the lower court, and he ruled that, in fact, the deed in question was an individual family plot to Chief Kendeh and his heirs, for otherwise “the word “their” instead of “his” would have been used in referring to heirs, administrators, etc.” His Honour therefore ruled that the plot of 204 acres in Kendeh Town, the subject of this litigation, is properly the property of the lineal heirs and administrators of the intestate estate of the late Chief Fahn Kendeh of Kendeh Town.
Hence, this appeal on which appellants still maintain their position: that the said property was community property in which all families of Kendeh Town equally shared.
Our determination of this appeal and this issue is limited to the authority of the Aborigines Land Grant issued by President Daniel E. Howard in 1916, and which authority will be further properly augmented by our notice of historical circumstances of the said land grant.
The premises of said land grant states thus: “TO ALL TO WHOM THESE PRESENTS SHALL COME, Whereas, it is the policy of this government to induce the aborigines ofthis country to adopt civilization and become loyal citizens of the Republic and, whereas, one of the best things thereto is to grant land in fee simple to all those themselves to be entrusted with the rights and duties of the full citizenship as voters Chief Fahn Kendeh and families of Kendeh Town, Settlement of Paynesville, Montserrado County, Republic of Liberia have shown themselves fit to be entrusted with said rights and duties,” (emphasis ours). The habendum clause states thus:
“To have and to hold the above granted premises (Fam Land) together with all and singular the buildings, improvements and appurtenances thereto and thereof belonging to the said Chief Fahn Kendeh and Families of Kendeh Town, his heirs, executors, administrator, and assigns as aforesaid forever. And I, the said Daniel E. Howard President aforesaid, for myself and my successors in office do covenant to and with the said Chief Fahn Kendeh, his heirs, executors, administrators, and assigns that the ensealing of hereof I, the said Daniel E. Howard, President aforesaid and my successors in office will forever warrant and defend the said Chief Fahn Kendeh and families, legal heirs, executors, administrators and assigns against the lawful claims and demand of all persons above granted premises. (emphasis ours).
It was based on the two clauses cited above that the learned judge referred to below as conferring an absolute fee simple estate on Chief Fahn Kendeh and his lineal heirs alone, to the exclusion of any and all other families of Kendeh Town.
We of this Bench unanimously hold otherwise and do hereby rule that the said instrument conferred a communal land grant on all the families that had settled in Kendeh Town at that time, including the family of Chief Fahn Kendeh who, in our opinion, was father and representative, or agent of all the other families settled in Kendeh Town at that time. Hence, apparently there were no quarrels over said piece of property from 1916 when it was granted and at a time when chiefs merely obtained such grants in order to acquire civil status for their followers, until 1981, long after the death of Chief Fahn Kendeh, when land had become something else, and our aborigines no longer thought in a traditional African way, but rather, in such western ways as “fee simple” and “lineal heirs” when it comes to land ownership.
In each of the two clauses cited above, the premises and the habendum clauses, we have particularly noticed, emphasized and underlined two important provisions to justify our holding in this case which will be further bolstered by other authorities.
In the premises of the said Aborigines Land Grant Deed cited supra, reference is made to the policy of the Liberian Government at the time “to induce the aborigines of this country to adopt civilization and become loyal citizens of the Republic…” and “it is pointed out that the government considered it best to grant all said aborigines land who are to be entrusted with citizenship rights, to allow them to exercise the franchise. Just following all that stipulation we have emphasized and underlined the following conclusion to the premises: “Chief Fahn Kendeh and families of Kendeh Town, Settlement of Paynesville, Montserrado County, Republic of Liberia have shown themselves fit to be entrusted with said rights and duties.” (emphasis ours).
In particular, we have taken note of the portion of the latter citation which reads as follows:
. . . .”have shown themselves fit to be entrusted with said rights and duties.” (emphasis)ours)
No doubt this statement refers to none other than all the settled families of Kendeh Town at that time, including Chief Fahn Kendeh and his lineal heirs. They had shown themselves fit to be entrusted with said rights and duties, the rights and duties of citizenship, and therefore, upon the representation of their chiefs and elders led by Chief Fahn Kendeh, the government of President Howard, in 1916, granted them a community holding in fee, as tenants in common, to allow each and every family in said town the privilege of voting, which was then conferred on aborigines only upon proof of a fee simple holding in land.
Next, the habendum clause and what we have underlined and emphasized therein:
“….that at the ensealing of hereof I, the said Daniel E. Howard, President, as aforesaid and my successors in office will forever warrant and defend the said Chief Fahn Kendeh and Families, legal heirs, executors, administrators and assigns against the lawful claims and demands of all persons above granted premises.
This stipulation in general refers not to a single family, but to a community headed by Chief Fahn Kendeh. Particular note should be made of the stipulation which says in part that the President and his successors in office will forever warrant and defend “The said Chief Fahn Kendeh and Families, legal heirs, executors, administrators and assigns against….” Here this instrument does not speak of Chief Fahn Kendeh and “his” heirs but speaks of protecting and defending “Chief Fahn Kendeh and Families, legal heirs, executors etc which indicates that the warranty is, in fact, for the Chief and families and their heirs, the heirs of all the families of Kendeh Town in general.
Our holding, as hinted earlier, is bolstered by other authorities. As late as 1957, and deriving from the historic Hinterland Regulations, the interest of a tribe in lands was usually converted into communal holdings, upon proper application to government, and the applicant/tribe usually bore the expense of the survey of such a communal holding. In such cases, the chiefs and elders whom we usually refer to as tribal authorities were designated as trustees of said communal lands for the tribe. As trustees, said chiefs or authorities had no power to convey fee simple title in said land to any other person outside the tribal community designated therein. Aborigines Law, 1956 Code 1:271, under Communal Holdings.
We are convinced that the 204 acres of farm land granted to Chief Fahn Kendeh and Families of Kendeh Town, Paynesville Settlement, by President Howard in 1916, was meant to be a communal holding for the families of that Township and not a fee simple single family holding meant for Chief Fahn Kendeh and his lineal heirs or his family alone as the trial judge would have us believe.
Admittedly, individual family holdings were also granted to worthy aborigine families, where a tribe had become sufficiently advanced in civilization and petitioned government for division of the tribal land into family holdings. However, in no such case was a deed granted in fee simple to any family of the tribe for an area of more than twenty-five acres. Aborigines Law, 1956 Code 1: 272. Consequently, in the absence of some other convincing evidence, we refuse to subscribe to the idea that an Aborigine Land Grant to an individual would have exceeded 25 acres for any justifiable reason, even in the case of a chief.
Considering what we have said herein, the judgment of the lower court is hereby reversed, and the Clerk of this Court is ordered to send a mandate below to the effect that the land in question is communal property belonging in common to the Kendeh family of Kendeh Town and to the families in Kendeh Town in 1916, Settlement of Paynesville and their heirs and successors. We further mandate that whoever produces evidence showing that his family was resident in Kendeh Town in 1916 at the time of said grant is entitled to share in the common undivided ownership of said land in fee until an otherwise proper petition is made to government to have said communal tribal holding divided into individual family holdings in fee as is required by law. Costs ruled against appellees. And it is so hereby ordered.
Judgment reversed