PUBLICATION OF LAND TRANSACTIONS IN CAMEROON: A STUDY OF THE COMMON AND CIVIL LAW SYSTEMS.
Keywords:
potential law, resource, susceptible, Cameroon, jeopardised, registration, judiciary, Common Law, legislation, litigationAbstract
This article springs from the adage that each land transaction is a law potential law suit. In this regard there is no distinction between the common and civil law systems. Land as a natural resource is static and therefore susceptible to the existence of concurrent rights. Both systems have however evolved systems of publicity of land transaction to keep potential dealers informed of the status land. Land as a factor of production and symbol of economic and political power is liable to be the source of major conflicts if its alienation is not well managed. In both the common and civil law systems applicable in Cameroon due to an historical accident, the system of registration of instruments or deeds occupies an important place. It serves as the medium through which transactions between two parties are made known to the public. Social peace would be jeopardised and economic development compromised, in the absence of such a system. By persons who get into transactions for the acquisition of lands which, have unknown to them, been alienated to other persons. In such cases, the second acquirer finds that he cannot take possession, while the first acquirer, during the period of litigation, cannot go ahead with any intended development of the land.
What actually exists as the law on registration of instruments in the country can only be ascertained by putting together isolated provisions drawn from a number of land legislation. This state of affairs explains the goal of this article which intends to publicise the concept, and serve as a bait to Legislators and the Judiciary, who could then be drawn out of their reserve to take an interest in the area. To do so, we intend to study what exists as law in the area, in the Common Law and Civil Law Jurisdictions of the country. Despite the purported harmonisation of land laws in the country, courts in Anglophone Cameroon continue to lean heavily on the Common Law and those in Francophone Cameroon on the Civil Law.
Guided by the practice in both parts of the country, we propose at the end of the article to make some suggestions towards the enactment of a truly national legislation in the area of registration of instruments, a law which must take into consideration the local circumstances of the country.
References
1. Allott, Essays in African Law, London, Butterworths, 1960, pp. 245–46.
2. Dyson, H., French Real Property and Succession Law, Second Edition, London, Robert Hale, 1991 p.21
3. Appeal No. BCA/16C/96 (Unreported)
4. Suit No. Km/122/90 (unreported)
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6. See Section 115 o f Decree N°.95/034 of 24 February, 1995, reorganising the Profession of notary.
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8. See Section 33, Ibid; Section 3 of the Illiterates Protection Act, cap. 83, 1958 Laws of the Federation of Nigeria.
9. Section 7 (3) Decree N°. 79/17 of 13 January 1979 Relating to Private real Property Transactions.
10. Section 9, Ibid.
11. Art. 9 of the League of Nations Mandate 1922.
12. (1931) 10 N.L.R. 36.
13. Nwabueze, B.0, Nigerian Land Law , Enugu Nwamife Publishers Ltd, 1972 p. 522.
14. Section 19, Land Registration Ordinance, No. 36, 1924 (Nigeria)
15. See generally, Cabrillac and Mouly, in Droit Des Suretes . Libraire de la Cour de Cassation, Paris, pp. 647 et seq.
16. In « Fraude dans les Transferts immobiliers et securite des tiers - R.T.D.C., 1988, No. 4, p. 655 and 666.
17. Compare the German, Swiss and Austrian systems where registration of instruments has the powers to create new rights. In Francois Brochu, “Nouveaux effets de la publicité Foncier: rêve ou r éalité” Les Cahiers des droits, (1999), 40 C de D, 267-321, at 272.
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20. The British Cameroon had a system of land holding regu lated by the Lands and Native Rights Ordinance, 1955, which did not have the same effect.
21. Under the Lands and the Native Rights Ordinance of the 1948 laws of the Federation of Nigeria two categories of Land existed in Anglophone Cameroon ; the Customary ri ght of occupancy and the Statutory right of occupancy. The latter resembled the registration of title when it was in fact only an official recognition of a possessory right, given that it was determinable by the Governor under whose authority all the land was placed. The only advantage to the holder was that it could be used as Security for loans. NJREL (2020) 78–90 © Law Journals 2020. All Rights Reserved Page 89
22. See Section 2 of Ordinance No. 74 -1 which provides “The following categories of lands shall be subject to the right of private property : (a) registered lands; (b) free hold lands; (c) lands acquired under the transcription system; (d) Lands covered by final concessions; (e) lands entered in the grundbuch”
23. See Articles 39 and 40 of Charter N° 10/88 - UDEAC, Harmonising Stamp Duties and Trusteeship in the UDEAC Sub-region.
24. Article 13, Ibid, gives a deadline of fifteen days to one month for contracts drawn up by notaries public and assimilated officials; one to three months for contracts drawn up by the individuals themselves and; six months for contracts drawn up outside the UDEAC Economic Union.
25. Ibid Article 77(1), Ibid.
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29. S. 14, English Stamp Duties Act, 1891; Section 21 (1), Stamp Duties Act, cap. 191, 1958 (Nigeria);
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31. Section 10, Law. No. 80 -21 of 14 July 1980, amending certain provisions of Ordinance No. 74 -1 of 6 July 1974, establishing the rules governing land tenure.
32. Section 7 (3), Decree No. 79-017.
33. Section 6, Ibid.
34. Dworkin, G, “Registered Land Reforms ” (1961) M.L.R. 136).
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38. It is provided in Section 194 (1) of the Land Instrument Registration Law, cap. 56, 1959 (Western Nigeria) that “A purchaser shall not be prejudicially affected by notice of any instrument or matter capable of registration under the provisions of the land registration law, which is void or unenforceable against him under the law, by reason of non - registration thereof”.
39. Sharp v. Coates (1949) IK.B. 285; the owner of the defeated interest was in possession, so that the purchaser had, at least constructive notice.
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41. Holling ton Bros. Ltd v. Rhoches (1951) 2 T.L.R 691.
42. “Publicité foncière a aussi pour but d e prévenir les tiers qui n’étaient pas parties a l’acte qu’il s’est passé one modification de droits réels sur le terrain ” Ngamou Ngoule Jacqueline, “Les Problèmes poses par l’Aliénation illicite des terrains en Droit Positif Camerounais : L ’Article 8 de I ‘Ordonnance 74 -1 du 6 Juillet 1974, ” Memoire de Maitrise en Droit Prive, Universite de Yaounde, 1987, p. 22
43. G.P. 1952, 2. 411 ; R.T. 1953, 129
44. The absence of publication cannot be substituted or seen as covered by knowledge that creditors or acquirers could have had by other means except publication.
45. (1828), 3 Russ 1.
46. See Section 137 (1), Law of Property Act, 1925
47. Documents and judicial decisions subject to registration are, if not registered are not opposed to third parties, whom, on the same land, had acq uired, from the same grantor, concurrent rights by virtue of documents or decisions subject to the same obligation of registration, and registered. NJREL (2020) 78–90 © Law Journals 2020. All Rights Reserved Page 90
48. Mana, J., Publicité et connaissance de l’existence d ’un droit Foncier antérieur » in La Lettre des Notaires, No 002 p. 10.
49. De ‘Evolution de la Notion de bonne Foi R.T.D. 1946,75, No. 18
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54. CIV. ler Section. J.C. P. 1962. 11. 12758.
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58. Programmes such as “Le point de droit ” on CRTV are yet to make their impact. Firstly, they are in French, and the audience is reduced and secondly, they are irregular.
59. S. 45 (2) of the Interpretation Act, cap. 89, 1958 Laws of the Federation of Nigeria provides, Such imperial laws shall be in force so far only as the limits of local jurisdiction and local circumstances shall permit- see also article 15 of the East African Prote ctorate Order in Council, 1902. which stipulates: “the said common law, doctrines of equity and statutes of general application shall be in force in the territory subject to such qualifications as local circumstances may render necessary”.
60. See Kodilinye, An Introduction to Equity in Nigeria , London, Sweet and Maxwell, 1975, p. 42
61. No one can give what he does not have
62. See generally, P.A. Oluyede, Nigerian Law of Conveyancing , lbadan University Press, 1978, P 256; R.W. James, Modern Land Law of Nigeria, Univ ersity of lie Press, 1973, P. 255.
63. Jean PhillippePlatteau, “Reforming Land Rights in Sub Saharan Africa: Issues of Efficiency and Equity ” United Nations Research Institute for Social Development, March 1995 p. 20.
64. The decision in Rondel v. Worsley (1969) 1 A.C. 191 makes it difficult to find advocates liable for negligence in the performance of their duties. Cite this Article Nzalie Joseph EBI . Publication of Land Transactions in Cameroon: A Study of the Common and Civil Law Systems. National 78–90p.
