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Draft Bill Could Lead To Massive Land Grabs 

Interviewed by Azore Opio

CameroonPostline.com — Government’s proposed controversial bill which sought to transfer the duties of notaires in the civil law jurisdiction to the common law jurisdiction would give Francophone notaries fake powers over land owners, which could consequently lead to massive land grabs in the Southwest and Northwest Regions, warns the President of the Fako Lawyers Association, FAKLA.

The scenario is likely if the proposed bill passes through Parliament and it “erodes the common law system practised in Anglophone Cameroon.” Stanislaus Ajong in this exclusive interview revisits the petition which 141 Fako lawyers signed and dispatched to President Biya by DHL courier service on October 18, 2010.

The subject of the memorandum was “The Proposed Amendment of Law No. 90/059 of December 19, 1990 to Organise Practice at the Bar.” In that letter, the lawyers had stated in their introductory page thus; “Recently, and in furtherance of its sustained hostility towards the legal profession that started far back in the 1970s, the Ministry of Justice set up a commission to make proposals aimed at amending the Organic Law Organising Practice at the Bar.

The said Commission was largely made up of civil servants from the Ministry of Justice and their numbers far exceeded those of members of the Cameroon Bar Association, thus greatly influencing the content of the “avant projet” in favour of the proposed amendments of Law No. 90/059.

The bill, to the nation’s disgrace, is the handiwork of a commission the majority of which are strangers to the practice of the law and the other fraction, a coterie of lawyers drawn from the Bar Council without referral mandate of the Lawyers’ Assembly…” The lawyers had also pointed out that the proposed bill was exclusively in the French language, “a brute and flagrant violation of the Constitution of this country as well as total disregard and disrespect of the English-speaking Cameroonians…”

Read on:

The Post: On October 7, 2010, lawyers of the Cameroon Bar Association resident in Fako Division of the Southwest Region met in Buea and unanimously agreed to petition President Biya on the proposed bill to amend the law to organise practice at the Bar…

Ajong: The 17th of July 2012 made us two years at the helm of the Fako Lawyers’ Association. We have done a few things which call for reflection. One of the most important things that we did is that we petitioned the Presidency on what we discovered as an avant projet de loi – a proposed bill which sought to transfer the duties of notaires in the civil law jurisdiction to the common law jurisdiction. We also frowned at Government in always sending out bills in French.

The petition was signed by 141 lawyers of Fako Division and sent by DHL courier and when we tracked it online we saw that it was received but till date we have not had a reply from the Presidency.

We just want to make the ordinary man whom we represent know that we the common law lawyers are quite different from notaires of the civil law jurisdiction. In that sense, if the civil law notaire comes into our system, the documents that will come out pertaining to, say, sales of land and other notary deeds, will be radically different from what obtains in the common law sector.

One of the easiest differences that we have is that when a common law lawyer is called up to draw a deed of conveyance, you bring the seller and the buyer before you. We investigate the title to the land and parties execute their agreement, the sale and transfer before you, and you authenticate as witness to the deed. But in the civil law system the seller just takes his land certificate, goes to a notaire and says he wants to sell land.

The land, for example, covered by the land certificate could be more than what the owner proposed to sell to the prospective buyer. The land could be more and you want to sell a portion. The notaire takes the land certificate and draws what we call an abstract. In that document he only says that the seller and the buyer met in is office and agreed for the transfer of so and so portion of land to the buyer. The seller and the buyer don’t sit and execute a deed as it is done in the common law system.

It is the notaire who single-handedly draws the document and takes to Lands Department to establish the new land title in the names of the new buyer. And we have had situations where notaires now use the land title in their possession to sell the remaining portion of land without the knowledge of the owner because they are not constrained to see the signature of the seller.

They don’t carry out physical inspection of the land in question?

In common law practice, we must visit the site, try to know the neighbours. We must try to know the background of the land and then go to the Lands Office to investigate the authenticity of the title of that land. Meanwhile, under the civil law system, the notaire is final, so it leaves a lot of room for manipulation. And we think it is dangerous for a common law system to be eroded with the left hand as they are trying to do and that the common man will feel the pinch the more.

The land in the Southwest and Northwest will soon disappear into the hands of unknown persons to the owners of that land because the notaire will ascribe a title to a new buyer without the consent of the owner of the land. Because by their own conception of notarie, the notary just makes out an expedition that the seller and the buyer met in his office and agreed to this transaction.

What was the reason that you discerned behind Government trying to impose the civil law system on the common law system?

Well, it is a case of erosion of the common law. We want to state that the two Cameroons came together with two identities; with two legal systems. Cameroon is a bi-jural legal system. One system cannot overnight erode the other.

If we talk of harmonisation….harmonisation first of all is not the best thing. But if we must harmonise, we have to take what is good in the common law and what is good in the civil law and put together. But what we have now is that it is the civil law which is using their majority to impose on the common law.

In Europe, the civil law and common law serve side by side. In the US, there are States where civil law is applied, elsewhere common law is applied. There are States where the death penalty is applied and there are States where you don’t have the death penalty. When a people have their legacy and they have lived by it and they understand it, you don’t come overnight and seek to impose that of another people.

Now that the Presidency has not responded to your petition more than a year after, what is your next step?

Well, sometimes it is said that silence means acceptance. If we want to work on that presumption, we’ll presume that they have accepted that our petition is in order and that is why they have not done anything up to now.

However, we have to be on the watch-out to make sure that we watch them very closely. If that proposed bill comes up again any time, lawyers should be ready to act immediately. So now we are on the alert while still believing that most probably the Presidency thinks that we are correct. But we are watching.

You are not thinking of reminding the Presidency by way of another petition?

In the absence of any action from the Presidency, it will be difficult for us to come out with another letter. But we are just watching for any action that they may take; it might be just a very minute move which might not look like it is affecting the entire concept of that bill. But if it is geared towards the same intention, then we’ll react.

You said in two years you have done a few things which require reflection…

Before taking over the realm of FAKLA, we had told lawyers that we would bring lawyers closer to the common man; that the lawyer should not live an elitist life, disconnected from the society. In collaboration with the Southwest Human Rights Commission, we filed 38 cases of detainees of the Buea Central Prison who had been detained for more than six months without being charged to court. That action led to the release of 18 of the detainees and 20 being charged to court. That one was done pro bono.

We again in collaboration with journalists organised a seminar on the “Decriminalisation of Journalistic Offences”, which is a very topical issue because in modern democracies, journalists should not be caged. We think that our seminar caused this issue to be discussed more openly to the extent that the British Council organised a similar seminar and invited me and the Editor-in-Chief of The Post Newspaper where we expounded on the topic.

So FAKLA has in its own way raised consciousness on the issue. We have also revolutionised communication within FALKA using modern gadgets such as the cellular phone and Internet. To crown it all, for the two years that we have been on seat, we have branded the name FAKLA in that it is not a surprise name to any person again.

It couldn’t have been absolutely a bed or roses…

No. One thing which we must admit is the fact that we have not been able to organise a law dinner with an academic discourse talking on law. That is one of the major issues of a law association. We still have overtime of some five months before the next elections. We are hoping that we can catch up with that major failure. 

Perhaps you would like to reiterate your call to lawyers concerning the petition to the Presidency…

Yes, as I said, we are very vigilant and call on all the lawyers to read newspapers and be abreast with information wherever it is coming from, FAKLA should be aware of it and react immediately.

First published in The Post print edition no. 01360
 

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