ADMINISTRATIVE TRESPASS UNDER CAMEROON LAW.
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1.0 Background of the Study.
It is from the colonial powers that Africa in general and Cameroon in particular have a well-defined form of governance constituted by administrative institutions and governed by administrative law. This administrative law however originates most precisely from France for it did not appear ex nihilo or from a vacuum.
Administrative law is essentially a French law inspired from French doctrines and jurisprudence. In determining the competent authorities capable of hearing matters involving the administration, article 13 of the law of 16 to the 24 August 1790 on judicial organization in France as completed by the law of 16th Fructidor III decree holding in its lone article that iterative defense is made to administrative courts to know or entertain matters concerning the administration.
The institution of administrative law and litigation in France became popular in 1873 with the advent of the Arête Blanco case on the 8th of February 1873, the mission was to ensure the proper functioning of the administration and settle administrative disputes by using legal rules which differ from those of private law and adopted to the specificity and specialty of administrative activities.
Tribunal des Conflicts gave the judgment in the Arête Blanco case which established on the one hand the principle of administrative responsibility and also established a system by which the principles of private law cannot be applied in administrative matters. These rules of administrative law are extended to French speaking African states and Cameroon in particular due to the strong colonial influence that France had on its colonies.
However, the independence of most African states and Cameroon in particular in the 1960s, led to the adoption of distinct rules of administrative law and competent courts charged with the jurisdiction to handle administrative matters.
Prerevolutionary conditions in France called into being a jealously guarded differentiation of the administrative from the judicial agencies. For a time political bias, obscured other vital issues. But as for reasons for this attitude, and consequently the prejudice itself, began to disappear, interest in the normal scope of judicial authority revived.
It was a natural course of events that evolved a means of bridging the gap between the competing principles of differentiation of agencies and of ordinary court protection of personal liberty and of property.
Gradually, this means took shape of the doctrine of administrative trespass-voie de fait. The very fact that the doctrine of voie de fait has received close attention and analysis only in the comparatively recent legal literature is significant. It points unquestionably to the point which, during the past two decades, has endangered a great deal of new and penetrating interest in the relation of the administrative and judicial departments. This cause, in France as in this country, is the rapid expansion of administrative activity since the First World War. Indeed, it would have been strange if during this period the notion of administrative trespass had escaped the searching thought of contemporary legal writers.
Until very recently, analytical treatment remained confined to the forms of inherent illegality which converted the act of administrative agencies into a trespass. The attendant violation of specific rights has received only incidental attention. However, the aftermath of an uncommonly important decision rendered by the tribunal des conflits on April 8, 1935 brought forth penetrating examination of the elements of voie de fait by professor Waline. For the first time, an equal amount of attention was given to the criterion of trespass to private property or public liberties. Waline has demonstrated that actually the violation of a right or a liberty is sufficient to constitute a trespass only when the injury is especially severe. The relevancy of the degree or magnitude of the unlawful invasion of rights and liberties is exemplified by cases in which the jurisdiction of the ordinary courts was not conceded although the prerequisites of voie de fait seemed fully satisfied.
1.4 The Research objectives
- To explore and bring out a clear cut on what actually administrative trespass under Cameroon law is.
- To examine the various categories, forms or types of Administrative trespasses that exist.
- To ascertain whether or not, there is an inherent judicial power to protect persons and property against Administrative Trespass or encroachment.
- To identify and discuss the various elements that constitutes Administrative trespass.
- To ascertain which court and judge is competent to preside over matters related to administrative trespass in Cameroon
Trespass simply refers to an unlawful act committed on person, property or rights of another especially: a wrongful entry on real property. The legal action for injuries resulting from trespass, a violation of moral or social ethics, transgression especially, an unwarranted infringement.
Also known as l’emprise administratif, administrative trespass simply refers to the unlawful interference or wrongful infringement on the real property of private persons and the violation of the moral, fundamental and social rights of private individuals by the administration. An administrative trespass is not exclusive to the administration as the name suggests. It is possible for private persons or individuals to equally trespass on property belonging to another and in such a case we call it a private trespass and falls within the competence of a judicial judge. Nevertheless, when the author of a trespass is the administration, such becomes an administrative trespass. Administrative trespass is usually committed on the real or immovable property of a private person. Illegality resulting from usurpation of power and directly following violation of private rights are the basic elements which have been held to convert acts performed by administrative agents into trespasses. The courts themselves do not seem to have ever given a clear definition of administrative trespass. Nevertheless the concept has served in numerous cases as a criterion of jurisdiction. Obviously, the reluctance to indicate the probable limits of its application is calculated to preserve the freedom to predicate the ordinary jurisdiction over acts of administrative origin on other grounds than that they are non-administrative and to the judicial courts, as well as to the tribunal des conflits, in their respective concessions, assertions and affirmation of their jurisdiction. In the frequent applications of voie de fait, the jurisdiction of civil courts has commonly been justified by emphasizing only the “non-administrative” character of the act complained of. The cour de cassation, in 1876, in the case of Labadie v. Gaillardon, decided that an illegal arrest followed by unlawfully prolonged detention was an administrative act, and therefore the lower civil court was competent to take cognizance. Although there is no express reference, the decision is a manifest application of the trespass doctrine, revealed in this language; “in passing upon the character (illegality) and the consequences (invasion of personal liberty) of the act, the court below did not interfere with any administrative act, and consequently did not violate the principle of the differentiation agencies.”
- Justification of the Study
Since the law clearly spells out the jurisdiction of the administrative judge and that of the judicial judge in Cameroon there still exist circumstances under which they work interchangeably, this is during administrative trespass to person and administrative trespass to property. This work is therefore out to explore or examine whether or not, there is an inherent judicial power to protect persons and property against Administrative Trespass, the various types that exist, and the competent court and judge to preside over matters of administrative trespass in Cameroon.
1.3 The Significance of the study
Firstly, this study is relevant because it will enable the academic community of Cameroon and the University of Bamenda in particular to acquire knowledge on what administrative trespass under Cameroon law is all about..
Secondly, it is very beneficial to the researcher carrying out the research in this field of internal public law because it will enable the researcher to be awarded academic credits, particularly a Bachelor’s degree in public law.
Thirdly, this study is also significant because it will act as a motivation for aspiring researchers and professional researchers to gain interest in carrying out further research in this field of internal public law. This is very factual because administrative trespass in Cameroon is a very interesting and important area in the judicial and administrative domains of the Cameroon legal system. This therefore means that further and even better research can be carried out as far as administrative trespass in Cameroon is concerned.
Fourthly, this research is also relevant in that, it will enable law makers and policy makers, i.e. the parliament, the government and the Constitutional Council to put in place measures which will go a long way to strengthen the judicial system in Cameroon, especially the proper domain of competence of the judicial and administrative judge in Cameroon.
Finally, this study will serve as a platform to educate the general population on the various types and forms of administrative trespass that exist, the constitutive elements that make up administrative trespass for the proper functioning of judicial and administrative courts in Cameroon and the objectives of both in ensuring justice and administrative responsibility.