Taking possession by the administration of a private real estate property: an assessment

ABSTRACT

This research work aims to examine taking possession by the administration of a private real estate property: an assessment. The objectives of this research are both general and specific. The general objective of this work is to understand how administrative trespass affects property right. Specific objectives are to elaborate on the concept of administrative trespass. To discuss the legal regime of administrative trespass. To elaborate on the powers of the control of administrative trespass. To discuss the regime of protection against administrative trespass. To make policy recommendations.

The main research questions include to what extend is the administrative trespass affecting property right? And Specific research questions include what is the concept of administrative trespass? What is the legal regime of administrative trespass? What are the powers of the control of administrative trespass? What is the regime of protection against administrative trespass? What are the possible recommendations that can be made?

CHAPTER 1

GENERAL INTRODUCTION

1.1 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 16^th Fructidor III[1] 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 Arrêt Blanco case on the 8^th 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 Arrêt 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.[2] 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.[3] 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.[4] 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.[5]

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.[6] 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.

1.2. Statement of the problem

The question whether judicial power necessarily implies power to protect persons and property against administrative trespass can be evaded in Cameroon by pointing to the constitution, under which the courts have successfully asserted the power to review administrative acts. This power of the courts is commonly based upon the postulate of the “supremacy of law” and the requirement of “due process of law”. However, the different conception of separation of powers with its companion doctrine of differentiated agencies might well be understood to have obviated the performance of an analogue function by the judiciary of France. It is therefore of vital importance to observe the doctrine of ordinary court protection of civil rights and property which has been unceasingly defended in the face of the postulate of administrative freedom from judicial interference.

Also, the administration is finally endowed with a natural judge now known as the administrative judge thanks to the advent of the principle of separation of functions, followed by that of delegated justice. This has evidently led to the creation of administrative jurisdiction alongside judicial jurisdictions. However, the specialization of the administrative jurisdiction has led to the formation of a judge called the administrative judge different from the ordinary or judicial judge as practiced in France and Gabon.

The tendency is that of making sure that administrative litigations have its special judge in such a way that it will be difficult and impossible to seize the judicial judge in matters of administrative litigations. But then, the ordinary judge is seen as the first and the best judge in the protection of rights freedoms. Because there is no collaboration between the administrative and the judicial judge, there are areas where the international administrative judge intervenes and also areas where, it is the judicial judge that intervenes in Administrative matters. This is during administrative trespass to person and administrative trespass to property.  It is therefore essential to educate the population because they do not actually have a clue of what is administrative trespass, the different forms that exist, the constitutive elements that make up this trespass and the domain or circumstances under which the ordinary judge can intervene in administrative matters.

1.3. The Research Question

1. Main Research Question

• To what extend is the administrative trespass affecting property right?

1. Specific Research Questions.

• What is the concept of administrative trespass?
• What is the legal regime of administrative trespass?
• What are the powers of the control of administrative trespass?
• What is the regime of protection against administrative trespass?
• What are the possible recommendations that can be made?