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Friday, February 1, 2013

RE: La Republique du Cameroun as trespasser in possession of Southern Cameroon's right to sue Nigeria

Hi Mola,
 
greetings of the season. You have been missing in action for sometime. In the conclusion of my write with above heading, I said "theoretically", La Republique can sue. On the Bakassi issue, it would not be mere common law that operates but international law and various other considerations come in place.
 
I refer you to the below article I wrote sometime ago. It is a bit long but it gives you La Republique du Cameroun's status in Southern Cameroons i.e. an occupying power and the obligations of an occupying power to enter international agreements or sign treaties on behalf of the occupied.
 
Of note is that Article 64 of the Fourth Geneva Convention (GCIV) gave the occupying power a very broad grant of authority over an occupied territory. An interventionist approach to the affairs of the occupied territory is now generally considered. Article 43 of The Hague Regulations (THR) is now generally interpreted broadly to allow the occupying power to fulfil its duties under occupation law, such as the administration of the occupied territory for the benefit of the local population, security etc.
 
It is my opinion that following International Occupation law, and mindful of the obligations placed on the occupying power by Article 64 of the fourth Geneva Convention and Article 43 of the Hague Regulation, to administer an occupied territory, the occupying power has the locus standing to sue on behalf of the occupied a trespasser on the territory it is administering.
 
La Republique du Cameroun as a member of the United Nation and as occupying power in Southern Cameroon, can sue Nigeria in the ICJ notwithstanding the lack of a union treaty. Locus standi is a matter of interest and not a matter of the merits of one's case. La Republique du Cameroun has enough interest in Bakassi either as a purported part of its territory (weak case without union treaty deposited in the UN) or as an occupying power in possession in Southern Cameroons. The weakness of its case not withstanding, the interest is enough to allow it to sue at the ICJ.
 
Regards
 
Tumasang.
 
(Below is the article referred to)
 
INTRODUCTION
Southern Cameroons is a former UN trust territory that was supposed to be independent but today there is no modicum of self-government in the territory. The contiguous state of La Republique to Cameroon is in absolute control of the territory and entering into international agreements with third parties such as Herakle Farms and the Roundtree Agreement with Nigeria.
It is germane to look at the status of Southern Cameroons in International Law and the legality of various actions of La Republique du Cameroun in the territory. This has been addressed by formulating various issues and trying to find an answer to them.
1) CAN LA REPUBLIQUE DU CAMEROUN CLAIM TITLE TO ANY LAND IN SOUTHERN CAMEROONS WITHOUT THE ISSUE OF SOVEREIGNTY OVER SOUTHERN CAMEROON BEING RESOLVED?
The land law operating in Southern Cameroons and Nigeria is generally derived from Common law, Statute and customary law. As per the Municipal law, there are generally five ways in which ownership/title to land may be proved. They are:
1. Proof of traditional evidence;
2. Proof of acts of ownership, acts by persons claiming the land such as selling, leasing, renting out all or part of the land, or farming on it or otherwise utilizing the land beneficially, such acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that he is the true owner;
3. Proof by production of document of title which must be authenticated;
4. Proof of ownership by acts of long possession and enjoyment in respect of the land to which
the acts are done;
5. Proof of possession of connected or adjacent land, circumstances rendering it probable that
the owner of such connected or adjacent land would in addition be the owner of the land in dispute, may rank also as means of proving ownership of the land in dispute.
(i) Amajideogu v. Ononaku (1988) 2 NWLR (Pt.78) p.616;
(ii) Piazo v. Tenalo (1976) 12 SC p. 31;
(iii) Idundun v. Okumagba (1976) 9 - 10 SC p.224;
(iv) Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) p.41.
Summary
It therefore follows that La Republique du Cameroun as a legal entity, whether a foreign or domestic entity, whether in armed occupation or not of Southern Cameroon, if they can use one of the above methods to proof title to any land in Southern Cameroon such as the Herakle Farm lands, then their title is valid and hence La Republique du Cameroun can assign, convey or deal with the titled land as they deem fit. If La Republique du Cameroun can show that they have acquired title to the Herakle farm lands under municipal laws, they can validly give a lease to Herakle farms for 60 years or other term of years even if the sovereignty issue of Southern Cameroons has not been settled.
In terms of Municipal law, the question should not be whether La Republique du Cameroun can validly acquire the Herakle farm land which empowers them to assign it to Herakle farms. The question should be whether La Republique du Cameroun has acquired the title to the lands before giving a lease of 60 years to Herakle farms. This question is a factual issue and only the facts on the ground can tell the actual story.
CAN HERAKLE FARMS TAKE ACTION ON THE HERAKLE FARM LANDS WITHOUT CONSIDERING THE INTEREST OF NDIAN PEOPLE?.
Even if La Republique du Cameroun has acquired tile on the Herakle farm lands, it does not mean that this title is "absolute" or totally unfettered. The indigenous people might still have various interests and rights on the land that has to be protected. In International law as concerns indigenous peoples, their rights are protected in the "United Nations Declaration on the Rights of Indigenous Peoples. I draw attention to the following Articles of the above Declaration that deal with Indigenous Peoples such as the Ndian people and their rights:

Article 8 (1): Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

Article 10: Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous people concerned and after agreement on just and fair compensation and, where possible, with the option to return.

Article 17 (1): Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable international and domestic labour laws.

Article 17 (2): States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education.........

Article 26(1): Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

Article 26 (2): Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

Article 26 (3): States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 29 (1): Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programs for indigenous peoples for such conservation and protection, without discrimination.

Article 32: Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
Summary
It therefore follows that Herakle farms cannot take any actions on the lands without consulting or taking the interest of the indigenous people of Ndian into consideration. Any such action might be a breach of International law.
AS PER INTERNATIONAL LAW IS SOUTHERN CAMEROON OCCUPIED BY LA REPUBLIQUE DU CAMEROUN?
It is germane to first consider if Southern Cameroon is occupied by the Contiguous state of La Republique du Cameroun. Is it concubinage or occupation?. Can concubinage be occupation at the same time?. How does International Law define Occupation and does it apply in the case of Southern Cameroon?. Is it correct to label La Republique du Cameroun as an "occupier of Southern Cameroon" or is it a matter of just tarnishing its image?.
The only treaty definition of occupation is that of Articles 42 and 43 of the Hague Regulations. The Fourth Geneva Convention does not contain a definition of its own.
In accordance with Article 42 of the Hague Convention, a territory is considered occupied when it is actually placed under the authority of the hostile army. The BIRs and Gendarmes in Southern Cameroons who are mainly made up of citizens of La Republique du Cameroun appears to perfectly fit the description of a "hostile army" despite the fact that one or two Southern Cameroonians are dotted sparsely within its ranks.
The French version of Articles 42 and 43 clearly captures the essence of occupation.
Article 42.
Un territoire est considéré comme occupé lorsqu'il se trouve placé de fait sous l'autorité de l'armée ennemie. (…)
Article 43.
L'autorité de pouvoir légal ayant passé de fait entre les mains de l'occupant …
The above clearly shows that occupation is not about legal niceties of "joining or non joining" as per UN Resolution 1601. The power of the occupying power or state is a matter of de facto capability, not a legal authority. The reality on the ground is more important and the legal paperwork to decide if a state is under occupation or not.
For there to be occupation, two criteria must be satisfied:
  1. The former government has been rendered incapable of publicly exercising its authority in that area;
  2. The occupying power is in a position to substitute its own authority for that of the former government."[1]
In terms of Southern Cameroons, the former government was dissolved by Ahidjo hence rendering it incapable of publicly exercising its authority in the territory by virtue of dissolution. Secondly, La Republique du Cameroun has substituted its own authority for that of the former government of Southern Cameroons by appointing, Governors, District Officers, Government Delegates etc. who are mostly citizens of La Republic du Cameroon to exercise authority over the territory of Southern Cameroons.
Does lack of force stop classification as occupied territory?
There have been many occupations in history. Some by force and others peacefully either due to consent or due to fear of overwhelming force. Czechoslovakia was invaded and occupied without military resistance and before the outbreak of war, not as a consequence of war. On the other hand, Denmark, was invaded and occupied in a war period but did put up only de minimis military resistance to the invasion.
The above shows that Southern Cameroons can still be classified as an occupied territory even if there was no military resistance at the onset of occupation by La Republique du Cameroon.
Summary
Based on the above, the legal position is that Southern Cameroon is under occupation by La Republique du Cameroon despite the fact that there was no military resistance at the onset of the occupation.
IF LA REPUBLIQUE DU CAMEROUN IS THE OCCUPYING POWER IN SOUTHERN CAMEROON, DOES IT HAVE THE LEGAL RIGHT TO ENTER INTERNATIONAL TREATIES OR INTERNATIONAL AGREEMENTS SUCH AS THE HERAKLE FARM AGREEMENT OR THE GREENTREE AGREEMENT?
Article 64 of the Fourth Geneva Convention (GCIV) gave the occupying power a very broad grant of authority over an occupied territory. An interventionist approach to the affairs of the occupied territory is now generally considered. Article 43 of The Hague Regulations (THR) is now generally interpreted broadly to allow the occupying power to fulfill its duties under occupation law, such as the administration of the occupied territory for the benefit of the local population, security etc.
Also, an interventionist approach might be allowed in international law due to the doctrine of necessity, including military, legal and material necessity. Despite the interventionist approach being allowed, the occupying power has limited ability to enter in treaties on behalf of the occupied territory. In  theWimbledon case[2]at the Permanent Court of International Justice, it was held that "the conclusion of treaties was precisely one of the attributes of sovereignty". By virtue of the fact that the occupying power had no sovereign title over the occupied territory, it follows from this jurisprudence that the occupying power cannot enter into treaty relationships on behalf of the occupied territory.
As per international law, whilst sovereign States can conclude treaties, the occupying power would need a norme habilitatrice (enabling rule) to do so on behalf of the Occupied State but international occupation law does not provide for such an enabling rule.
Situations where an occupying power entered into a treaty on behalf of the occupied territory is far and few between but the situation of Switzerland appears to be a case in point. A document from its Foreign Affairs states:
"L'Accord entre la Suisse et l'Irak sur la garantie des risques a l'exportation a été
approuvé par le Conseil fédéral. Dans ce contexte, la question se pose de savoir si l'Autorité provisoire de la coalition est bien compétente pour conclure, au nom
de l'Irak, des accords internationaux. En droit international, le principe est qu'un État occupantdispose du pouvoir légal dans le pays qu'il occupe (article 43 de la Convention de La Haye de 1907). Cela signifie en particulier que la puissance occupante peut promulguer des lois ou conclure des accords internationaux au nom de l'État occupé".
It is submitted that this cannot be used as a justification for the occupier entering into treaties on behalf of the occupied. However, if the treaty is necessary for the administration of the occupied territory, the occupier might be justified in signing the treaty. The occupied territory could not be administered in a vacuum and without any international connections and in cases of long occupation, the need for the occupier to sign treaties might be justified in International Occupation Law.
In the case of Southern Cameroons, taking cognizance of the Roundtree agreement, mindful of the border demarcation between Southern Cameroons and Nigeria, at the end of it, would it be legal for La Republique to enter into a treaty with Nigeria in relation to the Southern Cameroons border?. My opinion is that considering the prolonged nature of the occupation so far and the need to administer Bakassi and other coastal area with a knowledge of the extend of the territorial and land boundaries involved, La Republique du Cameroun might be justified in International law in entering into a treaty with Nigeria on behalf of Southern Cameroons. The reason for entering the treaty is very important in order to determine its legality.
International Agreements such as that with Herakle Farms for a 60 years lease of 70,000 hectares of highly sensitive land.
Article 43 of the Hague regulations puts an obligation on the occupying power to maintain order and civil life. The key issue is meeting the obligations and not the procedure to meet them. In order to maintain civil life in an area, the occupying power might be obliged to enter into international agreements with third parties such as Herakle farms.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) during occupation recognizes the right to work, for instance, and this might require the occupying power to draw up and implement development strategies that would bind the occupied territory's economy for a long time although prima facie this might appear to be contrary to International Occupation Law which is inherently conservative and short term focused.

According to the terms of the ICESCR, this essential minimum standard must include, in particular, adequate food, clothing and housing, as well as the continuous improvement of living conditions in the occupied territories. The ICESCR also recognized "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". These obligations on the occupying power might force an occupier like La Republique du Cameroun to enter into international agreements with a third party such as Herakle farms.

Transformative occupation is an operation whose main objective is to overhaul the institutional and political structures of the occupied territory. There is no basis in International Occupation law for such occupation since the occupier has not acquired any sovereign rights over the occupied territory, hence it would not be entitled to bring about changes in the occupied territory or to undertake reforms that could not be reversed by the legitimate government once the occupation was over.
If Herakle Farms are allowed to go ahead, and in the event that the occupation of Southern Cameroons ends, it would be impossible to replace the 70,000 hectares of cleared forest hence the transaction is part of Transformational Occupation which has no justification and illegal under International Occupation Law.
Conclusion
Even without the sovereignty issue of Southern Cameroon resolved, La Republique du Cameroon as any other legal entity that can sue and be sued can claim title to various lands in Sothern Cameroons provided they can use one of the five acceptable ways of proving title. If they prove title to any land such as the Herakle Farm land, they can assign, convey or dispose of it to whoever as they deem fit.
As per International Occupation Law, Southern Cameroons qualifies to be classed as an "Occupied Territory".
If Herakle Farms takes actions on Ndian lands without considering the interest of the indigenous people, then they are breaking international law as it concerns indigenous people.
Even as an occupying power in Southern Cameroons, in fulfillment of their obligations under Article 43 of the Hague Regulations as occupying power, La Republique can sign International Agreements on behalf of Southern Cameroons with Herakle Farms and if necessary for the proper administration of Southern Cameroons and considering the long nature of the occupation, can in some rare situations sign International Treaties on behalf of Southern Cameroons.
Considering the scale of the Herakle Farms project, and considering the irreversibility of the clearing of the forest, the transaction can be considered as part of "Transformative Occupation" which is not justified and illegal in International Occupation Law. Based on this consideration, the whole Herakle Farm project might be illegal in International Occupation law.
 

Date: Fri, 1 Feb 2013 20:41:51 +0100
Subject: Re: La Republique du Cameroun as trespasser in possession of Southern Cameroon's right to sue Nigeria
From: njohl42@gmail.com
To: ambasbay@googlegroups.com
CC: cameroon_politics@yahoogroups.com; camnetwork@yahoogroups.com

Dear Dr Tumasang
 
I have read with great interest your opinion that La Republique du Cameroun, even as trespasser over Southern Cameroons territory, could validly sue Nigeria in  court for intrusion into Bakassi which is located in Southern Cameroons which is currently under illegal occupation by La Republique du Cameroun.
 
That may well be so if the two trespassers are located within the same jurisdiction, whereupon the Court will then have to determine which of the two trespassers has prior occupational rights.
 
In the instant case however, the ICJ is a special international Court established under the UN Charter, specifically to try disputes between any two member states of the UN. The Charter provides in Art. 102 the joining procedure to be followed if any member state of the UN (as La Republique du Cameroun  was when it commenced litigation against Nigeria), wishes to join another territory.  The Article provides that the two parties contemplating a Union should execute a written and signed Agreement embodying the terms of the contemplated union, and file a copy of the Agreement at the UN Secretariat for publication concerning the new boundaries of the new state. Sub-section 2 of the same Article states that failure to comply with the statutory requirements of sub-section (1), renders the Agreement invalid, and such an Agreement cannot be cited before any of the six organs of the United Nations, one of such organs being the International Court of Justice.
 
I am inclined to the view that as LRC which graduated to independence on 1 Jan 1960 with clearly defined international boundaries, applied and was admitted a member of the UN on 20 September 1960, it became bound by the provisions of the Charter, particularly Art. 102.  The exercise of sovereign authority over the territory of Southern Cameroons is a blatant act of imperial annexation of Southern Cameroons by LRC.  The so-called "union" between LRC and Southern Cameroons, without a signed Treaty of Union, duly filed at the Secretariat of the UN so that it could be publicly verifiable, violates the UN Charter and is an unconstitutional act and so cannot be cited before the ICJ which is one of the six UN organs.  My view therefore is that LRC lacked the capacity to take the Bakassi dispute to the ICJ by not disclosing the notorious fact that subsequent to its independence on 1 Jan 1960 when its territorial boundaries became immutable, and it was admitted a member of the UN on 20 Sept 1960, there has been no Treaty of Union with Southern Cameroons to enable LRC to speak before the ICJ as if Southern Cameroons was an integral part of its territory.  LRC therefore secured judgment under fraudulent misrepresentation by hiding from the Court the notorious truth that it came before the ICJ as the country which had attained independence on 1 Jan 1960 as La Republique du Cameroun which did not include Southern Cameroons as part of the state which was subsequnetly admitted into the UN on 20 Sept 1960.
 
I would welcome your learned observation as to whether LRC was competent to sue Nigeria concerning the territory of Bakassi which is indisputably located in Southern Cameroons, in the absence of a signed Treaty of Union with Southern Cameroons, duly filed at the UN Secretariat.  So to do would be using a subsidiary organ of the UN (i.e. the ICJ) to violate a provision of the governing UN Charter.
 
Accept my most humble regards
 
Mola
 


 
On Thu, Jan 31, 2013 at 10:03 AM, Tumasang Martin <tumasangm@hotmail.com> wrote:
Sometime ago, I tried to convince my brother Louis that theoretically, La Republique du Cameroun even as a Trespasser in Southern Cameroons, since they are in possession and full control of the territory, as trespasser in possession, they have the legal right to sue a third party like Nigeria against trespass on the land unless Nigeria can show they have better rights than La Republique du Cameroon or they can show evidence that they are a trespasser in possession and not La Republique du Cameroon.
 
Both parties cannot sue Southern Cameroons for trespass since we are the bonafide title owners of the land. I could not convince Louis and said we should agree to disagree until when I can get a case that clearly states the issue. I tried to avoid British or American cases and looked for local Cameroonian or Nigeria cases since the local/customary/municipal laws are similar. I hope the below case/cases will put the outstanding issue between me and him to rest. i.e. that a trespasser to land who is in possession can sue another trespasser who comes to disturb his possession and enjoyment of the trespassed land. It is like a squatter or trespasser suing someone (subsequent potential squatter or trespasser not the owner) who comes to disturb him. As reprehensible as this might sound, it is the law.
 

In Omotayo v. Co-operative Supply Association (2011) Vol. 202 LRCN , the judge said

"Where a plaintiff has failed to prove title to land, it may be necessary to consider evidence of possession in order to ascertain whether he is in any event entitled to damages and injunction claimed for trespass, if it is shown that he was in possession which was disturbed. This is on the basis that trespass is essentially an issue of who is in possession. A person who is in possession of land even as a trespasser can sue another who thereafter comes upon the land unless that other is the owner or shows some title which gives him a better right to be on the land. There is cogent evidence that the respondent was in possession of the land in dispute and therefore can sue without asking for declaration".


Other cases that support the above point are as follows:
 

(i) Oluwi v. Eniola (1967) NMLR 339;

(ii) Kareem v. Ogunde (1972) 1 ALL NLR (Pt.1) 73;

 

(iii) Amakor v. Obiefuna (1974) 1 ALL NLR 119;

(iv) Oduola v. Nabhan (1981) 5 SC 197;

(v) Aromire v. Awoyemi (1972) 2 SC 57; (1972) 1

All NLR (Pt.1) 101.

(vi) Adesanya v. Otueh (1993) 1 SCNLR pg. 77;

(vii) Jodi v. Salami (2009) ALL FWLR (Pt 458) 385;

 (viii) Ekpo v. Uyo (1986) 3 NWLR (Pt.26) pg.63.

Conclusion
 
Theoretically, La Republique du Cameroun as trespasser in possession in Southern Cameroons can sue a third party trespasser like Nigeria who comes later and tries to disturb his quiet enjoyment of the trespassed land such as exploitation of its mineral and oil and gas resources. Its hands are tied only in relation to Southern Cameroons people and/or government.

Regards

 

 

Tumasang
 

 

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