Before the advent of colonialists into Africa, there had been in existence different types of property holdings like the communal, family and, to some extent, the individual landholding under customary law.1 Customary law recognizes that the dominant right can be vested in an individual, community or family. Family holding is a form of tenure well known in Africa and forms the main basis of property holding.2
The Germans intercepted the smooth development of customary law as such, introducing the western concept which was alien to the African.3 There was, for instance, the introduction of the famous June 15, 1896 law instituting crown lands.4 The central point in this law was that with the exception of the rights of chiefs and their communities over the unoccupied lands, all other lands supposedly having “no owner” belonged to the crown.
As a fact, in strict customary land law theory, there is no unoccupied land.5 However, the Germans in an attempt to harness land went beyond the law of 1896 as evidenced by the Grundbuch or land register.
The Germans neither understood nor had time to understand that there was a world of difference between the individual property holding system applicable in Germany 6 and the predominantly communal holding system in operation in Cameroon or Africa as a whole. Enonchong7 puts the landholding system in Cameroon in the following words: “the whole land was deemed to belong to the community as a corporate entity”.
A perhaps more accurate statement on who owns the land under customary land law was by the renowned Elesi of Odegboloa, a Nigerian chief appearing before the west African lands commission in 1912. He said that “land belongs to a vast family of which many are dead, a few living, and countless members are yet unborn”. The idea was that, dealings in land according to the customary land law must be such as to cater to the interest of the many “dead,” “the living” and “countless unborn”.8 Thus, though isolated cases may be found here and there of individual “ownership”, it is by no means true to say that land was, broadly speaking, communally owned.
In 1916, the Germans were kicked out of Cameroon9 and Cameroon was partitioned between France and Britain, and hence the emergence and constitutionalization of English and French land laws in Cameroon today.10
The most far-reaching pre-independence development was the enactment of the notorious Land and Native Rights Ordinance.11 This instrument ensured, protected and preserved “the existing customary rights of the natives of the Cameroons under the United Kingdom Trusteeship to use and enjoy the land and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families” and above all “to preserve as far as possible the existing native customs with regard to the use and exploitation of the lands”.
While, the Land and Native Rights Ordinance was applied in the former West Cameroon, former East Cameroon was under the rule of the Décret-loi or Decree law of January 09, 1963 and its decrees of application. This décret-loi conferred a more complete title, the “titre foncier” or land title, whereas its counterpart in southern Cameroon (West Cameroon) barely granted at best a statutory lease.12
At this juncture, it would be interesting to note the reasons for the passing of the 1974 Land Tenure Ordinance. The introduction of peaceful government, high standards of living, population increase and the introduction of mechanized agricultural systems were at the background of this legislation. Furthermore, land is now being commercialized and as such, the unit of holding is gradually drifting away from community to individual owned. Besides, wealthy native capitalists are mushrooming and the specter of agricultural debts is looming high with many peasant farmers becoming tenants on lands formally owned by them. Speculation in land now is no longer as foreign as it was fifty years ago. Today, the law regulating property holding in Cameroon is the Land Tenure Ordinance of 1974 and the subsequent Decrees of application.
The protracted problem of individual ownership of land under customary land law is yet to be resolved. It is because of the application of received English law that the courts are applying the maxim of quicquid plantatur solo, solo cedit, which means that whatever is affixed to the soil belongs to it.
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