Instruction n°005/I/Y.25/MINDAF/D220 of 29 December 2005 to recall the basic rules about the implementation of the system of expropriation for public purpose
The instruction aims to recall the legal and regulatory provisions governing the procedure to expropriate for public use and its prerequisite which is the statement for a public purpose as well as to define practical modalities for receiving and processing files pertaining thereto.
I. REMINDER OF THE LEGAL AND REGULATORY PROVISIONS IN FORCE
The procedure to expropriate for public a purpose is governed by the provisions of law N°85/009 of July 1985 and its decree of implementation N°87/18 72 of December 1987
All Previous legal and regulatory provisions contrary to this law, especially the provisions of ordinance N°74/3 of July 1974 concerning the procedure governing expropriation for a public purpose are hereby repealed.
Besides the principle established in its section 1(1) by which the state in view of the general interest may resort to the procedure to expropriate for public purposes law N°.85/009 and its decree of implementation mentioned above, shall determine the formalities to be observed within the context of the procedure, both at the central and local levels depending on whether it has been requested by the public administration or other public law corporate bodies.
II. PRELIMINARY FORMALITIES OF EXPROPRIATION
Any ministry intending to initiate an action for a public purpose shall inform the minister of state property and land Tenure through a preliminary file drafted in two (2) copies comprising the following documents :
An application explaining the reason for such action ;
A form outlining the main characteristics of the work to be done. The form shall include the following items :
The approximate surface area of the solicited parcel duly justified
A rough estimate of the project (including compensation fees) ;
The approximate date of the beginning of work ;
The availability of funds for compensation (including the budget head or any other compensation means).
In the event where the Minister in charge of state lands considers the project for public a purpose he shall sign an order declaring the public purpose of the intended work. The order shall also define the competence of the valuation commission in charge of expropriation inquiries.
The order to declare the public purpose shall be notified to the Minister initiating the project and to the authority designated to preside over the deliberations of the valuation commission.
III. IMPACT OF THE ODER TO DECLARE THE PUBLIC PURPOSE
The order to declare the public purpose shall be suspensive of every transaction on and every exploitation of the concerned piece of land.
No building permit shall be issued for the piece of land. In the event where one is issued, it shall be considered null and void. Only the registration procedures shall be allowed to continue for first category national lands for the benefit of their occupants or exploiters.
The Oder to declare the public purpose shall become null, if within 2 (two) years of notification, no expropriation has been carried out by the beneficiary government service or corporate body. Its validity shall be prolonged only once by an order of the Minister in charge of state lands, for a period not exciding 1 (one) year.
Consequently, concerned ministries and corporate bodies are reminded of the obligation to speed up expropriation operations.
IV. THE VALUATION COMMISSION
Valuation commissions shall be set up at the national provincial and divisional levels by the Minister in charge of state lands.
These commissions shall be convened
At the divisional level by an order of the Divisional Officer ;
At the provincial level by an order of the Governor ;
At the national level by an order of the Minister in charge of state lands.
Members of the said commission shall be chosen based on the provisions of section 5, and its functioning shall be in conformity with the provisions of articles 7 and _ of Decree N°.87/1872 of 16 December 1987.
The valuation commission shall conduct expropriation surveys. This, it shall mainly be entrusted with :
Choosing and demarcating the concerned plot at the expense of the beneficiary ;
Making an inventory and assessing the right and property encroached upon ;
Identifying their owners ;
Ensuring the placing of signboards to demarcate the area
concerned with the operation, at the expense of the beneficiary.
On receiving the order to declare the public purpose, the designated chairman of the valuation commission, in liaison with the Rapporteur shall ensure wide publicity thereof, by pasting it at the Governor’s office, Divisional offices provincial and Divisional services of state lands, council hall, sub-Divisional or district offices, village palaces in which the plot is found, and by any other necessary means, depending on the scope of the operation.
To enable them take part in all the different stages of the survey, the villagers concerned shall be informed at least thirty (30) days in advance, of the date and time of the survey by correspondences to the village chief and elders through the means indicated in the preceding paragraph.
The rapporteur of the valuation commission shall prepare the Divisional Officer’s order to convene members.
He shall within the context of this commission :
Ensure the respect of the deadline fixed by the instrument in force ;
Act as secretary of the commission ;
Collect all documents presented by experts who are members of the commission ;
Coordinate the activities of the technical sub-commissions that might be set up ;
Identify experts entrusted with property rights and land certificate appraisals ;
Make an inventory of all land certificates to be withdrawn ;
Ensure that the commissions calculates the values of all lands due expropriation ;
Drawing up plans of parcels taken and those remaining
At the end of the survey, the valuation commission shall :
Write survey report to be signed by all members present, mentioning all incidents or remarks by evicted persons ;
Write a final demarcation report and have the plan of the plot concerned drawn up by the surveyor who is member of the commission ;
Prepare an expert’s appraisal of buildings ;
Prepare an expert’s appraisal of crops grown ;
Prepare a statement appraising any other exploitation, signed by all commission members.
At the end of the proceedings of commission the rapporteur shall produce the expropriation file, which shall comprise :
The order designating the members of the commission ;
The various documents mentioned above.
The file shall be forwarded to the Minister in charge of state Lands, by the chairman of the valuation commission, for the preparation of the Decree of expropriation.
V. EXPROPRIATION AND COMPENSATION MODALITIES
Expropriation for a public purpose shall only affect private property, as laid down by law and regulation.
The expropriation decree shall lead to the transfer of property and shall make it possible to convert existing deeds for the benefit of the state or any other public law corporate body, beneficiary of this instrument.
Petitions, claims and all other genuine actions shall neither stop the expropriation process, nor prevent the effects thereof. All claims shall bear on compensation and in principle ; expropriation shall give right to pre-compensation. However in some cases, the beneficiary of the expropriation may, prior to paying the compensation occupy the land as from the publication of the decree to expropriate.
A notice of expropriation with a six months duration, starting from the date of publication of the decree to expropriate shall be given to the victims to vacate the land.
This duration shall be reduced to three months in the event of an emergency.
The compensation due the expropriation shall be made at the expenses of the corporate body which is benefiting from this measure, or borne by the budget of the Ministry that solicited the expropriation.
With regard to councils, public bodies state grantees or state corporations, they shall negotiate, beforehand with the owners or the next-of-kin concerned.
The outcomes of this prior negotiation shall be presented to the Minister of lands who may declare the public purpose of works envisaged and thus authorize the expropriation as explained above.
Besides the amount of compensation to be fixed in accordance with section 3(2) of law N°.85/9 mentioned above, the decree to expropriate shall designate the official vested with authority to decide on the payment of the corresponding amount.
No compensation shall be paid for the destruction of decayed or ruined buildings or buildings constructed against the urbanization rules or in defiance of the legal and regulatory provisions to fix the land tenure system.
VI- JUDICIAL SYSTEMS INVOLVED IN EXPROPRIATION INCORPORATION AND GRADING
The incorporation system, provided for in section 8 of ordinance N°.74/1 of 6 July 1974 to establish rules governing land tenure, shall follow the same procedural rules as that of expropriation mentioned above.
In the same way, the regulation on grading provided for in section 5 of ordinance N°74/2 of 6 July 1974 to establish rules governing state lands shall follow the same prescriptions.
The strict respect by the public stakeholders concerned of these prescriptions shall facilitate the efficient processing of each procedure to expropriate for a public purpose.
Seniors divisional officers
Applicant public administrations
Louis-Marie Abogo Nkono Minister of state property and land Tenure