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Benin Land Reform Study 3

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					                       DRAFT REPORT STUDY 3




                       MCA-Benin
                “Access to Land Project”
             Land Policy and Land Administration Study




                       Study 3: Study on Land Conflicts and their
                       Modes of Settlement
       09.30. 2008


                       Volume 1: Analysis and Recommendations




September 30th, 2008
TABLE OF CONTENTS

1     GENERAL INTRODUCTION ...................................................................... 7

    1.1     CONTEXT AND JUSTIFICATION .......................................................................................... 8

    1.2     METHODOLOGY AND ANALYSIS INSTRUMENTS ................................................................ 9

2     SITUATION ANALYSIS .......................................................................... 11

    2.1     LAND CONFLICTS ............................................................................................................. 11

      2.1.1         Volume and importance .............................................................................................. 11

          2.1.1.1       Estimate of the volume and weight of the cases submitted to the administrations.
                        11

          2.1.1.2       Estimate of the volume and weight of the cases submitted to the jurisdictions. .. 12

      2.1.2         Typology of land conflicts............................................................................................ 14

    2.2     MODES OF SETTLEMENT OF CONFLICTS: ........................................................................ 17

      2.2.1         Conciliation by the customary authorities .................................................................. 17

      2.2.2         Conciliation by the administrative bodies. .................................................................. 18

      2.2.3         Procedures for the legal settlement of land conflicts ................................................. 19

          2.2.3.1       At the level of the judicial jurisdictions: ................................................................. 19

            2.2.3.1.1       Conciliation procedure before the conciliation court ........................................ 19

            2.2.3.1.2       Traditional legal procedure ................................................................................ 20

               2.2.3.1.2.1       The traditional civil procedure in First Instance .......................................... 20

               2.2.3.1.2.2       Traditional civil procedure at the Court of Appeal: ..................................... 22

               2.2.3.1.2.3       Procedure before the judicial chamber of the Supreme Court ................... 23

            2.2.3.1.3       Legal procedure in modern civil matter: ............................................................ 24

               2.2.3.1.3.1       Before the First Instance Court .................................................................... 24

               2.2.3.1.3.2       Procedure of appeal:.................................................................................... 25

               2.2.3.1.3.3       Procedure for a reversal of judgement ........................................................ 25

               2.2.3.1.3.4       Procedure for lodging opposition against a judgement .............................. 27

               2.2.3.1.3.5       Third party proceedings ............................................................................... 27


                                                                                                                                           2
             2.2.3.1.4        Summary judgement procedure ........................................................................ 28

             2.2.3.1.5        Procedure for legal settlement at the level of administrative jurisdictions ....... 29

                 2.2.3.1.5.1        Characteristics of the procedure ................................................................. 29

             2.2.3.1.6        Steps of the procedure ....................................................................................... 30

3     CRITICAL ANALYSIS ............................................................................. 32

    3.1      EVALUATION OF THE LEGAL FRAMEWORK AND OF THE SETTLEMENT INSTITUTIONS 32

      3.1.1           The list of the laws defining the general framework .................................................. 32

          3.1.1.1      Law n° 90-32 of December 11, 1990 on the Constitution of the Republic of Benin
          (Official Journal n° 1 of January 1, 1991) ................................................................................... 32

          3.1.1.2     Law n°2004-07 of October 23, 2007, on the Composition, Organization, Operation
          and Responsibilities of the Supreme Court and Law n°2004-20 of August 17, 2007 on the
          Rules of Procedure before the Supreme Court’s legal groups. ................................................. 33

          3.1.1.3         Code of civil law, 1958 edition ................................................................................ 34

          3.1.1.4         Law n° 2001-37 of August 27, 2002 on the legal organization in Republic of Benin
                          34

          3.1.1.5  Code of Civil Procedure: An annotated collection of the texts from the code of civil
          and commercial procedure applicable in French West Africa by Gaston Jean BOUVENET. ..... 34

          3.1.1.6         Persons and family code (Law n° 2002-07 of August 24, 2004) ............................. 35

          3.1.1.7     Law n° 2002-015 of December 30, 2002 on the status of the profession of notary
          public in Republic of the Benin. ................................................................................................. 35

          3.1.1.8     Law n° 97-028 of 25 January 1999 on the organization of the local administration
          in Republic of the Benin. ........................................................................................................... 35

          3.1.1.9    Law n° 97-029 of January 15, 1999 on the organization of the Communes in
          Republic of the Benin ................................................................................................................ 35

      3.1.2           List of the laws specific to land conflicts ..................................................................... 35

          3.1.2.1         Laws pertaining to both traditional and modern civil matters ............................... 36

          3.1.2.2         Laws pertaining to traditional civil matters ............................................................ 37

          3.1.2.3         Laws pertaining to modern civil matters ................................................................ 37

          3.1.2.4         Laws pertaining to administrative matters ............................................................. 38

    3.2      STRENGHTS OF THE CURRENT MODES OF SETTLEMENT ............................................ 39


                                                                                                                                                 3
    3.3       WEAKNESSES OF THE CURRENT MODES OF SETTLEMENT .............................................. 40

       3.3.1            Presentation of the weaknesses ................................................................................. 40

       3.3.2            Impacts of the weaknesses ......................................................................................... 43

           3.3.2.1          The small volume of settled conflicts ..................................................................... 43

           3.3.2.2          Excessive cost .......................................................................................................... 45

           3.3.2.3          Processing time for the legal procedure ................................................................. 46

    3.4   SOCIAL AND CULTURAL FACTORS LIKELY TO IMPEDE ON THE IMPLEMENTATION OF
    THE REFORM ............................................................................................................................... 47

    3.5       RESOLUTION OF LAND CONFLICTS AT THE INTERNATIONAL LEVEL ............................. 50

    ONE OF THE THEMES OF STUDY 3 IS TO PRESENT INTERNATIONAL EXPERIENCES FOR THE
    RESOLUTIONS OF LAND CONFLICTS WHICH ARE LIKELY TO HELP IMPLEMENT THE REFORM IN
    BENIN. ......................................................................................................................................... 50

4      RECOMMENDATIONS ............................................................................ 52

    4.1       IMPROVING THE LEGAL FRAMEWORK .............................................................................. 52

    4.2       MEASURES PROMOTING ACCESS TO THE JUSTICE SYSTEM AND SHORTER PROCEDURES 52

    4.3       MEASURES TO ENSURE THE AUTHORITY OF THE LAW IS RESPECTED BY EVERYONE ..... 53

    4.4       MEASURES FOR MITIGATING LAND CONFLICTS AND SECURING LAND............................ 54

5      CONCLUSION......................................................................................... 55

6      APPENDIX ............................................................................................. 56




                                                                                                                                                      4
List of diagrams, figures and tables

      Figure 1:       Proportion of land conflicts recorded by the administrative bodies
                        ..................................................................................................... 11
      Figure 2:      Proportion the land conflicts cases referred to magistrates and
                      officers of the law ....................................................................... 11
      Figure 3:      Frequency of the land conflicts submitted to the
                      administrative structures and to the jurisdictions ....................... 13
      Figure 4:      Distribution of the main causes of land conflicts by frequency .. 14
      Figure 5:      Proportion of cases settled, abandoned or in progress over the three
                       last years ..................................................................................... 43

      Table 1:   Annual average volume of requests relative to the land conflicts
                  submitted to the jurisdictions ....................................................... 12
      Table 2: Statistics of the cost involved in the procedure for conflicts
      settlement according to the identified authorities and the litigants .................. 43
      Table 3: Frequency of the duration of the legal procedure .......................... 44
      Table 4: Frequency of the difficulties encountered with the legal procedure 45




                                                                                                                              5
ABBREVIATIONS AND ACRONYMS

AOF:        French West Africa

CNAD:       National commission for Domanial Affairs

CPC:        Code of Civil procedure

DDET:       Direction of Domains, Registration and Stamp

OAU:        Organization of African Unity

SAD:        Department of Domanial Affairs




                                                           6
1   GENERAL INTRODUCTION

       The Government of the Republic of Benin and the Government of the United
States of America, acting through Millennium Challenge Corporation (MCC) have
entered into a Compact (the "Compact") for technical assistance to help advance
economic growth and eliminate poverty in Benin.

The Government of Republic of Benin created an agency called Millennium Challenge
Account (MCA-Benin) to execute and implement the tasks of the technical assistance
defined in “the Compact”.

One of the objectives of the Compact is to support the increase in capital expenditure
and the promotion of the private sector in Benin. This increase cannot be achieved
without securing property rights and subsequent land investments.

       For this reason, the Government of Benin has planned to carry out a series of
reforms of the legislation and land policy and improve the land administration. A
consultant was selected to write a series of reports, among which one relative to land
conflicts and especially regarding their importance among the cases filed with the
jurisdictions as well as administrative and customary bodies.

       Following this evaluation, the consultant is asked to analyze the modes of
settlement of the aforesaid conflicts by the different institutions and to suggest
mechanisms leading to an effective resolution of the litigations. These mechanisms
will have to enable citizens to have easy access to the settlement structures, both in
urban and rural areas.

       The populations of Benin have increasingly experienced land disputes since the
end of the 19th century when the concept of land tenure was introduced by the French
colonizer.

        Indeed before the introduction of the concept of property as it is meant by the
civil code, land tenure was collective and land was inalienable.

        This conception of land tenure was binding on all the members of the
collective.




                                                                                     7
       With the arrival of the French colonizer and his Civil Code, there has been an
evolution of mentalities leading to a progressive abandonment of collective land
ownership starting with the South of the country.

        This Cultural Revolution gradually extended to other parts of the country and
today, all the departments are dealing with conflicts relative to land tenure.

       Land has today a commercial value and the concept of private ownership has
been forced upon most areas of the country.

1.1 Context and Justification


      Because land must also be a means of development, it has become urgent to
carry out a reform of the domain and land tenure system in Republic of Benin in order
to strengthen the various programmes aiming to increase the agricultural production on
the one hand and on the other hand making land a means of access to credit and
therefore a cashable asset.

      For this purpose, it is necessary to conduct a situation analysis of the
framework for land conflicts settlements and their effectiveness.

       Indeed the legislative and regulatory framework in terms of land tenure
remains mainly unsuited to the current situation of the conflicts.

       The various bodies commissioned to settle the land litigations do not meet the
expectations of the citizens.

       The duration of the legal procedures is excessive and the decisions or sentences
delivered by other bodies are ineffective since they can be called into question by court
decisions.

       From a legal stand point, the existence of a dual legislation (the custom and the
modern law) constitutes a major obstacle to the achievement of the development goals
defined by the Government through various programs.

        Land reform constitutes an important goal and the unification of the land
legislation a paramount stage of this reform.

        It is confronted with the existence of a customary law which is not codified but
is applied by the jurisdictions according to an oral procedure and random modes for
administering evidence.

       This customary law governs the majority of lands in Benin.

                                                                                       8
       Concurrently to this customary procedure, is a modern law procedure based on
the provisions of the civil code and which applies to registered lands or lands for
which there exists an administrative title such as the habitation permit.

       Unfortunately this land registration procedure remains inaccessible to most
populations because the formalities required are expensive and cumbersome.

       Likewise, it is still difficult for citizens to have access to the legal procedures
because they are costly, lengthy and the jurisdictions are remote.

         It is therefore necessary to simplify the registration procedure in order to allow
for its generalization and acceptance by the populations, make land justice accessible
to all citizens and ensure a fair trial leading to a decision delivered within a reasonable
time which can be enforce.

        The present study will focus on land conflicts, their volume and their
importance, their typology and their settlement to determine the strengths and
weaknesses of the current system in order to suggest more efficient modes of
settlements which meet the needs of the populations and reach the development goals
of the government.

But some socio-cultural factors can hinder the implementation of these reforms.

This is why this report will identify a few of the factors mentioned above before
analyzing land conflicts and their modes of settlement.

1.2 Methodology and Analysis Instruments
       According to the specific strategy for this study, the methodological approach
used is both qualitative and quantitative.

       In addition to the steps suggested in the specific strategy, a documentary
review was first performed.

       Hence, the main steps followed were:

        Step 0: Documentary review: this step consisted in the review of all legal
         texts and other documents relative to land conflicts.
        Step 1: Collection and analysis of data concerning land conflicts and their
         settlement modes and procedures.
        Step 2:1st sociological analysis: it enabled the evaluation of the main socio-
         cultural, traditional and historical aspects of land tenure within different
         regions and ethnic groups.
        Step 3: 2nd Sociological analysis: it enabled the determination of the real
         causes (principal causes) which are at the root of land conflicts.


                                                                                         9
       Step 4: Analysis of the relationship between the various types of conflicts
        and the modes of resolution
        The instruments used for the study are:

      -   Survey sheets including questionnaires for data collection. These are
          individual record sheets submitted to those surveyed. These questionnaires
          were conceived beforehand and adapted to each target group.
      -   The statistical analysis and graphs presentation. The descriptive statistics
          were used and helped calculate the various frequencies. In the same way, the
          central tendency indicators (average) and the dispersion (standard deviation)
          were calculated, and the drawing of data graphs summarized in tables.

      o   Workflow Plan.

       The survey was carried out according to                 a    time   chart.   The
investigators/surveyors were divided into groups by areas.

       The surveys consisted of direct meetings and interviews with the individuals
from the target groups.

      o   Targets Groups and Sampling

       The survey was carried out on the following target groups:

              At the level of justice system:
                    Conciliation courts – Magistrates – Lawyers – Bailiffs –
                        Notaries – Surveyors.
                At the level of the administrative bodies
                      Prefects – Mayors – Service of the Domanial Affairs
                At the level of the contending parties
                      Holders of Land Title or Habitation Permit or Sale‟s
                        Agreement.
                      Occupants with no title
                At the level of the Government
                      Ministry for Finances, DDET, Legal Agency for the Treasury
                The sharecroppers
                The family collectives
                At the level of the customary authorities
                Kings – Chiefs of Land – wise men and notables




                                                                                     10
2 SITUATION ANALYSIS

2.1 Land conflicts

        Land conflicts concepts apply to all situations in which are involved
individuals or groups of people whose goals, actions or emotions regarding land
tenure, are incompatible and lead them to be opposed.

       These are disagreements, controversies and disputes over property rights.

       The present study evaluates the volume and the importance of land conflicts
and analyzes their typology.


2.1.1 Volume and importance


2.1.1.1 Estimate of the volume and weight of the cases submitted to the
        administrations.

        The administrative bodies, especially the mayorships are very much involved
with land conflicts and their settlement because of their proximity to the population.
Moreover, these are the structures in charge of parcelling, issueing administrative
certificates, rehousing certificates etc. For this reason they are often approached by the
populations to settle land conflicts. According to the data collected on the ground, the
annual number of requests relative to land tenure recorded by these structures
(mayorships and prefectures) varies between 10 and 7,200; the average being 829 with
a standard deviation of 1755.42.
        Figure 1 presents the distribution of the administrative bodies according to the
frequency of the conflicts. From this analysis it can be seen that for 35% of surveyed
structures, land conflicts represent over 75% of cases. Though this category of
structures is in equal proportion with the ones for which the proportion of cases
relative to land conflicts is less than 25% of all cases, it is nevertheless one of the most
important categories. In addition, for 15% of these bodies, this proportion varies
between 50 and 75%. These results show the large number of cases relative to land
conflicts at the level of the administrative bodies.




                                                                                         11
     Figure 1: Proportion of the land conflicts recorded by the administrative bodies


2.1.1.2 Estimate of the volume and weight of the cases submitted to the
        jurisdictions.

       The statistics indicate that land conflicts represent a significant proportion of
the cases submitted to the jurisdictions. Figure 1 presents the proportion of land
conflicts among the cases brought to the attention of the jurisdictions or law firms.




        Figure 2: Proportion of land conflict cases referred to magistrates and officers
of the law

      From the analysis of this diagram, it can be seen that for more than half of the
magistrates and officers of the law surveyed (50.6%) land conflicts represent nearly
                                                                                        12
 25% of the cases referred to their jurisdiction or law firm. This relatively negligible
 proportion is rather significant when one knows that these stakeholders deal with a
 broad range of cases. Moreover, land conflicts take up nearly 50% of the cases
 processed by 35% of these stakeholders. These results reveal that land conflicts are an
 increasingly alarming reality today. The important number of lawsuits relative to land
 conflicts easily shows the importance of land in our societies.

        Moreover, an evaluation of the number of requests received every year by these
 stakeholders reveals that this number varies between 1 and 2000 with an average of
 120. This supposes that at the national level, each jurisdiction receives approximately
 120 requests relative to land tenure every year. At the regional level, the frequency of
 land conflicts differs from one area to the other. (See table 1)

         Table 1: Annual average volume of requests relative to land conflicts submitted
 to the jurisdictions

              LOCALITIES                        AVERAGES
              Kandi                             35
              Parakou                           26.78
              Cotonou                           154.27
              Lokossa                           109.5
              Abomey                            69.33
              Ouidah                            707
              Natitingou                        40.2
              Oporto-Novo                       92.43
                Source: Survey Data 2008

         The data in this table indicate that from all the courts in the country, the court of
 Ouidah (707) registers the greatest number of land conflicts cases every year. It is
 followed by the court of Cotonou (155). These rates can be explained by the fact that,
 in the localities covered by these courts, there is an apparent development of the land
 market, a development caused by the population growth and by urbanization. This has
 lead to increased stakes with regards to land and to the parallel development of an
 informal land market which is a potential source of land conflicts. The fact that the
 situation in Lokossa is similar to the one in Cotonou is not suprising. Indeed, the
 Plateau Adja, according to several reports, is the region where land acquired
 commercial value very early and gave rise to land transactions, which has lead to the
 scarcity of land as well as an important number of land conflicts.
         The fact that the annual average volume of land conflicts (109) at the court of
 Lokossa is close to that of the court of Cotonou should therefore not be surprising.

       The following chart summarizes the proportions of land conflicts processed by
the courts and by the administrative bodies.
       From an analysis of this chart, it can be deduced that land conflicts are an
alarming reality today. Whether from the legal system or the administrative bodies,

                                                                                           13
those surveyed made it clear that land conflicts represent a significant share of the cases
submitted to them.

       No effective policy for the reduction and resolution of the land conflicts could
therefore occult the question of reinforcing the coordination between the institutions
involved.




         Figure 2: Frequency of land conflicts submitted to the administrative structures
 and to the jurisdictions.


 2.1.2 Typology of land conflicts

         The land conflicts surveyed during the present study are generally of a social,
 economic, administrative nature and linked to natural resources (land, pasture,
 fisheries, forests, etc…).
         They either oppose two collectivities arguing over a domain or the limits of a
 domain, or an individual person against his collectivity following the sale of a
 collective land without the consent of the family council, or the usurpation of property
 rights. They also oppose two individuals of the same collectivity or the same family
 and are therefore linked to succession. They can also oppose two individuals bound by
 a sales agreement, a private individual against an administration in the event of an
 expropriation, or they can be disputes over the boundaries of communes.
         The causes of land conflicts are many. The chart from figure 4 shows the
 importance of the principal causes identified by several stakeholders.




                                                                                        14
     Figure 4: Distribution of the main causes of land conflicts by frequency

     An analysis of this graph shows that more than 90% of contending parties are in
court to claim or challenge a property right; 63.3% of the requests received by
officers of the law, relative to land conflicts, are filed to claim or challenge a
property right. This rate is of 42.1% at the level of the administrative institutions.
Consequently, the main causes of land conflicts are the challenge or claim of
property rights, since all other identified causes such as “usurpation of property
rights , problems of delimitation, and multiple sales of the same parcel”, find their
origin in the claim or the challenge of property rights. As a proof, when asked “what
are you claiming” the contending parties answer automatically “I am claining my
property right”. These are generally parcels bought and later challenged by the
descendants of the owner who sold the land, or lands resulting from the system of
share-cropping or simply lands donated which the descendants are claiming and the
beneficiaries are challenging. These are also sales of the same parcel to several
people which leads to conflicts between the purchasers of that parcel. The conflicts
occur because most marketed lands are not registered in the land registry. One
notices indeed an tension between the modern legislation and the customary
principles and practices. The other source of conflicts is the division of inherited
properties resulting in inequality in the partition of lands, the sale of the land without
the consent of the family council and the exclusion of women from the partition of
land. 25.5% and 11.1% are the respective percentages of land conflicts relative to
the succession received by the legal system and administrative bodies. The
importance of this cause of conflicts is explained by the fact that traditonnally land is
transmitted by way inheritance without formalities.

       Several other causes are at the root of land conflicts in Benin; these are for
instance:


                                                                                       15
           Overstepping on the boundaries between farmers;
           Transformation of a grazing land into a field crop
           Refusal to give right-of-way to animals
           Encroachment on pastoral space
           Transformation of occupation rights, usufruct and the lands leases into
            property rights
           Illegal allocation of property titles by the administrative structures in
            charge of land
            The populations„ignorance of the parcelling process
           The parcelling work is challenged by the populations
           Several persons hold a property title for the same parcel
           The land heritage of the State or Communes is poorly managed by the
            administrative authorities
           the refusal to accept court decisions
           the absence of property titles in the rural areas
           poverty
           land Conflicts between citizens and the Government
           The eviction of occupants with no title
           Poor rehousing and poor allocation of parcels
           the non-respect of the terms of agreement for share-cropping, in particular
            the transformation of the share-cropping into property rights
           Problems between migrants and locals;
           refusal of the owners to accept the reduction factor which is the result of
            the parcelling
           swindle
           leases for residential or commercial use
           intercommunal conflicts
           land frauds orchestrated by some surveyors in charge of parcelling
           Parcelling poorly carried out,
           Parcelling performed late and, the non formalization of the domanial
            registries
           illegal and unchecked occupations of the public domains
           land trafficking, expropriations

        In view of these multiple causes, it can be seen that the problems associated
with parcelling are of extreme importance. Indeed, both the parcelled out areas and the
areas where “primitive lands” still exist experience conflicts. In the first case, it is
poorly carried out parcelling, the ignorance of the populations regarding the
procedures and the operations for parcelling, the non-acceptance by the populations of
the coefficient of reduction resulting from the parcelling and especially the supposed
ill intention of some surveyors which are at the root of the conflicts. It is therefore
urgent to make the populations aware of the importance of parcelling and its various
operations and to take appropriate measures for carry out transparent parcelling
operations .



                                                                                     16
       In the second case, it is the lands held under the customary system, with no
boundaries and unclear limits.
      It is therefore urgent and necessary to proceed to the parcelling of these areas.

        The poor management of some administrative authorities who take pleasure in
illegally delivering “property titles” leads to several people holding property titles for
the same parcel.
        The land reform undertaken must lead to new ways of preventing these multiple
        conflicts.



2.2 Modes of settlement of conflicts:

        The land or domanial conflicts are settled either by the customary authorities
and administrative bodies (Conciliation) or by the judicial and administrative
jurisdictions (legal settlement).

        The conciliation by the customary authorities and the administrative structures
is not mandatory. The decision or the solution resulting from the conciliation is neither
mandatory nor definitive. The parties concerned can, at any time, challenge the
decision by filing a lawsuit.

       The jurisdictions in charge of settling land conflicts are either legal, or
administrative. Their decisions have the authority and force of res judicata provided by
the laws.


2.2.1 Conciliation by the customary authorities

        The customary authorities who intervene in the settlement of the conflicts are:
family chiefs, chiefs of family collectivities and kings. The conciliation procedure
carried out by the customary authorities is not codified: it unfolds according to the
following steps:
    1) Verbal complaint by one of the litigants or intervention (automatically) of the
       customary authority.
    2) Invitation of the other litigant (in the case of complaint) or setting the date of
       the settlement meeting. The invitation is done by way of a messenger.
    3) Holding the settlement meeting.

   This consists of:

          -   the customary authority hears the plaintiff or designated party;
          -   answer of the other party;
          -   comments and assessment by the members of the family or collectivity
              invited or by the royal court;

                                                                                       17
            -    where necessary, the authority or the delegate visit the site under dispute;
            -    the immediate decision of the authority or withdrawal of a select group
                 or of the court for proceedings and judgement.

    4) Enforcement of the decision through an onsite visit for cases of adjustement of
        boundaries.

        In order to enforce the decision a few drinks can be offered or a symbolic
        settlement fee can be paid.


2.2.2 Conciliation by the administrative bodies.

        The involvement of all local and even administrative authorities is requested for
the settlement of land conflicts in Benin1. These are:
    - The local authorities: the chief of village, the chief of district (arrondissement),
        mayors, prefects, commanders of the gendarmerie squads/head of the state
        police unit, etc…
    - The national authorities: the Ministry in charge of the Local Administration, the
        Ministry of Defense, the Presidency of the Republic.

       This type of conciliation is not codified; practices were instituted at the level of
the CNAD and the Service for Domanial Affaires in the Communes.
    Generally the steps hereafter are followed:
    1) Letter of complaint from one of the litigants or visit by a delegation of the
       litigant‟s collectivity ;
    2) in case of an emergency, immediate prohibition to one or all the parties
       involved to access the site under dispute2;
    3) Invitation or summons of the parties;
                                        3
    4) Holding the settlement meeting ;
       The settlement consists of:
           - reading of the complaint by the authority or his delegate;
           - answer of the other party and proof of the allegations;
           - where necessary, a visit to the site under dispute;
           - decision-making or recommendation.

       The decision of the administrative authority is sometimes done in a writing:
(commitment, minutes of the amicable settlement or minutes of the refusal to settle out
of court/non conciliation, etc)


1
  This request can be explained by several reasons: ignorance of the legal procedures, attempt to maintain
peace and harmony, research or implementation of relational or political support, etc...
2
  The assessment of the urgency is done by the court to which the case was referred and sometime leads to an
arbitrary decision
3
  Sometimes the proceedings translate into a series of injunctions to one or the other of the parties with no
contradictory debates

                                                                                                           18
2.2.3 Procedures for the legal settlement of land conflicts

       The jurisdictions which deal with domanial or land conflicts are of two types:
judicial and administrative jurisdictions.

       Before the advent of law n° 2001-37 of August 27, 2002 on the organisation of
the legal system in Republic of Benin, these two jurisdictions were regulated by
different laws.

       The law of August 27, 2002 created an administrative chamber both at the level
of the first instance courts and of the Court of Appeal (articles 49, 53, 61, 65, 66 and
67).

       But, this law provided in its transitional provisions that on administrative
matters, the administrative chamber of the Supreme Court will continue to hold
jurisdiction until the installation of the administrative chambers of the Courts of
Appeal and First Instance Courts (article 84).

      The administrative jurisdiction remains the administrative chamber of the
Supreme Court. It is from now on governed by laws n°2004-07 of October 23, 2007
and n°2004-20 of 17 August 2007 repealing ordinance n°21/PR of April 26, 1966.

        The judicial jurisdictions are
- Conciliation Courts,
- First Instance Courts
- Courts of Appeal

The procedures for legal settlement vary according to the type of jurisdiction.


2.2.3.1 At the level of the judicial jurisdictions:

        Are to be distinguished four types of procedures corresponding to the four types
of jurisdictions: the conciliation court, the traditional civil court, the modern civil court
and the court of summary procedure for civil cases (eviction)


2.2.3.1.1 Conciliation procedure before the conciliation court

       It is now mandatory to refer the case to the conciliation court (article 121 Law
n° 2007-03 of October 16, 2007 pertaining to rural land tenure in Republic of Benin).
       It must be specified that the mandatory character of the conciliation already
existed (art 33 Decree of the 03/12/1931), but was repealed by the Law of August 27,
2002.

                                                                                          19
    The procedure follows these steps:
       1) Request or complaint by one of the parties
       2) Registration and setting of the date of hearing
       3) Summons of the parties
       4) Holding of the hearing: contradictory debates
       5) Visit the site under dispute if necessary.
       6) Establishing the minutes recording the end of the conciliation attempt
        Minutes of conciliation proceedings in the event of an agreement reached by
          the parties
        Minutes of non-conciliation proceedings in the event the conciliation
          attempt fails



2.2.3.1.2 Traditional legal procedure

       Are to be distinguished: the trial procedure, the appeal procedure and the
    procedure before the judicial chamber of the Supreme Court.

       The traditional procedure is followed when the litigation relates to lands of
    customary tenure for which there is no land title.


2.2.3.1.2.1 The traditional civil procedure in First Instance
        It is the procedure for the settlement of land conflicts relative to lands under
    customary tenure, i.e. non-registered lands.

        This procedure is regulated by the Organic Decree of December 03, 1931
    pertaining to the reorganization of the local justice in French West Africa and the
    subsequent texts.

        a) Characteristics of the procedure

        The legislator wanted the traditional civil procedure to be compatible with the
        customs and it identified by the following characteristics:
        - Simplicity of the procedure with the aim of reconciling the parties and
           rendering justice accessible to all.
        - Excessive power held by the President of the Court (for the summons and
           the hearing of witnesses etc)
        - Bailiffs are prohibited from intervening in the acts except with the formal
           consent of the parties (art 9 Decree 03/12/31)
        - Adjunction of one (1) or two (2) assessors in an advisory capacity (art 55
           Law 2001-37 of 27/8/02)
        - Exclusive application of the parties‟ custom (art 6 Decree of 03/12/1931)



                                                                                     20
   -   Public and contradictory character of the debates (with possibility of being
       held in camera)
   -   Assistance of an interpreter
   -   Possibility to make an oral request or to lodge an appeal before the court.
       But nowadays, it is left the parties themselves to take all the necessary steps
       with regards to summons, to getting authenticated copies of the transcript of
       a judgement and more.

   In the same way, the absence of formal procedures is no longer carefully
respected, and the services of bailiffs are increasingly being used to serve
subpeonas.

    The Court is increasingly implementing a number of provisions from the code
of civil law.

   b) Steps of the procedure

The procedure unfolds according to the following steps:

1) An application initiating proceedings addressed to the President of the Court;
    No formalism is required;
2) A hearing of the request;
3) Summons of the parties;
   The parties are summoned to the hearing by the the President by way of a
simple summons. In practice, it is the plaintiff who takes care of serving the
summons to the defendant(s);;
4) Appearance of the parties;
       The parties must appear personally or through a representative chosen
among their relatives. Representation by a lawyer is not allowed. The latter can
only assist his client.
5) Conciliation attempt;
This attempt is optional since Law 2001-37 of August 27, 2002 was passed and can
happen at any moment during the procedure if the judge decides so (article 55 of
the law)
6) Issuing of an ordinance of unvailability for the parcel under dispute in the event
of a request or need.
7) Proceedings (public and contradictory);
  They are held by:
    - statement of claims by the applicant;
    - statement of defence by the defendant;
    - the hearing of the witnesses;
    - oral or written observations of the advisers if necessary;
8) Closure of the hearings and adjourning
9) Adjudication.

   N.B: The following steps can be followed if applicable

                                                                                   21
10) The notification of the judgment to the defaulting party if necessary

11) The settlement of points of law :
      - Expert reports (topographic, graphological, etc);
      - onsite visits;
      - declinatory plea, plea of lis pendens and of related cases;
      - stay of proceedings for inventory and deliberation;
      - resumption of the hearing (in the event of the death of one of the parties);
      - additional provisional requests and counterclaims;
      - voluntary third party intervention and/or introduction of third parties;
      - dismissal for want of prosecution;
      - amendment and construction of judgements.



2.2.3.1.2.2 Traditional civil procedure at the Court of Appeal:

       The rulings of the courts that have jurisdiction in traditional civil proceedings
can be appealed.

        a) Characteristics of the procedure

    It should first be noted that the right of appeal is recognized to the parties in person
or their representatives and to third parties adversely affected. The time limit for filing
an appeal is of one (1) month.
    The time specified for filing an appeal and the motion to appeal suspend the
enforcement of the judgement until the Appelate Court rules.
    The Court of Appeal has cancellation and withdrawal authority

        b) Steps of the procedure

         The appeal and the judgment by the Court of Appeal proceed as follows:
   1)   Written or oral statement duly recorded and signed in the registry of the appeals
        held at the clerk's office of the court that rendered the judgment;
   2)   Transmission of the trial brief to the Court of Appeal by the First Instance
        Court;
   3)   Hearing of the case by the clerk's office of the Court of Appeal;
   4)   Summons of the parties (at the care of the parties);
   5)   Appearance of the parties;
   6)   Contradictory debates;
   7)   Decision of the court ;
   8)   The party in whose favor the judgement was rendered requests the writ of
        execution;
   9)   Issuance of the writ of execution.


                                                                                         22
        The judgment of the Court of Appeal is rendered as a last resort.

         However, an appeal to the Supreme Court is possible.

       The appeal lodged against the judgements of the Traditional Chamber of the
Court of Appeal are examined by the judicial chamber of the Supreme Court.

2.2.3.1.2.3 Procedure before the judicial chamber of the Supreme Court

        a) Characteristics of the procedure

   The time limit for lodging an appeal to the Supreme Court is of three (3) months
from the day the Court of Appeal makes its decision.

    The appeal does not have the effect of a staying of enforcement . It is opened to all
the parties.
    It is a written procedure. However, the parties can be authorized to orally develop
their conclusions at the hearing.

        b) Steps to be followed:

        The procedure for the reversal of jusgement proceeds according to the
following steps:
    1) It is mandatory for the appellant in cassation to be represented by a lawyer at
       whose office he elects domicile.
    2) Statement of appeal filed at the clerk's office of the Court of Appeal
    3) Transmission of the brief to the Supreme Court by the clerk's office of the Court
       of Appeal;
    4) Registration of the case and formal notification by the chief registrar of the
       appellant in cassation against a deposit of fifteen thousand (15000) francs
       CFA4;
    5) The chief registrar sends the brief to the President of the Supreme Court;
    6) The Chief Justice of the Supreme Court refers the case to the Judicial Chamber
    7) The Chief Justice of the Chamber chooses an adviser-reporter;
    8) The adviser-reporter does the preliminary investigations for the case;
    9) If he considers the application for appeal manifestly inadmissible, the Chief
       Justice of the Chamber can decide there is no need for preliminary
       investigations. Then, the case is sent to the public procsecutor for enrolment.
       The parties are given a deadline to submit their statements of case. This
       deadline cannot be shorter than a month unless it is shortened by an ordinance
       from the Chief Justice of the Supreme Court;



4
  It is envisaged that a few persons are exempted of this consignment, namely legal persons governed by public
law and THE beneficiaries of legal aid (art 7 of law 2004-20 of 17/8/2007).

                                                                                                           23
   10) The chief registrar communicates the documents pertaining to the case to the
       other parties;
   11) The parties submit written statements and documents to the Court;
   12) The adviser-reporter writes the report and the draft decision and passes on the
       case to the public procsecutor;
   13) The Chief Justice sets the date of the hearing;
   14) The list of cases is posted at the clerk's office;
   15) Notification of the date of the hearing sent to the lawyers and the defendants;
   16) Judgment given in open court.

   The judgments delivered are contradictory even in the absence of the parties.

    In the event of a reversal of judgement, the case is referred back to another
jurisdiction of the same order or to the same jurisdiction differently composed.


2.2.3.1.3 Legal procedure in modern civil matter:

       Characteristics

    This procedure is followed when there exists a property title (land title) or an
administrative document (habitation permit or deeds from the official parcelling) for
the parcel or domain under dispute.
    The modern civil procedure is a written procedure regardless of the levels of the
jurisdiction


2.2.3.1.3.1 Before the First Instance Court

        The legal procedure before the First Instance Court unfolds as follows:
       1) Writ served by a bailliff at the request of the plaintiff;
       2) Enrolement of the subpoena at the clerk's office of the court before the day
          of the hearing;
       3) Preparing the brief for this hearing and other subsequent hearings :
          - The plaintiff sends the documents to the defendant beforehand;
          - The plaintiff submitts the documents for the brief;
          - Conclusions (observations) of the defendant to be communicated to the
              plaintiff;
          - The defendant‟s conclusions are recorded in the brief ;
          - The plaintiff‟s replication is communicated to the defendant ;
          - The plaintiff‟s replication is recorded in the brief ;
          - Closure of the preparation for hearing and adjourning.

       4) Decision of the court;
       5) Request (verbal) of the original copy and payment of registration fees in the
           event there is neither an appeal nor an objection ;

                                                                                         24
       6) A record of the judgement is kept at the Direction of Domains, Registration
           and Stamps (DDET);
       7) Affixing the executory formula.

       PS: Objections on a point of law are often noted and their settlement lengthens
       or delays the preparation of the case for hearing.
       To the objections enumerated in the paragraph for the traditional procedure are
       added:
           - pleas in bar
           - security deposit to cover the costs of judicial proceedings (deposit
              required for foreign plaintiffs)
           - Pleas of voidance.


2.2.3.1.3.2 Procedure of appeal:

   The appeal is open to the parties and intervening parties.
   The time allowed for filing an appeal is of :
       2 months starting from the date of the judgement for a judgement after trial
       2 months starting from the date the objection will no longer be admissible
         for a judgement by default (article 2 Decree of 29/08/1863)

          The procedure itself proceeds as follows:
          1) Act of appeal with assignment by a bailiff on behalf on the plaintiff;
          2) Registration of the original act of appeal at the clerk's office of the court
             before the day of the audience:
          3) preparation;
             - Submission of a copy of the challenged judgment and the conclusions
                 of the appeal by the plaintiff;
             - Answer to the conclusions of appeal by the respondent;
             - Production and communication of proofs;
             - Debate closure and setting on of deliberated;
          4) Decision of the Court of Appeal;
          5) Request (verbal) of the original copy and payment of registration
          6) A record of the judgement is kept at the Direction of Domains,
       Registration and Stamps (DDET)
          7) Affixing the executory formula
          8) Delivering the original copy of the decision to the winning party for enforcement
       purposes


2.2.3.1.3.3 Procedure for a reversal of judgement

       a) Special characteristics



                                                                                   25
        The appeal for the reversal of judgement is opened to the parties. However, the
public prosecutor can lodge an appeal ex officio on a point of law with the highest
court of justice inclusively (art 47 Law n° 2004-20).

       Deadline for filing an appeal to the Supreme Court:
         - three (3) months starting from the date of the judgement for a judgement
            after trial
         - three (3) months from the day the grounds for the decision are given or
            from the day if the judgement was served, for a judgement by default.
            (Article 54 Law n° 2004-20).

         b) Steps of the procedure:

       The following formalities and documents are mandatory:
             1) The appellant must be represented by a lawyer at whose office he
                 elects domicile
             2) The appellant in cassation makes an oral or written statement before
                 the clerk‟s office of the court which delivered the decision (art 47
                 Loi n° 2004-20)
             3) The registrar writes down the statement for appeal in the registry with
                 in appendix the document declaring the appeal necessary (art. 48 Loi
                 n° 2004-20)
             4) The opposing parties are notified of the appeal lodged before to the
                 Supreme Court no later than a month after the appeal by the chief
                 registrar of the court which delivered the contested decision. (art 49
                 Law n° 2004-20)
             5) Within a month the registrar makes a list of all the documents for the
                 case and sends it to the public prosecutor who immediately forwards
                 it to the Chief Prosecutor of the Supreme Court. (art. 50 Law n°
                 2004-20)
             6) The case is registered at the clerk‟s office of the Supreme Court and
                 immediately sent to the Chief Justice by the chief registrar (art. 11
                 Law n° 2004-20)
             7) The Chief Justice of the Supreme Court refers the case to the judicial
                 Chamber (art. 11 Loi n° 2004-20)
             8) The Chief Justice of the Chamber chooses an advisor-reporter (art. 11
                 Law n° 2004-20)
             9) The adviser-reporter conducts and prepares the case
             10) The parties are given a deadline to submit their statements of case.
                 This deadline cannot be shorter than a month unless it is shortened by
                 an ordinance from the Chief Justice of the Supreme Court;
             11) The documents pertaining to the case are communicated to the other
                 parties by the chief registrar
             12) The parties submit written statements and documents to the court;



                                                                                    26
                  13) The adviser-reporter writes the report and draft decision, then passes
                      on the case to the public procsecutor5
                  14) The date of the hearing is set by the Chief Justice of the Chamber
                  15) Posting the list of cases at the court office
                  16) The lawyers representing the appelant and the defendant are given
                      notice of the date of the hearing
                  17) Judgement given in open court


2.2.3.1.3.4 Procedure for lodging opposition against a judgement

        a) Characteristics

       The motion to set aside a default judgement is an ordinary appeal procedure
open to the litigant (defendant) against whom the default decision was delivered. This
allows him to refer his case back to the court that adjudicated, asking that the case be
judged anew.

       The time allowed for filing a motion to set aside a default judgement in civil
matters is of three (3) days from the date of the notification served by the bailiff (art 20
of the CPC of 1804).

        b) Steps of the procedure

         The procedure itself follows the following steps:

    1) The notice for the motion to set aside the default judgement is served by the
       bailiff to the person who benefited from the decision and any other person
       interested at the request of the defaulting defendant.
    2) Enrolment of the notice for the motion to set aside the default judgement at the
       Court‟s clerk office .

N.B. After enrôlement of the notice of opposition, the procedure proceeds exactly as
an ordinary procedure before the court (cf civil procedure in first instance).

       The judgement rendered regarding the motion to set aside the default judgement
cannot itself be set aside; however, it can be contested through other proceedings
(appeal to the appelate court, appeal to the Supreme Court, or a third party motion to
vacate).


2.2.3.1.3.5 Third party proceedings




5
 « When there is a question of principle regarding a case or when the solution could lead to conflicting
decisions, the Chief Justice of the Chamber names a counter-reporter… » (art. 16 al2 Law n° 2004-20)

                                                                                                           27
       a) Characteristics

        The third party motion to vacate is an exceptional review procedure open to all
third parties wronged or threatened by the effects of the ruling for a case in which they
are neither party nor intervener.

        No time limit was envisaged by the legal texts in force in Benin. Nevertheless,
as written precedent, the jurisdictions use the provisions of articles 582 and 586 from
the New French Code of Civil Procedures which sets a limit of 30 years from the date
of the judgement.

       b) Steps of the procedure

       The actual procedure unfolds like the motion to set aside a default judgement
(form and steps taken).


2.2.3.1.4 Summary judgement procedure

       The justiciable make appeal to the procedure of summary procedure to make
expel the illegal occupants their plots or land, or put an end to disorders with their
possession.

       a) Characteristics

       This procedure was set up according to the provisions of article 19 of the
Decree of July 22, 1939 repeting article 13 of the Decree from November 10, 1903.

       At the end of article 19, « The chief justices of the courts, and the Justices of the
Peace with extended jurisdiction, fulfill the responsibilities assigned to the chief
justices of the first instance courts and to the Justice of the Peace by the Civil Code, by
the Code of Civil procedure, by the commercial code and by all other legal texts
regularly promulgated. »

      This text makes applicable articles 417 and 806 to 811 of the Code of Civil
Procedure (CPC) in Benin. Hence, the following is envisaged:

       Article 417 CPC : “The chief justice of the commercial court or the chief
justice replacing him will be able to receive summary cases for urgent matters as long
as they fall within the jusrisdiction of the commercial court.”

       Article 806 : « In all urgent matters, or when taking a temporary decision
regarding the difficulties relative to enforcing a writ of execution or a judgement, the
matter will be resolved as follows.”



                                                                                         28
       The conditions for the summary judgement are therefore essentially the
urgency, the absence of a serious dispute and the need to take temporary measures that
will not cause any prejudice to the merits of the case (art 806 to 809 CPC).

      Besides its speed and flexibility, the summary judgement procedure is an
adversarial system.

       b) Steps of the procedure

        The procedure follows these steps:

           1) Writ served by a baillif upon request of the plaintiff;
           2) Enrolement of the subpoena at the court‟s clerk office;
           3) Holding the hearing : arguments, submission of documents and remarks
           4) Decisions of the judge for interim injunctions (ordinance).

       PS: Objections on points of law can arise during the summary judgement
procedure, going from pleas to the jurisdiction to pleas of nullity as is the case for
ordinary civil matters.

       c) Appeal in summary proceedings

      A part from the motion to set aside a default judgement, the injuction order in
chambers can also be challenged through :

       a) an appeal to the Appelate Court
       b) an appeal to the Supreme Court

      The appeal procedures before the court of appeal and before the supreme court
to challenge the decision given in summary proceedings are the same as for civil
matters (cf points 3.2.1.32 et 3.2.1.3.3).


2.2.3.1.5 Procedure for legal settlement at the level of administrative jurisdictions


2.2.3.1.5.1 Characteristics of the procedure

 With the current legal texts and jurisdictions in Benin, the administrative litigations
   relative to land tenure are settled by the Administrative Chamber of the Supreme
   Court.

      It is what comes out of the provisions of Article 84 of the Law n° 2001-37 of
August 27, 2002 pertaining to legal organization in Republic of Benin: “In
administrative and accounts matters, the administrative and accounts chambers of the


                                                                                        29
Supreme Court have jurisdiction until the installation of the administrative and
accounts chambers of the courts of appeal and first instance courts.”

      For this purpose, the law n°2004-02 of October 23, 2007 instituted a summary
judgement procedure for that chamber (article 38)

      The administrative chamber of the Supreme Court is governed by the provisions
of law n°2004-07 of October 23, 2007 and law n°2004-20 of 17 August 2007 on the
composition, organization, operation and responsabilities of the Supreme Court.

    The procedure before the administrative chamber is a written procedure.
     The chief prosecutor presents the oral or written requisitions (article 42 of law
     n°2004-20)
    The initiation of an action for cancellation does not stay the enforcement of the
     contested judgement (art. 1 law n°2004-20). However, « at the express request
     of the applicant, the administrative chamber can, exceptionnally, order a stay of
     execution for the decisions of the administrative authorities against which the
     action for cancellation was initiated. The stay of execution can only be granted
     if the grounds put forward seem serious and if the damage incured by the
     applicant is irreparable.
    A petition for review can be made by the parties only in the following cases :
     - the judgement delivered was based on forged documents,
     - when after the ruling new documents, unknown during the debates and
         which could change the decision, are brought forward (art. 38 loi n°2004-
         20).
     The time limit for initiating a petition for review is of six (06) months from the
     time the forged documents or previously unknown documents are discovered
     (art 38 law n°2004-20). The chief prosecutor of the Supreme Court also has the
     right to request a review and the decision delivered takes effect for both parties
     ( art. 39 Law n°2004-20).


2.2.3.1.6 Steps of the procedure

      The procedure itself is set up by the provisions of articles 11 to 39 of law
      n°2004-20 and follows the steps below:
      1) The petition for a reprieve or petition to a higher authority to challenge the
         decision is addressed to the author of the decision or his immediate superior
         in view of having the order revoked or annuled.
         This petition is optional and must be submitted no later than 2 months from
         the date of publication or of notification of the contested decision (article 32
         al2 of law n°2004-20) ;
         « If the competent authority remains silent over the petition for reprieve or
         the petition to a higher authority for more than two months, this means the
         petition has been dismissed. » (art. 32 al3 loi n°2004-20 mentioned above)


                                                                                      30
        2) An application initiating proceedings in order to petition for abuse of
           discretion (ultra vires) is addressed to the administrative chambre of the
           Supreme Court. This application is signed by the applicant and his lawyer.
           When the request is initiated by a legal personnality, it is signed by the
           competent authority representing the State or interested collectivity or an
           official delegated for this purpose. (art 28 loi 2004-20)
          3) Registration of the case and formal notification by the chief registrar of the
              appellant in cassation against a deposit of fifteen thousand (15000) francs
              CFA
          4) The chief registrar sends the brief to the chief justice of the Supreme Court
          5) The chief justice of the Supreme Court refers the case to the Chamber
              (which has jurisdiction)
          6) The chief justice of the chamber chooses an adviser-reporter
          7) The adviser-reporter conducts and prepares the case for hearing.
              The parties are given a deadline to submit their statements of case. This
              deadline cannot be shorter than a month unless it is shortened by an
              ordinnace from the Chief Justice of the Supreme Court;
          8) The documents pertaining to the case are disclosed to the other parties by
              the chief registrar
          9) The parties submit written statements and documents to the court
          10) The adviser-reporter writes the report and the draft decision, then passes
              on the case to the public procsecutor6
          11) The date of the hearing is set by the Chief Justice of the Chamber
          12) The list of cases is posted at the court office
          13) The lawyers representing the appelant and the defendants are given notice
              of the date of the hearing
          14) Judgement given in open court : Decision of the administrative chamber.
        If there is no response to the formal notification, the administrative chamber
        rules (art 33 loi n°2004-20).

In this case, if it is the applicant who did not respect the deadline, he is considered to
have withdrawn his claim. ; if it is the Administration, it is considered to have agreed
with the statements presented in the petition.The order for cancellation is published
under the same conditions as the decision being revoked (art. 37 al2 loi n°2004-20)




6
 “When there is a matter of principle or when the solution could lead to conflicting decisions, the Chief Justice
of the Chamber designates an advisor counter reporter…” (art. 16 al2 Law n° 2004-20)

                                                                                                                31
3 CRITICAL ANALYSIS

       The study revealed that the current modes of settlement of land conflicts
presents major weaknesses. Their strenghts are far from equalling these weaknesses.

       The legal framework was also evaluated.


3.1 Evaluation of the Legal Framework and of the Settlement
    Institutions

      Since land registration is not mandatory in Republic of Benin, most lands are of
customary tenure.

       This situation has lead to a dual legal system. Conflicts relative to customary
land tenure are governed by the laws resulting from the customs of the parties involved
and are knowned of the courts of traditional or local jurisdiction.

      As for properties with land titles or other administrative documents freeing
them of the customary tenure, the provisions from the napoleonic code are enforced

       This discrepancy between the laws and the way land conflicts are settled
negatively affects the rulings of the different jurisdictions.

       The laws defining the general framework and the laws spefific to land tenure
were taken into account .


3.1.1 The list of the laws defining the general framework


3.1.1.1 Law n° 90-32 of December 11, 1990 on the Constitution of the
        Republic of Benin (Official Journal n° 1 of January 1, 1991)

       article 22: recognizing the individual the property right of all citizens
       article 125: enacting the independence of the judicial power with regards to
        the other authorities.
       article 126: relative to the submission of the judge to the sole authority of
        the law.
       article 131 (Al 3 and 4): enacting that the decisions of the Supreme Court
        cannot be appealed and must be respected by all citizens.



                                                                                    32
       article 59: relative to the obligation for the President of the Republic to
        ensure the application of the laws and guaranty the enforcement of court
        decisions.
       Appendix of the Constitution: African Charter on Human and People‟s
        Rights adopted by the OAU on June 18, 1981 and ratified by Benin 20
        January 1986
       article 7.1: giving every person the right to have his/her case heard in court
        including:
      - the right to refer to the appropriate national jurisdictions any action violating
        the fundamental rights recognized and guaranteed by the conventions, laws,
        regulations and customs in force
      - the right of defense, including the right to be represented by a lawyer of
        his/her own choice
      - the right to be tried within a reasonable time before an impartial court.


3.1.1.2 Law n°2004-07 of October 23, 2007, on the Composition,
        Organization, Operation and Responsibilities of the Supreme Court
        and Law n°2004-20 of August 17, 2007 on the Rules of Procedure
        before the Supreme Court’s legal groups.
             (Official Journal of the Republic of Benin March 15, 2008)

      a) Law n° 2004-07 of October 23, 2007.

    article 32: determines the general responsibilities of the Supreme Court,
    article 33: gives the Supreme Court a permanent mission of inspection towards
     all the jurisdictions.
    articles 35-39: sets the responsibilities of the administrative chamber.
    articles 40-41: determines the responsibilities of the judicial chamber

      b) Law n°2004-20 of August 17, 2007

        article 1: reads that the initiation of an appeal to the Supreme Court or of an
   administrative law appeal does not stay the execution of the ruling or of the
   contested decision save for exceptions provided by the law
        article 3 : mandates that the appelant be represented by a lawyer to lodge
   or to follow up on an appeal before the Supreme Court, except for matters of
   illegality proceedings
        article 32 : sets the time limit for illegality proceedings
   This type of appeal is commonly used to challenge administrative ordinances in
   general, but more specifically ordinances on habitation permits and ordinances on
   the allocation of parcels
        article 54 : sets the time limit for an appeal to three (3) months.



                                                                                      33
3.1.1.3 Code of civil law, 1958 edition

      Article 543 and following regulate the property right.

       article 2262 : on the prescription after thirty years
       Disputed parcels for which there exists a land title or habitation permit are
      subject to the requirements of the Code of civil law regarding property rights in
      conformity with the provisions in Article 19 of law n°65-25 of August 14, 1965
      on the organization of the land tenure system in Benin and to the provisions of
      Article 1 of law 60-20 of July 13, 1960 regarding the habitation permit system
      in Benin.


3.1.1.4 Law n° 2001-37 of August 27, 2002 on the legal organization in
        Republic of Benin
             (Official Journal n° 16 of August 15, 2005)

        article 6: defines the principle and exceptions of free access to the legal
   system and the State‟s obligation to see to it that this service is indeed free
        article 7: staing that : “only a lawfully constituted jurisdiction can dispense
   justice.”
        article 9 : establishing the equality of all citizens before all jurisdictions
        article 10 : establishing the possibility for all parties and witnesses to use the
   national language of their choice
        article 11 : listing the appropriate national jurisdictions
        article 26 : determining the jurisdiction of the Conciliation Court and the
   conditions for refering a case to this court
        article 49 : pursuant to which, the First Instance Courts are common law
   jurisdictions for civil, commercial, administrative matters, etc. who determine the
   monetary amount involved in settled disputes in first and last resort as well as the
   maximum amount that can be applied
        article 51 : establishing the right of appeal
   Etc.


3.1.1.5 Code of Civil Procedure: An annotated collection of the texts from the
        code of civil and commercial procedure applicable in French West
        Africa by Gaston Jean BOUVENET.
      This text organizes the procedures before the courts of law as well as various
   other procedures. But since the avent of OHADA, several provisions have been
   repealed.
   Nevertheless, are still applicable, the provisions with regards to subpoenas,
   hearings and appearance of parties, rulings, inquiries and expertise, appeals,
   exceptions and enforcement of a number of decisions (especially relative to land
   tenure).

                                                                                        34
3.1.1.6 Persons and family code (Law n° 2002-07 of August 24, 2004)
      (Official Journal n° 115 Year N°23 (a) of December 01, 2004)

       It is this law which governs the marital status, (article 33 and following), the
   legal capacity of persons (article 457 to 461) as well as the successions, donations
   (art 588 to 827) inter vivos and the wills (articles 828 to 961) since 2004.
       To go to court one must have legal capacity.
       It must also be noted that gift and inheritance rulings have an impact on land
   conflicts.




3.1.1.7 Law n° 2002-015 of December 30, 2002 on the status of the profession
        of notary public in Republic of the Benin.
       Article 1 of this law instituted notaries to receive all the deeds and contracts
   which the parties must or want to authenticate, especially regarding real preoperty,
   as stipulated in article 19 of law 65-25 of August 14, 1965.


3.1.1.8 Law n° 97-028 of 25 January 1999 on the organization of the local
        administration in Republic of the Benin.
       Among other things , this law gives the designation and determines the
   territorial responsibilities of the decentralized local authorities (article 2, 6 and 7)
   This law allows for the determination of the jurisdiction of a court rationae loci
   (local jurisdiction) and for the appreciation of the validity of deeds delivered by the
   local authorities regarding domains.


3.1.1.9 Law n° 97-029 of January 15, 1999 on the organization of the
        Communes in Republic of the Benin
      This law specifies the responsibilities of the Mayor, particularly with regards to
   regional development, urbanism, land use and parcelling. It is the Mayor who
   delivers habitation and building permits (article 84).

       It should be noted that this general framework is well regulated and considers
   all the rights guaranteed by the international legal mecanisms.


3.1.2 List of the laws specific to land conflicts

      Modern laws specific to land tenure are grouped into five (05) categories:
      - Laws common to modern and traditionnal civil matters

                                                                                        35
      -   Laws applicable in traditionnal civil matters
      -   Laws pertaining to modern civil matters
      -   Laws governing administrative matters

      These are the laws which present many weaknesses.


3.1.2.1 Laws pertaining to both traditional and modern civil matters

          These are:

a) Ordinnance n°70-3D/MJL of January 28, 1970 rendering contentious property
unavailable, ensuring court decision are being enforced and forbidding the sale of
a third parti’s immovable property.
          (Official Journal of the Republic of Dahomay, May 1, 1970)

    This law renders inalienable any property subject to judicial proceedings before the
First Instance Court or the Court of Appeal (article 1).

   The inalienability with regard to the parties goes into effect:

      -   In modern law, on the day of the subpoena, and in case there are several
          defendants, on the day of the first subpoena issued to one of them (art 2,a).
      -   In customary law, on the day the Chief Justice receives the court‟s writ of
          execution. This enactment mentions the characteristics and boundaries of the
          property rendered inalienable; it is not subject to appeal (article 2,b).
      -   The inalienability toward the third parties goes into effect on the day an
          excerpt of the subpoena or of the enactment for inalienability is posted at the
          mayorship. (article 4).
      -   In practice, this law systematically prevents the development of lands under
          dispute regardles of the type of dispute. This is detrimental to the economic
          development especially when one knowns that several lawsuits are simply
          delaying tactics.

          b) Decree of May 02, 1906, instituting a procedure for written
          testimonies of the conventions passed between indeginous people in the
          French West African colonies.
              This text is unsuited to the current situation.

          c) Instructions of October 19, 1906 for the application of the decree of
          May 02, 1906.




                                                                                      36
                d) Law n°2007-03 of October 16, 2007 on rural land tenure in Republic
                of Benin7.
                None of the implementation provisions for this law are still applied.


3.1.2.2 Laws pertaining to traditional civil matters

               a) Decree of December 03, 1931 reorganizing the local justice system in
           French West Africa (promulgation order n°151 .P of January 20, 1932).
                 This text has been completed and modified by several others, namely:
                      i. The Decree of September 06, 1934
                     ii. The Decree of July 26, 1944 modified by the Decree of April 30,
                         1946
                   iii. The Decree of April 30, 1946
                    iv. The Decree of December 27, 1954 which replaced the terms
                         colonie, indigenous, indigenous justice, etc ….
                     v. The Decree of April 30, 1946 abolishing the indigenous criminal
                         justice
                    vi. The Decree of June 30, 1946
                   vii. The Decree of December 27, 1954. etc


             b) Law n°62-I of February 26, 1962 modifying the decree of December 03,
       1931 reorganizing the local justice (Published in the Official Journal of Dahomey
       n°… of March 1, 1962)

                c) Decree 799 regulating the enforcement measures of the indigenous justice
                for civil and commercial matters.


3.1.2.3 Laws pertaining to modern civil matters

           a) Law n°65-25 of 14 August 1965, on the organization of land tenure system in
           Dahomey (OJ of Dahomey n° 21 of the 01/10/65).


           b) Ordinnance n°773/MF/EDT of August 29 1972, on the reorganization of land districts in
           Dahomey.



           c) Administrative ruling of the council of ministers on January 27, 1977.



7
    This law is also applicable in administrative matters

                                                                                                      37
      d) Ordinnance n°9110 F of November 22, 1955, determining the property
      transactions subject to a formal authorization from the chief of the territory.

      e) Decree n°55-580 of May 20, 1955, on land consolidation in French West
      Africa (A.O.F) and French Equatorial Africa (A.E.F).

      f) Decree 56-704 of July 10, 1956, setting the conditions for implementing the
      provisions of decree n°55.- 580 of 20 May 1955, on land consolidation in A.O.F
      and A.E.F.


3.1.2.4 Laws pertaining to administrative matters

         a) Decree of September 29, 1928, regulating the public domain and public
         utility easements in A.O.F.

         b) Ordinnance n°2895 A.E of November 24, 1928, determining the
         conditions for implementing the provisions in decree of September 29, 1928
         regulating state lands and public utility easements in AOF

         c) Decree of September 7, 1935, supplementing article 9 of the decree of
         September 29, 1928 regulating the public domain and public utility
         easements in A.O.F.

         d) Decree n°52-679 of June 03, 1952, modifying the decree of 29
         September 1928, regulating the public domain and public utility easements
         in A.O.F.

         e) Decree n°55-580 of May 20, 1955, on land and domanial reorganization
         in A.O.F and A.E.F.

         f) Decree of November 15, 1935, repealing the decree of October 23, 1904
         on domains and regulating the state lands in A.O.F.

         g) Memorandum n°515 D.E./4 of December 7, 1937 on the regulation of the
         state lands;

         h) Ordinnance n°422/F of March 19, 1943, defining the conditions for
         alienation, leasing and exploitation of public lands in Dahomey as well as
         their use for public services;

         i) Law n°60-20 of July 13, 1960, defining the habitation permit system in
         Dahomey (OJ of Dahomey 01/08/1960);

         j) Decree n°64-276/PC/MFAEP-EDT of December 02, 1964, defining the
         habitation permit system in Dahomey (OJ of Dahomey N° 2 of 15/01/65);

                                                                                  38
          k) Decree n°64-164/PC/MFAEP/EDT of September 21, 1964, determining
          the sale price per square meter for urban lands belonging to the State‟s
          private domaine.


3.2 STRENGHTS of the current modes of settlement

       All the current modes of settlement of land conflicts contain several strengths.

      The conciliation, wether carried out by the customary authorities or the
administrative bodies, allows for:

    a quick settlement of the conflict which promotes the development of the
    perimeters involved.
    saving of time and money.
    Peace and social harmony between the litigants by the safeguarding of the
     interpersonal relationships.
    scrupulous respect of the customs since they are directly applied and recognized
     by all.

      The legal modes of settlement of conflicts present the following strengths:

                 All persons are garanteed the exercise of their constitutional right to
                  to have their case heard in court Indeed article 7.1 of the African
                  Charter of the Human and People‟s rights adopted by the OAU on
                  June 18, 1981, ratified by Benin 20 January 1986 and inserted into
                  the constitution of December 11, 1990 gives every person:

      -   the right to refer to the appropriate national jurisdictions any action violating
          the fundamental rights recognized and guaranteed by the conventions, laws,
          regulations and customs in force
      -   the right of defense, including the right to be represented by a lawyer of
          his/her own choice
      -   the right to be tried within a reasonable time before an impartial court

             The authority of res judicata with regards a the real property which was
              the object of the judgment, the request, the cause and the same parties.

             The enforceability of decisions which have become conclusive, either as
              a result of the expiration of the period allowed for appeal, or because no
              appeal was lodged.

        The enfocement of court decisions is done wih the help of the police force.
        Nevertheless, there are major weaknesses with regards to the different modes
of settlements of land litigations.


                                                                                        39
3.3 Weaknesses of the current modes of settlement

       The current modes of settlement of land conflicts have many weaknesses.
       After listing these weaknesses, their consequence will be analyzed.


3.3.1 Presentation of the weaknesses

        the noted weaknesses for the modes of land conflicts settelements by way of
conciliation are:

        There is no authority of res judicata: The parties can refer their case to court at
       any moment for the same reasons as thos evoked for the conciliation.

        There is no enforceability for the conclusions reached by the conciliation bodies which
       remain simple recommendations.

        the consent and obedience of the party adversely affected by the sentences is
       essential. Often, the conciliators try to find a mutual agreement to ensure their
       conclusions or recommandantions will be enforced; this step does not always
       have a legal foundation.

        the partiality, the interference or the influences of some customary or political
       authorities, in particular at the level of the Service of the Domanial Affairs of
       the communes and the National Commission of Domanial Affairs (CNAD).

        At the level of the settlement courts, the weaknesses of the modes of
settlement of land conflicts are:

        slowness of the procedures due to the slowness of the legal system in general.

       This slowness is due to several causes, in particular:
              - the insufficient material means,
              - the insufficient human means,
              - the cumbersome nature of the formalities for the Direction of Domains,
              Registrations and Stamps of the Ministry of Economy and Finance,
              - the cases are constently being postponed for multiple reasons (at the
              request of the parties – unavailability of the judges – social movements
              etc).

        In this context, it is the parties who have control of the lawsuit; but often, they
do not submit the necessary documents supporting their claims within a reasonable
time frame.


                                                                                             40
       In matters of tradtionnel civil law (customary) the postponements are often
caused by the parties who fail to appear at the hearings.

      And as long as it is not proven to the judge that the defaulting party was
informed of the procedure initiated against him, the judge must postpone the case.

       Indeed because it is an oral procedure, when one of the parties fails to appear at
the hearing, the reason cannot be recorded.

          The court does not have any means of coercion to make the defaulting party
appear.

        The recent practice now allows for summons to be served to the defaulting
party by a bailiff, a representative of the police force or the village chief who write up
minutes for the delivery, minutes which are submiteed to the court to prove that the
failure of the other party to appear is deliberated and that a ruling can be made based
only on the claims of the party who appeared before the court.

        It also should be mentionned that at times, the judge refers back cases with no
clear justifications.

               - delaying tactics and lack of diligence by the parties.
               - the parties indeed have the right to evoke any form of defense, whether
               a procedural defense or a defense based on content; the settlement of
               procedural defenses often takes a long time and can sometimes drag on
               for several years.

       The national territory is not entirely covered by the jurisdictions.
       At the time of this study, there were only eight (08) first instance courts, three
(3) Courts of Appeal and one Supreme Court in Benin.

       Apart from two (2) courts of appeal (Parakou and Abomey) recently installed,
the other jurisdictions, namely the eight (8) first instance courts were created before
the country became independant or shortly thereafter.

       Since then, no other first instance court has been created in the country. The
populations are therefore forced to travel long distances, exceeding hundreds of
kilometers, before they can refer a case to the court of their jurisdiction.

        This shortage in the number of jurisdictions exacerbates the slowness of the
justice system and encourages the urge for revenge and private justice.

        It should be stressed that, pursuant to law n°2001-37 of August 27, 2002 on the
legal organization, the Government created new courts increasing the number of first
instance courts to twenty eight (28).



                                                                                       41
       But to date, none of these new courts has been installed and there is apparently
no prospect of an upcoming installation of these courts.

        unreliability of testimonial evidence.

       Sometimes, the witnesses make false statements and this for several reasons, in
particular to safeguard particular interests.

       However, the customary law is primarily based on testimonies.

       The court is often forced to rely on the statements of unscrupulous witnesses.

        some of the legal texts are obsolete.
       The great majority of legal texts date back to the colonial period.

        In the civil matters (modern, the code of civil procedures is a simple collection
of several applicable texts of the former AOF)
        The same is true for the laws organizing the local justice (1931) and for the
legal texts regulating public domains (1928, 1935, 1943, 1952, 1955) etc…

        These different texts contain important gaps since they are no longer suited for
the current realities.

        The legal texts passed after the independence have not been revisited and are
no longer adapted to the current social and economic environment affected by
globalisalization.

        ignorance of the law:

        The illiteracy of the populations is the first cause of the ignorance of the law
and of the legal texts. Because they are written in French, the laws remain unknown to
the populations.

        There are sometimes in contradiction with their customs.

        Even educated people, and some authorities have a poor knowledge of the
legal texts of the republic.

        The level of juridicity is poor because the populations do not spontaneously
seek the services of legal professionals (lawyers, notaries, legal advisers and others) to
solve their problems.

       This ignorance is at the root of many unfortunate events.

        intrusion of the executive power in the settlement of land conflicts.



                                                                                        42
       This intrusion is mainly seen at two levels: the judgment of cases and
especially the enforcementof court decisions.

        One‟s attention should focus on cases of enforcement of court decisions which
are not always supported by the executive power. This situation is striking since it is
often the case that for political or occult reasons the executive power suspends or
refuses to enforce court decisions.

        This situation which is completely contrary to the constitution of the country
and to the International Conventions ratified, is really of no interest to anyone.

      As a result, the populations have lost interest in the justice system, and are
mostly concerned with securing their lands and their investments.


3.3.2 Impacts of the weaknesses

      The weaknesses previously enumerated lead to several consequences: the small
volume of settled conflicts, excessive cost, lengthy procedures.


3.3.2.1 The small volume of settled conflicts
         The proportion of the settled cases was determined for the last three years. It is
illustrated by the statistics of table 3.




                                                                                        43
  Table 2: Statistics of cases submitted to the various institutions over the three last
  years

Authorities of                                                                     Standard
               Modalities of cases       Minimum       Maximum        Average
Settlements                                                                        deviation
               Cases initiated (in
                                         35            5400           748          1519.32
               number)
                   Cases settled
                                         0             92.31          43.11        29.56
Administrati     (proportion in %)
ve bodies      Abandoned       cases
                                         0             33.33          17.52        10.93
               (proportion in %)
               Cases in progress
                                         0             75             30.44        28.82
               (proportion in %)
               Cases initiated (in
                                         0             2000           193          396.56
               number)
                   Cases settled
                                         0             100            36.21        31.25
Justice          (proportion in %)
System         Abandoned       cases
                                         0             100            20.3         26.04
               (proportion in %)
               Cases in progress
                                         0             100            37.96        35.11
               (proportion in %)

    Source: Survey Data 2008

          In support of table 2, figure 6 presents the proportion of cases settled compared
    to those abandoned and those in progress
          An analysis of this graph shows that this method of resolution made it possible
    for the administrative structures to settle on average 43.11% of the cases they
    received regarding land conflicts. As for the courts, they were able to settle an
    average 36.21% of these cases. But these rates are relatively low when one knows
    the importance of real property in the socio-economic context of Benin. Moreover
    these two authorities are currently better indicated to settle land conflicts since in the
    event of non-consensus or of non-conciliation of the parties, the latter will appeal to
    the courts or the administrative structures.
           As table 2 shows so clearly, the number of requests recorded at the level of the
    administrative bodies over the three last years varies between 35 and 5400 with an
    average of 748, the courts have received up to 2000 cases with an average of 193
    cases. It will be necessary to re-examine the procedure in order to enable these
    authorities to effectively contribute to the settlement of land conflicts.




                                                                                            44
       Figure 5: proportion of the cases settled, abandoned cases or in progress over
the three last years.


3.3.2.2 Excessive cost

        The cost is variable and differs depending on the type of authority settling the
case (see table 4).

      Table 4: Statistics of the cost involved in the procedure for conflicts settlement
according to the identified authorities and the litigants

      Settlement               Cost of the procedure (in FCFA)
       Authority         Minimum            Maximum           Average
     Administrative
                             0                10000             1842
        Bodies
        Justice              0               1000000           153170
       Parties in
                             0               2000000           245791
        conflict
      Source: Survey Data 2008

         The data resulting from the survey indicate that the administrative settlement
procedure is generally free. Only the travelling expenses of the officers from the
mayorship, when they perform onsite visits, are paid for by the parties and can
amount to 10 000F.
               The cost can change greatly for officers of the law (lawyers, notaries,
baillifs and surveyors), up to 1.000.000F according to those surveyed.

                                                                                     45
        As for the magistrates, they declared that the plaintiffs pay 2000F when
initiating the case and 1500F upon judgement. It is therefore the fees paid to the
lawyers, notaries, baillifs and surveyors, to which are added the travel expenses, that
are exorbitant and represent most of the expenses paid by the parties. As indicated by
the statistics, the cost of a trial varies between 0 and 2.000.000F according to the
contending parties. This has an negative impact on the populations, especially when
one is aware of the poor living standards in rural areas. Consequently, many citizens
no longer trust the court system which they consider accessible to the rich only. When
in a lawsuit, a poor is confronted to a rich person who can afford a lawyer, the poor
person thinks he/she has already lost the trial. To all this is added the fact that trials are
very often postponed, leading to additional expenses for the parties.
        Table 4 gives an idea of the processing time for the legal procedure.


3.3.2.3 Processing time for the legal procedure

       Table 3: Frequency of the processing time for the legal procedure

                Processing    Contending          Officers of the law
                time          parties
                              Frequency           Frequency (in %)
                              (in %)
                0 to 6 months 31.9                19.1
                6 to 1 year   4.3                 0
                1 to 2 years  17.4                0
                More than 2 46.4                  21.3
                years
                Variable      0                   59.6

              Source: Survey Data 2008

       Upon analysis of this table, one notices that 46.4% of contending parties
 surveyed said they have been in trial for over two years; the same situation applies to
 21.3% of the officers of the law. Among other things, this can be explained by the
 multiple postponements, the repeated failures to appear for hearing by one of the
 parties, and the slowness of the legal procedure. Approximately 60% of the officers
 of the law affirmed that the duration of the procedure varies depending on the
 complexity of the case and can therefore carry on for up to 20 years. This slowness
 has serious consequences on the parties who spend huge amounts of money on
 travel. This also means that they have to place a hold on their activities. Also, this
 uncertain time length has caused many to lose confidence in the legal system. As a
 proof, when asked “do you trust the legal system?”, more than 21% of respondants
 answered “no”. The reasons evoked are among other things, “the trial drags on and
 slowness makes me lose hope, the legal system is corrupted, Beninese justice
 protects crimes, the lawyers do not comply with the rules of ethics and induce the

                                                                                           46
 judges into error etc”. These different statements make it possible to easily
 understand the consequences of this slowness of the legal system on the psychology
 of the populations which undermines the credibility of this institution

       Table 4: Frequency of the difficulties encountered with the legal system

                     Difficulties            Frequency          (in
                                             %)
                    Multiple delays          44.6
                    Slowness                 16.9
                    Corruption or complicity 7.7
                    of the judges
                    Others                   13.8
                    None                     16.9
              Source: Survey Data 2008

        This table shows that 44.6% of those surveyed among the contending parties
affirm that their main difficulty with the legal system are the multiple delays ; for
16.9% of them, it is the slowness of the procedure. In reality, the second rate does not
complement the first since the slowness is only a consequence of the multiple delays.
The data in this table confirm those from table 4 regarding the slowness of the legal
procedure.
       It is important to note that Benin is a country where orality is a precious
instrument when settling conflicts and that the customary authorities play a crucial role
in the settlement of land conflicts. Though they are progressively losing their
authority, they continue to play an important role in the settlement of land conflicts in
some regions. The statistics from the surveys show that for 40% of surveyed
customary authorities, land conflicts represent 50 to 75% of the cases they receive.
Moreover, about 25% of them state that land conflicts represent 25 to 50% of the cases
they deal with. These numbers reveal the extent of land conflicts in Benin and how
much the customary authorities are involved in resolving these conflicts. To better
manage land conflicts in Benin, the courts, administrative structures and traditionnal
chiefdoms will need to collaborate closely and efficiently.

Socio-cultural obstacles to the implementation of the so much desired land reform are
to be feared.

3.4 Social and cultural factors likely to impede on the
    implementation of the reform
        The land reform envisaged pursues bold objectives which aim at improving the
land governance in Benin. The expected results will be revolutionary and modern.
Therefore, the reform will cover several fields, in particular, the land tenure systems,
the land rights registration system, the land management institutions, the land use
regulations, the instruments used by the authorities to control of land tenure, the rules

                                                                                      47
for managing the public and private domain of the State and communes, and the land
tax.

       The stakes are therefore high since land tenure is itself a development issue.

        Several factors likely to obstruct the adequate implementation of the reform
were identified.

       These factors were classified into three (3) groups:

       Cultural factors, administrative obstacles and political factors.

 Cultural factors

        In the South and the middle of Benin, the traditional and family chiefdoms rest
primarily on the access the chiefs of the family or collective have on the management
of the communes‟ lands from which they draw their subsistence.

        The power of the “Dah” and of the Ballè could be called into question by the
land reform which would deprive them of making free use of the undivided lands.

As such, they will undoubtedly represent an obstacle to the implementation of the
reform.

        In addition, in the areas like Ouaké in the North West of the country, the
concept of collective ownership remains very strong in spite of the implementation of
the rural land reform.

        Some traditional practices could also prevent women from having access to
land in spite of the equality contained in all the legal instruments which the Benin has
adopted.

       This applies for example to the “ORO” sect in the Nagot region which could
prevent a woman from enjoying her regularly acquired land by organizing ceremonies
and demonstrations on her property since women are forbidden from appearing in
public during these demonstrations. In the same way the “Zangbéto” are another
secret group. These night watchmen can also prevent an owner from enjoying his
property.

      Moreover, it is well known that corruption is present at all levels of the social,
economic and political environment in Benin.

      Corruption has been institutionalized and nothing serious is done to deal with it.




                                                                                        48
        Because the populations are attached to their customs, they would not hesitate
to resort to all the means and connections available in order to maintain these customs.
The unification of the land tenure systems appears to be a challenge.

        A resistance could also be seen at the level of some liberal professions, in
particular an attachment to traditional principles which do not necessarily favour the
greater part of the population.

        Administrative factors

        It should be recalled that the administration in Benin is well-known for its
slowness. This slowness could have a negative impact on the procedures for enacting
the texts for implementing the laws.

       In addition, some senior executives of the administration do not hide their
attachment to the conventional habits acquired by empiricism. It is very likely that
there will be some resistance to change.

       Moreover, the position held by the executives and their constant replacements
do not allow for a proper follow-up of important files.

        Finally, the ever present problem of competence, namely, “the right man at the
right place” should be stressed.

        Political factors

       In Benin, politics are increasingly being introduced into all spheres of life. The
political power interferes in all areas and all social stratums are involved in the politics
of self interest. All elections are regarded as business capital. There is a political
cronyism which leads to a reluctance to enforce some measures that carry a socio-
economic cost.

      However, the purpose of the land reform is the implementation of a series of
bold measures.

       Moreover, the same political cronyism leads to the hardening of the
parliamentary game.

       The intrigues maintained by and between the parliamentary opposition and the
parliamentary majority, are not likely to favor a quick vote of the laws for which the
Parliament will be solicited.




                                                                                         49
3.5 Resolution of land conflicts at the international level
        One of the themes of study 3 is to present international experiences for the
resolutions of land conflicts which are likely to help implement the reform in Benin.

       From our understanding, it is a matter analyzing the solutions for land conflicts
in countries having the same socio-historical characteristics as Benin.

        We can therefore refer back to the implementing experiences in Ivory Coast, in
Mali, in Niger, in South Africa and elsewhere.

        The main idea which comes out of the study of these experiences is that only a
land reform which reconciles the customary rules with the modern law can be carried
out.

       Many factors lead to this:

   -   Need for land guarantees,
   -   Existence of a land market
   -   Emergence of individual behaviours
   -   Demographic Pressure.

       Hence, the rural land code of Niger takes into consideration the existence of
nomadic herders next to farmers and gives them user rights for the natural resources
located on that territory.

       The legislator of the Ivory Coast decided by passing a law in 1998 that the
lands held under the customary system belong to the rural domain.

       These customary rights are exercised in accordance with the traditions.

        The law specifies that land ownership is obtained through a prescription within
three (3) year of the issuance of a land certificate. This certificate is issued once the
authorities can attest to the continuous and peaceful possession of the land.

       In Guinea the land code recognizes as the land owner the person who can
proves in good faith a personal, peaceful and continuous occupation.

        In Central African Republic, land use rights are recognized to the communities,
clans, tribes, families or individuals by virtue of the local customs and they can
register the existence and extent of these rights.

       The land reform in Benin must necessarily integrate the customs and should
not regard the registration as the only mode of establishment of land rights.



                                                                                      50
        It is true that in the long term, when the population will have become aware of
the importance of the establishment of land rights in writing, registration will become
the primary mode of establishing land rights and transactions.

       In the short and medium terms the customary rules and the modern law will
continue to govern land conflicts in an evolutionary dynamics.




                                                                                    51
4 RECOMMENDATIONS
       Solutions to the insufficiencies relative to land conflicts and their modes of
settlement must be formulated, taking into account the general legal and judicial
environment.

       It will therefore be a matter of:

       improving the legal framework for the settlement of land conflicts;
       taking measures to promote access to the justice system and speed up the
      settlement procedures;
       initiating all the necessary mesures to ensure that all citizens respect the
      authority of the law;
       taking measures to mitigate the conflicts by securing the land;


4.1 Improving the legal framework

      To equip the legal system with adapted and easily applicable legal texts, it
would be wise to:
                - Repeal all obsolete and unsuited texts;
                - Repeal law 60-20 of July 13, 1960 which sets the PH system and
                  abolish the issuance of habitation permits;
                - Pass all implementation texts for the laws not repealed; such is the
                  case namely for law n°65-25 of August 14, 1965 and law n°2007-
                  03 of October 16, 2007 on rural land tenure;
                - Cancel the conciliation procedure by the National Commission of
                  Domanial Affairs from the Ministry for Interior or Local
                  Administration.
                - Reformulate ordinance n°70-3D/MJL of              January 28, 1970
                  rendering lands under dispute unavailable, ensuring the
                  enforcement of court decisions and prohibiting the sale of another
                  person‟s property. The decision of unavailability will be left to the
                  appreciation of the judge instead of making it systematic for all
                  land conflicts;
                - Arrive in the short term at the unification of the land legislation.


4.2 Measures promoting access to the justice system and shorter
    procedures

        This takes into account all measures that would enable faster procedures for the
justice system in general and relative to land litigations in particular, namely:


                                                                                     52
             -   Enact the new law on legal organization, law n°2001-37 of
                 August 27, 2002 by:
                            o installing all the courts created, and having all
                                chambers enter into service (especially the
                                administrative chambers).
                            o provide the justice system with the necessary staff
                                in quality and number.
                            o provide all the jurisdictions with the necessary
                                material and financial resources on a regular basis.
             -   Periodically reinforce the capacities of all the stakeholders of the
                 justice system;
             -   Establish and set up structures for the prevention and management
                 of land conflicts (legal aids, paralegals etc…)
             -   Envisage a quick procedure to ratify approved conciliation
                 decisions.
             -   Reorganize and regulate legal aid and make it effective to allow
                 citizens to have free or inexpensive access to the jurisdictions
             -   Reduce the costs of the procedures: fees for enrolment, deeds,
                 certified copies, legal certificates, recording decisions, etc…
             -   Specify in the procedural laws the time limits for delivering
                 decisions and the penalties for not respecting this measure.
             -   Resume out of court hearings to assist the conciliation courts
             -   Arouse interest in and contribute to the reoganisation of court
                 offices in order to facilitate access to a defense and assistance by
                 a lawyer.
             -   Establish a group of paralegals and lawyers able to assist the rural
                 populations epecially with regards to legal matter.
             -   Provide all magistrates with all the legal information pertaining to
                 land tenure when they take office.


4.3 Measures to ensure the authority of the law is respected by
    everyone

             -   Remind the political authorities of the constitutional provisions
                 and the international treaties relative to the separation of powers
                 (government seminars, awareness seminars for deputies, mayors,
                 senior officers, civil society, etc…).
             - Launch a dissemination campaign on the general principles of the
                 rule of law.
             - Respect the independence of the judicial power at all costs.
             - Bring an unconditional assistance to the enforcement of court
                 decisions and avoid all political and administrative interferences.
             It is not a matter of organizing expensive seminars and other
             conferences which will remain without effect, but rather of informing

                                                                                  53
             the populations of their rights and duties so that they can promote the
             culture of respect of the legal authority.
             It is obvious that the justice system must gives itself the means for its
             own respect and credibility.


4.4 Measures for mitigating land conflicts and securing land

             -   Establish a national cadastre
             -   Make the registration of lands mandatory in all of the communes‟
                 capital cities and in all towns with at least 10.000 inhabitants. For
                 the other cities, make the registration mandatory before any sale
                 and instruct all central and decentralized administrative
                 authorities that they must ensure this provision is enforced, and if
                 it is not they should apply sanctions.
             -   Settle the question of evidence for property transactions.
             -   Require from now on that only a single writen document can be
                 provided as proof for a transaction carried out after the reform
             -   Appoint officers qualified to draft deeds for rural, peri-urban and
                 even urban transactions, as long as their monetary value does not
                 exceed a certain value to determine
             -   Review the regulation on parcelling and popularize it.
             -   Proceed to an anticipated parcelling in inhabited areas
             -   Match poor land management offences by the decentralized
                 administrative authorities or surveyors with rigorous and deterrent
                 sanctions.
             -   Increase the penalties inflicted on those committing stellionate
             -   Keep land registers up to date
             -   Define new rules and procedures for managing the public domain
             -   Observe the procedures for allocating the State‟s public and
                 private domain
             -   Rigourously conduct expropriations for reasons of public
                 easements
             -   Generalize the PFRs and RFUs and adapt them continuously
             -   Ensure the popularization of land laws.




                                                                                   54
5 CONCLUSION

       It is appropriate to mention that all the persons met and the population in
general, recognize the collective drama that land conflicts represent in Benin.

          Everyone agrees and acknowledges the opportunity and the adequacy of the
reform.

        It must finally be stresses, however, that many people remain skeptical of the
effective consideration of their aspirations and the practical implementation of the
reform. These people‟ fear is base on the socio-political considerations which very
quickly stifle scientific initiatives and reflections for the development of Benin.

        Considering the aspirations expressed by the populations, and in light of the
practical experiences on the ground, pragmatic recommendations were made. These
recommendations are a function of the current state of the legislative framework for
the resolution of land conflicts, the weaknesses observed and the slowness of justice
system in general, of the citizens‟ propensity to disregard the authority of the law and
the desire to mitigate the causes of land conflicts.




                                                                                     55
6 APPENDIX
                        LIST OF THE PEOPLE INTERVIEWED

1.    ABDOULAYE Abdou-          Administrative Services             23 - 10 - 06-18
      Razizou                   Assistant - Parakou

2.    ADAMOU Amouda             Customary authority                   97-62-25-66

3.    ADANDEDJAN Cohovi         Lawyer-Cotonou                        21-31-24-80
      Alphonse
                                                                      90-03-75-96

4.    ADANZOUNON Clovis         Permanent secretary CNAD

5.    ADJAÏ Narcisse            Lawyer-Cotonou                   Such: 90-92-19-49

6.    ADJAKA Michel             First Instance Court-Lokossa          97-07-91-85
                                magistrate

7.    ADOSSOU Michel            Tailor, Litigant

8.    AFOUDA Charles            Chief of Domanial Affairs -           95-81-90-14
                                Lokossa

9.    AFOUDA YAÏ Jean           Notable                                       Savè

10.   AGBADJA P. Romain         Chief Service of Planning and         90-97-20-62
                                land development - Lokossa

11.   AGBESSI Joseph            Person in charge of disputes
                                brought before the Royal Court
                                Ouidah (Abata 2)

12.   AGBO Narcisse             Dignitary of family-Ouidah          Ouidah-Lebou
                                community

13.   AGBODJAN K.Y. Antoine     Notable, Chief of Kandé               95-03-58-82
                                district, Comé

14.   AGBOKOU Vigan             land chief - Comé

15.   AGBOZOME K. Christophe    Notable, secretary of Notable
                                of Comé

16.   AGOSSOU Gilles            Bailiff                               23-63-04-22

17.   AGUE Paul                 Land chief                                    Savè


                                                                                 56
18.   AHOUANGNIHODE             Farmer, community chief,            Soguè-Lokossa
      Zounko                    litigant

19.   AKIMONKI Mathier          land and community chief                      Savè

20.   ALASSANE Taïrou           Farmer/occupant without a title            Parakou

21.   Al Yves                   Bailiff of Justice-Lokossa             90-92-45-10

                                                                       97-16-97-63

22.   ALOUKPE Jean-Baptiste     Magistrate, President of the           90-03-03-91
                                TPI - Kandi
                                                                       97-18-65-13

23.   AMOUSSOU Agbodo           Chief of land- Comé

24.   ANATOVI Alihonou          Chief Service of Domanial         Tel.: 95-71-44-53
                                Affairs- Comé

25.   AYEDON Andre              Family community chief                        Savè

26.   BABATOUNDE Agnintola      Surveyor - Parakou                     90-01-00-09

27.   BAH Constantin            Land Expert - Surveyor            Tel.: 21-32-08-64

                                In charge of the BET firm of           95-42-12-70
                                Ouidah and Cotonou

28.   BAKO ..............       Magistrate, President of the               Parakou
                                Real property Chamber – First
                                Instance Court

29.   BAKPE Francoise marries   Notary-Parakou                         97-32-10-30
      TCHIAKPE

30.   BANATI NR. Gabriel        Retired, litigant                  Tibona-Parakou

31.   BANDAGE Yérima Jean       Magistrate                                 Parakou
      Pierre

32.   BIAOU Louis               Notable                                       Savè

33.   BIO Salifou Séidou        President of the Conciliation          23-63-04-09
                                Court - Kandi
                                                                       90-03-09-53

34.   BOCOVO Alfred             Lawyer-Cotonou                         90-03-10-00



                                                                                 57
35.   German CADJA DODO        Chief of Godomey District              90 21 63 00

36.   CHABI Célestine          Secretary of the conciliation              Parakou
                               court of Parakou

37.   CHABI CICA Worou Touré   Farmer/occupant without a title            Parakou

38.   CHAFFA Daoudou Brace     Secretary of the royal court -         95-35-59-08
                               Savè

39.   DAGNISSE Gabin           „Vulcanizateur‟, litigant                  Parakou

40.   DEGNISSODE Sonadi        Architect, Dignitary, litigant     Agonvè-Lokossa
      called GBADESSI
      AHOUNON

41.   DEGUENON                 Reseller
      GNANSOUNOU Cocoli

42.   DEGUENON Micheline       Trader, litigant                            Ouidah

43.   Osséni DEMON             Occupant without a title,            Keféri - Kandi
                               litigant

44.   DJOVONOU Urbain          Welder, litigant                           Parakou

45.   Welcome MASTIFF          Former Sergeant of the                     Lokossa
                               Customs, retired, chief of
                               Community, litigant

46.   Kennedy SLABBING OFF-    Chief of Notables – Comé
      CUT

47.   Innocent DOSSEVI Kocou   Notable, Assistant Secretary of
                               Notable of Like

48.   DOSSOU-GBETE January     Bailiff                           Tel.: 95-05-48-54

49.   EHOUZOU-GANGNITO         Notary-Cotonou                    Tel.: 21-30-92-82
      Denise

50.   FAGBEMI Guillaume        Administrative secretary of the   Such: 97 68 34 33
                               Chief of District of Hêvié
                                                                      90 05 35 78

51.   FAINOU Salifou           Retired OPI officer, litigant       Kpébié Parakou

52.   FAKEYE Alphonse          Secretary of the Conciliation     Tel.: 95-36-67-54


                                                                                58
                                Court - Ouidah

53.   FATINDE Victor            Magistrate – First Instance       Tel.: 90-01-58-70
                                Court of Ouidah
                                                                       95-81-92-88

54.   FOFO Tidéko               Farmer at Tanougola Toviklin,
                                litigant

55.   GADJO Tinder              Farmer/occupant without a title            Parakou

56.   GAHADJI Alidou            Farmer, litigant                             Kandi

57.   HOUNGA Antoine            Farmer in Tokpadomè,
                                occupant without a title,
                                litigant

58.   Iman Moutarou             Land Chief                                    Savè

59.   KOUAGOU Nata              Farmer, litigant                   Tibona-Parakou

60.   KOUMASSI Athanase         Land chief - Comé

61.   MALIK Isbath              Notary-Lokossa                         97-98-45-90

62.   MONHOUNVEDO C. Jean-      Chief of Service for Domanial          90-11-15-85
      baptiste                  Affairs - Savè

63.   MOUSTAPHA Waïdi           Lawyer-Cotonou-Parakou-                90-94-32-13
                                Kandi

64.   VEKOUNOU Symphorien       Chief of Service for Domanial     Tel.: 95-33-82-69
                                Affairs - Ouidah

65.   NOBIME Pierre-Claver      Chief of district - Godomey            97 89 19 16

66.   OLOU Emmanuel             land and community chief                      Savè

67.   OLUDO                     Driver-carrier - litigant                    Kandi

68.   OQBA Adétoutou Akimmou    King (Kambiessi) of Savè               95-35-94-82
      Akikendjou VI
                                                                       22-55-03-48

69.   SABI Kouli                Kandi sharecropper, litigant

70.   SABI Veronique            Housewife, litigant                        Parakou

71.   SAIBOU S.D. Aboudoulaye   Geographer, Chief Service              97-76-47-62


                                                                                 59
                             Domanial Affair - Kandi

72.   SAKA Yarou             Farmer/Sharecropper, litigant              Parakou

73.   SALAM Olagnika         Notary in Parakou-Cotonou              23-61-16-73

74.   SANNI Machioudou       Chief of service for Domanial          23-62-56-09
                             and Environmental Affairs
                             Tchaourou                              95-35-99-01

75.   SANNY Irenee Raoul     Surveyor                               23-10-19-41

76.   SEIDOU CICA Zimè       Occupant without a title,            Keféri - Kandi
                             litigant

77.   SIDI MAMA CHABI        Geographer at the Parakou              97-32-16-02
      Mikaïlou Tounkou       mayorship

78.   SOTODJI GODO Clement   Farmer, litigant, with no paper         Djakotomé
                             nor title

79.   TCHINTAÏZE Dosso       Farmer, litigant                             Kandi

80.   TOGLA Bertrand G;      Bailiff                                95 05 96 03

81.   TOKIO Agbéhounbio      Notable - Come
      Gaston

82.   TOKO A. Mohamed        Lawyer in Cotonou-Parakou              21-32-16-26

                                                                    97-98-88-69

83.   TOMENOU Achilles       Trader, party at a lawsuit                 Ouidah

84.   VIANOU A. Dossou       Land chief - Come                      95-40-27-62

85.   VIANOU K. Marcellin    Land chief - Come

86.   VIWATONOU AGBOKOU      King of Come                      Tel.: 90-98-16-70
      SINTO AGLA III
                                                                    97-47-58-40

87.   YAÏ Gaba               Notable/prince                                Savè

88.   YEHOUENOU Veronique    Housewife, litigant
      marries BIBI

89.   ZITTI Jean             Surveyor in Cotonou                    21-38-12-15



                                                                              60
                                                        95-56-01-56

90.   ZOMADJI Clovis   Retired Teacher, litigant   Gbênan    South-
                                                   Ouidah




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