LITIGATIONS ARISING IN THE COURSE OF ENFORCING COURT DECISIONS IN CAMEROON
By Ferdinand Doh Galabe, Esq
All rights reserved, November 2017
Introduction
First and foremost, it is crucial to distinguish between the intricately intertwined subjects of enforcement of judgments, measures of enforcement of judgments[1], judicial enforcement procedures, and disputes relating to forceful or compulsory enforcement of judgments & petitions thereof[2]. This useful distinction does not imply that it is possible to study the subject of disputes relating to enforcement of judgments without referring to principles guiding enforcement of judgments, measures of enforcement of judgments or judicial enforcement procedures. Indeed, it is in the course of enforcing judgments that difficulties and disputes arise, and the competent courts are seized by interested parties to settle them.
It should be noted also that recourse to compulsory or forceful means of enforcement necessarily implies the presence of a writ of execution or a final and or provisional enforceable judgment/writ and the absence of voluntary enforcement on the part of the judgment debtor or unsuccessful party.
Before moving forward, it is apposite to look at how at least one eminent jurist defines disputes on enforcement of judgments. The Congolese jurist named barrister Roger Mulamba has defined it as the judicial phase of litigation which results during or on the occasion of forceful or compulsory enforcement of a judgment or executory writ[3].
A judgment is the judicial act by which a court settles a dispute on the rights and obligations of parties which was referred to it or the court’s official pronouncement of the law on the action that was pending before it, stating the successful party and the remedies awarded to that party[4]. Generally, a judgment is enforceable if none of the parties challenge it within stipulated deadlines and the matter becomes res judicata.
Exceptionally, however, a judgment which has not yet become final, or certain aspects thereof, may be executory provisionally[5] or immediately. As far as criminal judgments are concerned, Section 393 of the Cameroon Criminal Procedure Code (CCPC) provides for immediate enforcement of unsuspended sentences of fines[6] against the convict, failure which the convict is physically constrained or imprisoned in default of payment (concerning simple offenses see Section R. 364 Penal Code and Sections 557-572, of CCPC).
Also, Section 397 of the CCPC provides that where the court pronounces a sentence of loss of liberty, it shall issue an imprisonment warrant or warrant of arrest against the convict. However, if the convict, who has been sentenced to not more than one (01) year, indicates his intention to file an appeal, the court may grant him bail – provided he fulfils one of the conditions of Section 246 (g), which shall obviously expire if he fails to file an appeal.
Again, per Section 3 (2) of Law No. 97/018 of August 7, 1997, the court may order the provisional enforcement of a pecuniary civil award in a criminal matter notwithstanding appeal[7]. Nonetheless, as a rule of thumb, in criminal matters all appeals stay the enforcement of the judgment appealed against according to Section 453 of the Cameroon Criminal Procedure Code (CCPC), although all custody warrants remain enforceable and provisional pecuniary awards to a civil party in accordance with the provisions of Section 392 (1) of the CCPC must be paid to the civil party immediately.
Likewise, Section 2 (1) of Law No. 92/008 relating to enforcement of court judgments provides that, in non-criminal matters, the filing of an appeal, except for appeals to the Supreme Court, shall stay the enforcement of judgments. Section 2 (2) of the same law adds, however, that, other appeals shall operate in accordance with the laws and regulations in force. In administrative law, for example, a judgment in default may not be enforced unless it has been served on the defaulting party and the time limit to file an application to set it aside has lapsed[8]. Likewise, Section 114 (2) of the 2006 on lower administrative courts provides that appeals shall stay execution of a judgment, save in case of a contrary decision of the Administrative Bench of the Supreme Court.
Moreover, the courts may order provisional execution based on specific provisions of law or where provisional execution is of right. Nevertheless, stay of execution can be granted by the Court of Appeal[9] against provisional execution ordered by courts of original jurisdiction in cases where provisional execution is not of right or it was ordered in a matter not falling within the cases provided in Section 3 of Law No. 97/18 of August 7, 1997 amending and supplementing the provisions of Law No. 92/008 of August 14, 1992 Relating to the Enforcement of Court Judgments[10].
Although the court hands down judgments, it does not proceed to enforce them on behalf of the successful party or judgment creditor without further action. In certain cases, the unsuccessful party may voluntarily enforce the judgment after which the successful party/judgment creditor may have no need to take any further action. Where things don’t play out this way, the successful party will have no other option than to resort to initiating a compulsory or forceful enforcement measure, which are many and varied, to enter such rights as he/she is entitled to under the judgment. This is usually done with the help of sheriff/bailiffs and enforcement officers[11].
Indeed Section 11 of the law on judicial organisation requires that bailiffs, process servers, public prosecutors, and all commanders and officers of the armed forces lend their assistance and support in the enforcement of judgments when so required by the law. Section 29 of the OHADA Uniform Act on Simplified Recovery Procedures and Enforcement Measures equally requires the State to lend its assistance in the enforcement of judgments and other writs of execution, specifying that the executory clause shall entail a direct requisition of the forces of law and order – that is, stricto sensu the apposition of the executory formula on a judgment is the only formality that the law requires of a judgment creditor for the state to imperatively lend him/her its assistance.
Moreover, Section 181-1 of the New Penal Code of July 12, 2016 provides for the punishment of persons found guilty of refusal to enforce final/enforceable judgments[12]. Many a Cameroonian will recall the Cameroon Music Corporation (CMC) and SOCAM[13] cases in which the Minister of Arts and Culture refused to enforce an order of the Administrative Bench of the Supreme Court of December 17, 2008 staying a series of decisions of the Minister of Arts and Culture of May 2008 withdrawing the licence of CMC and appointing an ad hoc committee to administer CMC and then a final judgment of the Panel of Joint Divisions[14] of the Administrative Bench of the Supreme Court of July 23, 2014 permanently annulling all the above-mentioned decisions of the Minister of Arts and Culture. The SOCAM (Société Civile Camerounaise de l’Art Musical) case is almost a repeat of the CMC scenario of refusal by the same Minister to enforce judicial decisions from the highest jurisdiction in the nation.
Another glaring example of the blatant contempt of writs of enforcement in Cameroon is showcased in the arbitral award of April 17, 2002 of the London Court of International Arbitration (LCIA) in a case between African Petroleum Consultants (APC) v. Societe Nationale de Raffinage (SONARA) which was followed by a ruling by Justice Mokwe[15] granting exequatur[16] in Suit No. HCF/91/M/2001-2002 of May 15, 2002. Ahead of this ruling, the applicant/judgment creditor, APC, had obtained a garnishee order on the sequestration of debts owed to the judgment debtor, SONARA, by a third-party, Shell, pursuant to the provisions of articles 54, 55 and 77 et seq. of the OHADA Uniform Act on Simplified Recovery Proceedings and Measures of Enforcement. Once ACP obtained a final seizure-award order, it served same on Shell Cameroon PLC which refused to comply with the court order. APC then seized the Fako High Court which ordered Shell to comply with the order by paying the sums in the arbitral award to the arbitral award creditor. In the legal saga which ensued, despite the CCJA’s endorsement of the LCIA’s award, Shell finally paid the sums owed to SONARA to another party, TOTAL instead and as we speak, up and until today the award of the LCIA has not been enforced. This is a serious blow to the integrity of Cameroon’s judicial system.
Another unsurmountable challenge in the enforcement of writs of execution, which was felt in the case of APC v. SONARA, is the principle of immunity from compulsory or forceful enforcement of public bodies and public assets provided by the OHADA Uniform Act on Simplified Recovery Proceedings and Measures of Enforcement[17]. The spirit of the principle of immunity from enforcement is not necessarily an endorsement of impunity – unfortunately this is not how some public authorities have viewed it. Local laws have been enacted identifying entities which are beneficiaries of immunity from execution[18]. In principle the theoretical justification for state immunity from execution is that it protects the sovereign state from finding itself in a situation of inability to perform its public service functions, because of the seizure of its property. Inasmuch as some public service missions of the State are carried out by public corporations or by state-owned enterprises created by the State, these entities also enjoy immunity from execution.[19].
There is a debate on the scope of immunity from execution as to whether claims against a state arising from commercial activities, known as acta jure gestionis, should be allowed enforcement, as opposed to sovereign activities, known as acta jure imperii[20]. This debate attempts to draw a demarcation line between immune and non-immune State activities.
It is important to bear in mind that the state/rule of law is seriously undermined, and the credibility of the judicial system is seriously tarnished when judicial decisions cannot be enforced without any justifiable reason. This constitutes not just a serious factor of legal uncertainty and insecurity for nationals as well as foreigners, but equally tarnishes the image of Cameroon on the international scene and makes it a bad destination for private investment.
In the course of compulsory or forceful enforcement of judgments, difficulties may usually arise as a result of violation by the judgment creditor of the rights of the judgment debtor or by persons intervening in enforcement or violation by law enforcement officers of rules of enforcement[21]. The debtor could equally obstruct or frustrate enforcement.
The procedures enabling the judgment creditor to enforce his judgment are many and varied and generally entail among others, sequestration, conservatory/protective measures as enacted by law to enable the judgment creditor to safeguard his/her rights before judgment is granted on the merits, seizure-awards and attachment and sale of assets, etc.
The relevant procedural rules of compulsory or forceful enforcement of judgments are to be found in a plethora of laws[22] and their violation may render null and void the enforcement procedure initiated by the judgment creditor. The nullity of such procedures may be pronounced solely by the judge who is competent to entertain disputes relating to the enforcement of judgments who may be seized by any aggrieved party.
Chapter One
The Judge Competent to Entertain Disputes Relating to Forceful or Compulsory Enforcement of Judgments & Petitions Thereof
The saying that “Cameroon is a bijural[23] nation” where the Common-law and continental Civil-law co-exist is not merely a trite axiom, but a well-established and recognized constitutional law principle in Cameroon. It is established constitutionally[24] and in case law[25] that the received common law was saved and reserved upon unification in the Anglophone part of the country, while the continental law system continued to prevail in the Francophone parts of Cameroon.
Also, the body of rules applied by Cameroon’s Constitutional Council is not limited to what is written in the constitution. In fact, bijuralism is deeply rooted and anchored in the customs and practice of Cameroon.
The recent creation of a Common-law division within the Supreme Court as well as the accommodation of a Common-law department at the National School of Magistracy is evidence that bijuralism intricately forms part and parcel of Cameroon judicial system. Moreover, under the continental Civil-law system, the notion of “bloc de constitutionnalité”[26] associated to “principes à valeur constitutionnelle”[27] strongly supports this view. That said, as we shall see, the rules on enforcement of judgments are totally harmonised in Cameroon under the OHADA legal regime.
At this point, something needs to be said concerning commencement of proceedings in Common-law jurisdictions in Cameroon. Article 49 of the OHADA UAEM lays down two criteria of competence which these courts must meet to hear matters on enforcement of judgments: (i) courts sitting in urgent proceedings and (ii) courts sitting at first instance.
Matters are commenced before the high courts of Anglophone Cameroon by either writ of summons (civil summons), originating summons or alternative procedure for claim part 8 White Book, application (motion) or petition[28]. They are generally commenced before the courts of first instance by “plaint” or statement of claim. In Francophone Cameroon they are commenced either by the “assignation” (civil summons) or “requête” (petition). Some jurists have advanced arguments on the use of the singular definite article “the competent authority” by the OHADA legislator in identifying the competent judge as excluding the possibility of plurality of judges. However, it is now widely accepted by jurists that the definite article was employed in a generic manner such that it properly infers a plurality of competent judges[29].
Section 1: The Competent Judge to hear Disputes on Enforcement of Judgments
It must be underlined that, as a matter of course, several types of judgments are enforced. As far as the enforcement of costs in criminal matters is concerned, Section 401 (2) of the Criminal Procedure Code peremptorily provides as follows, “in case of difficulty in enforcing the order for payment of costs, the court that dealt with the matter may be moved by any party concerned.” The subsequent sections provide for the same judge to order the restitution of material proofs provided by the parties or seized objects. These provisions are understandable as they relate to the specific area of criminal law.
Much more Section 545 et seq., provides that the presidents of all courts shall “ensure” the enforcement of their orders and judgments. Warrants and court orders are generally enforceable immediately at the instance of the Legal Department. Section 545 (3) provides, however, that, “The prosecution and the parties shall each in their own sphere, follow up the execution of a judgment that has become final.”
Section 556 (3) adds that, “Civil awards shall be recovered at the instance of the party concerned from the date following the day on which the decision becomes final.”
Section 558 (2) (c) equally provides that, “Where the award is for the civil party and the judgment has become final, an imprisonment warrant shall issue at the instance of the civil party who has not been satisfied.”
Finally, Section 571 (1) (b) provides very importantly that, “The Legal Department or the civil party may at any time attach movable or immovable property of the convict up to the amount of the debt in accordance with the procedure for the enforcement of civil judgments.” This express provision indicates that the rules on enforcement and disputes thereto are those provided by civil law and procedure which is the OHADA law.
Section 49 of the OHADA Uniform Act on Measures of Enforcement is very clear when it provides that, “The competent authority to rule on all disputes or petitions relating to execution by distraint[30] or sequestration shall be the President of the court sitting in the course of urgent proceedings, or the judge delegated by him to that effect. His decision may be appealed against within fifteen days from the date it was delivered. The time limit for appeal and the exercise of the right to appeal shall not constitute a bar to enforcement except where by a reasoned ruling, the president of the competent court decides otherwise.”
There are several preliminary comments that may be made at this level. Firstly, the above provision circumscribes the material competence of these judges to two areas:
- All disputes relating to the enforcement of judgments by distraint or sequestration; and
- All petitions relating to the enforcement of judgments by distraint or sequestration.
Secondly, the spirit of the OHADA law is very clear, that is, disputes or petitions relating to the enforcement of judgments fall in the category of urgent proceedings and should be adjudicated by the judges who ordinarily handle urgent proceedings and must be adjudicated with urgency.
It is in view of the above that the Common Court of Justice & Arbitration, in CCJA Judgment No. 008/2002 of March 21, 2002 between La Societe Palmafrique v. Etienne Konan Bally Kouakou, for the first time, addressed this question by adopting the above-mentioned approach.
In the Palmafrique case, the court held, inter alia, that: “Whereas, relating to jurisdictional competence, Article 49 of the UAME provides, “the competent authority to rule on all disputes or petitions relating to execution by distraint or sequestration shall be the President of the court sitting in the course of urgent proceedings, or the judge delegated by him to that effect…”, that Article 33 (1) of the UAME which enumerates acts considered as writs of execution mentions decisions which are immediately enforceable and that rulings handed down in urgent proceedings are essentially provisional writs; whereas, on the heels of the above-cited provisions, on the one hand, the judge competent to entertain urgent proceedings has jurisdiction to entertain the dispute at hand; that the wide jurisdiction conferred by Article 49 of the UAME, open to “all disputes” or “all other petitions” relating to a compulsory enforcement measure includes “cases of urgency” and “disputes” relating to enforcement of judgements and all other writs of execution; that, on the other hand, the judge competent to entertain urgent proceedings can hand down writs of execution and as such, though the executory formula was not affixed to the challenged ruling which was served on Palmafrique, it nevertheless constitutes a writ of execution for the purpose of the afore-cited Article 33 (1) of the UAME…”
Thirdly, the legislator’s use of the all-inclusive expression, “all disputes & petitions” confers competence over both substantive and procedural issues which may arise during enforcement as the CCJA indicated in CCJA Judgement No.023//2009 of April 16, 2009, between the State of Cote d’Ivoire v. Estate of Bamba Fétigué & Akouany Paul (reported in the OHADA Compendium of Case Law Issue No. 13, January-June 2009, page 77)[31].
At this point it is apposite to clearly indicate that there exists a confusion among some practitioners between the “référé” procedure and the urgent procedure, which are not identical. While the référé judge under continental practice and procedure does not have power to hear the merits of a matter but rules provisionally, the judge entertaining urgent proceedings has powers to get into the merits of the case as well as to make provisional orders. The notion of urgency under continental civil-law and procedure is quite noteworthy in that, the first class of urgent proceedings known as référé (special or ordinary) do not touch the substantive aspect of the dispute as earlier indicated, while the second class of urgent proceedings relate to matters in general which require expedience, such as commercial matters. The latter class relates to matters wherein the courts adjudicate the merits of the matter and the powers of the court are unlimited.
Finally, the filing of an appeal against the decision of the judge does not have a suspensive effect, unless the court by a reasoned ruling decides otherwise.
The competence of the President of the court of first instance in Cameroon to entertain enforcement disputes emanates from Section 15 (2) of the 2006 law on judicial organisation which provides that, “the president of the Court of First Instance or the judge designated by him/her shall have jurisdiction to rule on motions on notice, rule on motions ex parte and decide disputes relating to the enforcement of judgments[32] of the Court of First Instance and any other document capable of such enforcement, except those of the High Court, Court of Appeal or Supreme Court”. This provision is corroborated by the 2007 law instituting the judge competent to entertain disputes relating to the enforcement of judgments.
Section 18 (2) (a) of the same law also provides that the High Court is competent to entertain disputes relating to the enforcement of the decisions of the High Court. This is equally corroborated by the 2007 law.
Section 22 (c) of the 2006 law on judicial organisation which previously conferred the jurisdiction to the President of the Court of Appeal to entertain disputes relating to the enforcement of judgments of the Court of Appeal has been repealed by the 2011 law on judicial organisation – although controversial parts of Sections 15 and 18 concerning the competence of the Court of Appeal and the Supreme Court on disputes relating to enforcement of decisions were curiously not repealed.
As we already mentioned above, it was the intention of the OHADA legislator to restrict jurisdiction to entertain disputes relating to the enforcement of judgments by distraint or sequestration to “the President of the court sitting in the course of urgent proceedings, or the judge delegated by him to that effect”, which is the Court of First Instance and the High Court if we are to go solely by the law on judicial organisation and the 2007 law.
The April 19, 2007 law which institutes the judge competent to entertain disputes relating to the enforcement of judgments, especially Section 3 devolves competence to the president of the court which handed down the decision or a judge of that court designated by him, naming specifically, the Court of First Instance, High Court, Court of Appeal and Supreme Court – hence creating four competent judges.
This diversity of judges competent to entertain disputes relating to enforcement of judgments created in these domestic laws brought about a lot of confusion in the minds of legal practitioners and led to forum shopping by some who did not want their causes to be thrown out of court for want of jurisdiction and lose unnecessary time and restarting such proceedings in the “proper forum”.
However, the solution of this legal conundrum was to be found in the provisions of the Cameroon Constitution as well as the OHADA Treaty. Article 45 of the Constitution provides that, “duly approved or ratified treaties and international agreements shall, following their publication, override domestic laws, provided the other party implements the said treaty or agreement.”, while Article 10 of the OHADA treaty provides that, “Uniform Acts shall be directly applicable to and binding on the States Parties notwithstanding any preceding or subsequent conflicting provisions of the domestic law.”
Additionally, Section 13 of the OHADA Treaty affirms the incontrovertible nature of the right to appeal by providing clearly, that, “Disputes relating to the application of the Uniform Acts shall be settled at first instance and on appeal therefrom by national courts of States Parties.” Hence, no action pertaining to the body of OHADA laws should be brought before a court which will undermine the appeal rights of parties. There are, however, some exceptions to this rule as provided in the various Uniform Acts – such as where the decisions are not subject to appeal. On the heels of these provisions, it was normally supposed to be evident to all that Section 49 of the OHADA UAME will override any conflicting domestic legislation.
The highest business law jurisdiction, the Common Court of Justice & Arbitration, adopted a similar approach in CCJA Judgement No.012/2002 of April 18, 2002, between La société Elf Oil Cote d’Ivoire devenue Total Fina Elf v. La société Cotracom in which the common court ordered the cancellation of a garnishee proceeding because a Court of Appeal had ruled on such dispute at first instance thereby violating the principle of double degree of jurisdiction as provided by Sections 13, 49 & 172 of the UAME.
The position of the Common Court was captured even more recently in CCJA Judgment No.109/2014 of November 4, 2014 between Chanas Insurance PLC v. AGF Cameroon PLC later Allianz Insurance PLC & ATEX Commodities, where the court held, inter alia, that:
“Whereas according to the provisions of Article 10 of the OHADA Treaty: “Uniform Acts shall be directly applicable to and binding on the States Parties notwithstanding any preceding or subsequent conflicting provisions of the domestic law.”; Moreover, it emerges from the provisions of Article 49 of the Uniform Act on Measures of Enforcement that all disputes or petitions relating to enforcement by distraint or sequestration, regardless of the origin of the writ of execution in pursuance of which the enforcement is carried out, falls under the prior competence of the President of the court sitting in the course of urgent proceedings and at first instance, or a judge designated by him/her; Whereas in the case at hand, the President of the Littoral Court of Appeal heard and determined this dispute relating to enforcement of judgments in blatant disregard of the provisions of the abovementioned Article 49 in handing down the ruling against which appeal now lies; That on the heels of the above, it is apposite to quash the said ruling for violation of the law. For the foregoing reasons…the court annuls Ruling No. 05/CE delivered on January 08, 2008 by the Littoral Court of Appeal in Douala.[33]”
It must be noted that one of the grounds of appeal that counsel raised was that the matter was determined by the Court of Appeal in violation of the principle of double degree of jurisdiction[34] and that the judge had erred in holding that the President of the Court of Appeal was competent to hear disputes on enforcement of judgments in pursuance of the 2007 law instituting the judge competent to hear such disputes.
The obvious ramification of this judgment of the CCJA is the abrogation of the conflicting provisions of Section 15 (2) of the law on judicial organisation as well as those of Section 3 of the 2007 instituting the judge competent to rule on disputes relating to enforcement of judgments.
On May 18, 2017 the CCJA once again delivered Judgment No. 131/2017 in Société Armement Safmarine Container Lines NV & Société Maersk Line Agency Cameroon PLC v. Société des Etablissements MONKAM, where the court held that:
“On the first ground of appeal relating to the violation of Article 49 of the UAME and Articles 10 and 13 of the OHADA Treaty; Whereas the appellant challenges the ruling handed down by the President of the Judicial Bench of the Supreme Court, hearing an application for the annulation of two process-verbal of sequestration of April 12 & 13, 2015 as well as a process-verbal of conversion into seizure-award of January 14, 2015, by relying on Law No. 2006/015 of December 29, 2006 on judicial organisation in Cameroon and Law No. 2007/001 of April 19, 2007 instituting the judge in charge of litigation relating to the enforcement of judgments, although pursuant to the above cited Article 49, the judge who is invested with prior competence to entertain all matters relating to enforcement of judgments is the President of the court sitting at first instance; that the judge delegated by the President of the Judicial Bench of the Supreme Court erred in law to hold that he was competent to entertain this matter; therefore, seeing that the above cited Article 49 as well as articles 10 and 13 of the OHADA Treaty relating to the principle of the supranational application of international law and double degree of jurisdiction have been violated, the ruling of the court should be annulled; Whereas per the provisions of Article 49 of the UAME, the president of the court competent to entertain urgent proceedings and at first instance or the judge designated by him has prior competence to entertain all disputes relating to measures of enforcement or conservatory measures; that therefore the order of the delegate of the First President of the Supreme Court having ruled on such matters incurs cancellation. For the foregoing reasons, the court annuls order No. 01/CE of April 15, 2015 handed down by the delegate of the First President of the Supreme Court[35].”
Moreover, Section 172 of the UAME provides, concerning appeals on disputes relating to garnishee proceedings, that, “The decision taken by the court which heard the matter shall be subject to appeal within fifteen (15) days of notification. The time limit for appeal and the notice of appeal shall suspend enforcement except the competent court decides otherwise in a reasoned ruling.”
This provision which prescribes appeal was interpreted by the CCJA in Judgment No. 012/2002 of April 18, 2002 in which the court ordered the cancellation of a garnishee proceeding because a Court of Appeal had ruled on such dispute at first instance thereby violating the principle of double degree of jurisdiction as provided by Section 172 of the UAME.
Section 2: Difficulties Identifying the Competent Judge to Hear & Determine Disputes on Enforcement of Judgments in continental civil law jurisdictions in Cameroon
It is worthy of note that prior to the entry into force of the OHADA laws and the passing of successive laws on judicial organisation in Cameroon, the issue of the competent judge in continental civil law jurisdictions in Cameroon to entertain disputes on enforcement of judgments was more or less settled by the provisions of Sections 182 and 183 of the French Civil & Commercial Procedure Code of December 16, 1954 which are to the effect that, “182 In all urgent proceedings, or where it shall be necessary to rule provisionally on disputes relating to the enforcement of writs of execution or a judgment, the following rules shall apply. 183 An application shall be brought before the president of the court of first instance or a judge of the peace with wide jurisdiction, or by a surrogate judge, at a day and time fixed by the court.[36]”
It is arguably on the heels of the above provisions and previous laws on judicial organisation that evolved in the continental civil law jurisdictions of Cameroon, the principle according to which the competent judge to rule on urgent proceedings relating to disputes on enforcement of judgments is the president of the court of first instance[37]. This practice was reinforced and enshrined in statutes by the provisions of the law on judicial organisation of 2006, although it created several other competent jurisdictions in spite of the OHADA law.
The clarity of the provisions of the Civil & Commercial Procedure Code in identifying the competent judge as the president of the CFI evolved with the subsequent domestic laws of 2006 and 2007 until this was visited by the CCJA once for all in a 2002 judgment[38] with which its case law has been consistent since.
The competent jurisdiction to entertain litigations relating to enforcement disputes depends on the judicial organisation of each member state of OHADA. While for some states the competent jurisdiction is the president of the court competent to entertain urgent proceedings or a special jurisdiction in charge of disputes on enforcement of judgments, for others it corresponds to a plurality of presidents of ordinary courts.
In the Democratic Republic of Congo (DRC) for example, the competent judge is contingent on the nature of the writ of enforcement and the quantum of claim for which execution is pursued. As such, presidents of courts of first instance, commercial courts, labour courts, and courts of the peace are all competent to entertain disputes on enforcement of judgments pursuant to conditions laid down by the UAME[39].
While this approach has not been adopted by the Cameroonian legislator, it is submitted that courts of original jurisdiction, especially the courts of first instance and high courts, generally have competence to entertain urgent matters.
It must be noted that with all the legislation on the competent judge to entertain disputes on enforcement, the competent jurisdictions for judgments emanating from several other courts have not been identified, such as disputes on decisions from the lower courts for administrative litigation, the Special Criminal Court, the lower Audit Courts, the African Court of Human & People’s Rights, the CCJA, and the CEMAC Court of Justice. Some jurists argue that the president of the court of first instance or his delegate will be competent to hear difficulties emanating from the execution of these judgments, although this is yet to be tested by the courts in practice. This analysis applies to decisions emanating from the appellate courts, in which case practitioners can refer to the quantum of claim, where applicable, to bring a dispute on enforcement either before the high court or the court of first instance.
Chapter Two
Disputes Relating to Compulsory or Forceful Enforcement of Judgments and Petitions Made Thereof[40]
After looking at the competent court/judge to entertain difficulties encountered during compulsory or forceful enforcement, we now turn to the crux of this paper which is the disputes themselves.
Before proceeding any further, we must take special note of key provisions relating to measures of enforcement both in the OHADA Treaty itself and in the UAME to properly appreciate their scope and ramifications. These could be found in the UAME, OHADA treaty and the CCJA Judgment No. 002/2001 of October 11, 2001 between époux Karnib v. Société Générale de Banques en Côte d’Ivoire.
Section 1: The Scope of the OHADA Rules
Article 1 of the OHADA Treaty provides, inter alia, that the object of the Treaty is to harmonise business law in member states by setting up appropriate judicial procedures, while Article 2 outlines the material competence of the OHADA Treaty as including, inter alia: “for the purpose of the treaty, business law includes…measures of enforcement…” More so, the scope of OHADA law as provided by Article 2 was extended by a decision of the Council of Ministers of March 23, 2001, clearly indicating that the OHADA legislator has gone past the traditional understanding of the term business law and extended his scope beyond business law per se[41].
In the same vein, Section 28 of the OHADA UAME provides that, “In default of voluntary execution, any creditor[42] may, regardless of the nature of his claim and under the conditions provided for in this Uniform Act, compel the defaulting debtor to honour his obligations towards him or take protective measures to secure his rights.” This provision is clearly all-encompassing and of general application and is clearly not limited to enforcement of judgments in the specific areas covered by OHADA business law per se – it contemplates debtor-creditor relations, whether they result from commercial or non-commercial litigation. As such, these rules are supposed to apply unless otherwise provided by domestic legislation or some other binding legal instrument.
Article 50 of the UAME is very crucial. It provides that, “All property belonging to the debtor may be the subject of attachment, even where the said property is held by a third party, save where it has been declared inalienable by the national law of each State Party. Attachments may also be carried out on conditional claims, immature debt or debts paid in instalments. The terms applicable to each of these obligations shall be binding on the distrainor.”
This position seems to be that which was followed by the CCJA in the above-mentioned case of époux Karnib v. Société Générale de Banques en Côte d’Ivoire. In this case, the creditors of SGBCI, an Ivorian couple, sued the debtor for payment before the court of first instance of Abengourou which condemned the defendants to pay the sum of more than 800 million FCFA and ordered provisional execution of more than 600 million FCFA. The judgment creditors caused to be served on the judgment debtor the court’s decision. The latter filed an appeal and sort for stay of provisional execution on the strength of articles 180 & 181 of the Ivorian Civil Procedure Code. The Abidjan court of appeal ordered a stay of provisional execution. But the judgment creditors appealed against the order for stay of provisional execution on the strength of Article 32 of the UAME which provides, “With the exception of the auction sale of immovable property, compulsory execution may be pursued by virtue of a writ of provisional enforcement. Execution shall then be carried out at the risk of the judgment creditor, who shall, where the writ is subsequently modified, be bound to fully make good any damage caused by the execution, irrespective of whether he was at fault or not.” On October 11, 2001, the CCJA reversed the ruling staying provisional execution handed down by the Abidjan court of appeal. By ruling thus, the CCJA held that because the ruling ordering stay of provisional execution affects the execution of a judicial decision, it is rightfully that the appellants seized the Common Court, which, as it was previously assumed, was not competent to entertain matters relating to enforcement procedures of judicial decisions per se which had been assumed to be the preserve of municipal law.
The Common Court also held that Article 32 of the UAME leaves no room for interruption of provisional enforcement (but for adjudication of real property), except to the distrainor, if the writ of execution is subsequently modified, to integrally repair the prejudice caused by such enforcement without there being any need to prove any fault on the distrainor’s part. It was rightfully, therefore, that the Common Court quashed the ruling of the appellate court of Abidjan ordering the stay of provisional execution carried out by virtue of a provisional judgment.
So, the traditional doctrinal definition of measures of execution consists in all the relevant procedures that may be deployed by a judgment creditor to obtain compulsory or forceful enforcement of writs of execution which entitle him to certain prerogatives or legal rights[43] which is distinct from judicial enforcement procedures per se, which are classically understood to be rules relating to the enforcement of judicial decisions, that is, procedures that have to be set in motion to stay provisional execution of judicial decisions which, according to some prominent jurists, was apparently left out of the scope of the OHADA law by article 16 of the treaty which provides, “The lodging of an appeal before the Common Court of Justice and Arbitration shall stay any proceedings pending before the highest appellate national Court. However, this rule does not concern the enforcement of the decision under appeal. Any such proceedings may only be relisted after the Common Court of Justice and Arbitration has declared its lack of jurisdiction.”
The significance of this CCJA judgement of October 11, 2001 between époux Karnib v. Société Générale de Banques en Côte d’Ivoire is that it questions the traditional understanding that the scope of the OHADA UAME is restricted to simplified recovery procedures of injunction to pay/deliver and measures of enforcement (sequestration, attachment & sale of tangible movable property, garnishee proceedings, attachment & assignment of earnings, seizure-apprehension of tangible movable property, attachment under a prior claim of tangible movable property, attachment of transferable securities or other partnership rights or shareholdings and attachment of real property).
The position of the Common court in the above definition has been heavily criticized by prominent jurists and legal practitioners who are persuaded that procedures engaged to obtain stay of provisional execution of contested judicial decisions fall within the material competence of national courts and are regulated by local laws on judicial organisation and not the OHADA law.
Section 2: The Nature of Disputes Relating to the Enforcement of Judgments & Petitions Thereof
So, we have seen, pursuant to Section 49 UAEM, that the competent authority to rule on all disputes (difficulties) or petitions relating to enforcement of judgments whether by distraint or sequestration is the President of the court sitting in the course of urgent proceedings and at first instance, or a judge designated by him/her who is admittedly the President of the Court of First Instance or High Court in Cameroon. We have, however, not yet seen the nature of disputes relating to enforcement of judgments and petitions that may be brought before that judge in pursuance of Section 49 of the UAME.
We have mentioned afore that it is trite per Section 28 of the UAME that a judgment creditor has the right to exercise compulsory or forceful enforcement on a recalcitrant judgment debtor. However, it is also true that he cannot go about forceful enforcement without respecting applicable rules as though the debtor had no legal rights. As such, bailiffs and enforcement officers are bound to respect the rights of the debtor while pursuing enforcement in pursuance of the judgment or any order so that they don’t infringe the rights of the debtor. Also, debtors and third parties, in certain situations, must conduct themselves in a manner that they avoid infringing the law or abusing the rights of the creditor.
The majority of petitions brought before the courts relating to enforcement of judgments are filed by judgment debtors, generally in a bid to thwart or frustrate enforcement by exploiting technicalities of the law. Classically, disputes on enforcement of judgments arise whenever it is alleged that the debtor’s rights are violated (such as the violation of their intimacy or private life and dignity when judgments are enforced on Sundays or public holidays or at certain hours of the day without the authorisation of the court, contrary to Section 48 UAME) or where the debtor or a third party acts in a manner as to obstruct or frustrate enforcement by the judgment creditor usually by failing to disclose, removing or concealing property[44] or misappropriating attached property[45] or by refusing or obstructing enforcement[46] or wilful insolvency[47]. Although the nature of these infringements may be criminal, we shall focus on the civil disputes which lead to litigation.
The responsibility for acts of infringement can be borne either by the judgment creditor where he enforces without a writ of execution or without the assistance of a bailiff who alone is competent to execute judgments, in which cases execution is generally annulled, where applicable. It may equally fall on the bailiff or any enforcement officer who infringes applicable rules of enforcement to the judgment debtor’s detriment. Finally, it may fall on the state, which has the legal obligation to lend its assistance during enforcement, where in violation of Section 29 of the UAME, the state refuses to lend its assistance to enforce a judgment upon which the executory formula has been affixed.
Some of the specific acts or difficulties that may trigger disputes relating to enforcement of judgments brought before the judge are manifold. Generally, matters that are brought before the president of the court of first instance involve some form of relative[48] or absolute[49] nullity of enforcement resulting from infringement of procedural formalities provided by the UAME, hence, the adages, “no nullity without a law[50]” and “no nullity without loss[51]”. These include, in a non-exhaustive way, the following:
1 – Abuse of the rights of the distrainee liable to lead to the annulling of the distraint
Section 28 of the UAME provides for enforcement measures to be carried out, primarily on movable property and where movable property is insufficient, on immovable property, except in the case of debts secured by mortgage or other privilege. Where this provision is not respected, it constitutes a violation of the rights of the debtor who may seize the competent court to annul such measures of enforcement.
There are several other incidents or irregularities which may arise during enforcement, provided by the UAME and which may be sanctioned with annulment.
The single most important provision relating to nullities is Article 297 which provides that: “The time limits provided for in articles 259[52], 266[53], 268[54], 269[55], 270[56], 276[57], 281[58], 287[59], 288(7)[60], 288(8)[61] and 289[62] above are subject to limitation by lapse of time. The formalities provided for by this Act and by articles 254[63], 267[64] and 277[65] above shall only be sanctioned by nullity where the irregularity caused loss to the party seeking to rely on it.”
The last part of Article 297 provides that, “nullity grounded on the lack of the adequate description of one or more of the attached property shall not necessarily entail the nullity of the proceedings in relation to the other properties.” In such a case, the judge is left with a lot of discretion to determine whether to nullify such proceedings regard being had to the circumstances of each case.
Indeed, in an opinion[66] of the CCJA, the common court said that, “the UAME has expressly provided that non-compliance with certain prescribed formalities is sanctioned by nullity. However, relating to some formalities specifically enumerated in the Uniform Act, nullity can be pronounced only if the irregularity caused prejudice to the interests of the party relying on it. But for these specifically enumerated cases, the judge is bound to annul the said acts when invoked where he finds that the prescribed formality under pain of nullity has not been complied with, and he does so without any need to ascertain whether the said irregularity caused any form of loss or injury to the party invoking it”[67].
In application of Article 297 UAME, which concerns especially attachment of real property proceedings, all the other formalities or prescriptions contained in the Uniform Act which do not form part of these nullities which prejudice the interests of the party invoking them does not form part of the rule. We can cite in a non-exhaustive manner the following examples: the mandatory indications or contents of the extra-judicial act serving to the respondent the injunction to pay or deliver orders, process-verbals of attachment (sequestration, attachment and sale), mandatory indications relating to extrajudicial acts served on the debtor notifying him of the attachment of property in the hands of third parties or other persons, mandatory indications on extrajudicial acts converting conservatory measures to measures of execution per se, mandatory indications on writs of attachment such as attachment and sale, writ of attachment and award, seizure apprehension, etc., and finally, mandatory details which are to be indicated by creditors in acts challenging writs of attachment and sale and writs of seizure apprehension, etc[68].
2 – Obstruction by the distrainee
It happens, sometimes, that, the bailiff confronts difficulties to enforce judgments, for example when access or entry into the place of enforcement is denied or blocked. In such cases, Section 48 of the UAME provides that, “In case of any difficulty in the enforcement of a writ of execution the bailiff or process-server may, of his own motion, refer the matter to the competent court.”
He may nevertheless, request the assistance of competent authorities to enable forceful enforcement, prior to referring the matter to the competent court. Where the state fails to lend its assistance to such judgment creditors, it will be liable for violating its treaty obligations.
We have already mentioned above that obstruction to enforcement is a crime punishable under the Cameroon Penal Code.
3 – Refusal by third parties to lend their assistance to the enforcement although they are required by law to do so
Third parties are neither creditors nor debtors, but are those in whose hands the property of the debtor is found and on whom execution can be carried out. As third parties they have responsibilities and sanctions can be meted against them for violating these responsibilities.
Where the distraint is carried out in the hands of a third party such as a bank or financial establishment, the latter is obliged, pursuant to Section 161 of the UAME, to declare the nature of the account(s) of the debtor and the balance(s) in the account(s) on the date of the attachment.
Following the conversion of a sequestration to an award, the third party has the obligation to pay up the judgment debt to the creditor.
Article 38 of the UAME provides, “Third parties may not obstruct proceedings for the enforcement or the protection of a claim. They shall lend support to such proceedings where so required by law. Failure by them to fulfil these obligations may make them liable to pay damages. A third party distrainee may also, under the same conditions, be ordered to pay for the judgment debt, subject to his filing an action for recovery against the debtor.”
4- Enforcement of a judgment notwithstanding appeal which has reversed the judgment
This is covered by Article 32 of the UAME which provides for compulsory enforcement on movable property by virtue of a provisional writ of enforcement, at the risk and peril of the judgment creditor, who shall, where the court reverses the lower court’s decision, be bound to fully make good any damage caused by enforcement. The liability of the judgment creditor in such circumstances is strict (without fault).
It has already been indicated above that through an October 11, 2001 judgment, the CCJA established the principle that Article 32 of the UAME leaves no room for the stay of provisional enforcement of judgments.
5 – Distraint of inalienable or exempt property
Sections 50 and 51 of the UAME provides that certain properties are inalienable as identified by domestic laws of State parties. This concerns mostly property which is indispensable for subsistence (clothing, kitchen utensils and equipment, food supplies, beds and sleeping wear, personal documents, part of debtor’s income, pensions, etc.) and the professional equipment and tools of the debtor[69].
Convention 95 (1949) of the International Labour Office protects the worker’s income from attachment or execution. Article 10 (2) of the Convention specifically provides that, “Wages shall be protected against attachment or assignment to the extent deemed necessary for the maintenance of the worker and his family.” Article 177 of the UAME follows this convention provision by prescribing that earnings may be attached or assigned in the proportion determined by domestic laws[70].
Also, Article 36 (1) of the UAME provides that attachment shall render the property attached inalienable or exempt from execution. This provision compels debtors whose properties have been previously attached to disclose such measures to new creditors about to attach the same property, indicating the identity of the previous creditor who carried out attachment.
6 – Order of Payment of Debts in Instalments
An eligible judgment debtor may, pursuant to Article 39 of the UAME, seize the competent court with a view to postpone or order payment by instalment of the debt over a period not exceeding one (01) year. In ordering such payment, the court takes the situation of the debtor and the needs of the creditor into consideration. Claims arising from maintenance allowance or debts arising from exchange transactions are exempt from such orders.
7 – Extinction or Reduction of the debt
In some cases, the debtor may challenge enforcement proceedings based on the extinction or reduction of the debt with a view to escape ongoing execution.
8 – Third Party Intervention
In some circumstances third parties whose interests are at stake may intervene, such as other creditors or persons other than creditors of the debtor, by means of an action for claim of ownership or diversion. This is the case where, for example, the property distrained does not belong to the judgement debtor or where property belonging to the third party was erroneously distrained.
Chapter Three
Trial of Matters relating to Enforcement of Judgments
The contentious and substantive nature of the proceedings relating to disputes on execution predetermines the mode of commencement, which is, per Articles 48 (bailiff difficulty of execution), 170 (garnishee), 298 (attachment of real property)) of the UAME, by application for writ of summons and by petition per Article 49 of the UAME.
When the matter is enrolled for hearing, the parties are given the opportunity to present their case and defense after which the matter is adjourned for delivery of judgment. The matter is heard as an urgent proceeding, though the OHADA law doesn’t provide any deadlines for hearing and determination by a ruling. However, Section 3 (3) of Law No. 2007/001 of April 19, 2007 to institute the judge in charge of disputes relating to execution of judgments provides for the matter to be disposed of within thirty (30) days from the time the matter is introduced. For justifiable and unjustifiable reasons, statutory procedural deadlines are generally not respected in Cameroon.
Article 49 (2) of the UAME, like Section 3 (4) of the 2007 law provides for appeals against the court’s ruling to be filed within fifteen (15) days from the date of delivery of the judgment and not the date of service of judgment. The law is very clear as to the non-suspensive effect of the time limit to file appeal and the appeal itself, but for exceptional cases when the president of the competent court decides otherwise by a reasoned ruling ordering stay of execution. Therefore, the general rule is that the judge’s ruling is immediately enforceable. Section 3 (4)(b) of the 2007 law adds that, “the time-limit for the appeal, as well as the introduction of the said appeal, shall not stay execution of the decision unless the President of the Court of Appeal takes a particularly reasoned decision to the contrary.”
The exception to the rule of provisional execution of rulings of the judge in charge of litigations relating to enforcement of judgements is in the case of garnishee proceedings[71], where the time limit for appeal and the notice of appeal suspends enforcement except where the competent court decides otherwise in a reasoned ruling[72]. It will be recalled that the CCJA case of époux Karnib v. Société Générale de Banques en Côte d’Ivoire, mentioned supra, established the principle that provisional execution ordered pursuant to Article 32 and 33 of the UAME was not subject to an order of stay of execution by an appeal court.
This position has been confirmed in several other CCJA judgements such as:
– Judgement No. 008/2006 of March 30, 2006, between The Beneficiaries of the Estate of KOUAHO OI KOUAHO Bonaventure v. Sté SIDAM et Sté CARPA,
– Judgement No. 001/2006 of March 9, 2006, between Société Abidjan Catering S.A v. L.M and,
– Judgement No. 004/2009 of February 5, 2009, between Société d’Exportation et de Négoce de Bois Tropicaux dite SENBT, Compagnie Owendoise de Tracteurs dite CONTRAC, Monsieur Y v. Société Gabonaise de Crédit Automobile dite SOGADA.
It is true that most of the above-cited decisions involved the stay of provisional execution which had already been commenced. But one can wonder whether the decision of the Common court will be any different had the provisional execution not been commenced at all.
On a more important note, the moment of commencement of enforcement is very polemical as acts of enforcement must first be defined before possibly identifying, with precision, the moment when enforcement can be said to have legally commenced. The CCJA has weighed in on this question by identifying some acts of enforcement which legally set enforcement in motion by actually alienating property partially or totally, such as:
- process-verbal (report) of attachment and sale,
- publication of summons to pay in an attachment of real property procedure,
- process-verbal of attachment and award, etc.
The CCJA has often held that service/notice of judgment does not constitute an act of execution for the purpose of attachment and award.[73]
That said, when matters are heard and determined on appeal in domestic jurisdictions, final appeals can then be filed before the CCJA which is the court of final appeal on decisions delivered by appellate courts of member states on matters relating to the Uniform Acts and rules provided for in the OHADA Treaty, but for decisions applying criminal sanctions[74].
Per Article 16 of the Treaty, the lodging of appeals before the CCJA stays any proceedings pending before the highest appellate courts in member states, without prejudice to the enforcement of decisions under appeal. In other words, in disputes on enforcement of judgments, appeals to the CCJA do not have a suspensive effect on enforcement.
Finally, Article 20 of the OHADA Treaty provides that, “Judgments of the Common Court of Justice and Arbitration are final and enforceable. They shall be enforceable in the States Parties in the same manner as decisions of national courts. Any decision which is contrary to a judgment of the Common Court of Justice and Arbitration delivered in respect of the same matter shall not be enforceable in the territory of a State Party.”
For related resources, click here.
[1] Covered in Book II of the OHADA Uniform Act of April 10, 1998 on Simplified Procedures for the Recovery of Debts and Measures of Execution.
[2] This is referred to in French as “contentieux de l’exécution”, specifically relating to the compulsory or forceful enforcement of judgments and other acts cited in Section 2 paragraph 1 of Law No. 2007/001 of April 19, 2007 Instituting the Judge Competent to Entertain Litigations Relating to the Enforcement of Judgments and Laying Down Conditions for the Enforcement of Foreign Judgments, Public Acts and Arbitral Awards in Cameroon.
[3] My translation of an excerpt of “Le Règlement du Contentieux de l’Exécution Forcée en Droit de l’OHADA” by barrister Roger Mulamba, August 2, 2017.
[4] Online Legal Dictionary (The Free Dictionary by Farlex).
[5] Provisional enforcement is an exceptional mechanism which enables the successful party to anticipate the enforcement of a decision of the appellate court, despite the principle that deadlines to file appeals and appeals (or other applications) may suspend the enforcement of judgments.
[6] See Section 396 (2) Cameroon CPC.
[7] This was the dispensation prior to the coming into force of the Criminal Procedure Code on August 25, 2006 which was affirmed by the CPC.
[8] Section 110 & 111 of Law No. 2006/022 of December 2006 to lay down the organisation and functioning of the lower courts for administrative litigation.
[9] Section 4 (1) (a) 1992 Law: “Whenever provisional execution has been ordered in cases not provided for in Section 3 above, the appellant may, by an application addressed to the President of the Court of Appeal, obtain a stay of provisional execution of the judgement under appeal”.
[10] They include: maintenance claims, contractual debts due and owing, eviction based on land title or written lease agreement with a defeasance clause, the conditions of which have been met, compensation for damages resulting from offenses against private interest covering justified expenses and costs incurred in emergency treatment, costs of transportation or transfer of victim, cost of drugs, hospitalisation and medical expenses for physical harm, and incontestable salary arrears.
[11] Section 1 (1) (b) of Decree No. 79/448 of November 5, 1979 modified by Decree No. 85/238 of February 22, 1985 and Decree No. 98/170 of August 7, 1998 regulating the functions and laying down the status of Bailiffs & process servers, provides that, “bailiffs are officers of the court (or court officers) who have quality (legal standing) to carry out the enforcement of judgements and all other acts eligible for forceful or compulsory enforcement”.
[12] Section 181-1 provides, “(1) Whoever refuses to enforce a court judgement that has become final shall be punished with imprisonment for from one (01) to five (05) years. (2) Whoever obstructs the enforcement of a judgement that has become final without referring to the judge in charge of enforcing court judgements shall be punished as provided for in subsection (01) above. Where the offender is a public servant as defined in Section 131 of this Code, criminal prosecution shall not bar disciplinary proceedings. (3) Where the offender is a corporate body, as defined in Section 74-1 of this Code, the penalty shall be a fine of from 200,000 FCFA to 10,000,000 FCFA.”
[13] These institutions were copyrights collective management bodies.
[14] Per Section 35 (1) (i) of Law No. 2006/016 of December 29, 2006 to law down the organisation and functioning of the Supreme Court, the decisions of the Joint Divisions of any one of the three (03) benches of the Supreme Court have binding effect on all courts on the national territory to the point that they may be equated to law. As such, contempt of a decision emanating from such an institution equates to outright contempt of law.
[15] Justice Mokwe who was the President of the Fako High Court at the time was subsequently punitively transferred to the Meme High Court as Vice President by the Higher Judicial Council which is chaired by the head of the executive branch of the state. The HJC is the institution in charge of managing the career of judges and prosecutors in Cameroon.
[16] It is trite law that a ruling granting exequatur for an award is not to be viewed as part of the enforcement process itself, but as a judicial act which is susceptible to enforcement. As such controversies or difficulties which may arise during the application for exequatur do not fall in the category of difficulties in the course of enforcement of judgements nor of the subject matter of this paper.
[17] Section 30 which provides in its first part that, “Compulsory execution and protective measures shall not apply to persons who enjoy immunity from execution.”
[18] Law No. 99/016 of December 22, 1999 on general rules and regulations governing public establishments and enterprises of the public and semi-public sector which has been repealed by two instruments, that is:
-Law No. 2017/10 of July 12, 2017 to lay down the general rules and regulations governing public establishments, and
-Law No. 2017/11 of July 12, 2017 to lay down the general rules and regulations governing public corporations.
[19] Dr. Gaston Kenfack Doujni, “Propos sur l’immunité d’exécution et les émanations des Etats”, in Revue Camerounaise de l’Arbitrage, No. 30, September 2005, P.3.
[20] See the International Law Commission’s Draft Articles on the Jurisdictional Immunities of States and their Property, 30 ILM (1991) 1554, adopted by Resolution 59/38 of the UN General Assembly on December 16, 2004 as the United Nations Convention on Jurisdictional Immunities of States and their Property.
[21] See for example Section 14, 16, 22, 27 of the Penal Code
[22] (i) OHADA Uniform Act on Simplified Recovery Procedures and Measures of Enforcement of Judgements,
(ii) Law No. 97/18 of August 7, 1997 amending and supplementing the provisions of Law No. 92/008 of August 14, 1992 Relating to the Enforcement of Court Judgements,
(iii) Law No. 2007/001 of 19 April 2007 to Institute a Judge in Charge of Litigation Related to the Execution of Judgements and lay down Conditions for the Enforcement in Cameroon of Foreign Court Decisions, Public Acts and Arbitral Awards,
(iv) Law No 2006/15 of December 29, 2006 on Judicial organisation as amended and supplemented by Law No. 2011/027 of December 14, 2011,
(v) Decree No. 2002/299 of December 3, 2002 Designating the Registrar-in-Chief of the Supreme Court as the authority in charge of affixing the executory formula on CCJA Awards, (vi) Law No. 75/18 of December 18, 1975 Designating the Supreme Court as the Competent Court to grant exequatur on ICSID awards in view of judicial execution in Cameroon,
(vii) Decree No. 93/754/PM of December 15, 1993 Setting the Maximum Amount in Provisional Judgements with Waiver of Deposit,
(viii) Decree No. 79/448 of November 5, 1979 modified by Decree No. 85/238 of February 22, 1985 and Decree No. 98/170 of August 7, 1998 regulating the functions and laying down the status of Bailiffs & process servers,
(ix) Law No. 2004/015 of April 21, 2004 to lay down the statutory interest rate relating to enforcement of judgements and contractual interest rates.
[23] Some schools of thought prefer to describe Cameroon as a mixed judicial system comprising not just Common-law and continental Civil-law, but also customary law from the diverse ethnic groups. Some eminent jurists have even described Cameroon as a hybrid (Barrister Eta Besong Emmanuel).
[24] Section 68 of 1996 Cameroon Constitution and previous constitutions provide almost word verbatim, that, “The legislation applicable in the Federal State of Cameroon and in the Federated States on the date of entry into force of this Constitution shall remain in force insofar as it is not repugnant to this Constitution, and as long as it is not amended by subsequent laws and regulations.”.
[25] Meme Lawyers Association v. Registrar-in-Chief, High Court, Kumba & Registrar-in-Chief, Court of First Instance, Kumba (Suit No. HCK/68OS/99-2000, November 17, 2000, 2001 1 CCLR Part 7).
[26] Refers to the body of legal norms which are applied by the institution which is competent to entertain constitutional matters such as the Constitutional Council in Cameroon, including implied norms, generally recognized fundamental principles and principles with constitutional value.
[27] Refers to principles developed purely by case law, such as respect for human dignity, respect for privacy, freedom of enterprise, the principle of the continuity of the state and of the civil service, gender equality, etc. A Kelsenian interpretation of this principle will imply that laws which violate these principles will be considered unconstitutional.
[28] Mbah-Ndam Joseph, Practice & Procedure in Civil & Commercial Litigation in the High Courts of the North West & South West of Cameroon, Yaoundé, 2003, pages 23-72, PUA.
[29] Dr. Joseph Fometeu, “Le Juge de l’Exécution au Pluriel ou la Parturition au Cameroun de l’article 49 de l’Acte Uniforme OHADA portant voies d’exécution », Yaoundé, 2007, Page 99 et seq., published in Juridis Periodique No. 70, APRODA.
[30] Distraint or distress is “the taking, either with legal process, or extrajudicially subject to the performance of some necessary condition precedent, by a private individual or by an officer of the court, of a personal chattel, out of the possession of a wrongdoer or defaulter and into the custody of the law to be impounded as a pledge in order to bring pressure to bear upon the owner of the chattel to redress an injury, to perform a duty, or to satisfy a lawful demand, subject, however, to the right of the owner to have the chattel returned to him (upon) the injury being redressed, or the duty performed, or the demand satisfied or upon security being given so to do”: Black’s Law Dictionary, 8th Edition, 2004, Page 508.
[31] The holding of this decision is identical to the CCJA’s holding in the Palmafrique case in whch the CCJA quashed judgement No. 34 of January 9, 2001 of the Abidjan Court of Appeal and held that, “The President of the Court of First Instance of Abidjan erred in law in holding that he was incompetent to entertain an application filed by SIB against a seizure-award dated July 21, 2000 executed at the behest of CIENA…on the ground that, “Article 222 (2) of the Ivorian Civil Code prohibits rulings on the merits in urgent proceedings which prejudice decisions handed down by superior courts, meanwhile it is evident from the analysis of Article 49 of the UAME that the presiding judge of the court sitting in urgent proceedings or the judge designated by him, is competent to rule on all disputes or petitions relating to enforcement measures…”
[32] Motions are by nature urgent proceedings.
[33] The translation is mine.
[34] Section 13 of the OHADA Treaty provides, concerning the right to appeal, that, “Disputes relating to the application of the Uniform Acts shall be settled at first instance and on appeal therefrom by national courts of States Parties.”
[35] The translation is mine.
[36] The translation is mine.
[37] Le juge de l’urgence est le juge des référés et des requêtes et le juge des référés est le président du tribunal de première instance. In the continental civil law jurisdictions of Cameroon, High Courts exceptionally entertain « requêtes » only in divorce proceedings and no more. The usual mode to seize the high court is by “assignation”. This procedural detail doesn’t strip the high court of its competence though.
[38] CCJA Judgement No.012/2002 of April 18, 2002, La société Elf Oil Cote d’Ivoire devenue Total Fina Elf C/ La société Cotracom, and more recently in Chanas Insurance PLC v. AGF Cameroon PLC later Allianz Insurance PLC & ATEX Commodities (November 2014), op. cit.
[39] In “Le Règlement du Contentieux de l’Exécution Forcée en Droit de l’OHADA” by Barrister Roger Mulamba, August 2, 2017.
[40] This is referred to in French as “contentieux de l’exécution” simpliciter.
[41] Martha Simo Tumnde, The Applicability of the OHADA Treaty in Cameroon: Problems and Perspectives, Annals of the Faculty of Law & Political Science of the University of Dschang, Special Issue, Presses Universitaires d’Afrique, 2002, Page 24.
[42] From this provision, one can conclude without fear of contradiction that the OHADA laws regulate debtor-creditor relations, irrespective of the nature or origin of the debt itself.
[43] Justice Gaston Kenfack Douajni, “le contentieux de l’exécution provisoire dans l’Acte uniforme relatif au droit de l’arbitrage”, in Revue Camerounaise de l’Arbitrage, No. 16, January-February-March 2002, Page 3.
[44] Fraudulent debtor pursuant to Section 331 Cameroon Penal Code.
[45] Section 190 Cameroon Penal Code.
[46] Section 181-1 Cameroon Penal Code.
[47] Section 181 Cameroon Penal Code.
[48] The judge will annul the enforcement, with retrospective effect, if the petitioner proves that he has suffered injury/prejudice as a result of the non-compliance with procedural formalities.
[49] The judge will annul the enforcement, with retrospective effect, regardless of any injury that the petitioner/applicant has suffered as a result of non-compliance with procedural formalities.
[50] In French, “pas de nullité sans texte”.
[51] In French, “pas de nullité sans grief”.
[52] Relates to endorsement and publication of original of summons to pay by the land registrar or concessionaire administrative authority at the instance of the bailiff or process server, failure which the procedure for attachment of real property must be recommenced all over.
[53] Filing of terms of reference at the registry of the territorially competent high court within fifty (50) days of the publication of the summons to pay, under pain of forfeiture.
[54] The date of the sale is fixed in the deposit deed of the terms of reference at the earliest forty-five (45) days and latest ninety (90) days from the date of filing the said document.
[55] Relates to service of summons to consult the terms of reference to the judgement debtor and registered creditors, under pain of nullity.
[56] Contains the mandatory contents of the summons to consult the terms of reference, which must be indicated in it under pain of nullity.
[57] Relates to the publication of the sale (extract of terms of reference) in a newspaper authorized to publish legal notices and affixing of posters at the door of the residence of the judgement debtor, the competent court or the chambers of the approved notary public, etc.
[58] Relating to the five (05) days before auction sale deadline to file an application for adjournment of the date fixed for the auction sale.
[59] Deadlines to place a higher bid (higher than 10% the purchase price) within ten (10) days following adjudication.
[60] The contingent hearing after a higher bid has been placed may not be scheduled before the expiry of a period not exceeding twenty (20) days from the date of disclosure.
[61] The date of the new auction sale which may not be scheduled earlier than thirty (30) days from the date of the contingent hearing after the higher bid.
[62] The five (05) days deadline to file objections relating to the higher bid and affixing of posters at least eight (08) days before the sale.
[63] The requirement of a summons to pay in a proceeding of attachment of real property and the indications (contents) which must be mentioned on the summons and service of summons to debtor and creditors, under pain of nullity.
[64] Relating to the contents of the terms of reference, under pain of nullity.
[65] On pain of being declared void, the extract of the terms of reference must contain certain details.
[66] C.C.J.A., Opinion N° 001/99/JN of July 7, 1999.
[67] The translation is mine.
[68] Prof. Joseph Djogbenou, “Les Procédures d’Exécution et le Régime des Nullités des Procédures de Droit OHADA”, ERSUMA, 2011, page 25.
[69] Sections 315 and 327 of the French Civil & Commercial Procedure Code lists such inalienable property. Traditionally, under the Common-law, properties exempt from attachment or execution include: retirement funds, medical insurance contributions, a percentage of the debtor’s earnings, equipment prescribed by a medical practitioner, personal documents and books, necessary household goods, furnishings, clothes, personal effects, pictures, professional library, child welfare assistance, alimony, the tools, team, implements or stock in trade of the debtor used and kept for the purpose of carrying on his trade or business, etc.
[70] Decree No. 94/197/PM of May 9, 1994 relating to withholdings on wages contains implementing provisions of Section 75 and 76 of the Labour Code.
[71] Article 172.
[72] Per practice in the continental law jurisdictions of Cameroon, there exists a difference between a decision which is “exécutoire par provision” and that which is “exécutoire sur minute”. The first refers to decisions which may be stayed by another decision if certain conditions are met, while the latter refers to decisions which may not be stayed for whatever reason. It appears that the intention of the OHADA legislator was for Article 49 of the UAME to have the effect of the second category of immediate execution.
[73] See CCJA Judgement No. 011/2007 of March 29, 2007, between Olivia Yaovi & others v. Banque Internationale pour l’Afrique au Togo dite B.I.A-TOGO S.A, reported in OHADA Compendium of Case Law No. 9 of January/Juin 2007, page 79.
[74] Article 14 of the OHADA Treaty.