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In civil, commercial and labour field, when the request is higher than 5.000.000 F CFA. It is also qualified out of civil matter to entertain/adjudicate on actions and procedures as regards the state of the persons (civil status, marriage, Filiation).

 

b) Appeal Court

An Appeal Court is created in every province however, for the needs of service; the spring of a Court of Appeal can include several provinces. It is made up of a president, 1 or several vice/deputy presidents; 1 or several advisers; an attorney general; a prosecuting attorney; 1 or several substitutes of the attorney general; one or more attachés with the Prosecutors Office ; 1 clerk as a chief, 1 or several clerks

 

 

c-The Supreme Court

It is the supreme jurisdiction. It sits in Yaoundé, its spring spans over all of the national territory

 

It is composed of a president, presidents of chambers, advisers titular or temporary, an Attorney General, Advocate generals, substitutes of the Attorney General, 1 clerk-in-chief and clerks.

 

The Supreme Court rules on recourse and appeals in cassation formed against the decisions rendered in last spring by the Cameroonian jurisdictions except the High Court of Justice. The Supreme Court does not rule on the facts of the lawsuit, but only the decision or judgement in issue of which it checks conformity with the law: it judges the law and not the fact. It plays an essential part in the assertion of the coherence and uniformity of case law

 

Special attributions of the Supreme Court are as follow:

 

- The Supreme Court is a Constitutional judge, it controls the Constitutionality of the laws and section the electoral litigations.

- The Supreme Court rules on the litigations of competence. There is conflict of competence on two assumptions: when two authorities or jurisdictions allot the knowledge of same a affaire(positive conflict of law); when two jurisdictions refuse one and the other to adjudicate on a case under the conditions of denial of justice(negative conflict of law)

-

The Supreme Court is the administrative judge; it knows all the litigations which blame the public person.

 

2- Traditional/customary jurisdictions

The traditional jurisdictions of the former Southern Cameroons are Alkali Courts (for the Moslems) and Customary Courts. In Eastern Cameroun (French-speaking) one distinguishes the Courts of first degree and the customary Courts.

 

Theoretically, the customary law jurisdictions[41] have in vocation to apply the customs for the settlement of the litigations which are brought to them. But taking into account the diversity of customs and owing to the fact that there does not exist in Cameroon a collection of customs[42], it was instituted assessors[43] whose mission is to help the president of the jurisdiction to form his decision according to the customs that they represent

 

a) In the former Eastern Cameroon

 

The above mentioned Decree of December 19, 1969 organizes the competence of the traditional jurisdictions of the former Eastern Cameroon which are divided in Courts of first degree and customary Courts



 

- Courts of first Degree

They are found at the subdivision level. They are composed of a president, a non professional judge named by the Minister for justice and assisted by 2 assessors, ordinary citizens who are entitled to vote. The president is replaced by the sub-division officer when he is unavailable.

By a Decision of the Minister for justice, the president of the Court of first degree can preside over Court of First degree.

 

The Court of first degree has jurisdiction over questions relating to the state of the people, marriages, civil status, succession, filiation and with the real estate. For all these questions, it is the customs and usages of the parties which apply. In the event of conflict, one seizes a jurisdiction of written statutory law

 

- Customary Courts

They are organized on the level of the Districts. They are composed of a president appointed by Decree of the Minister of justice and assisted of two assessors. The competence of the Customary Court is limited to the questions of a patrimonial nature and in particular of the requests for recovery of the civil or commercial debts, damages resulting from contracts.

 

Ordinance Nr 72/4 of August 26, 1972 and the modifying texts subsequent distribute these same matters with the two kinds of courts of written law subject to competence ratione personae. Thus, as regards the personal status, competence is shared between the High Court and the Court of First Degree. However, the competence of the Court of First Degree is residual, it is maintained only if one of the parts did not decline it in limine litis.

 

This solution differs from the preceding one according to which one needed the agreement of the parties to decline the competence of the Traditional Court. Today the unilateral will of a party is enough. Subsequently, the competence of the High Court is widened indeed, it has jurisdiction as soon as the competence of the Court of first degree is declined.

 

b) In the Former Southern Cameroons

The distribution of competences between the Traditional law Courts and the modern courts is the same one. Let us specify nevertheless that Customary Courts know the litigations concerning "Native" not the Moslems subjected to the local customs and that Alkali Courts. They are competent to judge all the litigations where the Moslems are involved. The tendency until very recently was to apply before Alkali Courts the Moslem law as customs for of the parties. Indeed, in all the case where the Moslems were interested, the judges always refer to Moslem law as customs of the parties[44]

 

But since the judgment of the supreme Court of 10 October 1985 (Dame Dada Balkissou[45]) The Garoua Court of Appeal's judgement of May 13, 1982, decided that the religious conviction of the parties is not constitutive any more of the applicable customs before traditional jurisdictions. Indeed, Cameroun is a laic State, customs are understood as the manifestation of the Cameroonian genius in its diversity apart from any religious or foreign influence. This call to order is welcome. The Moslem law, like the canonical law, is neither an institution, nor a clean custom in Cameroon which must moreover preserve the laic character of the State[46].

 

At the level of the Court o appeal, it is necessary to make a distinction between an appeal against the decisions of Customary and Alkaly Courts and the appeal against the judgements of the Courts of first degree and the customary Courts. The law NR 79/04 of June 29 1979 which attaches Customary and Alkaly Courts to the ministry for justice lays out expressly that when the Court of Appeal rules on the judgements of these jurisdictions, it is supplemented by two assessors serving in an advisory capacity and representing the customs of the parties. Paradoxically, in the event of appeal against the decisions of the Courts of first degree and the customary Courts, the texts did not envisage the presence of the assessors in the composition of the Court of Appeal. Admittedly the Court of Appeal sits in formation known as customary chamber, but, generally a judge, assisted by a clerk, , sits without any assessor, no text requiring it. It thus arrives very often that under the thin disguise of customs, one applies the written law.

 

The legislator thus works in a subtle way to limit the competence of the traditional Courts and the application of the traditional law. Indeed, the methods of nomination assessors do not make it possible to achieve the required goal[47]. Much more, certain difficulties whose legislator undoubtedly did not perceive the importance limit considerably the role of the assessors before the traditional jurisdictions. On the one hand, a the level of the Courts, the customs are still not represented, on the other hand, the principle of the double degree of jurisdiction is not suitably protected as regards local law.

 

The difficulty of an effective participation of the assessors in the administration of justice, or at least of the perfect representation of customs thus results from two major facts: before the traditional jurisdictions, there is regularly absence of suitable customary representatives and when the assessors are regularly appointed to sit, they are characterized by a notorious inefficiency.

With regard to the criminal matters, it should be stressed, as far as the jurisdictions of Former Eastern Cameroun that, articles 17 to 24 of the decree of July 31, 1927 and 29 to 34 of the same text specified as the Courts of first degree and of second degree had competent on repressive matter. In 1946, the article one of Decree 46.877 of 30 April 1946 (JOC 1946 p. 705) supplemented by another decree (Nr 46/2252 of October 16, 1946) removed from these jurisdictions the penal matters. Article 1 of this Decree reads: "From July first, 1946 in Cameroon, the French jurisdictions only shall competence on penal matter, in accordance with the applicable legislation before these jurisdictions and to the exclusion any indigenous jurisdiction", all the infringements made by the natives. To avoid any ambiguity, article 2 precise that: "the indigenous penal code is repealed".

 

On the other hand, in the former Southern Cameroons, article 14 of Customary Courts Ordinance, chapter 142 of 1948 laid out that the s Alkali and customary could entertain both civil and repressive cases with the only difference that the first knew the litigations adjudicated on the Moslems were involved whereas the second adjudicated on litigations relating to the non Moslem people. The repressive competence of these jurisdictions was maintained until 1989.

 

Indeed Law Nr 89/019 of 29 December 1989 modifying and supplementing certain provisions of the Ordinance Nr 72/4 August 26 1972 relating to judicial organization in its article 26 stresses that the organization of the jurisdictions of traditional law and the procedure to be followed before those courts them are, other than the penal competence of Customary Courts, temporarily maintained

In other words, since the coming into force of this law, Customary Courts cease to have jurisdiction on the penal cases[48]

 

Section 2- The effect of pluralism

 

The pluralism of the legal rules is, in Cameroun, source of internal disputes and factor of complication of the international disputes. But it causes also enrichment of general legal fabric to the example of the positive influence of the procedural principles of Common Law.

 

I- The influence of the procedural principles of Common Law

Some particular aspects and innovations of the Ordinance Nr 72/4 of the 28-08-72 relating to judicial organization deserve a detailed attention. They are in fact articles 4, 5, 16(1) and 34.

 

The Preamble to the Constitution of 1972 states that: the law preserves the right of every one to be heard before the courts. A free and fair lawsuit implies that a party and its witnesses be heard, that the court should not come to a conclusion otherwise than on the base of evidence adduced before it, that the party which does understand or speak the language before the court is entitled to the services of an interpreter whom the defendant has the possibility to cross-examine the prosecution's witnesses. The Common Law principles of the audi auteram partem were thus introduced into the Cameroonian legal system. Alike with the right to the cross-examination the witnesses.

 

Pursuant to the constitutional provisions, article 4 of the Ordinance on judicial organization provides that all the judgements must be in public. Any violation of this principle makes all the procedure void ab initio[49]

 

On its part, article 5 of the Ordinance stipulates that all the judgements must state the reasons on which they are based, both at law and on the facts. A decision passed in violation of this principle is void. The principle of the necessary motivation of the decisions of court constitutes in fact a safeguard against the legal bias and makes it possible for higher jurisdictions to control the application of the laws.

 

Article 16(1) of the Ordinance as for him provides that High Court has jurisdiction in regards to the Writs of Habeas Corpus, of Prohibition, Mandamus and Certiorari

These jurisdictions devolved to the High Court by the Ordinance are all familiar with the Courts of Common Law but constitute innovations for the French-speaking Courts or of civil law where Habeas Corpus, Prohibition Mandamus and Certiorari were until then unknown. Since 1972, these competences are envisaged, at least on paper for the benefit of the of civil law Courts.

 

Article 34 of the Ordinance on judicial organization safeguards the procedures of Common Law, it lays out that the Courts of First Instance, High Courts and the Courts of Appeal will continue to apply the procedures, usages and practices previously in force before these courts pending the adoption of specific provisions.

They are the following texts:

- The criminal procedure Ordinance

- The evidence Ordinance Cap

- The Southern Cameroons High Courts Law, 1955

- The Supreme Court Rules, 1961

- The supreme Court Civil Procedure Rules, etc.

 

II- The implications of pluralism in relation to conflict of laws

 

A- Internal disputes

 

1- Interdenominational disputes

The probability of their realization is explained on the one hand by the coexistence of the animism, Islam and the Christian religions and on the other hand by the maintenance of the Alkali Courts before which the Moslems are parties living in the English speaking Cameroon provinces as to a certain case law which alluded still recently of Koranic law.

 

Fortunately, these disputes remained theoretical and were definitively drawn aside by recent judicial pronouncements. If we remained on theoretical calculations, it is thank to three principal reasons: constitutionally, the laic character of the Cameroonian State; the loss of the autonomy of Alkaly Courts since they are attached to the Ministry of Justice[50]; and finally, the part played by the judges. Indeed, case law applies Moslem law only like customary law The influence of the Islamic religion basically does not change the nature of the dispute. Judges apply only customs, Islamized or Christianized and the disputes in question are only classic inter customs disputes[51].

 

2 Disputes between the English speaking Cameroon and the French-speaking areas

 

In spite of the Reunification which has occurred in 1972, there remains in Cameroon "two legal systems" so that the likelihood of conflicts resulting from intercourses between the systems is not excluded. In civil matters for example, the two systems remain distinct on many points. The initiative of unification of the law having been unsuccessful, apart from the customs, there are two distinct laws or legal systems: In the Former Eastern or French-speaking Cameroon the French Civil code as applicable in France in its version of 1960 is in force. In the Former Southern Cameroons, the applicable law is defined in section 11 of the Southern Cameroons High Court Law of 1955, namely Common Law, Equity and Statutes of general Application in force in England before January 1, 1900.

 

The coexistence of such different legal systems can give rise to two types of conflicts: conflicts of laws and conflicts of competence.

 

a) Assumption of the conflicts of laws

Two cases are clear illustration of this assumption of conflict of laws. There are on the one hand of the Lantum case passed in the French-speaking part on December 12, 1979[52] and on the other hand the Nseke[53] of June 6, 1985 rendered in the English speaking Cameroon part.

 

To fill the gap, the doctrines made various suggestions of which two can draw our attention here:

- It was envisaged a case where there is cluster of issue, consequently, the ideal would be to apply the French-speaking or English speaking Cameroon law under which falls the parties. The law of the community of origin overriding the lex domicili. So on the other hand there is a mixed situation, i.e. between a French-speaking person and an English-speaking, it would be necessary to come out with clear rules conflict unless the proper law system[54] is given preference or the search of the most favourable law to the interest in issue (for example interest of the infant).

The terms of reference of the jurisdictions are sometimes different in English speaking Cameroon and French-speaking Cameroon. Therefore they can give rise to conflicts of competence or at the very least to singular difficulties of execution of court decisions. The assumption was checked in connection with actions relating to the status of persons when it was the definition of the concept of residence understood differently by the English speaking Cameroon judges and the French-speaking judges was in issue[55]

 

In the Enongenekang and Tuffon cases rendered in the English-speaking provinces, it is constant to refer to the English conflict fo laws rules to determine the residence of a Cameroonian citizen. Contrary to the position of the Court of Appeal of Douala which, in the Elame v. Elame case[56] estimates that, as regards divorce, the court of jurisdiction is that of the residence or, in the event of non determination, that of the residence of the husband.

 

In the same way, the execution of the court decisions relating to the status of persons or the successions can face on both sides unsuspected difficulties because of the different rules[57] is an illustrates of these difficulties .

 

With the analysis of the solutions adopted by the judges, two proposals can be made while admitting as the starting point the dissociation of legislative competence and the jurisdiction of the authority of the final decision or res judicata throughout the Cameroonian territory. Competence in question is exclusively territorial; consequently, the rules of the French-speaking law relating to competence rationae loci would deserve to be generalized; thus the dispute of a decision can be carried out only within the forms and times prescribed by the system (French-speaking or English speaking Cameroon) to which belongs the jurisdiction which rendered the decision in issue.

 

3-Interpersonal disputes

 

a) Types of interpersonal disputes

 

Interpersonal disputes can oppose either the rules of customary origin inter se ,or the written law and the traditional law.

Inter customary disputes are more frequent that the attachment of the person to a personal status results from its tribal origin. The tendency is with the tribal conception of the custom. However in Cameroon, one counts nearly two hundred tribal groups.

 

But due to similarities between customs as well as their evolution, it happens that traditional laws as stratified, some even try to establish a new distinction between urban customary law and rural customary law relying on the idea that courts have, in rural areas, wider connexions.

The conflicts between written and traditional law witness a unique evolution. During colonization, one spoke about "colonial dispute". After independence, the approach is differentiated. In the French-speaking part, the approach is resolutely occidentalist whereas in the English speaking Cameroon part, the relationship between the written law and the traditional law are of levelling type. With the Reunification, one attends an evolution; the judicial organization strongly inspired by the French law nurtures the generalization of the uneven approach in the intercourses between written law and traditional law. The legislative tendency and case law shows a preference to modern law in the mixed intercourses

 

b) Modes of solution of the interpersonal dispute settlements

Before 1981, the mode of settlement depended on according to whether one is in English speaking Cameroon or French-speaking Cameroon.

 

In English speaking Cameroon by virtue of the principle of the general application of the customary law rules applies under the terms of section 27 2 of Southern Cameroon High Court Law of 1955.

 

In French-speaking Cameroun, two techniques are used: conflict method and the rule of the option of legislation. The rule of conflict is different according to whether the conflicts oppose the customs or are mixed.

 

Article 3 of the decree of 11 December 1969 establishing the Judicial organization and the operation of the traditional jurisdictions at Eastern Cameroon contains rules of conflict to settle the intercustomary disputes

- Issues concerning marriage, divorce, parental rights and the guardianship of the children, are solved according to the customs under which the marriage had been contracted, or in case of uncertainty, according to the general principles of modern law;

- For the questions relating to the successions and wills, the custom of the de cujus/testator is applied;

 

- For issues relating to the donations, one applies the customs of the donor. But in practice, the rules of conflicts are scarcely used so that case law applies various ways to give primacy written law in mixed cases.

 

The technique of the option of legislation was also used to determine the applicable law. Persons governed by traditional law could give up the rules of the customs to subject themselves to the jurisdiction of the written legislation for the achievement of a legal act. It therefore implied a partial renunciation of the customary personal status. Moreover, the option of legislation was worth option of jurisdiction, but the option of jurisdiction did not involve ipso facto[58] the option of legislation. It is on the latter point that there was a reversal from the Angoa Parfait Case of 1981[59]

 

Indeed, on a banal history of divorce, the Supreme Court introduces a new process of resolution of interpersonal disputes: "When a Cameroonian chooses the civil court, it should be necessarily deduced there from that that he intends to be subjected to the laws in force before this jurisdiction".

 

The Supreme Court thus departed from the former position and sets a new rule according to which the option of jurisdiction becomes a general rule of competence to be used in deciding between modern law and t traditional law courts competent to entertain both civil and commercial cases.

 

B- International Disputes

Contrary to other African countries, Cameroon did not adopt a specific legislation of private international law. The pluralist legal order thus comes to worsen the extremely complex character of the international disputes making all the more their settlement more difficult.

 

The conflict of laws of international nature poses a unique situation. The absence of overall text and the pluralism of the internal legal order complicate the operation and the interpretation of the rule of conflict as well as the determination of the special rules for th settlement of international disputes.

 

a) General theory

In the current state of Cameroon private international law, it is impossible to state a general theory of the conflicts of laws. The analysis of the rare decisions of court leaves in more of the singular difficulties because of the pluralist structure of the internal legal order. This has, as a consequence that allocate the competence to the Cameroonian law, is not entirely satisfactory to solve the question put to the judge, singularly when this is indicated like local law or law of the residence. Still necessary is the determination of the laws which must be used as a basi/atrating point for the settlement of a dispute.

 

Similar difficulties emerge in the event of conflicts of systems which can appear as regards qualification or remittance. In practice, one can consider that the situation developed since precedent affirms on the one hand that the courts of modern law are only competent to judge a case in which a foreigner is a party[60], on the other hand, that the option of jurisdiction prevails over the option of legislation (Angoa Parfait case).

A combined reading of these decisions makes it possible to advance tracks of solutions:

- Initially, problems of private international law always comprising a foreign element fall under the jurisdiction of modern courts; in relation to problems of personal status in international matter, it is the High Court which is competent.

- The High Court, since the Parfait Angoa Case as it can apply only the written law, it is the latter which has from now a vocation to govern the personal status in international matter.

Thus, the discussions on the questions of qualification and remittance lose their raison dêtre. The qualification will be made lege fori, more precisely according to the modern law, element of the legal order. Remittance could not be rejected by principle, the lex fori in international matter being given.

 

The problem of public international order

Because of internal pluralism, it could thought that the exception of public order will seldom appear. Indeed, it will happen that the foreign provisions find a counterpart or equivalence in one or the other lawmaking up the internal legal order. Thus, the latter knowing both the monogamy and polygamy, a foreign system favourable to one or the other will not be isolated for contrariety with the law and order.

Nevertheless, the observation of the substantive law indicates singular applications of the law and order starting from the values on which the legislator, assisted by the judge, gradually built the internal legal order. Already at the internal level, the judge calls upon these values to set aside a given customs. These values constitute the basis of the international public order

 

Ideals of freedom and equality and other principles devoted by Constitution (freedom of thoughts, secularity of the State...); will be thus isolated as contrary to public order, foreign laws operating of discriminations based on sex, race or religion or regarding the difference of denominational as obstacle to the marriage.

 

- options of legislative policy in a matter given at a given moment (for example provisions aiming at releasing the woman in general and the widow of the obstacles of the dowry or at promoting the freedom of marriage while taking care of the existence and the integrity of the assent of the spouses-to-be[61], the refusal of repudiation, the search for natural affiliation);

 

The exception of public order must be able to function in spite of the multiplicity of the internal rules, each particular case will be solved on its merits without one being able to affirm in a general way that the Cameroonian public order will be more tolerant with respect to the more liberal foreign standards. Consequently can it be said that foreign ultraliberal provisions on habits will not be able to succeed in crossing the sieve of the Cameroonian public order. It will be so when it is a question, for example of drawing the conclusions from a community of life among people of the same sex, of the adoption by the homosexuals, marriage between closely related parents (half-brother and half-sister, uncle and niece, aunt and nephew). By contrast, a foreign law being unaware of an action in search for natural paternity or tolerating the violation of the engagement of monogamy will be contrary to the Cameroonian public order.

 

b) Special rules

The pluralist structure of the Cameroonian law makes difficult the systematization and even the identification of special rules. The solutions which exist go up sometimes to colonial time[62].

 

- Legal practices

In French-speaking Eastern Cameroon, the core of the matter is art 3 of the civil code[63] and all the French-related case law previous to 1960 (year of independence).

In a general way, case law disregards the rules of attachment. It tends to apply in a systematic way the lex fori i.e. the Cameroonian law[64]. Thus, as regards divorce, the Cameroonian law was applied as a law of the Cameroonian judge seized, whether the spouses are of different nationality or the same nationality[65]. The same solution is adopted as regards guardianship of children[66] whereas the marriage settlement is attached to the law of the place of celebration (Lex loci celebrationis)[67]. Since the Rayess-Mansour Case rendered by the Supreme Court on June 14, 1973[68], the solutions are clear as regards will. It is indeed decided that the validity of the form is subjected to local law (locus regit actum) thus Cameroonian can make a will in the holographic form wherever they are. It is indeed decided that the validity of the form is subjected to local law (locus regit actum) thus Cameroonian can make a will in the holographic form wherever they are.


Date: 2015-12-24; view: 127


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