Evaluating the Concept of Immunity and Recovery Procedures under the OHADA Uniform Act: An Appraisal of it's Application in Anglophone Cameroon
Keywords:
Evaluating-Immunity-Recovery Procedure-OHADA Uniform Act- Anglophone CameroonAbstract
The concept of immunity was not addressed by the Sheriffs and Civil Process Act with respect to enforcement of judgment. Notwithstanding, the concept of immunity was dealt with in the Petition of Rights Act Cap 149 of the Laws of the Federation of Nigeria 1958. This Act was a pre-1961 Statute and applied in Anglophone Cameroon by virtue of the fact that Cameroonian legislators had not legislated upon this issue of immunity. This was equally a statute that was enacted before the unification process in 1961. Before the coming into force of the Petition of Rights Act, issues concerning immunity against prosecution were governed by the common law. The maxim “par in parem inparium non habet” meaning an equal has no power over an equal, was the guiding principle in cases of diplomatic immunity. Even with this immunity put in place, it's application becomes complex in commercial transaction especially in Anglophone Cameroon whose mode of operation in mostly Common Law in nature, and therefore rendering it's enforcement difficult. This situation of applying recovery procedures which most of the time conflicts with English law principles has becomes worrisome in aspects of procedures as far business transactions are concerned, and thereby putting the OHADA Uniform Act in a questionable position.References
1. www.mydictionary.com accessed on the 2/3/2017
2. Kionka (E.G), tort in a nut shell, 2 nd edition.1992 p 341.c/f Black law dictionary .op cit.
3. The trouble is that the concept of public has neither been defined at common law nor OHADA. Its determination is left at the whims and caprices of the courts of the various member states. A wrong use of the notion can cause irreparable damage to the creditor of an obligation under the judgment.
4. The OHADA Uniform Act on Simplified Recovery procedures and Measures of Execution unlike previous legislations on immunity has laid down the exemption to the rule of immunity based on public policy. This c an be seen in article30(2) which states that any unquestionable debt due for payment belonging to public corporation or enterprise, regardless of their form and mission, may equally be compensated with unquestionable debts due for payment belonging to any person owing them subject to reciprocity. The CCJA further added weight to article 30 (2) in the case of Aziablevi Yovo Et Autres v. Societe Togo Telecom (infra) by stating that once such a corporation has exposed itself to competition, it cannot benefit from article 30 (1)
5. Ibid article 30(1) of the Uniform Act on SRPME
6. The question may be asked to know whether apart from the state, government, public corporations and institutions, there are other authorities (individuals) who could benefit from such immunity. The answer is certainly in the positive. Law No.2006/o22 of 29 th Dec 2006 lays down the principle of vicarious liability of the state for acts committed by its public authorities in article 3. Where the authority is founded liable, the state compensates the victim and collect the money from the authority if need be. In this case, the judgment creditor cannot enforce his writ of execution aga inst the individual but against the state which enjoys the immunity laid down in article 30(1) of the uniform Act on simplified recovery procedures and measures of execution. This is indirect immunity accorded the individuals who serve in the administration to enable them perform their functions properly.
7. In case of University of Ngaoundere v. Mindang Hyppolite, Ord No.03 of 20th Dec 1999. Juridis periodic No 44 of October, November, December 2000. The Ngaoundere Court of First Instance JCMSL (2019) 28–36 © Law Journals 2019. All Rights Reserved Page 34 held that the use o f the word “personne” in article 30 (1) should be given a wider interpretation to include all public persons, the state , it decentralized territorial collectivities , public establishments and enterprises irrespective of their form and mission. The Douala court of first held a similar view in the case of ONPC v S.F.I. ord No 339 of 3 November 1998. Revue Camerounaise de l’abitrage. July, August, September 2002. The court concerned itself with national immunity.
8. Law No 2005/2007 of 27 th July 2005 on the criminal procedure code in its article 61 states that a civil action can be made concurrently with a criminal action before the same court. Even where the criminal part discontinues the law provides that the civil trial can continue. And any judgment delivered in the claim is subject to execution and property can be seized under same.
9. The Cameroonian Penal Code
10. Ibid Section 2
11. Ibid Section 2(1)
12. Ibid section 2
13. Sovereign is a characteristic of supreme authority. Sovereignty is a public international law concept and has two arms. Internal and external sovereignty. While external sovereignty is the power of dealing on a nation’s behalf with other national governments, internal sovereignty is the power to enjoy by a government or sovereign state, including affaires within its own territory and powers related to the exercise of external sovereignty. Black’s law dictionary op. cit .p. 1430
14. Black’s law dictionary loc.cit p 1430.
15. Schemes for a common action in Europe have drawn states in to two kinds of organizations. Wh ich may be termed inter-governmental or supra governmental. c/f Harvey and bather, the British constitution third education at p. 553 intergovernmental organization, a European idea, found expression in 1949 when the council of Europe was created to a achi eve a greater unity of members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage and facilitating their economics and social progress. This kind of organization on based on the principle that nations ar e sovereign states and that there should be no interference in their domestic affairs. The second kind of organization involves a transfer of some sovereignty to the multinational organization. It is this second option that has been adopted by OHADA.
16. This might be true in the case of external sovereignty, but with internal sovereignty the consent of governmental entities and the authorities that enjoy this immunity may not be required. In Cameroon for example the prosecution of a member of parliament requires a fiat from the national assembly and not the consent of the members of parliament.
17. Mighell v Sultan of Johre(supra); Development co. Ltd v Kelantan ( government) supra
18. With an increase in the volume of commercial activities involving the state, a distinction was made between state and government act known as “ acta jure imperii” meaning government acts on the one hand and “acta jure genionis ” meaning commercial acts on the other hand. Given the distinction, state and sovereign immunity was accorded the acts of the second category not the first.
19. The State Immunity Act being a post 1900 statute isn’t applicable in Cameroon. Its mention is purely for academic purposes.
20. State Immunity Act 1974, section 20
21. This Act does not equally apply in Anglophone Cameroo n by virtue of section 11 of the SCHCL. However, it will be discussed in this work for academic purposes. Even if Cameroon the Vienna Convention, it has not come out with any piece of legislation on diplomatic immunity.
22. Applicable in Cameroon since it is a pre- 1900 statute.
23. www.legislation.gov.uk. accessesd on the 23/4/2017 JCMSL (2019) 28–36 © Law Journals 2019. All Rights Reserved Page 35
24. As per Black’s law Dictionary, he is a national representative of one of the four categories: ambassadors, envoys and minister plenipotentiary, minister resident or accredited to the sov ereign and charges d’affaires accredited to the minister of foreign affairs.
25. Diplomatic Immunity Act 1964, article 38(1)
26. Under the Uniform Act on Simplified Recovery Procedures and Measures of Execution, and following the interpretation given to article 30(2) in the case of Aziblevi Yovo Et Autres c/ Societe Togo Telecom (infra) the only exception is offered in a case where the entity enjoying immunity is involved in competitive business. This can lead to an abuse to the concept of immunity thus causing grave hard ship the victim.
27. The Immunity Act 1978, section 16 (1) (b).
28. Diplomatic Privilege Act 1964, article 31(1)
29. Ibid article 39
30. R v Governor of Pentonville Prison, exp. No2.(1989)C.O.D. 446
31. Diplomatic Privilege Act 1964, section 4 common wealth secretariat act 1966, paragraph 9, consular relations acts 1968, section 11, international organization act, 1968, section 8
32. Engelke v musmann (1932) A.C 433
33. Diplomatic Privilege Act 1964 article 40
34. Diplomatic Privilege Act article 37(1)
35. A service staff of a diplomatic mission is a member of the domestic staff of that mission.
36. www.legislation.gov.uk ,1964pdts accessed on 14/08/2018
37. After the coming into force of these acts, The Petition of Rights Act continued to apply since it was pre 1900 statute and the others were post 1900 statutes.
38. Petition of Right Acts, section 7.
39. If the judgment is for the payment of money , the attorney general concerned by warrant under his hand directs that the award be paid, and in the case of any other judgment, he takes such measures as may be necessary to cause the same to be carried in to effect, he may equally direct the filing of an appeal.
40. www.ohada.org
41. en.m.wikipedia.org, www.britania.com accessed on 14/08/2018
42. www.britania.com accessed on 14/08/2018
43. Compulsory distraint and preventive measures shall not apply to persons enjoying immunity from execution. Compulsory distraint shall be a vailable only to a creditor who can show an unquestionable debt due for immediate payment, subject to the provisions relating to the apprehension and claim of movables.
44. However, any unquestionable debts due for payment belonging to public corporations or e nterprises, regardless of their form and mission, may equally be compensated with unquestionable debts due for payment belonging to any person owing them, subject to reciprocity.
45. Diplomatic Privilege Act and State Immunity Act.
46. Arret No 044/2005 of 7th July 2005, p.29
47. www.ohada.org
48. Article 30: Compulsory distraint and preventive measures shall not apply to persons enjoying immunity from execution.
49. However, any unquestionable debts due for payment belonging to public corporationsor enterprises, regardle ss of their form and mission, may equally be compensated with unquestionable debts due for payment belonging to any person owing them, subject to reciprocity.
50. Section 16(1) b
51. The judgment is taken by the creditor to the attorney of the federation who may order the payment of the same or order that an appeal be filed against the judgment.
52. www.ohada.org accessed 14/08/2018
53. Azieblevi Yovo et Autres v Societe Togo TELECOM. Arrêt No 044/2005;2005 of 7th July 2005, recueil de jurisprudence semestriel no 6 Jul-Dec 2005, p 29
54. This restriction offered by the Uniform Act is not enough compared to that JCMSL (2019) 28–36 © Law Journals 2019. All Rights Reserved Page 36 offered by international instruments. It is important for the OHADA legislators to examine the regime of property that may be subjected to seizure. A general clause of immunity may be dangerous.
55. The prestige of national political institutions has been strengthened. Not only do people make unprecedented demands on their governments for protection ,material prosperity and welfare services but through improvements in communications and the development of modern administrative and statistical techniques ; governments are better placed to satisfy the community’s need. c/f Harvey and bather the British constitution, 3rd edition.
56. The general principle of immunity posed in article 30 of The Uniform Act on Simplified Recovery Procedures And Measures of Exec ution was recently reaffirmed by the United Nation Convention On Jurisdictional Immunities Of State And Their Properties, adopted by the plenary assembly of the United Nations on 2 nd dec 2004 and opened for signature by the states on 17 th January 2005 to 1 7th January 2007 through the press communiqué of the General Assembly. GA/10309 of 2 nd Dec 2004, kenfack( DG ) in propos sur l’immunité de l’exécution et les émanations des états.Is of the opinion that the United Nations convention is justified by the necessity to safeguard the sovereignty of the state.
57. This can only be true in the case of inter - governmental organizations. But where the state has surrendered part of its sovereignty, to a supra national structure as in the case of the OHADA, the sovereignty in this case cannot be absolute;
58. This immunity is not limited to the state, the state sometimes accomplishes its mission of public service by creating structures, public enterprises or companies to accomplish the same .kenfack {DG) says these entities als o benefit from immunity against recovery.
59. A waiver is the voluntary relinquishment or surrender of some known right or privilege. http:// En.m.wikipedia.org
60. Vienna Convention On Diplomatic Relations, article 32, Diplomatic Privilege Act 1964, section 2,(3).the effect of this is that the head of a diplomatic mission may waiver not only the privilege of the subordinate member of his staff but his own as well.
61. Vienna Convention On Diplomatic Relations.www.britannica.com,www.res earchgate.net
62. Arret Noga, CA Paris, 10 august 2000
63. This was the case of the loan agreement between Cameroon and Midland Bank which was the subject of arret of 26 September, 2001 and 22 January 2004 of the Paris Court of Appeal.
64. Vienna Convention on Diplomatic Relations, article 32(3) Cite this Article Shashan Laisin Adela, Nana Charles Nguindip. Evaluating the Concept of Immunity and Recovery Procedures under the OHADA Uniform Act: An Appraisal of its Application in Anglophone Cameroon . Law. 2019; 2(2): 28–36p.
