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§ Cameroun, Cour d'appel du centre, 25 novembre 2011, 635/


Numérotation :

Numéro d'arrêt : 635/
Identifiant URN:LEX : urn:lex;cm;cour.appel.du.centre;arret;2011-11-25;635 ?

Analyses :


Texte (pseudonymisé) :

In this case, the court had to determine the validity of the objection filed by the debtor against an injunction to pay issued by the said court on 14 September 2012 with consequential conciliation sought for by the debtor. In accordance with section 9 of the Uniform Act on Ad Ak Ac and Measures of Execution, the ordinary remedy against the injunction to pay shall be an opposition which shall be brought before the competent court whose President pronounced the injunction to pay. The opposition by virtue of section 10 of the same Uniform Act must be filed within fifteen days following notification of the injunction to pay. This rule may be derogated from if distance is taken into consideration. Except in case of derogation, a debtor who fails to file and notify his opposition to all the parties and the court registry within fifteen days, forfeits his right to the remedy. Sections 9, 10 and 11 UASRPME High Court of Mezam (Bamenda), suit no HCB/PD/LA.98M/09 of 11 December 2012
This is a conciliation hearing pursuant to an objection filed in the registry of this court
pursuant to the issuance of an injunction to pay in the sum of fifty nine million five hundred and seventy two thousand one hundred and seventy five FCFA ( 59.572.175 FCFA) and cost of tree million FCFA ( 3000000 FCFA), a total of sixty-two million three hundred and seventy two thousand one hundred and seventy five FCFA ( 62.372.175 FCFA). At the hearing, NCHUNU ESQ of counsel for the creditor raised an objection in limine thus;
That the objection of creation to the injunction to pay must be notified to the creditor in the same Act as the writ of summons for conciliation, in consonance with the provisions of article 11 of the Uniform Act on the simplified procedure for Recovery and Measures of Execution, hereafter referred to as the UASPRME. Counsel proceeded to submit that they were notified on the 6th day of November 2012 to appear in court for conciliation on the 7th day of same month alongside the objection which had hitherto been filed in the registry of this court. The learned gentleman referred this court to the case of the High Court of Ag with no further references than the fact that same was embodied in page 707 of the “OHADA TRAITE ET ACTES UNIFORME ANNOTES, 3RD EDITION”.
In reply, Ao Af Al of counsel for the debtor stated thus; that the notification was duly served on the Registrar-in-chief of this court as well as on the parties in the same Act. Thus, he deemed that the service was in consonance with the provisions of article 11 of the UASPRME afore cited. In relation to the issue of hearing, notices are no longer issued. He thus could not obtain the hearing notice upon the filing of the objection.
The learned counsel for the debtor strenuously sought to establish that the president of this court had ordered the discontinuation of the issuance of conciliation notices which served as a summons fixing the hearing date by the court. The conciliation notices were drafted by the courts in the early days of enactment of the UASPRME. It was actually aimed at guiding the litigants in relation to the mandatory mentions to be embodied in the instrument of the objection. The courts cannot be blamed since it was incumbent on the private practitioners to appraise the relevant sections of the law to enable them file the objections in consonance with applicable law on behalf of their clients for whom they were acting.
The fact that the conciliation notices summoning the parties were signed by the courts might also have contributed to the confusion of practitioners. The bench as well as the bar was all grappling with the application of the Uniform Acts. In any case, to err is human but to perpetuate the error once recognized is not divine. In relation to matter concerning the OHADA Uniform Acts, it is the parties who chose the hearing date in all matters before filing same in the courts. It is a fact that the common law jurists are inured to take dates from the courts. It was really only the courts who were vested with the powers to issue writs of summons. Noteworthy is the fact that the Common Law applied by the Anglophone jurist is that of the pre 1960 since her Majesty’s government is no longer applying these obsolete procedures.
A litany of aphorisms of the cases of the other Member States of the OHADA Treaty and the Common Court of justice and Arbitration emphatically lends clarification to the manner of application of the provisions of articles 9 and 11 of the Uniform Act of Instance. The filing of the objection in the registry within the requisite 15 days time limit without notifying the parties does not amount to complying with the remedy provided for in articles 9 and 10. Same articles are explicit as to the fact that the parties and registry are to be served with the opposition in an extra judicial Act within 15 days of receipt of the ruling.
The issue of an extrajudicial act has tortured Common Law jurists for years, it is
defined in “Lexique de Termes Juridiques, 18th edition thus; “An act served by a bailiff which has legal effects irrespective of judicial proceedings” For precision, I reiterate it in the language used by lexique thus; “ACT SIGNIFIE PAR UN HUISSIER DE JUSTICE ET PRODUISANT DES EFFETS JURIDIQUES EN DEHORS DE TOUTE PROCEDURE JUDICIAIRE »
Black’s law dictionary, 8th edition page 27; “ACTE EXTRA JUDICIAIRE”
“A document served by a huissier at the request of a party without legal proceedings.” The definition afore mentioned reiterates the Civil adjectival law which is not
analogous to the Common Law procedure. The fact that Black’s law dictionary fails to translate the word “ACTE EXTRA JUDICIAIRE” reiterates the dichotomy of the procedural laws in the two legal systems afore mentioned. The translation of legal lexis culled from a different legal system sometimes distorts the sense. Thus, the plethora of Latin expressions in the common law lexis.
Having ascertained that the service of the objection is only in consonance with the law if same is served in a bailiff’s act to the opposing party who in this case is the creditor and to the registry wherefrom the injunction to pay emanated within 15 days of ruling, the regularity of the notification by the debtor in the present case will be ascertained by answering the following questions:
IS THE FILING OF THE OBJECTION IN THE REGISTRY OF THIS COURT AN OBJECTION WITHIN TIME LIMIT PRESCRIBED BY THE LAW ---Art 10 UASPRME? The intention of the legislator was to notify the creditor of the fact of the objection within 15 days from the date of receipt of the injunction to pay; it was also to notify the registry of same fact in order to preclude the latter from affixing the executory formula at the expiry of same period in consonance with the provisions of article 16 of the UASPRME. The registry of the court is not a party to the action thus filing the objection in the registry does not bring the objection to the notice of the creditor and is tantamount to serving the wrong party with the objection; in fact the filing of the matter should be the last act of the debtor.
The objection may be served on the debtor and the registry simultaneously and filed in the registry of the court within the prescribed delay; the former must not precede the latter since the opening of the file does not amount to notification of the debtor. In the case of SOCIETE LAFCHAL C/ B An C, TG1 OUAGADOUGOU, jugement No. 236 16th Aa 2004; the court stated that where the opposition was only served upon the registry of the court as opposed to the creditor, the objection is forfeited.
Thus, the filing of the objection within the delay provided for in article 10 without having notified the adverse party and the registry in an extrajudicial act within same delay does not serve as an objection within the purport of article 9 and 10 of the UASPRME. The dichotomy between notification of the registry and the filing of the matter or opening of the file for purposes of enrolment on the court’s cause list must be drawn. In fact, the filing of the matter at the registry of court is not tantamount to the notification on the registry. The notification of the objection on the registry must be endorsed by the Registrar-in-chief or a registrar appointed by the latter.
Article 11 of the Uniform Act of instance, enjoins the debtor to serve both the objection and the writ of summons to appear in court in the same Act, the application of this section was highlighted in the maxim in the case of CCJA, ARRET NO 011/2002 OF 28 MARS 2002, SOCIETE M Ae/ A, GD wherein the learned judges stated thus; The only obligation of the opposing party is to serve the objection as well as the writ of summons on the creditor and the registry within the prescribed delay.
Thus, the service of the objection as well as the summons to appear in court 40 days after receipt of the injunction order was out of time. The notification of the objection was thus deemed to be served on the creditor within 40 days thus in derogation of article 10. The scheduled date for conciliation which was on the 25th day of deadline for notifying the objection was within time save the fact that there was no notification of the objection within the requisite time limit. WHAT IS THE PRESCRIBED PROCEDURE?
Upon receipt of an injunction to pay, the debtor’s only remedy is an opposition served upon the creditor in an extrajudicial act. The debtor shall include all the documents upon
which he intends to rely; the latter or his counsel shall mention the fact of an objection and the law in support of it. This shall amount to his submission. Counsel shall cause a bailiff to draw a writ of summons mentioning the date of conciliation. These are the two documents referred to as the same legal instrument in the extrajudicial act provided for article 9 and 11 of the UASPRME. Article 10 of the same Act enjoins the legal instrument afore mentioned to be served within 15 days of receipt of the injunction to pay. The writ in Civil Procedural Law is actually what is called an assignation which is defined in “Lexique des termes juridiques” thus; a procedural instrument emanating from the applicant to the respondent via a bailiff inviting party to appear before a court, which amounts to the submissions of the applicant in High Court. (Lexique des Termes Juridiques, 18th édition).
Thus, where the opposing party briefed counsel, the latter shall extensively include all the reason upon which the objection is predicated and annex all the documents in support thereto. This will permit the creditor to prepare any rebuttal thus expediting the procedure on the hearing date where any legal issues were raised. Worth reiterating is the fact that the scheduled date for conciliation is chosen by the parties. The obligation of counsel to exhaust their legal arguments in their submissions is compelling and aimed at expediting the procedure thus in principle no oral submissions are required. The obligation of counsel for the creditor to reply to the submissions and duly serve the opposing counsel prior to the scheduled hearing date is equally compelling. In fact, this is akin to part 8 of the procedure applicable in her Majesty’s government which culminates in font loading all the issues prior to the hearing. Font loading legal issues are also practiced in most of the states of our Am Aj Law learned brothers. Thus, it can be observed that all Common Law jurists have joined the jet plane; we should not insist on riding on the camel’s back.
The courts are obliged to display the sitting schedule on the notice boards, thus the scheduled date should match the court sitting schedule. However, the paramount concern of the opposing party is to slate the hearing date within 30 days of the date of the instrument or act as frequently referred.
The notification of the objection and the writ of summons should be served upon the creditor and the registry within the prescribed 15 days and in the same bailiff’s act. Thus, even where the objection is notified separately within the requisite delay and followed by the summons to appear in court in a separate bailiff’s act equally notified within time, same is in derogation of article 11 of the Uniform Act of instance, irrespective of the fact that both are within the prescribed time limit. The obligation to serve both the writ and the objection in the same bailiff’s act cannot be overemphasized. The dictum in the case of Z AG, Jugement No 236 of 17 March 1999, C Ai Ab c/ Y X Ah, reiterated the exclusive character of the opposition thus; that the judgement debtor who duly filed an objection within time but failed to follow the prescribed procedure forfeited his right to a remedy. CAN THE OPPOSING PARTY FILE A NOTICE OF AN OBJECTION IN LIMINE?
Though not in issue herein, there is no better time than the end of the judicial year to
review all procedural shortcomings. It is a very useful touch stone herein in appreciation of the hardship caused to debtors whose actions which are otherwise substantively tenable but deemed inadmissible for want of proper procedure. An objection is usually grounded on a point of law and same should be raised in the submissions provided for by articles 9 and 11. Where the opposing party files a notice to raise a preliminary objection as opposed to serving the objection and hearing date as prescribed by the law, the latter is deemed to have forfeited his right to the remedy. This was the dictum in the case of Z AG, Jugement No 236 of 17 March 1999, C Ai Ab c/ Y X Ah. To cite the
learned judge verbatim; the ordinary remedy to a decision of an injunction to pay is an objection, thus the “contredite” filed by the debtor in consonance with the legislation in his Member State cannot be held to seize the court as an objection within the prescribed procedure and is thus inadmissible.
However, while notice of an objection in limine is inadmissible as within the contemplation of article 9 of the Uniform Act of Instance, it is worthy of mention that where a party wishes to raise an objection predicated upon the nullity of the procedural instruments, same must be mentioned in his Act of objection in limine and not as a subsidiary ground. This was the aphorism in the case of TPI Cotonou in judgement number 050 of the 30th of September 2007 in the case of Société SARL c/ Société A.T. unreported. WHO ENROLLS THE FILE FOR HEARING?
Worthy of mention is the fact that the notification of an objection and the writ of summons to appear on the scheduled date for conciliation on the registrar does not automatically seize the court. The court is effectively seized when the opposing party causes the matter to be filed at the registry. A worthy reminder is the fact that the notification on the registrar is to cause the mention of the objection in the register kept for the purpose in order to preclude the affixing of the formula by the Registrar-in-chief.
Thus, it is incumbent on the debtor to further pay the requisite filing fees after which the commercial registrar shall proceed to include the copies of the objection and the notification of the date of the hearing served upon the parties and the Registrar-in-chief. Thus, the debtor or his counsel provides the registrar with a copy of the extrajudicial act with proof of receipt by the creditor. In the Regional Appellate Court, CCJA ARRET of 21st July 2005, the maxim was to the effect that where the debtor failed to enrol the matter after having duly notified the debtor and the registry, the later forfeited his right to a remedy.
Where the opposing party duly serves the creditor and the registry within the requisite delay; where the latter equally ensures that the hearing date is within 30 days of the notification but fails to cause same to be enrolled for hearing on the scheduled date, the objection is forfeited. What the Civil law judges refer to as “enrol” in the dictum afore mentioned is actually analogous to filing the matter in our legal parlance. THE REGISTRATION OF THE WRIT
It shall be recalled that the Regional legislator did not legislate on matters which are closely within the preserve of the Members States socio economic and political policies. In appreciation of the fact that the Members States jealously guarded some measure of sovereignty, their national laws in relation to issues such as finance and land legislation were not interfered with.
In Cameroon, section 428 of the General Taw Code 2011 as revised in 2012 in its subsection 1 provides for the registration of all legal instruments and court judgements. It is incumbent on the debtor to register the writ before filing same at the registry, worth reiterating is the fact that the filing at the registry is not the notification. Where a writ is filed without registration, the original of the writ is deemed not to be in the file. In appreciation of the fact that the matter cannot proceed with hearing or conciliation pending the original of the writ before the court, most registries will request the payment of the amount for a fixed registration fee which is in the sum of 20.000 FCFA in this Member State. Where the processes are filed without registration of the writ nor the fees, the court may dismiss the action at the hearing date since it is appreciated that the debtor is intentionally delaying the hearing.
This court having extensively expounded upon the position of the law as embodied in articles 9, 10, 11 of the UASPRME; having extensively expatiated the adjectival civil law
wherefrom the prescribed procedure embodied in the OHADA Uniform Act were culled; upholds the objection of the learned counsel for the creditor in toto.

Références :


Origine de la décision

Date de la décision : 25/11/2011
Date de l'import : 22/11/2019
Interview de JP Jean secrétaire général de l’AHJUCAF dans « Le Monde du droit » sur l’accès à la jurisprudence francophone.

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