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§ Cameroun, High court of mezam, 19 novembre 2012, /06

Imprimer

Numérotation :

Numéro d'arrêt : /06
Identifiant URN:LEX : urn:lex;cm;high.court.of.mezam;arret;2012-11-19;06 ?

Analyses :

VOIES D'EXÉCUTION - VENTE FORCÉE - DÉCLARATIONS ET OBSERVATIONS DU DÉBITEUR - AUDIENCE ÉVENTUELLE MEASURES OF EXÉCUTION - ATTACHMENT OF PROPERTY - SPECIFICATIONS - DÉCLARATIONS AND OBSERVATIONS - EVENTUAL HEARINGS - PRELIMINARY OBJECTION - FORFEITURE - ORDER OF SALE


Texte (pseudonymisé) :

The judgment creditor filed a request for the sale of the property of the debtor. In matters of forced sale, the debtor in accordance with section 270 (3) of the Uniform Act on Ac Aj Ab and Measures of Execution must make declarations and observations latest five days to the date of possible hearings, under penalty of forfeiture. In the absence of declarations and observations within the required time, the court will proceed to order the sale. Sections 269, 270 and 298 UASRPME (High Court of Aa AGAfAI, An Ae Al Ah Ai Y A Ao Z and C Am AJ, SOYE Jean and AH Ak Z, suit no HCB/06S/2012 of 19 November 2012)
The judgment creditor filed specification in the registry of this court on the 19th day of September 2012. In consonance with the provision of article 269 of the Uniform Act on the Ac Ab for Recovery and Measures of Execution hereinafter referred to as the UASPRME. The judgment debtor was notified to take cognizance of the specifications at the registry of this court.
The eventual hearing which was slated for the 30th day of September 2012 took place on same date. The learned counsel for the judgment creditor submitted thus; that the judgement creditor was duly notified with the summons to take cognizance of the specifications at the registry of this court on the 19th-9-2012. That the latter had up to the 25th day of October to file any declarations and observations. That having failed to file same, inconsonance with the provisions of article 270 subsection 3 of the UASPRME, he has forfeited his rights. That same procedure does not provide for the filing of a notice of preliminary objection in lieu of declarations and observations. The learned gentleman urged this court to uphold his submissions and maintain the scheduled date of sale.
In reply, counsel for the judgment creditor Mr NTEM DONATUS submitted that he had no reply in relation to article 270 subsection 3 of the Uniform Act of Instance. Thus, the issues to be determined by this court.
The law in relation to the attachment of real property is of very strict application, the procedure therein must be respected to the letter. The only reaction of the judgment debtor provided by the law, specifically article 270 subsections 3 of the UASPRME is to filed declarations and observations. Whatever the contentions to be raised, same should be filed as declarations and observations and not by way of a notice to raise a preliminary objection.
In the present case the notice of preliminary objection was file on the 9th day of October 2012, thus one day before the scheduled eventual hearing date. Whatever process was filed, it was already out of time. This position has severally been reiterated in decided cases.
In the case of affaire FIRST TRUST c/ Dame X B Ag, the High Court of Menoua in judgment n°14/CIV/TGI of 12 December 2005; the court held that where it is observed that judgment creditor failed to file any declarations and observations before the 5th day preceding the eventual hearing, it is the duty of the court to take judicial notice of the absence of any declarations and objections; declare the forfeiture by the judgment debtor of the rights conferred upon him by article 270 subsection 3; and confirm the scheduled date of sale. It was further stated that where there are no declarations in the specifications filed, on the date scheduled for the eventual hearing the court should rule that same is of no import. WHAT IF THE NOTICE OF PRELIMINARY OBJECTION WAS FILED WITHIN TIME?
Though this question is not in issue, it is worth stating the position of the law in order to avoid further errors, especially where the judgment debtor might have some tenable reasons. The position of the law is that any contentions raised by the parties to the attachment proceedings must be file in accordance with the prescribed procedure.
Article 298 of the Uniform Act of Instance stipulates that all contentions in relation to attachment proceedings after the service of the summons to pay shall be by way of written submissions exchanged between counsel wherein the contention and the laws relied upon are embodied.
The CCJA has been opportuned to opine on this issue in arrêt n°205 of 6th February 2004 in the matter of Compagnie Bancaire de l’Afrique de l’Ouest dite COBAC c/ Epoux A 2nd Epoux M. Ad learned judges of the final court of review stated that oral submissions by counsel for third party requesting the diversion of property at an eventual hearing are inadmissible, since like contentions should be written submissions in this case between counsels.
Though the afore mentioned citation refers to an application for diversion of the attached property by a 3rd party, it reiterates the fact that oral submissions are not within the contemplation of the prescribed procedure for the attachment of real property, same are thus inadmissible. The declarations and observations must include all the facts and laws upon which the judgment debtor’s contention is predicated. This is the law.
In the present case, the judgment debtor not having filed any declarations and observations, the required procedure should be no eventual hearing and the court should proceed to confirm the date of sale.
ORDERS
In the light of the afore analysis, this court orders that the sale shall be effected on the 29 day of ……. 2013.

Références :

Ohada.com/Unida

Origine de la décision

Date de la décision : 19/11/2012
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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