/By
Macdonald Ayang Okumb/
Members of the Fako Lawyers' Association,
FAKLA, have announced a three-day strike action beginning Tuesday 28 July 2015. Through
out the strike period, the lawyers say they’d stay away from the courts - a
move that would bring activities in courts across Fako Division to a standstill.
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| Barrister Arbor-Balla: FAKLA President |
A statement from the FAKLA president,
Barrister Agbor-Balla said the reasons for the strike action are varied and are
consequent on the indifference displayed by the President of the South West
Court of Appeal as well as the Attorney General of the same court to some of
the lawyers’ worries concerning the administration of justice in the Region.
The lawyers had forwarded a strongly
worded memo to the two judicial authorities early last month on some burning
issues concerning not only lawyers but general legal processes in the Region but
the duo had maintained sealed lips. So they (lawyers) think a strike action
would send a louder signal that they are serious about their grievances.
Some preoccupations of the lawyers mentioned
in their close to 3,000-words memo, include; the
issue of French language used in courts in the Region, interpretation and
application of harmonised laws (the Criminal Procedure Code (CPC), the OHADA
UNIFORM ACTS, Cima Code, etc), the collection of fees for registration of
complaints by Registrars of the Legal Department, the irregular manner in which
arrest warrants are issued, illegal payments for bail, less protocol attention
given to counsels, unexplained payments by complainants for visits to locus
during proceedings and the question of court time, just to mention these few.
Below is a full text of the Memo of the Fako Lawyers:
To
THE HON. CHIEF JUSTICE
PRESIDENT COURT OF APPEAL, SWR.
THE HON. ATTORNEY GENERAL
SOUTH WEST COURT OF APPEAL
BUEA.
MEMORANDUM
FROM THE FAKO LAWYERS ASSOCIATION (FAKLA) ON ISSUES AFFECTING THE
ADMINISTRATION OF JUSTICE.
Your Lordships,
It is with utmost humility that We of
the FAKO LAWYERS ASSOCIATION (FAKLA) present to your high and distinguished
offices, this memorandum on issues touching and affecting our practice as
Ministers of Justice in the temple which you manage in our jurisdiction and
equally as a Watch Dog for the Civil Society.
I.
THE
LANGUAGE TO BE USED IN OUR COURTS.
Your Lord Justices, we have noticed
with disdain the massive transfer of Magistrates trained in the Civil Law
tradition to this jurisdiction during the last sitting of the Higher Judicial
Council. Being a civil service prerogative incumbent on the Chairperson of the
Higher Judicial Council, it is our humble prayer and well advised judicious
opinion that the litigants in this jurisdiction should not be embarrassed in
their attempt to seek justice and discover that communication will be in a
language that they cannot understand.
It
is our Resolution that for there to be fair hearing as enunciated in all laws
and text books that we have come across in the course of our practice, all
Judicial Processes and proceedings in the South West Region be conducted in the
English Language - in criminal matters; this should be from interrogations
through investigations to hearing and Judgment.
II.
DRESS
CODE.
It is our opinion that the issue of
our dress code was exhaustively deliberated upon during our last meeting held
at the Court of appeal Hall on your initiative on the 15th day of
April 2015. We only hope that as administrators of the justice system, we
should not be seen to want to undermine the Decision of the Bar Council on the
topic, thus to that effect, we consider the issue settled.
III.
INTERPRETATION AND APPLICATION OF HARMONIZED
LAWS.
We hold and pray you hold with us,
that the spirit of interpretation of harmonized laws within the South West
Region should be Common Law inspired; in particular, the Criminal Procedure
Code (CPC), OHADA UNIFORM ACTS, Cima Code, etc
IV.
THE
APPLICATION OF SECTION 443 OF THE CPC AND THE OHADA LAWS.
Your Lordships, we of the Fako Lawyers
Association are clearly embarrassed by some Magistrates within our area of
practice to the effect that you have instructed them to dismiss Applications
brought by Counsel and or litigants by way of Motions on the grounds that it is
no longer part of our laws as far as the Criminal Procedure Code and the OHADA
Laws are concerned. We find this perplexing in that, there is jurisprudence
from your Court and other instances where the Civil Law court process known as “REQUETTE” is interpreted to mean a
Motion in our context. We, respectfully refer Your Lordships to the ensuing
unreported case to buttress this position:
·
HCF/ 385C / 13 : LUCIA NGWE V. THE PEOPLE
In this case, Defence Counsel filed a Motion
supported by affidavit for the bail of the Applicant who was on trial. However,
before counsel could move the court, the state counsel raised an objection on
the grounds that the application was incompetent.
He argued that the use of an affidavit in support of
the motion was wrong in law because the CPC had abolished the Evidence
ordinance under which affidavits are made. He concluded that under the current
code, applications should not be supported by affidavit. In reply defence
Counsel Barr. Tchana contended that the argument was untenable because the Judicial
Organization Law 2006 as amended should be relied on where the CPC is silent.
After these impassionate contentions, Justice
Menyoli President of the Court as he then was, had no difficulty in holding
that the procedure of using affidavit evidence in support of motions is still a
valued practice under the CPC. The Learned Judge articulated the point thus:
“On this point, I am unable to agree with Learned State Counsel, who referred
the Court to Section 585(1) of CPC which is to the effect that an Application
for Habeas Corpus must be supported by an affidavit. The Learned Prosecuting
Counsel himself, therefore supplies the lie to his own contention that the
Criminal Procedure Code does not recognize or give effect to affidavit
evidence. And the fallacy of that contention is easy to see. Section 225 of the
CPC, as noted above, gives the Court the power to entertain applications for
bail. The code is silent on the procedure that must be followed. Recourse must
therefore be made to accepted practice and usages of the Court. I concur with
Barrister Tchana that a Motion must be supported by an affidavit. The
contention by the State Counsel, therefore, that this action is improper before
the court because it is supported by an affidavit is clearly without foundation”.
What has bothered us as legal
practitioners is the idea that laws can be enacted by way of a Consultation
Meeting and or Instructions handed down by an individual or group of persons no
matter how powerful they can be either in the eyes of the Law or by
imagination.
To further demonstrate the importance
of preserving this mode of commencement of proceedings in our search for
Justice, we shall respectfully pray Your Lordships to take a close academic and
professional look at the definition of “Motion” as contained in Black’s law
Dictionary. It states:
“……AN APPLICATION MADE TO A COURT OR JUDGE FOR PURPOSE OF OBTAINING A
RULE OR ORDER DIRECTING SOME ACT TO BE DONE IN FAVOR OF THE APPLICANT ……”
We pray you draw your own conclusion
from the above definition and you will agree with us that “Motions” are an all
too important part of our Legal practice to be ignored in any manner. In any
case, if this mode of Commencement of Actions prescribed by Law and
specifically implored in Section 15 of Law No. 2006/015 of 29th
December 2006 on Judicial Organization is to be swept under the carpet by your
dictates, then, the school of taught that Harmonization in the Cameroonian
Judiciary is a disguised “CIVIL
LAWLISIZATION” of the Cameroon Justice System will be well founded.
V.
THE PAYMENT FOR REGISTRATION OF COMPLAINTS AND
RELEASE ORDERS.
Sirs, there is a new drive for
Magistrates of the Legal Department in some jurisdictions within your area of
competence to ascribe to themselves the role of Law Makers and Law Enforcers at
the same time. It is now common to hear Registrars of the Legal Department ask
for registration fees for complaints to be received. They have carefully opened
a register to that effect collecting between 500 and 5.000 CFA francs as the
case may be. To be more specific, the Legal Department in Muyuka collects 1000 CFA
francs, Limbe 1.000 CFA francs, Buea 500 CFA francs and Tiko between 2.000 and
5.000 CFA francs depending on the case.
In the same vein, when a suspect is
granted bail by these legal departments, out of money that is illegally
collected (subject of another head) for the said bail, another sum is demanded
and collected for the Release Order signed by the State Counsel.
This, in our opinion is a gross Human
Rights abuse that should be checked before it degenerates to uncontrollable
levels. The Law is unambiguous; criminal investigation is borne by the State.
VI.
THE
ISSUE OF ARREST WARRANTS
We have equally noticed the ease with
which Arrest Warrants are issued by Legal Departments, and in the majority of
cases on persons who are resident within their jurisdiction, without any effort
to cause the suspect attend to a summons. It is now customary for Arrest
Warrants to be obtained by influence.
We pray you make a control on the
number of Arrest Warrants issued by the Legal Departments, the reasons for the
warrants and how many of such cases are eventually prosecuted in order to get
an idea of what we are complaining about.
VII.
ILLEGAL
PAYMENTS FOR BAIL.
This to us is a cankerworm that needs
to be addressed at the level of the Courts, Legal Department, Police and
Gendarme Offices. There are Notices displayed on the walls of all our Courts,
Legal Departments and Investigating Offices to the effect that, Bail is free.
But Sirs, we want to authoritatively and emphatically state that, bail is a big
business for many Judicial Officers. The image of our Judiciary will be better appraised
if this problem is given due attention by Your Lordships.
In order to better understand our
worries, we again cite the jurisdictions and the homologated amounts agreed
amongst the Players and collected for bail:
·
MUYUKA:
POLICE & GENDARMES 10.000 CFA francs
LEGAL DEPARTMENT 5.000 CFA
francs
COURT 17.000
CFA francs
·
TIKO:
POLICE & GENDARMES 25.000 CFA francs
LEGAL DEPARTMENT 25.000
CFA francs
COURT 25.000
CFA francs
·
LIMBE:
POLICE & GENDARMES 15.000
CFA francs
LEGAL DEPARTMENT 1.000 CFA francs
COURT 15.000
CFA francs
·
BUEA:
POLICE & GENDARMES 25.000 CFA francs
LEGAL DEPARTMENT 5.000
CFA francs
COURT OF FIRST INSTANCE 2 25.000 CFA francs
COURTS OF FIRST INSTANCE 1, 3&
4 FREE
HIGH COURTS 1, 3 & 4 FREE
HIGH COURT 2 25.000 CFA francs
COURT OF APPEAL FREE
·
WE
PRAY YOUR LORDSHIPS CARRY OUT COVERT AND INDEPENDENT INVESTIGATIONS ON THESE
FIGURES FURNISHED TO US BY OUR CLIENTS FOR WHICH NO RECEIPTS ARE EVER ISSUED
DESPITE DEMANDS FOR SAME TO BE ISSUED BY THE COLLECTORS.
VIII.
PAYMENT
OF DEPOSIT FOR BAIL.
It is provided in the Criminal
Procedure Code that, the suspect could be requested to make a deposit in order
to secure bail. It is a well known Principle of Law that any discretion must be
exercised judiciously. From the Investigating Office to the Legal Department,
deposit for bail has become the new trend. Accountings for these deposits now
pose a serious problem and banter on the image of the Judicial Process.
It is our opinion that your Lordships
issue Practice Directives on those qualified to request and collect deposits
and the amounts to be collected based on the offence and the economic situation
of the suspects.
IX.
THE
QUESTION OF PROTOCOL.
There is a new drive for heads of jurisdiction
to place Orderlies at entrance to their office. If it is for their protection,
it is most welcome. However, what operates on the ground is that these officers
are the ones who usher in visitors to their bosses and it is not uncommon to
find lawyers sitting in a queue outside the office of the magistrate of the
bench or official bar while the boss is in an unending conversation with
special guests (mostly litigants). We are of the considered opinion that
protocol services at bench and the Official Bar should give priority to
Counsel.
X.
THE
APPLICATION OF SECTION 365 OF THE CRIMINAL PROCEDURE CODE.
SECTION 365 OF THE CPC STATES:
(1)
“WHERE THE ACCUSED PLEADS NOT GUILTY,
THE COURT SHALL HEAR THE WITNESSES FOR THE PROSECUTION AND FOR THE CIVIL
PARTY IN COMPLIANCE WITH THE PROVISIONS OF SECTION 328 AND 330”.
(2)
AT THIS STAGE, NOTWITHSTANDING THE PROVISIONS
OF SECTION 361, THE LEGAL DEPARTMENT SHALL NOT MAKE ANY REFERENCE TO THE
CRIMINAL RECORD OF THE ACCUSED OR ANY INFORMATION CONCERNING HIS CHARACTER.
(3)
IF AFTER HEARING THE WITNESSES, THE
SUBMISSIONS OF THE LEGAL DEPARTMENT AND, WHERE NECESSARY, THE OBSERVATIONS OF
THE CIVIL PARTY, THE COURT FINDS THAT THE EVIDENCE ADDUCED DOES NOT
SUSTAIN THE OFFENCE, OR THAT THE FACTS DO NOT CONSTITUTE ANY OFFENCE, IT SHALL
DISCHARGE THE ACCUSED”.
Your Lordships, in total disregard of
these very telling provisions of the law, it is now fashionable for the legal
department, after an accused has pleaded not guilty and they find it difficult
to secure the presence of the witnesses to tender the entire case file without
hearing from any witness and cause the court to rule on the said documents.
We of the private bar have
consistently cried foul to this strange manner of prosecution but have
persistently been told by your subordinates that these are orders from above.
The application of this Section of
the Code is made stronger by Section 308 of the CPC which reads;
“(a) EXCEPT AS OTHERWISE PROVIDED BY LAW, AN OFFENCE MAY BE
ESTABLISHED BY ANY MEANS OF PROOF”.
Also, by the provisions of Section 336 on which some practitioners rely
on to have the complete case file tendered is by our estimation well qualified
as the circumstances under which any such evidence could be admissible are
clearly spelt out.
Our independent research and reading
of the situation has revealed that, this procedure of tendering a case file
without passing the same through witnesses is the procedure that operated in
the civil law jurisdiction prior to the coming into force of the CPC. We are
further informed that sitting and prosecuting Magistrates of the Jurisdiction
were then dictated to apply the same procedure here as it is alleged that the
same obtains in the Civil Law Courts.
Sirs, when this is done, no
opportunity is given to the accused to exercise his right to cross examine his
accusers as ordained in the CPC and this to us only goes to consolidate the
view that Civil Law Oriented Procedure is and must be the mode of operation all
over the National Territory. In any case, we consider this a flagrant violation
of the rules of criminal procedure, especially that of a fair trial, which are
prejudicial to the rights of the defense and can conveniently bring into play
section 3 of the CPC. We pray you
slacken the pains being inflicted on suspects and accused persons by
withdrawing the directives that were handed down to your subordinates to
violate these well-conceived provisions.
XI.
PAYMENTS
FOR VISITS TO LOCUS
It is our opinion guided by the Law
that visits to locus are part of judicial process and in criminal matters; the
costs of the proceedings are either borne by the State or an accused found
guilty. We are completely at a loss as to why in the middle of proceedings,
complainants are asked to pay for the process in the name of locus fees. Worst
still, your Lordships, accused persons are equally asked to pay; oblivious of
the fact that they could eventually be found not guilty and state treasury
ordered to bear the costs of the proceedings.
We pray you put a permanent stop to
these collections as far as criminal matters are concerned and issue Practice
Directives on Civil Matters taking into account the mileage from the Courts.
XII.
FORMS
AND STATUTORY PROVISIONS.
The Limbe Court of First Instance has
prepared some forms under the OHADA Laws on recovery of Liquidated Debts and has
embarrassingly included the recovery of residential premises as part of the
said Form, all this in total disregard of the fact that the OHADA Laws have
nothing to do with non-business premises.
It is our prayer that this shame be quickly
stopped by Your Lordships.
XIII.
DEPOSIT
FOR CIVIL CLAIMS:
Our argument against the payment of
locus fees in criminal matters holds for this Head. The Muyuka Court Registry
will not accept any civil claim attached to a criminal action without an
accompanying deposit of 20.000 CFA francs. This is in total violation of all
the express provisions of the CPC pointing to the contrary. Some other Courts
like Limbe Court 2 have insisted that they will not enter any civil claim
unless it is filed contrary to section 385 of the CPC.
We pray you call these Courts to
order.
XIV.
ON
THE QUESTION OF COURT TIME
As agreed in our April 15th
Meeting, we stand by the agreed starting time of 9am for the Courts of First
Instance and 10am for the Court of Appeal.
Here above our most respectable Lord Justices, are some but not an
exhaustive list of problems we humbly think you should have solved in the meantime
as we collectively exploit lasting solutions to the many problems encountered
by both the Official and Private Bar in the dispensation of Justice in a manner
that we do not become suspects of an Unjustifiable Agenda.
DONE AND DATED AT BUEA THIS 8TH DAY OF JUNE 2015
SECRETARY GENERAL PRESIDENT
