A Legal worry and an Explanation by legal minds championed by JUSTICE METIEGE
More
than 60 years after independence and 50 years after reunification of Cameroon,
the Common Law Courts in Cameroon continue to invoke pre-1961 Nigerian Laws in Southern
Cameroon courts. Some legal minds argue
that in the light of the provisions of the 1955 Southern Cameroon High Court
Law, only the laws applicable in England are enforceable.
What
then is the legal basis for this state of affairs?
Below are excerpts of the SCHCL 1955.
Let’s read same and say whether Nigerian Legislation was contemplated.
Section
11 of the Southern Cameroons High Court Law states: "Subject to the
provisions of any written law, and in particular of this section and of
sections 10, 15 and 22 of this law
a) the common law
b) the doctrines of equity; and,
c) the statutes of general application which
were in force in England on or before the 1st day of January 1900, shall in so
far as they relate to any matter with respect to which the legislature of the
Southern Cameroons is for the time being competent to make laws, be in force
within the jurisdiction of the court.
The
jurisdiction vested in the High Court, so far as practice and procedure are
concerned, shall be exercised in a manner provided by this law or any other
written law, or by such rules and orders in court as may be pursuant to this
law or any other written law, and in the absence thereof in substantial
conformity with the practice and procedure for the time being of Her Majesty’s
high Court of Justice in England.
The
jurisdiction of the High Court in probate, divorce, and matrimonial causes and
proceedings may, subject to the provisions of this law and in particular of
section 27 and to rules of court, be exercised by the court in conformity with
the law and practice for the time being enforced in England.
JUDGE METIEGE DIVINE NJIKANG, who’s an Examining Magistrate of the HIGH COURT OF DONGA-MANTUNG JUDICIAL DIVISION- NKAMBE in Cameroon, with some other legal contemporaries have examined the issue in question and have given their informed opinion on the matter.
The question of the rationale of the enforcement of “Nigerian” Laws in the common law courts in Cameroon can be addressed only if we understand the judicial history of Cameroon in general and the former Southern Cameroon in particular. A lack of mastery of this judicial history has given rise to two fallacies:
1) That Nigerian laws are being
enforced in courts of the Northwest and Southwest Regions.
2) That there is no legal instrument
warranting the transposition of the so-called “Nigerian” Laws into the corpus
juris of Cameroon.
With
respect to the first fallacy, it may sound strange to hear that stricto, sensu,
No Nigerian Law is enforced in Cameroon. Yes, laws such as the pre-independence
laws invoked in the Courts of the Northwest and Southwest Regions are laws
which are either of English origin or were enacted having British Cameroons in
contemplation. This point is further illustrated by Prof. Joseph Nzalie Ebi in
his Ph.D thesis, “The Structure of Succession Law in Cameroon, University of
Birmingham Law School, 2008” when he wrote, “British Cameroons was attached to,
and administered as an integral part of Nigeria. The laws in force were thus
extended thereto by Proclamation No.1 of 1916, pursuant to the Foreign
Jurisdiction Act of 1890 rendering English laws applicable in foreign
territories. Until the independence of Nigeria in 1961, the name “Nigeria”
included Cameroons under British mandate and trusteeship. Section 1(1) of the
Nigeria Letters Patent 1946, amending the Letters Patent of 1922 and 1935
defined “Nigeria” as “the colony [Lagos], the protectorate [the rest of
Nigeria] and the Cameroons [under British mandate]”. (See also section 1(1) of
the Nigeria (Protectorate and Cameroon) Order in Council, 1946, and section 3B
of the Interpretation Ordinance, cap. 94 of the 1948 Laws).
Metiege Divine, [4/17/2022
11:40 PM]
From
the above findings, we deduced that, before the advent of the Federal Republic
of Nigeria on the 1st October 1960, the entity referred to in international law
as “Nigeria”, is not identical to what became the Federal Republic of Nigeria.
The territory referred to as “Nigeria” included British Cameroons (Southern
Cameroon and Northern Cameroon). So, the laws enacted or enforced were equally
British Cameroons Laws. Most of these laws are English laws, rendered directly
applicable in British Overseas Territories pursuant to the Foreign Jurisdiction
Act of 1890. Some were enacted by the House of Representatives in Lagos, where
(Southern Cameroons was represented by six Members of parliament); and promulgated
into law by her Majesty the Queen of England. The Southern Cameroon High Court
Law 1955 was one of such laws. So, if we are to castigate the enforcement of
“Nigerian” laws, even our venerated SCHCL 1955 will not survive, for it should
equally be considered a “Nigerian” law. It is equally interesting to read from
the thesis of Prof. Nzalie that the Code Civil applied in French speaking
Cameroon was promulgated as a Senegalese Law, and was merely transposed to
former East Cameroon after it became a trusteeship territory under French
Mandate.
Thus,
Laws specifically enacted for or extended to British Overseas Territories
included various Proclamations and Orders in-Council made for the territory,
British Imperial Acts of Parliament specifically made applicable to the
territory either directly or through the parliament of the colonies. Examples
of such laws are the Evidence Ordinance, the Criminal Procedure Ordinance, the
Land and Native Rights Ordinance 1948, the Administrator General Ordinance
1948, the Supreme Court Civil Procedure Rules, etc. The laws enforced in the
territory known as “Nigeria” were compiled in colonial statute books known as
“the laws of the federation of Nigeria”. Thus, the Evidence Ordinance is found
therein as Cap 62 of the Laws of Nigeria 1958, the CPO is Cap 43 of the Laws of
Nigeria 1958, The Administrator General Ordinance is Cap 4 of the 1948 Laws of
Nigeria, the Supreme Court Civil Procedure Rules is Cap 211 of the Laws of
Nigeria, etc.
It
is the mention of these compilations of “laws of Nigeria” in the way these laws
are cited by legal practitioners, that has set confusion in the minds of many
people who tend to believe that these laws have as Origin the Sovereign State
of the Federal Republic of Nigeria and should not be applied in Cameroon,
another sovereign State. This confusion would not have arisen if there was a
similar compilation of laws enforceable in Southern Cameroon or the federated
State of West Cameroon after independence. A similar compilation of colonial
laws was done in East Cameroon. Among these compilations, we may cite the
Répertoire général des textes législatifs et règlementaires applicables au
Cameroun, compiled in 1954 by H. Chene; the five volumes of Codes et Lois du
Cameroun compiled between 1956 and 1958 by Gaston-Jean Bouvenet and Rene
Bourdin, and the seven-volume Répertoire chronologique du droit Cameroonians
compiled between 1965 and 1968 by Guermann M. and R. Olivier. No corresponding
compilations existed in the Southern Cameroons. Some of the laws applicable
there could only be found in the 1958 revised edition of the laws of Nigeria.
(Culled from page 1259 of The Administration of justice in a bi-jural country –
the United Republic of Cameroon, PhD thesis of Prof. Calson Anyangwe,
University of London, 1979).
With
respect to the contention that there is no legal basis for these
pre-independence laws to be invoked in our courts today, this assertion arises
from the erroneous believe that sections 10, 11 and 15 of the SCHCL 1955 are
the basis for the enforcement of laws in former Southern Cameroon.
Metiege
Divine, [4/17/2022 11:40 PM]
The
enforcement of the pre-independence laws was expressly provided for in the
Section 92 (1) of the Southern Cameroon Constitution of 1960; Section 53 the
West Cameroon Constitution of 1961; and Section 68 of the 1972 Constitution of
the United Republic of Cameroon as amended.
Section 53 (1) of the
Constitution of the Federated State of West Cameroon states:
Subject to the provisions of this section, the existing laws shall have effect after the commencement of this constitution as if they had been made in pursuance of this constitution, and shall be read and construed with such modifications, adaptions, qualification and exceptions as may be necessary to bring them into conformity with this constitution.
In order to clarify what is contemplated as “existing laws”, it is further stated in Section 53 (4) that--
For
the purposes of this section, “the existing laws” means all Ordinances, Laws,
Proclamations, rules, regulations, orders and other instruments having the
effect of law made or having effect as part of the law of the State immediately
before the first day of October 1961.
The 1972 constitution as amended, proceeds in the same line by stating in Section 68 that:
The
legislation applicable in the Federal State of Cameroon and in the Federated
States on the date of entry into force of this constitution shall remain in
force insofar as it is not repugnant to this constitution, and as long as it is
not amended by subsequent laws and regulations.
From
the foregoing, it can be said that there is no illegality in enforcing the
pre-independence statutes, provided they have not been expressly repealed by
new laws. Some of these laws have expressly been repealed. This is the case,
for example, with the Land and Native Rights Ordinance of 1 January 1948,
repealed by Article 22 of Ordinance No. 74/1 of 6 July 1974, on Land Tenure.
This is equally the case with the plethora of pre-independence laws of former
East and West Cameroon, repealed by Section 746 of the Criminal Procedure Code.
