By modem contract law I am referring to the received English common and French civil laws. The phrase is used in contradistinction to customary law and hereinafter, contract law shall mean modern contract law. If there is any reference to customary law, it will be specifically made. In this section, I intend to determine the extent to which English and French law can be considered as sources of contract law in Cameroon. Are they also subjected to certain limitations or do they apply in their entirety? Since the English common law applies only in the Anglophone provinces (the common law jurisdiction) it is convenient to treat it seperately from French law which applies only in the Francophone provinces (the civil law jurisdiction).
(1). Sources of Contract Law in Anglophone Cameroon.
It has already been explained in chapter one how Great Britain became involved in Cameroon, and how they proceeded to introduce English law into their part of Cameroon. It was also shown that the Southern Cameroons High Court Law, 1955 (still in force) effectively guaranteed the continuous application of English law in many areas (contract law included), after the British had left. On the extent of the application of the law of England, section 11 of the said law provides:
"...(a) the common law; (b) doctrines of equity; and (c) statutes of general application which were in force in England on the 1st day of January, 1900, shall in so far as they relate to any matter with respect to which the legislature of Southern Cameroons is for the time being competent to make laws, be in force within the jurisdiction of the court".
Section 11 expresses in general terms the English law to be applied without spelling out the rules of the laws to be applied. Yet this lack of detail should
confound no one as to the sources of modem contract law in Anglophone Cameroon.
Briefly, this comprises of the English common law, English doctrines of equity and pre-1900 English statutes of general application, legislation passed by the Nigerian legislature before 1954 (when Southern Cameroons broke away from Nigeria), legislation passed by the Southern Cameroons legislature after 1954 and those passed by the National Assembly (Parliament) after the re-unification of the federated states of West (Anglophone) Cameroon and East (Francophone) Cameroon in 1972.
(a). The Common Law.
In English law, the expression common law can be used in contradistinction to civil law which comprises mainly enacted law (like the continental systems) or in juxtaposition to equity. For the most part of this study, it shall be used in contradistinction to the French civil law but for the purpose of this present section, it is used to denote that part of English law which is unenacted and which has been developed through the decisions of the courts.
There has been some controversy (not only in Cameroon but in Ghana, Nigeria, and other territories with a similarly worded reception statute) as to whether the limiting date of 1st January, 1900 only refers to the statutes of general application or whether it also extends to the received common law. In other words, will the courts, in order to determine the content of any common law rule, have regard only to pre- 1900 decisions or will they consult post-1900 decisions and their possible modifications as well? Two opposing views are involved here.
The first view, which can be described as the orthodox one, maintains that the common law is limited in its application to that which was in force in England on or before 1st January, 1900. Allott is an eminent supporter of this view. He takes the view that the limiting date applies to the common law so that common law decisions up to 1st January, 1900 are binding while the decisions coming after that date are only
persuasive.43
The other view, championed by Park,44 maintains that the limiting date applies only to statutes of general application and does not include the common law. In other words, the application of common law decisions is supposed to be timeless. The first view seems to me to be the better one. Firstly, it is in line with the interpretation of the provisions in several common law jurisdictions in the United States of America.
The view taken there is that where a state constitution provided that "the common law in England shall remain in force, it is usually construed as referring to the common law of England as it stood at the time of the adoption of such a constitution."45 Secondly, it gives the local courts, at least in theory, the opportunity to develop a case-law that reflects the local setting.
The decision of Cameroonian courts, unfortunately, do not provide any settled line of authority with which to resolve this issue. From the many decisions I have considered, I have been able observe that where the correctness or the appropriateness of a post-1900 English decision is in issue, the judges do not hesitate to assert that they are entitled to go their own way, especially if the said decision does not fall in line with their own reasoning of the particular problem in question. Even though the Bamenda Court of Appeal has ruled in Joseph Atanga v. Shell Cameroon S A ‘46 that pre-1900 English decisions are binding while post-1900 decisions are only persuasive, the general practice of the courts is still not quite clear. In contract law (as in other
43 Allott, "The Authority o f English Decisions in Colonial Courts" (1957) 1 J.A.L. 23;
For more on precedents, see Allott, "Judicial Precedent in Africa Revisited11 (1968) J.A.L. 3-31.
44 Park, Sources of Nigerian Law. 1963, p. 17.
45 15 Corpus Juris Secundum "Common Law" (1939) 617. Cited in Daniels, The Common Law in West Africa. 1964, p. 122.
46 Civil Appeal No.BCA/43/81 (Bamenda, unreported)
fields of law), the practice seems to be that post-1900 English decisions, where not specifically challenged, have continued to be cited routinely and applied as a matter of course, often without any acknowledgement, express or implied, that one line of authority is binding and the other merely persuasive. The point can also be made statistically.47
As far as this thesis is concerned, English cases decided before and after 1900 will be freely cited. For reasons given below, I do not consider it legally desirable and practical to limit the use of English case law only to pre-1900 decisions. It has been remarked that the Cameroonian courts do cite post-1900 case law on a regular basis.
While there certainly have been some differences of emphasis which have been gradually changing the direction of contract law in England compared with the equivalent rules as applied by the Cameroonian courts, it is nevertheless still true that the basis of modem contract law in Anglophone Cameroon remains the English common law and it would be impossible to understand and analyse the present framework of contract law in the common law jurisdiction of Cameroon, let alone some of its nuances, without equally considering not only the past, but the present developments in the law of contract in England. It is also apparent that pre-1900 and post-1900 English cases, whether treated as binding or persuasive, will continue to be accorded respect in Cameroonian courts. Therefore, where a proposition has been established by an English case originally, I shall cite the English case as well as any significant Cameroonian cases that have followed or adopted it. And where the law is the same in Cameroon and England, or where there is no reason to suggest it is different, I shall look for the best judicial exposition of the law, no matter where it comes from.
47 Of a total number of 40 cases cited in a random selection of contract judgements by the High Courts and Courts of Appeal in Anglophone Cameroon, 13 were post- 1900 English decisions, 15 were pre-1900 English decisions, 11 were Cameroonian, while there was 1 Nigerian and 1 Canadian decision respectively.
(b). Doctrines of Equity.
In addition to section 11 of the Southern Cameroons High Court Law, 1955 which includes doctrines of equity as part of the general law to be applied, section 14 provides that,
"where there is any conflict or variance between the rules of equity and the rules of common law, the rules of equity shall prevail".
Equity primarily means fairness but in a much narrower sense, it is used in contradistinction to strict law or common law. For example, it may compel the specific performance of a contract where the common law will only give damage for the breach of it. It is surely in this sense that it is used in section 11 of the South Cameroon High Court Law 1955.
The courts in Common Law Cameroon have been known to apply equitable doctrines to some contract cases even though they have been ambivalent in their decisions, perhaps because of the discretionary nature of equity. For instance, in M enyoli Motors Co. Ltd. v. Frederick Ezedigboh,48 the West Cameroon Court of Appeal, applying the English decision in Stocklosser v Johnson,49 upheld a general power to grant equitable relief against the forfeiture of the buyers deposit in a hire purchase contract after the rescission of the contract, where the sum forfeited was out of all proportion to the damage suffered by the seller and when it would have been unconscionable for the seller to retain the money. Yet in another case, Ets. Tsewole v John Holt Motors,50 the same court made an about turn and refused to grant equitable relief in very similar circumstances.
It would be fair to say that Cameroonian courts are generally not enamoured by equity. A close scrutiny of some of their decisions reveals a predilection for strict
48 Civil Appeal No. WCCA/7/68 (Buea, unreported).
49 [1954] 1 Q.B. 476.
50 Civil Appeal No. WCCA/21/70 (Buea, unreported).
law. As a result, one often finds decisions which cannot be faulted as a matter of strict law, yet cannot be said to have done justice to the parties.
(c). Statutes of General Application.
According to section 11 of the South Cameroonians High Court Law 1955, statutes of general application that were in force in England on or before January 1, 1900 are also to be applied by the Cameroonian courts. But the question must be asked: what exactly constitutes a statute of general application? Section 11 is silent on this and once again Cameroonian courts have failed to provide authoritative guidance on a fundamental question.
For an answer, it may be necessary to look up to Nigeria whose reception statute is couched in exactly the same language as that of Cameroon. In the Nigerian case of Attorney General v. John Holt & Co. Ltd.,51 Osborne, C J. made a gallant attempt at an interpretation of the phrase "statutes of general application". He said that in order to determine whether or not a statute is one of general application, two preliminary questions have to be answered: (1) by what courts is the statute applied in England and (ii) to what classes of the community in England does it apply? If, on or before January 1, 1900 a particular statute was applied by all criminal and civil courts, as the case may be, to all classes of the community, there is a likelihood that it would be in force within the jurisdiction. If, on the other hand, it were applied only by certain courts (e.g. a statute regulating procedure) or only to certain classes of the community (e.g. an act regulating a particular trade), the probability is that it will not be held to be applicable locally. Even though the learned chief justice was self deprecating in conceding that his test was not infallible, he must nevertheless be credited with providing the most usable guidance to the question as to what constitutes a statute of general application.
Statutes of general application, unlike the common law, are not trapped in any
51 [1910] 2 NLR 21.
controversy over the time limit for their application. It is clear from the wording of the reception statute that only statutes of general application that were in force in England on or before 1st January, 1900 are to be applied by the Cameroonian courts.
This has been confirmed by the the decision in M buh M. Mathias v Joseph A.
Tata.52 In that case, the plaintiff orally agreed to sell his Datsun car to the defendant.
It was agreed that the defendant would make an immediate advance payment of the price in cash while the balance was to be paid in eleven equal instalments. The plaintiff was later to seize the car, alleging defaults in payment by the defendant, and sue for the outstanding balance. The defendant counter-claimed for breach of contract, detinue and loss of use of the car.
The High Court, taking into consideration the fact that both parties admitted to having entered into a hire purchase agreement; that when the vehicle was seized it was still in the plaintiff’s name and that the defendant never resisted or attempted to resist the seizure, arrived at the conclusion that the contract was one of hire purchase. On that construction it was held that the plaintiff was entitled to seize the car and claim the outstanding balance. The defendant appealed.
The Court of Appeal53 differed with the High Court on the important question of the nature of the contract. It stated that it is always inevitable and essential that a hire purchase agreement be evidenced in writing and that in the absence of any document spelling out the rights and obligations of both the seller and the buyer, a sale by instalment payments (as in the present case) will nevertheless be a conditional sale of goods at common law. The Court of Appeal then reversed the High Court decision and ruled that the plaintiff was not entitled to a right of seizure. The proper remedy available to him, the court held, was an action for the outstanding balance. He in turn appealed.
The Supreme Court agreed with the Court of Appeal that the proper remedy available to the plaintiff was an action for the balance and not seizure but disagreed
52 HCB/7/78 (Buea, unreported).
53 BCA/6/79 (Bamenda, unreported).
with it on the question of the nature of the contract, taking the view of the High Court that the contract was one of hire purchase. The Supreme Court pointed out that at common law a hire purchase contract may take any form - it may be under seal, it may be written and it may be oral, as in the present case. Even though the Court of Appeal made no reference to it, the Supreme Court54 was also quick to point out that the requirement that hire purchase contracts must strictly be in writing is laid down in the British Hire Purchase Act, 1938 and emphasised that because it is a post-1900 statute, it does not apply to Cameroon.
While in some areas of the law the courts in Common Law Cameroon are entitled to apply post-1900 English statutes,55 the general rule that only pre-1900 English statutes are applicable in Cameroon, applies to contract law. This means that the Cameroonian courts will apply only such statutes as the Sale of Goods Act, 1893 (and not the 1979 version), the Statute of Frauds 1677 (to the exclusion of the changes introduced to it by the Law of Property Act 1925 and the Law Reform (Enforcement of Contracts) Act 1954) and other statutes of general application in the field of contract law enacted before January 1, 1900. In principle, all the 20th century statutes English statutes on contract, of which they are many, do not apply in Cameroon. But it will not be impossible to find instances in which the courts have applied them, especially where such application is not specifically challenged by either party.
For the purpose of this study, pre-1900 English statutes must take precedence over post-1900 statutes. However, where relevant I shall cite post-1900 English legislation on contracts, if only to find out what differences exist between the present day contract law of England, which has experienced a lot of legislative incursions over the last few decades and its progeny in Common law Cameroon, which has been marked by legislative inactivity. It remains to be seen during the course of this study whether the impact of modem legislation on present day English contract law, though
54 C.S. Arret No.l38/CC du 18/9/1980 (unreported).
55 For instance in family law, the English Matrimonial Cause Act 1973 still applies.
It actually governs divorce in Common Law Cameroon.
considerable, is exaggerated.
(2). Sources of Contract Law in Francophone Cameroon.
It was noted in chapter one that on May 22, 1924, the French government passed a decree, article 1 of which declared that the laws and decrees promulgated in French Equatorial Africa before January 1, 1924 shall apply to the territory of Cameroon placed under the mandate of France. These enactments56 became the applicable source of law and played an important role in private law and criminal law. La jurisprudence (case law) and le doctrine (legal writing) also played a significant role, even though, as sources of law, they remain secondary, at least in theory. Formally, only la loi is accredited as a source of French positive law. A brief discussion of these sources as they relate to contract will be helpful.
(a). La L o f 1 (Legislation).
A major characteristic of French law is the primacy of legislation. In Francophone Cameroon, as in France, law is perceived as being primarily and characteristically a body of rules enacted by the state, to be found in the codes and in legislation supplementary to the codes. A perusal of court decisions in French speaking Cameroon will confirm the formal view that the statute is the primary source of
56 They have since been compiled into four seperate volumes by two Frenchmem:
Bounevet and Bourdin: Code et Lois du Cameroun. 1956 (Revised 1968) Volume II consist of, inter alia, the Code Civil, Code de Commerce and Code de Procedure Civile.
57 In the French language, they are two words for law: droit and loi. The first refers to the legal system viewed in its entirety; the second signifies a specific statute or legislation. The second meaning applies here.
private law. The courts, required by statute to state the reasons for their opinion,58 seldom fail to base them upon one or more statutory texts. In contractual matters, the courts invariably use the Civil Code, which is, in fact, the chief source of contract law in Francophone Cameroon. The Civil Code is contained in volume two of "Codes et Lois du Cameroun". The (Cameroon) Civil Code is arranged in exactly the same manner as the French Civil Code. Book 3 deals with Obligations (contracts included) and it is made up of 15 sections dealing with various kinds of contracts. Although the contents of both the Cameroonian and French Civil Codes are the same, any reference to the Civil Code throughout this study must be taken to relate to the Cameroonian version. Where the French Code is intended, I shall expressly state so. In addition to the Civil Code, there are some supplementary legislation relating to activities such as banking and insurance and formalities in contract.
(b). La Jurisprudence (Case law).
La jurisprudence in French law refers to court decisions and is therefore used in a completely different sense from the English meaning of the word. The attitude
La jurisprudence in French law refers to court decisions and is therefore used in a completely different sense from the English meaning of the word. The attitude