Resultados de la pregunta de investigación 5

As is the case with many other African countries,56 the problem of internal conflict of laws in Cameroon is characterised by the lack of proper solutions. But unlike other countries whose legal pluralism is confined to conflicts between customary and western law, the Cameroonian problem is made the more complex by the fact that she also has to grapple with the conflict between two western systems

-54 [1912] 2 Ch. 394

55 See article 8 of the Rome Convention entitled ‘Material Validity’. This article contains 2 provisions: 8 (1) is concerned with the "existence and validity of a contract" while 8 (2) deals with the existence of consent. The intention is that noy only are issues of material validity in the English sense covered (e.g. the issue of illegality), but also issues relating to the formation of the contract (for e.g. offer and acceptance and consideration).

56 See Vanderlinden, "A la Rencontre du Droit Internationale Prive Africain en Matiere Commerciale" In: The Harmonisation of African Law. 1974, pp. 221-243;

with regard to Nigeria, see Agbede, Themes on Conflict of Laws. 1989, p. 6.

the civil and the common law. An attempt has already been made in the preceding section to demonstrate that the present system of employing intra-state jurisdictional rules to internal conflict problems involving both law areas are inadequate and must thus be viewed as unacceptable, even though they may occasionally achieve the appropriate results. With the need for a new approach apparent, the problem now becomes one of ascertaining the best method for attempting to satisfy that need.

It is hereby proposed that the solution to the problem of internal conflict of laws in Cameroon lies in the adoption of rules of ordinary (international) conflict of laws.

To avoid confusion between internal and international conflict of laws, I shall henceforth refer to the latter by its other name, ‘Private International Law’. Before I explain and analyse the relevance of rules of private international law to the internal conflict of laws problem, it is necessary to first of all justify my proposition. It must be conceded that there is nothing revolutionary about this proposed solution. It has already generated much debate in other juridictions and divergent views have been expressed as to the relevance of private international law rules in internal conflict problems. Some writers have warned that it is dangerous and fallacious to do so57 while others argue that there is clearly an analogy.58 Others still, such as Professor Vitta have steered a pathway that is midway between the opinion of those who deny all possibility of considering in common the problems relating to interpersonal conflict of laws and Private international law and those who maintain that the two bodies of the rules are so similar that the rules of private international law can always be

57 Allott, New Essays, pp. 115-116; Tier, "The Relationship between Conflict o f Personal Law and Private International Law" (1976) 18 J.I.L .I. 240 et.seq.;

Bartholomew, Op. cit.. note ,325 et.seq.; Bartin, Etudes de Droit International Prive, p. 169, cited in Battifol & Lagarde, Droit International Prive, v o l.l, 1983, para. 258.

58 For example Ph. Franceskakis, "Problemes de Droit International Prive en Afrique Noir Independante" (1964) t.II Rec. de Cours, pp. 275-361; Battifol & Lagarde, Op.

tit., note 57, para. 258; Wolff, Private International Law, 1950, p. 6; Graveson, Conflict of Laws, 1969, p.4; Arminjon, "Les Systemes Juridiques Complexes et le Conflit de Lois" (1949) t.I, Rec. de Cour, p. 45.

applied by analogy.’’9

It is not my intention to settle this controversy here60 but my contention, at least on the basis of the internal conflicts of contractual obligations in Cameroon, is to support Vitta’s moderate line. In the field of contractual obligations in Cameroon, there is clearly a marked similarity between external and internal conflicts. Because the systems in conflict are the common law and the civil law, the problems involved are not any different from those that may arise between a French and an English party in a given case. Whether the conflict is external or internal, it is the variation of the substantive law which causes the conflict. It is therefore submitted that this similarity be exploited by the courts by applying private international law type solutions to the internal conflict of law problems, at least, in the area of contractual obligations.

Practical support for this approach is not hard to come by. It has already been followed in India and Pakistan, where the courts rely heavily on the doctrines of private international law to solve interpersonal conflicts.61 But Great Britain provides by far the best example. For the purpose of Public International Law, Britain is treated as a single nation whereas in Private International Law terms, Scotland which operates the civil law is considered a seperate country from England.

The House of Lords, however, considers appeals from both English and Scottish courts. In the latter case, it applies Scottish Law. The situation in Cameroon therefore bears a canny resemblance to that of Great Britain and there is no reason why like Great Britain, the civil and common law jurisdictions in Cameroon cannot be treated as seperate "countries" for the purpose of conflict of laws. The need for a unique Supreme Court (like the House of Lords) does not arise since the present Supreme Court of Cameroon, though based in the civil law part, hears appeal from

59 Vitta, "The Conflict of personal Law" (1970) 5 Israel L.R. 170-202 and 337-351.

60 This debate seems to me to be more pertinent to the question of interpersonal conflict or the conflict between imported western laws and indigenous laws. There may be a good case for arguing against the use of Private International Law rules to this kind of conflict.

61 Pearl, O p.cit.. note 2, p.97

courts in the common law part. In the same way that the the House of Lords applies Scottish civil law to cases emanating from Scotland, so too does the Supreme Court of Cameroon apply the common law to appeals whose provenance is Common Law Cameroon.

But how can private international law solutions be successfully transposed to problems of internal conflict of contractual obligations in Cameroon. There are several ways in which in private international law can be of especial relevance but I shall focus only on the two main issues of jurisdiction and choice of law. Let me suppose a typical commercial case in private international law, such as an action for damages for breach of contract. The defendant may argue that the proper law of the contract is that of a foreign country, that under that law he is not in breach, and so forth. Yet, if he has wits about him, the defendant has a better starting place than this: to argue that the court has not got (or if it does have, should not exercise) jurisdiction over him and that the action should be stayed. In other words, any private international law solution to the conflict problem starts at the jurisdictional stage. Only after the issue of jurisdiction has been resolved does the court need to consider the question of the applicable law. This approach can be explained with the help of the decision by the West Cameroon Court of Appeal in Neubeck v. Swiss Air T ran sp o rt Co. L td .62 This was an international conflict (as opposed to internal conflict) case - the supposed conflict was between German and Cameroonian (common) law. The respondent, an air transport company, alleged that on the appellant’s instructions they had issued tickets to various persons for which the appellant was refusing to pay. The appellant denied having done any business with the respondents but admitted that he booked passenger tickets through Swiss Air, Munich, Germany when he was resident there. He argued that because he was not resident in Cameroon at the time, the High Court of West Cameroon did not have jurisdiction to try the case. The High Court rejected his application for stay, assumed jurisdiction and went on to determine the case in favour of the respondents.

62 Civil Appeal No.WCCA/9/68 (Buea, unreported)

On appeal he further raised a number of points: that the proper law of the contract was German law and that the German law of limitation of action, not the Cameroonian one, applied. Traditional choice of law questions. The West Cameroon Court of Appeal brushed aside his argument that German law applied on the grounds (i) that he had failed to plead it in his statement of defence to the high court and ( n ) that he failed to prove that the claim would have been statute barred under German law. His appeal was consequently dismissed.

By summarily dismissing the appeal on the above grounds, the Appeal Court can rightly be accused of judicial escapism. How could the court accuse the appellant for failing to plead that German law applied at the trial court, when at that stage the appellant should normally have be concerned with the question of jurisdiction, as indeed he was. It is only after the question of jurisdiction has been determined that the question as to the applicable law should be addressed. The court was equally reticent on the question of the applicable law, only saying that German law had not been proven, thus leaving open the question as to whether it would have applied had it been proven. It certainly would not have applied in this particular case since the court had been quick to pick on a procedural flaw - that the appellant had failed to raise the issue of choice of law before the trial court. This case is symptomatic of the unease with which Cameroonian courts sometimes confront conflict of laws problem, yet it is significant for revealing that, as confused as they might be, in an international conflict problem, Cameroonian courts may be prepared to consider both the jurisdictional and choice of law issues in their attempt to determine which forum has jurisdiction and the applicable law.

Regrettably, when the conflict is internal, the courts, even though they rightly begin with the jurisdictional issue, always seem content to settle everything at that stage. They never seem to proceed to the choice of law stage, even when there is a clear need for that. Once a court decides that it has jurisdiction, it ignores any possible choice of law question. One may wonder what is wrong with that, but there is something definitely wrong. The present jurisdictional rules in Cameroon, as already demonstrated, were never formulated against the backdrop of conflict of laws

between the civil and common law. It is possible, therefore, thanks to the intra-state jurisdictional rules, for a particular court to have jurisdiction without necessarily

being the appropriate forum.

In SH O /A fricauto v. N gafor,63 for instance, the Bamenda High Court assumed jurisdiction solely on the basis of the plaintiffs residence. Yet, all the other relevant connections - defendant's residence, place of business, place of contract formation and performance and place of commision of the tort - pointed to Douala (civil law).

In upholding the decision of the High Court not to grant a stay, the Bamenda Appeal Court said that unless it was shown that to try the case in any court other than the Douala High Court would result in a miscarriage of justice, that court (Bamenda) had a discretion to try or transfer the case as it thought fit. Dismissing the appeal, the court felt confident enough to declare that no substantial miscarriage of justice had been caused by trying the case in Bamenda and that the procedural irregularity was cured by the trial.

One must say straightaway that it is hard to agree with that conclusion. In refusing to grant a stay the court appears to have been unduly concerned only with the plaintiffs interests. That begs the question whether the same interests of justice do not have it that the defendant ought not to be compelled to submit to litigation in a particular forum if the dispute is clearly more closely connected with another forum, his preferred forum. That is to say, the applicable interests of justice are concerned just as much with where a man is sued as with the law which will be applied when he is sued. No doubt a plaintiff may consider that he has been hard done by when he institutes proceedings only to have them stayed when the defendant successfully pleads forum non conveniens; but the plaintiffs are not the only interests to be borne in mind by the court. In the Cameroonian context, it cannot be objected to that an anglophone plaintiff, for instance, obtains an improper advantage when he chooses a common law forum in which the available procedure, law and language suits him nicely, nor should it be much of a sustainable objection that the defendant

63 Supra, note 39.

is able to use rules of local law to achieve no more than that litigation takes place in the most approppriate forum for it.

It is for these reasons that I take the view that Cameroonian courts would be better equipped to deal with internal conflict problems if these problems were to be subjected to the private international law regime, since they would more readily recognise the presence of a different system of law to which the case may be more closely connected.

The proposition that Cameroon should be treated as two seperate entities for private international law purposes invites the question as to whether the seperate law areas shall have to apply their seperate rules on conflict of laws. In other words, shall Anglophone and Francophone Cameroon apply the respective English and French conflict of laws rules they are supposed to have inherited.

Ideally, the emphasis should be on new and uniform rules on jurisdiction and choice of law. Inspiration for this can be sought in the recent efforts by the European Economic Community to harmonise conflict of law rules within the community,64 as evidenced by the Brussels Convention, 1968 on jurisdiction and enforcement of judgements in civil and commercial matters65 and the Rome Convention 198066 which aims to establish uniform choice of law rules for contractual obligations throughout the community.67

In relation to the question of jurisdiction, the use of Order 7 rule 3 of the R.S.C.

(Common Law Cameroon) and articles 8 and 9 of the Code de Procedure Civile (Civil Law Cameroon) should be limited only to intra-common law or intra-civil law jurisdictional conflicts, i.e. the reason for which they were formulated. New

64 See Lipstein, ed., Harmonisation of Private International Law by the EEC, 1978.

This is a collection of proposals in the form of essays for the harmonisation of conflict of laws rules.

65 Given effect in the United Kingdom by the Civil Jurisdiction and Judgement Act 1982.

66 Given effect in the UK by the Contracts (Applicable Law) Act 1990.

67 Para. 3 of the Preamble.

jurisdictional rules for conflicts involving both common and civil law courts must be developed. Such rules would have to be of uniform application throughout Cameroon as that would greatly reduce, if not totally discourage forum shopping. In that way the interests of both plaintiff and defendant would be taken into consideration and the plaintiff would only have himself to blame if he chose to sue in a forum from which the defendant may be able to escape.

As for the question of choice of law, it should be determined by the doctrine of autonomy.68 This means that the parties should be free to choose the governing law and only in the absence of that, do the courts have to consider the relevant connecting factors to the contract. This flexible approach, which was already being followed by many European Community countries with variations69 has been generally adopted by the Rome Convention 1980.7(1 Prior to the coming into effect o f the Rome Convention, English law, for example, applied the flexible doctrine of the ‘proper law of contract’71 to determine the applicable law while French law also employed a similar flexible approach.72

It may be of some importance to illustrate how this doctrine can be applied to internal conflict problems in Cameroon by using some Cameroonian cases by way of examples. I shall briefly consider seriatim the situation where the parties have made an express choice, where there is an inferred choice, and where there is no express or inferred choice. The aim will be to prove that Cameroonian courts have in some cases followed the private international law approach to the problem of determining

68 Cheshire, North, and Fawcett, p. 458.

69 Lando, "The EEC Convention on the Law Applicable to Contractual Obligations"

(1987) 24 C.M .L.R. 159, 171-179.

70 See Article 3, entitled "Freedom of choice."

71 Cheshire and North, p. 447 ff.

72 See the briliant comparative account by Lando, 3 International Encyclopaedia of Comparative Law, chapter 24; Battifol, and Lagarde, op.cit.. vol.II pp. 257-311;

Loussouarn & Bourel, op. cit.. note 27, para. 375-378.

the applicable law of a contract, albeit without having having that in mind.

Where the parties expressly choose the law to govern their contract, the courts should allow that chosen law to prevail. Of course there should be some limits on the parties’ freedom to select the applicable law. Firstly, the choice must be, to borrow Lord Wright’s phrase, "bona fide and legal" and there must be "no reason for avoiding the choice on the grounds of public policy".73 Secondly, and more importantly, any choice of law should be limited only to either system of law in Cameroon. To allow Cameroonian parties to write into their contract a choice of law provision designating foreign law in a purely Cameroonian transaction is to allow them to free themselves from the power of the law of the land. So extraordinary a power in the hands of individuals is absolutely anomalous and should surely be against public policy.

In practice, however, it is very unlikely for Cameroonians to expressly choose which law to govern their contract. This may be partly due to the fact that people do not generally envisage litigation at the time of contracting and partly due to the ignorance of legal complications that may arise as a result of conflict of laws, if and when a dispute arises. It may also be misconstrued as an indication of future dishonesty. Not too many Cameroonians would be prepared to deal with someone who at the time of contract formation is already addressing his mind to the question of the governing law in the event of a dispute.

In the absence of an express choice of law, the court should consider whether it can ascertain that there was an inferred or implied choice of law by the parties. If the parties agree, for instance, that a court in the civil law area shall have jurisdiction, that is a powerful implication that the civil law should be applied. This was recognised obiter by the Buea Court of Appeal in the Atabong case74 where it was noted that there was no clause in the contract designating Douala as the place of trial in the event of a dispute, the clear implication being that had there been such a

In the absence of an express choice of law, the court should consider whether it can ascertain that there was an inferred or implied choice of law by the parties. If the parties agree, for instance, that a court in the civil law area shall have jurisdiction, that is a powerful implication that the civil law should be applied. This was recognised obiter by the Buea Court of Appeal in the Atabong case74 where it was noted that there was no clause in the contract designating Douala as the place of trial in the event of a dispute, the clear implication being that had there been such a