The judge of the Mamfe High Court has dismissed an application from Manyu Community Radio praying the court to reject an action brought up by Voice of Manyu Radio calling on the court to grant her ownership rights over the property donated by a Dutch NGO.
By Ekumtambe Eku in Mamfe
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| Peter Eta has sworn to fight for the rights of Voice of Manyu |
The Management of Committee of the VOMRR represented by Mr. Peter Ita Eta had earlier filed a substantive suit No HCM/03/2013 and motion No HCM/11M/2013 praying the court to grant VOMRR rights of ownership of the contested equipment.
Provoked by the afore-mentioned suite and motion, Esther Ayuk of Cameroon young Jurists Resources Center (Cyjulerc), Manyu community Radio (MRC) and Cameroon young Jurists Resources Center filed in a three point affidavit in suit No HCM/14M/2013 urging the Mamfe High Court to dismiss the request of Mr. Peter Ita on grounds of lack of legal capacity to sue, improper commencement of action and other related reasons.
Barrister Tangunyi Gilbert, lead counsel for the plaintiffs (Esther Ayuk et al), in his opening submission in court, argued that “parties to an action must be Juristic Persons and must be competent to institute such action.” He continued “we are contending in prayer number one that the Voice of Manyu Rural Radio represented by its president Mr. Ita Eta who purports to be plaintiff/applicant from the suit we are attacking is not a Juristic Person.”
Barrister Tangunyi went on to state that “juristic personality is conferred on an entity by law and where the capacity of a party is challenged, the onus falls on such party to prove that he has the capacity…….. In this case, the plaintiffs have failed to show what instrument has given them juristic personality.’’
Using familiar precedents to corroborate his argument, lawyer Tangunyi concluded that ‘’we simply submit that there is no proper plaintiff/applicant in the case we have attacked. We therefore pray the court to dismiss the action on that first ground.”
On relief number two based on improper commencement of the action, Barrister Tangunyi drew the attention of the Court to part of the confusion in Fako High Court on the Alternative Procedure for Claim otherwise known as the part 8 procedure which according to some of the judgments of the said High Court and the persuasive voice of the North West Court of Appeal in case No. CANWR/42/2012 involving Edwin Molsa Funwo and Guarantee Express Co. Ltd against Che Chi Joseph wherein the Court held that the part 8 procedure is inapplicable in the High Courts of the South West and North West Regions of the Republic of Cameroon.
Barrister Tangunyi therefore prayed the Court to dismiss both actions with substantial costs.
Taking queue, counsel for the applicants, Barrister Mbeng Agbor on the details of the objection on grounds of lack of juristic personality, referred the Court to a an “Accord Cardre” entered between the Agence de la Francophonie and the Ministry of Communication of the Republic of Cameroon which in paragraph 3 makes the Voice Of Manyu Rural Radio a creation of the said convention alongside other local rural radios such as Oku, Dana, Lolodorf and Fotouni.
Barrister Mbeng stressed that the said convention has not been challenged before the Constitutional Court of Cameroon adding that neither has the defendants produced documents from the S.D.O of Manyu nor the Ministry of Communication to show that the complainants have no right to own property.
The learned Counsel for the defendants described the confusive stance in the Fako High Court with respect to the part 8 alternative claims as a cacophony which needs to be redressed by the South West Regional Court of Appeal
In his final intervention on point of law, Barrister Tangunyi for plaitiffs pointed out that the word Enterprise as employed in decree No.2000/158 of April 3, 2000 on audio visual communication does not mean juristic person. He emphasized that no registration document has been shown to the court to attest that the Voice of Manyu is registered anywhere. Again, Barrister Tanyunyi reiterated that the ‘’Accord cadre ‘’ does not state anywhere that the VOMRR is a legal personality in consonance with Articles 6 and 7 of law No.90/53 of 19 December 1990 on freedom of Association which prescribe the modalities for resting an entity with juristic personality. He concluded that whenever competence to sue is challenged the onus of proof lies on the person challenged.
Even though the Court upheld Barrister Tanyunyi’s argument on the issue of onus of proof it however, pondered on the question- what did 1st complainant do to exhaust the onus of proof?
The Court noted that “the VOM, like the other radios created by the “Accord Cadre” must be regarded with respect to their existence and operation as standing on the same platform with the CRTV-a state-run audio visual media outfit. In other words, the existence of the VOM and others must be construed and implied in the decree that created the CRTV.
In the Courts view, “the VOM is not a private radio as claimed by the 2nd plaintiffs; it is a special creation of the government of Cameroon for the benefit of rural communities.”
The Court wondered aloud “how a creation of the government of Cameroon can be said to lack legal capacity or how else can an entity be legally established than by the government of a country?”
In the views of the trial judge, His Lordship Justice Sokem Ngalle Mboh, “it is out of place to demand of VOM an authorization or registration document or license”.
To form his opinion, Justice Sokem also invoked article 36 of the law on the freedom of Mass communication which States inter alia that: (1)-Subject to the regulations governing private radio, persons shall be free to engage in audio visual communication, and (2)-However, the setting up and operation of a private radio broadcasting or Television company shall be subject to the obtention of a license or registration. The court therefore held that VOM is not a private Radio and does not need a license or registration.
Justice Sokem noted further that “granted that if VOM was not a creation of the government, its long stay and interaction with the Manyu community would have since rendered them a “societe de faite” that is a de facto entity which would automatically be conferred with legal capacity so that the (VOM) does not excuse itself from any atrocities.”
He added that “whenever an enterprise is in operation in the society and holds out itself as a duty-constituted-entity without any challenge from the administration, it automatically assumes juristic personality.”
The learned judge inferred further that if VOM was not considered a juristic person then its workers would not be protected against wanton and abusive management of VOM.” He concluded that ‘based on the foregoing the grounds of objection by the 2nd plaintiffs fall to the ground.”
Finally, on the second ground of improper commencement, the judge said “my opinion is that I am not bound either by the confusion in the Fako High Court nor the decision of the North West Court of Appeal. The decisions of the North West Court of appeal are only persuasive and I am not persuaded by it. I am bound by the South West Regional Court of Appeal which to the best of my knowledge is still to speak on this issue of the part 8 Alternative procedure.”
On the merits of the part 8 Alternative procedures, the legal luminary said “I find in the part 8 Alternative procedure an attractive procedure with multiple advantages that the originating summons which is limited to interpretations of questions where the former has the added advantage of awards. “
Justice Sokem further noted that “For us the judges and courts of the South West and North West Regions of Cameroon, England remains the source and inspiration of our practice and procedure, be it directly or indirectly through the laws of the Federation of Nigeria.”
He concludes that “until the South West Regional Court of Appeal speaks otherwise” he will entertain and determine matters under the part 8 Alternative procedure.
“That said”, Justice Sokem affirmed, “the application of the plaintiffs is hereby dismissed, without cost.”
While the VOM was looking up to when hearing on the substantive suit and motion would commence, the plaintiffs Esther Ayuk, MCR et al have filed an appeal to challenge the ruling handed down, on Thursday, 13th February 2014.
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