Fako Lawyers to boycott court sessions

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. LLEGAL 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