OVERVIEW ON OHADA UNIFORM ACT ORGANIZING SIMPLIFIED RECOVERY PROCEDURES AND MEASURES OF EXECUTION
with
MRS ATTEGNIA ERNESTINE,
Bailiff registered in the Appeal Court and the Courts of Douala, Cameroon

1. Mrs ATTEGNIA Ernestine , “Ohada Legis Guest” is back and you are the first guest. Can you introduce yourself to Ohada Legis internauts ?

I am Ernestine ATTEGNIA, Bailiff registered in the Appeal Court and the Courts of Douala, Cameroon. I have been appointed on June 12, 2003 by a Decree of the President of the Republic and I started practising since December 10, 2003, when I took my oath before the Court of First Instance of Douala-Bonanjo. My office is located near the entrance of Rue Foch by Boulevard de la Liberté , in Akwa.

2. You carry out your activities in Douala, the most important venue in Cameroon, a member country of Ohada. The Treaty On The Harmonisation Of Business Law In Africa which set up Ohada organization mentioned in its article 1 that its aims were « the harmonisation of business laws in the Contracting States by the elaboration and adoption of simple modern common rules adapted to their economies, by setting up appropriate judicial procedures, and by encouraging arbitration for the settlement of contractual disputes”.

Ohada Uniform Act organizing simplified recovery procedures and measures of execution which is the subject matter of this interview was enforced in Cameroon some seven years ago. In your opinion, did this Act meet this requirement, namely did it set up “appropriate judicial procedures” in Cameroon ?

This Uniform Act, as the other ones, undoubtedly set up, within the Member States, a common legal environment which should allow the harmonization of proceedings and practice in courts, enhance a climate of trust among investors, and even protect business activities. However, the tone is slightly different as far as its harmonization within the Member States is concerned.

- Indeed, this Act t has been implemented in a sometimes incoherent manner because it was a new legislation which somehow took practicians by surprise. We first started self-training and continued with training in seminars including small chosen groups. Therefore, uniformity was lacking in the training but I think that this problem starts being solved, especially with the major decisions of the Common Court of Justice and Arbitration (CCJA).

- We can also point out here a specific situation which has procrastinated the harmonization of the judicial proceedings and techniques provided for by this Uniform Act : the case of Cameroon .

Indeed, the English-speaking part of Cameroon somehow delayed the implementation of this Act because of the existing double judicial system.

3. Ohada legislation brought some changes in Cameroon domestic legal environment regarding debt recovery. According to you, what is/are the most important change(s) and which (favorable or unfavorable) situations resulted from this/these change(s) ?

There are some important changes. I shall mention just a few :

- the institution of new proceedings such as the one to deliver or restitute property .

- changes introduced in procedural terms :

Example:

1 - the term between the notification of summons to the debtor to fulfil his obligations before execution and the seizure for sale has been increased from 24 hours (rules of civil procedure) to 8 (eight) days in the Uniform Act.

2 - the execution relating to attached items can presently only take place at least thirty (30) days after the seizure whereas under the former law this term was of eight (08) days.

- Changes in the management of attached items to be sold and how they should be kept : henceforth, the concerned debtor is the keeper of these items and he can find buyers in the framework of private sales. He is therefore actively involved in the sale process.

- Another change to be noted here is the privilege of making the amount of the debt seized in a third party's hands immediately available, granted to the creditor in the framework of seizure-awards.

Have these changes been favourable or unfavourable?

They are unfavourable to creditors. Indeed, by granting eight days to a debtor to fulfil his obligations, this Uniform Act gives him all the time to organize his insolvency status and even move from his place of business. Our countries are not yet so well organized as to enable bailiffs and process-servers to find such debtors who decided to disappear.

The extended terms of the seizure for sale proceedings allows the debtor to divert the attached property despite the threat of legal proceedings for wrongful diversion, if it is even possible to find him again.

Generally on the spot, it is clear that these changes tend to protect the debtor's interests.

4. The Treaty for the Harmonization of Business Law in Africa emphasized in its preamble that it was “ essential that this business law be applied with diligence in such conditions so as to guarantee legal stability of economic activities and to favour expansion of the latter and to encourage investment” .

Ohada Uniform Act to organize simplified procedures and measures of execution concerns:

- the following simplified debt recovery procedures : injunction to pay, injunction to deliver or to restitute,

- and the following measures of execution: sequestration of property, seizure to sell, seizure attribution, seizure and transfer of salaries, seizure appréhension, seizure of partners' rights and shares, attachment of real property.

Do you think that, in general terms, these various proceedings allow an accelerated and efficient handling of simplified debt recovery likely to ensure the legal security of economic activities and encourage the expansion of these activities in Cameroon ? (If yes, how on the basis of your field experience / if no, why? Are there obstacles in the legal provisions or elsewhere ?)

At first sight, the proceedings provided for in the Uniform Act seems to secure the economic activities, but practically, the system appears to be to be rigid and, as mentioned before, it is rather the debtor who is protected : this is not an incentive to the development of economic activities, and therefore of investments.

The obstacles are in the legal provisions and in the heads as well. Indeed, challenges at each step of proceedings slow them down and leave creditors unsatisfied.

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5. Take for example standard proceedings such as injunction to pay. In your practitioner's experience, what is, on average, according to your observations, the time needed for the finalization of such proceedings (that is the actual payment of the creditor) and in the event of dispute, what is the average corresponding delay ?

As to the seizure for sale, the time from the not ification of the summons to the debtor to fulfil his obligations up to the deposit of the sale price should normally not exceed two months. However, we note that the seizure for sale gives rise to other proceedings which, even though summary jurisdiction and procedure are supposed to focus on matters of special urgency, tend to prolong the seizure proceedings to a point where the goods or items concerned are so much utilized by the debtor that they are either completely out of use, if not damaged or simply reported missing at the end of the proceedings on disputes. The delay caused by these disputes is equivalent to the time needed to get a writ of execution , roughly two years, all procedural steps included.

6. Studies carried out by the World Bank on the business environment in the world and its obstacles (Series " Doing Business "), show the existence of some impediments in developing countries among which those in the Ohada Zone. Notably it is indicated that whereas the enforcement of a contract takes 7 days in Tunisia and cost 86 $US, 39 days in Netherlands and 120 $US, it may, in two basic countries of the Ohada zone ( Cameroon and Côte d'Ivoire ) :

. take up to 150 days and cost 572 $US ( Côte d'Ivoire ),

. up to 548 days and 367 $US in Cameroon .

What is your appreciation of the efficiency of Ohada simplified commercial debt recovery system in Douala (very good mark/good/average/bad):

a). as to the outcomes of proceedings (actual payment of creditors)
b). as to the costs (average/high),
c). with regard to time (speedy/long-lasting proceedings).

The efficiency of Ohada of simplified debt recovery system :

a- in terms of results : it is an average mark;

b - in terms of costs : the expenses are high;

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To keep the time-limits of possible challenges or disputes within precise and compulsory limits, reduce the number of cases of nullities.

Mrs Attegnia. Thank you.