Appeals Court Ruling

IN THE COURT OF APPEAL SOUTH WEST PROVINCE HOLDEN AT BUEA
BEFORE THEIR LORDSHIPS:

CHIEF JUSTICE H.M. NAJEME

JUSTICE J.F. FONKWE

JUSTICE A. K. NANA

THIS MONDAY THE 27TH DAY OF MAY 2002

CASWP/20M/2002
BETWEEN:
BRILLIAN AYUK WILSON ……………………………APPLICANT

AND

1. GLENN WILLIAM WILSON
2. JUSTICE TEDDY MESIME MOKWE ………………RESPONDENTS

Parties present.
Appearances: Mr. Eno Charles for the Applicant Mr. Charley – Sone for the 1stRespondent Mr. Loh Patrick for the 2nd Respondent.

“ THE REPUBLIC OF CAMMEROON”

“IN THE NAME OF THE PEOPLE OF CAMEROON” THE UNANIMOUS RULING PER LORD JUSTICE FONKWE

This is an application by way of motion on notice praying this Honourable Court for the following orders:

1. Recusing the 2nd Respondent herein from hearing and determing suit No. HCF/23/MC/2000 – 2001 now pending before the Fako High Court.

2. And for any other order or order the Court may deem fit and proper to make in the circumstance of the case.

In support of the Motion prayers is a 39-paragraph affidavit and an eighteen paragraph further affidavit.

The Honorable Procureur General made this intervention through a fourteen paragraph Counter affidavit and oral submissions.

Opposing the Motion prayer, 1st Respondent has filed a 17-paragraph affidavit with annextures A, B, B1, C, D and D1.

2nd Respondent on his part opposed the Motion in a 48-paragraph Counter affidavit.

All the parties did move the Court and made oral submissions.

Barrister Eno Charles of Counsel for applicant submitted that the application was brought pursuant to law No. 75.17 of 8/12/75 , section 98 to 100 of which relate to the procedure to recuse a Magistrate.

According to him, the question the Appeal Court had to answer was whether Applicant had good grounds to believe that she cannot have a fair trial before the High Court of Fako presided over by the 2nd Respondent.

He further submitted that the issue was not whether bribery was established but how Applicant feels seeing 1st Respondent in the company of the 2nd Respondent after 1st Respondent had boasted to her that he had the judge at his back and call

Refering to the Counter affidavit, Counsel argued that following section 98 (3) of the relevant law, Respondents should have filed the counter affidavits within 8 days. Since they did not respect this time lapse, he contended that their responses should be discountenanced with the Court.

Counsel finally submitted that the law does not make provision for the office of the Procureur General to come into a matter like the one in dispute. However, the Procureur General chambers should have filed only written submissions if they were to intervene and not a counter affidavit because they were not a party to the case. Besides, counsel said, the very Procureur General had detained Applicant for 9 days in a matrimonial issue. Madame the Advocate General Njoya Irene née Nko for the Procureur General Chambers submitted that bearing in mind the provisions of Ordiance No. B72/4 of 26/8/72 on Judicial Organisation, and following the case CASWP/60/97, Cameroon Lonestar General chambers had to file a counter affidavit and written submissions. She firmly argued on any matter in Court, be it civil or criminal.

She argued that for the jurisdiction of the Judge to be ousted it had to be shown that his integrity was compromised. Refering to the affidavit she said paragraph 30 did not state any time and place while the rest of the affidavit was vague. According to her, in all paragraphs of the affidavit, the Judge was not found drinking with 1st Respondent.

She also argued that the further affidavit was an after thought coming after her Counter Affidavit and should be discountenanced.

She urged the Court to dismiss the application and order Applicant to pay the fine spelt out in the law.

Barrister Charley – Sone of Counsel for the 1st Respondent, argued that to impeach the honour, dignity and confidence of a judge, the evidence must be weighty, cogent and compelling. Counsel found falsehood in paragraph 21 of Applicant’s affidavit contradicted paragraph 25 of the further affidavit.

Barrister Loh Patrick for the 2nd Respondent urged the Court to hold that their Counter affidavit was regular as per service since they were served the further affidavit in open Court on the hearing date.

Counsel submitted that Applicant could not prove bribery beyond reasonable doubt. He argued that paragraph 18 of the affidavit was hearsay evidence. He prayed the Court to strike out paragraphs 16, 17 18, 28, 29 and 39 of the affidavit. Finally Barrister Loh argued that law No.75/17 is applicable only to the Supreme Court and not to the Court of Appeal. He concluded the application be dismissed.

ON VARIOUS OBJECTIONS

We have carefully examined paragraphs 28, 29 and 39 of the affidavit. They are neither legal arguments nor conclusions and so do not offend sections 85 and 86 of the evidence ordinance.

Barrister Eno argued that Respondents did not file their Counter Affidavit within 8 days and so they should be discountenanced. But there is his further affidavit, which defeats this argument because any delay should run only from the date of the further affidavit, which interrupted the time lapse.

Barrister Loh indicated in parargrapgh 39 of his counter affidavit that he could raise a preliminary objection as to the competence of the Court to hear this Motion. This was however not rasied and is of no moment.

The contention that the Procureur general should not have submitted in this matter is not tenable because of the provisions of section 23 (3) of Ordinance No.72/4 of 26/8/72 as modified by law No.89/019 of 29/12/89 which empowers that office to intervene and /or submit in all civil matters even as principle parties to state the position of the law.

ON THE APPLICABLE LAWS

Barrister Loh Patrick of counsel for the 2nd Respondent submitted that the application was based on law No. 75/17 of 8/12/75 cited by Applicant but which is applicable only to the Supreme Court. Without suggesting the right law he urged the Court to dismiss the application because predicated on a wrong law cited by Applicant.

We would like to state that parties are not bound to quote any laws when they come to Court. They disclosed facts and it is the duty of the judge to say the law.

The relevant laws on the recusal of Magistrate and Judges can be found in section 37 and 40 of the southern Cameroon Magistrates’ Court Law 19955 as read together with section 978 to 101 of law No.75/17 of 8/12/75 fixing the procedure before the administrative bench of the Supreme Court.

The relevant provisions of the Southern Cameroon Laws fall under the distribution of Court business.

Section 37 of the Southern Cameroon Magistrates’ Court law 1995 stipulated:
“A Magistrate may, of his own Motion, Or on the application of any person concerned, Report to a Judge the pendancy of any cause or matter, civil or criminal, which in the opinion of such Magistrate ought for any reason to be transferred from his Court to any other Magistrate Court or to the High , such Judge Shall direct in which mode and where the cause Or matter be heard and determined”

Section 57 of the Southern Cameroon High Court Law
partially is as follows:

1. “The Chief Justice may at any time or stage of the proceedings before judgement and either or without application from any of the parties thereto , transfer any cause or matter before a judge to any other judge.

2. The power of transfer under this section shall be exercised by means of an order under the hand of the Chief Justice and the seal of the High Court”.

Section 40 of the Southern Cameroon Magistrates’ Court laws 19955 also states:

1. “To the extent that the legislature of the Southern Cameroon is enabled to confer such power , the Chief Justice or a Judge may at any time and at any state thereof before judgment transfer any cause or matter before a Magistrate Court to any other Magistrate”.

The above-cited laws do not specify the reasons of the transfer, nor the procedure to be followed by litigants before the Court or Chief Justice.

Oppressive conduct in Court and inappropriate conduct of Court on the part of the Magistrate or Judge are some of the reasons that readily come to mind. Past and current friendly ties with litigants matter just like blood relationship with a party. Utterances before and during the trial may also count. The list is not exhaustive of course rumor and vain suspision would not be allowed to prevail over the judicial process.

It is apparent from all these laws that the chief Justice or the hierarchy of judiciary is watchdog of judicial impartiality. In our Cameroonian context of today that Chief Justice who used to head the High Court had both Appellate and original jurisdiction. While of appeal , his original jurisdiction is shared between the court of First Instance and the High Court both of which are longer directly under his supervision. The powers conferred on the Chief Justice by the 1955 laws still remain as he is assisted administratively by the Presidents of the lower Courts. Their administrative functions must however be distinguished from jurisdictional functions for which the judge in the present case is being recused. It is trite law that once a case has being assigned , the magistrate or judge has to follow only the law and his conscience. He can no longer receive orders from the administrative hierarchy of the judiciary. But he can be recused and the matter transferred.

We believe the recusal procedure is special with its inert problems. In order for the judicial hierarchy to order the transfer of a case, the facts leading to legitimate suspicion must be examined and all sides involved in this accusation heard.

If no rules are given by the Southern Cameroon laws of 1955 as to how the transfer of a case may be obtained, granted or refused, we readily borrow from section 98 to 101 of law No. 75/17 of 8 December 1975 fixing the procedure before the administrative bench of the Supreme Court of Cameroon. We hold that the application mentioned in the 1955 laws may be deposited in the trial Court registry or formerly through a motion on notice. We do not see it being an oral application as Barrister Eno attempted in the lower Court. The recused Magistrate or Judge must, within eight days of notification, give his written observation either accepting the recusal or refusing it. The competent Court, which in our case is the Court of Appeal in its full bench, sits in Camera and deliberates upon the facts after listening to the Procureur General and the parties. In this way the recusal of magistrates of the Court of First Instance and Judges of the High Court and those of Appeal Court, except its President, are heard by the full bench of Appeal.

ON THE RECUSAL PROPER

A samary of the facts leading to this application is that Applicant and 1st Respondent are husband and wife. They have a divorce Suit No. HCF/23/MC/2000/2001 pending since 14 August 2001 before 2nd Respondent who is president of the Fako High. At one of the return dates tempers flared in Court as counsel for Applicant said his client had not been served with a said motion to the substantive matter. The judge overruled and heard the motion, holding that pupil Barrister Mbianyor of Eno Law Chambers had been served on behalf of Applicant , before two Court Clerks and in open Court but he had refused to sign proof of service.

Form paragraph 20 of 2nd Respondent’s Counter Affidavit was averred that Barrister Eno Charles of Counsel for the Respondent in the divorce Suit before the lower Court , then informed the trial Judge that he was taking sides and he Eno was recusing the Judge from hearing the substantive matter. This counsel finally walked out of Court. On 4th March 2002 counsel filed an application by was of motion on notice in the Appeal Court recusing 2nd Respondent herein from hearing and determining Suit No. HCF/23/MC/2000/2001 still pending in the Fako High Court.

It should be noted in passing that two interlocutory rulings have made in this pending divorce proceedings by the trial Judge. They are from Motion No. HCF/23/MC/2000/2001/1M that provocked the recusal procedure and Motion No. HCF/23/MC/2000/2001/2M. In both rulings a number of Preliminary measures were taken by the lower Court affecting the property rights of the spouses. The Rulings are contested on interlocutory appeals by Counsel for Applicant .

The expression recusing a judge may not be good sounding to English purists. To us it simply means refusing to submit to the authority of a given Court or judge by raising an objection as to that Court or Judge conducting the trial for reasons of being bias or partial . it may also mean transferring the case for other legitimate reasons.

Before examining the veracity of the assertions made by Applicant in the instant case we would like to say we know of no law that permits a litigant to choose his Judge like a patient would voluntarily seek the services of a medical doctor or refuse treatment from a particular hospital. We strongly deplore and condemn the unorthodox means used by Barrister Eno Charles in the lower trial Court to frustrate the hearing of this case. What respect was this Barrister showing our Courts by contemptuously walking out of Court. It is scandalous for his pupil lawyer to receive motion papers on behalf of their client but refuse signing proof of that service.

In fact our procedural laws are strict on all dilatory practices and contempt in the face of the Court. As for the jurisdiction of the Courts, territorial and material competence are determined by the adjectival laws without taking into consideration the wishes and whims of litigants and counsels. Distinction must however be made between ousting the juris – diction of a Court because it lacks such material and local competence and recusing a Court or a Judge though they have both material and territorial competence but seem bias and may not give a fair trial .

In this last case it is the honor and dignity of the Judge that are put into question. This is such a serious matter that must be taken with care because for a Judge to discharge his functions efficiently his honor and dignity must be jealously protected. Recusal must therefore be founded on weighty, content and compelling evidence. Seen otherwise this procedure would open the floodgates for obnoxious litigants with gullible and unruly lawyers ready to smear and run down honest and just judges.

However our Courts must at all times maintain the principles of impartiality of adjudication, those of fairness and of integrity of adjudication . while the principle of impartially ensure that everyone is treated equally under the law, that of intergrity guarantees that decisions which protect the right of the individual have the moral authority which commands respect. It is not enough for these principles to be recognised. They must be practised. They should lie in the breast of the judge.

This implies that if for some apparent reason a litigant suspects he may not have a fair trial before a particular Magistrate or Judge, then he could request that his case be transferred .

The arguments and reasons advanced in the present case by Applicant are found in paragraphs 21, 25, 29, 30, 31, 33 and 34 of her affidavit and paragraphs 17 and 18 of the further affidavit. In essence they are that the husband boasted to the wife that he would win the divorce suit because he had the trial judge at his beck call: that he equally told the wife he would bribe his way through the case; that in November 2001 the wife met the trial judge and the husband drinking together in places called “MARS” and “T COMPLEX” ; that a cousin of the wife saw the judge and husband drinking in another place called “GALAXY” in Limbe; that on many occasions the judge did not allow Applicant’s lawyer to speak in Court.

Both Respondents did reply refuting all the above allegations, which they termed as falsehoods of Applicant’s imagination .

In paragraph 39 of his counter affidavit, 2nd Respondent revealed that when the substantive matter started before him, Barrister Eno Charles met him the judge in Chambers and told him that 1st Respondent herein is a white man and that the judge and the Lawyer should do everything possible to delay the hearing to frustrate the white man or in the alternative the judge should enter judgement in favour of Applicant herein on a promise that Applicant would compensate the judge after gaining all the property of the marriage. This is an assertion of bribery and corruption which was not proved with concrete evidence nor has any collusion been established between the judge and the party.

Coming back to the accusation levied against the judge, what the wife said she heard or saw has no time and has not been confirmed by anyone, nor even by any material piece of evidence. The object of the declarations of Applicant’s un – named cousin is to establish the truth of what is contained in the supposed statement. All that is hearsay evidence which we must declare inadmissible . If Applicant had wanted the cousin to be heard she would have given her name. But on the whole all the assertions made in Applicant’s application have not been proved never even offered to proved them. We took the pains to read through the records of the lower Court and found that Barrister Eno had every opportunity to speak in Court and used that right on numerous occasions.

We do not therefore see this recusal procedure as succeeding because collusion between the judge and a party as well as the danger of pending bias, have not been proved . For these reasons the application fails and is dismissed accordingly.

That notwithstanding, the atmosphere now between the litigant and the trial judge is tense. Applicant’s lawyer and the judge seem to be at dagger drawn. THEY ARE BOTH MAKING ACCUSATIONS AND COUNTER ACCUSATIONS. THE SEAL OF CONFIDENCE BETWEEN THE LITIGANT AND THE JUDGE SEEMS BROKEN. OUR FEAR NOW IS THAT UNDER THESE GIVEN CIRCUMSTANCES THERE MAY NOT BE A FAIR TRIAL. A TRANSFER OF THE CASE IS THUS NECESSARY. They are both making accusations and counter accusations. The seal of confidence between the litigant and the judge seems broken. Our fear now is that under these give circumstances there may not be a fair trial. A transfer of the case is thus necessary. We also hold that the proper conduct for any judge to adopt in the event of personal embarrassment in stage of the case. We therefore order the transfer of Suit NO. HCF/23/MC/2000/2001 between GLENN WILLIAM WILSON and BRILLIAN AYUK WILSON née Enow , now pending before Justice MOKWE EDWARD MISIME of the Fako High Court to Justice Mrs. LEBONG MORFAW espouse CHIBILI of same Court.

2. We also order that there shall be accelerated hearing of this long delayed case.
3. There shall be no order as to costs .

WHERFORE, the President of the Republic of Cameroon commands and enjoins all Bailiffs and process servers to enforce this JUDGMENT, the Procureur General and the State Counsel to lend them support and all commanders and Officers of the Armed Forces and Police forces to lend them assistance when so required by the law;

IN WITNESS whereof the present JUDGMENT has been signed by a Panel of Judges and the Chief Registrar of the Court.

DELIVERED AT BUEA THIS 27TH DAY OF MAY, 2002.

H.M. NAJEME (MRS)
CHIEF JUSTICE

J. F. FONKWE
VICE PRESIDENT

A. K. NANA
VICE PRESIDENT


CHIEF REGISTRAR

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