The distinctiveness of the administrative contract and the seperate jurisdiction it carries with it has produced a crop of technicalities and subtlety of distinctions which have proven to be a trap for the courts and for the unwary litigant in Cameroon. The criteria for the determination of administrative contracts as outlined above may appear straightforward but Cameroonian courts have found the distinction between public and private contracts very elusive. More emphasis shall be given here to the common law jurisdiction because Anglophone practitioners and judges, more than their civil law confreres, have failed to grapple with the French law notion of the administrative contracts. This problem is not limited to administrative contracts, it extends to other areas of administrative law such as judicial review. In this regard, the problem is not peculiar to Common Law Cameroon. In a recent English case, R. v. Dairy Produce Quota Tribunal f o r England and Wales, ex parte Carswell,74 on an application for judicial review, Lord Goff recounted how when the applicant consulted a local solicitor, he professed, with discomforting sincerity, that he knew nothing about judicial review.
Reverting to administrative contracts in Cameroon, a review of the cases decided in the common law jurisdiction reveals a catalogue of ambivalent and inconsistent decisions. In C hief Anufogo v. Kumba Urban Council,75 the plaintiff entered into a contract with the defendants (the local council) to build market stalls in the main market. In an action by the plaintiff for breach, the defendants raised a preliminary objection to the jurisdiction of the Kumba High Court on the grounds that the contract in question was administrative (they being a local authority) and that the proper place for bringing any such action was the administrative bench of the Supreme Court. The judge ruled against this objection, holding that the contract was governed by the
74 [1990] 2 A.C. 738 at 744C.
75 Suit no. HCK/1/82 (Kumba, unreported).
ordinary principles of contract law.
Yet, in another case, Motase Ngoh David v Kumba Urban Council,1* decided by this same court and involving the same local council, a different conclusion was arrived at, even though the facts were very similar. This time the plaintiff had contracted to build an abattoir for the defendants. When he brought an action for breach in the high court, the defendants once again argued by way of a preliminary objection that the high court lacked jurisdiction on the grounds that the action was founded on an administrative contract. This time the court agreed and declined jurisdiction.
In a third case, Tayong Vincent v State o f Cameroon,11 the plaintiff supplied cement to the Rural Engineering Service (an arm of the Ministry of Agriculture) on credit terms and when payment was not forthcoming, he brought an action in the high court. The Ministry of Agriculture contested the jurisdiction of the high court, pointing out that the contract in question was administrative and therefore within the exclusive jurisdiction of the administrative bench of the Supreme Court. The judge ruled that the question of administrative contract did not arise here. "The transaction was an ordinary purchase of goods in the market by the state with no ingredients or character of an administrative contract in itself or contemplated", he declared. But he did not say what he considered these ingredients to be. Regrettably, it is not uncommon for many Anglophone judges to simply rule for or against the jurisdiction of the ordinary courts in these matters (the former is more often the result), without any discussion of the nature of administrative contracts.
For that reason, one must take a close interest in the recent Bamenda Court of Appeal decision in Institute o f Agronomic Research v. Union o f Cameroon Indigenous Company,78 in which Inglis J., was prepared to tread where his
76 Suit no. HCK/26/85 (Kumba,.unreported).
77 Suit no. HCB/101/86. (Bamenda, 22/6/1990, unreported).
78 Suit no. BCA/13/90 (Bamenda, 25/11/1991, unreported).
colleagues have dreaded, by attempting to elucidate on the statutory and judicial criteria of administrative contracts. The appellants, a Research Institute attached to the Ministry of Scientific Research were defendants in the trial court. They entered into a written contract with the respondents whereby the latter was to construct for them two duplex staff houses at their research station. The respondents later discovered that the estimated cost of the project, prepared by the appellants experts was for only one of the houses and duly complained. The appellants re-estimated the cost and agreed to pay an additional sum. As the appellants were stalling over the payment of this extra sum after the full completion of the work, the respondents brought an action in the high court. Various issues were involved but the discussion here is limited to the issue of the nature of the contract and the incidental question of jurisdiction. The appellants, not surprisingly, argued that this was an administrative contract, thus objecting to the jurisdiction of the high court. The trial judge ruled against that objection on the basis that the appellants were a parastatal with a legal personality to sue and be sued and on this they appealed.
The Court of Appeal, relying on sections 9 (1) and 9 (2) of Ordinance No. 72/6 of 6-8-1972 (the Judicial Organisation Ordinace)79 and Articles 1 and 133 of Decree No. 79/35 of 2-2-1979 (on public sector contracts), held that this was an administrative contract and therefore within the exclusive jurisdiction of the administrative bench of the Supreme Court. The ruling of the trial judge was thereby reversed. Inglis, J. in the Court of Appeal did not only rely on those statutory provisions. He amplified the ruling of that court by emphasising that the contract contained exorbitant clauses:
"Articles 19 and 20 of the contract are what is called in French Administrative law clauses exorbitantes du droit commun. These take the contract out of the realm of private law."
Inglis. J ’s disposition of this case is admirable and noteworthy, not just because it is correct, but because it holds its place as as one of the rare instances in which a
79 See below, p. 152.
common law judge has taken the pains to articulate on the elusive problem of the nature of administrative contracts. It is only by such gallant efforts that Cameroonian common lawyers will become accustomed to the problems posed by the special nature of administrative contracts.
The problems faced by Cameroonian common law practitioners in this area have often been attributed to their common law upbringing.80 Although that link cannot be discounted, I have also noticed a deliberate reluctance on the part of Anglophone practitioners, for reasons (to be explained later) other than their legal culture, to concede that a contract is administrative, even when the fact that it is otherwise is very clear.81
Even though the special regime of administrative contracts is more familiar to Francophone lawyers, who are generally grounded in the French Civil law tradition from where it derives, the Francophone courts have not been immune to the jurisdictional niceties that have caused trouble and frustration to the common law practitioners. There are instances, for example, in which individuals have brought actions for breach of contract against local councils in the ordinary civil courts, on
80 See Nguini, "Droit Modeme et Droit Traditionnel" (1973) 83 Pennant, 9; Ibid, "La Cour Federal de Justice" (1973) 83 Pennant, 348.
81 I made the following findings from interviewing 20 Anglophone practitioners on the subject: only one assured me he would readily take a matter straight to the administrative branch of the Supreme Court if he felt it clearly involved an administrative contract. And as if to prove that he meant what he said, he kindly offered me a copy of Law No. 75/17 of 8 December 1975 prescribing the Supreme Court Procedure in administrtative cases. 6 of them were alarmingly unaware of the nature of the problem while the rest confessed that they would invariably start proceedings in the ordinary courts and would only go to the administrative bench of the Supreme Court as a last resort. Not surprisingly, therefore, only 2 of them had actually appeared before the administrative bench of the Supreme Court.
facts that point more readily to the administrative nature of the contract.82
The case of Societe Asquini Encorad v. Ebongue Hubert,83 vividly demonstrates that Francophone litigants and courts are also sometimes confused by the civil/administrative law dichotomy. The appellant, a construction company, was awarded a contract by the State and authorised to acquire and use all materials necessary for the execution of the contract. On the strength of that authorisation, the company extracted sand and gravel from land belonging to the respondent whereupon he sued in his local high court (Douala). The company contested the jurisdiction of the high court without success. The Douala appeal court upheld the high court ruling that it (the high court) was competent to deal with the matter because the subject matter of the action was over private rights over land belonging to a private person.
The appellants carried on their appeal to the Supreme Court. The Supreme Court held that the dispute arose out of the execution of the contract between the the appellants and the State and therefore fell within the exclusive jurisdiction of its administrative branch. In other words, the involvement of the State automatically brought the matter within the jurisdiction of administrative court. The decision of the high court, upheld by the court of appeal, was thus overruled.
In discussing some of the cases cited above, my aim has been to expose the judicial confusion in this area rather than to provide examples of "clear law". As a result of this maelstrom of conflicting decisions on the nature of the administrative contract, especially in Anglophone Cameroon, one must attempt to provide a usable criteria here.
It has already been said that administrative contracts can be determined either statutorily or judicially. In France, much of it is determined judicially through the use of the clauses exorbitantes and service public criteria. This is because Droir
82 For example, Affaire Nde Benoit v. La Commune Urbaine de Yaounde, J.C.
N o.270 du 27 Mars 1991, Yaounde (unreported); Nkepche Pierre v. La Commun Urbaine de Yaounde, J.C. No.209 du 6 Mars 1991, Yaoude (unreported).
83 Arret no. 66/CC of 5/3/1981 (unreported).
Administrarif in France, unlike all other areas of French law, is largely a creation of the judges.
As far as Cameroon is concerned, administrative law was largely introduced by means of legislation.84 This means that administrative contracts have had to be determined in the main by statute. Pre-1979 statutory provisions no doubt allowed the courts some scope to apply judicial criteria to the question as to the appropriate regime to apply to contracts in which the administration was involved. Take for example, Law No. 69/L F/l of 14 June 1969 on the organisation and functioning of the Federal Court of Justice (this law actually transformed the administrative jurisdiction of this court into one of national competence by extending its jurisdiction to Common Law Cameroon).85 Article 14 provided that administrative litigation consisted of, inter alia, disputes involving contracts (except those concluded, even implicitly, under private law)86 or public service concessions. The courts, therefore, did use such criteria as clauses exorbitantes and sernce public to distinguish between public and private contracts. In Robert Abunaw v Francis Wilson and Director o f Lands and Survey87 and Socopao v. Cameroon Development Corporation88 respectively, the Federal Court of Justice ruled against the jurisdiction of the administrative courts on the grounds that the disputes involved were of a private nature and therefore subject to the jurisdiction of the ordinary courts. The fact that the State and a State corporation were parties in both suits was not relevant. And in A ffaire Fouda Mballa v. Etat Federe du C am erounf9 the court held that the construction of a sporting complex by the Electricity Corporation for its staff did not
84 See generally Bipoum-Woum, op. cit.. note 57.
85 Owona, op. cit.. note 62, 184-185.
86 The emphasis are mine.
87 C .F.J. Arret no. 3-A of 28/10/1971, cited in Nguini, op. cit.. note 60, 348.
88 C .F.J. Arret no. 6-A of 10/3/1972, cited in Nguini, op. cit.. note 60, 349.
89 Arret no. 160/CFJ/CAY du 8 Juin 1971, Rev.Cam.Dr. (1972) n o .l, 40.
amount in any way to the provision of a public service.
The position, however, has since been affected by statute. First, by O rdinance N o.72-6 of 26 August 1972 (on the organisation of the Supreme Court) which provides in Article 9 (2): "Administrative matters shall include,....(e) any dispute expressly referred by law to the administrative courts" and more recently by Decree No. 79/35 of 2/2/1979 (relating to public sector contracts). Article 1 defines a public sector contract solely in terms of the presence of the state, a local authority or a public establishment while Article 133 provides for the jurisdiction of the administrative bench of the Supreme Court in all cases in litigation concerning contracts subject to this decree. The combined effect of all these provisions has been to exclude the use of judicial criteria or to relegate them to a subsidiary role. The mere presence or involvement of the administration will suffice to classify the contract as administrative.
This is best highlighted in Compagnie Forestiere Sangha - Oubagnui v. Etat du Cameroun.90 A French coffee plantation owner died in Cameroon, intestate and with no apparent heir. The Cameroon government (the ministry of agriculture) took over ownership and decided to lease out the plantation to the plaintiff company. It was agreed that in order to represent the public’s interest in the runnning and management of the plantation, the government would appoint a civil servant on secondment to work with the plaintiff company. The State was to continue paying the salary of the civil servant while the plaintiffs were to provide him with adequate means of transport. But when the civil servant was eventually appointed, the Minister for Public Service ordered the plaintiffs to pay his salary. They protested that such a requirement was a flagrant violation of the terms of their contract with the State.
Aggrieved, they brought an action against the State in the administrative bench of the Supreme Court where it was held that the salary of the civil servant on attachment
90 Jugement No.07/88/89 du 27 Octobre 1988, (1991) 2 & 3 Rev.Jur.Afr. 131, (note Nlep).
with the plaintiffs must remain the responsibility of the State in accordnace with the terms of the agreement between the parties.
The decision is beyond reproach but the case is of interest here because the view has been expressed that the running of the plantation by the plaintiffs with the aim of making profits does not in any way amount to the execution or the provision of a public service.91 This by implication calls to question the administrative character of the contract. If the view that the running of the plantation did not constitute a public service is correct, then, the classification of this contract as administrative is highly questionable. However, one must not be oblivious of the 1979 Decree. On the interpretation of that decree, this contract qualifies as administrative. The decree, it must be stressed, makes no mention of the object of the contract and therefore does not require that the contract should aim at the execution of a public service for it to be classed as administrative. The crucial factor for consideration is whether the state or a public authority is a party to the contract and the classification of this contract as administrative seems to have been based solely on the fact that the State was a party to it.
The Supreme Court has even extended the 1979 Decree to disputes arising out of the contract involving third parties who are not privy to it. For example, in the Asquini Encorad case,92 the contract was between the government and Asquini Encorad, yet when the plaintiff brought an action for trespass to his land, the Supreme court, overuling the Appeal Court, held that as the dispute resulted from the execution of an administrative contract, only the administrative jurisdiction of the Supreme Court could be properly seised.
It should be clear from the legislative provisions and the Supreme Court decisions considered above, that the main criterion for the determination of administrative contracts in Cameroon today, is the mere involvement (direct or indirect) of the administration or public body as a party to the contract. The emphasis has now been
91 Nlep., op. cit.. note 90, 136.
92 Supra, note 83.
shifted firmly towards statutory determination, precisely on the 1979 Decree on public sector contracts.
The main problem with the 1979 Decree, however, is that its purview is too wide.
It automatically subjects to public law, certain contracts whose content is private in character - for example, contracts of a purely commercial nature like the one about the plantation lease above.
It is not clear what the legislator intended the 1979 Decree to achieve. It is not unlikely that it was a surreptitious, if ingenious attempt by the administration to indirectly subject to its own control, via the administrative bench of the Supreme Court,93 contractual dealings of any kind in which it becomes involved. If this be the case, then it should, perhaps, be pointed out that the 1979 Decree, by increasing the scope for for public law contracts, has merely added to the many logistical problems that already bedevil this area of the law.
It is also possible that the 1979 Decree was a genuine attempt by the legislator to put an end to the difficulties in the distinction between civil and administrative contracts, simply by labelling all contracts involving the administration as administrative. Such a sweeping approach, granted that was the intention, is still to be achieved. Some of the cases cited above clearly reveal how some judges, especially those in the common law jurisdictions, are registering their protest against such a blatant publicisation of all contracts involving the administration. They do so by ignoring the 1979 Decree and by refusing to consider contracts as administrative solely on the basis of the participation of the administration or public authority. Of course, doubt must occur whether it is proper for a judge to sidestep or ignore
93 Whatever one may say about judicial independence in Cameroon, the fact remains that judges are civil servants appointed by the government. It follows from this that they may not fancy awarding too many judgements against the government lest they stifle their own career prospects. To make this observation is not necessarily to impugn the professional intergrity or impartiality of the judges. But few judicial observers in Cameroon can deny the suggestion that where the interests of the government is directly involved, a kind of subtle pressure is mounted on the judge concerned.
statutory provisions that have been duly enacted by the law making body of the country, the National Assembly (Parliament). Yet this only serves to emphasis the troublesome nature of the problem.
It would be dotty to think that all the problems relating to administrative contracts derive from the difficulties in distinguishing them from private contract. Many other problems of an even more practical nature are raised by the poor judicial organisation. I now turn to them.
(4). Jurisdictional Concerns.
In France, the control of administrative authority (and administrative contracts) are vested in the administrative courts, i.e the Tribunaux Administratif, the Cours d ’Appel adimnistrarif and the Conseil d ’Erar. The same is true of Cameroon except for the fact there is only one administrative tribunal and that is the administrative bench of
In France, the control of administrative authority (and administrative contracts) are vested in the administrative courts, i.e the Tribunaux Administratif, the Cours d ’Appel adimnistrarif and the Conseil d ’Erar. The same is true of Cameroon except for the fact there is only one administrative tribunal and that is the administrative bench of