THE APPLICABLE LAW IN MATRIMONIAL CAUSES AND DIVORCE IN ANGLOPHONE CAMEROON – DECISION OF THE COURT OF APPEAL NORTH WEST REGION – BUEA

By Justice Dr Tatsi T.T CA Buea

 

1. INTRODUCTION AND BACKGROUND

The Respondent (hereinafter “the Petitioner”) commenced matrimonial proceedings at the Fako High Court by filing a petition for divorce under Suit No. HCF/MC/178/2018. The petition sought the dissolution of his marriage to the Appellant (hereinafter “the Respondent wife” or “the Appellant”), which was celebrated in Limbe, within the Fako Judicial Division, and whose matrimonial home was established in Buea.

The record reveals that the Appellant was served with the divorce petition in December 2018. She filed an answer within the requisite time, and from January 2019, the petition was ready for hearing. Several adjournments occurred, including one on 6th November 2020, when Counsel for the Appellant applied for an adjournment to allow the parties to attempt reconciliation. The Respondent did not oppose this application, and the matter was adjourned accordingly.

The reconciliation attempt, held in the chambers of the Appellant’s counsel, proved unsuccessful. It was reported to the trial Judge on 16th December 2020 that the Appellant had walked out of the meeting at the first suggestion of a settlement. Thereafter, the matter was scheduled for a hearing.

It was at this stage, more than one month after the failed reconciliation attempt, that the Appellant filed a motion raising a preliminary objection challenging the jurisdiction of the trial court. The grounds for the objection were threefold:

1. That the petition was premature, having been filed in contravention of time limits prescribed by statute;
   ii. That the trial court lacked jurisdiction because the petition failed to comply with mandatory procedural requirements, specifically the attachment of the marriage certificate;
   iii. That the proceedings were fundamentally flawed for non-compliance with the rules relating to the filing of a statement regarding arrangements for children of the marriage.

The learned trial Judge heard arguments on the preliminary objection and, in a considered ruling delivered on 5th March 2021, dismissed it. The Judge held that the court was properly seised of jurisdiction. Dissatisfied with this interlocutory ruling, the Appellant has appealed to this court.

1. THE APPEAL

The Appellant, through her Counsel, filed a Notice and Grounds of Appeal on 10th March 2021, canvassing three grounds of appeal, with an indication that further grounds might be filed upon receipt of the Record of Proceedings. No further grounds were filed.

The Appellant addressed Grounds I and III together, and then Ground II separately. We shall adopt a similar structure in our analysis.

 

III. GROUNDS OF APPEAL

GROUNDS I & III:

The learned trial Judge erred in law in holding that the court has jurisdiction to entertain the substantive matter, whereas the conditions sine qua non for vesting the court with the power to proceed had not been satisfied.

GROUND II:

The learned trial Judge erred in law in holding that Sections 8(2) and 12(2) of the Matrimonial Causes Rules 1977 are inapplicable in the High Courts of Cameroon’s Common Law jurisdiction.

 

1. SUBMISSIONS OF COUNSEL
2. SUBMISSIONS OF THE APPELLANT

On Grounds I & III (Jurisdiction and Procedural Compliance):

Learned Counsel for the Appellant submitted that the Petitioner, in paragraph 6 of his Petition for Divorce found on page 33 of the Record of Proceedings, acknowledged that there are two children of the marriage. Despite this acknowledgement, Counsel argued, the Petitioner failed to annex any document showing what arrangements, if any, had been made for the maintenance of the children. Furthermore, no marriage certificate was annexed to the Petition.

Counsel referred this court to Section 8(2) of the Matrimonial Causes Rules 1977, which provides:

“Where a petition for divorce, nullity or judicial separation discloses that there is a minor child of the family who is under 16 or who is over that age and is receiving instruction at an educational establishment or undergoing training for a trade or profession, the petition shall be accompanied by a statement signed by the petitioner personally containing the information required by Form 4, to which shall be attached a copy of any medical report mentioned therein.”

Counsel also referred to Section 12(2) of the Matrimonial Causes Rules 1977, which states:

“Unless otherwise directed on an application made ex parte, a certificate of the marriage to which the cause relates must be filed with the petition.”

Counsel submitted that Section 12(2) makes it mandatory for the Petitioner to attach a copy of the marriage certificate to the petition. Having failed to attach the certificate and having failed to show proof of arrangements made for the upbringing and education of the children of the marriage, Counsel argued that the substantive suit (the petition) was premature. He urged this court to uphold these grounds of appeal, which would thereby dispose of the entire appeal.

On Ground II (Applicability of the Matrimonial Causes Rules 1977):

Counsel for the Appellant submitted that the Matrimonial Causes Rules 1977 and the Matrimonial and Family Proceedings Act 1984 are all laws that amend the Matrimonial Causes Act 1973. He argued that Section 3 of the Matrimonial Causes Act 1973 has been amended by Part 1 of the Matrimonial and Family Proceedings Act 1984.

Counsel further referred the court to Section 1(5) of the Matrimonial Causes Act 1973, which he claimed has been amended by the Matrimonial Causes Rules 1977, in Section 66(i)(a), reducing the period for the grant of an order nisi to an order absolute to six weeks.

Counsel submitted that the trial Judge committed a fallacy when she held that Sections 8(2) and 12(2) of the Matrimonial Causes Rules 1977 are inapplicable in the High Court of Cameroon’s Common Law jurisdiction. He argued that these provisions are indeed applicable, as demonstrated by his submissions. He urged the court to uphold this ground of appeal, which would also dispose of the entire appeal.

Relief Sought:

Counsel for the Appellant prayed this court to uphold his submissions, allow the grounds of appeal, and quash the ruling of the trial court.

 

1. SUBMISSIONS OF THE RESPONDENT

Preliminary Observations on Conduct of the Appellant:

Learned Counsel for the Respondent began by noting that while jurisdiction can be raised at any time, even at the appellate level, the circumstances of this case reveal that the Appellant’s objection was an afterthought, designed to delay the hearing and determination of the divorce petition.

Counsel reminded the court that the Appellant was served with the divorce petition in December 2018 and filed an answer within the requisite time. From January 2019, the petition was ready for hearing. On 6th November 2020, Counsel for the Appellant applied for an adjournment to attempt reconciliation, to which the Respondent was not opposed. The reconciliation attempt failed when the Appellant walked out. The matter was then scheduled for hearing in December 2020. It was only in 2021, more than a month after the failed reconciliation, that the Appellant filed her preliminary objection.

Counsel cited Ndumu v. Ndumu (No. 2) HCB/97MC/86 (reported in Ngwafor at page 112), where Ndoping J. stated, inter alia, that the petitioner need not, under Section 6(2), show evidence of an attempt at reconciliation before the action can take effect. Counsel argued that the trial Judge had duly considered compliance with the Matrimonial Causes Act 1973 when she adjourned the matter on 6th November 2020 at the Appellant’s request. It would be absurd, Counsel submitted, to hold that the Judge erred in law when, more than one month after the failed reconciliation, the Appellant decided to challenge jurisdiction.

On Grounds I & III (Jurisdiction and Procedural Compliance):

Counsel for the Respondent agreed that jurisdiction can be raised at any time, relying on Madukolu & Ors v. Nkemdilm (1962) 1 ANLR 587, DNCL, Vol. 1 P.59, Para. 3, which established that a court is competent when it has jurisdiction over the subject matter and the action has been initiated by due process of law.

Counsel submitted that Ground I was alien to our practice. He referred to Exhibit “A” to the motion filed by the Appellant before the trial court, found on pages 4-6 of the Record of Proceedings. In paragraphs 6 and 7 of that Exhibit, the Petitioner clearly spelled out the children of the family and how they were presently being taken care of. In paragraph 10(ii) and (iii), the Petitioner reasonably proposed how their care should be upon determination of the divorce petition.

Counsel argued that the Petitioner duly met all the requirements for instituting a petition for divorce. He identified the Respondent, spelled out the lex loci celebrationis of the marriage (Limbe), stated the situs of the matrimonial home (Buea), gave the citation of the marriage certificate and the Civil Status Registry (all within the jurisdiction of the Fako High Court), and pleaded his marriage certificate, as is customary with pleadings before the High Court in civil and matrimonial proceedings.

The question, Counsel posed, is whether with all these particulars, the petition can be said to be premature. Counsel asked this court to hold that the trial Judge was proper in her analysis of the law and in holding that the petition before her was not premature.

Regarding the emphasis placed by the Appellant on Sections 8(2) and 12(2) of the Matrimonial Causes Rules 1977, Counsel submitted that the trial Judge correctly situated these provisions in her ruling. Counsel agreed with the reasoning of the trial Judge that Section 8(2) of the 1977 Rules is only relevant to matrimonial causes before county courts in England and Wales. The Fako High Court, Counsel argued, is not a county court by any stretch of the imagination. Therefore, the section was irrelevant to Suit No. HCF/MC/178/2018.

Similarly, Counsel submitted that the dictates of Section 12(2), which require the attachment of a copy of the marriage certificate to the petition, pertain to causes in England and Wales brought before county courts. In the context of Cameroon, the Judicial Organization Law of 2011 and the 1988 Civil Status Ordinance both vest the High Court as the only court with the power to hear matrimonial suits.

On Ground II (Applicability of the Matrimonial Causes Rules 1977):

Counsel submitted that this ground of appeal is partially addressed by the arguments in Grounds I and III above. The Appellant, Counsel argued, was chastising the trial Judge for a misconception of the law that was, in fact, not present.

Counsel took a “safe distance” from the Appellant’s misconception that the 1977 Rules amended the 1973 Act. Counsel stated that, being a court of record, the law by which the court was seised is on the face of the petition, and the Appellant cannot be seen to impose a different law and procedure on the petitioner and the trial court simply because it may seem a more favourable approach to her.

Counsel noted that there was nothing in the petition filed as HCF/MC/178/2018 that touched on the Matrimonial and Family Proceedings Act 1984. He then quoted Section 1 of the 1984 Matrimonial and Family Proceedings Act:

(1) “No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of marriage.”
(2) “Nothing in this Section shall prohibit the presentation of a petition based on matters which occurred before the expiration of that period.”

Counsel questioned the relevance of these provisions to the Appellant’s contention that the divorce suit was premature. The Appellant had stated that the above sections amended Section 3 of the 1973 MCA, which provides:

Section 3: “Where in any proceedings for divorce the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him, but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the petitioner and held by the court to support his allegation, that fact shall be disregarded in determining for section 1(2)(b) above whether the petitioner cannot reasonably be expected to live with the respondent if the length of that period or the combined length of those periods is six months or less.”

Counsel submitted that there was no purported amendment in the foregoing quotations that had any bearing on the inherent jurisdiction of the Fako High Court to hear and determine Suit No. HCF/MC/178/2018.

Counsel then restated the well-established principle that jurisdiction in matrimonial causes generally lies where the marriage was celebrated, where the spouses had their matrimonial home, or where either spouse is a resident. The parties in the present suit were married in Limbe within the Fako Judicial Division; they have always maintained their matrimonial home in Buea; and both are presently residents of Buea. All these, Counsel submitted, give the Fako High Court material and territorial jurisdiction to entertain this matter.

Counsel cited Section 18(1)(b) of the Judicial Organization Law No. 2011/027, which vests the High Court with the inherent jurisdiction to hear and determine suits and all proceedings related to divorce. This legal provision, in consonance with the court’s territorial jurisdiction based on the principles of lex loci celebrationis and lex loci domicilii, completely dispels the misconception of the Appellant.

Counsel finally urged this court to find and hold that the trial Judge was proper in holding that the provisions of the 1977 Matrimonial Causes Rules cited by the Appellant did not apply to the High Court and that the court has jurisdiction to hear the petition for divorce in HCF/MC/178/2018.

 

1. ISSUES FOR DETERMINATION

From the grounds of appeal and the submissions of counsel, this appellate court is called upon to determine the following issues:

1. Whether the petition for divorce was prematurely filed, thereby depriving the trial court of jurisdiction, due to non-compliance with Sections 8(2) and 12(2) of the Matrimonial Causes Rules 1977.
2. Whether the Matrimonial Causes Rules 1977 are applicable in the High Courts of Cameroon’s Common Law jurisdiction.
3. What are the proper judicial remedies or courses of action available to a trial judge when a petitioner fails to attach the marriage certificate to the petition or fails to file a statement of arrangements for the children of the marriage?
4. What is the correct position regarding the application of English matrimonial law in Cameroon, particularly concerning the Matrimonial Causes Act 1973, the Matrimonial Causes Rules 1977, and the Matrimonial and Family Proceedings Act 1984?

 

1. COURT’S ANALYSIS AND DETERMINATION

We have carefully considered the record of appeal, the extensive written and oral submissions of both learned Counsel, and the relevant legal authorities. Before addressing the specific issues, it is imperative to clarify the legal framework governing matrimonial causes in the High Courts of Anglophone Cameroon, as this framework is central to the proper disposition of this appeal.

 

1. THE APPLICABLE LAW IN MATRIMONIAL CAUSES IN ANGLOPHONE CAMEROON

The reception of English law into the legal system of Anglophone Cameroon is founded on Section 15 of the Southern Cameroons High Court Law 1955 (SCHCL 1955) . This pivotal provision states:

“The High Court shall observe and enforce the common law, the doctrines of equity, and the statutes of general application which were in force in England on the 1st day of January 1900, and shall also observe and enforce the provisions of any statute of the Parliament of the United Kingdom or Order-in-Council which extends to and is in force in the Southern Cameroons, or any part thereof, and any statutes of the Federal Legislature having effect therein.”

While Section 15 establishes a cut-off date of 1900 for “statutes of general application,” it makes special provision for “Probate, Divorce and Matrimonial Causes.” In these specific areas, the law to be applied is not frozen in 1900. The section permits the application of the law and practice “for the time being in force in England.”

However, this permissive reception was significantly modified by constitutional developments following independence and reunification. Section 53 of the Constitution of the Federated State of West Cameroon 1961 provided:

“Subject to the provisions of this section, the existing laws shall have effect after the commencement of this constitution as if they had been made in pursuance of this constitution and shall be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this constitution.”

Section 53(4) defines “existing laws” as all Ordinances, Laws, Proclamations, rules, regulations, orders, and other instruments having the effect of law made or having effect as part of the law of the State immediately before 1st October 1961.

This provision effectively froze the applicable English law in matrimonial causes as it stood on 1st October 1961, subject to modifications and adaptations by Cameroonian legislative or judicial authority.

This position was reinforced by Article 68 of the Constitution of the Republic of Cameroon (1972, as amended in 1996) , which states:

“The legislation applicable in the Federal State of Cameroon and the Federated States on the date of entry into force of this Constitution shall remain in force, provided it is not repugnant to this Constitution, and as long as subsequent laws and regulations do not amend it.”

Finally, Section 32 of Law No. 2006-15 of 29 December 2006 on Judicial Organisation (as modified by Law No. 2011/027 of 14 December 2011) provides:

“Pending the enactment of the instruments provided for in Section 4 of this law, Courts of First Instance, High Courts and Courts of Appeal shall continue to apply the rules of procedure, practice and usages hitherto applicable before these courts, provided that such rules of procedure, practice and usages are compatible with the Constitution and this law.”

This Court’s Holding on Applicable Law:

The combined effect of Section 15 SCHCL 1955, Section 53 of the 1961 West Cameroon Constitution, Article 68 of the 1972/1996 Constitution, and Section 32 of Law No. 2006-15 as amended by Law No. 2011/027 is as follows:

1. The “law and practice for the time being in force in England” referred to in Section 15 SCHCL 1955 is not ambulatory. It is frozen in time as at 1st October 1961, subject to modifications and adaptations by Cameroonian legislation or by precedents of superior appellate courts through the doctrine of stare decisis.
2. English statutes enacted after 1st October 1961 are not automatically applicable in Cameroon. They may be applied only if:
   a. They have been specifically adopted by an Act of the Cameroonian Parliament; or
   b. Their principles have been integrated into Cameroonian jurisprudence through the doctrine of stare decisis by appellate courts, and they are not repugnant to the Constitution, local customs, and public policy.
3. The word “may” in Section 15 SCHCL 1955 is permissive, not mandatory. It allows the High Court to follow English law in probate, divorce, and matrimonial causes while awaiting Cameroonian legislation, but it does not compel the wholesale importation of every subsequent English enactment.

Application to the Statutes Cited in This Appeal:

(i) The Matrimonial Causes Act 1973 (MCA 1973):

The MCA 1973 is a consolidating Act that brought together several earlier statutes, including the Matrimonial Causes Act 1950 and the Divorce Reform Act 1969. The Divorce Reform Act 1969, which introduced the concept of irretrievable breakdown as the sole ground for divorce, was enacted after our reception date of 1st October 1961.

However, this court notes that the Courts of Appeal in the North West and South West Regions have, through the doctrine of stare decisis, adopted and applied the MCA 1973 as the governing law for matrimonial causes. See:

• Mburu Stephen v. Mbiekwi Grace Tabah (CANWR/9/2012) reported in Volume 5 of the Supreme Court Law Reports (SLR), where the North West Court of Appeal, interpreting Section 47(1) of the Matrimonial Causes Act 1973, held that the High Court had jurisdiction to hear cases for the dissolution of a marriage even where the marriage in question was polygamous.
• Bih Fomunkong Atanga v. Lucien Mofor Atanga (CASWR/92/2014) , delivered on 16th November 2017, where the South West Court of Appeal approved the use of Section 14(1) of the Matrimonial Causes Rules 1977 for service on the respondent.

These appellate decisions have effectively integrated the MCA 1973 into our matrimonial jurisprudence. The MCA 1973 is therefore applicable in our courts, not as a post-1961 English statute imported wholesale, but as a consolidating enactment whose principles have been adopted and adapted by Cameroonian judicial precedent.

(ii) The Matrimonial Causes Rules 1977 (MCR 1977):

The MCR 1977 is a procedural rule enacted after our reception date. However, like the MCA 1973, it has been repeatedly applied and endorsed by our appellate courts as representing the applicable procedure in matrimonial causes. The decision in Bih Fomunkong Atanga (supra) is direct authority for the proposition that provisions of the MCR 1977 are applicable in our courts.

Furthermore, Section 32 of Law No. 2006-15, as amended, specifically permits courts to continue applying “the rules of procedure, practice and usages hitherto applicable.” The MCR 1977, having been consistently applied in our courts since its enactment, falls within this description.

This court therefore holds that the MCR 1977, as a set of procedural rules that has gained judicial acceptance through the doctrine of stare decisis, forms part of the applicable procedural law in our High Courts in matrimonial causes, to the extent that its provisions are compatible with the Constitution and subsequent Cameroonian legislation.

(iii) The Matrimonial and Family Proceedings Act 1984 (MFPA 1984):

The MFPA 1984 is an entirely new English statute enacted long after the date of reception of our legal system was frozen. This Act, among other things, amended Section 3 of the MCA 1973 by reducing the bar on petitions for divorce from three years to one year. It also made provision for the distribution and transfer of jurisdiction between the High Court and county courts in England and Wales.

This Act has not been specifically adopted by any Cameroonian legislation. There is no evidence that its principles have been integrated into our jurisprudence by appellate courts. Furthermore, its provisions relating to the transfer of jurisdiction to county courts are fundamentally incompatible with the Cameroonian judicial structure, where jurisdiction in matrimonial causes is exclusively vested in the High Courts by Section 18(1)(b) of the Judicial Organization Law No. 2011/027.

Accordingly, this court holds that the Matrimonial and Family Proceedings Act 1984 is not applicable in the High Courts of Cameroon. Any reliance on this Act by the Appellant is legally untenable.

(iv) The Divorce, Dissolution and Separation Act 2020 (DDSA 2020):

The DDSA 2020, which came into effect in England and Wales on 6th April 2022, abolished the requirement to prove fault and introduced a no-fault divorce system. This Act is a recent English enactment that has no application whatsoever in Cameroon. It would be illegal, ultra vires, and a wholesale importation of foreign law for any High Court in Cameroon to apply the DDSA 2020 without legislative cover. This court so holds.

 

1. ANALYSIS OF GROUNDS I & III: JURISDICTION AND PROCEDURAL COMPLIANCE

We now turn to the specific grounds of appeal.

The Requirement to Attach the Marriage Certificate:

Section 12(2) of the Matrimonial Causes Rules 1977 provides:

“Unless otherwise directed on an application made ex parte, a certificate of the marriage to which the cause relates must be filed with the petition.”

This provision is clear and mandatory. The marriage certificate is the primary evidence of the existence and validity of the marriage. Without it, or without proper alternative evidence where the certificate is unavailable, the court cannot properly satisfy itself that it has jurisdiction over the marriage sought to be dissolved.

However, we must distinguish between a defect that goes to the root of jurisdiction and a procedural irregularity that can be cured. The absence of a marriage certificate at the time of filing is a procedural defect, not a jurisdictional one. The court is not being asked to dissolve a non-existent marriage; it is being asked to proceed with a petition that lacks supporting evidence of the marriage’s existence.

The Requirement to File a Statement of Arrangements for Children:

Section 8(2) of the Matrimonial Causes Rules 1977 provides:

“Where a petition for divorce, nullity or judicial separation discloses that there is a minor child of the family who is under 16 or who is over that age and is receiving instruction at an educational establishment or undergoing training for a trade or profession, the petition shall be accompanied by a statement signed by the petitioner personally containing the information required by Form 4, to which shall be attached a copy of any medical report mentioned therein.”

This requirement is echoed in Rule 43 of the Matrimonial Causes Rules 1977, which states:

(1) “Every petition for a decree of divorce… shall be accompanied by a statement, signed by the petitioner, setting forth the arrangements made or proposed for the maintenance, custody, and education of any child of the family…”
(2) “The statement referred to in sub-rule (1) shall be annexed to the petition and shall form an integral part thereof.”
(3) “If the petitioner fails to annex such a statement, the court may, after allowing the petitioner to comply, postpone the disposal of the petition until such arrangements have been made satisfactory to the court.”

This rule embodies a fundamental principle of family law: the welfare of the children is the first and paramount consideration. The court must be satisfied that proper arrangements are in place for the children before it can proceed to grant a decree.

The Trial Judge’s Duty:

When faced with a petition that fails to comply with these procedural requirements, the trial judge has several options:

1. Rejection or Dismissal: The court may reject or dismiss the petition outright if the non-compliance is fundamental and deliberate, rendering the petition incurably defective.
2. Order for Rectification: The court may exercise its equitable jurisdiction and order the petitioner to supply the missing documents within a specified time. The court may suspend further proceedings until compliance. This is the most common and just course, as it balances the need for procedural compliance with the interest in ensuring that legitimate claims are not defeated by minor oversights.
3. Adjournment: The court may adjourn the proceedings to allow the petitioner an opportunity to provide the required documents.
4. Striking Out: If the petitioner fails to comply with a peremptory order to file the required documents, the court may strike out the petition.

In the present case, the Respondent’s Counsel argued that the petition contained sufficient particulars of the marriage (place of celebration, citation of the certificate, etc.) and that paragraph 10 of the petition set out proposed arrangements for the children. However, this does not satisfy the mandatory requirements of the Rules. The Rules require the annexure of the marriage certificate and the annexure of a signed statement containing the information required by Form 4. Mere averments in the petition are insufficient.

The trial Judge, in her ruling, appears to have dismissed the Appellant’s objection on the basis that the court had jurisdiction. She did not specifically address the procedural defects or make any orders for their rectification. While we agree with her conclusion on jurisdiction, we find that she ought to have addressed the procedural non-compliance.

Finding on Grounds I & III:

We find that the Appellant’s appeal on Grounds I and III is partially meritorious. The petition suffers from procedural defects, namely the failure to attach the marriage certificate and the failure to annex the mandatory statement of arrangements for the children. However, these defects do not deprive the trial court of jurisdiction. The proper course is not to strike out the petition, but to order rectification.

 

1. ANALYSIS OF GROUND II: APPLICABILITY OF THE MATRIMONIAL CAUSES RULES 1977

The Appellant’s second ground challenges the trial Judge’s statement that Sections 8(2) and 12(2) of the Matrimonial Causes Rules 1977 are inapplicable in the High Court.

We have already determined, in our analysis of the applicable law, that the MCR 1977 forms part of the applicable procedural law in our High Courts. The Respondent’s argument that these provisions apply only to county courts in England and Wales, while superficially attractive, misses a crucial point.

It is true that in England and Wales, the MCR 1977 extended jurisdiction to county courts. However, the rules themselves are rules of court governing procedure in matrimonial causes generally. The fact that they also conferred jurisdiction on county courts in England does not mean that they cease to be applicable to the High Court. In our jurisdiction, where the High Court is the sole court with jurisdiction in matrimonial causes, we apply the procedural rules that govern such causes. The MCR 1977, as adopted by our appellate courts, provides that procedure.

The trial Judge’s statement that these provisions were inapplicable was therefore incorrect. However, this error does not necessarily vitiate her ruling, as we have found that the proper remedy for non-compliance is not dismissal but rectification.

Finding on Ground II:

We find that Ground II of the appeal succeeds. The trial Judge erred in holding that Sections 8(2) and 12(2) of the Matrimonial Causes Rules 1977 are inapplicable in the High Court. These provisions apply, though their breach does not oust jurisdiction; rather, it requires remedial action by the court.

 

1. THE QUESTION OF DELAY AND ESTOPPEL

Before concluding, we must address the Respondent’s argument that the Appellant’s objection was an afterthought, designed to delay proceedings. The Respondent pointed out that the Appellant participated in the proceedings for over two years, including seeking an adjournment for reconciliation, before raising the objection.

While it is true that jurisdiction can be raised at any time (see Madukolu & Ors v. Nkemdilm, supra), the court is entitled to consider the conduct of the parties when determining what remedy to grant. The Appellant’s delay in raising these procedural objections, and her active participation in the proceedings (including the failed reconciliation attempt), suggests that the procedural defects did not prejudice her ability to defend the suit. This is a factor that militates against striking out the petition and in favour of an order for rectification.

 

VII. SUMMARY OF FINDINGS

Based on the foregoing analysis, this court makes the following findings:

1. On Applicable Law: The Matrimonial Causes Act 1973 and the Matrimonial Causes Rules 1977, as consolidated and procedural enactments that have been adopted by Cameroonian appellate precedents, form part of the applicable law in matrimonial causes in the High Courts of Anglophone Cameroon. The Matrimonial and Family Proceedings Act 1984 and the Divorce, Dissolution and Separation Act 2020 are not applicable in Cameroon.
2. On Jurisdiction: The Fako High Court has both material and territorial jurisdiction to hear the divorce petition. The marriage was celebrated in Limbe, the matrimonial home was in Buea, and both parties reside in Buea. Section 18(1)(b) of the Judicial Organization Law No. 2011/027 vests the High Court with inherent jurisdiction to hear and determine suits and all proceedings related to divorce.
3. On Procedural Defects: The petition suffers from procedural defects, namely:
   a. Failure to attach a copy of the marriage certificate, contrary to Section 12(2) of the MCR 1977.
   b. Failure to annex a statement of arrangements for the children of the marriage, containing the information required by Form 4, contrary to Section 8(2) and Rule 43 of the MCR 1977.
4. On the Effect of Procedural Defects: These defects are procedural irregularities, not jurisdictional flaws. They do not render the petition a nullity, but they require rectification before the court can proceed to trial.
5. On the Trial Judge’s Error: The trial Judge erred in stating that Sections 8(2) and 12(2) of the MCR 1977 are inapplicable. However, she correctly held that the court has jurisdiction. Her ruling is affirmed in part and corrected in part.

VIII. DISPOSITION AND ORDERS

 

For the reasons stated above, this court makes the following orders:

1. AFFIRMATION OF JURISDICTION:
   The Ruling of the Fako High Court in Suit No. HCF/MC/178/2018, delivered on 5th March 2021, is hereby AFFIRMED insofar as it held that the court has jurisdiction to hear the petition for divorce.
2. CORRECTION OF THE TRIAL JUDGE’S STATEMENT ON APPLICABLE LAW:
   It is hereby declared that Sections 8(2) and 12(2) of the Matrimonial Causes Rules 1977 are applicable in the High Courts of Cameroon’s Common Law jurisdiction. The trial Judge’s statement to the contrary is set aside.
3. ORDER FOR RECTIFICATION OF PROCEDURAL DEFECTS:
   The substantive suit (HCF/MC/178/2018) is hereby remitted to the Fako High Court for trial on its merits, subject to the following conditions precedent:

(a) The Petitioner/Respondent is hereby ordered, within thirty (30) days of service of this judgment, to file in the registry of the Fako High Court a certified true copy of the marriage certificate of the parties. In the event that the certificate is unavailable, the Petitioner shall file an affidavit explaining the reasons for its unavailability and exhibiting other sufficient evidence of the marriage, such as a statutory declaration or other documentary evidence acceptable to the court.

(b) The Petitioner/Respondent is further ordered, within the same thirty (30) days, to file in the said registry a statement signed by him personally, setting forth in full the arrangements made or proposed for the maintenance, custody, and education of every child of the family. The statement shall contain the information required by Form 4 of the Matrimonial Causes Rules 1977, including details of:
i. Where each child will reside;
ii. Who will have custody or responsibility for each child;
iii. How contact between the child and the non-resident parent will be maintained;
iv. Provisions for each child’s financial support, education, and general welfare;
v. Any medical or special needs of the children and the arrangements made to address them.

1. CONSEQUENCE OF NON-COMPLIANCE:
   In default of compliance with Order (3) above within the stipulated time, the petition shall stand automatically struck out without further recourse to the court.
2. DIRECTIONS TO THE TRIAL COURT:
   Upon compliance with Order (3), the trial court shall proceed to hear the substantive petition expeditiously in accordance with the Matrimonial Causes Act 1973 and the Matrimonial Causes Rules 1977.
3. COSTS:
   Given the mixed outcome of this appeal (the Appellant succeeding on the issue of applicability of the Rules but failing on the issue of jurisdiction), and considering the Appellant’s delay in raising the objection, there shall be no order as to costs. Each party shall bear its own costs.

 

1. PER CURIAM

Before concluding, we take this opportunity to restate the legal position for the guidance of practitioners and lower courts.

The Unique Legal Heritage of Anglophone Cameroon:

Our legal system in the North West and South West Regions of Cameroon is a unique blend of received English law, customary law, and Cameroonian legislation. Section 15 of the Southern Cameroons High Court Law 1955 opened the door to the application of English law in probate, divorce, and matrimonial causes. However, this reception was not intended to be a perpetual and uncritical importation of every subsequent English enactment.

The Constitutional Framework:

The Constitution of the Federated State of West Cameroon 1961, in Section 53, required that existing laws be read and construed with such modifications, adaptations, qualifications, and exceptions as necessary to bring them into conformity with the Constitution. This provision effectively froze the applicable law as at 1st October 1961, while permitting adaptations by Cameroonian authorities.

Article 68 of the current Constitution reinforces this by providing that pre-existing legislation remains in force only insofar as it is not repugnant to the Constitution and as long as subsequent laws do not amend it.

The Role of Stare Decisis:

The doctrine of stare decisis is fundamental to our common law tradition. It is through this doctrine that our appellate courts have shaped and developed our matrimonial jurisprudence. Decisions such as Mburu Stephen v. Mbiekwi Grace Tabah and Bih Fomunkong Atanga v. Lucien Mofor Atanga have established precedents that bind lower courts.

These precedents have effectively adopted the Matrimonial Causes Act 1973 and the Matrimonial Causes Rules 1977 as the governing law and procedure in matrimonial causes. However, this adoption is not a wholesale importation of every subsequent English statute. It is a selective adoption, based on the principles that our courts have found suitable to our circumstances and consistent with our Constitution and values.

The Limits of Reception:

The Matrimonial and Family Proceedings Act 1984 and the Divorce, Dissolution and Separation Act 2020 are examples of English statutes that have not been adopted into our law. The 1984 Act’s reduction of the time bar to one year and its provisions for the transfer of jurisdiction to county courts are incompatible with our legal framework. The 2020 Act’s no-fault divorce system, while representing a policy choice in England, has not been considered or adopted by our legislature or our appellate courts.

It would be illegal, ultra vires, and a violation of our constitutional order for any High Court in Cameroon to apply these Acts without legislative cover. Our matrimonial law must develop in a manner consistent with our Constitution, our national legislation, and our own social and cultural values.

The Welfare of Children:

We emphasise, finally, the paramountcy of the welfare of children in matrimonial proceedings. Rules 8(2) and 43 of the Matrimonial Causes Rules 1977 are not mere technicalities. They embody the fundamental principle that the court must be satisfied that proper arrangements are in place for the children before it can proceed to dissolve a marriage. Trial judges must be vigilant in ensuring compliance with these rules. The practice of merely pleading arrangements in the petition, without annexing the required signed statement, is insufficient and must cease.

Guidance for Future Cases:

We offer the following guidance to practitioners and trial courts:

1. All petitions for divorce filed in the High Courts of Anglophone Cameroon must comply with the Matrimonial Causes Act 1973 (substantive law) and the Matrimonial Causes Rules 1977 (procedural law), as adopted and applied by our appellate courts.
2. The marriage certificate must be annexed to the petition, as required by Section 12(2) of the Rules. If the certificate is unavailable, an ex parte application for directions should be made, explaining the circumstances and proposing alternative evidence.
3. Where there are children of the family under 16 (or over 16 but dependent), a signed statement containing the information required by Form 4 must be annexed to the petition, as required by Section 8(2) and Rule 43 of the Rules.
4. Failure to comply with these requirements does not oust the jurisdiction of the court, but it does require the court to stay proceedings and order rectification before proceeding to trial.
5. Trial judges have a duty to scrutinize petitions for compliance with these requirements at the earliest possible stage and to make appropriate orders for rectification where necessary.
6. The wholesale importation of post-1961 English statutes that have not been specifically adopted by Cameroonian legislation or integrated into our jurisprudence by appellate precedent is impermissible.

 

1. CONCLUSION

This appeal is allowed in part and dismissed in part. The ruling of the Fako High Court is affirmed on jurisdiction but corrected on the applicability of the Matrimonial Causes Rules 1977. The substantive suit is remitted to the trial court for rectification of procedural defects and thereafter for trial on the merits.