LEGAL OPINION: DYNAMIC RECEPTION AND JUDICIAL ADAPTATION: THE INTERPRETATION AND APPLICATION OF ENGLISH LAW IN PROBATE AND MATRIMONIAL CAUSES IN ANGLOPHONE CAMEROON – THE QUEST FOR LEGAL AND JURISPRUDENTIAL CONSISTENCY AND QUALITY JUSTICE

 

By Justice Dr Theophilus Tayi Tatsi

 

Head of the Civil and Commercial Bench
Court of Appeal, Buea

 

With the participation of “Guardians of Justice”, www.guajus.org

 

INTRODUCTION: THE COMPLEX LEGAL LANDSCAPE OF PROBATE ADMINISTRATION IN CAMEROON

The administration of estates and resolution of matrimonial disputes in Anglophone Cameroon represent one of the judiciary’s most intricate challenges, requiring sophisticated navigation between multiple legal traditions, constitutional imperatives, and social realities.

This comprehensive analysis examines the complex interplay among English common law principles, Cameroonian constitutional mandates, and indigenous customary practices governing probate matters and matrimonial causes in the North West and South West regions of Cameroon.

I refer to the seminal work Succession Law and Probate Practice in the Anglophone Regions of Cameroon by TCHANA Anthony NZOURDJA—PhD, where on page 401 et seq., the learned author states: “There are conflicting views on the applicable procedural rules in Probate matters in the English-speaking regions of Cameroon.” He further notes that some jurists argue that the Supreme Court’s Civil Procedure Rules Cap 211 of the 1948 Laws of the Federation remain applicable in probate cases, while the High Court of Fako, as an exception with another High Court, among approximately twelve High Courts of Anglophone Cameroon, applies English Rule 57 on Probate, Inheritance, Presumption of Deaths and Guardianship of Missing Persons. This divergence exemplifies the profound complexities that permeate our probate system and underscores the urgent need for jurisprudential clarity.

The legal landscape governing probate matters, particularly concerning dependents’ rights and intestacy distribution, represents a complex interplay between English common law principles and their adaptation within Cameroon’s unique legal framework.

This comprehensive analysis examines both the substantive English law governing dependents’ claims and intestacy distribution, while simultaneously exploring the critical interpretive framework established by the Southern Cameroons High Court Law (SCHCL) 1955 and subsequent constitutional developments that govern the appropriate application of such English law principles within Cameroon’s jurisdiction.

The interpretation and application of applicable law in probate matters and matrimonial causes in the North West and South West regions of Cameroon (Former West Cameroon) are complex, arising primarily from Section 15 of the Southern Cameroons High Court Law (SCHCL) 1955, subsequent Cameroonian constitutions, and the judicial filter provided by the appellate courts.

The core rules for interpretation and adaptation ensure that, while English common law serves as the basis of the system, it is modified to align with Cameroon’s sovereignty, constitutional mandates, and local context.

Recent appeals to the Court of Appeals have revealed systemic procedural irregularities, misapplication of the law, and failures to respect the delicate balance among statutory law, common law principles, customary traditions, and constitutional imperatives.

These failures do more than create reversible errors—they erode public confidence in our judicial system and cause lasting family divisions that could have been prevented through proper procedure.

This analysis aims to provide a thorough examination of the substantive law and the jurisdictional framework governing its application, offering practical guidance to judicial officers and practitioners navigating this complex terrain.

PART I: FOUNDATIONAL PRINCIPLES OF ENGLISH PROBATE LAW AND ITS HISTORICAL RECEPTION IN CAMEROON

1. The Southern Cameroons High Court Law 1955: The Bedrock of Anglophone Legal Tradition
2. Historical Context of Legal Reception

The Southern Cameroons High Court Law (SCHCL) 1955 represents the foundational legislative instrument that established the framework for the application of English law in what was then British Southern Cameroons. Its provisions must be understood within their historical context—crafted during the twilight of colonial administration but designed to provide continuity of legal principles following independence. The SCHCL 1955 established three critical sections that continue to shape our legal landscape:

Section 11: Static Reception of Common Law and Equity
Section 11 provides that “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, shall be in force within the jurisdiction of the High Court.” This creates what legal scholars’ term “static reception”—a frozen snapshot of English law as it existed at the dawn of the twentieth century. This provision established the baseline for most areas of law in Anglophone Cameroon, creating a foundation that subsequent constitutional developments would modify but not entirely replace.

Section 15: Dynamic Reception in Specialised Areas:

Section 15 states that “the jurisdiction of the High Court in probate, divorce and matrimonial causes and proceedings shall be exercised in conformity with the law and practice for the time being in force in England.” This provision establishes what is commonly termed “dynamic reception”. Unlike the general common law reception, which was frozen as of January 1, 1900, Section 15 allows for the potential adoption of evolving English law in these specific areas. This unique provision has created significant interpretive challenges for our courts.

Section 27: Customary Law Protection
Section 27 mandates that “the High Court shall observe and enforce the observance of every native law and custom, provided it is not repugnant to natural justice, equity and good conscience, nor incompatible with any written law for the time being in force.” This provision establishes the critical repugnancy and incompatibility tests that govern the application of customary law within our formal legal system.

1. The Dynamic Nature of Section 15: Interpretative Challenges

Section 15’s unique wording creates three critical interpretive dimensions that have shaped probate jurisprudence in Anglophone Cameroon:

1. The Scope of Dynamic Application
   Section 15’s dynamic application is strictly limited to three specific areas: probate, divorce, and matrimonial causes. This limitation is crucial—unlike the general reception of common law under Section 11, Section 15 creates a specialized pathway for legal evolution but only within these narrow domains. The High Court cannot, for instance, apply dynamic reception principles to contract law, tort law, or criminal procedure merely because these areas have evolved in England.

The dynamic nature of Section 15 has enabled our appellate courts to adopt significant English legal reforms in probate matters.

For instance, the Matrimonial Causes Act 1973 (MCA 1973) and its procedural counterpart, the Matrimonial Causes Rules 1977, have been adopted by the Courts of Appeal as the source of law and procedure for matrimonial causes.

In probate matters, the appellate courts of Cameroon adopted the Inheritance (Provision for Family and Dependants) Act 1975.

Like the MCA 1973 and the Rules 1977, this was the most significant reform of the period, replacing and consolidating all previous family provision legislation and significantly expanding who could claim against an estate, including:

• Any person treated as a child of the family
• Any person maintained wholly or partly by the deceased immediately before death, hence dependents.

However, the category does not include civil partners, as is the case in England and Wales at present. Cameroon’s appellate courts also adopted the Adoption Act of 1958, demonstrating the selective nature of our dynamic reception.

2. The Permissive Nature of Application

Critically, Section 15 uses the permissive word “may” rather than mandatory language, indicating that the application of current English law is discretionary, not compulsory.

This permissive nature empowers our High Courts to follow English law through appellate precedent in these specific areas while awaiting the enactment of Cameroonian legislation.

It creates a safety valve that allows judicial adaptation without requiring legislative intervention for every legal development in England.

 

3. The Temporal Limitations of Reception

While Section 15 enables dynamic reception, this process is not unlimited in time.

The wholesale importation of current English law by a High Court, such as the English Rule 57 on Probate, Inheritance, Presumption of Death, and Guardianship of Missing Persons, is deemed inconsistent with Cameroon’s status as an independent nation with its own legislative authority.

While the MCA 1973 and Rules 1977 were adopted, subsequent English legislation, such as the Matrimonial and Family Proceedings Act 1984 and the Divorce, Dissolution and Separation Act 2020 (DDSA 2020), generally do not apply in Cameroon.

These later Acts are deemed incompatible, illegal, ultra vires, or a wholesale transportation of new law without legislative cover.

 

1. Constitutional Evolution and Its Impact on Legal Reception
2. The 1961 Constitutional Framework: The Initial Adaptation Requirement

The interpretation and application of the SCHCL 1955 (an “existing law”) must be viewed through the lens of subsequent constitutional and legislative developments, which mandated modifications and adaptations.

The 1961 Federal Constitution, the 1972 Constitution, and subsequent constitutions (Article 68) stipulate that existing laws remain in force only if they are not repugnant to the Constitution and remain in effect until amended by local legislation.

Section 53 of the 1961 West Cameroon Constitution specifically required that existing laws “be read and construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this constitution.”

This provision fundamentally transformed our approach to received law, requiring that English legal principles be filtered through our constitutional values and adapted to our local context.

 

1. The Judicial Organisation Law: Freezing the Legal Landscape

Section 32 of the Judicial Organization Law (as modified in 2011) permits courts to continue applying pre-existing rules, practices, and usages, provided they are compatible with the Constitution and current law.

This law essentially froze in time the rules and usages in the High Court to those existing on or before October 1961, subject to subsequent modification by Cameroonian legislation or judicial precedent from appellate courts.

This provision creates a critical constraint on the dynamic application of English law. While Section 15 of the SCHCL 1955 permits dynamic reception, Section 32 of the Judicial Organisation Law requires compatibility with current constitutional principles and Cameroonian legislative developments.

This tension between dynamic reception and constitutional freezing has created significant interpretive challenges for our courts.

1. The Fundamental Existing Law on Probate Matters

The fundamental existing law on Probate matters is the Supreme Court’s Civil Procedure Rules, Cap 211 of the 1948 Laws of the Federation and the appellate courts of Cameroon have never declared the Procedure Rules repugnant to the Constitution.

In this context, the Fako High Court is wrong to deviate from its application by adopting English Rule 57 on Probate.

 This deviation represents precisely the kind of judicial overreach that undermines our constitutional framework and creates legal uncertainty.

 

III. The Repugnancy Test: Balancing Customary and Received Law

1. The Constitutional Imperative of Customary Law Recognition

Section 27 of the SCHCL 1955 establishes that the High Court must enforce customary law so long as it is not repugnant to natural justice, equity, or good conscience, and is not incompatible with existing written law.

This criterion serves as a critical filter: any English law application or precedent that conflicts with constitutional provisions or is contrary to Cameroon’s current legal, moral, ethical, and social context fails this test and must be disregarded.

For example, courts cannot fully implement laws that promote homosexuality or lesbianism, or that undermine marriage bonds, as these are protected by local civil and criminal law. The repugnancy test ensures that while we benefit from the wisdom of English jurisprudence, we maintain our sovereignty and cultural identity. It prevents the wholesale transportation of foreign legal concepts that might undermine our constitutional order or social fabric.

1. B. The Dual Test Framework: Repugnancy and Incompatibility

The repugnancy test operates alongside the incompatibility test to create a sophisticated framework for evaluating legal principles before they are applied.

The repugnancy test examines whether a legal principle, whether customary or received, violates fundamental notions of justice and fairness as understood within our Cameroonian context.

The incompatibility test determines whether a legal principle conflicts with existing written law.

 

This dual test framework ensures that our legal system remains coherent while respecting our cultural heritage.

When customary inheritance practices conflict with statutory provisions, courts must carefully evaluate whether the custom meets both tests before determining which principle prevails.

This balanced approach has enabled our courts to preserve valuable cultural traditions while ensuring compliance with constitutional guarantees of equality and non-discrimination.

Thanks

Justice Dr. Tatsi