Cameroon-based law firm Henry, Samuelson & Co. advised on the law governing ship arrest as an executory measure in the country. Ship arrest in Cameroon is governed by CEMAC merchant code of 03-08-2001 revised in July 2012 and the Brussels convention of 1952 on the Unification of Certain Rules on the Arrest of Ships.
Cameroon has three sea ports (Douala, Kribi, Limbe) and one river port (Garoua). The competent courts in matters of ship arrest as an executory measure is the “Tribunal de Grande Instance” (in Douala-Bonanjo, Kribi and Garoua) and the High Court (in Buea). In spite of Cameroon’s relatively short coastline, there are one or two fishing ports such as Tiko and Idenau. A water vessel to be arrested/sold in these ports should fall within the jurisdictional competence of the High Court of Fako Division holden at Buea, according to the theory of forum, HG Legal Resources explained.
According to the Uniform Act, the application for ship arrest as an executory measure is filed before the President of the competent High Court, and the arrest procedure has eight steps to be followed:
- Formal Notice to pay served by bailiff on the debtor: Thereafter the creditor has 50 days to file his application for arrest/sale if payment is not delivered.
- Preparation and filing of the articles and conditions of arrest/sale at the competent high court registry.
- Formal notice to the debtor and other (registered) creditors, requiring them to go to the court registry and get copies of the articles and conditions of arrest/sale.
- The hearing: The right to fair hearing must be observed.
- Formalities before sale/adjudication: 15-30 days before adjudication, an extract of the articles and conditions of arrest/sale, signed by the solicitor of the creditor, must be published in an official newspaper.
- Sale proper: The conditions of ship sale are fixed by the competent court according to the procedure of common law applicable to the forceful sale of realties.
- Higher bid: Uniform Act has provided for higher bid in case of sale of a ship within 10 days of the sale provided the difference is a minimum of 10% of the principal sale price. Beyond the 10th day the right to higher bid would lapse.
- Adjudication proper: After adjudication a copy of the judgment or report of the Notary Public is issued to the adjudicator.
However, article 298 of the Uniform Act has anticipated certain incidents which may occur in the course of the procedure of ship arrest/sale.
First, there may be a request to divert from execution, some of the attached property. This means a third party may suddenly appear at the court saying that the ship does not belong to the debtor. This permits such third parties who have claim of ownership over the ship, and who think they are not bound by the debt, to apply to the court to release their ship.
Secondly, some adventurer might make an irresponsible bid that cannot be made good. This is where the adjudicator does not honour his obligations under the auction and a new auction has to be organized.
In addition, any interested party might make an application for nullity of the arrest which must be filed at least 5 days before the date of hearing.
Once there are no incidents, payment of the sale price plus ancillary costs or deposit of the sale price only at the court registry would be made and this ends the procedure. At this juncture there would be distribution of sale price if there are many creditors.
