250 participants from eleven African and European countries (Benin, Cameroon, Chad, Congo, France, Gabon, Ivory Coast, Niger, the Netherlands, Senegal and Togo) met at the Palace of the Senate in Libreville to attend this international training session. Many officials and Gabonese administrative, judicial and academic authorities as well as all the Medias were present for the opening ceremony, chaired by Séraphin Moundounga, Minister of Justice of Gabon.
Eliane Oberdeno Ontala Lewori, President of the National Chamber of Judicial Officers of Gabon, welcomed all delegates and participants. She stressed the links between Gabon and UIHJ since "The Call of Dakar" in 1996. She recalled that the 1st Africa Europe Meetings of judicial officers was held in Libreville in 2008. She thanked the UIHJ and its president, Leo Netten, for choosing again Gabon for a seminar of the Training Unit of African judicial officer (Ufohja). President Oberdeno thanked the speakers and the National School of Procedure of Paris (ENP) and its president, Jean- Michel Rouzaud.
Leo Netten, President of the UIHJ thanked the Gabonese authorities which placed the 31st Ufohja training seminar under the auspices of the Head of State, Ali Bongo Ondimba, President of Gabon. He praised and thanked the Minister of Justice for having agreed to honour the work and participate alongside the UIHJ to the official opening ceremony. "We assure you, Minister, that we are extremely sensitive to this mark of your interest for the profession of judicial officer in Gabon, Africa and around the world, since the values conveyed by this event have global reach” said Leo Netten. Then the president of the UIHJ welcomed Félix Onana Etoundi, Director of the High Regional School of Magistrates (Ersuma) "who gave us for the first time the honour of attending one of our training seminars ". He thanked the ENP and its president, Jean-Michel Rouzaud, for his presence and for providing once again the French experts who would participate in the seminar. Finally, President Netten warmly thanked his host, President Oberdeno, for the perfect organisation of the event.
The president of the UIHJ recalled the history of the relations between UIHJ and African judicial officers, which started in April 1996 with "The Call of Dakar," an international meeting where for the first time heads of delegations of judicial officers from nine African countries (Benin, Burkina Faso, Congo, Côte d'Ivoire, Gabon, Mali, Senegal, Togo and Tunisia) convened at the initiative of the UIHJ and its president, Jacques Isnard. For the first time, the judicial officers of these countries would meet. He spoke on the one hand of the treaty of Ohada of 17 October 1993, a "treaty that would forever change the face not only Africa but also of the vision other continents had of Africa". He mentioned the other Ohada instrument of 10 April 1997, "which would in turn change the history of the profession of judicial officer in Africa: the Uniform Act organizing simplified procedures of recovery and enforcement".
"In fact, continued Leo Netten, it is the combination of these three events - Ohada Treaty, Call of Dakar, Uniform Act on enforcement procedures - which led the profession of judicial officer in Central and Western Africa to enter a phase of unprecedented upheaval”. For the first time, even before the EU regulations - which, moreover, only concern cross-border disputes - an international provision on enforcement proceedings, would be directly applicable in fourteen and now seventeen countries.
Referring to the two main objectives of the UIHJ - elevation and alignment of the judicial officer profession, and harmonization of enforcement procedures - he considered that Africa was both a laboratory and a model: "The range of possibilities is infinite, which makes Africa a model, a model for Africa, but also a model for the world. A model for Africa because you can pretend to achieve the objectives of the International Union. A model for the world, because it shows that harmonization is possible and works. "
President Netten referred to the work conducted by the UIHJ and the heads of delegation of members countries of the UIHJ and Ohada for the establishment of a uniform status of African judicial officer, a project promised to success, because "when professionals from different countries use the same law, the same case law, the same language and the same currency, the issue of harmonization of these professionals is needed and must necessarily find an answer".
Finally, the president of the UIHJ stressed the importance of training to ensure the rise of the profession of judicial officer throughout the world. In Africa, judicial officers have two training organizations: Ufohja and Ersuma. With regard to this institution of Ohada, he encouraged all African judicial officers to regularly attend its training seminars. "For a long time, the International Union seeks to unite its efforts with those of Ersuma to share our expertise and experience with law and justice professionals" said Leo Netten, to announce the signing of a cooperation agreement between UIHJ and Ersuma right after the opening ceremony.
Séraphin Moundounga, Minister of Justice of Gabon, expressed great pride in hosting the foremost authorities from France and African countries. He welcomed all participants in Libreville. He thanked the President and the UIHJ and Ufohja to have been at the initiative of the 31st seminar of this institution. "Gabon is an integral part of the Ohada and signatory of many other international legal instruments" recalled Mr Moundounga. "Our legal professionals should be equipped in various fields of interest and as regards judicial officers, their vision should extend beyond borders" he said.
The Minister of Justice stated that the seminar was in line with the will of the head of state, Ali Bongo Ondimba, to consolidate the Rule of Law in Gabon and to enhance the attractiveness of business law. Addressing the President of the National Chamber of Judicial Officers of Gabon, the Minister of Justice congratulated her and the whole of her Chamber for their mobilization in the practical organization of the conference.
Referring to the request by the UIHJ and African delegations for adoption by the Ohada of a general status for African judicial officers, Mr Moundounga stated that "it appears to be a cooperation work that you initiated. But we need your help to refine this reflexion so we can share it at Ohada level". He stressed the importance of training. For the Gabonese Government the question of expertise and ethics is a priority. Training opportunities should be considered in the context of the forthcoming training chain which will open at the National School of Magistrates of Libreville, "Hence our satisfaction with your goal of training African trainers in general and in Gabon in particular" concluded the Minister of Justice before he declared open the works of the 31st Ufohja Training session.
Following the ceremony, a cooperation agreement was signed between the UIHJ and Ersuma, represented by its Director, Félix Onana Etoundi. This historic agreement opens a new page in the history of international cooperation in African training for judicial officers. Félix Onana Etoundi was particularly pleased about this new collaboration. He reiterated the importance of the right to enforcement of court decisions: "The creditor who holds an enforceable title has the right to see his decision executed, as recognized by the European Court of Human Rights. Ersuma provides training for judges, but also auxiliaries of justice including judicial officers who are a vital link". Ersuma Director invited UIHJ organize a training seminar soon in the premises of the Ersuma in Porto Novo (Benin). "Ersuma is engaged through a marriage in a faithful relationship with judicial officers" concluded Mr Onana Etoundi.
The training seminar on the role of the judicial officer in enforcement began with a first workshop on the conditions of implementation of enforcement. The workshop was chaired by Honoré Aggrey, vice president of the UIHJ. Françoise Andrieux, judicial officer (France), Secretary General of the UIHJ, and Ufohja and ENP expert, discussed the topic under French law. Then Idrissa Moussa Dan Koma, president of the National Chamber of the judicial officers of Niger, Elysée Eldjimbaye, president of the National Chamber of the judicial officers of Chad and Djibi Diatta, president of the National Chamber of Judicial Officers of Senegal, in turn discussed the details in their respective countries. Henri Moutendi Mayila, research professor at the University Omar Bongo in Libreville presented the conditions of implementation of enforcement under Gabonese and Ohada provisions.
The second workshop related to security prior enforcement. It was chaired by Françoise Andrieux. For France, Mathieu Chardon, judicial officer (France), 1st Secretary of the UIHJ, ENP and Ufohja expert, addressed the issue of transparency of assets and registered property in France. Rose-Marie Bruno, judicial officer (France), ENP and Ufohja expert, discussed securities and protective measures in France. These themes were then presented in the Ohada countries by Siaka Bakari, judicial officer (Ivory Coast) and Marcellin Zossoungbo, judicial officer (Benin). Regarding Gabon and Ohada law, participants heard a presentation by Ella Wenceslas Andoumé, research professor at the University Omar Bongo in Libreville.
The third workshop focused on obstacles to enforcement, a theme that is of particular importance in certain parts of Africa, where many judicial officers complain of untimely interference of the authorities and the judiciary in the context of civil enforcement proceedings. The workshop was chaired by Jérôme Gérard Okemba Ngabondo, judicial officer (Congo). The presentations involved both nullities, obstacles related to remedies, issues related to the forfeiture of the Enforcement title, obsolescence, annulment, termination, lapsing, debarment, and exemption from seizures. These points were discussed in France by Jean-Michel Rouzaud and Rose-Marie Bruno. Emmanuel Leuyap, judicial officer (Cameroon), André Sama Botcho, president of the National Chamber of judicial officers of Togo, and Edward Ogandaga, first president of the Court of Appeal of Libreville referred in turn on the situation in their respective countries.
As is the case during the Ufohja seminars, enough space was left for participants for various questions and exchange of experiences. Through these particularly rich exchanges, the role of the judicial officer in the right to enforcement appeared better defined, both in national laws of Ohada member countries and in Ohada law.
The summary report of the seminar was prepared and brilliantly presented by Jérôme Gérard Okemba Ngabondo, judicial officer in Brazzaville (Congo). It is reproduced hereafter.
During the seminar, the delegation of the UIHJ had a private audience with the Minister of Justice. The president of the UIHJ explained the importance of the establishment of a uniform status for the African judicial officers of Ohada countries, a status that would be a springboard for its extension to other African countries... and other continents. The delegations of UIHJ, ENP and the National Chamber of judicial officers of Gabon were received by the President of the Senate, Rose Francine Rogombé, who was very receptive to the speech of the UIHJ on the establishment of a uniform status of the African judicial officer, and who congratulated President Netten for the work done by the UIHJ in Africa for nearly twenty years, especially in training. Finally, the Minister of Justice Gabon invited the delegations of UIHJ, ENP and the National Chamber of judicial officers of Gabon at a private dinner held in their honour.
The 31st Ufohja seminar provided an opportunity to pay a solemn and strong tribute to Eliane Oberdeno Ontala Lewori, president of the National Chamber of judicial officers of Gabon, for all her efforts in favour of the profession of judicial officer in Gabon and Africa. President Oberdeno, one of the participants of "The Call of Dakar" in 1996, has always been very active in promoting the profession and its development alongside the UIHJ. This tribute was paid to her during the traditional gala dinner by President Netten and Honorary President of the UIHJ, Jacques Isnard, accompanied by the "elders" of the "Call of Dakar" present in Libreville: Pierre Nzengue (Gabon) and Alphonse Kibakala (Congo).
During his stay in Gabon, Jean Makosso Tock, president of the National Chamber of judicial officers of Congo signed a Co-operative agreement with the UIHJ.
Summary Report of the 31st training session of the Training Unit of African judicial officers
By Jérôme Gérard Okemba Ngabondo, judicial officer in Brazzaville (Congo)
Under the patronage of the Head of State of Gabon, His Excellency Ali Bongo Ondimba, the 31st training session of the Ufohja was held from 20 to 21 February 2014 at the Senate building in Libreville, Gabon, in partnership with the International Union of Judicial Officers, the National School of Procedure of Paris and the National Chamber of judicial officers of Gabon.
This session, which had as its theme: "The role of the judicial officer in enforcement " was attended by judicial officers came from Benin, Cameroon, Chad, Congo, France, Ivory Coast, the Netherlands, Niger, Senegal, Togo and Gabon, the host country. The opening and closing ceremonies were placed under the auspices of the Minister of Justice Séraphin Moundounga. Three short speeches were delivered at the opening ceremony.
Eliane Oberdeno Ontala Lewori, president of the National Chamber of judicial officers of Gabon, presented her welcome and noted that this training session taking place in Libreville after the 1st Africa -Europe Meetings of judicial officers in 2008, was placed by the highest authorities of the country under the Gabon program. Speaking in turn, Leo Netten, President of the International Union of Judicial Officers congratulated the Gabonese authorities and the National Chamber of judicial officers of Gabon for the good organisation of the work. In his opening remarks, the Minister of Justice, Séraphin Moundounga, emphasized the support of the Gabonese government for the training of judges and judicial officers of his country through the National School of Administration and the judiciary.
After the opening speech of the Minister of Justice the signing of the agreement between the International Union of Judicial Officers, represented by its president, Leo Netten and the High Regional School Judicial of Ohada (Ersuma), represented by its Director General, Félix Onana Etoundi, took place. Following the signing of this agreement, Félix Onana Etoundi, Ersuma Director spontaneously said that the judicial officer is an essential element of enforcement. To do this, he has to encompass the right to enforcement as well as enforcement law, of which the uniform act to be revised in 2015 with the support of the World Bank is the backbone.
Regarding the work itself, the first workshop focused on the conditions of implementation of enforcement. This workshop was chaired yesterday by Honoré Aggrey and was led by Françoise Andrieux (France), Issaka Moussa Dan Koma (Niger), Djiby Diatta (Senegal), Elysée Eldjimbaye (Chad), and Henri Moutendi Mayila, teacher-researcher at the University Omar Bongo Ondimba (Libreville).
If the right to enforcement is a human right recognised by the 1997 Hornsby decision, said Issaka Moussa Dan Koma, however there are conditions for the implementation of this right. The title is the medium that legally establishes the existence of a debt. The concept of title and claim overlap and are the source of law enforcement. But the enforceable title should comply with conditions of substance and form. With regard to substantive requirements, the enforceable title should relate to:
- a certain debt;
- a liquid debt that is to say evaluated because the title incudes elements for its evaluation;
- a payable debt that is to say immediately payable at the time payment is required.
While in France, the 1991 law eliminated the degree of certainty of the claim, it remains in Ohada law. With regard to formal requirements, the parallel between securities in French and Ohada law revealed resemblances and differences.
In French law, as explained Françoise Andrieux, instrument exist issued by the judicial officer in case of non-payment of a cheque as well as enforceable titles rendered by foreign courts through European regulation that removes exequatur in all members of the European Union. To be enforced, the title must first be served on the debtor and include the “enforcement formula”. The lack of enforcement formula will affect the whole proceedings. However titles include enforceable titles (even if they don't have no res judicata), those who have the authority of res judicata (they receive provisional enforcement) and those who have the strength of res judicata.
Faced with what he called a deficiency in the text of the Ohada, Djiby Diatta hoped that the report drawn up by the judicial officer of default in payment of a cheque is integrated as an enforceable title. The presentations of Elysée Eldjimbaye and Djiby Diatta show that in Chad and Senegal enforceable titles issued by Tax authorities or constraints rendered by Social Security Agencies may or may not be enforced by judicial officers.
As for the actors of enforcement, Henri Moutendi Mayila distinguished the parties involved in enforcement and third parties. There is the creditor who holds the right to enforce, who is legitimate to enforce, as well as his heirs or successors. There is also the debtor of the creditor, that is to say the original debtor or his successor, the quality of the current debtor being considered at the time where enforcement is carried out. Third parties can be stored into two categories:
- Those who are legally required (garnishee);
- Those who should not impede the execution of judgments.
Breach of obligations by third parties is punishable by law.
But as director of the enforcement action, the judicial officer should proceed carefully, as advised by Françoise Andrieux. He should ensure that the applicant has the quality and capacity to act and hold a mandate that may be general or special. If the creditor is under judicial review, his scope of authority needs checking, whereas if he is in state of liquidation of his property, it is devoid of any power. For a joint owner, the consent of the other joint owners is required for acts of administration. For spouses, solidarity of debts cannot be presumed; it should be mentioned in the court decision. Moreover, the State is required to assist in the enforcement of court decisions. Otherwise, the State is liable for compensation for denial of assistance.
Unlike the countries of the Ohada zone, where each state has its own organization, there is in France a single enforcement judge, who may act as single or college judge. This enforcement judge may interpret court decisions but not add to the substantive law. He allows provisional measures, decides on requests for grace period, periodic penalty payments and liquidation, enforcement or non-enforcement of court decisions. Françoise Andrieux told us that he helps the litigant in his journey to enforce or to challenge the court decision. The judicial officer cannot represent parties before the enforcement judge. But in case of difficulty in the course of enforcement, he may apply to the enforcement judge.
Preliminary guarantees to enforcement
Under the chair of Rose-Marie Bruno, the second workshop was attended by Marcellin Zossoungbo (Benin), Mathieu Chardon (France), Siaka Bakary (Ivory Coast), and Wenceslas Ella Andoumé, researcher teacher at the University Omar Bongo Ondimba.
Information about the debtor's assets, condition to implement enforcement
According to Mathieu Chardon, enforcement can only relate to the property of the debtor, otherwise enforcement is impossible. The level of transparency of assets causes good enforcement. But transparency implies or makes two main principles coexist: the protection of privacy and access to information on the debtor's assets. In France, access to information on the debtor should be carefully framed; otherwise you will fall under the regulation of the Data Protection Commission, or the French or European jurisprudence. It is important for the creditor to have visibility on the debtor's assets to carry out a provisional measure or a security. Otherwise, he has to stop enforcement pending a more comfortable situation. Access to information allows the judicial officer to predict costs and proportionality of enforcement. All persons holding information should provide access to information to the judicial officer provided it complies with national provisions. The French judicial officer actually has access to information about the debtor's assets when he enforces a court decision. It has access to all files, to paraphrase Rose-Marie Bruno.
At national level, states use two information systems: the registry system and the system of declaration of assets. Mr Ella Andoumé reported yesterday that the difficulty in Gabon is that there are no requirements for a declaration of assets. The obligation of a declaration of assets for people in charge of certain political or administrative positions aims at fighting against illicit enrichment. It may be difficult to locate the debtor and get an idea of his properties and assets. Marcellin Zossoungbo said that in Benin creditors are enlisted to help judicial officers to identify the debtor's assets.
The special case of registered property
Transportation Authority (vehicles), Merchant Marine (ship), Directorate General of Civil Aviation (aircraft), Land Registry (buildings) are required to provide information only when asked to do so by a judge. While in Ivory Coast, as pointed Siaka Bakary, fraud causes immovable to escape from being attached. The lack of information at the Land Registry and the absence of cadastral plan in Benin means that the registered property subject to seizure are only those pledged by the debtor, told Mr Zossoungbo. That, you see, is the whole meaning of the call made yesterday by Alain Ngongang from Cameroon, to encourage public authorities to give access to the judicial officer to necessary information.
Provisional measures and securities
Rose-Marie Bruno said the judicial officer takes provisional measures to secure the creditor's claim. Then she detailed the attachment procedure which is similar to that carried out in the Ohada area. Provisional attachment measures have two effects:
- Seize tangible and intangible goods;
- Interrupt prescription.
As for securities and especially mortgage, there are three kinds: legal mortgage, judicial or conventional mortgage. The advantage of taking a mortgage is that it is a security which relates to property given to secure a debt. It allows the creditor to follow the property and be paid preferably in case of sale of such property.
Two issues did crystallize the debates including the possibility for the judicial officer to file a motion for attachment and implement a provisional seizure when he is already in possession of an enforceable title. The answer to the first question categorizes two types of situations: the first is where the law explicitly prohibits the judicial officer to file a request for a provisional measure (Senegal, Gabon). In the second case, the judicial officer may file a request for an attachment (Benin, Cameroon, Ivory Coast, France).
In Europe, there are guidelines on enforcement. Among the activities of the judicial officer in the 47 countries of the Council of Europe is the possibility for the judicial officer to represent parties in court. According to Jacques Isnard, this issue affects the scope of intervention of the judicial officer. If the judicial officer has the monopoly of enforcement and protective measures, there should be no interference in the middle. Judicial officers should fight for full prerogatives relating to enforcement. Regarding the second question, the effect of surprise explains the implementation of a provisional seizure on a tangible personal property when already in possession of an enforceable title. The reason is to avoid the summoning served before the attachment which may encourage some debtors to conceal their properties.
After having explored the conditions of enforcement and reviewed preliminary guarantees to enforcement, one can still wonder if it will always come to an end. This is the task that was assigned to the third workshop on enforcement impediments, successively chaired by Jérôme Gérard Okemba Ngabondo (Congo) and Françoise Andrieux. The workshop went for a yes no answer.
YES, we can always continue enforcing when faced with those impediments called "factual impediments" by Rose-Marie Bruno and described by First President of the Court of Appeal Libreville, Justice Edouard Ogandaga. These factual impediments are inherent both to the qualification of the decision to be enforced, the judicial organization, the shortcomings of judges and judicial officers, the dysfunction of registry services, the litigation on enforcement, the resistance from third parties, as well as the absolute impossibility of the debtor to pay, external interventions, the intrusion of the executive power in the execution and the refusal of granting of police force as regretted by André Sama Botcho. These impediments can be overcome.
NO, enforcement cannot be continued because the law says so, either by protecting some people, or by exempting some assets from seizures. Jean-Michel Rouzaud made a list of exempt property which include for example the usufruct and the office of judicial officer that are exempted because they are inalienable and assets exempted from attachment for general interest. Certain procedural rules and remedies created by Ohada law are indeed obstacles to enforcement, as mentioned by Mr Leuyap (Cameroon) when he referred to his country, Cameroon. These impediments are insuperable in such a way that Jean-Michel Rouzaud wondered if, in the near future, the visits of the judicial officer at the debtor's premises would only resume to a courtesy visit...
Besides these impediments, there is a set of deferred decisions such as period of grace, bankruptcy procedures, or excessive debts procedures. Despite these impediments, enforcement remains a dynamic procedure due to the power of assessment of the judicial officer, the only professional in charge of carrying it out.
