THE STRUCTURE OF SUCCESSION LAW IN CAMEROON: FINDING A

BALANCE BETWEEN THE NEEDS AND INTERESTS OF DIFFERENT

FAMILY MEMBERS.

By

JOSEPH NZALIE EBI

A Thesis Submitted to the University of Birmingham for the Degree of

DOCTOR OF PHILOSOPHY.

School of Law
University of Birmingham
October 2008.
 University of Birmingham Research Archive
e-theses repository

This unpublished thesis/dissertation is copyright of the author and/or third

parties. The intellectual property rights of the author or third parties in respect
of this work are as defined by The Copyright Designs and Patents Act 1988 or
as modified by any successor legislation.

Any use made of information contained in this thesis/dissertation must be in

accordance with that legislation and must be properly acknowledged. Further
distribution or reproduction in any format is prohibited without the permission
of the copyright holder.
 DEDICATION

No person living is more deserving of the honour of this research

than my beloved family: Shirley, my wife; Nyah, Elvis and Esther, my

kids. A lovely foursome, that stoically endured my absence, and

whose constant exhortation, “Daddy take good care of yourself”

provided the most needed stimulus in the face of the adversities and

challenges in a strange land.

i
 ACKNOWLEDGEMENT

My studies in the United Kingdom have been the greatest opportunity of my

life. And this came about and progressed successfully by a combination of factors,
most of which were independent of my doing. It is only normal in such circumstances
to offer my appreciation to whoever forms part of this success story. I cannot boast of
knowledge of all those wonderful people I met in the libraries, offices and courts in
Cameroon and England. I want everyone to know how sincerely I appreciate their
assistance.
My very sincere gratitude goes to HER MAJESTY THE QUEEN OF
ENGLAND’S GOVERNMENT, which through the School of Law of the University
of Birmingham offered me the scholarship to pursue this research. To this I attach the
appreciation of the Government of Cameroon, through the Ministry of Higher
Education and the University of Dschang.
I reserve special appreciation for my supervisor, Professor Gordon Woodman.
I could not have wished more than to have an academic of his calibre as my
supervisor. His mastery of the subject, patience at my failings, and above all, his
diligence and appetite for research were the assets I needed most to carry this study
through.
Professor Nelson Enonchong not only readily proffered necessary academic
guidance but also, together with his wife, Laura, endeavoured to make my stay as
comfortable as possible. To them I say thank you. I am grateful to my mentor and
teacher, professor Ephraim Ngwafor, Head of the Common Law Department,
University of Yaoundé, Soa, whose scholarly examination and very constructive
comments on my conversion thesis helped to re-orientate me on some aspects of the
research.
My heart also goes out to my friends back in the Universities in Cameroon. I
was thousands of kilometres away but that was no impediment to them always
keeping in touch to offer encouragement and valuable information on relevant
academic and professional matters. I want to thank particularly Dr. Andrew Ewang
for the role he played in facilitating my relocation from Cameroon to England.

ii
 Many thanks to the personnel of the courts in Cameroon for their assistance
during my field work. I want especially to acknowledge the enthusiasm with which I
was received by the full staff of the Ndop Alkali Court.
I am grateful to Cameroon’s Ministry of Higher Education and the authorities
of the University of Dschang for the study-leave necessary for me to suspend my
duties as a lecturer for the number of years I needed to be out here. I will in this
category include all those students who were deprived of my services during this
period of my absence.
I am grateful to my in-laws and family for the moral and financial support
although my stay out here. In this respect I register my appreciation to Mr. John
Nzalie, William Nzalie, Mochi Johnson Malafa and Dr. Gilbert Eyabi.
Above all, I give Glory to GOD, without whose BLESSING none of what I
have realised would have been possible.

Joseph Nzalie Ebi,

University of Birmingham (UK),
October 2008.

iii
 TABLE OF CONTENTS

Dedication……………………………………………………………………………...i
Acknowledgement…………………………………………………………………….ii
Table of content……………………………………………………………………….iv
Tables of Statutes……………………………………………………… …………….xi
Tables of Cases……………………………………………………………………….xv
Table of Abbreviations…………………………………………………………….xxvii

CHAPTER ONE: INTRODUCTION...................................................................1-45

1.1: The statement of the problem……………………………………………………..1

1.2: The research methodology………………………………………………………11

1.3: The Name, Location, and People of Cameroon…………………………………15

1.4: The Social and Political Organisation of Cameroonian
Traditional Societies…………………………………………………………………17
1.5: An overview of the different sources of succession law
in Cameroon…………………………………………………………………………20

1.5.1: English law…………………………………………………………………….21

1.5.2: French law……………………………………………………………………..24

1.5.3: Customary Law………………………………………………………………..27

1.5.3.1: Native Law and Custom……………………………………………………..28
1.5.3.2: Muslim Law…………………………………………………………………35
1.5.4: Local Statutory Law…………………………………………………………...37

1.6: The Definition of concepts………………………………………………………37

1.6.1: Testacy and Intestacy …………………………………………………………37
1.6.2 Succession and inheritance: ……………………………………………………38
1.6.3: Property ……………………………………………………………………….40

iv
CHAPTER TWO: INTESTACY IN ENGLISH LAW……………………….46-92

Introduction…………………………………………………………………………..46
2.1: The applicable laws……………………………………………………………...46

2.1.1: Case for the application of post 1900 English statutes………………………...47

2.1.2: Adaptation of the applicable English laws to local conditions……………….55

2.2: Courts with jurisdiction to administer English law……………………………...59

2.2.1: Original Jurisdiction: The High Courts………………………………………..59

2.2.2: Appellate Jurisdiction: Courts of Appeal and the Supreme Court…………….61

2.3. Determining the intestate beneficiaries………………………………………….61

2.4: Administration of Estates………………………………………………………..63

2.4.1: The Personal Representative………………………………………………64

2.4.1.1: The designation of personal representatives………………………………...64

2.4.1.2: The authority and duties of personal representatives……………………….69

2.5: Distribution of the Residue……………………………………………………...72

2.5.1: The content of the residuary estate……………………………………………73

2.5.2: Notification of the beneficiaries…………………….........................................74

2.5.3: The rules of devolution………………………………………………………..76

2.5.3.1: Devolution to the surviving spouse………………………………………….76

2.5.3.2: Entitlement of Issue………………………………………………………….79

2.5.3.3: Entitlement of Other Relatives………………………………………………80

2.6: Claims under the Inheritance (Provision for Family and Dependants) Act
1975…………………………………………………………………………………..83

2.6.1: The Meaning of Reasonable Financial Provision……………………………86

Conclusion…………………………………………………………………………..91

v
CHAPTER THREE: INTESTACY IN FRENCH LAW……………………93-122

Introduction…………………………………………………………………………..93

3.1: The applicable laws…………………………………………………………….. 93

3.1.1: The application of the rules……………………………………………………94

3.2: Courts administering French law…………………………. …………………….95

3.2.1: Original Jurisdiction: Tribunaux de Premier Degré…………………………….95

3.2.2: Original Jurisdiction: Tribunaux de Grande Instances…………………………98

3.2.3: Appellate Jurisdiction: Courts of Appeal and Supreme Court……. ………...100

3.3: Determining the beneficiaries………………………………………………….100

3.3.1: Priority to the Blood Relations of the Deceased…………………………….103

3.3.2: The Inclusion of the Surviving Spouse: An Afterthought…………………...106

3.4: The Rules of Devolution………………………………………….....................108

3.4.1 Devolution to the Relatives…………………………………………………...108

3.4.2. Devolution to the Surviving Spouse………………………………………….111

3.4.2.1: When the surviving spouse has absolute ownership……………………….113

3.4.2.2: When the surviving spouse has usufructuary rights………………………..114

3.4.2.2.1: The Surviving spouse faced with the descendants

of the deceased……………………………………………………………………..115

3.4.2.2.2: The Surviving spouse faced with other relatives

of the deceased……………………………………………………………………...116

3.4.2.2.3: The Surviving spouse faced with other surviving spouses………………118

3.5: Administration of Estates………………………………………………………119

Conclusion…………………………………………………………………………..121

CHAPTER FOUR: INTESTACY IN CUSTOMARY LAW………… 123-223

Introduction…………………………………………………………………………123

4.1: The applicable laws…………………………………………………………….124

vi
4.2: Rules governing the application of customary law…………. ………………127

4.2.1: Proof of Customary Law…………………………………………………. 128

4.2.2: Exclusion of customary law…………………………………………………134

4.2.2.1: Exclusion on the basis of the Repugnancy Clause…………………………135

4.2.2.2: Exclusion on grounds of Public Policy…………………………………….139

4.2.2.3: Exclusion on the Basis of Ordre Public

in Francophone Cameroon………………………………………………………… 144

4.2.2.4: Exclusion for Incompatibility with Written Law…………………………..145

4.3: The Effect of the Exclusion of Customary Law……………………………….148

4.4: Application of Muslim law…………………………………………………….151

4.5: Courts administering the customary law of succession………………………..155

4.5.1: Original Jurisdiction: Customary Courts and
Tribunaux de Premier Degré……………………………………………………….155

4.5.2: The High Courts……………………………………………………………..159

4.5.3: Appellate Jurisdiction………………………………………………………..160

4.6: Determining the beneficiaries………………………………………………….160

4.6.1: The Family as the main unit of succession…………………………………..160

4.6.1.1: The conception of “Family” for the purpose of succession………………..162

4.6.1.2: The Patrilineal System……………………………………………………..164

4.6.1.3: The Matrilineal System……………………………. ……………………...166

4.6.1.4: The position of widows…………………………………………………….169

4.6.2: Women under Muslim Law……………………………………………… 172

4.7: Designation of the Successor…………………………………………………..176

4.7.1: The Burial and Funeral……………………………………………………….178

4.7.2: The Family Council…………………………………………………………..181

4.7.2.1: The Composition…………………………………………………………...181

vii
4.7.2.2: The Mission……………………………………………………………….182

4.7.2.3: The Binding Force of Council Resolutions……………………………….183

4.7.3: The Requisite Qualities for a Successor……………………………………..187

4.7.4: The Chibikom case as Coutume Evolué…………………………………………..192

4.7.5: Factors which inhibit the designation of women as successors……………..196

4.7.5.1: The Bride-Price: basis for the “Woman as Property” theory………………197

4.7.5.2: Women as heritable property: Levirate Marriage………………………….203

4.8: Administration of Estates in Customary Law………………………………….206

4.8.1: Community Land…………………………………………………………….209

4.8.2: Family Property………………………………………………………………211

4.8.3: Personally acquired property…………………………………………………214

4.8.4: Distribution of the Assets…………………………………………………….218

Conclusion…………………………………………………………………………..222

CHAPTER FIVE: THE CONFLICT OF LAWS…………………………224-280

Introduction…………………………………………………………………………224

5.1: Personal law: the law governing succession………………………………….. 224

5.2: Conflict of laws in the Customary Courts……………………………………...226

5.2.1: Regulation of conflict between different systems of customary law in

Anglophone Cameroon……………………………………………………………..227

5.2.2: Regulation of conflict between different systems of customary law in

Francophone Cameroon…………………………………………………………….232

5.3: Conflict of laws in the High Courts…………………………………………..233

5.3.1: Regulating conflict between English and Customary law…………………234

5.3.1.1: When a Native Contracts a Monogamous Marriage……………………….236

5.3.1.2. The Existence of a Will in English form…………………………………...244

viii
5.3.2: Regulating conflicts between French and customary law …………………...246

5.3.3.: The regulation of conflict between different systems of customary law in the
High Courts in Anglophone Cameroon……………………………………………..247

5.3.4: The regulation of conflicts between different systems of customary law in the
High Courts in Francophone Cameroon…………………………………………….250

5.3.5: The unusual situation of regulating conflicts by the use of rules of private
international law…………………………………………………………………….250

5.4: Conflict involving Muslim Law………………………………………………..257

5.4.1: When Muslim law becomes the personal law………………………………..257

5.4.2: Resolving conflict between Muslim law and the other systems of law……...260

Conclusion…………………………………………………………………………..262

CHAPTER SIX: MOVING FORWARD-PRIVATE ORDERING THROUGH

THE MAKING OF WILLS …………………………………………………263-280

Introduction…………………………………………………………………………263

6.1: Wills as instruments to avoid deficient intestacy rules……………………….. 263

6.1.1: Testamentary freedom……………………………………………………….264

6.1.1.1: Testamentary freedom in English law……………………………………..264

6.1.1.2: Testamentary freedom in French law………………………………………264

6.1.1.3: Testamentary freedom in customary law…………………………………..265

6.1.1.4: Testamentary freedom in Muslim law……………………………………..265

6.1.2: The extent to which Wills are used to modify deficient intestacy
rules…………………………………………………………………………………267

6.1.2.1: English law…………………………………………………………………268

6.1.2.2: French law………………………………………………………………….268

6.1.2.3: Customary law……………………………………………………………..269

6.1.2.4: Muslim law…………………………………………………………………270

6.2: The limitations of wills as instruments to amend deficient intestacy

rules……………………………….. ……………………………………………….274

ix
6.2.1: Uncertainty of testamentary provisions……………………………………..274

6.2.2: Apathy towards the making of wills and Ignorance…………………………276

6.2.3: Failure of wills for the want of animus testandi……………………………..277

Conclusion…………………………………………………………………………..279

CHAPTER SEVEN: MOVING FORWARD-INTESTACY UNDER THE

FAMILY CODE …………………………………………………………….. 281-294

Introduction…………………………………………………………………………281

7.1: The genesis of the code………………………………………………………...281

7.2: The scope of the code………………………………………………………….282

7.3: The status of the code…………………………………………………………..283

7.4: The substantive provisions on succession……………………………………..285

7.4.1: The Beneficiaries…………………………………………………………….285

7.4.2: Administration……………………………………………………………….289

7.4.3: Distribution…………………………………………………………………..291

Conclusion………………………………………………………………………….293

Chapter Eight: CONCLUSION…………………………………………….295-301

8.1: General Conclusion……………………………………………………………295

8.2: What law of succession therefore for Cameroon?..............................................298

8.2.1: On the beneficiaries………………………………………………………….299

8.2.2: On Administration…………………………………………………………301

8.2.3: On Distribution……………………………………………………………….301

8.2.4: On the effect of distribution………………………………………………….301

Bibliography…………………………………………………………………..302-313

x
 TABLES OF STATUTES.

CAMEROON

Adaptation of Existing Laws Order 1963…………………………………………….32

Alkalis’ Couts (Validation of Acts) Law 1960……………………………………..115

Civil Status Registration Ordinance No. 81-2 of 29 June 1981… 94, 237, 251, 259

Constitution of 1996…………………………………………… …………………..251

Decree No. 76-165 of 27 April 1976 on Land Registration ……..............................215

Judicial Organisation Ordinance No.72/4/ 26 August, 1972…………………………59

Judicial Organisation Law No. 2006/015 of 29 December 2006…………………...100

Judicial Organisation Decree, 1921(Francophone Cameroon)……………………..232

Judicial organisation Decree, 1927

(Francophone Cameroon)…………………………………………………...91, 99, 232

Judicial Organisation Decree No. 69/DF/544 of 19 December, 1969

(Francophone Cameroon)………………………………………………….91, 133, 232

Land Tenure Ordinance No. 74-I of 7 July 1974……………… …………….212, 279

Law No. 89/019, 29 December 1989 amending certain provisions

of the Judicial Organisation Ordinance, 1972…… ……………………………..59, 99

Law No. 79-4 of 29 June 1979 on the Alkali and Customary Courts………22, 49, 227
Southern Cameroon High Court Law, 1955………………………….49, 134, 143, 237

xi
 NIGERIA

Administrator-General’s Ordinance, Cap. 4, 1958 Laws of Nigeria……………..46, 69

Customary Courts Ordinance, Cap. 142, 1948 Laws

of Nigeria……………………………………………….32,127, 132,134,155, 207, 227

Evidence Ordinance, Cap. 62, 1958 Laws of the Federation

of Nigeria………………………………………………………………….46, 129, 130

Interpretation Act Cap. 94, 1948 Laws of Nigeria…… ……………………………159

Nigeria Letters Patent 1946………………………………………………………….22

Nigeria (Protectorate and Cameroons) Order in Council 1946………………………21

Proclamation No.1 of 1916, extending English Laws in force in

Nigeria to Cameroon…………………………………………………………………22

Supreme Court (Civil Procedure) Rules Cap. 211, 1948 Laws

of Nigeria…………………………………………………………………….46, 69, 72

xii
 UNITED KINGDOM AND OTHERS

Adoption Act 1976…………………………………………………………...47, 62, 64

Administration of Estates Act, 1925……………………..46, 63, 72, 73, 78, 80, 82, 84

Civil Code, 1804 (France)………………………..2, 3, 42, 95, 100, 105, 109, 100, 111

Family Law Reform Act 1969……………………………………………………….62

Forfeiture Act 1982 (UK)…………………………………………………………..142

Foreign Jurisdiction Act, 1890 (UK)…………………………………………………22

French Decrees of 16 and 22 April 1924,

extending French Laws to Cameroon………………………………………………..25

French Law of 22 November to 1 December 1790, amending

the Civil Code by establishing reciprocal succession rights for spouses….. ………107

French Law of 9 March 1891 amending the civil code to give the surviving
spouse succession rights when the deceased is survived by relatives………………93
French Law No. 72-3 of 3 January 1972 continued and completed the above
amendment in articles 765 to 767 of the civil code…………………………………94

French Ordinance of 23 December 1958 removing the need for a court

order to enable the surviving take possession of property………………………….108

Inheritance (Provision for Family and Dependants)

Act 1975 (UK)…………………………………………………………..83, 86, 89, 142

Intestate Estates Act 1952 (UK)……………………………………………...47, 73, 78

Law Reform (Succession) Act 1995 (UK)…………… ……………………..77, 80, 84

Legitimacy Act 1976…………………………………………………………….47, 62

League of Nations Mandate Agreement, 1922…… …………………………………21

Matrimonial Causes Act of 1973 (UK)…………………………………………..47, 87

Non-Contentious Probate Rules 1954 (UK)………………………………….46, 61, 64

Supreme Court Act 1981 (UK)………………………………………………………65

Trustee Act, 1925 (UK)……………………… ……………………………………..74

Trust of Land and Appointment of Trustees Act 1996 (UK)………. …………47, 71

Wills Acts, 1837 and 1852 (UK)………………………….. ………………………46

xiii
 TABLES OF CASES

CAMEROONIAN

Achu v. Achu, Appeal No BCA/62/86 (unreported). ……………………………...200

Agbortar & Oben v. Chief Bessong [1968] W.C.L.R. 43……………….........130, 209

Alexander Duru v. Haddison Masalo (1984) CASWP/cc/52/80……………..............43

Alhaji Garuba v. Next of Kin C/S 29/84-85 (unreported)……………………..153, 154

Ajong v. Ajong (2000) 1CCLR, 67……………………………………………180, 218

Alice Siri Mofor v. John Moforance Mofor, 1999 G. L. R. 149……………………138

Ambo v. Angah (2006) Suit No. C.A.S.W.P/23/2004 (unreported)………………..220

Arrêt Angoa Parfait Cour Suprème Arrêt No. 28/cc du 18 décembre 1981…………98

Asaba v Sub-Chief Forfutazong (2002) CASWP/cc/46……………………………140

Asane Florence v. Ndeh Thomas (2006)

Suit No. HCK/AE/K.28/98 (unreported)…………………………………………6, 205

Baba Iyayi v. Hadja Aminatou and Hadja Bintou,

Arrêt No. 083 of 32 March 2000………………………………………35, 96, 247, 261

Bah Ekom Amos v. Ebua Batali, Wum Customary

Court, Suit No. 12/02-03 (unreported)……………………………………………….12

Bechem Solomon Enow (2005) Suit No. HCK/AE/K.128/2001.................................82

Betow Omar Charles v. Ngo Mbenoum Julienne, Arret No. 151 du

18 Juin 1968………………………………………………………………………….96

Bihina Mbarga Gabriel (Affaire) Arrêt No. 36 of 27 December 1990…………….104

Bodylawson v. Bodylawson, (2006)

Suit No. HCF/PROB/AE105/04-05/1M/05 (unreported)………………………44, 213

Buo Kang Mathias v. Mih Izagha, Wum Customary Court,

Suit No. 8/02-03 (unreported)………………………………………………………126

xiv
 C

Catherine Makebe v. Chambo née Wongibe Rosemary

(2005) 1CCLR., 83………………………………………………………………….185

Charly Namalongo (In the Estate of) (2005)

Suit No. HCK/AE/K. 19/02-03 (unreported)………………………………….269, 277

Chi Stephen Ncha v. Chi Simon Ndeh (2004) BCA/33/2004

(Bamenda Court of Appeal)………………………………………………………...191

Chibikom v. Zamcho Florence, Bamenda Court of Appeal

(1994) 1 CAJ-CLC, 86……………………………………………………………..198

Chibikom v. Zamcho Florence, Supreme Court Judgment

No. 14/L of 4 February 1993……………………………………………………….190

Chibikom v. Zamcho Florence, South West Court of Appeal

(remittal) (1997) 1CCLR, 212…………………………………………….70, 105, 197

Chibikom v Zamcho Florence No. 2. (2006)

HCB/PD.LA.57M/05-05 (unreported)…………………………………………185,190

Chief Moleke of Bafaka Village (the matter of )

Mbonge Customary Court, suit no. 17-10-12 (unreported) ………………………….168

Dada Baba Nya (The Estate of) (1985)

C.A.S.W.P/CC/16/85 (unreported)………………………………………98, 261, 267

Dame Dada Balkissou v. Abdoul Karim Mohamed

(1991) 8 Juridis Info. 54……………………………….............................................35

Dame Wandji Agathe v. Dandou Frédéric,

Arret No. 96 du 11 Mars 1996…….............................................................................96

Dame Tobbo Ebenye, Cour Sup, 16 Mai 1974.(unreported)…………………………..

Dame Ekedi Lobe Bell, Cour Sup, 27 June 1974 (unreported)………………………..

Dame Bebey Arret no. 46/ of 4 May 1995 (Supreme Court)……………………….269

Daniel Nde v. Mokom Clement (1998) 34 Juridis Périodique 39. …………………162

Daniel Njike & 3 others v Zachius Ehang (1978) Y.U.L.R. 92………………….6, 158

David Ako v. John Ndumbe (1982) C.A.S.W.P/cc/54/82……………………………34

David Tchakokam v. Keou Magdaleine (1999)1G.L.R.11……………….137, 205

xv
Doualla Joseph (La succession) Tribunal de Premier Degré
Bafoussam, Jugement No. 232 du 5 Mai 1988 (unreported)...............................96

Ebanda Njoh Elisse v. Eyombwan Njoh Isaac,

Arret No.42 du 9 Mar 1978………….................................................................145

Ebongue v. Ebongue Nyambe(Affaire), Arrêt No. 14/L du

9 decembre 1976 (unreported)......................................................................94, 118

Efosi Kombe v. Lydia Ngale (1980) C.A.S.W.P/cc/5/79 (unreported)………..196

Elive Njie v. Hannah Efeti Manga (C.A.S.W.P/CC/12/98 (unreported)………….

Enjema Liote v. Hannah Forty (1984) CASWP/CC/15/83…………………………..44

Enongenekang v. Enongenekang, Suit No.HCSW/28MC/82 ……………………...252

Ethel Nworie Akabueze (The Matter of) Muyuka Customary Court,

Suit No.34/2003/2004……………………………………………………………..

Findi Laban Njo & ors v. Enow Emmanuel, Limbe Customary Court, Civil Suit No.

LM/105/2001 (unreported)………………………………………………………….275

Fodje v. Kette, Appeal No. BCA/45/ 86 (unreported)……………………………..205

Fokam Kamga (Affaire) (1998) 34 Juridis Périodique, 43………..............99, 104, 246

Galega v. Galega, Appeal No. BCA/19/93 (unreported)………………...4, 68, 82, 185

Gboron Yaccouba & Anemena Suzanne v. Mbombo Asang & Ndam Emile. Cour
d’Appel de l’Ouest, Bafoussam, Arrêt No.001/C du 23 Octobre 1997
(unreported)…………………………………………………………………………154

Geh v . Geh (2006) HCB/PD/LA/ 04-05…………………………………………..219

Guimfack Guillaume (affaire succession), Jugement No. 105/C du 11

Avril 1996, TPD Dschang........................................................................................106

xvi
 H

Hadjih Isah v. Buba Balkissou, Alkali Court, Mbengwi,

Suit No.24/91-92……. ..............................................................................................157

Isange Ekoi Comfort v. Bongolie Ophilia Epupu

(2004) HCK/AE/K.92/2002…………………………………………………………44

Jemba Solomon Nangoh v. Emilia Okole Otte,

(2002) C.A.S.W.P./cc/14/2002………………….............................................165, 271

Jesco Manage Williams v. The President, Native Court Victoria

(1962-1964) W.C.L.R. 34…… …………………………………………………….185

Jesco Manga Williams v. Helen Otia & Chief Ikome, Limbe Customary Court, Civil
Suit No.LM/16/97 (unreported)……………………………………………………266

Johnny v. Johnny (1989) Suit No. HCB/14.M/89 (unreported)…………………….272

John Kpumia v. John Abongwe (1978) Y.U.L.R. 78……………………………….210

Joseph Tanjang Bamu v Emmanuel Awankem Bamu,

(1990) Appeal No. 65/86, (unreported)……………………………………………..196

Kamte Louis Gabriel (La Succesion), Jugement no. 53/ADD/ TP

du 24 Janvier, 1994, TPD Nkongsamba (unreported).................................................96

Kana Paul (Affaire) TGI (Tribunal de Grande Instance)

Bafoussam No. 49/ Civ. of 5 March 1996………………………………………….104

Kegne René v. Nembot Pièrre & Others, Cour d’Appel de l’Ouest jugement No. 85/C
17 Février 1994 (unreported)………………………………………………..114

Keyaka Francis v. Taah Regina (2000) BCA/10/2000 (unreported)……………….190

Keze Isaac v. Noumbissie Jean-Jacques, Arret No. 129 du 13 Mai 1967…………...96

Kinge Francis Evakisse(in Re) (1999) 1 G.L.R. 17……………………………275

Kouoh (Affaire) C.S.C.O., Arrêt No. 29 du 23 Avril, 1963, Bull.
P.293…………............................................. ……………………………….....246

Kumbongsi v. Kumbongsi, Suit No. C.A.S.W.P/ 4/84

(divorce) (unreported) ………………………………………….. ………238, 240

xvii
Kumbongsi v. Kumbongsi, Cameroon Common Law Report, Part 5, 189
(Succession)………………………………………………………………………...161

Kwende v. Vejai & 2 others (2006) Mankon Customary Court,

Civil Suit No. 91/05-06 (unreported)……………………………………………….188

Kwoh Wandim Ndonyi Theresia v. Nsang Martha &Chinwo Joseph, Suit No.
C/S58/01/02 (Kom Customary Court) (unreported)…………………………………

Lantum (Arrêt), CS No. 23/CC du 13 Décembre 1979, cited by Ngwafor, E. N.,

Family Law in Anglophone Cameroon, 22…………………………………….255

Lokendo James v. Francisca Diangi Lokendo (2006) Suit No.

C.A.S.W.P/21/2005……………………………………………………………271

Lonla Kuete (Affaire) Arrêt No. 2/C of 24 October 1991………………..106, 119

Malam Bello v. The People (1983) Suit No. BCA/9MS/83 (Unreported)………… 44

Marianne Bongyilla Ntoh v. Che Peter (2003) B.C.A./48/2003……………………268

Mary Diang v. John Aboh, Suit No. 63/01/02 (Kom Customary Court) (unreported).

Mary Ngoh Timothy v. Njimba Jacob Nkangah (2006)

Suit No. HCF/PROB/AE96/2001 (unreported)…………………….................134, 195

Mary Umaru v. Asopo Makembe (1981) C.A.S.W.P/CC/87/81 (unreported)….

Messe Madeleine (La Succession), Tribunal de Premier Degré de Dschang, Jugement

No. 18/C du 15 Janvier 1996 (unreported)………………………………………..165

Michael Andeh v. Paul Happi (1983) CASWP/ CC/52/82………………………… 44

Ministère Public c/ Pangou Bello(1996) 26 Juridis Périodique, 24..........................165

Mukete Rebecca v. Mokube Solomon Sakwe, Ekwe Customary Court, Civil Suit No.
7/7/2001. (unreported)………………………………………………………………171

Moma J. Azeh v. Azonyuif Moma Louis (2003) BCA/5/2003…… …………….......44

xviii
 N

Nana v. Nana (2005) Suit No. HCF/PROB/AE1/2001-2002

(unreported)………………………………………………………………183, 195, 239

Nanje Fabian v. Meta Edward (2005)

Suit No. C.A.S.W.P/53/2002 (unreported)…………………………………………...65

Ndiba v. Ndiba (2006) Suit No. HCK/AE/K.77/98 (unreported)…………………..213

Ndjobdi Njiwa v. Gabilla G. Fotachwi, Suit No. 3/2002-2003…………………….261

Nforba v Nchari (1999)1 G.L.R. 59…………………………………………….54, 80

Ngeh v. Ngome (1962-1964) W. C. L. R., 32………………………………………202

(selected judgments of the High Court of West Cameroon.) …………….

Nguea Lottin v. Quan Samuel Arrêt No.67 du 11 Juin 1963 (CSCO)………248, 273

Njoke v. Njoke ((2006) C.A.S.W.P/35/04-05 (unreported)……………….60, 193, 207

Njonji Godlove v. Esther Njonji,

Suit No. HCK/AE/K.16/2000 (unreported)…………………………………….66, 179

Noumbissie née Wanji Mary v. Nganjini John (2002) 1CCLR Part 9…….67, 68, 184
Nsom Fombui Amborse v. Nkuo Kelvine, Suit No. BOHC/PD/LA/02/02-03 (High Court
Boyo Division, North West province) (unreported)……………………………………….170

Ntoh (In re) (2006) Appeal No. BCA/48/2003 (unreported)………………………268

Nzoukekang v. Nzoukekang (2005)

Appeal No. BCA/24/2004, (unreported)……………………………………………184

Affaire Okalla Jugement no. 25 du 7 Novembre 1979,

Tribunal Grande Instance, Yaounde (unreported)....................................................276

Ossengue Francois v Jackie Cecile (2000) Suit No. C.A.S.W.P/CC/15/99

(unreported)................................................................................................................272

Peter Charles Chi v. Chinkwo Nde Fidelis & Caroline Chi

(2006) Appeal No. BCA/62/2003 (unreported)…………………………….4, 184, 191

Puete Jacqueline v. Ngouoko Joseph, Supreme Court,Arrêt No. 15/L du 12 Avril

1990…………………………………………………………………………………106

xix
Presbyterian Church Moderator v. Johnny (1974) BCA/27/74………………………18
S

Sam Edward Charlie (In the Estate of) (2002)

HCF/AE/24//2001-2002…………………………………….. …………………59, 254

Saidu Manu v. Hubeba Usmanu (1997)

Appeal No, BCA/9CC/ 95 (unreported)……………………………………………198

Stephen Ncha & 5 ors. v. Chi Simon Nde, (2006)

Appeal No. BCA/33/2004 (unreported)………………………………………………..

Tchamo Thomas v. Tiwouang nee Waffeu Jeanne, Jugement No. 46/L du 14 Juin
1992 (unreported)……………………………………………………………..114, 119

Tchokossi (Affaire), in Melone, S., « Le droit successoral Camerounais: Etudes des

quelques points en jurisprudences” (1979) 17/18 Rev. Cam. De Droit, 55-79……...69.

Teke Elias Tepi v. Teke David Mbah (2005) 2 CCLR 49……………….129, 245, 272

Tengou Emmanuel (affaire). Cour d’ Appel Bafoussam,

Arrêt No.19/C du 26 Janvier, 1995 (unreported)......................................................220.

Thomas Ngo v. Moses Lukong & Another, Appeal No. BCA/ 10/75

(unreported)…………………………………………………………………………213

Tufon v. Tufon, HCB/59MC/83 (unreported)………………………………………158

Veuve Ebongue c/ Ebongue Nyambe Nestor Cour Suprême,

Arrêt No. 14/L du 9 (unreported)................................................................................45

W
Wokoko v. Molyko (1938)14 N.L.R. 41………………….................................19, 129

Zang (Affaire) 30 May 1974 (Supreme Court)……………………………………115

Zeinabu Sadi Buba of Issu v. Alhaji Jae Mundayi,

Judgment of the Ndop Alkali Civil Suit No. 4/2002.2003 (unreported)…………..199

xx
 NIGERIAN

Adeyeye v. Adewoyin (1963) 1 All N. L. R. 421…………………………………..216

Adagun v. Fagbola (1932) 11 N.L.R. 110…………………………………………..215

Ajayi v. White (1946) 18 N.L.R. 41………………………………………………...242

Akerele v Balogun (1964) L. L. R. 99………………………………………………221

Apatira v. Akande (1944) 17 N.L.R. 149……………………………………...244, 277

Asiata v. Goncallo (1900) 1N.L.R. 41………………………………………...241, 262

Att.-Gen. v. John Holt & Co (1910) 2 N.L.R. 1. ……………………………………24

Awgu v. Nezianya (1949)12 W.A.C.A. 450…………………………….. ………...131

Bamgbose v. Daniel (1952) 14 W.A.C.A. 111……………………………………..57

Bassey v. Cobham (1924) 5 N.L.R. 92……………………………………………..215

C
Coker v. Coker (1938) 14 N.L.R.83………………………………………………..…

Cole v. Cole (1898) 1N.L.R. 15................................................ ......................233, 236

Eshugbayi Eleko v. Government of Nigeria [1931] A.C. 662………………….31, 137

Estate of Agboruja (the) (1949) 19 N. L. R. 38……………………………………..203

H
Haastrup v. Coker (1927) 8 N.L.R. 68……………………………………………...243

Ibikade v. Aize (1974) U.I.L.R. 18…………………………………………………201

Iyamuse Ehigie v. Gregory Ehigie [1961] ALL N.L.R. 842……………………….131

Karchia v. Sarkin Kumin Musa (1975) N.N.L.R. 44………………………………….

xxi
Kekerogun v. Oshodi (1971) All N. L R. 76………………………………………..65

Kwan Nyieni (1959) G.L.R. 67……………………………………………………..215

Labinjoh v. Abake (1924)5 N.L.R.32……………………………………………58, 79

Laidi Giwa v. Bisiriyu Erinmilokun (1961) All N.L.R. 294…………………..129, 130

Lawal v. Abayomi (1946)18 N.L.R. 45…………………………………………….146

Lawal & Ors. v. Younan & Sons (1961) All N. L. R. 245………………………….194

Lewis v. Bankole, (1908) 1 N.L.R. 81…………………………………………...33, 35

Mahmudu v. Zenuah (1934) 2 W.A.C.A. 172………………………………………215

Nwugege v. Adigwe (1934)11 All \N. R. 134……………………………………...171

Olabunmi Cole & Anor. v. Akinyele & Ors. (1960) 5 F.S.C. 84………………….130

Owotoyin v. Onotosho (1961)1 All N.L.R. 304, 309, per Bairamian F.J…………....30

R v. Ilorin Native Court: ex parte Aremu (1953) 20 N.L.R. 144…………………...228

Rasaki Yinusa v. T.T. Adesubokan [1970] J.A.L. 57………....................147, 229, 267

Rotibi v. Savage (1944) 17 N.L.R. 77………………………………………………146

Smith v. Smith (1924) 5N.L.R. 105………………………………………………...242

Taylor v Taylor (1935) 2 W.A.C.A. 348……………………………………………..50

Young v. Albina (1940) 6 W A.C.A…………………………………………………24

xxii
 UNITED KINGDOM AND OTHERS

Adadevoh (Re) (1951)13 W.A.C.A. 304……………………………57, 78, 142, 146

Banks v. Goodfellow (1870) L. R. 5 Q.B. 549.....................................................................278

Bessant v. Wood, 12 Ch. D. p. 620………………………………………………..139

Biei v. Akomea (1956) 1 W.A.L.R. 174……………………………………………….

Bimba v. Mensah (1891) Sar. F.C.L. 137………………………………………….128

Bromley London Borough Council v. Greater London Council

[1982] 1 All E.R. 129………………………………………………………………..53

Christie deceased (In Re ) [1979] 1 Ch. 168………………………………………...89

Coleman v. Shang [1961] A.C. 481………………………………………………….57

Coventry Deceased (Re) [1980] 1 Ch. 61 (C.A.)…………………. ………………..90

Cunliffe v. Fielden & Others [2006] Ch. 361 (C. A.)………………………………..88

Davies v. Davies (1887) Ch D. 364………………………………………………...139

Dingmar v. Dingmar [2007] Ch. 109 (C. A.) ………………………………………89

Ekem v. Nerba (1947) 12 W.A.C.A. 258…………………………………………………..230

Emmanuel Nelson Tamakloe (In the Matter of the Estate of)

Cited by Ollennu, The law of testate and intestate succession in Ghana…………...187

Enderby Town Football Club v Football Association Ltd. [1971] Ch. 591………..142

Evans (Re) [1999] 2 All. E. R. 777…………………………………………………..75

Foster v Bates (1843) 12 M. & W. 226………………………………………………70

xxiii
 G

Ghamson v. Wobill (1947)12 W.A.C.A. 81……………………………. 224,229, 261

Godwin v. Crowther (1934) 2 W.A.C.A. 109……………………………………….50

Golightly v. Ashrifi (1955) 14 W.A.C.A. 676……………………………………… 34

Gwao bi Kilimo v. Kisunda bin Ifuti (1938) 1 T.L.R. 403 ………………………...136

Hyde v. Hyde, (1866) L.R. &.D. 130……………………………………………...237

Krakue v. Krabah………………………………………………………………….168

Land (In re) [2007] 1 W. L. R. 1009……………………………………………90, 142

Larbi v. Cato [1960] Ghana Law Report, 146………………………………………215

Malone v. Harisson [1975] 1 WLR 1353…………………………………………….85

Maunsell v. Olins [1975] AC 373……………………………………………………52

Mills v. Addy (1959) 3 W.A.L.R. 357……………………………………………...167

Miller v. Miller [2005] 2 FCR 713………………………………………… ………88

Mitchell v. Reynolds (1711) 1 P. Wms 181 ………………………………………..139

Nash v. Inman [1908] 2 KB 1 (CA)…………………………………………………...1

Neville v Benjamin [1902] 1 Ch. 723…………………………………………74

Poh v. Konamba & Ors. (1957) 3 W. A. L. R. 74………………………………..

xxiv
 S

Santeng v Darkwa (1940) 6 W.A.C.A. 52………………………………………137

Sastry Velaider Aronegary v. Sembecutty Vaigalie (1881) 6 App. Cas. 364……..84

Siaw v. Sorlor (1960) G. L. R. 77…………………………………………………221

Tabitha Chiduku v. Chidano, (1922) S.R.L.R. 55…………………….....................137

V
Virginia Wambui Otieno v. Joash Ochieng ‘Ougo’ (Otieno Case). In Renteln, A.
D. and Dundes, A. (ed), Folk Law; Essays in the theory and practice of lex
nonscripta, Vol. 1, the University of Wisconsin Press, 1995, p. 827-844,
(1988)36 American Journal of Comparative Law, 329-350 and (1988) 31
Harvard Law Journal, 667-674………………………………………………...179

W
White v White [2001] 1 A. C. 596…………………………………………………..87

xxv
 TABLE OF ABBREVIATIONS

A. C. Appeal Cases
All E.R. All England Law Reports
ALL N.L.R. All Nigeria Law Reports
A.L.R. Argus Law Reports (Australia)
App. Cas. Appeal Cases
BCA/… Unreported Judgments of the Bamenda Court of Appeal
Beav. Beavan
Bing. Bingham
Burr. Burrow
CASWP/… Unreported Judgments of the South West Court of Appeal
C/S. Civil Suit
CAJ-CCL Court of Appeal Judgments-Common Law Cameroon
C.C.L.R Cameroon Common Law Reports
Ch. Chancery
Ch. D Chancery Division
C.S.C.O Cour Suprême Cameroun Orientale
F.S.C. Judgments of the Nigerian Federal Supreme Court
G.L.R Gender Law Reports
HCB/… Unreported Judgments of the High Court of Bamenda
HCF/… Unreported Judgments of the High Court of Fako Division
HCK/… Unreported Judgments of the High Court of Kumba
I & CLQ International and Comparative Law Quarterly
J.A.L. Journal of African Law
L.Q.R. Law Quarterly Review
L. R. Eq. Equity Cases
L.R. P. & D. Probate and Divorce Cases
L.T. Times Law Reports
M.L.R. Modern Law Review
M. & W. Meeson & Welsby
N.L.R. Nigeria Law Reports
N.L.J: Nigerian Law Journal
P. Wms. Peere Williams

xxvi
Phil. Phillips
RADIC. Revue Africaine de droit international et compare
Rev. Jur. Pol. Ind. Coop. Revue Juridique Indépendence et Coopération.
Rev. Jur. Pol. O-M. Revue Juridique et Politique d’Outre-Mer
S.J. Solicitors’ Journal
Sar. F.C.L. Sarbah, Fanti Customary Laws
S.R.L.R. Southern Rhodesia Law Reports
T.L.R Tanganyika Law Reports
W.C.L.R. West Cameroon Law Reports
W.A.C.A. West African Court of Appeal
W.A.L.R. West African Law Reports
W.L.R. Weekly Law Reports
Y.U.L.R. Yaoundé University Law Reports

xxvii
 CHAPTER ONE: INTRODUCTION

1.1: THE STATEMENT OF THE PROBLEM

Succession on death, the subject matter of this study signifies the devolution

of property to a living person upon the death of its owner. The law of succession

could thus be criticised for rendering possible the acquisition of wealth by persons

who did not work for it and for constituting a principal source of economic inequality

in society. We think, however, that if the law of succession is an evil, then it is a

necessary evil. It enables the continuity of the estate of the deceased and most

importantly, provides the only opportunity for the reallocation and continuation of the

obligations of the deceased towards persons for whose maintenance he was

responsible in his lifetime. If the rules of succession are a reflection of the deceased’s

intention, then nothing would have been dearer to him than to have his name

perpetuated and his family well provided for.

The criterion for deciding who the beneficiaries of an estate are ought to be

whether the deceased in his lifetime owed them a legal duty of maintenance. The

customary and modern laws applicable in Cameroon recognise that a man has the

obligation to maintain certain members of his family and maintenance here includes

the provision of necessaries including food, shelter, clothing and medical care. The

primary obligation is towards the nuclear family which consists of the spouses and

issue. This obligation is exemplified in English law by the powers given to the wife

to pledge the husband’s credit for necessaries, 1 and since the duty to maintain the

issue is placed the spouses, the issue could also take necessary goods on credit and the

parents would be obliged to pay a reasonable price for them. 2 The French position as

1
See generally, Nwogugu, Family Law in Nigeria, Heinemann Educational Books (Nigeria) Plc. 1996,
283 et seq.
2
See Nash v. Inman [1908] 2 KB 1 (CA). Normally infant contracts are void in law but an exception is
made in the case of necessaries.

1
contained in article 214 of the Civil Code reads: “Les charges du mariage incombent

au mari, à titre principal. Il est obligé de fourmir à la femme tout ce qui est

néccessaire pour les besoins de la vie selon ses facultés et son état 3 ”, and as is the

case in English law the responsibility to maintain the issue is shared by both spouses. 4

In customary law the husband has the duty to maintain his wife or wives and

children and failure in this respect could result in the woman divorcing the man. 5 This

is also a rule of the Muslim Maliki law through the principle of nafqah which requires

the man to provide the woman with necessaries suitable to their station in life. 6

The duty of maintenance extends to the needy members of the immediate and

extended families. It is immaterial in every case that they might have some means of

their own, as might be the case in England and France where government social

security schemes provide some form of benefit to all categories of their needy

citizens.

These are the persons who in our estimation should qualify as beneficiaries

given that the duty of maintenance does not cease on the death of a breadwinner and

that the death instead aggravates their situations. When the intestacy rules fail

therefore to make a proper inventory of the beneficiaries and leave out some of the

persons with a legitimate claim to maintenance, it must only be expected that there

would be feelings of bitterness giving rise to social problems of different sorts. This,

we submit, is what Cameroon’s succession law seems to be suffering from today.

The number of persons claiming succession rights will generally exceed those

to whom the deceased owed the duty of maintenance, as is reflected in the long list of

3
As amended by articles 6 and 25 of Law No. 75-617 of 11 July 1975
4
See article 203 of the Civil Code.
5
See Ollennu The Law of Testate and Intestate Succession in Ghana, London, Sweet & Maxwell,
1966, 224.
6
See Ajijola A. D. Introduction to Islamic Law, New Delhi, International Islamic Publishers, 1989,
191.

2
possible intestate beneficiaries observed in the received systems. The reason is that

rules of maintenance are always subject to the personal needs of a person and these

could be substantial, depending on his station of life and lifestyle. His duty of

maintenance towards his immediate and extended families is therefore generally

limited, an indication of which is found in article 205 of the French Civil Code,

according to which, “Les enfants doivent des aliments à leurs père et mère ou autres

ascendants qui sont dans le besoin.” A dead person has no personal needs and so the

extra income could be applied to other things, such for example, as allowing claims to

succession by persons claming by the proxy of those to whom the duty was owed. 7

The purpose of the extension is however defeated by the institution of a system of

precedence which favours succession by the persons closest to the deceased to the

exclusion of all others. Hence in most cases, other persons, even those to whom the

duty was personally owed are left destitute and at the mercy of the spouse and issue.

While only members of the immediate or extended families 8 might be

excluded under the received laws, the situation in customary law, with the exception,

perhaps of Muslim law is even more preoccupying. The patrilineal system of

succession excludes women generally from the list of beneficiaries. Widows are

excluded for not being family members. Matrilineal systems on the other hand profess

the equality of sexes but are just, to borrow from John Anthony Howard, “patrilineal

systems with matrilineal emphasis”. 9 With few exceptions, women are excluded and

these include widows. Matrilineal systems further exclude the nuclear family of

7
The inheritance tax is another way of tapping into the extra income.
8
The terms immediate, extended and nuclear families will be adequately defined in the work, but for
the present purpose, an immediate family is that generated by the parents of the deceased and consist of
them, the deceased, the brothers and sisters of the deceased and their descendants; the extended family
is generated by the grand parents and consists of the grand parents, their brothers and sisters and
descendants; the nuclear family or the sub-family is that generated by the deceased and consists of him,
and descendants.
9
John Anthony Howard on “The Customary Law of Marriage and Succession among the Kom Of
Cameroon”, Ph. D. Thesis, University of London, 1972, 16.

3
deceased completely, except in the case of a deceased female. 10 Now, the duty of

maintenance in the lifetime of the deceased did not distinguish between the sexes and

went primarily to his nuclear family. And as if enough is not enough the customary

law under the apparent influence of the received laws has also adopted the system of

succession going primarily to persons closest to the deceased.

The problems confronting succession in Cameroon are not limited to the

inappropriate identification of the beneficiaries. Problems are current among the

beneficiaries themselves; due mainly to the discretionary nature of distribution which

makes administration almost indefinite and gives room to abuse by the persons in

charge. The rules of distribution themselves are not always very clear, when for

example in French law the rules give spouses the right of use after distribution, male

beneficiaries often see no difference between this and customary law and advocate the

application of the latter instead.

It is not uncommon that upon the deceased’s death members of his or her

family go on the rampage to grab the property or dispossess persons considered not to

be entitled to succession, 11 of any lands occupied by them. Where the deceased was

married this is against his widow and the issue 12 and generally any attempts to resist

results in violence being perpetrated against them. In a good number of cases female

relatives of the deceased receive similar treatment from their male counterparts who

believe that women should be in their husbands’ homes and not be around upon their

father’s death to lay claims to property. 13

10
This study will be concerned more with the estate of males for the reason that women generally have
very little or no property at all to give rise to serious dispute.
11
See Owen, Margaret, A World of Widows, London, Zed Books, 1996, 59-62.
12
See Galega v. Galega, Appeal No. BCA/19/93 (unreported) where the brother of the deceased took
hold of money and many other items of movable property and threatened to sell off one of the houses
of the deceased.
13
See for Peter Chi Charles v. Chonkwo Nde Fidelis & Caroline Chi (2006) Appeal No. BCA/62/ 2003
(unreported) in which a brother refused to attend a family meeting because he thought that his sisters
ought to be in their husbands’ houses and not be attending family meetings.

4
 Many victims of succession-based violence abstain on their own volition from

going to court. Women would not want to take their husbands’ relatives or brothers to

court, as they think that they will need their support in rainy days. 14 There is also

illiteracy and ignorance among the rural populations which make them oblivious of

the fact that law at least provides some measure of protection for their interests. The

conception here is that the successor of the deceased, who manages the property on

behalf of the family, is already known and what is needed is for the new “father” and

“husband” to continue providing for their subsistence. The fear and threat of

witchcraft has also been identified as deterring many a meritorious beneficiary from

seeking legal redress in a court of law. Witchcraft as defined by the Penguin English

Dictionary consists in “the use of sorcery or magic” and the practitioner of witchcraft

is said to be “a person who is credited with supernatural powers.”

Furthermore the High Courts with the competence to administer the more

favourable received laws are inaccessible to many who would have sought legal

redress. These courts are said to be located at divisional levels, but the divisions are

generally large and most of the countryside is without motorable roads, and this

makes access to them difficult, if not impossible. The rural populations which

constitute the majority are therefore governed mostly by customary law. 15 It is not

uncommon also for matters arising in the urban areas where the courts are located to

be governed by customary law as the cost involved in suing in the modern jurisdiction

14
Owen, supra. 66.
15
It will be shown in the work that even though jurisdiction is shared between the customary and the
received laws, in Francophone Cameroon for example the parties have the option of jurisdiction and in
Anglophone Cameroon the high courts have monopoly over letters of administration and on the basis
of which they entertain matters normally subject to the jurisdiction of the customary courts.

5
often scares people away, and succession is not one of the areas for which legal aid is

available. 16

The law of succession thus creates a substantial class of destitute persons

condemned to a life of poverty and want. Poverty means that a person does not have

the resources to sustain himself and those dependent on him. This is exactly what the

law of succession does, since by excluding certain persons from succession, they are

made to depend on others and in this case the male successor. As will be shown later

the successor generally ignores his responsibilities and concentrates on his direct

family and those family members who agree to be subservient and recognise his
17
authority; and for widows this might mean accepting to become the wife of the

successor. 18

Apparently the choice of customary law beneficiaries is influenced more by

the land tenure system according to which land belongs to the group, which could be

the tribe, the village or the family, and not the individual member thereof. 19 This is

because a group has a perpetual existence and so at no time would its property be a

subject of succession. Since the main bone of contention in succession is land, the

tendency is to assume that customary law believes more in keeping land in the family

than to continue with the obligations of the deceased towards his family. This is

largely a misconception of the problem, because it is an accepted rule of the law that

succession to property cannot occur unless it is regarded as belonging to individuals

rather than to groups. 20 That being the case, denying a person succession rights over

16
Legal aid in Cameroon is available to (1) injured employees; (2) unemployed deserted wives; and (3)
appellants against a death sentence. In Anyangwe, C., The Cameroonian Judicial System, Yaoundé,
CEPER, 1987, 197.
17
See Daniel Njike & 3 Others v. Zachuis Ehang (1978) Y.U.L.R. 92
18
See Asane Florence v. Ndeh Thomas Mbonjoh (2006) Suit no.HCK/AE/K.28/98 (unreported)
19
See Anyangwe, Carlson, “Land Tenure and Interests in Land in Cameroonian Indigenous Law”
(1984) Cameroon Law Review, 29-41, 33.
20
See Miller, Gareth, The Machinery of Succession , Portsmouth, Professional Books Limited, 1977, 2.

6
land must not be understood as the desire not to continue with the obligations of the

deceased.

Group ownership of land is more of a rule than an exception in customary law.

The basic reasons for this will be seen in the chapter on intestacy in customary law

where the different categories of group ownership of land will be given ample

attention. This is the philosophy which guides the courts in their attitude towards

widows as far as succession to land is concerned, and not necessarily the desire to

deprive them their right to maintenance, because as will be seen later, the

maintenance of widows has always been one of the main preoccupations of customary

law.

It does not mean that land is never the subject of succession in customary law.

The fact is that a number of interests exist over land in customary law and some of

them are capable of succession. We begin with the premise that ownership of land is

in the family. Ownership describes a “bundle” of rights which might exist over a

thing, the amplitude of which is measured in respect of the rights of other persons

over the same thing. The precise content of “ownership” is unclear and is liable to

vary from one legal system to the other. 21 The rights commonly ascribed to the term

include use, enjoyment, alteration, disposal and destruction. The last set of powers

brings the term “ownership” into play, given that it is greatest right that a person

might have over a thing. The unchecked exercise of this is of course rare because

legal systems impose different types of limitations to the right of disposal to curb any

excesses of the “owner” which could result in the disappearance of the thing owned or

work against the interest of the community.

21
See Dennis Lloyd, The Idea of Law, London, Penguin Books, 1973, 323.

7
 It is recognised in English law for example that a person might not put his land

to such a use as would impair other persons from peacefully enjoying their own lands

in the vicinity. This is the basis of the law of nuisance, and it is almost axiomatic for

the use of land to be made subject to the needs of public policy. In customary law any

contracts purporting to dispose of the land must receive the consent of the family

through its branches. 22

It is perhaps necessary to qualify the ownership of the family as absolute

ownership to distinguish it from the rights of the members of the family over the same

land. The absolute ownership of the family exists concurrently with the lesser

interests of its members, which derive from their membership of the family. These

exist over parcels of land allocated 23 to them for such purposes as habitation and

farming. Apart from the right of disposal which is in the family the members have the

rights of possession which include use, enjoyment. Possession is part of the “bundle

of rights” of which ownership is said to consist, meaning that it is a right of

ownership, though limited in scope. 24

Hence a grant of family land to a member does not give rise to an interest

equivalent to the English fee simple in possession which is actually a right of

ownership in the sense that it can be alienated to whomever in the lifetime of the

person and upon his intestacy, devolves to his general heirs 25 including collaterals. 26

It nevertheless gives rise to an interest greater than the usufructuary right in Roman

22
Anyangwe, supra, 39.
23
In the terminology of customary land tenure the words allocation and allotment signify different
things. The grant of land by the family head is called an allocation because it does not transfer and an
absolute title to the grantee whereas a grant by the chief is called an allotment because the title
transferred to the family is absolute.
24
See Allott, A. N. “Towards a definition of ‘absolute ownership’”, [1961] J.A.L. 99-102, 100;
Simpson, M. R. “Towards a definition of ‘absolute ownership’: II” [1961] J.A.L.145-150, 146.
25
This distinguishes the fee simple from the fee tail which descends at intestacy on special heirs,
namely, the lineal descendants of the deceased
26
See Charles Harpum et al. Megarry & Wade: The Law of Real Property, London, Sweet & Maxwell,
39.

8
law. The usufructuary right consists actually of a species of adverse possession in

which a person has the right to possess and enjoy the fruits of property belonging to

another; it is thus a burden on the title of the owner. The customary grantee is a

member of the family and so the grant is not a burden on the family’s title, and while

the usufructuary right ends in the life time of the person, a customary title is virtually

perpetual. 27

It is this perpetuity which gives rise to questions of succession as to whether

the interest of the member could upon his death descend in the same way as a fee

simple. The position is that such interests last for the life time of the grantee and could

continue in his lineage as long as there are heirs to succeed him, subject, of course to

good behaviour. 28 Such lands cannot be disposed of by will or gift inter vivos and in

the absence of descendants, revert to the family as the contingent title-holder, to be

reallocated among the other members. A non-family member is therefore not qualified

to succeed to such lands; hence the exclusion of widows, but the rationale for

excluding female relatives remains elusive.

The next premise is that land could be absolutely owned by an individual,

because acquired with his personal resources. Not even the customary law prevents a

person, whether male or female from acquiring land through purchase and gifts and

these, as we will see could be held under customary or registered titles and are the

subject matter of succession by the persons identified by the law as beneficiaries. The

problem, however, is in the tendency to presume that even these lands belong to the

family subject to the same limitation; hence the non-beneficiaries are held not to be

entitled to their succession.

27
“Virtually,” because in certain cases a family member might be lawfully dispossessed of his interest
in land, as for example where he is guilty of some gross misconduct entailing the forfeiture thereof.
28
Anyangwe, supra. 34. This has hardly been used to deprive a member or his beneficiaries of land,
except in the case of manslaughter, which we could not find any evidence.

9
 The weaknesses of the law of succession inhibit harmony in the family. Rather

than a divisive factor the law of succession should be promoting family stability by

balancing the conflicting interests of its members, for where there is stability in the

family as the smallest unit of the community there would be stability in the

community at large.

The resultant poverty or destitution of the affected persons breeds ill-feeling

against the society at large, when such persons are unable to find something

honourable to do in order to maintain themselves and their dependants, crime

becomes the final option. The women are exposed to trafficking and take to such

hazardous sexual practices as prostitution. Like levirate marriages to which widows

are constrained, prostitution exposes women more than men to the deadly HIV/AIDS

epidemic 29 and other sexually transmitted deceases. When they are contaminated the

disease is spread to other men, ensuring the continuity of the spiral of destitute

women and children. Hence not only does the customary law of succession subject the

woman to a life of abject poverty, it might also prove fatal.

The exclusionary nature of the rules of succession could also be a cause for

underdevelopment. There is no doubt that women are the most affected by the

exclusion. Customary law expressly excludes them and they could constitute a remote

category excluded on the basis of the principle of precedence enshrined by the

received systems. Women alone constitute 52 percent of the population of Cameroon

and play a very crucial role in the development of society. Yet the law of succession

prevents them from gaining equal access to land, being the main factor of production.

The custom inhibits sustainable development as a greater majority of the population is

denied the possibility of involvement in the production process as will be shown.

29
Statistics show that five hundred thousand people are living with HIV/AIDS in Cameroon, 60% of
these are women between 15-49 years. Source: UNAIDS Report on Global Aids Epidemic July 2008,
at http//www.globalhealthreporting.org/countries/cameroon.asp

10
Women only have the right of use over land occupied by them under the customary

law of succession, meaning that they can only cultivate subsistence seasonal crops,

and not cash crops such as cocoa, coffee, rubber and oil palm. 30

As a check to all of these, the law, we submit, ought, (1) to ensure the

continuity of the obligation of maintenance which the deceased had towards his

nuclear family without distinction of gender; (2) to ensure the maintenance of the

vulnerable members of the immediate family notably the parents of the deceased and

in default the members of the extended family among whom the grandparents and

their descendants; (3) to limit the period of administration by making distribution

mandatory ; and (4) to lay down clear rules of distribution.

1.2: THE RESEARCH METHODOLGY

In-so-far as we are concerned with the study of the effectiveness of the

current law of succession in Cameroon, we have to rely on primary and textual

material, with the latter serving mainly to validate our findings based on the former.

The primary sources consist of material gathered from field work and the

interpretation of legislation and precedent. The field work was conducted by the

author and some postgraduate students at the University of Dschang in Cameroon on

selected tribes known to be representative of the different systems of customary

succession in Cameroon. The research was based on a questionnaire agreed upon in

class and administered to officials of the customary courts, traditional authorities and

elites from the selected tribes. The findings were presented and discussed in classes

which always included judges of the high courts, court registrars and sometimes even

traditional chiefs, all of whom are abreast with matters of customary succession.

30
See Jude Awuba and Gloria Macassa “HIV/AIDS in Cameroon: Rising gender issues in policy-
making matters,” at http://www.bioline.org.br/pdf?jh07018

11
 We relied on law reports to find relevant decided cases and statutes. This was

easy for English law as the Harding Law Library is stocked with all of these. What we

could not find in that rich library had to be sought elsewhere and so we also spent

time at the libraries of the School of Oriental and African Studies, and the Institute for

Advanced Legal Studies, in the University of London. The near absence of law

reporting in Cameroon rendered the task difficult when it came to local decisions and

statutes. We had to visit the law chambers and courts and in this way were able to

have direct access to case files in the various courts visited. Priority was given to the

appellate jurisdictions whose decisions could be said to represent the government’s

position on the issue of succession. 31

The confirmation of the findings on customary law was sought from notable

publications on the subject and other Ph. D research. Our ambition to work

exclusively on Cameroonian material was thwarted by the dearth of local literature.

Most of the available local literature proved inadequate because it is by Francophone

Cameroonians who nevertheless purport to be writing about the whole country. To

make up for the deficiency we had, for Anglophone Cameroon, to resort to relevant

literature from other countries with a cultural or colonial affinity with that part of the

country. Hence we drew extensively from Nigerian and Ghanaian and English

sources. Not only do Ghana and Nigeria have cultural similarities with Cameroon,

they also share a common English colonial heritage with Anglophone Cameroon. The

enabling laws for the administration of the English and customary laws in

Anglophone Cameroon were first enacted for the Gold Coast colony (Ghana) in 1876.

Validation was also sought from scholarly works such as the most-quoted Ph. D thesis

of John Anthony Howard on “The Customary Law of Marriage and Succession

31
This may sound absurd but truly there is no independent judiciary in Cameroon and so on
controversial issues such as succession by women, Judges endeavour to toe the government’s line.

12
among the Kom Of Cameroon”, 32 and the London University sponsored research by

Rubin entitled “Matrimonial Law Among the Bali of West Cameroon: A

Restatement.” 33

What is presented in this work as representing the customs in question is

therefore the result of a consensus of all of these authorities and not merely the

opinion of this researcher.

Validation for the English law as applied in Cameroon was sought through

Standard English textbooks on the law of succession and Nigerian and Ghanaian

sources as far as the local application of English law is concerned. Our findings

turned out to be in conformity with these sources.

Material on French law was drawn from standard text books by French authors

but anything that concerns customary law and the application of French law in

Francophone Cameroon comes mainly from local sources. These too agree with our

findings in the field.

The thesis is divided into eight chapters. Chapter one, the introductory chapter

is divided into a number of sections. Section one above discusses the concerns that

motivated the research and summarises the role of land tenure in the current law.

Section two treats the research methodology. Section three presents Cameroon in

terms of the name, location, people and organisation of the customary communities.

Section four explores the different sources of the law of succession and the chapter

ends with a section on the definition of some important concepts used in the work.

Chapter two treats intestacy in English law. It starts by giving the different sources of

English intestacy law as applied in Cameroon. It also considers the contemporary

application of these sources, noting the controversy over the application of post 1900

32
The University of London, 1972.
33
(1970) 14 JAL, 69-97.

13
English statutory laws therein. The substantive provisions of the sources are then

examined in order to ascertain the extent to which they strike a balance between the

conflicting interests of persons who depended on the deceased. Chapter three

considers intestacy in French law, starting with the applicable laws, their

contemporary application and an analysis of the substantive rules. Chapter four

examines intestacy in customary law. This chapter is the longest because unlike the

received laws different systems of succession are applicable. This means providing an

account of their respective rules and differences within the systems, their application,

and analysing their various substantive rules. Chapter five is given to considering the

conflict of laws in succession matters. Cameroon is a mosaic of laws where not only

the received laws vie for space with customary law, the different systems of the

customary law of succession also vie for space inter se. The situation is rendered even

more complex by the fact that the laws are applied by parallel systems of modern and

customary law courts. The chapter therefore explains how the various jurisdictions

grapple with problems where different personal laws are in conflict. Chapters six and

seven are a result of the realisation that the existing intestacy rules do not provide the

balance necessary to rid the country of the social problems enunciated above. Hence

chapter six entitled “Moving forward- Private ordering through the making of wills”

is concerned with the extent to which wills could be relied upon to ensure the balance

which our current intestacy rules fail to provide. Chapter seven is entitled “Moving

forward-Intestacy under the Family Code”. It examines the bill on the family code

with respect to its scope and status and the extent to which its provisions on intestacy

constitute an improvement on the existing rules. It should enable the making of

proposals aimed at preventing the eventual code from falling foul of the matters

which have so far rendered the current law of succession ineffective as a means of

14
ensuring social harmony. It would keep the legislature on guard against adopting a

law which merely adopts the position of some existing received laws which are at

variance with local realities. The thesis ends with chapter eight which consists of a

general conclusion and proposals for reform.

1.3: THE NAME, LOCATION AND PEOPLE OF CAMEROON.

The name Cameroon derives from the Portuguese and Spanish word for

prawns. Portuguese explorers were the first Europeans who in 1472 dared to venture

out of the Atlantic Ocean, to explore the estuary of the river leading into the territory

today called Cameroon. Marvelled by the variety of prawns in the river, they decided

to name it Rio dos Camarões meaning the River of Prawns. Spanish explorers later

called it Rio Camerones for the same reason. At the time the territory was composed

of autonomous Sultanates, Lamidates and Fondoms or Paramount chiefdoms.

The name therefore signified a river and not the territory. This changed with

the advent of colonialism, with the name taken instead to signify the territory. The

Germans, the first colonisers of the territory called it Kamerun and the English and

French coming after the First World War called it Cameroon and Cameroun

respectively.

Cameroon is located on the West Coast of Africa, with Nigeria to the west,

Chad and Central African Republic to the east, and Congo (Brazzaville), Gabon and

Equatorial Guinea to the south. It is located slightly north of the equator and occupies

a surface area of 475440 square kilometres. Located between two great river basins,

namely the Niger and Congo basins the country shares the physical and cultural

characteristics of both. 34

34
John Mukum Mbaku, Culture and Customs of Cameroon, Westport, Connecticut, Greenwood Press,
2005, p.1

15
 The population is a result of several hundred years of migratory movements

into the country 35 . Because of its geographical position Cameroon embraces several

of the cultural groups according to which African peoples have been classed. 36 Thus

the coastal peoples include units of Guinea Coastal, Western Atlantic or Nigritic

groups. There are also peoples allied to those of the Congo, or with the Bantu or

Bantoid languages. Those in the north relate to the Chadic Western Sudan or Hamitic

blocs. In the center there are Bantu Bantoid or semi-Bantu groups and pigmies, 37

hence the thesis of Cameroon as Africa in miniature, advanced by IMBERT: 38 “The

centre of gravity of the African continent- Cameroon can be considered as an Africa

in miniature and its study is beneficial for whoever wishes to be initiated into the

problems of Africa.” 39

A similar mixture is present within the country itself due to vast movements of

population from one part of the country to the other. Much of this migration,

especially from the Western Highlands of the country towards the coast is occasioned

by population pressure as a result of a high birth rate not matched by land resources.

The shortage of land is exacerbated by the inheritance system which favours a single

male heir for family land, meaning that the other male children are left with no land

resources until they can acquire some from the chief believed to be the “titular owner”

of the land. 40 Large colonies of Ewondos and Bassas from the centre of the country

35
Tambi Eyongetah and Robert Brain, A History of Cameroon, London, Longman, 1974, pp.22-23
36
Ibid, pp. 19-20
37
Neville Rubin, Cameroon. An African Federation, London, Pall Mall Press, 1971, p. 9
38
IMBERT, Jean, Le Cameroun, Que Sais-je?, Presse Universitatres de France, 3rd ed. 1982, p. 3
39
“Centre de gravité du continent noir–, le Cameroon peut être considéré come une Afrique en
réduction et son étude est particulièrement bénéfique pour qui veut s’initier aux problèmes Africains.”
40
Tambi Eyongetah and Robert Brain, A History of Cameroon, London, Longman, 1974, pp.44-45;
Neville Rubin, Cameroon. An African Federation, London, Pall Mall Press, 1971, pp. 16-17.

16
who escaped from the system of forced labour pursued by the French colonial

administration 41 can be found in the Anglophone coast.

The result is extensive group mixing that has rendered all attempts to classify

and demarcate the ethnic groups geographically quite difficult. And above all it has

provided a fertile ground for conflict of laws in Cameroon.

1.4: THE SOCIAL AND POLITICAL ORGANISATION OF THE

TRADITIONAL SOCIETIES.

The organizational structure of an African society affects status of the

members therein. Men make the laws and thus women are the most affected, because

the structure at all the levels is dominated by men. But the strength of the laws

depends very much on the degree of attachment of the community to them, hence the

absence of a uniform pattern in the custom depriving women of succession rights for

instance.

Although Cameroonian communities hardly possess the standard

characteristics of highly centralized and acephalous 42 communities advanced by some

43
authorities, they could be classified under either on the basis of research showing

that the identified types of communities could take a variety of forms. 44

In highly centralised societies, found in the Western Highlands of Cameroon

and in the North, there is a government in the nature of a centralised authority,

administrative machinery and judicial institutions. They are organised into Sultanates,

Lamidates and Fondoms or Paramount chiefdoms. 45 The leader wields executive,

41
See Carlson Anyangwe, The Cameroonian judicial System, Yaoundé, CEPER, 1987. pp. 51-52.
42
Anyangwe, Carlson, “Land Tenure and Interests in Land in Cameroonian Indigenous Law” (1984)
Cameroon Law Review, 29-41 32.
43
Fortes (M) and Evans-Pritchard (E.E.) African Political Systems, London, Oxford University Press,
1955, p.5.
44
See Elias, T.O. The Nature of African Customary Law, Manchester University Press, 1956, p. 14.
45
These could consist of towns that were never subjugated or could cover more villages headed by
sub-chiefs who depend on, and pay allegiance to some paramount chief, for example, as a result of

17
legislative and judicial power. 46 He designates the officials of these organs and his

subordinates. 47

He is not only a temporal leader; but also the spiritual leader, chief priest; a

representative of the ancestors who ensures the liaison between the living and the

dead believed to be masters of the land. 48 The chief’s authority is global covering

persons, goods and land. Land is sacred; it is the medium of communicating with the

dead, 49 one reason why custom frowns on alienation thereof to strangers. Members

desirous of land must ask for and obtain it from the paramount chief. 50 This chief’s

control over all the land is sometimes erroneously described as a right of ownership. 51

The coastal communities possess characteristics of acephalous societies. They

have no leaders with an all-embracing authority over persons and property. Nor do

they have strong centralized authorities, administrative machineries, and constituted

judicial institutions. 52 What obtains is a segmentary pattern of traditional political

organisation based upon a loose-knit and non-hierarchical clan structure. 53

Political power is exercised by the local chief priest or council of elders, with

specific roles assigned to each member of the council. Authority is in the person of a

conquest or protection provided in time of danger. Tambi Eyongetah and Robert Brain, A History of
Cameroon, p.44.
46
See Fisiy, Cyprian F., Power and Privilege in Administration of Law: Land Reforms and Social
Differentiation in Cameroon, Leiden, African Studies Centre, 1992, pp. 212-213.
47
C.G. Weeramanting, Justice Without Frontiers: Furthering human Rights, London, Kluwer Law
International, 1997, p. 14.
48
Gluckman, Max, “The kingdom of the Zulu of South Africa,” Fortes, African Political Systems, pp.
30-31; Bentsi-Enchill, Kwamena, Ghana Land Law, London, Sweet and Maxwell, 1964, p.46, note 5.
49
Fisiy, Cyprian F., Power and Privilege in Administration of Law: Land Reforms and Social
Differentiation in Cameroon, Leiden, African Studies Centre, 1992, p.221.
50
See Fisiy, Cyprian F., Power and Privilege in Administration of Law: Land Reforms and Social
Differentiation in Cameroon, Leiden, African Studies Centre, 1992, p.208; Anyangwe, Carlson, “Land
Tenure and interests in land in Cameroonian indigenous law,” (1984) Cameroon Law Review, pp. 29-
41, 38; Max Gluckman’s account of land holding in one highly centralised society and one acephalous
society in, The Ideas in Barotse Jurisprudence, Yale University Press, 1965, pp.78-81.
51
Presbyterian Church Moderator v. D.C. Johnny (1974) BCA/27/74 (unreported).
52
See Fortes (M) and Evans-Pritchard (E.E.) African Political Systems, London, Oxford University
Press, 1955, p.5.
53
Neville Rubin, Cameroon: An African Federation, p. 18.

18
ritual functionary and not in the chief who is a political leader. 54 Thus governance is

shared between the spiritual leaders and political heads of the group drawn from

different categories of the population. None of these alone can exercise absolute

authority over the population. They have distinct but complementary functions which

require sanction of the community. 55

Political power does not involve rights over a given territory and its

inhabitants. Membership of these communities and the rights and duties that go with it

are acquired as a rule through genealogical ties as against political allegiance to the

sovereign. The chief only has control over un-appropriated lands which he manages

in-council. Each minor segment (family) holds and enjoys land in its individual name.

Chief Endeley of the coastal tribe of Bakweri said as expert witness in Wokoko v.

Molyko 56 that members of the tribe could without prior authorisation appropriate

parcels of the communal lands.

It is the responsibility of the family head in acephalous communities and that

of the chief in highly centralised communities acting through the family heads to keep

property in the family by preventing its alienation to strangers. 57 Even the Western

legal systems in their nascent stages prohibited such alienation, said to diminish the

family patrimony, at a time when land was the principal source of wealth.

Here lies the root of the restrictions which customary law places on access to

land, and not only have the customary law courts made it a vocation to ensure this, the

spill-over effect is equally felt in the English and French laws applicable in

54
T.O Elias, The nature of African Customary Law, p.14.
55
There will, of course be persons assuming the title of paramount chiefs because of their political
influence or wealth, or because as a result of government policy they are classified as first class chiefs,
which to them means taking the title, even though lacking in the actual traditional attributes of the
office.
56
(1938) 14 N.L.R. 41, 43
57
See Fisiy, Cyprian F., Power and Privilege in Administration of Law: Land Reforms and Social
Differentiation in Cameroon, Leiden, African Studies Centre, 1992, pp.128-129

19
Cameroon. This is true of both the rural and urban communities. However the rural

population is generally indifferent to these restrictions. Ignorance is one of the reasons

but the fact is that members of the rural populations, notably the women view land

more as means of subsistence than economic empowerment. The attitude is different

in the urban areas where land is viewed more in terms of economic development than

subsistence. Most changes in the law therefore occur in the urban than in the rural

areas, be it in the customary or modern law courts.

Modernism has also reduced the powers of chiefs over land through government

legislation. As will be shown later most of the land which used to be the common

property of the community and placed under the authority of the chief is today either

national lands or state lands. The powers of chiefs to restrict access to such lands are

thus limited as the restrictions can only operate effectively within the domain of

family land. Any person with sufficient resources could acquire land from these new

pools of land which are placed under the authority of administrative officials rather

than the chiefs. Even if the long arms of family land have eventually to stretch to

lands thus acquired, what is clear is that they constitute private property and could be

disposed of by their acquirers, subject only the conditions under which they are

acquired.

1.5: AN OVERVIEW OF THE DIFFERENT SOURCES OF SUCCESSION

LAW IN CAMEROON.

A study of the sources of law generally is necessitated by the understanding

that rules of law do not exist in a vacuum and must originate from somewhere.

Cameroon’s law of succession is variegated due to the multifarious nature of its

sources, which are the English, French and customary laws.

20
 1.5.1: ENGLISH LAW
The reception of English law in Anglophone Cameroon is a result of the First

World War, when a combined British and French military force defeated Germany,

the country’s colonial master in 1916, and partitioned the territory between them. This

was confirmed by the League of Nations in 1922, when the territory was formally

handed to them under the mandate system.

The status quo was maintained after the Second World War in 1945. The

preamble of the Nigeria (Protectorate and Cameroons) Order in Council 1946,

replacing the Cameroons under British Mandate Order in Council 1923, as amended

by the Cameroons under British Mandate Order 1932, provided:

“And whereas the intention has been expressed that, notwithstanding the
termination of the existence of the League of Nations, the Cameroons shall
continue to be administered in accordance with the obligations of the said
Mandate until other arrangements have been agreed between the Mandatory
Power and the United Nations...”

The “obligations of the said Mandate” were set out in article 9 of the League of

Nations Mandate Agreement drawn up for Cameroon by Great Britain and France and

approved by the League of Nations in 1922:

“The Mandatory shall have full powers of Administration and Legislation

in the area subject to the mandate. The area shall be administered in
accordance with the laws of the Mandatory as an integral part of His
territory… The Mandatory shall therefore be at liberty to apply His laws
to the territory under the Mandate subject to the modifications required by
local conditions…, and to constitute the territory into customs, fiscal or
administrative union or federation with adjacent territories under his
sovereignty or control…” 58

58
My emphasis. Source, Neville Rubin, Cameroon. An African Federation, London, Pall Mall Press,
1971, p. 202-203. This was adopted by the United Nations, as embodied in article 5 and 4 of the 1945
British and French Trusteeship Agreements, respectively(same source). Article 5 of the British

21
 In application of the second arm of that article British Cameroons 59 was

attached to, and administered as an integral part of Nigeria. The laws in force in

Nigeria were thus extended thereto by Proclamation No.1 of 1916, 60 pursuant to the

Foreign Jurisdiction Act of 1890 rendering English laws applicable in foreign

territories. Until the independence of Nigeria in 1961, the name “Nigeria” included

Cameroons under British mandate and trusteeship. Section 1(1) of the Nigeria Letters

Patent 1946, amending the Letters Patent of 1922 and 1935 defined “Nigeria” as “the

colony [Lagos], the protectorate [the rest of Nigeria] and the Cameroons [under

British mandate]”. 61

The English law extended to Anglophone Cameroon included laws enacted in

Nigeria. The two territories shared the same court system and laws until independence

in 1961, and to this day pre-1961 Nigerian statutes 62 continue to be received. 63 Prior to

independence the Nigerian constitutional reforms of 1954 had resulted in the

establishment of a High Court for Southern Cameroon, through the Southern

Cameroon High Court Law 1955. This marked the beginning of the autonomous

reception of English law in that part of the country and this is pursuant to section 11

which stipulates:

Trusteeship Agreement read: “For the above-mentioned purposes of this agreement, as may be
necessary the administering authority: (a) Shall have full powers of administration and jurisdiction in
the territory and shall administer it in accordance with the Authority’s own laws as an integral part of
his territory with such modification as may be require by local conditions…” Ibid, 211.
59
The plural form is explained by the fact that Cameroon under British mandate and trusteeship was
divided into Southern and Northern Cameroon, with Southern Cameroon attached to Southern Nigeria
and Northern Cameroon attached to Northern Nigeria.
60
The Proclamation was made after the partition of the territory on March 4, 1916, but came into force
retrospectively on January 24th 1916.
61
See also section 1(1) of the Nigeria (Protectorate and Cameroon) Order in Council, 1946, and section
3B of the Interpretation Ordinance, cap. 94 of the 1948 Laws
62
So far the only Nigerian statute that has been repealed by local legislation is the Land and Native
Rights Ordinance of 1 January 1948, repealed by art. 22 of Ordinance No. 74/1 of 6 July 1974, on Land
Tenure.
63
See section 6(1) of the Nigeria (Protectorate and Cameroons) Order in Council, 1946.

22
 “Subject to the provisions of any written law and in particular of this
section and of sections, 10, 15, and 22 of this law: -

a) the common law;

b) the doctrines of equity; and
c) the statutes of general application which were in force in England on
the 1st day of January, 1900 64 , shall in so far as they relate to any matter
with respect to which the legislature of the Southern Cameroons is for
the time being competent to make laws, be in force within the
jurisdiction of the court”.

The expression “common law” stands for the English rules of law developed

from time immemorial 65 by the courts of law, 66 as against common law as a system

of law, the distinguishing feature of which is the doctrine of binding precedent. If it

stood for the legal system the inclusion of the “doctrines of equity” would have been

superfluous, and it would have meant that the laws of any common law jurisdiction

could be applicable. The “doctrines of equity” mean the technical equity composed

of equitable maxims, equitable interests, and equitable remedies evolved in the Court

of Chancery to cure the injustices and shortcomings of the common law.

What constitutes “statutes of general application” has not been equally easy

to establish. Much seems to depend on the merits of the particular statute which is

sought to be enforced, and the acceptance of a statute as being of general application

in one territory does not necessarily mean that it will be accepted as such in

another. 67

64
The limitation will be considered in detail under intestacy in English law.
65
The reckoning of the common law starts from the year 1189, being the year when the earliest rolls of
the King’s Bench became available.
66
Until the Judicature Acts, the rules were evolved exclusively by the Court of King’s Bench, Court of
Common Pleas, and the Court of Exchequer.
67
See Daniels, W.C. Ekow, The Common Law in West Africa, London, Butterworths, 1964, 319.

23
 The generality of a statute is viewed in terms of the subject matter and the

geographical area of its application. A statute would not be of general application if

its application is limited to certain persons or categories of persons. In Young v.

Abina, 68 the test for the generality of application to all persons in England was

established. The current test as established by Osborne C.J. in Att.-Gen. v. John Holt

& Co 69 is:

(i) By what courts is the statute applied in England?

(ii) To what classes of the community in England does the Act apply?

A statute is thus not of general application if its application is limited to a certain

category of persons, or its administration is exclusively by specific courts.

It is clear from the foregoing that the English law applicable in Anglophone

Cameroon includes the three components of English law, to wit the common law,

doctrines of equity and statutes of general application and pre-independence Nigerian

statutes.

1.5.2: FRENCH LAW

The explanation on the historical background to reception of English law in

Anglophone Cameroon is equally relevant for the reception of French law in

Francophone Cameroon.

The French laws received in Francophone Cameroon are French derived and

French laws. By French laws is meant laws imported directly from France, and by

French-derived laws is meant laws made by French colonial administrators for the

former French Cameroon and those brought in from other French possessions.

68
(1940) 6 W A.C.A.
69
(1910) 2 N.L.R. 1.

24
 The enabling instruments for the introduction of French and French derived

laws in Francophone Cameroon were the Decrees, signed on 16th April, and 22nd May

1924 respectively, made pursuant to authority given under article 9 of the League of
70
Nations Mandate Agreement of 1922 quoted above. The Decree of 16 April enacted

as follows:

“The Commissioner of the Republic shall promulgate statutes,

decrees, orders and regulations made by the Government of the
mandatory state, as well as orders and regulations made by the
Government of the mandated territory.

Statutes, Decrees and regulations in force in France shall not be

rendered executory in Cameroon except by Decrees of the French
Head of State” 71

A second Decree enacted on May 22 elaborated on the previous and rendered

executory in Cameroon all the statutes and Decrees promulgated in French Equatorial

Africa before the first day of January 1924. The Decree provided:

“1. Statutes and decrees promulgated in French Equatorial Africa

before the 1st day of January 1924 are hereby rendered executory in
the territory of Cameroon placed under French mandate. The
powers conferred on the Governor-General and on Lieutenant-
Governors by those instruments shall devolve on the Commissioner
of the Republic.

2. However, the provisions of the above-mentioned instruments that

shall apply are those that are not contrary to decrees specifically

70
Like Great Britain, French colonial policy in the territory did not change after the Second World
War.
71
“Le Commissaire de la République promulgue les lois, décrets, arrêtés et règlements émanent du
Gouvernement de l’Etat mandataire, ainsi que les arrêtés et règlements émanent du Gouvernement
local. Les lois, décrets et règlements en vigeur en France ne peuvent être rendu exécutoire au
Cameroun que par décret.”

25
 passed for Cameroon and to the French mandate of 20th July 1922
for Cameroon” 72

On the basis of these decrees therefore, French laws promulgated in French

Equatorial Africa before the 1st day of January 1924 became applicable in Francophone

Cameroon. Two French decrees of 28th September 1897 and 17th March 1903 had

extended French Laws already in existence in the colony of Senegal to French

Equatorial Africa. Thus all the French laws that were in force in the colony of Senegal

on the 17th of March 1903 were extended to French Cameroon by the combined effect

of the decree of 17th March 1903 and 22nd May 1924.

The content of the received French law therefore consists of:

- All French laws in force in the colony of Senegal as of 17 March 1903. This

includes any amendment, in French Equatorial Africa up to January 1924, and

in French Cameroon since January 1924. The French Civil Code governing

most succession matters in Francophone Cameroon was promulgated in the

colony of Senegal by an order of 5th November 1830.

- All statutes and decrees promulgated in French Equatorial Africa before 1st

January 1924.

- All statutes, decrees, orders, and regulations passed by the French Government

after 1st January 1924 and promulgated in French Cameroon by the local

colonial administration.

- Any statute, decree, and regulation in force in France and directly exported to

French Cameroon by a decree of the French Head of State. 73

72
“Art. 1er – Sont rendus executoires dans le territiore du Cameroun place sous le mandat de la France
les lois décrets prmulgués en Afrique Equatoriale Francaise entérieurement au 1er Janvier 1924. Les
attributions conférées par ces actes au gouverneur-général et liuetnants-gouverneurs seront dévolues au
Commissaire de la République.
Art. 2- Toutefois, ces texts ne serene applicables que dans celles de leurs dispositions qui ne sont
pas contraires aux décret pris spécialement pour le Cameroun et au mandat Francais sur le Cameroun,
du 20 Juillet 1922”.

26
 1.5.3: CUSTOMARY LAW
The term customary law as used here includes native laws and customs and

Muslim law, which thanks to the colonial policies pursued by Great Britain and

France constitute a major source for our law of succession. The English colonial

policy of indirect rule encouraged customary law as it deemed it more expedient and

beneficial to administer the colonies through the local chiefs making use of traditional

institutions. 74 The French colonial policy of assimilation on the other hand was a

complete antithesis of indirect rule. With a bloated conception of the superiority of la

civilisation Française over all others, the French had nothing but disdain for

customary law. Natives had to be purged of their customs through education and

nurtured to reason and act in accordance with the superior French civilisation.75 This

was to culminate in every native becoming a French citizen, technically referred to as

évolué or assimilé. Customary law had however to be condoned when it became clear

that French citizenship could not possibly be granted to everyone and that it would be

73
Anyangwe, the Cameroonian Judicial System, pp. 224-227.
74
In a confidential letter to the Secretary of state for Colonies, Cameron, as Governor of Tanganyika in
1925, a country which like British Cameroon was a former German colony handed to Great Britain
after the First World War, extolled the virtues of indirect rule as follow:
“…I believe that by that (indirect administration) we shall secure, as far as it is humanely possible to
foresee now, the political and social future of the natives in a manner which will afford them a
permanent share in administration of the country on lines which they themselves understand, and can
appreciate, building up at the same time a bulwark against political agitation and averting the social
chaos of which signs have already manifested themselves in other countries similarly situated. Quoted
by H. F. Morris and James S. Read, Indirect Rule and the Search for Justice, Oxford, Clarendon Press
1972, p. 3.
75
André P. Robert, “Attitude du Legislateur Français en Face du Droit Coutumier d’Afrique Noire”,
published in L’Avenir Du Droit Coutumier en Afrique, Leiden, Universitaire Pers Leiden, 1956,
pp.170-185 at 184. In fact even the colonial justice system was designed to achieve this aim. According
to Ntamark, P. Y. “ The Indigenat [system of justice for natives] deprived the masses of freedom of
speech, association and movement and also rendered them liable to severe punishment for quite minor
offences, It was a symbol of French policy designed and superbly calculated to repress the masses in
the hope that they would feel the strain and burden of this intrusive ‘code of law” and accept French
culture and institution for all their worth,” in “Constitutional Development of the Cameroons since
1914,” Ph. D. Thesis, London University, 1969, 78-79 (unpublished).

27
practically impossible to substitute existing customary institutions with French

institutions. 76

1.5.3.1: Native Law and Custom.

During one field study by this researcher and some postgraduate students

some judges argued that the custom which denies women succession rights is a mere

“practice” and not a rule of law. In other words the custom is a rule of convention and

not a rule of law. Such opinions derive from initial postulates that customary law was

not law according to the Austinian theory of law.

Austin defined law as “a rule laid down for the guidance of an intelligent

being by an intelligent being having power over him,” 77 among which he identified

the laws of God, positive laws, and metaphorical or figurative laws. Positive law

consisted of rules of positive morality and rules of positive law proper. The latter

constituted the province of jurisprudence, and are laws:

“Set by a sovereign person or sovereign body of persons, to a member or

members of the independent political society wherein that person or body
is sovereign or supreme.” 78

The notions of sovereignty and independent political society are therefore

cardinal in the existence of law.

76
Georges Hardy, as director of the Ecole Nationale de la France de L’Outre-Mer admits this
impossibility when he writes: “Notre tort principal n’est pas seulement d’avoir perdu de vue que la
moindre coutume fait partie d’un corps et qu’une réforme de détail peut ébranler toute la structure;
c’est aussi et surtout d’avoir méconnu les resources mentales et morales des populations dont nous
avions la charge; c’est d’avoir, dans notre orgueil de favorisés du destin, refusé d’admettre que leurs
institutions, tout comme les nôtres étaient les manifestations exterieures d’une conception de l’univers
et de la vie, d’une table de valeurs,… d’une philosophie,” cited by D. Boisdon in “Note sur les
conflits entre le statut civil Français et les statut civils coutumiers dans le pays D’Outre-Mer Dependant
de la République Française” published in L’Avenir Du Droit Coutumier en Afrique, Leiden,
Universitaire Pers Leiden, 1956, pp. 130-139 at 134.
77
Campbell, Robert, Austin on Jurisprudence Vol. I, London, John Murray, 1879, p.88.
78
Alternatively “it is set by a monarch, or sovereign number, to a person or persons in a state of
subjection to its author.”

28
 Austin’s sovereign is habitually obeyed and habitually obeys no one else. An

independent political society is that with a considerable and diversified population in

which the inhabitants pay allegiance to no one else but their sovereign. 79 Inherent in

the definition is the assumption that law can exist only in a society possessing the

attributes of a modern state, namely, population, territory and government having

effective law enforcement machinery. As an emanation of a political superior, law is

“a command which obliges a person or persons to a course of conduct.” 80

The other types of societies referred to as “natural societies,” 81 being societies

“consisting of persons not in a state of subjection” 82 do not have laws as such. Law in

these societies is nothing but customary law, which according to Austin consists

merely of rules of positive morality “set and endorsed by…the opinions or sentiments
83
held or felt by an indeterminate body of men in regard of human conduct,” and

which only become law proper after legislative or judicial sanction. 84

Elias 85 and Gonidec 86 argue that highly centralised pre-colonial African

societies had laws in Austin’s sense. This argument falls to pieces, given that, the real

question is not whether there existed strong central governments, but whether the

rulers were sovereign in the sense that they were answerable to no one else and that

the people were completely subjected to him. 87 Such a situation would hardly exist in

traditional African societies. In Cameroon, even the head of a highly centralised

society works with a council of elders, which in the Bamileke tribes is a known as a

79
Ibid. 237.
80
Hart, H.L.A., John Austin: The province of Jurisprudence Determined and the uses and study of
Jurisprudence, London, Weidenfeld and Nicholson, p. 1968, 24.
81
Ibid. 237-240.
82
ibid. 237.
83
Ibid. 89.
84
Ibid. 204.
85
Elias, T.O. The Nature of African Customary Law, Manchester University Press, 1956, p. 13.
86
Gonidec, P-F, Les Droits Africains: Evolution et Sources, Paris, Librairie Générale de Droit et de
Jurisprudence, 1976, p.7.
87
Ibid, 237-238.

29
“Council of Nine Wiseman” 88 with a mission to curb any excesses of the chief, 89 and

always the population owes allegiance not to him directly but to their sub-chiefs.

But to conclude that customary law is not law would entail the abrogation of

rules that regulated life prior to the advent of the modern state and render null and

void all the decisions taken under it. Carter, therefore, writes that “custom, therefore,

is the only law we discover at the beginning of society or of society when first

exposed to our observation.” 90 Savigny defends customary law as constituting the

external manifestation of the volksgeist or the common consciousness of the people. 91

He suggests the independent existence of customary law called the “political

element” of law which continues to be shaped and moulded by the common

consciousness of the people. And the “technical element” consisting of codified law,

which is the final stage in the development of the law or an indication that the

common consciousness of the people has attained its ultimate or acceptable stage of

evolution on that particular point. 92 The volksgeist is a variant of the description of

customary law as “a mirror of accepted usage,” 93 both of which consider that

customary law must be part of the legal system to allow for the necessary evolution of

the law, before legislative intervention.

Gonidec qualifies law in the primitive society as pré- Droit and law in the
94
modern state as Droit proprement dit, an indication first, that customary law is law,

and second, that with the advent of the modern state customary law has to function

88
“Le Conseil de neuf notables.”
89
“L’Organisation Sociale chez les Bamilekes” htt://www.bamileke.com/newfolder/org_sociale.htm,
consulted on 01-04-2007.
90
Carter, James Coolidge, Law: Its Growth and Function, London, G. P. Putman’s Sons, 1907, 19.
91
Stone, Julius, The Province and Function of Law, Sydney, Associated General Publications, 1946,
431.
92
Stone, Julius, The Province and Function of Law, 432-434.
93
Owotoyin v. Onotosho (1961)1 All N.L.R. 304, 309, per Bairamian F.J.
94
Gonidec, P-F, Les Droits Africains: Evolution et Sources, Paris, Librairie Générale de Droit et de
Jurisprudence, 1976, p.6.

30
within the state law enforcement machinery. 95 This alone would provide it with the

necessary binding authority vital for any law96 and also bring it in line with the

modern conceptions of contemporary jurisprudence, 97 the essentials of which are the

predictability of court decisions whenever a rule of law is in issue 98 and regularity. 99

That customary law is recognised as law in Cameroon is evident in the

wording of section 27 of the Southern Cameroon High Court Law 1955, authorising

the Courts to “observe” and “enforce the observance” of customary law in terms

which recognise that customary law has a legal validity independent of judicial or

legislative intervention. 100 This same quality was recognised in the customary law by

the French colonial administration which in decrees of 1921 and 1927 empowered the

courts to apply customary law per se in certain matters between natives. 101

Elias defines customary law as “the body of rules which are recognised as

obligatory by its members.” 102 Gluckman defines it as: “A set of rules accepted by all

normal members of the society as defining right and reasonable ways in which

persons ought to behave in relation to each other and to things, including ways of

obtaining protection for one’s rights” 103 Both definitions highlight the element of

consent, a point emphasised by the Privy Council in Eshugbayi Eleko v. Government

of Nigeria: 104 “It is the assent of the assent of the native community that gives a

95
See also Allott, Antony, Essays in African Law: With special reference to the law of Ghana,
London, Butterworth, 1960, pp.13-14.
96
Hoebel, Adamson, The law of Primitive Man, Harvard University Press, 1954, p. 26.
97
Hoebel, Adamson, The law of Primitive Man, Harvard University Press, 1954, p.22.
98
Cardozo, Benjamin N., The Growth of the Law, London, Humphrey Milford, 1934, 52.
99
Hoebel, supra, p. 28.
100
See Woodman, Gordon R., “Legal Pluralism and the search for Justice” [1996] J.A.L., pp.152-167.
158
101
See Youego, Christine, “Sources et Evolution du Droit des Successions au Cameroon” Doctoral
thesis, University of Paris II, 1994.
102
Elias, T. O., The Nature of African Customary Law, Manchester University Press 1956, p. 55
103
The Judicial Process among the Barotse of Northern Rhodesia, Manchester University Press, 1955,
p. xv.
104
[1931] A.C. 662.

31
custom its validity, and, therefore, barbarous or mild, it must be shown to be

recognised by the native community whose conduct it is supposed to regulate.”

Gluckman sets himself apart by limiting the consent to “normal members,” 105

meaning that consent does not need to be unanimous.

Section 2 of the Customary Courts Ordinance, cap. 142 of the 1948 Laws of

Nigeria, as amended by the Adaptation of Existing Laws Order, 1963 defines

customary law as:

“ a rule or body of rules regulating rights and imposing correlative duties,

being a rule or body of rules which obtains and is fortified by established
usage and which is appropriate and applicable to any particular cause,
matter, dispute, issue or question.”

This definition complements those advanced by textbook writers by including

the phrase “fortified by established usage”. It means that rules of customary law must,

in addition to the other factors, be of some antiquity. In English law the reckoning of

time is from 1189, based on the existence of royal court rolls dating from that

period. 106 Such a limit is inappropriate in customary law, firstly because of the

absence of written records form which the immemoriality of a custom could be

reckoned, and secondly because customary law has not yet reached a satisfactory state

105
The term “normal members” cannot be taken as a variant of the “reasonable man” or even the
“right-thinking members of the society”, because this might be giving it too wide an interpretation.
The “normal members” could only refer to those members with an adequate knowledge of the native
law and customs of the community in question. They are those persons whose evidence on particular
points of customary law would be admissible in a court of law. This excludes members without such
knowledge and strangers, who nevertheless know or are presumed to know the rules and are bound
by them. Lord Lugard also employed the term “competent spokesmen”, when he wrote that “[a]
custom must be admitted as being such [law] by the community and its competent spokesmen” (cited
by Anderson, J.N.D., Islamic Law in Africa, and P.4). Competent spokespersons are the mouthpiece
of the normal members, in the sense that they simply enunciate what is held to be custom by the
normal members, whether or not they believe in the custom themselves. Spokespersons are
designated not because of their knowledge of the customs and practices of the community but
because of some other quality, such as oratory or the ability to communicate in the English language.
It is submitted for these reasons, that the spokesperson cannot be dependable representatives of the
customary laws of their communities.

106
See Lord Blackburn in Dalton v. Angus (1880-81) 6 A.C. 740, 811.

32
in its evolution to impose such a limitation. In Lewis v Bankole, 107 Speed, Ag. C.J.

said that “…the native law and custom which the court is empowered or directed to

observe must…be existing native law or custom and not the native law or custom of

ancient times.” 108 Hence it is the current state in the evolution of a rule of customary

law that must be applied.

The Roman doctrine of opinio necessitatis adds another condition to the

definition, for it argues that consent alone cannot transform custom into law since the

rules of convention also derive legitimacy from the community’s consent. For a

custom to be law therefore the consent needs to be backed by a general conviction

that a rule is observed because it is law. 109 When a custom assumes the force of law

and is not repugnant to natural justice, equity and good conscience it is enforced by

the courts, as against rules of convention which though supported by consent are

inferior and lack the binding force of law. Professor Griffith articulates the distinction

between rules of law and rules of convention: “These domains exist in hierarchical

relationship to one another, so that the legal rules are not only set apart from social

rules, but acquire greater authority than and precedence over them. Law according to

this model is removed from the domain of social life and represents an autonomous

field with immunity from the kind of considerations that permeate every day

existence. Through its autonomy and immunity from ordinary social processes,

reinforced by the creation of specialist sources, institutions and personnel, law claims

107
(1908) 1 N.L.R. 81, 83,
108
See also Golightly v. Ashrifi (1955) 14 W.A.C.A. 676 at 684.
109
See generally, Alan Watson, “An Approach to Customary Law” in Alison Dundes Renteln and
Alan Dundes, Folk Law; Essays in the theory and practice if lex non-scripta, Vol. 1, the University of
Wisconsin Press, 1995, pp. 141- 156; Park, The Sources of Nigerian Law, p. 68.

33
to invoke neutrality and equality in its dealings with individuals, unlike the ordinary

social world from which law studiously maintains its distance.” 110

The custom that a woman cannot be successor has been enforced by the courts

from time immemorial to qualify as a rule of law rather than a rule of convention as

argued by “our” Judge. Rules of convention must however not be confused with rules

of law that are rejected by the courts on grounds of repugnancy or public policy.

Recognised rules of customary law still retain that quality as far as the population is

concerned and this probably leads Woodman to describe them as the customary law

of the sociologist, 111 to distinguish them from the customary law of the courts.

Discarded rules of customary law are enforced by non-judicial instances. 112

As an instrument of continuity the law of succession always follows wherever

there are human beings. In the Holy Bible the conflict between Esau and Jacob 113 was

a result of succession, and in Numbers chapter 27 Moses is shown laying down the

rules of inheritance for the children of Israel. Pre-colonial Cameroonian societies had

rules of succession, the enforcement of which were ensured by the family council or

the chief-in-council, depending on the nature of the dispute.114

110
Griffith, Anne M.O., In the Shadow of Marriage. Gender and Justice in an African Community,
University of Chicago Press, Chicago, 1997, 17
111
Woodman, G. R, “Some realism about customary Law–The West African Experience”, Folk Law:
Essays in the theory and Practice of Lex Non Scripta, Wisconsin, University of Wisconsin Press, 1995,
95.
112
See Mikano Emmanuel Kiye, “The Importance of Customary Law in Africa: A Cameroonian case
study”, Doctoral Thesis, VRIJE UNIVERSITEIT BRUSSEL, June 2007, 85.
113
See Genesis chapter 25- 27.
114
Anyangwe, Carlson, The Cameroonian Judicial System, p. 15-16; Roger Cagan, “Contribution à
l’Histoire de la Justice au Cameroun,” ( 1966) 20 Rev. Jur. Pol. Ind. Coop. 3-18, 5.

34
 1.5.3.2: MUSLIM LAW

The Muslim religion was introduced into Northern Cameroon through

Northern Nigeria at about 1715, 115 as a result of trade contacts and the Jihads. From

the north it spread down south so that by the time German colonial administrators

penetrated the country, Muslim law was already installed in some of the areas and

controlled from Sokoto (Nigeria) the headquarters. Muslim law is a consequence of

interpreting the Koran not only as embodying religious guides but also rules of law

binding on those who profess the faith.

It applies in Anglophone Cameroon as customary law because the

Interpretation Section of the Southern Cameroon High Court Law 1955 states that

“native law and custom includes Moslem law.” In Francophone Cameroon it

maintains its identity as religious law. 116 In Dame Dada Balkissou 117 the Supreme

Court emphasised that courts must base their decisions on the customs of the parties

rather than on their religious beliefs. In some cases, however, religion and custom are

the same. 118

Muslim law derives from the Quran, Sunna, Ijma and Qiyas. The Quran and

Sunna are the primary sources. The Quran embodies the revelations of God as recited

by Prophet Mohammed. The Sunna consists of practices of the Prophet in line with

115
Dame Dada Balkissou v. Abdoul Karim Mohamed, Arrêt No. 2/L du 10 Octobre 1985, Juridis info,
No.8, 1991, p.53.
116
In the codification of some aspects of customary law, the French colonial administration
distinguished between Moslem and non-Moslem law.
117
Dame Dada Balkissou v. Abdoul Karim Mohamed Arrêt No. 2/L du 10 Octobre 1985, in Juridis
info. No.8, 1991, p.54.
118
In Baba Iyayi v. Hadja Aminatou and Hadja Bintou, Arrêt No. 083 of 32 March 2000, the Hausa
custom which was that of the parties was not different from Moslem law on the supremacy of males
over females in matters of succession. There are major differences too as exemplified in Ministere
Public c/ Pangou Bello (1996) 26 Juridis Périodique, 24, a case involving Muslims decided at first
instance by the Tribunal de Premier Degré of Kaele and then the court of Appeal of Maroua, the
custom of the deceased provides that when a man dies without an heir his estate devolves to his father
even if he left a child en ventre sa mere, contrary to Moslem law which recognises succession rights in
an embryo if it can be shown to have existed the time of the death.

35
the Quran and his verbal interpretations of its provisions. 119 The Sunna was compiled

partly in the lifetime of the Prophet and subsequently by generations of his

followers. 120

The Ijma and Qiyas are secondary sources based on human analysis of the

primary sources. The Ijma represents the consensus of scholars and jurists of a given

generation on a particular legal principle. It involves the application of human

reasoning to the Quran and the Sunna, with a view to filling any lacunae in these

principal sources of the law. The Qiyas involves the expansion of the law through

analogical reasoning. The Ijma is more important than the Qiyas. An established Ijma

must not be revisited by future generations of scholars, due to the principle of the

infallibility of the consensus of Muslim scholars. 121 A Qiyas of one generation may

be rejected by another generation based on the recognised principle that a judge might

err in his judgment. 122

Muslim law consists of the Sunni and Shī’a, branches, each of which is

crystallised in a number of schools. Cameroonian Muslims are Sunnis of the Maliki

School 123 and this is the focus of our study. The other Sunni Schools are the Hanafi,

Shafi‫׳‬i and the Hanbali. The most common of the Shī’a Schools are the Imamyya,

Ismailiyya and Zaidiyya.

The general principles of the Muslim law of succession are drawn from surah

4, verses 8, 9, 12, 33, 34 and 170, surah 7 and from the traditions of the Prophet as

recorded in the Sunna, and the consensus of Muslim scholars recorded in the Ijma. 124

119
The divine revelations recognise in him a good example to follow. In this respect Surah 33 (21) of
the Holy Quran prescribes “You have indeed in the Messenger of Allah a beautiful pattern (of conduct)
for anyone whose hope is in Allah and the Final day, and who engages much in the praise of Allah.”
120
Ajijola, A.D. Introduction to Islamic Law, New Delhi, International Islamic Pictures, 1989, pp. 59-
63.
121
David Pearl, A Textbook on Muslim Law, London, Groom helm, 1979, p. 69.
122
Ajijola, A.D. Introduction to Islamic Law, New Delhi, International Islamic Pictures, 1989, pp. 78.
123
Carlson Anyangwe, The Cameroonian Judicial System, p.249.
124
Ajijiola, A.D. Introduction to Islamic Law, New Delhi, International Islamic Pictures, 1989, 228.

36
 1.5.4: LOCAL STATUTORY LAW
Currently Cameroon has no statutory law on succession. A draft bill, to be

seen later, in view of a Family Code is however pending in Parliament.

1.6: DEFINITION OF CONCEPTS.

1.6.1: TESTACY AND INTESTACY

Testacy describes the situation when a person dies leaving a will while

intestacy is used for situations where there is no will or there is one which has failed.

The distinction between the two seems to be a fine one, as the legal systems assume,

for different reasons, that intestacy rules reflect the presumed intentions of the

intestate.

English law bases the assumption on the studies of the contents of existing

wills, said to have formed the basis of the scheme of distribution enacted in

Administration of Estates Act 1925. 125

In French law the assumption is based on a notional presumed affection of the

deceased towards members of his family. The law presumes that a person’s affection

goes in priority to the blood as against marital relations. Chabot aptly describes the

French position when he writes:

“The law having no other role than to stand in for the wishes of the de

cujus must regulate the transmission of his property as it is presumable

that he would have disposed of himself. It must give him as successors

those who would have been the subject of his choice, and we must

125
Law Commission No. 187 1989, at para. 24 stated “There are a number of principles upon which the
rules of intestacy may be based and in our working paper we canvassed the respective merits of the
presumed wishes of the deceased, the needs or deserts of the survivors and the status of the surviving
spouse. The present law is based upon a combination of these, although the underlying object has been
to do what the deceased himself or herself might have wished,” culled from Borkowski, Textbook on
Succession, London, Blackstone Press Limited, 1997, 7.

37
 suppose naturally that he would have chosen his relatives when he has

not manifested a contrary intention, because he must be presumed to

have had more affection for his relatives than for strangers.” 126

Certainly, customary law will also impute its rules on the presumed intention

of the deceased intestate. Statements tending to show that rules of customary law

cannot be altered because the ancestors intended them to be so are current in the

traditional jurisdictions and a person become an ancestor when he dies. Testacy, we

will see offers the opportunity to evade hash intestacy rules.

1.6.2: SUCCESSION AND INHERITANCE

The dictionary defines succession as the “the act or process of becoming

entitled to a deceased person’s property or title,” 127 and inheritance as “the act or an

instance of inheriting property.” 128 Both terms are employed interchangeably in

textbooks on succession to property, in spite of the differences in their meanings. That

“succession” includes title and “inheritance” does not, is of no moment in a work

limited to the study of succession to property.

Legally English law conceives succession as a situation whereby “a person

became beneficially entitled to or interested in property upon the death of another”. 129

Succession, therefore, transfers a beneficial interest, being one which could be used

126
“La loi n’ayant pas d’autre office que supléer a la volonté du de cujus doit régler la transmission de
ses biens comme il est présumable qu’il en eût disposé lui-meme. Elle doit lui donner pour héritiers
ceux qui auraient été les sujets de son proper choix,. et l’on doit supposer naturellement qu’il aurait
choisi ses propres parents lorsequ’il n’a pas manifesté une volonté contraire, parce qu’il doit être
présumé avoir eu plus d’affection pour ses parents que pour les étrangers. Rapport au Tribunat,
LOCRE. T.V. 107 cited by Youego, Christine, “Sources et Evolution du Droits des Successions aux
Cameroun.” Doctorat thesis, university of Paris II, 1994, 225 (unpublished).
127
The Penguin English Dictionary, 1402.
128
The Penguin English Dictionary also defines inheritance as “the act or an instance of inheriting
property”, at 721.
129
John Burke, Jowitt’s Dictionary of English Law, 2nd Edition, London, Sweet and Maxwell, p.1715.

38
freely within the limits of the interest acquired and subject to public policy

considerations.

If succession transfers rights over property it is but normal to imagine that

some of these could be subject to encumbrances likely to pass with the property.

Normally before distribution any encumbrances in the form of debts or other

liabilities on the estate must be ascertained and expunged by the personal

representative. If this is done the beneficiary obtains unencumbered property. But

some encumbrances hold over after distribution because the personal representative

was unable to ascertain them or they crystallised after distribution. These generally

pass with the property 130 and the law devises means to protect owners of such

encumbrances. Personal representatives could retain property to meet eventual claims,

or are indemnified by the beneficiaries or insurance. Generally, the courts take a

practical view of the matter and hold that no protection beyond the personal liability

of the beneficiaries is needed. 131

In French law succession signifies the transfer of property and liabilities 132 from

the deceased to one or more living persons.133 There is no intermediate period of

administration, since pursuant to article 718 of the civil code succession opens

immediately upon the death of the de cujus and property vests directly in the universal

heirs jointly. It is then administered jointly pending partition to be decided upon by

the beneficiaries or a court order. 134 Unlike the English law, therefore the liabilities

attach automatically on the beneficiaries.

130
Kerridge, Roger, Parry and Clark: The Law of Succession, London, sweet and Maxwell, 11th
edition. 2002, 270.
131
See Halsbury’s Laws of England : Annual Abridgement, 2007, 495.
132
Louis Bach, Droit Civil, Paris, Sirey, 1985, p. 133.
133
Hubrecht, G. Notions Essentiels de Driot Civil, Paris, Sirey, 1960, 21.
134
See article 815 of the civil code, 1804

39
 Customary law, according to Doumbe Moulongo, conceives succession in the

same way as in French law stated above. 135 But succession in customary law,

excluding Muslim law 136 is complicated by the fact that a deceased person often holds

property as a family member and as an individual. Family property cannot be a subject

of succession because the family, as a corporation has a perpetual existence. Only the

management of family property passes from one person to another. And this is where

there have been misconceptions, as the successor/manager tends to consider himself

as the absolute owner, whereas as a family member he acquires a qualified title in the

sense that whatever he does with the property must not negatively affect the interests

of the other members. He cannot, for example dispose of the property without the

consent of the other members. 137 He nevertheless enjoys an unlimited right of user

which he could transmit to his heirs and can act independently in the day to day

management of the property, subject of course to rendering account of such

management.

Consequently, there is succession only to the personally acquired property of a

deceased person, notwithstanding the argument that because the family contributed in

the training or education of a member, any property acquired by him is family and not

his private property.

1.6.3: PROPERTY
Property generally denotes anything tangible or intangible that is capable of

ownership, 138 and which for the purpose of succession is of such permanence that it

135
Doumbe-Moulongo, Maurice, « Conséquence de juridictions de Droit Traditionnel Sur l’Evolution
des coutunes dans le Sud cameroun » (1963) 17 Rev. Jur. Et Pol. d’Outre-Mer, 533-572, 564.
136
As will be seen later the chances of a Muslim holding property in the name of the family are remote
because generally every person holds property in his or her personal name.
137
See Stella Munga & 5 others v. Wumnyonga Christiana & 3 others (1984) CASWP/42/84
(unreported); Teke Elias Tepi v. Teke David Mbah (1996) BCA/2cc/96 (unreported)
138
Osborn P.G., A Concise Law Dictionary, 270.

40
continues to exist and be used beyond the death of the owner. 139 Property also means

“ownership” and ownership describes the relationship between persons with respect

to a thing. So it is possible for different concurrent ownership rights of varying

magnitudes to subsist over the same property. 140 Succession thus gives a right of

ownership to property, whether a person takes an absolute interest or as a mere

trustee.

English law classifies property under realty and personalty. The classification

derives from Roman law according to which legal actions were divided into actions in

rem and actions in personam. 141 Actions in rem were against a thing or res in which

the claimant was not demanding compensation or forbearance from the defendant, but

the restitution of the thing. Actions for the recovery of land were classed as actions in

rem. Because they involved recovering the land itself, such actions became known as

actions in realty, 142 and hence the appellation realty. Actions in personam or against

the person on the other hand were those which could be made good by the payment of

damages. They too became known as actions in personalty and hence the appellation

personalty.

Leaseholds are classified as personalty because actions concerning them are

personal actions. Real actions are available only to freeholders, that is, only to tenants

who were seised of the land. A tenant for years is possessed, not seised of the land

and if dispossessed, he could bring only a personal action for the recovery of damages

against the grantor. 143

139
Lawson F. H. and Rudden Bernard, The Law of Property, Oxford, Clarendon Press, 2nd edition,
1982, 14.
140
Gray K. J. and Symes P .D., Real Property and Real People. Principles of Land Law, London,
Butterworths, 1981, 8-9.
141
T. Cyprian Williams, “The Terms Real and Personal in English Law”, (1888) XVI L.Q.R., 394-408,
401.
142
Ibid, 398.
143
Burn and Cartwright, Cheshire and Burn’s Modern Law of Real Property, Oxford, Oxford
University Press, 17th edition, 2006, 36.

41
 It is important to note that fixtures are, with a few exceptions part of the land.

And so except agreement to the contrary, succession to land includes the things

attached to it, as expressed in the maxim quicquid plantatur solo solo cedit. 144

As for French Law article 516 of the Civil Code divides property into movable

(meubles) and immovables (immeubles). Immovable property is essentially land but

because of the importance of agriculture at the time of the distinction,145 various items

of movables were treated as part of immovable property. 146 The assimilation of

movables into immovables is explained by Beaumanoir: “Immovables are things

which are everlasting and which produce annual income; perpetuity and the

production of issues characterise immovables even more than the important fact of

immobility; it is these two qualities which make up their value, whereas movables are

perishable and do not bring in anything”. 147

Property is immovable by its nature, purpose or intended objective.148 Hence

immovable property includes not only the land and fixtures, but also the plants

thereon and fruits irrespective of whether they constitute fructus naturales 149 or are

just fructus industriales. 150 Beasts of burden used in farms, pipes and hoses used to

conduct water in houses or farms are also classified as immovables. 151 Movable

property is defined in article 527 to include things which are movable by nature and

those which are movable by law, having no connection to land.

144
What is attached to land accedes to the land.
145
This was in the thirteenth century but was adopted by the drafters of the code civil in 1804.
146
See Atias, Christian, Droit Civil: Les Biens, Paris, Librairie de la Cour de cassation, 1982, 13.
147
Cited by Brissuad, Jean, A History of French Private Law, New Jersey, Rothman Reprints Inc.,
1968, 271.
148
517 Civil code, 1804.
149
These are thing that grow on land with little or no human effort and except severed, are part of the
land.
150
These consist mainly of seasonal crops planted on land and which are normally not part of the land.
151
See articles 518 to 526

42
 It is therefore a principle of French law whatever is attached to land and is

capable of producing an income accedes to the land. This is the basis of the doctrine

known as la présomption d’accession. 152

At customary law the distinction is between land and movables. There is no

consensus on the question whether things attached to land accede to it. One view,

against such accession, divides land into two parts, namely the natural content

consisting of the soil and the artificial content consisting of the things on it. 153 The

communal nature of customary land tenure justifies this view, given that land is

generally held by the family head on behalf of its members. If fixtures are to become

part of the land, it will mean that they come under his authority even if he did not

contribute to their existence. Not only would such a situation engender strife in the

family, it will act as a disincentive to hard work and inventiveness by the members.

The soil generally belongs to the family and the fixtures belong to the persons

responsible for their existence 154 and these could be trespassers, provided that they are

not intended to defraud the owner of the soil of his title. 155 Fixtures could be pledged

or otherwise disposed of without affecting the title of the group. In Alexander Duru v.

Haddison Masalo, the South West Court of Appeal held:

152
Article 552 Code Civil
153
This is also the position in Muslim law as evident in Ndjobdi v. Gabilla (Ndop Alkali Court, Civil
Suit No. 3/2002-2003, unreported). The defendant initially permitted to construct a non-permanent
structure on land went ahead to erect a six roomed concrete structure. He was ordered to remove same
at his cost.
154
See Enonchong, Nelson, “Jurisdiction over disputes relating to ‘national lands’ in Cameroon”
(1999) 11 RADIC, 100-128,117; Anyangwe, Carlson, “Land Tenure and Interests in Land in
Cameroonian Indigenous Law,” (1984) Cameroon Law Review, pp. 29-41, 41; Ewang, Andrew, “The
English Maxim ‘Quicquid Plantatur Solo Solo Cedit’ is not a rule of Customary Law.”(1996) 26 Juridis
Périodique, 19-23, 21.
155
In David Ako v. John Ndumbe (1982) CASWP/CC/54/82 (unreported) the maxim was exceptionally
applied because it was found that the defendant had the intention to own the land.

43
 “The concept of customary ownership is that plants and fixtures attached
to the land are not part of the land, so that a person may who owns the
land may not per se own the crops.”[Sic] 156

A similar position was stated by the North West Court of Appeal in Malam

Bello v. The People. 157 The case concerned the sale of a house and the court described

the contract as “a document evidencing the sale of a house under customary law and

not the sale of land because the English maxim quicquid plantatur solo solo cedit is

not a rule of customary law.” On this basis it was held Victor Bodylawson v. Hope

Bodylawson &2 others 158 that a house built by a member on family land belongs to

the member. It is “a fallacy to say that property built by the applicants deceased’s

father was jointly owned without proof of financial contributions.”159

Because fixtures do not pass with the land their fate could be settled in

different ways. The owner could be directed to remove them at his cost 160 or

alternatively the owner of the land keeps the fixtures subject to the payment of

compensation to their owner. 161

A second view favours the application of the maxim to customary law. The

proponents advance such arguments as the gradual erosion of family ownership in

favour of individual ownership. They also contend that the early disposable huts and

seasonal crops that posed no threat to the title of the family are today replaced by

concrete structures and permanent cash crops, liable indubitably to pose serious

156
(1984), CASWP/cc/52/80, per Njamnsi, J. See also Enjema Liote v. Hannah Forty (1984)
CASWP/CC/15/83 (unreported); Michael Andeh v. Paul Happi (1983) CASWP/CC/52/82
(unreported); Isange Ekoi Comfort v. Bongolie Ophilia Epupu (2004) HCK?AE/K.92/2002.
157
(1983) Suit No. BCA/9MS/83 (Unreported).
158
(2006) HCF/PROB/AE105/04-05/1M/05 (unreported).
159
Per Justice Mrs. Mpacko
160
Ngema v. Ebini (1994) HCK/CC/34/91-94 (unreported)
161
This course was adopted by the North West Court of Appeal in Moma v. Moma (2003)
BCA/5/2003(unreported), where the respondent having come out victorious in a succession dispute was
ordered to compensate the appellant for the house built by him on the land.

44
problems of ownership. 162 The ownership of the soil and of permanent structures or

crops is like the concurrent existence of equivalent rights over the same piece of land.

At one point there must be a fusion of the land and the fixtures.

This position was adopted In Enyame v. Enyame. 163 The parties were cousins

both of whom had inherited land from their deceased fathers. The defendant applied

for and obtained letters of administration over property supposed to be his father’s but

the inventory included a house built on land which belonged to father of the plaintiff.

In this action the plaintiff demanded a rectification of the letters issued to the

respondent by excluding the house and including it in his own letters of

administration as the owner of the land on which it stood. After a visit to the locus in

quo, it was held that:

“There was abundant evidence that the premises [land] belonged to the
first applicant. From this, therefore, it is only logical that, the
uncompleted building on that premises ought not to be made the
property of the late Francis Enyame. The parties are agreed on the point
that, the late Francis Enyame constructed on the estate of his late
brother, father of the first applicant. Therefore the respondent’s Letters
of Administration must exclude it.”

No orders as to the payment of compensation to the owner of the building

were made, meaning that the court was effectively applying the maxim without

expressly referring to it.

162
James, R. W. Modern Land Law of Nigeria, Ibadan, Caxton Press (West Africa) Limited, 1973, pp.
15.
163
Vesenge Enyame & 3 other v. Pauline Enyame & another (2003) HCF/PRO/AE3013/1M/03
(unreported).

45
 CHAPTER TWO: INTESTACY IN ENGLISH LAW

Introduction
English law like other systems of law predicates succession on the fact of

death. Death 164 is evidenced by a corpse and burial; however, disappearance might be

assimilated to death. The need to ensure the continuity of the estate and liberate the

spouse, if any, necessitates a presumption of death 165 in the case of long and

unexplained disappearance, which is preceded by a presumption of continuance. 166

Death provides the basis for succession to the estate of the person. It thus

becomes necessary to determine the beneficiaries and how the estate will be managed

and liquidated through distribution. These are the matters we will be examining in this

chapter, after disposing of the no less significant questions of the applicable laws, and

application thereof.

2.1: THE APPLICABLE LAWS.

The rules applicable in Anglophone Cameroon are drawn from English and

Nigerian statutes. The most important English statutes on the subject are the Wills Act

of 1837, Wills Amendment Act of 1852, and the Administration of Estates Act 1925.

The latter repealed and consolidated all previous legislation on the subject some of

which smacked of customary law. It governs administration of estates generally and

there is also the Non-Contentious Probate Rules of 1954 which are used for the

164
Black’s Law Dictionary defines death as “The cessation of life, the ceasing to exist; defined by
physicians as a total stoppage of the circulation of the blood and a cessation of the animal and vital
functions consequent thereon, such as respiration, pulsation, etc
165
See section 143 (1) of the Evidence Ordinance: “A person shown not to have been heard of for
seven years by those, if any, who, if he had been alive, would naturally have heard of him, is presumed
to be dead unless the circumstances of the case are such as to account for his not being heard of
without assuming his death.”
166
See section 148 of the Evidence Ordinance, Cap. 62 of the 1958 Laws of the Federation of Nigeria:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being
had to the common course of natural events, human conduct, and public and private business, in their
relation to the facts of the particular case, and in particular the court may presume… (b) that a thing or
state of things which has been shown to be in existence within a period shorter than that within which
such things cease to exist is still in existence.”

46
designation of personal representatives. These are applied together with

Administrator-General Ordinance, Cap. 4 of the 1948 Laws of Nigeria; Order 48 Rule

1(1) of the Supreme Court (Civil Procedure) Rules Cap. 211 of the 1948 Laws of

Nigeria and the Evidence Ordinance Cap. 62 of the 1958 Laws of the Federation of

Nigeria.

The status of the estate prior to distribution is governed by the Trust of Land

and Appointment of Trustees Act 1996. Of no negligible importance is the Inheritance

(Provision for Family and Dependants) Act 1975 which enables dependants of the

deceased to apply for reasonable financial provision out of the estate. Other important

sources are the Intestate Estates Act 1952 which significantly augments the rights of

the surviving spouse, and the Law Reform (Succession) Act 1995, which adds to the

category of persons liable to apply for reasonable financial provision under the 1975

Act and also establishes twenty-eight days as the definite period of survivorship

between commorientes spouses.

Statutes such as the Legitimacy Act 1976, Adoption of Children Act 2002, the

Family Law Reform Act 1987 and the Matrimonial Causes Act of 1973 are also called

in when the matter involves determining the succession rights of legitimated children,

adopted children, and illegitimate children respectively, and the determination of what

amounts to reasonable financial provision for a surviving spouse in application of the

1975 Act.

2.1.1: Case for the application of post 1900 English statutes.

The above applicable laws, with the exception of the Wills Acts, are post

1900 statutes and this appears to be in contradiction with the enabling law. From

section 11 of the Southern Cameroon High Court Law 1955 it emerges that the

47
applicable English laws must have been in force in England on the 1st day of January

1900.

The views diverge as to the scope of the limitation, whether it affects all the

components of English law or is limited only to a particular component. One view is

that only the statutory law is affected, based on “the plain meaning of the words” 167

used in the enabling section or from the “inescapable rules of grammar.” 168 The use

of semicolons to separate the three components of the received law could be an

indication of their independence. But the semicolon is a controversial punctuation

mark, which not being a comma or full stop 169 could be subject to differing

interpretations. If treated as full stops, the relative clause “which were in force”

becomes relevant only for the received statutory law. Taken in their literal meanings

to signify long pauses between the components, the word “and” which precedes

“statutes of general application” effectively separates the relative clause from the

first two components. The use of the verb “were” immediately after “the statutes of

general application”, which is the plural form of the past tense of the verb “to be”,

instead of the singular form “was” is yet another indication that common law and

equity were not intended to be effected by the limitation. Again, the phrase “in so far

as the legislature of the Southern Cameroons is for the time being competent to make

laws…” automatically excludes common law and doctrines of equity. The last and

probably most important indicator lies in the lettering (a), (b), (c), and the inclusion

of the qualifying date in the paragraph marked (c).

167
Park, The Sources of Nigerian Law, 21.
168
Anyangwe, Carlson, The Cameroonian Judicial System, 222.
169
The New Penguin English Dictionary at pp. 1269-1270 defines a semicolon as “punctuation mark to
mark a break or pause between sentence elements such as clauses but is greater than the break or pause
indicated by a comma and less than that indicated by a full stop.

48
 The second view represented by Professor Allott recognises but discards the

above possibility because “one cannot base one’s interpretation of a statute on its

punctuation.” 170 He submits instead that “by necessary intendment” the date should

cover the other components of the received English law. 171 His position must have

been influenced by his reading of section 83 of the reception statute of Ghana, where

the components are separated by commas. In the footnote quoted above he observes

the variegated nature of the punctuation marks used in similar provisions of other

countries, makes reference to provisions with no commas, those with only one

comma, and apparently ignores those that use semi-colons.

One the basis of its peculiar formulation we subscribe to the view that the

limitation affects only the statutes of general application. Hence post-1900

developments in the rules of common law and doctrines of equity in England are

without more applicable in Anglophone Cameroon.

The reception of post-1900 statutes is, however, expressly allowed under

sections 10 and 15. Section 10 relates to procedural law:

“The jurisdiction vested in the High Court shall, so far as practice and
procedure are concerned, be exercised in the manner provided by this Law
or any other written law, or by such rules and orders in court as may be
made pursuant to this Law or any other written law, and in the absence
thereof in substantial conformity with the practice and procedure for the
time being of Her Majesty’s High Court of Justice in England”

Relevant English procedural laws for the time being in force are therefore admitted

whenever there is a lacuna in the local laws. Section 15 concerns probate, divorce and

matrimonial causes:

170
Allott, Antony Essays in African Law: With special reference to the law of Ghana, London,
Butterworth, 1960, p. 31, note 2.
171
Ibid. 31.

49
 “The jurisdiction of the High Court in probate, divorce and matrimonial
causes and proceedings may, subject to the provisions of this Law and in
particular section 27, and to rules of court, be exercised by the court in
conformity with the law and practice for the time being in force in
England.”

This exception is of particular relevance to this study as the tendency has been to

construe “probate causes and proceedings” as including the administration of estates

and the distribution of residue. In Godwin v. Crowther, 172 the Supreme Court of

Sierra Leone interpreted a similar phrase in section 6 of the Supreme Court

Ordinance, 1904, cap 205 of Sierra Leone to include matters “sui generis” 173 such as

testamentary succession, devolution on intestacy and administration, in order to bring

in the Administration of Estates Act 1925. The interpretation was rejected on appeal

by the West African Court of Appeal, which held the phrase to be limited to the grant

or recall of probate or letters of administration. In Taylor v Taylor 174 the trial court

adopted the same interpretation as was done by the trial court in Godwin v.

Crowther, and again, it was overruled. Kingdon, C. J. then propounded the following

test to determine whether the phrase bore the meaning attributed to it by the lower

courts:

“Admittedly the grant of Letters of Administration is a probate matter, but

the present matter has nothing to do with the grant, it relates to the disputes
as to distribution of assets. To my mind the test to be applied is ‘would this
matter in England be dealt with in the Probate Division or Chancery
Division’? If in the former, it is a probate matter, if in the latter, it is not a
probate matter”.

172
Sierra Leone, (1934) 2 W.A.C.A. 109.
173
Ibid. 110.
174
(1935) 2 W.A.C.A. 348, 349.

50
It was unanimously agreed that in England the matter would be dealt with in the

Chancery Division, and so it was held that the distribution of assets did not come

within the purview of the phrase “probate causes and proceedings”.

It should not be assumed, we submit, that the lower courts were ignorant of

what the phrase means, as the Latinism sui generis in Godwin v. Crowther suggests

that the phrase was only exceptionally interpreted in the circumstances to encompass

all of the law of succession. In the unanimous judgment of the court, the worry was

that adopting the interpretation advanced by the lower court would result in the local

Ordinance being repealed, notwithstanding the argument that only the provision on
175
consent would be affected. By implication the Administration of Estates Act 1925

would have been applicable if there was no local statute on the subject, and this

precisely is the case of Cameroon.

The interpretation could also be justified when considered in the light of

different rules of statutory interpretation: the golden rule, mischief rule and ejusdem

generis. The golden rule seeks to discover the intention of the legislature by

interpreting the words of the statute in their ordinary or literal meaning “unless this

175
There were three judges in that case and each of them spoke in defence of the local statute:
MacQuarrie, J. at 111 “Mr. Boston argued that the phrase in question does include the law as to
testamentary succession, devolution or intestacy and administration of assets; but that one effect of
section 6 is, by the application of the Administration of Estates Act, 1925, to repeal section 13 of the
Intestate Estates Ordinance, and that section only. I am unable to agree with him; it seems to me that it
would follow that the whole Ordinance would stand repealed, with the result that section 24 requiring
the consent of the court to a sale of land would no longer be in force, and the defence to the action
would disappear.” Butler-Lloyd, J.: “Now whatever may have been the exact intention of the
legislature in framing paragraph[section] 6 nothing is clearer than that that section is subject to and
overridden by section 8 which make all statutes applied by the Ordinance subject to existing
Ordinances of the colony not thereby repealed. The intestate Estates Ordinance was not repealed and
must be taken to remain in full force and effect. This disposes of the respondent’s case, but I desire to
point out that even were the Intestate Estates Ordinance repealed by section 6 the respondent would be
no better off since she rests her case on paragraph 24 of the Ordinance, and I am certainly not prepared
to accede to the proposition that paragraph 24 remains in force while paragraph 13 does not.” (at 112).
Deane, C. J., Gold Coast: “… the Intestate Estates Ordinance has not been repealed by section 6 of the
Supreme Court Ordinance of 1924…. It is to me almost inconceivable that the legislature, had they
meant to repeal that Ordinance, would not have said so, instead of living to inference such an important
result.” (113).

51
stultifies the purpose of the statute, or otherwise produces some injustice, absurdity,

anomaly or contradiction in which case some secondary ordinary sense may be

preferred, so as to obviate” 176 these effects. If the intention of the legislator cannot be

found, resort is had to the mischief rule which consists in discovering mischief which

the law sets out to avoid. If this also fails then the ejusdem generis rule becomes

applicable. The rule is that when general words in a statute are followed by narrow

words all of which come within the same genus or category, the meaning of the

general words is to be limited by the narrow words in the absence of any contrary

intention.

Either method would justify the interpretation without the need for the

Latinism sui generis. Under the golden rule it would be an absurdity to think that the

legislature would have intended the term “probate” to be so narrowly interpreted so as

to exclude the administration of estates, being the area where most problems of

succession are bound to arise. Textbooks on succession today carry such titles as

“Probate and Practice.” 177

The mischief rule would produce the same results. There is no doubt that by

bringing in English law generally, the colonial legislature intended to avoid the

application of customary law to matters that would otherwise be governed by English

law. Conscious of the negative effects of rules of customary law on certain members

of the family, particularly women it must have been thought that even the pre-1900

statutes would not provide adequate protection, given the existence in those laws of

provisions that discriminate against women. The mischief which the legislature set

out to combat would remain undiminished, if “probate causes and proceeding” does

not include distribution of the estate. It will mean that while the Administration of
176
Maunsell v. Olins [1975] A.C. 373, 391, per Lord Simon of Glaisdale
177
For instance Rowe, R. B et al., Tristram and Coote’s Probate Practice, London, Butterworths 1983

52
Estates Act 1925 governs the grant and withdrawal of probate and Letters of

Administration, distribution will be governed by statutes of distribution of 1670

which has been repealed by the 1925 Act.

Applying the ejusdem generis principle might pose some difficulties due to

pre- condition for the existence of more words and a genus to which they all belong.

Section 15 uses the word “probate” standing alone. However, ejusdem generis is

merely an emanation of a general principle of interpretation expressed in the Latin

maxim Noscitur a sociis (a thing is known by its associates), which means that to

understand the meaning of words, especially general words in a statute, they have to

be read in conjunction with other words used in the statute or with which they are

connected. 178 In other words, the meaning of a word can be deduced from the
179
company it keeps. “English words derive colour from those which surround

them.” 180 Where an enactment contains a neutral or colourless word, the context

provides the colouring agent. In Bromley London Borough Council v. Greater

London Council, 181 the question was whether the word “economic” meant financial

economy or the science of economics. Lord Scarman said: “As a matter of English

usage, the term economic has… several meanings. They include both that for which

the appellants contend and that for which Bromley contend. It is a very useful word:

chameleon-like, taking its colour from its surroundings.” The term probate is neutral

and is coloured by its association with administration and distribution of the estate.

Strict adherence to the limitation date would mean that the courts will be

applying outdated rules which no longer meet the required standard of justice under

178
See Bennion, F.A.R., Bennion on Statute Law, London, 3rd ed., Longman, 1990, 195-198; Bennion,
F.A.R., Statutory Interpretation, 3rd ed., London, Butterworths, 1997, pp. 195-199; Bell, John and
Engle, George, Cross: Statutory Interpretation, 3rd ed., London Butterworths, 1995, 138-139
179
Anyangwe, Carlson, The Cameroonian Judicial System, Yaoundé, CEPER, 1987, 236-237
180
Bourne v. Norwich Crematorium, [1967] W.L.R., 691, 696( Per Stamp, J.)
181
[1982] 1 All E.R., 129,174

53
English law. Given that the idea was to institute a system of justice equivalent and not

inferior to the English standard, the objective would be defeated if, because of the

tyranny of statutory provisions we are obliged to apply laws long abandoned 182 in

England. Fombad opines that: “Neither reason nor justice, in the absence of a clear

and comprehensive Cameroonian enacted law on the issues compels such rigid

interpretation [limitation date] today. The proper approach, it is suggested, must be

dictated, if not in fact justified, by rational and objective imperatives of justice and

fairness with due regard to the present level of our socio-economic development and

situated in the general context of our overall objective legal modernisation.” 183

Anglophone courts have accordingly not heeded the limitation and

consistently rely on the exception in section 15 to bring in post-1900 English statutes

relevant to the law of succession. The dictum of Epuli, J. in Nforba v Nchari, 184 is

commonly cited as authority for this proposition.

“In the light of section 15 as read with section 9(b) and section 27 of the
southern Cameroon High Court Law 1955… where the marriage was
monogamous the rules applicable would be those currently in force in
England… from the surrounding circumstances, I infer that the marriage
was intended to be monogamous. Therefore the current law of succession
applicable in England governs the devolution of the intestate deceased’s
property. That law is to be found basically in the Administration of
Estates Act 1925…”

It is clear from the foregoing that Anglophone Cameroonian courts have

refused to be tied down by the limitation date which would have meant applying

182
See Park, A. E. W., Sources of Nigerian Law, London, Sweet and Maxwell, 1963, 23-24. It will be
paradoxical if England, a champion of human rights would intend the application in its former colonies
of the Dower Act and Satutes of Distribution for example, not for their bias to women.
183
Charles Manga Fombad, “The scope of uniformised national laws in Cameroon.” (1990) 3 Revue
Juridique Africaine, 59-71, 67.
184
(1999) G.L.R. 59, 63 (Gender Law Report) See also Mbokam Nya Clarice v Tchouinjan Andre &
Cameroon Development Corporation (1999) G.L.R., 67

54
moribund English statutory law. In succession especially this would have meant

operating a distinction between male and female descendants with respect to

succession to real property, and it would have meant, equally that widows are never

to aspire to succession since they would be entitled to the dower which was one third

of the real property of the deceased. The application of post-1900 laws makes it

possible to link the right of succession to the duty of maintenance, which as we said,

should constitute the basis for succession.

2.1.2: Adaptation of the applicable English laws to local conditions.

An applicable rule of English law needs to be adapted to the local

circumstances. Having been made to meet specific requirements in England, the laws

would result in hardship if not modified in line with the standards of an African

environment, where there are significant differences in the general life-style, customs,

beliefs, social organisations, and patterns of marriage, divorce law, land law and

above all, the law of succession.

However this imperative seems not to have been given much thought by the

colonial legislature, as Cameroon’s enabling statute makes no provision for

adaptation. Section 45(3) of the Interpretation Act, cap. 89 of the 1958 Laws of the

Federation of Nigeria applicable in Cameroon permits “formal verbal alterations” but

the phrase “not affecting the substance,” greatly limits the extent of the adaptation. It

is permissible under the provision to make substitutions for names, as for example

substituting “Cameroon” for “England” or “Nigeria.”

Park argues that adaptation is not permissible if not contained in a statute. His

reason is that courts are called upon not to “administer justice, but rather to

administer the rules of law that they are directed to apply by relevant statutory

enactments” and adds that “the legislature of the country can always change common

55
law rules that are considered unsuitable.” 185 One could easily associate Park’s

position with the traditional position of English law that law-making is the

responsibility of parliament. But even the English system, organised as it is has not

always responded, at least promptly, if at all, to calls for Parliament to change

“unsuitable rules” of common law. Much can therefore not be expected of Cameroon,

where even making the most basic laws on matters such as succession is still a

problem. Park’s fear is that leaving the task of adaptation to the individual courts

might result in a multiplicity of customary laws on a given subject, which would

work against the certainty and predictability of the law. But these are matters that

could be taken care of by the doctrine of precedent.

Allott supports the view that even in the absence of express provisions, “the

courts have an inherent power in similar terms by virtue of their general duty to

administer justice” 186 Allott’s position is good for countries like Cameroon where no

provisions for adaptation exist. The courts will have to draw from their discretionary

powers to adapt rules of the received law and make them workable in the new

environment. 187

Given that judicial discretion must be based on some legal provision, the

courts could rely on the residual clause embedded in section 27(4) of the Southern

Cameroon High Law 1955. It enacts: “In cases where no express rule is applicable to

a matter in controversy, the court shall be governed by the principles of justice, equity

and good conscience.”

185
The Sources of Nigerian Law, supra, p.39.
186
Essays in African Law, supra, p. 25.
187
Allott, Antony Essays in African Law: With special reference to the law of Ghana, London,
Butterworth, 1960, 24.

56
 Adaptation could be by broadening the meaning of terms used or by refusing

to adhere to inconvenient details.188 It is for example accepted that the term

“marriage” mean not only monogamous but also polygamous marriage provided that

the laws of the country where it is celebrated recognise such marriages. 189 The effect

of this in succession is that the “wife” or “widow” of a customary marriage and the

children of the marriage can in certain circumstances succeed under English law.

In Bamgbose v. Daniel 190 it was held that children of a valid customary law

marriage were entitled to succeed in the same capacity with children of a statutory

marriage. A similar position had been adopted in the earlier case of Re Adadevoh. 191

But in both cases since no claims were made by the widows the Courts abstained

from making any concrete pronouncements, apart from intimating that the rights of

the children to succession were independent of that of their mothers if ever they made

any claims to that effect. 192 In the opinion of the Privy Council as expressed in

Bamgbose v. Daniel, “if the legitimacy [of the children] be established, the validity of

his parents’ marriage should not be entertained as a relevant subject of investigation.

It would be strange in the converse case where a marriage of the parents was

recognised as valid the children should be deprived of their right of succession

because of the difficulty in working out the rights of the wife.” 193 The position of the

widow was settled in Coleman v. Shang. 194 The plaintiff, an issue of a statutory

marriage was against the widow by a valid customary marriage being appointed joint

administrator of the estate with her on the ground that the widow did not come within

188
Allott, supra, p. 24
189
See Bamgbose v. Daniel (1952) 14 W.A.C.A. 111, 114
190
Ibid.
191
Also known under the appellation of In the Matter of the Estate of Herbert Macaulay (1951) 13
W.A.C.A. 304.
192
See p. 311 for Re Adedavoh and p. 121 for Bamgbose v. Daniel
193
P. 122.
194
[1961] A.C. 481.

57
the meaning of wife under section 3 195 of Statute of Distribution of 1670. The

contention was rejected on the ground that the woman was a wife under the statute,

having been lawfully married under the law of Ghana.

An important question worthy of consideration is whether the courts have

powers to alter the statutory provisions to make them palatable to local conditions.

Could the one third share of the deceased estate accorded to the widow of a

monogamous marriage under the statute of distribution be increased, if the share is

found to be too small for the number of wives at customary law? From the decision in

the Nigerian case of Labinjoh v. Abake 196 this would seem impossible. In that case,

the defendant, an unmarried girl under 21 years of age living with her parents was

sued for the price of goods sold and delivered to her. The action was dismissed on the

basis of the Infant Relief Act, 1874 on the ground that she was an infant and that

infant contracts are voidable if avoided within a reasonable time. On appeal to the

divisional court, it was held that the plaintiff must succeed because the Act was

applied with necessary modification to the meaning of the term “infant”, held to be

the age of puberty and not the statutory age. This decision was set aside in the present

appeal, and Combe, C. J. said:

“I am of the opinion that the learned judge was wrong in holding that, in
applying the Act, the court is entitled to alter the Act to suit local conditions.
The legislature in using the term “infant” in the Act must be assumed to
have been aware of the legal definition of that term and to have intended
that the term should be read in accordance with that definition.”

195
“ All ordinaries and every other person who by this Act is enabled to make distribution of the
surplusage of the estate of any person dying intestate, shall distribute the whole surplussage of such
estate or estates in manner and form following : that is to say, one third part of the said surplusage to
the wife of the intestate.”
196
(1924)5 N.L.R.32, 35.

58
 Without adaptation the very application of the laws would be impossible,

given that the English laws of succession are made for a society where monogamy is

the rule, as against the Cameroonian community where polygamy is the rule. The

adaptation, it must be said has been mainly responsible to the influence which

customary law still wields over matters of succession in this country.

2.2: COURTS WITH JURISDICTION TO ADMINISTER ENGLISH LAW

2.2.1: Original Jurisdiction: The High Courts.

High Courts have existed in Anglophone Cameroon since the Southern

Cameroon High Court Law of 1955. Under that Law the courts had both original and

appellate jurisdiction because having been modelled in line with the High Court of

England, were under section 7 conferred the same jurisdiction as their English

counterparts. 197 However the appellate jurisdiction was removed by Ordinance No.

72/4 of 26 August1972 on the Judicial Organisation of the whole country. Although

differences could still be observed in the manners in which they function, this

Ordinance effectively harmonised the legal systems of the former British and French

Cameroon.

The courts are situated at the level of each administrative division and are

competent in succession matters arising within their jurisdiction if the deceased had

property therein. 198 Section 16(b) as amended by article 16(c) of Law No. 89/019 of

29 December 1989 gives the courts original jurisdiction over succession: “The High

Court shall have jurisdiction…in civil matters to hear suits and proceeding relating to

197
“To the extent that the legislature of the Southern Cameroon is enabled to confer such jurisdiction,
the High Court shall, in addition to other jurisdiction conferred by the Constitution Order or by this law
or any other written law, possess and exercise within the limits mentioned in, and subject to the
provisions of the Constitution Order and this law, all jurisdiction, power and authorities, other than
admiralty jurisdiction, which are vested in or capable of being exercised by Her Majesty’s High Court
of Justice in England.”
198
See Order 48 Rules 1 and 2 of the Supreme Court (Civil Procedure) Cap. 211 of the 1948 Laws of
Nigeria; Sam Wandji Christine & anor v. Sam Mbessa Mani Christine (2006) Suit No.
HCF/105/OS/04-05 (unreported).

59
the status of persons and especially to civil status, marriage, divorce, filliation,

adoption and succession, subject to the legal provisions applicable to traditional

courts as regards ratione personae jurisdiction.”

Hence the courts have jurisdiction over all matters of succession except those

over which the customary courts are competent. They are primarily competent over

matters involving foreigners and persons who would otherwise be subject to the

customary courts, but who contracted monogamous marriages or left wills in English

form.

However, because they have exclusive jurisdiction over letters of

administration, 199 they also occasionally exercise jurisdiction over estates in which

customary law is applicable. Such matters are heard first of all by the customary

courts, giving rise to next-of-kin declarations which are then presented to the High

Court in view of the letters.

This is a curious practice given firstly, that both the Customary and High

courts are courts of original jurisdiction in which case the decision of one must be

treated as res judicata by the other. If because of the monopoly over letters of

administration the High Courts must hear matters relating to the estates of persons

subject to customary law, it is submitted that their role must be administrative only,

and not empower them to go into the merits of the case. Secondly, a decision of the

customary court would be final except where an application is made for letters of

administration.

Even more puzzling, the procedure is not ordained by any law, a fact admitted

in Njoke v. Njoke, 200 according to which: “A next-of-kin declaratory judgment from

199
See Order 48 Rule 1(1) of the Supreme Court (Civil Procedure) Rules Cap. 211 of the 1948 Law of
Nigeria. See also Mikano Emmanuel Kiye, “The Importance of Customary Law in Africa: A
Cameroonian case study”, Doctoral Thesis, VRIJE UNIVERSITEIT BRUSSEL, June , 146.
200
((2006) C.A.S.W.P/35/04-05 (unreported).

60
the customary court which is a practice that has evolved through out the years but not

a legal requirement is only a step to the obtention of letters of administration.” 201

2.2.2: Appellate Jurisdiction: Courts of Appeal and the Supreme Court.

The judicial reforms of 1972 established Courts of Appeal for each of the

country’s ten provinces 202 and a single Supreme Court situated in the capital of the

country. 203 Appeals against decisions of the High Courts are made to the Court of

Appeal of the province and dissatisfaction with the outcome could give rise to further

appeal to the Supreme Court situated in the capital city of Yaoundé.

2.3. DETERMINING THE INTESTATE BENEFICIARIES

The beneficiaries are persons who survive the deceased, and so like death,

survivorship is a precondition for succession. Survival might be difficult to determine

in situations of the simultaneous deaths of persons entitled to each other’s succession

or one of who is entitled to the succession of the other. Such deaths are described as

commorientes and the basic rule for determining survivorship in the circumstance,

with the exception of spouses, is to presume that the youngest person survived. 204

Sections 21 (1) of the Non-Contentious Probate Rules of 1954 and 46(1) of the

Administration of Estates Act 1925 provide an outline of potential beneficiaries,

potential because the principle of precedence might exclude some of the persons on

the list. These are the surviving spouse, the children of the deceased or the issue of

201
See also Peter Charles v. Chinkwo Ndeh where it was said that “A customary court decision in
matters of next-of-kin declaration is not a final decision. It is only a process in the granting of letters of
administration and can at best be regarded as a recommendation to the Administrator-General when he
is examining an application for the grant of letters of administration.” (2006) Appeal No. BCA/62/2003
(unreported)
202
See section 18 of Ordinance No. 72/4 on the Judicial Organisation.
203
See section 1 of Ordinance No. 72/6 of 26 August 1972 bearing on the organisation of the Supreme
Court.
204
See section a commorientes is contained in section 143(2) of the Evidence Ordinance: “For the
purpose of determining title to property where two or more persons have died in circumstances in
which it is uncertain which survived the other, they are presumed to have died in order of
seniority.”

61
any such child who has died during the life time of the deceased. The father or mother

of the deceased, brothers and sisters of the whole blood, or the issue of any deceased

brother or sister of the whole blood who has died. The brothers and sisters of the half

blood, or the issue of any deceased brother or sister of the half blood who has died.

Grandparents, uncles and aunts of the whole blood, or the issue of any deceased

uncles or aunt of the whole blood who has died, and uncles and aunts of the half blood

or the issue of any deceased uncle and aunt of the half blood who has died.

The list can go on ad infinitum as long as there are direct descendants or

ascendants. Marital relationships and kinship are the factors that determine whether or

not a person qualifies as a beneficiary.

There is no gender-based discrimination and the surviving spouse even

occupies the pride of place. Greater attention is thus given to marital relationship. The

“issue” of the deceased come next and the term signifies the legitimate children of the

deceased, their descendants and subsequent generations of descendants who are living

or were en ventre sa mère at the intestate’s death. In the Estate of Bechem Solomon 205

letters of administration were withdrawn from the brother of the deceased who had

administered the estate for twenty five years and transferred to the only surviving

child of the deceased who was born one month after her father died.

The term “issue” also includes illegitimate 206 , legitimated 207 and adopted 208

children of the deceased. These have the same status as legitimate children and are as

a result the subject of succession rights, not limited to the actual persons who gave

them the status. The rights extend in their various categories to the estates of their

205
Suit No. HCK/AE/K.128/2001.
206
See section 14 Family Law Reform Act 1969.
207
See section 5 Legitimacy Act 1976.
208
See section 39(1) Adoption Act 1976.

62
brothers and sisters, grand parents, uncles and aunts ad infinitum, provided they or

their descendants survive the deceased.

If the deceased is not survived by any of the relatives listed above, the estate

goes to the Crown as bona vacantia as it is illegal to go beyond the class of statutory

relatives. The Crown whose powers in this respect are exercised by the Treasury

Solicitor may in its discretion and in accordance with the existing practice make

provision for the dependants of the deceased whether related to him or not, and for

any other persons for whom the deceased might reasonably have been expected to

make provision. 209

The tendency upon looking at the above list would be to conclude that the law

effectively balances the interest of the family members of the deceased. However as

will be seen later in this study, this is only a false image which we will not hesitate to

identify as being partially responsible for the woes of our law of succession. The list

may be long as it is, but not every person on it would be entitled to succession since

the existence of a category at the top of the list automatically excludes the others.

2.4: ADMINISTRATION OF ESTATES

Administration is in principle the period during which the estate is supposed to

be realised and prepared for liquidation. It takes effect from the death of the deceased

to the time of distribution. But the fact the distribution is not mandatory leads to a

situation of perpetual administration, which as we will see, is encouraged by the

courts which generally decline to decree distribution. Administration is ensured by the

personal representative.

209
See section 46(1) (vi) Administration of Estates Act 1925. Eventually we shall see that such people
could apply for reasonable financial provision out of the estate under the Inheritance (Provision for
Family and Dependants) Act 1975.

63
2.4.1: The Personal Representative.
The personal representative is the person to whom Letters of Administration

of an estate are granted. Initially the appellation signified the powers to manage the

personal property of the deceased but has since been extended to include real

property. 210

2.4.1.1: The designation of personal representatives.

The personal representative manages the estate on behalf of the beneficiaries,

who are persons entitled to maintenance by the deceased either directly or by the

proxy of those in whose favour the right existed.

Cameroonian courts rely interchangeably on the Administration of Estates Act

1925 and the Non-Contentious Probate Rules 1954 to designate the personal

representative. This is wrong because while the former lays down immutable rules of

distribution the latter enshrines rules for appointing personal representatives, which

are liable to vary when the circumstances so require.

Section 21(1) of the Non-Contentious Probate Rules of 1954 establishes the

following order:

a) The surviving spouse;

b) The children of the deceased or the issue of any such child who has died during

the life time of the deceased,

c) The father or mother of the deceased;

d) Brothers and sisters of the whole blood, or the issue of any deceased brother or

sister of the whole blood who has died.

210
See section 1(1) of the Land Transfer Act 1897 which assimilated realty to personalty during the
period of administration. Thereafter the personal representative also became the real representative
even though the former appellation has for reasons of convenience been maintained.

64
The list stretches to include brother and sisters of the half blood or their issue, grand

parents, uncles and aunts of the whole their issue and ends with uncles and aunts of

the half blood or their issue.

Remote relatives are excluded whenever there are persons closer to the

deceased 211 and if the relatives thus qualified are a category such as the “issue”, the

court will have decide which of them is more suited for the position in the sense that

he or she will manage the estate for the benefit of the other members of the category.

The courts have wide discretionary powers under section 116 of the English

Supreme Court Act 1981 to pass over the person who would otherwise have been

entitled to the grant of administration and appoint as administrator any other person

they deem expedient if, “by reason of any special circumstances” this appears to be

necessary. The discretion was emphasised in Nanje Fabian v. Meta Edward by

Mbeng, J.

“I think that the pivotal factor for the court to consider in determining who
should administer an estate, especially that of an intestate, is who is
capable and honest. It is not a matter of relationship and priority as the
administrator may not necessarily be a beneficiary to the estate.” 212

Situations that come within the meaning of “special circumstances” are many.

The most common which would justify an objection and a possible passing over of

the person with prior rights to a grant include unsoundness of mind, minority and the

bankruptcy of the estate. 213 The list could be stretched to include factors such as bad

character or otherwise unfitness to act, the disappearance or absence of the person

211
In Kekerogun v. Oshodi (1971) All N. L R. 76. the half brothers of the deceased were held to be
entitled to letters of administration as against his cousin.
212
(2005) Suit No. C.A.S.W.P/53/2002 (unreported). The contest for letters of administration was
between the half brother and son of the deceased
213
See sections 32, 33 of the Non-Contentious Probate Rules 1954.

65
entitled and the death of a sole solicitor.214 Further, an applicant will not be

designated if he or she has an interest in the estate which conflicts with the proper

administration of the estate. 215

When the person entitled is passed over pursuant to a caveat to an initial

application or a revocation order, it is preferable for another person with a stake in the

estate to be designated. Such persons would administer the estate expeditiously and

with care as against a complete stranger who has nothing to lose or gain whether the

estate is managed dilatorily and haphazardly. Besides, a beneficiary would have every

reason to maximise the value of the property in the hope that it could increase his

entitlement upon distribution.

In Njonji Godlove v. Esther Njonji 216 the plaintiff was the son of the deceased

from a previous customary marriage which was dissolved by the death of the woman.

The defendant was the widow of the deceased by a Christian marriage. The plaintiff’s

mother died when he was only two years old and he was therefore brought up by the

defendant. Upon the death intestate of the deceased the family council made the

widow successor to her husband. She obtained a next-of-kin declaration, and was

granted Letters of Administration. The plaintiff claimed that the letters should be

revoked and granted to him instead. He gave improper administration of the estate by

the defendant and the fact that he was the first child of the deceased as reasons. The

court qualified the conflict between the parties as “a delicate family matter” and

making use of its discretion held:

“Notwithstanding section 21(1) of the Non-Contentious Probate Rules

1954 it will be more just and equitable to appoint someone else to
administer the estate of the deceased… for the benefit of all the

214
Kerridge, R, & Brierley, A. R. H. Parry and Clark: The Law of Succession, London, Sweet and
Maxwell, 11th edition. 2002, 402..
215
In in the Goods of Carr (1867)1 P. & D. 291.
216
Suit No. HCK/AE/K.16/2000 (unreported)

66
 beneficiaries. These beneficiaries are the applicant for grant and her four
children and the caveator and his two children.217 To this end this court
hereby appoints Rev. Pastor Njonji Isaiah [brother of the deceased] … as
the Administrator of the Estate of Late Njonji Adolf Same. ”

The judgment fails to mention the facts on which the accusations of mismanagement

were based. We think however that the decision to appoint the brother of the

deceased, albeit a pastor, was a mistake and could be sowing seeds of discord. The

pastor himself would have been a beneficiary but for the existence of the widow and

the issue. His appointment indirectly revives his status as beneficiary as the tendency

would be for him to consider himself in that light. This was the situation in In the

Estate of Noumbissie, 218 where the deceased was survived by two widows and issue

of both marriages. Animosity between the two branches caused administration to be

granted to a cousin of the deceased who considering himself as beneficiary connived

with one of the widows and as a result, cared instead for his own family and the

widow and her children.

Decisions such as the above must be many and show the influence of

customary law on court decisions. The courts certainly buy the customary law rule

according to which women cannot be successors, for nothing would have prevented

appointing the contesting parties as joint personal representatives, since this is

possible under section 114(1) of the Supreme Court 1981 which sets the maximum

number of personal representatives at four persons.

Alternatively a completely neutral person could be appointed if the courts are

to escape the accusation of having been influenced by customary law. This is the

217
The application of the English Non-Contentious Rules might seem to be at variance with granting
succession rights to the caveator, issue of a customary marriage and his children. The position of the
law as discussed in chapter two is that a subsequent Christian marriage does not bastardise the children
of o previous customary marriage provided such marriage is valid under the law of the fori.
218
(2002) 1 CCLR., 1.

67
import of Order 48 Rule 37 of the Supreme Court (Civil Procedure) Rules of the 1948

Laws of Nigeria:

“In a case of intestacy, where the peculiar circumstances of the case

appear to the court so to require, the court may, if it thinks fit, on the
application of any person having interest in the estate of the deceased, or
of its own motion, grant letters of administration to an officer of the court
or to a person in the service of the Government.”

This officer of the court or Government official is generally the Administrator

General, who in Cameroon is the President of the High Court. There is none better

suited to maintain the balance between the parties than the Administrator-General, a

neutral third party having no beneficial interest, actual or presumed, in the estate.

In the Estate of Noumbissie 219 the letters were withdrawn from the conniving

cousin and transferred to the Administrator-General. In Galega v. Galega 220 the

widow had without a next-of-kin declaration applied for letters of administration

against which the defendant, the brother of the deceased issued a caveat. In spite of

the animosity between the parties the trial court granted joint administration to the

parties. The decision was reversed at appeal, and the administration granted to the

Administrator-General on the ground that neither of the parties could administer the

estate in the interest of the beneficiaries “without fanning the flames of animosity

between the two families.” There was of course another ground for which the letters

would have been revoked. The deceased was survived by a widow and issue and this

excluded his brother as a beneficiary to have qualified him to be made joint

administrator with the widow.

219
(2002) 1 CCLR., 1.
220
Appeal No. BCA/19/93 (unreported).

68
 Granting administration to either would have been ignoring the rights of the

persons interested in the estate which normally guides courts in their choices.221 The

brother of the deceased was hostile to the surviving spouse and issue while the widow

was opposed to the inclusion of the deceased’s mother and two illegitimate children

of the deceased as beneficiaries.

Apart from the above situation the Administrator-General could in his

discretion apply for Letters of Administration within a period of one month following

the death. 222 This would arise when there is no person immediately available who is

legally entitled to succession and when the assets of an estate are seen to be at risk of

appropriation, deterioration and waste. 223 The Administrator-General acts under the

authority of the court and is required to furnish periodic accounts of his

administration. 224

Grants for estates where no person has a beneficial interest are governed by

paragraphs 3 and 4, which prescribe grants in those circumstances, to the Treasury

Solicitor who claims bona vacantia on behalf of the Crown and to the creditors of the

deceased respectively.

The above rules ensure that the persons entitled to succession are not cheated

out of their rights, and this is so whether the personal representative is a beneficiary or

a neutral person.

2.4.1.2: The authority and duties of personal representatives.

Personal representatives derive their authority from the letters of

administration. In the interim period between the death and grant of the letters the

221
See Uyanne v. Administrator-General (1973) 3 E.C.S.L.R, 716; Warwick v. Grenville (1809) 1 Phill
123, 125.
222
Section 15 Administrator- General Act, cap. 4 Laws of the Federation of Nigeria, 1958.
223
Section 16, ibid.
224
Order 48 Rule 38, Supreme Court (Civil Procedure) Rules, 1948 laws of Nigeria.

69
conservation of the property is ensured by the Probate Registrar whose duty in a

nutshell is “to preserve the assets, to deal with them properly, and to apply them in a

due course of administration for the benefit of those interested”. 225 Once granted the

letters of administrations have a retrospective effect as was stated by Park, B. in

Foster v. Bates. 226

“It is clear that the title of an administrator, though it does not exist until
the grant of administration, relates back to the time of the death of the
intestate; and that he may recover against a wrong doer who has seized or
converted the goods of the intestate after his death, in an action of trespass
or trover.”

The estate vests in him as owner and not the other beneficiaries. The point was made

in Chibikom v. Zamcho Florence, where in response to accusations that the

respondent was registering the family land in her marital name, Bawak J. said:

“It is settled law that the effect of the grant of letters of administration is
to vest the estate of the deceased in the administrator. Thus any
applications for land certificates on part of the unregistered land owned
by the deceased at the time of his death is by the administrator in his
capacity as such administrator.” 227

This decision encapsulates one of the dilemmas with which some of our courts

are confronted-that of applying English law without adaptation. Clearly the decision

contradicts the customary law by allowing the successor to register family land in her

name.

225
Commissioner of Stamp Duties (Queensland) v. Livingston [1965] A.C. 694, 707 (Per Lord
Radcliffe).
226
(1843) 12 M. & W. 226, 233.
227
(1997)1 CCLR, 213,219.

70
 What the decision signifies is that the beneficiaries have no rights over the

estate. All they have are equitable rights of ownership which are in “suspense” 228

during this period. These might never ripen into legal ownership if the estate is

insolvent, but it provides the basis for the beneficiaries to insist on proper

administration. Due to the fiduciary nature of the relationship between them and the

personal representative, the latter are entitled to what is known as a chose in action or

the right to compel the proper administration of the estate whenever the former is

found wanting in his duties in preserving the estate and managing it in the best

interest of those entitled.

Given that their rights are only probable, depending on the solvency of the

estate, the appropriateness of the term “beneficiaries” has been questioned. The

alternative term, “next-of-kin”, has been advanced 229 on the ground that it does not

connote any rights to property, but only that the person is closest to the deceased and

is by law entitled to Letters of Administration in preference to creditors. 230

The initial duty of the personal representative is to realise the estate, sell and

convert it into money. Part of the money is to be used for the administration, and the

residue to be distributed to the beneficiaries at the end of the administration. In this

respect, since the Trust of Land and Appointment of Trustees Act 1996, the estate is
231
constituted into a “trust of land” which empowers the personal representative to

sell both personalty and realty for the purpose of the administration. 232

228
J. Sainsbury plc v. O’Connor (Inspector of Taxes) [1991] S.T.C 318 at 326.
229
See Todd, Paul, Textbook on Trusts, London, Blackstone Press ltd., 4th edition, 1999, 74.
230
Administrator General’s Ordinance chapter 4 of the 1948 Laws of Nigeria.
231
The “trust of land” is defined in section 1 of the Act as “any trust of property which consists of or
includes land” and this means that the trust is not limited to land.
232
This replaces the “trust for sale” under section 33(1) of the Administration of Estates Act 1925, the
effect of which was that the personal representative had the duty to sell the estate. The duty brought
into play the doctrine of conversion based on the maxim that “Equity regards as done that which ought
to be done,”232 meaning in effect that land devolved as personalty even though no sale had yet
occurred. The beneficiaries had interests in the proceeds, actual or presumed which were equivalent to
those which they had in the land.

71
 In fact this is what obtains in Cameroon as in most cases the estate is

entrusted in the personal representative with instructions to make varying payments to

the beneficiaries. Sale of the property is only one of the methods by which the money

could be raised and often this is open to abuse as the tendency, often is for the

personal representative to sell the land and appropriate the proceeds.

The next duty of the personal representative consists in paying off the debts of

the deceased and expenses of the administration out of the net income from the sale

and conversion of the property. 233 The expenses consist of the cost of organising the

funeral and the cost of the administration generally. He is expected make an inventory

of the estate, to realise the investments which it is not proper to retain, to keep clear

and accurate accounts, and to be ready to make such accounts available whenever

required to do so by the court. 234

The administration of an estate could go on ad infinitum because the law fails

to fix a period when it must come to an end normally by distribution and effective

liquidation of the estate. This is one of the problems confronting our law of

succession, given that prolonged administration leads to abuse, as the personal

representative generally starts treating the property as belonging to him. In the

absence of a deadline for administration, distribution is only discretional and we could

not find any evidence where distribution is decided upon by the personal

representative without the intervention of the court.

2.5.: DISTRIBUTION OF THE RESIDUE

Distribution gives effect to the deceased’s duty of maintenance as it

effectively enables the beneficiaries to get into their entitlements within the limits of

233
Section 33 (2) Administration of Estates Act 1925.
234
See Order 48 Rule 43 (1) of the Supreme Court (Civil Procedure) Rules, Cap. 211 of the 1948 Laws
of Nigeria.

72
the estate. Whether the rules effectively establish parity between the beneficiaries

remains to be seen.

2.5.1: The content of the residuary estate.

The part of the estate which remains after the payment of funeral,

testamentary, administration expenses and debts what remains of the estate constitutes

the residuary estate. 235 This will normally include real and personal property but since

the distinction between the two was removed in matters of succession by the 1925

property laws, divides the residuary estate, for the purpose of distribution, into

personal chattels, the matrimonial home and the rest of the residuary estate.

Personal chattels are elaborately defined in section 55(1)(x) of the

Administration of Estates Act 1925. They include furniture, horses, cars, plates,

books, jewellery, wines and “articles of household or personal use or ornament” but

exclude any chattels used at the death of the intestate for business purposes, money

and securities for money. Roughly speaking the phrase includes everything that goes

to make a home excluding the home itself, it thus has a meaning quite distinct from

personalty.

The matrimonial home consists of the intestate’s interest in a dwelling house

in which the surviving spouse was resident at the intestate’s death. 236 Thus the

matrimonial home constitutes a distinct item of the estate only in the case of a married

intestate; otherwise it passes together with the other property excepting the personal

chattels. The law talks of an “interest in dwelling house” which could be a leasehold

or freehold but never a tenancy which is determinable by the landlord by notice within

two years from the intestate’s death. Freehold interests will be the most common in

235
Burn, E. H. & Cartwright, J. Modern Law of Real Property, London, Butterworths, 2006, 988.
236
See Schedule 2, para. 5(1) of Intestates’ Estates Act 1952.

73
Cameroon given that most people build their own houses, but with real estate

companies now giving out houses on location-vente terms it will not be unusual to

find some cases of leaseholds.

The last category of distributable property will consist of anything which is

neither part of the personal chattel or the matrimonial home. This will consist mainly

of land, landed property, investments and money or money’s worth.

2.5.2: Notification of the beneficiaries.

Section 27 of the Trustee Act 1925, enjoins personal representatives to give

notice of the intention to distribute, and require interested persons to send in their

particulars of claim within a maximum period of two months. When all the claims are

not made after the advertisement the personal representative could nevertheless the

obtain leave of court to distribute. The court then issues a “Benjamin Order” giving

the personal representative leave to distribute on a particular footing set out in the

order. In re Benjamin, 237 Phillip Benjamin, beneficiary under his father’s will had

disappeared in his father’s lifetime and thus made it difficult for the trustees to know

whether he had survived the testator. There was no evidence that he was married at

the time of the disappearance and no person had come forward as his wife or issue

after the normal advertisements. The trustees applied to the court for an order to

distribute. An order was made on the footing that Phillip Benjamin had predeceased

the testator.

The order is based on an inference and does not constitute a positive

declaration of rights. It is not to deprive the beneficiary or his issue of their

entitlement, if after the distribution it turns out that he or his issue survived the

deceased. The order merely protects the personal representative from liability, given

237
Also known as Neville v Benjamin [1902] 1 Ch. 723.

74
that the beneficiary could institute action aimed at recovering the property from

whoever it was given. 238 Hence in making the order Joyce, J cautioned “I am

anxious, however, not to say anything which would prevent his personal

representatives from making any claim if evidence of his death at any other time

should be subsequently forthcoming.” 239

An alternative to a Benjamin Order is for the personal representative to take

out missing beneficiary insurance. 240 In Re Evans 241 the next-of-kin of the deceased

intestate were his issue. He had a son and a daughter but had lost contact with the son

for almost thirty years before his death. The daughter, assuming that the son was dead

obtained letters of administration, and three years after the death sought legal advice

and took out a missing beneficiary insurance to cover the possibility of the son’s

reappearance before distributing the balance of the residue to herself. Four years later

the son reappeared. The proceeds of the insurance policy were paid to him but he

contended that the policy premium had not been a valid administration expense,

because it had facilitated an excessive distribution to the daughter. His claim was

dismissed, the premium being held to be a proper and allowable expense of the

administration even though the policy was taken out to facilitate a distribution in

favour of the personal representative.

Personal representatives, particularly of small estates should not be

discouraged from seeking practical solutions to difficult administration problems

without the expense of resort to the court. Missing beneficiary insurance may be both

cheaper and more effective than a Benjamin Order. 242

238
See the presumption of death in chapter four for more on this subject.
239
726, ibid.
240
Kerridge, R, & Brierley, A. R. H. Parry and Clark: The Law of Succession, London, Sweet and
Maxwell, 11th edition. 2002, 576.
241
[1999] 2 All. E. R. 777.
242
Kerridge, R, & Brierley, A. R. H. Parry and Clark: The Law of Succession, ibid. 577.

75
2.5.3: The rules of devolution.
Distribution is governed by the Administration of Estates Act 1925. Section 46

spelling out the rules of distribution is too lengthy to be reproduced here in toto.

However, as would emerge later the manner of devolution will depend on the

category of surviving relatives. When there is a surviving spouse the entitlement of

the other beneficiaries will be subject to what she or he gets, and so it is only logical

to use the surviving spouse as the springboard for the distribution exercise.

2.5.3.1: Devolution to the surviving spouse.

The surviving spouse is that person who was married to the deceased at the

time of death. The surviving spouse may well be the widower even if experience

shows that women are most likely to be in this situation due to the high mortality rate

for men as a result of factors such as having to worry over maintaining the family and

the tendency for husbands to be older than their wives. For these reasons the term as

used in this work if unqualified signifies the widow.

In the event of the simultaneous death of the husband and wife the

presumption of survivorship does not apply. Husbands as noted above are generally

older than their wives and any unqualified application of the presumption will

effectively be ordaining the devolution of a man’s property to his wife’s next-of-kin.

This, it is thought would be inconsistent with the presumed intention of the parties who

would most probably have favoured their respective next-of-kin. 243 The exclusion of

the presumption is enshrined in section 46(3) of the Intestate Estates Act 1952; 244 this

243
See Sherrin, C. H. and Bonehill, R.C., The Law and Practice of Intestate Succession, London, Sweet
and Maxwell, 1987, 164.
244
“Where the intestate and the intestate’s husband or wife have died in circumstances rendering it
uncertain which of them survived the other and the intestate’s husband or wife is by virtue of section
one hundred and eighty four of the Law of Property Act 1925244 deemed to have survived the intestate,

76
was modified by section 1(1) of the Law Reform (Succession) Act 1995, which now

makes the presumption applicable, provided that the spouse on whose behalf the claim

is made, survived by a minimum period of 28 days. 245 The reasons for the modification

are not clear but would it be far from the truth, to assume that it must have been due to

the realisation that younger men are increasingly getting married to older women?

As a basic rule the surviving spouse is entitled absolutely to the personal

chattels. 246 Since personal chattels are basically the content of the matrimonial home

the rule ensures that the spouse continues to live in a familiar environment, enjoys the

same comfort as if the deceased was still alive and above all, reduces the impact of

bereavement.

After the personal chattels whatever the spouse obtains out of the residuary

estate will be subject to the entitlements of other beneficiaries. So out of the residue

she gets a statutory legacy represented in a fixed net sum with interest. 247 This bears a

close resemblance to a general pecuniary legacy given to a surviving spouse by will,

with a direction that it has to be paid immediately after the testator’s death. Finally the

surviving spouse has a life interest in half of the residue if there are surviving issue. If

there are no issue but parent or brother or sister of the whole blood or their issue the

spouse takes half of the residue absolutely. In the absence of the above specified

relatives the spouse takes the entire residue absolutely. 248

this section shall, nevertheless, have effect as respects the intestate as if the husband or wife has not
survived the intestate.”
245
Being an amendment this section is incorporated into and now constitutes section 46 (2A) of the
Administration of Estates Act 1925:
“Where the intestate’s husband or wife survived the intestate but died before the end of 28 days
beginning with the day on which the intestate died, this section shall have effect as respects the
intestate as if the husband or wife had not survived the intestate.”
246
See section 46 (1) Administration of Estates Act 1925.
247
This was set at £1000 by section 46(1) and currently stands at £200.000 under the Family Provision
(Intestate Succession) Order 1993.
248
See sections 46(1) (i) and 47(2) and (3) of the Administration of Estates Act 1925.

77
 The Administration of Estates Act 1925 makes no express provision of the

widow’s entitlement to the matrimonial home. If the home was owned jointly it does

not form part of the residuary estate since the surviving spouse is entitled to it by

survivorship. If it was owned by the deceased the spouse could under section 41 of the

1925 Act demand the interest to be transferred to her in place of its pecuniary

equivalent. But this was possible only when the interest of the deceased did not

exceed the entitlement of the surviving spouse in the estate.

The limitation is offset by the Intestate Estates Act 1952, the second schedule

of which facilitates the acquisition of the “dwelling house” by the surviving spouse.

Provided that the surviving spouse was resident therein at the time of death, an

appropriation will be ordered even if the value of the asset exceeds her interest in the

estate. The appropriation operates partly in satisfaction of an interest of the surviving

spouse in the intestate’s estate and partly in return for the payment of money by the

spouse to cover the difference in value. In Re Phelps 249 the Court of Appeal applied

this provision and held that a widow could appropriate a house which exceeded the

value of her absolute interests on intestacy by making an equalisation payment.

The above rules are intended for monogamous marriages but since Re

Adadevoh 250 we were told that “spouse” could be “spouses” with the effect that the

applicable English law also covers situations of multiple wives. It has been noticed

that the courts have adopted the flavour of entertaining matters concerning the estates

of polygamists on the pretext that customary court decisions only give rise to “next-

of-kin declarations” which must be submitted to the High Courts in view of letters of

administration.

249
[1980] Ch. 275.
250
(1951) 13 W.A.C.A. 304.

78
 The point had been made earlier that applicable English statutes would be

adapted to local conditions. However the adaptation in this case would be that the

“surviving spouse” could be “surviving spouses” 251 but the fundamental question as

to whether the courts could vary the allotment intended for a single surviving spouse,

to meet the new definition of that term, would meet with a negative response since

Labinjoh v. Abake. 252

2.5.3.2: Entitlement of Issue.

The issue 253 if any takes what is left of the estate absolutely subject only to the

life interest of the spouse in half of the residue, that is, if she does not opt for a lump

sum payment. The estate is held on the “statutory trusts”254 for the issue subject to

three qualifications. “Statutory trusts” are subject to the principle of representation

according to which the issue of deceased’s child living at the intestate’s death takes

that child’s share per stirpes. Secondly the child or issue is not entitled to a vested

interest until he or she attains 18 years of age or marries before that age. 255 If none of

the children or their issue has attained a vested interest, their contingent interests will

be held for them on the statutory trust. If an issue does not attain a vested interest

because he died before doing so, his contingent interest passes to the other issue and

where all the contingent interests fail because none of the issue attains the vested

interest, the estate will be distributed as if the deceased had not been survived by any

issue. 256

251
See Coleman v. Shang [1961] A.C. 481; Adadevoh (Re) (1951)13 W.A.C.A. 304.
252
(1924) 5 N.L.R.32.
253
As explained earlier this is a generic expression for the children and descendants of the deceased,
including illegitimate, legitimated and adopted children.
254
This type of trust is provided for in section 46 (ii) of the 1925 and all that it means is that because
the issue has not yet attained a vested interest the property as to be held on his behalf by someone in
loco parentis until he does so and this is usually the personal representative.
255
See section 47 (1) (i) ibid.
256
Section 47 (2), ibid.

79
 Finally the “statutory trusts” are subject to the hotchpot principle. Actually the

principle is no longer part of the English law because it has been abolished by section

1 (2) of the Law Reform (Succession) Act 1995 as regards persons dying intestate on

or after January 1996. Its inclusion in this work is because it is still possible to find

cases of persons who died before that date in which case the 1925 Act still applies.

The principle is governed by section 47(1)(ii) of the Administration of Estates Act

1925 and requires certain benefits conferred on an issue by the intestate during his

lifetime to be brought into the account during distribution. The idea is to achieve

equality between the children as to the totality of the benefits received from their

intestate parent, both inter vivos and on death. It must be said that the equality which

the Act seeks to achieve might not have been intended by the deceased 257 and this,

probably, is the reason for its abolition. 258

2.5.3.3: Entitlement of Other Relatives.

These are divided into specified and unspecified, specified relatives consist of

the immediate family while unspecified relatives consist of the extended family.

Specified relatives share with the surviving spouse when there are no issue while

unspecified relatives only take in the absence of both the surviving spouse and issue.

Both categories of relatives take only on the statutory trust 259 and this implies the

continuity of the administration since by the trust the beneficiaries are entitled not to

the property itself but to the net proceeds of sale.

This is where the most pathetic cases can be encountered as was the case in

Nforba & another v. Nchari 260 where the 82 years old father and mother of the

257
More details are provided in the discussion of intestacy under the proposed Family Code in chapter
8.
258
See Borkowski, Textbook on Succession, 1997, supra, 22.
259
See section 46(1), supra.
260
1999 G.L.R. 59. (Gender Law Report)

80
deceased were held not to be entitled to anything, as the deceased was survived by a

widow and issue. The relevant part of the judgment delivered by Epuli J. went thus:

“In the light of section 46 (1) of the 1925 Act, where a man dies intestate
and leaves issue then whether he is survived by a parent or brother or
sister, the sole beneficiaries of his estate shall be the surviving spouse
and issue. In the case before me, the deceased Nchari died intestate. He
is survived by his wife, now a widow. He left issue, two boys and a
girl…. Therefore in pursuance of section 46(1) (i) of the Administration
of Estates Act 1925… the sole legal beneficiaries of the estate of … are
the widow… and the three children…. Under these circumstances, the
parents and siblings of the deceased have no legal claim on his estate;
whatever they get from it will depend on the goodwill and compassion of
the beneficiaries and not on any right. 261 ”

The justice of these rules could be defended in English law because the state

through social security, educational and health-care schemes has taken over the

responsibility normally incumbent on family members to provide basic services for

the young and the old. This has reduced the importance of succession as a means for

providing the family with the necessary assets to sustain its members over

generational time, to educate its dependent youth and to care for its ill or aged

members. 262 No such amenities exist in Cameroon and so the responsibility lies

squarely on family members to educate the young, care for the weak and old. It is thus

legitimate for parents to expect to be cared for in their old age. The children are

equally expected to ensure the continuity of the family by contributing towards the

upbringing of other children of the family, in the same way as other family members

contributed towards theirs. 263

261
Italics supplied.
262
See Sussman, M.B., The Family and Inheritance, New York, Russell Sage Foundation, 1970, 2.
263
This point is discussed in chapter 7(VI) (2).

81
 We noticed another trend whereby the courts move away from the rules of

distribution and go on a frolic of their own, by operating a system of distribution not

covered by the 1925 Act. In the Estate of Bechem Solomon 264 for instance the widow

applied for the revocation of letters of administration from the brother of the deceased

in favour of her daughter who was en ventre sa mère at the time of her father’s death.

Rather than maintain the continuity of administration, the court relied on section 44 265

of the Administration of Estates Act 1925 to partition the estate. Reliance on the Act

ended with the decision to distribute and what followed had nothing in common with

the scheme of distribution prescribed by the 1925 Act. Property was given to persons
266
not entitled under the Act and family property was created. Also in Galega v.

Galega 267 the mother of the deceased was included as a beneficiary in spite of the

existence of a surviving spouse and issue. Strict application of English law would

have excluded the relatives, just as the widows would have been excluded if

customary law was to be applied.

There is no doubt that the primary motivation for such decisions is to operate a

system of distribution which eschews squabbles whenever the distribution of an estate

excludes certain family members. Laudable, though they might be, the decisions can

not be defended on any legal grounds. It is agreed that applicable English statutes

must be adapted to local circumstances, but this is only as far as the adaptation does

not affect a fundamental alteration of the statute.

264
(2006) Suit No.HCK/AE/K.128/2001 (unreported)
265
This section provides that “subject to the foregoing provisions of this Act, a personal representative
is not bound to distribute the estate of the deceased before expiration of one year from the death.”
266
The following order was made: “(1) The house in the village at Tali will remain and be called
the family house. (2)The house in Mamfe is given and belongs to the wife of the deceased now
first plaintiff. (3)The compound at Ntoko Street, Kumba is distributed as follows: (i)The six
rooms permanent building is given to the defendant brother of the deceased.(ii) The two semi-
permanent houses inhabited by tenants are given and belong to the second plaintiff the only
surviving daughter of the deceased.”
267
Supra for facts.

82
 We must state that even English law recognises that the rules of distribution

laid down in the 1925 Act do not adequately balance the interest and needs of

members of the deceased family. It must have been realised that striking a person out

of the list of potential beneficiaries because of the existence of a widow and issue

does not mean that the person does not have needs, if those needs were satisfied by

the deceased, and which must now be met out of the estate. This must have the prime

motivation behind the Inheritance (Provision for Family and Dependants) Act 1975 as

amended by the Law Reform (Succession) Act 1995.

2.6: CLAIMS UNDER THE INHERITANCE (PROVISION FOR FAMILY

AND DEPENDANTS) ACT 1975

The Act provides an opportunity for persons with legal or moral claims to

maintenance by the deceased to apply for reasonable financial provision out of the

estate. To this effect section 1(1) enacts as follows:

“Where after the commencement of this Act a person dies domiciled in

England and Wales and is survived by any of the following persons:-
(a) wife or husband of the deceased;
(b) former wife or former husband of the deceased who had not remarried;
(c) child of the deceased;
(d) a person (not being a child of the deceased) who in the case of any
marriage to which the deceased was at any time a party, was treated by the
deceased as a child of the family in relation to that marriage;
(e) any person (not being a person included in the foregoing paragraphs)
who immediately before the death of the deceased was being maintained
either wholly or partially, by the deceased;
That person may apply to the court for an order under section 2 268 of this
Act on the ground that the disposition of the deceased estate effected by
his will or the law relating to intestacy, or the combination of his will and

268
This section outlines the various orders for financial provision that a court might make.

83
 that law, is not such as to make reasonable financial provision for the
applicant.”

An amendment of the Act by the Law Reform (Succession) Act 1995 added

“cohabitants”, being persons who for a period at least two years before the death of

the deceased lived together with him in the same household as spouses. 269 Unlike the

“dependant” the “cohabitant” does not need to prove dependence on the deceased.

Household as used here has the same meaning as it does in matrimonial law, referring

to a “state of affairs” rather than a place. It could exist as long as there is some

element of communal living between the parties as husband and wife. 270

The relatives of the deceased who do not come within the ambit of the

Administration of Estates Act 1925 because Relatives not expressly included in the

Administration of Estates Act 1925 could apply for provision under (e) as having

been maintained by the deceased. Maintenance is a situation whereby “the deceased,

otherwise than for full valuable consideration, was making a substantial contribution

in money or money’s worth towards the reasonable needs of the person.” 271 It is

therefore an open-ended category which could avail any persons with proof of being

so maintained even though they had no legally enforceable rights to maintenance

against the deceased in his lifetime.

Mistresses can claim under this category and hence the Act is dubbed a

“mistress-charter.” 272 The term mistress covers two categories of women. The first

category is the “common law wife” 273 or “cohabitant” as per the 1995 amendment. It

is argued in favour of this category of women that “although in judicial parlance such

269
See section 2 the Law Reform (Succession) Act 1995.
270
See Borkowski, Borkowski, Textbook on Succession, 1997, supra, 252.
271
See section 1(3).
272
See Miller, Gareth, The Machinery of Succession, Portsmouth, Professional Books Limited, 1977,
26.
273
See Sastry Velaider Aronegary v. Sembecutty Vaigalie (1881) 6 App. Cas. 364, 371; Malone v.
Harrison [1979] 1W.L.R. 1353.

84
a person is frequently referred to as a ‘mistress’ this [it?] is not entirely apt to refer to

a woman with whom the deceased has lived in a stable relationship for twenty or

thirty years or more.” 274 The second category consists of women with whom the

deceased did not cohabit but provided for their every need and exercised absolute

control over their social life.

In Malone v. Harrison 275 the testator entertained multiple relationships outside

his marital life. The deceased was survived by his wife, two “mistresses” and a

brother. He was separated from his wife in 1939 and so lived apart from her though

not divorced. In 1958 he met the first woman who subsequently, with her son moved

in with the deceased and were maintained by him until his death in 1977. The

deceased had another relationship since 1965 with another woman (plaintiff) for

whom he assumed the responsibility for maintenance.

The deceased in his will provided for his wife, the first woman and her son,

and his brother (defendant) but not for the plaintiff. The plaintiff applied to the court

for provision out of the estate and the question whether she qualified under the Act

was answered in the affirmative. Hollings J succinctly stated her position:

“She was never a de facto wife [common-law-wife] or a sole mistress at

any time, but for some twelve years she was a woman who it was the
deceased’s pleasure to visit and relax with and have occasional sexual
intercourse with, and who he took abroad with him regularly and
frequently and there treated as his wife for the time being. She does not
pretend to have been more than that. She does not claim to have
rendered him any particular service, but she gave him her affection, even
love, and he returned it after a fashion.” 276

274
See Miller, Gareth, The Machinery of Succession, Portsmouth, Professional Books Limited, 1977,
26
275
[1979] 1W.L.R. 1353.
276
Ibid. 1360.

85
 Giving the privilege of widowhood to a woman when she did not assume the

duties of marriage could be questioned on moral and social grounds. The widow and

children whose entitlements are liable to diminish as a result of the mistress’s

application must certainly and justifiably feel a strong sense of grievance. It was

feared in the years immediately following the Act that this could result in a flurry of

litigation 277 from women who entertained even the most trivial but dependent

relationship with the deceased. This turned out to have been a false alarm, probably

due to the cushioning effects of government policy in providing various social

security schemes. The same fear would be legitimate in Cameroon today should the

courts decide to apply the Act. The ultimate test, we submit, should be that the

applicant should come within the meaning of “cohabitant” in the 1995 amendment.

2.6.1: The Meaning of Reasonable Financial Provision.

The Act empowers the courts to make reasonable financial provision out of an

estate in favour of persons negatively affected by provisions in a will or rules of

intestacy.

Reasonable financial provision is divided into the “surviving spouse standard”

applying to applicants of that category, and the “maintenance standard” applying to

any other applicant. The test whether the provision made for the applicant under the

will or intestacy is reasonable is in each case an objective one. In making the decision

the courts are to be guided by the facts as known to them at the date of the hearing

rather than the knowledge of the testator about the applicant at the time of the will278

which would make the test subjective.

277
See Samuels, Alec “Inheritance (Provision for Family and Dependants) Act 1975 [1976] 39 M.L.R,
183-186, 184.
278
See section 3 (5) of the 1975 Act

86
 It remains, however, questionable whether the two are mutually exclusive,

given that the courts are enjoined to take into account such matters as the “financial

resources and financial needs which the applicant has or is likely to have in the

foreseeable future.” 279 Hence the courts have had to consider factors particular to the

applicant which could conveniently be termed factors of the subjective standard.

Reasonable financial provision at the “surviving spouse standard” means

“such financial provision as it would be reasonable in all the circumstances of the case

for a husband or wife to receive, whether or not that provision is required for his or

her maintenance.” 280 This standard applies equally to widows and widowers but we

shall conduct this discussion from the point of view of the widow.

The test is for the provision to be at least equal to that of a divorced spouse.

The court’s discretion in this respect is therefore as wide as when making orders for

financial provision on divorce. This means that the Act will be applied in conjunction

with the Matrimonial Causes Act of 1973. 281 The position with regard to property

adjustment on divorce as represented by the recent decision of the House of Lords in

White v White 282 is that the objective should be to achieve a result which is fair and

non-discriminatory. There is, however, no presumption of equal distribution of assets,

but as a general guide, “equality should be departed from only if, and to the extent

that, there is good reason for doing so.” 283

Caution is therefore necessary in applying the White v White 284 guidelines in

the context of actions for reasonable financial provision under the 1975 Act. In the

279
See section 3(1), ibid.
280
See section 1 (2) (a) of the 1975 Act.
281
Coming within the exception provided for in section 15 of the Southern Cameroon High Cour Law
1955, allowing the application of post 1900 English statutes in relation to probate, divorce and
matrimonial proceedings. See chapter 2, the section on the received English law for more.
282
[2001] 1 A. C. 596.
283
Per Lord Nicholls of Birkenhead, 605.
284
[2001] 1 A. C. 596.

87
case of divorce there are two households to be run and the crucial question therefore

is how to divide up the property fairly between the two parties. Under the 1975 Act,

the deceased is dead and has no future earthly needs. He is entitled to bequeath his

estate to whomever he pleases; his only statutory obligation is to make reasonable

financial provision for his widow and other dependants. Hence, depending on certain

factors, the concept of equality may have very little impact on the provision made.

The absence of division between two households should mean that on death, a spouse

should expect a greater share than on divorce.285

In making the order the courts are to consider the age of the appellant, the

duration of the marriage and the contribution made by the appellant to the welfare of

the deceased’s family. 286 The other factors call for no comment but the duration of the

marriage does. A woman goes into marriage with the knowledge that her obligations

to the husband are for an indeterminate duration and could take all manner of forms.

If he was considerably older she might well be expected to spend a number of years

nursing an invalid. 287 So on marrying the deceased the widow must have, as per

Singer, J. in Miller v. Miller, “a reasonable expectation that her life as once again a
288
single woman need not revert to what it was before her marriage” and she could

look forward to financial security for the rest of her life. 289

It is suggested in every case that in making the order the courts should

separate her share in “family property” before determining her proportion in the

remainder of the estate which would be necessary to provide her with sufficient

285
See Herring, Jonathan, Family Law, London, Pearson Longman, 2007, 690.
286
Kerridge, R, & Brierley, A. R. H. Parry and Clark: The Law of Succession, London, Sweet and
Maxwell, 11th edition. 2002, 159.
287
See Cunliffe v. Fielden & Others [2006] Ch. 361 (C. A.)
288
[2005] 2 FCR 713.
289
Cunliffe v Fielden, supra.

88
support. 290 “Family property” as used here signifies property acquired by the joint

resources of the spouses, unlike in customary law where it is property held on behalf

of the family. Family property here therefore takes the form of a joint tenancy and the

doctrine of survivorship operates to transfer the estate to the surviving tenant.

Where the deceased was in joint tenancy with a third party the spouse would

be entitled to his own share of the property pursuant to section 9(1) 291 of the

Inheritance (Provision for Family and Dependants) Act 1975, according to which:

“The proportionate share of the property which would have belonged to the deceased

if there had been severance of the joint ownership should be treated as the share of the

property which the court was empowered to treat as part of the estate.” 292

Reasonable financial provision for the maintenance standard is said to

constitute “such financial provision as it would be reasonable in all the circumstances

of the case for the applicant to receive for his maintenance.” 293 In Re Christie

deceased 294 it was held that the applicant does not need to be in “a state of destitution

or financial difficulty” to apply for “maintenance”, which “refers to no more than the

applicant’s way of life and wellbeing, his health and financial security of his

immediate family for whom he is responsible.” 295 A similar position was stated in Re

290
Herring, Jonathan, Family Law, supra, 690.
291
“Where a deceased person was immediately before his death beneficially entitled to a joint tenancy
of any property, then, if, before the end of the period of six months from the date on which
representation with respect to the estate of the deceased was first taken out, an application is made for
an order under section 2 of this Act the court for purpose of facilitating the making of financial
provisions for the applicant under this Act may order that the deceased’s severable share of that of that
property, at the value thereof immediately before his death, shall, to such extent as appears to the court
to be just in all the circumstances of the case, be treated for the purpose of this Act as part of the estate
of the deceased.”
292
In Dingmar v. Dingmar [2007] Ch. 109, (C.A.) the only substantial asset of the deceased was the
family home, owned not with the widow, but with his son of a previous marriage. Upon the death the
son became the sole owner by right of survivorship as confirmed by a decision of the county court,
which rejected claims by the applicant that she had a beneficial interest in the property. The applicant
nevertheless obtained letters of administration and applied under the 1975 Act and argued successfully
for the deceased’s severable share of the property to be treated as part of his net estate.
293
See section (2) (b) of the 1975 Act.
294
[1979] 1 Ch. 168.
295
At 174.

89
Coventry Deceased 296 where Buckley L. J. suggested that “maintenance” means

“such financial provision as would be reasonable in all the circumstances of the case

to enable the applicant to maintain himself in a manner suitable to those

circumstances.” Thus the test as stated in Re Christie deceased 297 is:

“Whether the disposition of the deceased’s estate effected by his will or

the law relating to intestacy or the combination of his will and that law
is not such as would make reasonable financial provision for the
applicant in the sense of such financial provision as it would be
reasonable in all the circumstances of the case for the applicant to
receive for the maintenance of his way of life and wellbeing, health and
financial security and the wellbeing, health and financial security of his
immediate family for whom he is responsible.”

Provision for maintenance therefore does not mean merely the provision for

the bare necessities of life, so as to keep an applicant at subsistence level. 298 Nor is it

also a windfall to the applicant which may be regarded as reasonably desirable for his

general benefit or welfare.” 299 These points were reiterated more recently In re Land

Deceased 300 where financial provision was made in favour of a son found guilty of

the mother’s manslaughter. 301 In the words of Norris, J. “I hold that the claimant’s

claim (being that of an adult son) can only be a claim for such financial provision as it

would be reasonable in all the circumstances for him to receive for his maintenance.

This means provision which will directly or indirectly enable the claimant in the

future to discharge the cost of his daily living according to the standard established

over the years whilst living with his parents.”

296
[1980] 1 Ch. (C.A.).461, 494.
297
[1979] 1 Ch. 168, 175.
298
Re Coventry Deceased [1980] 1 Ch. 461. (C.A.).
299
Per Goff L. J. ibid. 485.
300
[2007] 1 W. L. R. 1009.
301
Manslaughter might preclude a person from benefiting under a will or intestacy but not from
applying under the 1975 Act.

90
 The courts cannot on their own volition invoke the Act in favour of any

person. An application must be made by the parties, generally through their lawyers

not later than six months from the grant of probate or letters of administration. 302 The

courts, however, have the discretion to accept applications made after this period,

especially after distribution. 303

But the courts have been unable to apply the cushioning effects of 1975 Act to

good use in Cameroon, where its importance is yet to be seen. This Act is part of our

law and we think that it is the duty of lawyers to bring it to the attention of the

courts. 304 It has a propensity to reduce the social tension and the scare of witchcraft

often attendant on decisions that favour the surviving spouse or issue of the deceased,

against relatives who feel legitimately entitled to a share of the succession.

Conclusion
The English law of intestacy effectively balances the interests and needs of

family members, “family” including the marital and blood families. The list of

beneficiaries takes into account the duty of maintenance and there is no gender-based

bias. The surviving spouse even comes first in order precedence, subject only to the

existence of issue. The principle of precedence however eliminates a substantial

number of those who would otherwise have qualified as beneficiaries and this is

responsible for decisions such as the Nforba case. This is basically because the courts

302
Section 4 Inheritance (Provision for Family and Dependants) Act 1975.
303
The guidelines as to how the courts could exercise the discretion conferred on it under section 4 of
the 1975 Act to overlook the limitation period were spelt out in Re Salmon [1981] Ch. 167: “(i) the
discretion is to be exercised judicially, (ii) the onus lies on the applicant to make out a substantial case
for it being just and proper for the court to exercise its discretion, and the court should consider (iii)
how promptly, and in what circumstances, the applicant applied to the court for an extension and also
warned the defendant of the proposed application, (iv) whether negotiations commenced within the
time limit (if so, and time ran out while they were proceeding, this is likely to encourage the court to
extend the time), (v) whether the estate has been distributed before a claim under the Act was made or
notified, (vi) whether a refusal to extend the time would leave the applicant without redress against
anybody or, alternatively, with a claim against his own solicitor for negligence.”
304
Failing to do might expose lawyers to actions in negligence under the rule Rondel v Worseley
(1969) i W. L. R.. 191.

91
have not been ready to adapt the law in such a way that persons with a legal right to

maintenance in customary law could be brought in as beneficiaries.

However the existence of the inheritance (Provision for Family and

Dependants) Act 1975 gives the persons excluded to apply for reasonable financial

provincial out of the estate. Unfortunately the 1975 Act cannot be directly invoked by

the courts and this reduces the effectiveness of English law as an alternative to the

existing laws of succession.

Furthermore administration has no date limit and distribution is only

facultative, the attitude of the courts of which is evident in Nana v. Nana 305 where it

was held that “Nothing shall be partitioned as neither the plaintiff nor the defendant

asked for it although through all the proceedings the plaintiff insinuated that she was

entitled to the …residence as her matrimonial home while the defendant insinuated it

was the family home because she helped to build it.” This has been abused by some

personal representatives who tend to treat the property as theirs during the prolonged

period of administration.

305
(2005) Suit No. HCF/PROB/AE1/2001-2002 (unreported)

92
 CHAPTER THREE: INTESTACY IN FRENCH LAW

Introduction
French law also presumes death in the case of disappearance even though the

approach differs from that adopted in English law. It begins with a présomption

d’absence and culminates in a déclaration d’absence both of which are at the instance

of the potential beneficiaries or the Attorney-General. 306

This chapter is concerned with determining the beneficiaries and their

entitlements, given that French law has no interim period of administration. This will

be after considering the applicable laws and their application.

3. I: THE APPLICABLE LAWS

The substantive rules governing French intestacy as applied in Francophone

Cameroon are drawn mainly from articles 727 to 888 Civil Code of 1804. Other

related matters such as the status of legitimated and adopted children vis-à-vis the

estate of the deceased are governed by articles 333 and 358 respectively.

These articles are applied together with the amendments thereto occasioned

by the presence of rules which smack of customary law. The code was made in the

backdrop of conflicting customs and the idea not necessarily the modernisation but

the harmonisation of the different customs, with a view to establishing a “le droit

commun” consisting basically of codified customs binding on all persons. Much has

changed on human rights since 1804 which necessitated the amendments intended to

make the code a reflection of “la civilisation Française”. To this effect the following

amendments are generally incorporated into the relevant articles: Law of 22

November to 1 December 1790 establishing reciprocal succession rights for spouses,

Law of 9 March 1891 giving the surviving spouse succession rights even when the

306
Article 112, civil code.

93
deceased is survived by relatives, Law No. 72-3 of 3 January 1972 which continued

and completed the above amendment in articles 765 to 767 of the code and the

Ordinance of 23 December 1958 which removed the need for a court order to enable

the surviving spouse take possession of the estate.

3.1.1: The application of the rules.

The enabling statutes for the reception of French law contain no provision for a

limitation date and adaptation. French law is only exceptionally applied where the

parties have rejected the jurisdiction of the traditional law courts or where customary

law is said to be non-existent, obscure or contrary to public policy. In any of these

circumstances the courts function as if there is no customary law which require

adaptation.

The only known situation of adaptation is the recognition of the entitlement of

the widows in polygamous marriages. This could be attributed more to the Civil Status

Registration Ordinance of 1981 which recognises both monogamy and polygamy

rather than the ingenuity of the courts. The real test for the courts, as is the case in

Anglophone Cameroon, is whether they could vary the statutory allocation for the

widow of a monogamous marriage which now has to be shared between more widows.

In Veuve Ebongue c/ Ebongue Nyambe Nestor 307 the Supreme Court showed its

inability to effect such change when it held the widows of a polygamous marriage to be

entitled to the one quarter of the estate reserved by the civil code for the widow of a

monogamous marriage. 308

307
Cour Suprême, Arrêt No. 14/L du 9 Décembre 1976.
308
Article 767(3) of the code.

94
 3.2: COURTS ADMINISTERING FRENCH LAW.

French law is administered as a rule 309 by modern and traditional law courts.

3.2.1: Original Jurisdiction: Tribunaux de Premier Degré

The tribunaux coutumiers and tribunaux de premier degré have jurisdiction

over matters involving persons subject to the customary and Muslim laws. They are

regulated by Decree No.69/DF/544 of 19 December 1969 on organisation of the

traditional law jurisdictions of that part of the country. Jurisdiction over succession is

exercised by the tribunaux de premier degré pursuant to article 4(1)(a) according to

which “Les tribunaux de premier degré connaissent des procédures relatives à l’état

de personnes, à l’état civil, au marriage, au divorce, à la filaition, aux successions et

aux droits réels immobiliers.”

The courts are situated at the level of the administrative sub divisions and have

jurisdiction over matters arising therein. Succession is normally opened310 in the court

of the last residence of the deceased. 311 Jurisdiction is limited to matters in which the

parties are natives pursuant to article 1(1) of the Judicial Organisation Decree of 31

July 1927. Sub-section 2 describes the rather than defines the term “native”:

“The following are natives within the meaning of this decree: individuals
who originate from the territories under the French mandate of Togo and
Cameroon, of French West and equatorial Africa not having the status of
French citizens–and those who originate from foreign countries or
countries placed under foreign mandate–comprised in these territories or
neighbouring countries who do not in their countries of origin have
European citizenship.” 312

309
This is to distinguish from Anglophone Cameroon where the high courts only exceptionally have
jurisdiction over estates subject to customary law because of their monopoly over letters of
administration.
310
See article 8(8) of the Code de Procédures Civil et Commerciale
311
See article 10 of the Civil Code and article 5 of Decree No. 69/DF/544 of 19 December 1969.
312
“Sont indigènes au sens du présent décret: les individus originaires des territoires sous mandat
français du Togo et du Cameroun, des possessions de l’Afrique occidenatale et de l’Afrique équatoriale
français ne possédant pas la qualité de citoyen français–et ceux qui sont originaires des pays étrangers

95
Therefore, every African who does not have a European status is subject to the

jurisdiction of traditional law courts.

The application of French law by these courts may be explained by the fact

that until the judicial reforms of 1972 they had exclusive jurisdiction over succession.

Article 3(1) (a) of Decree No 69/DF/544 of 19 December 1969 endorses the

application by stipulating that in the case of conflict of customs the courts could

administer, inter alia, “the general principles of modern law.” The Supreme Court

affirms the courts’ vocation to apply customary law and provisions of the civil code

where customary law is silent, obscure or contrary to public order, 313 and the trial

courts themselves have not hesitated to rely on the provision to apply provisions of

the civil code. 314

The composition of the courts enables the application of French law. They are

presided over by administrative or judicial authorities, 315 assisted by assessors also

nominated by the administration. 316 Furthermore, the courts are attached to the Court

of First Instance in the same jurisdiction 317 where they constitute the “Chambre

Coutumière”. 318 Hence the president of the modern court is also the president of the

ou placés sous mandat étranger–compris entre ces territoires ou pays limitrophes ne possédant pas dans
leur pays d’origine le statut des nationaux européens.”
313
See Keze Isaac v. Noumbissie Jean-Jacques, Arret No. 129 du 13 Mai 1967(obscure); Betow Omar
Charles v. Ngo Mbenoum Julienne, Arret No. 151 du 18 Juin 1968(silence); Dame Wandji Agathe v.
Dandou Frédéric, Arret No. 96 du 11 Mars 1969(contrary to the public order).
314
See La Succession de Doualla Joseph, Jugement no. 232/c du 5 Mai 1988, TPG Dschang ; La
Succession Kamte Louis Gabriel, Jugement no. 53/ADD/ TPD du 24 Janvier, 1994, TPD Nkongsamba.
315
This is the import of article 7 of the 1969 decree on traditional jurisdictions according to which:
(1) The tribunal de premier degré is composed of a president and two assessors
acting in a deliberative capacity
(2) The president is nominated by an order of the Minister of Justice among the
civil servants in the customary court area.
(3) In case of absence or indisposition of the president, he is replaced fully by the
Divisional Officer in the court area or by an assistant Divisional Officer
designated by the latter.
316
See article 10(1) of the 1969 decree.
317
Article 9(1) directs the Minister of Justice to “by order attach the presidency of a tribunal de premier
degré …to the presidency of the court of first instance of the court area.”
318
This became apparent to this researcher from a statement in the judgment of the supreme court in
Affaire Baba Iyayi c/ Hadja Aminatou and Hadja Bintou, Arrêt No. 083 of 32 March 2000

96
customary court, who being a complete stranger in the locality would find more

comfort in applying the civil code, than get into the intricate and time consuming

exercise of ascertaining the customary law of the parties. 319 Litigants are also entitled

to legal representation. 320

The application of the civil code is automatic where customary law is silent or

obscure. Where, however, there is a clear rule in existence, it can only be excluded on

grounds of ordre public or raison écrite. 321 The courts have to make a choice between

the rule of customary law and French law. French law applies automatically whenever

one of the parties in the dispute is subject to French law. 322

Where both parties are subject to customary law the fact that the deceased left

a will or contracted a civil marriage becomes important. In the case of a will the

question is whether it conforms to the requirements of validity in French law, as spelt

out in articles 970 323 , 971 324 and 976 325 of the civil code.

(unreported), the relevant part of which is highlighted: “Considérant que suivant process-verbal No. 11
en date du 5 Novembre 1999 sieur Baba Iyayi a relevé appel du jugement No. 132 rendu le 28 Octobre
1999 par la Chambre Coutmuière du Tribunal de Première Instance de Yaoundé dans l’affaire de
succession de feu Alhadji Ibrahim Aba.”
319
Avom, Vincelline Akomndja, « L’énonciation de la coutume en droit Camerounaise de la famille:
Leurre ou réalité? » (2006) 116 Penant, 59-86, 70.
320
Article 43(1) (a) ibid. Timtchueng has the following to say about the state of the traditional law
courts and customary law in Francophone Cameroon: “The separation between the traditional courts
and those of common law [having jurisdiction over all persons] has become increasingly blurred. The
characteristics of those who use traditional courts have changed. The individuals appearing in cases
brought before the traditional courts are increasingly legal professionals rather than those with no
formal legal training. Furthermore, the customs that were the usual source of settlement of disputes
have in practice ceased being applied, while at the same time, law based on western practice is
becoming more widely used and rooted in these courts”. Timtchueng Moise, ‘The gradual
disappearance of the particularities of traditional courts in Cameroon’ in Open Society Institute (Africa
Governance Monitoring & Advocacy Project, AfriMAP, Oct 2005), 1-5 at 1. Available online at:
www.afrimap.org/english/images/paper/file436f7 cb73c2d1.doc.
321
We explained in 2.2.3.4 that this is the French equivalence of the English incompatibility doctrine,
which establishes the supremacy of the civil code as written law over customary law.
322
Affaire Kouoh, C.S.C.O., Arrêt No. 29 du 23 Avril, 1963, Bull. P.293 (Cours Suprême Cameroun
Orientale).
323
Provides for holographic wills, which must be written, dated and signed by the testator.
324
Provides for notatrial wills that must be made in the presence of two notary publics or one notary
public and two witnesses.
325
Provides for wills in mystical form, being wills in a sealed and stamped envelope presented to the
notary public and two witnesses with the declaration that the envelope contains his last will and
testament.

97
3.2.2: Original Jurisdiction: Tribunaux de Grande Instances

The extension of the High Courts to Francophone Cameroon by the judicial

reforms of 1972 meant that they share jurisdiction with the Tribunaux de Premier

Degré. The courts are situated in each of the administrative divisions of the country

and have jurisdiction over matters arising therein.

The 1972 reforms failed to mention the type of law to be applied by the high

courts. Was it to be the Civil Code, the customary law, or both as is the case in

Anglophone Cameroon? The answer came through the Supreme Court decision in the

1981 Arrêt Angoa Parfait which laid down the principle according to which “l’option

de juridiction emporte option de législation”. 326 This means that the choice of

jurisdiction entails the choice of law and high courts being modern law courts can

only administer French law.

These courts have jurisdiction in matters involving foreigners, native evolués

and persons who have renounced their customary statuses. 327 Renunciation of the

customary status today no longer takes the form it did in the colonial days. Professor

Camerlinck classifies renunciation into “la renunciation option” and “la renunciation

admission.” 328 The latter represents a complete assimilation to French law as would

be the case when the deceased contracted a statutory marriage or left a valid will.329

“Renunciation option” entitles the parties in litigation to decline the jurisdiction of

traditional law courts and is statutorily provided for in article 2 of the Decree of

December 1969 on the organisation of traditional jurisdictions.

326
Cour Suprème Arrêt No. 28/cc du 18 décembre 1981.
327
This was made possible by article 72 of the French Constitution of 1946.
328
Cited by André P. Robert, ibid.
329
See Yvon Gouet, « L’Article 82 (Paragraphe1) de la constitution relatif à l’option de satut et
élaboration de la ‘théorie des ststuts civils’ du droit Francias moderne, » (1957) 67 Penant 1-94, 27.

98
 In practice, however, the courts are circumspect to assume jurisdiction in cases

of “renunciation option”. 330 Litigants are referred to the Customary Courts considered

to be the appropriate fora for matters of succession. Christine Youego qualifies the

attitude of the High Courts as “contra legem” and blames it on the ignorance of Court

Registrars who fail to realise that things are no longer as they were in the colonial

days, when customary courts had exclusive jurisdiction over succession, 331 and

Nicole-Claire Ndoko describes it as “a characterised judicial obstruction,” 332 meaning

that the courts deliberately avoid to assume jurisdiction because it would enable

women to have succession rights.

The problem could be the wording of section 16(c) of Law No. 89/019 of 29

December 1989 amending the 1972 Judicial Organization Ordinance. This section

recognises the jurisdiction of High Courts in matters relating to “the status of persons

and especially to civil status, marriage, divorce, filiation, adoption and succession”

but makes it “subject to the legal provisions applicable to traditional courts as regards

ratione personae jurisdiction.”

As pointed out earlier, prior to 1972 only the traditional law jurisdictions were

competent in succession matters. And the ratione personae jurisdiction of these courts

as provided in article 1 of the un-repealed judicial organisation decree of 31 July 1927

includes those who today claim to be subject to the jurisdiction of High Courts. So the

courts have simply been considering themselves as still bound by this law, since the

1972 judicial reforms and subsequent amendments say that the customary courts are

to continue to function as before the reforms.

330
Since the 1972 reforms a High Court assumed jurisdiction for the first time in the1996 Affaire
Succession Fokam Kamga Paul, heard by the High Court of Mifi Division in Bafoussam. Jugement No.
49/CIV/du 05 Mars 1996, (1998) 34 Juridis Périodique, pp.43-47.
331
“La situation Juridique du Conjoint Survivant au Cameroun,” (1990) 2 African Law Review,
pp.17-44, 29.
332
Nicole- Claire Ndoko, “L’idée d’egalité dans le Droit Successoral Camerounais: dernières
tendances de la Jurisprudence en matière de la succession ab intastat” p. 1-72, 59 (unpublished).

99
 This controversy might now be laid to rest as the present judicial organisation

law 333 no longer contains the phrase “subject to the legal provisions applicable to

traditional courts as regards ratione personae jurisdiction.” The courts could be less

circumspect, although this might likely throw open the floodgates of litigation in the

High Courts to persons who should normally be subject to the jurisdiction of

customary courts but who want the advantages offered by French law.

3.2.3: Appellate Jurisdiction: Courts of Appeal and Supreme Court.

Same as in 2.2.2 (supra).

3.3: DETERMINING THE INTESTATE BENEFICIARIES.

French law like English law resorts to presumptions in order to determine

survivorship when persons liable to succeed each other die together. In what is

referred to as the théorie des comourants the ages and sex of the persons are

determinant in ascertaining the order of death. To this effect article 720 of the Civil

Code provides:

“If many persons respectively called upon to succeed each other perish in
the same event without the possibility of knowing who of them was the
first to die, the presumption of survival is determined by the circumstance
of fact, in default, by reference to age or sex.” 334

Establishing survivorship from the circumstances of fact would of course be

impossible since the onus would be on the person claiming succession rights to do

so. 335 Emphasis is therefore placed on the second method which has led to the

evolution of a number of presumptions. Firstly where the persons were below fifteen

years old the oldest of them, for being more robust than the others, will be presumed to

333
Article 18(1) (b), Judicial Organisation Law No. 2006/015 of 29 December 2006.
334
“Si plusieurs personnes respectivement appelées à la succession l’une de l’autre périssent dans un
mème événement sans qu’on puisse reconnoitre laquelle est décédé la première, la présomption de
survie est determiné par les circonstances des faits, et à leurs défaut, par la force de l’âge ou du sexe.”
335
See articles 135 and 725 of the civil code.

100
have survived. 336 Secondly, if they are more than sixty years old the youngest of them

would be presumed have survived the others. 337 Thirdly, if they are above fifteen years

but less than sixty years, the youngest would be presumed to have survived. In this

category the sex of the parties becomes relevant, for it is provided in the case of a man

and woman of the same age or where the difference between them is less than one year

that the man would be presumed to have survived the woman. 338 Professor Savatier

argues that this is wrong because statistically, women are more resistant to death than

men. 339 The last category is a mixture of persons, some below fifteen years old and

others above sixty years. The presumption here favours persons of the former group. 340

The worry here is whether it could logically be presumed that a child of one day old

survived a man of sixty years and one day.

Article 731 of the French Civil Code lays down the categories of beneficiaries

based presumably on proximity to the deceased:

“The properties are granted to the children and descendants of the

deceased, to his ascendants, to his collateral parents and to his surviving
partner in that order and in accordance with rules hereinafter to be
determined.” 341
The article gave rise to a number of assumptions as to the basis of the choices.

Firstly, succession is said to be based on the existence of a lien de parenté, between

the deceased and the claimant. 342 We are unable to find an exact English equivalent

for the term. The Collins French Dictionary translates it as “family relationship”

which we submit could be appropriate for family law and not the law of succession.

336
Article 721(1) Code Civil.
337
Article 721(2), ibid.
338
Article 722.
339
Savatier, René, “Successions et Liberalités” (1977) Rev. Trim. De Drt. Civ. 801-805, 802.
340
Article 721(3).
341
“Les successions sont déféres aux enfants et descendants du défunt, à ses ascendants, à ses parents
collatèraux et à son conjoint survivant, dans l’ordre et suivant les règles ci-après déterminées.”
342
See Guimchand, Serge, Droit Patrimonial de la Famille au Senegal, Paris, Librairie Générale de
Droit et de Jurisprudence, 1980, 421.

101
The concept of the “family” varies in these subjects. In Family Law it includes the

spouses 343 while in the law of succession it is restricted to persons related through a

common ancestor. 344

The lien de parenté therefore signifies a three-tiered relationship, traced from

the deceased, then his parents and finally his grandparents. Naturally this

interpretation would exclude adopted children and the surviving spouse. To prevent

this narrow construction of the term Guinchard 345 argues that the notion of parenté

must be construed widely to include the surviving spouse. The parenté of the

deceased is constituted by persons “who descend from him or from whom he

descends,” and “allies” meaning the surviving spouse. 346 With a similar

preoccupation, Marty and Raynaud define the term as “the relationship between

persons one of whom descends from the other, all of who descend from the same

author or are assimilated to them by the law.” 347 This last definition covers

relationships by blood and adoption and excludes the surviving spouse. The

compromise position between the two would result in the conclusion that the criteria

for the existence of a lien de parenté could be biological, adoptive and marital.

The second assumption is that succession is based on the presumed affection of

the deceased. 348 And according to Trielhard 349 “the legislator called upon to trace an

order of succession must be infused with the natural and legitimate affections” of the

deceased towards the claimants, so that the rules laid down are a reflection of the

343
Ibid, 6.
344
See Mazeaud et al, Leçons de Droit Civil. La Famille, Paris, Montchrestien, 1995, 5.
345
Droit Patrimonial de la Famille au Senegal, Paris, Librairie Générale de Droit et de Jurisprudence,
1980, 421.
346
“La parenté du défunt est constituée par l’ensemble de ceux qui descendent de lui ou dont il
descend; quant aux alliés il s’agit du conjoint survivant et de lui seulement…”
347
Marty, G. & Raynaud, P. Droit Civil. Les Personnes, Paris, Sirey, 3em edition, 1976, p.3.
348
See Guinchard, Serge, Droit Patrimonial de la Famille au Senegal, Paris, Librairie Générale de Droit
et de Jurisprudence, 1980, 424.
349
Cited by Youego, Christine, “Sources et Evolution du Droits des Successions aux Cameroun.”
Doctorat thesis, university of Paris II, 1994, 225 (unpublished).

102
manner in which the deceased himself would have distributed his property. Vallier

therefore writes that “the classification of orders and in each order, the determination

of heirs by the proximity of degree, are in principle adopted by the editors of the

[Civil] Code because they correspond to the normal hierarchy of the deceased’s

affection.” 350 The civil code in articles 913 to 930 seems to endorse this theory by

enjoining testators to dispose only of a given fraction of their property; the rest of

which must go to the descendants or ascendants. 351

Finally it is assumed that the priority given to the relatives of the deceased is

because family members have reciprocal duties.352 This theme has not been

developed any further apparently due to absence of consensus as to whether a

surviving spouse is part of the deceased’s family for the purpose of succession.

Hence the lien de parenté and presumed affection of the deceased form the

guiding principles in determining the intestate beneficiaries. Priority is given to the

blood relations of the deceased, and the surviving spouse, considered initially as a

stranger for not being a blood relative 353 comes after the relatives as an afterthought.

3.3.1: Priority to the Blood Relations of the Deceased.

It is presumed that a person’s first affection goes naturally to the persons

having a blood relationship with him, starting with the descendants and stretching to

the ascendants. Even within these categories there are distinctions and the law

presumes more affection towards persons closest to the deceased. The proximity of

the descendants starts with the children while that of the ascendants starts with the

parents of the deceased. Normally therefore the law will presume that the deceased

350
“De l’exhérédation et des legs faits au profit d’héritiers présomptifs”, Thesis, Paris, 1895, Ibid, 409.
351
See Chabot, Rapport au Tribunat, LOCRE. T.V. 107 cited by Youego, Christine, “Sources et
Evolution du Droits des Successions aux Cameroun.” Doctorat thesis, university of Paris II, 1994, 225
(unpublished).
352
Breton, A, Mazeaud et Breton, Leçons de Droit Civil, Paris, Dalloz, 3e ed. 1980, 55.
353
See Raymond, Pierre, Les Successions et Les Liberalités, Paris, Sirey, 1983, 68.

103
must have had greater affection for his child than for a grand-child, in the same way

as he would be presumed to have more affection for his father and mother than for his

grandparents.

The descendants as the first recipients of the deceased’s affection are

comprised of the children of the deceased and subsequent descendants to the

umpteenth degree. The term children include not only the legitimate children of the

deceased, but also the legitimated 354 , illegitimate 355 and adopted 356 children.

The extension of the category of children has been accepted in Cameroon,

though not without opposition from those who think that it operates to diminish their

entitlements. In fact the courts have adhered religiously to the provisions of the Civil

Code, provided that the conditions necessary for persons in these categories to

succeed are fulfilled. 357 .

The Affaire Succession Fokam Kamga 358 presents a good illustration of the

steadfastness of the courts. This case concerned two illegitimate children of the

deceased, a former Minister of Public Health, who had been recognised and treated by

the deceased as his children. Their quality as beneficiaries had been affirmed by an

earlier ruling of the Tribunal de Premier Degré of Yaoundé at a time when they were

still minors and the estate had to be managed by the more elderly legitimate children.

In the action the plaintiffs having the age of majority claimed their own share of estate

against the legitimate children who managed the property as if they did not exist. The

354
Article 333 Civil Code: “Les enfants légitimés par le marriage subséquent auront les mêmes droits
que s’ils étaient nés de ce marriage”.
355
Article 757 Civil Code: “L’enfant naturel a, en général, dans la succession de son père et mère et
autres ascendants, ainsi que de ses frères et soeurs et autres collatèraux, les mêmes droits qu’un enfant
légitimé.”
356
Article 358 Civil Code: “L’adopté a, dans la famille de l’adoptant, les mêmes droits et les mêmes
obligations qu’un enfant légitime.”
357
A study of those conditions does not fall within the scope of this work.
358
TGI (Tribunal de Grande Instance) Bafoussam No. 49/ Civ of 5 March 1996.

104
court confirmed the earlier decision including the plaintiffs as beneficiaries and

ordered the partition of the estate. 359

After the descendants the affection of the deceased moves down the line to the

second category of relatives composed of his father and mother classified as

privileged ascendants; 360 and his brothers and sisters including their descendants to

the umpteenth degree, classified as privileged collaterals. 361 These are followed by the

grand parents of the deceased and their own parents known as ordinary ascendants. 362

The fourth and last category of relatives consists of ordinary collaterals that include

the uncles, aunts, and cousins of the deceased to the sixth degree or generation.

Within these categories the civil code establishes complete equality between

the sexes; the only criteria for succession being the membership of a designated

category. Article 745 (1) of the Civil Code stipulates: “The children or descendants

succeed to their father and mother, grandfather, grandmother, or other ascendants

without distinction of sex or of primogeniture…” 363

Consequently, if the traditional law courts decide to apply French law the old

practice of viewing the categories only in terms of their male and elderly male

members will have to be abandoned. But old habits die hard and in words of Professor

Nicole-Claire Ndoko, 364 “le juge Camerounais, tout en condemnant la pratique

359
See also Affaire Succession Kana Paul, TGI (Tribunal de Grande Instance) Bafoussam No. 49/ Civ.
of 5 March 1996 and Affaire Succession Bihina Mbarga Gabriel, 359 Arrêt No. 36 of 27 December
1990 Yaoundé Court of Appeal.
360
Art. 746 Civil Code.
361
Art. 750 Civil Code.
362
Art. 748, ibid.
363
“Les enfants ou leurs descendants succèdent a leur père et mère, aïeuls, aïeules ou autres ascendants,
sans distinction de sexe ni de primogéniture…”
364
Ndoko, N-C., “L’idée d’égalité dans le Droit Successoral Camerounais: dernières tendances de la
Jurisprudence en matière de la succession ab intestat” Yaoundé, 1990
(unpublished ), p. 25

105
coutumière, n’en est pas encore arrivé à l’organisation prévue par code civil.” 365 It

would be proper to say le juge de fond or the trial judge, because the appellate

jurisdictions have constantly taken positions aimed at curbing this tendency of the

lower courts. In the land mark decision of the Supreme Court in Chibikom v. Zamcho

Florence 366 , it was held that any custom which deprived women of succession rights

to the estate of their parents is contrary to the public order and the constitution. 367

Primogeniture as a principle of succession was also rejected by the Court of

Appeal of the West Province in Affaire Succession Lonla Kuete. 368 In the opinion of

the court, “Cameroonian positive law recognises in legitimate children the same

succession rights to their deceased father without assigning any right of seniority to

any one of them” and “It is within the intimate framework of the family that the

members thereof could decide to recognise in one of the children, be he the last born,

as deserving the respect, honour and reverence which they reserved to their deceased

father.” The general tendency is to construe primogeniture in terms of male members

of the group but neither the code nor the above case distinguishes between male and

female primogeniture.

3.3.2: The Inclusion of the Surviving Spouse: An Afterthought.

Marriage generally operates an extension of the conception of “family” to

include the spouse but legal relations are between the spouses inter se. Marriage

establishes succession rights between the spouses and not between either of them and

the members of the other family. The Court of Appeal of Yaoundé had in this respect

365
“The Cameroonian judge, while condemning the customary practice, has not yet embraced the
organisation provided by the civil code.”
366
Supra.
367
See also Affaire Puete Jacqueline v. Ngouoko Joseph, Supreme Court, Arrêt No. 15/L du 12 Avril
1990; Affaire Succession Guimfack Guillaume, Jugment No. 105/C du 11 Avril 1996, TPD Dschang;
368
Arrêt No. 2/Coutume of 24 October 1991

106
to overrule a decision of the Tribunal de Premier Degré of Obala in which a daughter-

in-law was designated as successor to her mother-in-law. 369

The assertion that the inclusion of the surviving spouse in the scheme of

intestacy is the result of an afterthought is justifiable. Historically, the surviving

spouse could only succeed in the absence of surviving relatives. That this was a

remote possibility cannot be doubted given the number and elastic nature of the

classes of beneficiaries. Jean Brissuad identifies three categories of persons entitled

then, to succession. These were the descendants, the ascendant and collaterals and the

third category actually unusual, consisted of persons who with the deceased formed

part of the same league organised for mutual defence. 370

The widow was entitled only to the dower 371 and the widower to one quarter

of the wife’s estate known as the “poor man’s fourth.” 372 Only by the Law of 22

November to 1 December 1790 were reciprocal succession rights established for

spouses. It also removed the unusual third category of beneficiaries. Of course it was

possible even with the three categories of beneficiaries for the surviving to succeed

but as such estates were classified as vacant, he or she had to vie with the state for

possession, and in most cases the interest of the state prevailed.

The civil code adopted this position which only succeeded in making the

surviving spouse an irregular heir. Not having possession of the property he or she

had to apply to the court for it. 373 This appeared to have been a mere formality, it was

nevertheless unlawful 374 for the surviving spouse to take possession without a court

369
Arrêt No.47 du 10 Janvier 1991 (unpublished)
370
Brissuad, Jean, A History of French Private Law, New Jersey, Rothman Reprints Inc., 1968, pp.
628.
371
Brissuad, Jean, A History of French Private Law, New Jersey, Rothman Reprints Inc., 1968, pp. 765
372
Brissuad, Jean, A History of French Private Law, New Jersey, Rothman Reprints Inc., 1968, pp.
652.
373
See Guinchard, Serge, Droit Patrimonial de la Famille au Senegal, Paris, Librairie Générale de Droit
et de Jurisprudence, 1980, 441.
374
Ibid.

107
order, even if it meant that the court had no discretion in the matter. The need for a

court order was removed by an Ordinance of 23 December 1958

Today it is still difficult to state precisely the category of beneficiaries to

which the surviving spouse belongs. None of the four categories of beneficiaries

expressly includes the surviving spouse. She seem to occupy a category of her own as

they come in only in the absence of persons having blood or assimilated relationship

with the deceased. In terms of the presumed affection of the deceased the spouse

comes at the end of the line, followed only by the state, said to be the ultimate love of

everyone. 375

3.4: THE RULES OF DEVOLUTION

Devolution is normally to the blood relatives but where the deceased was

married and had issue the entitlement of the relatives becomes subject to that of the

spouse, and this again demands that we use the spouse as the starting point. It is

important to point out that unlike English law, French law treats the property as a

single whole, so that there is no distinction between what would normally go the

surviving spouse to assuage her pains the rest of the estate. Everything is brought into

the account and distributed.

3.4.1 Devolution to the Relatives.

The system of devolution contained in the civil code is such that property

devolves to the beneficiaries in accordance with the order in which they belong and

the degree of proximity with the deceased. An order is represented by the various

categories into which the beneficiaries are divided as identified in article 731 (above).

375
Guinchard, Serge, Droit Patrimonial de la Famille au Senegal, Paris, Librairie Générale de Droit et
de Jurisprudence, 1980, 424.

108
 The existence of an order closest to the deceased excludes the others. The

priority of the descendants has constantly been asserted by courts in Francophone

Cameroon. In one case the Supreme Court was called upon to decide who, between

the nephew of the deceased and the grand-child, was entitled to succession. It was

held that “the property devolves only on the known descendants of the deceased; the

said descendants cannot dispute the attribution or enjoyment of the property with the

collaterals.” 376

The exclusion also operates within the orders, this time by reference to the

degrees representing the proximity of relationship with the deceased. Within each

order it is possible to have persons related to the deceased in different degrees and

according to article 735 of the civil code “the proximity of the relationship is

established by the number of generations; each generation of which is called a

degree,” 377 signifying in other words that the degree is represented by the number of

intervals between generations. 378 The ascertainment of degrees is enshrined in articles

736 to 738 of the code which for want of space we cannot get into. The existence of

persons closest in degree to the deceased excludes others within the same order. For

instance the child of the deceased and the grandchild may all come within the

meaning of descendants but belong to the first and second degrees respectively.

Hence the child will normally take to the exclusion of the grandchild, except

through the process of representation provided for in article 739; the grandchild is

made to inherit what would have gone his father or mother. Representation is defined

as “a legal fiction, the effect of which is to put the representative in the place, degree

376
Arrêt No. 47 du 10 Janvier 1991 (unpublished).
377
“La proximité de parenté s’établit par le nombre de générations; chaque génération s’appelle un
degré”
378
Guinchard, Serge, Droit Patrimonial de la Famille au Sénégal, Paris, Librairie Générale de Droit et
de Jurisprudence, 1980, 426.

109
and in the rights of the representatee.” 379 It prevents the exclusion of a grandchild

whose father or mother predeceased the intestate. Hence Grimaldi 380 sees in

representation “an institution by virtue of which an heir exercises the rights of another

heir, of a closer degree, who died before the deceased.” And for Gerard Cornu,

representation is a “substitution because of death.” 381

Representation is thus an exception to the rule that the existence of persons

closest to the deceased excludes others within the same order and that property

devolves undivided to the members of an order. Representation is, however, limited to

the descendants of the deceased to whom it applies infinitely; 382 and to the children of

the brothers and sisters of the deceased and the descendants of those children. 383 It is

not applicable to ascendants and ordinary collaterals, so the rule within these orders

remains that the closest relative excludes the rest. 384

The general position of French law is that property devolves in one bulk and

not as individually divided shares. 385 In effect succession gives rise to what is known

as l’indivision successoral. This is a type of joint or co-ownership which cannot be

equated to the English joint tenancy or tenancy in common. The four unities of time,

interest, title and possession could be present but the inapplicability of the right of

survivorship disqualifies it as joint tenancy. Similarly, the absence of individually

identifiable shares disqualifies it as a tenancy in common. Therefore, rather than

fudge an English equivalent for the type of holding we think that the French

379
“La représentation est une fiction de la loi dont l’effet est de faire entrer les représentants dans la
place, dans le degré et dans les droits du repéesenté
380
Grimaldi, M., Droit Civil. Successions, Paris, Dalloz, 2e ed. 1992, 108.
381
“La Fratenité des frères et soeurs par le sang dans le droit civil” written in honour of Professor Rene
Savatier, 1992, 129, cited by Youego, Christine, “Sources et Evolution de Droit des Succession aux
Cameroun,” Doctorat thesis, university of Paris II, 395.
382
Article 740 (1) civil code 1804.
383
Article 742, ibid.
384
Article 741, ibid.
385
Guinchard, Serge, Droit Patrimonial de la Famille au Senegal, Paris, Librairie Générale de Droit et
de Jurisprudence, 1980, 426.

110
appellation ought to be maintained and understood to signify joint or co-ownership

without the technicalities of a joint tenancy or tenancy in common.

The successors are the alter ego of the deceased and must as a result hold the

property as did the deceased himself. Joint ownership, it was believed would tighten

the bonds of family relations and enhance the productivity of the estate, as against

having it partitioned in several small lots.

Should this be taken to mean that French law like the customary law favours

the communal ownership of property? The answer would be in the affirmative

because even though as will be seen soon partition could be ordered under article 815

of the civil code the fact remains that joint ownership is the rule. And this as we will

see would likely influence the courts to prefer joint ownership to partition whenever

the application is made.

To the principle of joint ownership the code posits another exception

represented by a principle known as la fente which translated into English means “the

split.” When property has to devolve to the ascendants, privileged 386 or ordinary,387

the principle directs that the property be split into two, one part for the maternal

family another for the paternal family. So we see the continued influence of

customary law on the French law of succession.

3.4.2. Devolution to the Surviving Spouse.

We do not need to belabour the point that French law recognises succession

rights for the surviving spouse only in the absence of relatives of the deceased

extending to the sixth degree of ordinary collaterals. There were to be no half

measures. The spouse got everything of the deceased or nothing at all. The dower and

the “poor man’s fourth” had apparently been banished by the civil code with nothing

386
Article 748, ibid.
387
Article 753, ibid.

111
to replace them. The surviving spouse was thus condemned to a life of destitution, all

because the editors of the civil code labouring under the influence of customary law

still believed in keeping property in the family. 388 The spouse being a stranger to the

family could not be allowed to succeed to property therein. Pierre Raymond 389 tries to

discern the prime motivation of the editors of the civil code when he writes: “The

spouse is not part of the family by blood, he entered into the family only through

marriage and when, assuming that death has dissolved this, the surviving spouse

leaves the family to which he was attached by the marriage and, if he is granted

succession rights, he is permitted to collect property originating from the family of the

deceased, at the risk of transmitting same to his own family.” 390 Coming from an

African this would have raised an uproar and coming from a product of “la

civilisation Française,” it is embarrassing. For while it is true that death puts an end to

a marriage, it also creates property rights in favour of the surviving spouse.

Accepted, that a person’s first affection goes to his blood relatives, it is

unimaginable that one would prefer relatives as remote as the sixth or even the twelfth

generation of ordinary collaterals against his own widow, mother of his children and

the person with whom he shared a common life before dying. The tendency today is

to confine the family to the spouses and their issue, towards whom the deceased owes

legal and moral duties. 391 Furthermore, French matrimonial regime being one of

community the argument about maintaining property in the family is deprived of any

value. The question arises as to the family in which property should be maintained. Is

388
See Barch, Eugène-Louis, « Contribution à l’étude de la condition juridique du conjoint survivant »
, (1965) Revue Trim. De Droit Civil, 546-550, 547.
389
Les Successions et Les Liberalités, Paris, Sirey, 1983, 68.
390
« Le conjoint survivant ne fait pas partie de la famille par le sang, il n’est entré dans la famille que
par le mariage et lorsque, par hypothèse, la mort a dissous celui-ci, le conjoint survivant sort de la
famille à laquelle ce mariage le rattachait et, si on lui accorde des droits de successions, on lui permet
de recueillir de biens provenant de la famille du defunct, au risque de leur transmettre en suite à sa
propre famille. »
391
See Raymond, Pierre, Les Successions et Les Liberalités, Paris, Sirey, 1983, 68.

112
it the family consisting of the deceased, the surviving spouse and their children or that

consisting of the deceased and his blood relations, whose property must have become

mixed with the products of the efforts of the deceased spouse? 392

These considerations engendered the amendments to the Civil Code discussed

above, as a result of which the surviving spouse is given succession rights even when

the deceased is survived by blood relatives. The right ranges from full ownership over

all or part of the estate, to the right of use.

3.4.2.1: When the surviving spouse has absolute ownership.

According to article 765, the surviving spouse is supposed to take all of the

property absolutely if the deceased is survived by ordinary 393 as against privileged

collaterals, 394 or their descendants. The exclusion of the ordinary collateral in this

article seems to have been neutralised by widely-worded article 766. It provides that

in the absence of paternal or maternal relatives liable to succeed, the surviving spouse

gets one half of the estate absolutely. The paternal and maternal relatives liable to

succeed are no other than the father and mother of the deceased, the grandparents, the

great-grandparents, the uncles, aunts and cousins, the last three of whom constitute

the said ordinary collaterals. This provision is liable to extend the classes of

beneficiaries to great and great-grand uncles and cousins when the relatives normally

entitled are non-existent.

Another observation here is that the article provides for what the surviving

spouse gets in absence of the named relatives and not for when they are present. Does

it mean that she gets nothing? Article 753 provides in this respect that the entire estate

devolves to closest surviving relatives. The effect of this article is however mitigated

392
See Raymond, Pierre, Les Successions et Les Liberalités, Paris, Sirey, 1983, 68.
393
The children and descendants of Grandparents.
394
The brothers and sisters of the deceased.

113
by a phrase in article 766 to the effect that the un-divorced surviving spouse gets half

of the estate “notwithstanding the provision of article 753.” This seems to underpin

our assertion that the inclusion of the surviving spouse is the result of an after thought.

Article 766, we submit gives rise to an ambiguity which could be removed only if it is

considered that being the result of a later amendment to the civil code, 395 it replaces

article 753, itself the result of an earlier amendment 396 , whenever there is a surviving

spouse.

It will certainly not be an overstatement to assert that a surviving spouse can

never accede to absolute ownership, given that this is only possible when the entire

lineage of the deceased is extinct. It would thus be more logical to conclude that the

surviving spouse will invariably have usufructuary rights over the share of the

property she receives upon distribution.

3.4.2.2: When the surviving spouse has usufructuary rights.

This arises whenever the deceased is survived by blood relatives. The

quantum of these rights varies in function with the proximity of the relationship

between the deceased and the surviving relatives. It accepted, however that the spouse

keeps the matrimonial home 397 , though not necessarily the content which must be

distributed together the other properties. Hence one finds ridiculous inventories such

as was the case in Kegne René v. Nembot Pièrre & Others 398 where even the

television set was included and given to the plaintiff rather than the widow.

The right is enshrined in article 767 of the civil code which also spells out the

fractions of the estate over which it is to be exercised whenever the surviving spouse

395
Law No. 72-3 of 3 January 1972.
396
Article 2 of Law No. 57-379 0f 26 March 1957.
397
See Tchamo Thomas v Tiwouang nee Waffeu Jeanne, C.S. Arret No. 46/L of 14 June 1992
(unreported); Affaire Njanjo Teclaire Cour d’Appel de l’Ouest jugement No 17/ C, 25 Nov. 1985
(unreported).
398
Cour d’Appel de l’Ouest jugement No. 85/C ,17 Février 1994 (unreported)

114
is in competition with the descendants or the other relatives of the deceased. A third

situation not envisaged by the civil code for obvious reasons is when the surviving

spouse is in competition with another surviving spouse of the deceased but this is not

surprising because the code envisages monogamy and not polygamy.

3.4.2.2.1: The Surviving spouse faced with the descendants of the deceased.

Article 767(2) of the civil code gives the surviving spouse the right of use and

enjoyment over one quarter of the estate if the deceased is survived by descendants.

There is ambivalence in the application of this article as it is manipulated by the

courts to achieve the goals of customary law. It is a recognised rule of most customary

laws in Cameroon that a widow with children has the right of use and enjoyment over

the estate of the deceased husband and on the contrary that the property of the

deceased wife belongs to the husband. Thus when the surviving spouse is a widow the

courts are fast to apply the provision to the letter as against when he is a widower.

An example can be taken from the Affaire Zang, in which two widows of the

deceased brought separate actions in the Tribunal de Premier Degré of Yaoundé

demanding to be accorded equal succession rights with the children. They were

declared co-heirs with the children held to be the principal heirs and one of the

widows was named as administrator of the estate. On appeal to the Yaoundé Court of

Appeal and eventually to the Supreme Court, it was held that in accordance with the

customs of the parties which was in conformity to the civil code, the spouses had only

usufructuary rights over one quarter of the estate.

In a good number of other cases the same court has in reference to decisions

from the lower courts reiterated the position of the law and stated that “apart from the

usufructuary right, all other qualities which are to be accorded to the surviving spouse

115
in competition with the children necessarily call for the reform of the decision for the

want of legal basis.” 399

However, the same court found no inhibition upholding a decision of the lower

court declaring the widower to be the heir of his deceased wife in spite of the presence

of six children. The court added contrary to the above statement that: “If the Beti

custom which governs the parties recognises in the widower the right to succeed his

wife, it does not exclude the rights of the direct descendants to expect also, to be

declared as heirs of the deceased.” 400 The widower as the surviving spouse thus has

other qualities denied to the widow.

In a subsequent case the court apparently went against its own decision by

overruling a decision of the lower court declaring the widower as co-heir with the

children. From the ratio decidendi of the decision stating that “the widower cannot

inherit when the deceased leaves children” and that “the court has violated the civil

code and the Bassa custom which requires that the widower succeeds to his wife only

in the absence of children” 401 it is clear that the court did not actually overrule its own

decision. What the court did was uphold the Bassa custom which, fortunately was in

conformity with the civil code.

3.4.2.2.2: The Surviving spouse faced with other relatives of the deceased.

If the courts have readily acceded to the widow’s usufructuary rights when faced

with descendants the same is not true when faced with other relatives, since this

implies that she is childless and therefore entitled only to maintenance and habitation

from the family of the deceased.

399
See Cour d’Appel Yaoundé, arrêts No. 549 du 2 Juillet, 1986 ; No. 456 du 6 Mars 1986 ; No. 81 du
25 Janvier 1986. (unreported)
400
See Cour d’Appel Yaoundé, arrêt no. 186 du 24 Mai 1986, cited by Ndoko, N-C., “L’idée d’égalité
dans le Droit Successoral Camerounais: dernières tendances de la Jurisprudence en matière de la
succession ab intestat” Yaoundé, 1990, 49 (unpublished ).
401
See Cour d’Appel Yaoundé arrêt no. 153 du 14 décembre 1989.

116
 Article 767 (3) of the civil code gives her the right of use and enjoyment over

half of the estate, but no case could be found in which the code has been invoked to

divide the estate equally between the widow and relatives of the deceased. When even

the decision is taken to partition as in the 1974 Affaire Tchokossi, 402 this is never

equal. In that case the widow whose husband died in 1960 brought an action in the

Tribunal de Premier Degré of New Bell Bassa in Douala claiming the property left by

the late husband which had been usurped by the brother of the deceased. The trial

court held in favour of the widow and demanded that the property be handed to her.

On appeal to the Douala Court of Appeal the brother maintained that the widow was

only entitled to the right of maintenance and lodging in the estate of her deceased

husband. This contention was rejected, not by confirming the decision of the lower

court but by invoking the provision of the code allocating one quarter of the estate to

the widow and three quarters to the brother of the deceased. The widow also appealed

to the Supreme Court which only confirmed the position of the Court of Appeal.

The basis of the decision is not clear. Was it the customary law or the civil code

that was applied, given that under customary law the widow would have been entitled

only to the right of maintenance and habitation, and under the civil code she would

have been entitled to half the estate? The absence of a legal basis for the decision led

Melone to state that “the partition though unequal appears more as a judgment of

Solomon rather than a response to a specific legal problem”. 403

402
Cited by Melone, S., « Le droit successoral Camerounais: Etudes des quelques points en
jurisprudences” (1979) 17/18 Rev. Cam. De Droit, 55-79, 69.
403
The famous judgment of King Solomon in deciding to divide a disputed child marked him out as the
wisest King to have lived (See 1 King 3, 16-28). There was, however, no legal basis for the judgment
and if the child was actually divided it would have raised a further question in modern times, whether
the King would not have been guilty of culpable homicide.

117
3.4.2.2.3: The Surviving spouse faced with other surviving spouses.
Understandably the civil code does not provide for situations of polygamy but

its application in Francophone Cameroon is not limited to monogamy. We noticed in

chapter three that parties have total discretion on choice of jurisdiction in civil

matters. The choice of jurisdiction is also the choice of law applied by that court so if

the deceased contracted a polygamous marriage and the parties opted for a modern

law court, the code will becomes

In Affaire Veuve Ebongue v. Ebongue Nyambe Nestor 404 the deceased was

survived by three widows and children. The plaintiff, one of the widows, claimed in

accordance with the custom of the Douala people to be entitled to a usufructuary right

to the whole estate to the exclusion of the other widows. The claim was upheld by the

Tribunal de Premier Degré whose primary duty is to apply the customary law of the

parties. The decision of the lower court was overruled on appeal to the Douala Court

of Appeal, which to fill the legal void in the civil code invoked the provision of article

767(3) applicable when the surviving spouse is in competition with children. All the

widows were thus held to be entitled one quarter of the estate, a share which the code

intends for a single spouse. The court considered the custom which tends to exclude

widows from the succession of their husband as being contrary to the public order. On

further appeal to the Supreme Court, the ruling of the Court of Appeal was upheld,

giving the four widows equal rights over one quarter of the estate.

There must obviously be a feeling of injustice in giving the widows one

quarter of the estate no matter the number of children against whom they have to

contend. We nevertheless consider the decision as a bold step on the part of the

appellate jurisdiction, for bringing the widows of deceased polygamist within the

protection of the code. That the fraction allotted to the widows is small is quite

404
Arrêt No. 14/L du 9 décembre 1976 (unreported).

118
another matter which could not have been resolved without doing violence to the civil

code.

3.5: ADMINISTRATION OF ESTATES

Unlike the English law French law has no intermediate period of

administration during which the beneficiaries wait to get into their entitlements. Upon

the opening of succession pursuant to article 718 of the civil code the property vests

directly in the universal heirs jointly. However the fact that property devolves jointly

makes administration necessary during the period of joint ownership, which could be

indefinite, even though the powers of the administrator are in no way compared with

those of the personal representative in English law. He must, like the successor in

customary law request and obtain the consent of other beneficiaries in view of

important dealings with the property.

Joint ownership is the rule in the French law of intestacy, and partition an

exception, based on the rule adumbrated in article 815 of the civil code that “No one

is obliged to remain in joint ownership and partition may always be provoked, unless

it is excluded by judgment or convention.” 405

Administration is ensured through a jugement d’hérédité issued by the

competent court. This is the equivalent of the English Letters of Administrations

issued by Customary or High Courts. 406 Generally the beneficiaries designate one or

more of theirs to ensure the administration 407 and pursuant to article 803 of the civil

code, “The heir-beneficiary administers the property and must render account of his

administration to the creditors and legatees.” 408 The term “legatees” which is my

405
« Null ne peut être contraint à demeurer dans l’indivision et le partage peut être toujours provoqué, à
moins qu’il n’ y ait été sousis par jugement ou convention. »
406
See our discussion on the conflict of jurisdiction at 3.2.1.2 and 3.2.2.2.
407
See the statement of the Bafoussam in Affaire Succession Lonla Kuete (supra)
408
L’héritier bénéficiare est chargé d’administrer les biens de la succession, et doit rendre compte de
son administration aux créanciers et aux légataires »

119
translation for the French “légataires” could be problematic in a context of intestacy,

given that it relates only to testacy. However, Dahl’s authoritative French and English

Law Dictionary gives “legatee” and “heir” as the English equivalents for the French

“légataire. 409 Hence the neutral word “heir” could substitute “legatees” in the article.

This is more so as the explanatory notes to that article omits “légataires” and talks

instead of “les intéressés.” 410

An administrator could also be designated by a court order at the instance of

creditors and beneficiaries opposed to the decision of the Family Council. The

administrator himself could abdicate his functions and apply to the court for the

appointment of an administrateur judiciare if due to the immensity of the estate, the

complexity of its administration, numerous suits pending, conflicts of interests and

opposition from the other beneficiaries, he feels incapable to effectively perform his

functions. 411

Unlike the personal representative in English law the powers of the

administrator are limited due mainly to the fact that the property vests in the heirs

jointly and not in the administrator who is merely a part-owner. The powers of the

administrator are therefore limited to acts of representation and administration. 412

Disposition of property, be it real or personal and for any purpose must be with the

consent of the other beneficiaries or the judge. 413

409
Dahl, Henry Saint, Dahl’s Law Dictionary, Paris, Dalloz, 2001, 190.
410
See the 1981 edition of the code published by LITEC.
411
See (1937) 2 Gazette du Palais, 579, ibid.
412
See Guinchard, Serge, Droit Patrimonial de la Famille au Sénégal, Paris, Librairie Générale de Droit
et de Jurisprudence, 1980, 534 ; cited by Youego, Christine, “Sources et Evolution de Droit des
Succession aux Cameroun,” Doctorat thesis, university of Paris II, 764
413
See articles 805 and 806 of the civil code.

120
Conclusion
Like English law French intestacy rules also contain a long list of beneficiaries

and enshrine gender equality. These are persons to whom the deceased owed the duty

of maintenance either directly or by proxy, but the principle of precedence eliminates

many potential beneficiaries. This is responsible for the many cases of conflict,

noting, especially that French law has no equivalence of the Inheritance (Provision for

Family & Dependants) Act 1975 which would cushion the effects of exclusions.

The original provisions of the civil code marginalised the surviving spouse but

his has been removed by subsequent amendments. The fact that joint ownership is the

rule, and distribution is an exception does little credit to the system, and even after

distribution all that the spouse gets is a precarious right of use. Compared to her

English counterpart therefore she cannot dispose of the property without the consent

of the relatives of the deceased, or use the property to raise a loan and the property

could be sold on her back. In Tchamo Thomas v. Tiwouang nee Waffeu Jeanne, the

plaintiff, the administrator of the estate was barred from selling the matrimonial home

occupied by the widow, but in so doing the Supreme Court only confirmed the

precarious nature of the woman’s title when it held: “Considérant qu’en coutume

Bamileke qui est celle des parties et défunt, seuls les héritiers reconnus comme tels,

peuvent disposer de biens de la succession sans cependant porter atteinte aux droits

de la veuve survivante, qui quant à elle, est héritière en usufruit de son conjoint

prédécédé et qui dispose de droit d’usage et d’habitation sur la maison qu’elle

partageait avec son mari de son vivant.” 414

Perhaps the only difference between her and the customary law widow is that

the right of use is granted under the civil code and cannot be tampered with; however,

414
Jugement No. 46/L du 14 Juin 1992 (unreported).

121
without the right of ownership as her English counterpart the widow’s right is a

fragile one.

In the light of its affinity with customary law French law cannot constitute a

model for the reform of our law of succession.

122
 CHAPTER FOUR: INTESTACY IN CUSTOMARY LAW

Introduction
Disappearance also gives rise to a presumption of death in customary law.

Initially there is a temporary management of the affairs of the person, 415 the period

varies from tribe to tribe and is not generally long. It would hardly last for one year

and could be as short as three 416 or five months 417 and possibly a few months longer.

Under the Muslim Maliki code the period of interim administration could

stretch as long as seventy years, followed by a presumption of death from the date of

disappearance. The administration of the estate during the period of absence is

ensured by the court in whose custody the property is deposited. 418

That said, we have to note from the outset that intestacy in customary law is

more complex compared to the received laws. This is because of the plurality of

systems of succession, which are patrilineal, matrilineal and Muslim all of which

have different substantive rules. The rules for determining who the beneficiaries are

vary, even though as we will see the procedure for designating the successor,

distribution and administration are virtually the same.

415
See Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur.
Pol. Ind. Coop. 639-662, 643.
416
The Kaka and Baya tribes in the East Province, ibid.
417
The Mbimous, and Moloundu of Northern Province, ibid.
418
See Ajijola, A. D., Introduction to Islamic Law, New Delhi, International Islamic Publishers, 1989,
231.

123
 4.1: THE APPLICABLE LAWS

The impression one gets from existing research is that the Cameroonian

customary law of succession could be subsumed under a single system where the man

reigns supreme. 419 We submit that this is one area in which the application of the de

minimis non curat lex doctrine to arrive at such a conclusion would be inappropriate.

For it would make a difference to know that there are tribes, however few, which

recognize succession by women.

While male supremacy might be the rule, the over two hundred ethnic groups

that make up the country could be classified under different systems of succession.

The systems are either patrilineal, matrilineal, bilineal or Muslim. These are not

compartmentalized into specific geographical areas and so cut across the country

which experts divide into 420 the Western Highlanders; 421 the Coastal Tropical Forest

peoples; 422 the Southern Tropical Forest peoples and 423 the predominantly Islamic

peoples of the Northern Sahel and Central Highlands. 424

Most tribes are patrilineal and the following are only examples: Bamileke,

Banyang, Bakweri, Bafut, Banso, Bali, Bakossi, Moghamo, Mankon, Bassossi,

Ewondo, Eton, Bassa and Mendankwe. The common feature in all of them is the

419
See Youego, « Sources et Evolution de Droit des Succession aux Cameroun, » supra. 95-105;
Doumbe-Moulongo, Maurice, « Consequences des Juridictions de Droit Traditionnel sur l’Evolution
des Coutumes dans le Sud Cameroun,» (1963) 17 Rev Jur. Pol. O-M, 533-572, 565 ; Ngongang-
Ouandji, André, « La Devolution Successorale au Cameroun » (19720 28 Rev. Jur. Pol. Ind. Coop.
639-662, 642 ; Binet, Jacques, « La Devolution Successorale chez las Douala du Cameroun », (1955)
65 Penant, 33-40, 35-37.
420
John Mukum Mbaku, Culture and Customs of Cameroon, Westport, Connecticut, Greenwood Press,
2005, pp. 1-2; Neville Rubin, Cameroon. An African Federation, p. 9.
421
These consist of the Bamileke Bamoun, Banso, Kom, Mankon, Mendankwe and many other
smaller Tikar groups in the West and North West Provinces. The name Tikar is an omnibus term used
to designate a great number of small ethnically related tribal units whose languages in general form
part of a common linguistic stock but are not necessarily mutually intelligible.
422
Including the amongst whom are Bassa, Douala, Bakweri, Mbo, Bafaw, Bakossi, Bassossi, Oroko
found in the Centre, Littoral and Southwest Provinces;
423
The Beti-Pahuin, Bulu, Fang, Maka-Njem, and Baka Pygmies in the Centre, South and East
Provinces.
424
The Fulani (or Peuhl in French) and the "Kirdi", of the Adamawa, North and Extreme North
Provinces.

124
veneration of men seen as the source and originator of all property. Property must be

preserved in the family to provide for posterity and keep the veneration of its

originator alive. 425 Allowing women to succeed would likely conflict with this goal

since upon marriage, their allegiance shifts to the husband’s family, which is

understandable given that her children are born therein. To attain the objective of

keeping property in the family succession is either on the basis of male

primogeniture, 426 ultimogeniture, or any other competent male relative of the

deceased. 427

A few tribes practice matrilineal succession, examples of which are the

Bakundu Balue in the Southwest Province, Kom, Aghem, Weh and Buh in the

Northwest Province and some communities belonging to the Foulbe tribe the

Northern Provinces practice matrilineal succession. Matrilineal systems venerate the

woman and the reasons seem to be specific to each tribe. 428

425
Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur. Pol.
Ind. Coop. 639-662, 642.
426
See See Youego, « Sources et Evolution de Droit des Succession aux Cameroun, » supra. 95-105;
Doumbe-Moulongo, Maurice, « Consequences des Juridictions de Droit Traditionnel sur l’Evolution
des Coutumes dans le Sud Cameroun,» (1963) 17 Rev Jur. Pol. O-M, 533-572, 565 ; Ngongang-
Ouandji, André, « La Devolution Successorale au Cameroun » (19720 28 Rev. Jur. Pol. Ind. Coop.
639-662, 642 ; Binet, Jacques, « La Devolution Successorale chez las Douala du Cameroun », (1955)
65 Penant, 33-40, 35-37.
427
Chantal, Kwende, “The Procedure for designating next-of-kin in a patrilineal tribe”, term paper,
Faculty of Law, University of Dschang, Cameroon, 2000.
428
The Balue tribe for example bases the system on a story that the founder of the tribe was accused of
having committed an atrocity. To clear himself he had to swear in front of the oracles known as “beri.”
The accused was required to present a girl of ten years old at the swearing and both of them were to die
if the allegations turned out to be founded. Having no daughter of his own he decided to use one of his
nieces, the daughter of his deceased brother, but the widow objected saying that the child did not
belong to him. He then turned to his sister who offered her own child and so rescued the tribe from the
wroth of the ancestors. As a sign of appreciation therefore, the sister was given succession rights over
her brother’s property. See Pascal Nanje “Theory and practice of succession in matrilineal tribes”, term
paper university of Dschang, 2004 (unpublished); Anye Dieudonné, “Avoiding the Effects of Matriliny
in the Balue Tribe in Ndian Division,” term paper Faculty of Law, University of Dschang,
2004(unpublished). In the Kom tribe the veneration of women is based on the belief that it is easier to
establish blood relationship between a sister’s child than one’s own child who must have been
conceived in an illicit relationship. Folklore has it that in the past there were periods when wives were
allowed to go out and consort with other men. See Ache Nforba Jupiter, “Avoiding the effects of
matrilineality in Kom, ” term paper, University of Dschang 2004 (unpublished).

125
 A person’s property passes on his death intestate not to his paternal family

which would include his own children but to his maternal family. Hence women have

succession rights therein which could not be ignored, even if watered down in actual

practice, due to interaction with the patrilineal system. The Balue tribe of the South

West Province follows the classic pattern whereby succession is by the closest

maternal relative. 429 In the neighboring Mbonge tribe priority is given to the nieces of

the deceased. 430

The matrilineal systems of the North West Province 431 display patterns similar

to the patrilineal systems. John Anthony Howard thus proposes the appellation

“patrilineal tribes with matrilineal emphasis.” 432 Although descent is traced through

the mother succession is by men albeit of the mother’s line. It is either the nephew, 433

full and uterine brothers434 as against the mothers and her maternal relatives. 435

The bilineal system of succession has elements of patrilineal and matrilineal

succession. A person succeeds as of right 436 from his paternal and maternal families.

Our studies did not disclose any such tribes, nor does existing literature. However, we

429
See Anye Dieudonné, “Avoiding the Effects of Matriliny in the Balue Tribe in Ndian Division,”
term paper Faculty of Law, University of Dschang, 2004(unpublished).
430
See Julius, Ngape, “Property Rights of Female Children in the Mbonge tribe,” term paper, Faculty
of Law, University of Dschang, 2004.
431
These are the Aghem, Bafmeng, Bu and Weh tribes.
432
“Customary Law of Marriage and Succession Among the Kom of Cameroon,” Ph.D. Thesis,
University of London, 1972, 16. Audrey Richards had also made the point while writing of the central
Bantu: “It is generally recognised that no society is entirely matrilineal or patrilineal as regards
descent, inheritance, succession and authority but that the family system provides a balance of interest
and rights between the two sides of the family with a predominant emphasis on one side or the other.”
See “Some Types of Family Structure Amongst the Central Bantu” in A. R. Radcliffe.Brown and
Daryll Forde (ed) African Systems of Kinship and Marriage, Oxford University Press, 1950, 207.
433
See Buo Kang Mathias v. Mih Izagha, Wum Customary Court, Suit No. 8/02-03 (unreported); Bah
Ekom Amos v. Ebua Batali, Wum Customary Court, Suit No. 12/02-03 (unreported). Cited by Amos,
Wango Chianan,“Theory and Practice of Matrilineal Succession,” unpublished term paper, Faculty of
law, University of Dschang, 2003. See also Edith, Ndima, “Theory and Practice in Matrilineal Tribes,”
term paper, Faculty of Law, University of Dschang, 2000.
434
Still of the North West Province.
435
See Lurshe, Chuye, “Avoiding the effects of Matriliny: Case study: Kom,” term paper, Faculty of
Law, University of Dschang, 2003. See also Edith, Ndima and Chianan Wango, supra,
436
In fact one may find in the other systems situations where a person is called upon to inherit from his
mother’s or father’s family but this is not right. It is a magnanimous gesture of the family to show
appreciation for the type of relationship which the person has with the family.

126
noticed a limited application of it in Aghem, a matrilineal tribe, wherein succession to

the throne in patrilineal. 437 This option according to the accounts of its origin was

dictated by expediency, but has since become part of the Aghem custom. 438

Muslim law is not ethnically delimited and its general principles are drawn

from surah 4, verses 8, 9, 12, 33, 34 and 170, surah 7, and from the traditions of the

Prophet as recorded in the Sunna, and the consensus of Muslim scholars recorded in

the Ijma. 439

4.2: RULES GOVERNING THE APPLICATION OF CUSTOMARY LAW

The application of customary law is governed by section 27(1) of the Southern

Cameroon High Court Law of 1955, section 18(1)(a) of the Native Courts Ordinance,

Cap. 142 of the 1948 Laws of Nigeria and a number of already discussed French

decrees. 440 The provision of the 1955 Law governs the application in the high courts

while that 1948 regulates application in the customary courts.

Section 27 of the 1955 Law provides:

“The High Court shall observe, and enforce the observance of every
native law and custom which is not repugnant to natural justice, equity
and good conscience, nor incompatible with any written law for the time

437
See Edith, Ndima, “Theory and Practice in Matrilineal Tribes,” term paper, Faculty of Law,
University of Dschang, 2000; Chianan, Wango, “Theory and Practice of Matrilineal Succession.” term
paper, Faculty of Law, University of Dschang, 2003.
438
Chianan (supra) writes, “There exist, however, peculiarity among the Aghem. Inheritance to the
paramount fondom (chiefdom). Zongokwo is patrilineal. It passes from father to son. The reason is
that the nephew and heir apparent of one of the early paramount fons disobeyed him and he decreed on
death that he was to be succeeded by his son. After his death each of his nephews enthroned died in
rapid succession and the villagers had no choice but to comply with the late fon’s wishes and enthrone
his son, a practice which persists to this day.” If the above account is rooted in history, that of Edith
(supra) is not: “But an exception was brought out in Aghem where it was said that the paramount
fondom practises patrilineal succession meaning that only the son of the paramount fon succeeds him.
An explanation was given by the paramount fon to the effect that before his grandfather died he willed
the fondom to his father but the nephews chased him out of the palace. Unfortunately, those who
succeeded him died and the rest were scared to take the risk. Since then the paramount fondom became
an exception to the practice of matrilineal succession in Aghem where only the children of the fon and
not the nephews can succeed him.”

439
Ajijiola, A.D. Introduction to Islamic Law, New Delhi, International Islamic Pictures, 1989, 228.
440
See chapter three.

127
 being in force, and nothing in this law shall deprive any person of the
benefit of any such native law or custom.”
Section 18(1) (a) of the 1948 Customary Courts Ordinance is similarly worded:

“Subject to the provisions of this law a customary court shall administer

the native law and custom prevailing in the area of the jurisdiction of the
court or binding between the parties, such as it is not repugnant to natural
justice, equity and good conscience nor incompatible directly or by
natural implication with any written law for the time being in force.”

The application of customary law is not automatic, given that an alleged rule of

law must be proved as a matter of fact, otherwise it is considered non-existent. And

even when proved it must pass the repugnancy and compatibility and any other tests

put in place by the legislature.

4.2.1: Proof of Customary Law

The unwritten nature of customary law renders its ascertainment difficult in

the modern courts staffed by persons with no knowledge of its rules. Colonial Judges

equated customary law to foreign law in an English court, the existence of which has

to be specifically established. The point was made by Redwar, Ag. J. in the

Ghanaian case of Bimba v. Mensah: “Native law when not incorporated by judicial

decision in the law of this land … must stand therefore on the same footing as

foreign law, and must be proved by evidence of expert witnesses.” 441

The exigency subsists even though these courts are today staffed by Cameroon

judges. They cannot be expected to have knowledge of all the systems of the

customary law of succession, given even customary law as a subject does not form

part of the curricula in the Universities and School of Magistracy. The Judges are thus

more abreast with modern than with customary laws. This vindicates professor

441
(1891) Sar. F.C.L. 137.

128
Vanderlinden in his assertion that the African Judge is “often on the cultural plane and

therefore legal, a stranger in relation to custom and the milieu where it originates and

in which it is born, develops and dies.” 442

It is incumbent on the party alleging a custom to prove its existence; for there

is no presumption that any person or group of persons is governed by a custom if it is

not specifically pleaded and proved to exist as a matter of fact. 443 Customary law may

be proved in two ways: 444 By adducing evidence under section 14(3) of the Evidence

Ordinance which provides: “Where a custom cannot be established as one judicially

noticed it may be established and adopted as part of the law governing particular

circumstances by calling evidence to show that person or the class of persons

concerned in the particular area regard the alleged custom as binding upon them…”

Evidence is admitted from expert witnesses who are frequently the chiefs or other

titleholders, part of whose duties are to know the customs of their people. 445 In Teke

v. Teke 446 the evidence of the Fon of Batibo was determinant in upholding a will

made under customary law. Expert evidence could also be gathered from authoritative

text-books or manuscripts recognized by the natives whose custom it is talking

about. 447 Here a possible merger of the customary law of the courts and that of the

public can be envisaged, because a Judge bent on ascertaining the customary law on

an issue should in addition to the above sources consult the decisions of traditional

442
“C’est dire qu’il est souvent sur le plan culturel et donc juridique, un étranger par rapport à la
coutume et au milieu dont elle est originaire et dans lequel elle naît, se développe et meurt” in “Le Juge
Africain et la Coutume en Afrique Aujourd’hui, cited by Christine Youego, “Sources et Evolution du
Droits des Successions au Cameroun”, doctorate thesis, University of Paris II, 1994, p.246.
443
Laidi Giwa v. Bisiriyu Erinmilokun (1961) All N.L.R. 294, 296.
444
Section 14(1) Evidence Ordinance, cap. 62 of the 1958 Laws of the Federation of Nigeria: “A
custom may be adopted as part of the law governing a particular set of circumstances if it can be
noticed judicially or can be proved to exist by evidence.
445
In Wokoko v. Molyko (1938)14 N.L.R. 41.
446
(2005) 2 CCLR 49
447
See section 58 Ibid.

129
councils 448 whose role in settling disputes between natives in application of

customary law is non-negligible.

The above renders the custom notorious and hence the second method for

proving customary law. Section 14(2) of the Evidence Ordinance stipulates: “A

custom may be judicially noticed by the court if it has been acted upon by a court of

superior or co-ordinate jurisdiction in the same area to an extent which justifies the

court asked to apply it in assuming that the persons or the class of persons concerned

in that area look upon the same as binding in relation to circumstances similar to those

under consideration.” In Laidi Giwa v. Bisiriyu Erinmilokun, 449 Taylor F.J. pointed

out that:

“It is a well established principle of law that native law and custom is a
matter of evidence to be decided on the facts presented before the court in
each particular case, unless it is of such notoriety and has been so
frequently followed by the courts that judicial notice would be taken of it
without evidence required in proof.”

There is no indication on how often a custom must have been acted upon to justify its

becoming notorious. 450 The above dictum talks of customs having “been so frequently

followed” while section 14(2) of the Evidence Ordinance speaks of the custom having

been “acted upon by a court”. The position of the Ordinance which was not

considered by Taylor F.J. seems to intimate that a single decision on the custom in

question would suffice, if, as specified in the section, the court is satisfied that parties

concerned look upon the custom as binding on them in similar circumstances. 451 In

Agbortar & Oben v. Chief Bessong, Endeley J. held that “the custom that every chief

in this state (and in particular those of the forest areas) rules through a traditional

448
These are non-judicial bodies set up at village levels to oversee its functioning.
449
(1961) All N.L.R. 294, 296.
450
See also Tapper, Colin, Cross &Tapper on Evidence, Oxford, Oxford University Press, 2004, 86.
451
Olabunmi Cole & Anor. v. Akinyele & Ors. (1960) 5 F.S.C. 84.

130
council is so notorious that this court is bound to take judicial notice of it.” 452 It is not

clear on which authority the notoriety of the customs was based because no previous

decision on the point was cited. The statement is a truism for most African

communities, but that being the first decision on the point the custom was supposed to

have been established by calling expert evidence. And not being an expert, the Judge

could not, even under this method have provided the evidence himself. 453 The general

rule is that a Judge cannot act on his personal knowledge of facts known to him nor

may he take steps to acquire such facts in private. 454

This method of proving customary law saves time and money. 455 It leads to

the emergence of a type of doctrine of binding precedent for customary law, with the

effect that previous decisions on particular customs can be followed by other

courts. 456 The importance of the doctrine of binding precedent lies in the ability of

other common law jurisdictions to use such decisions as binding or persuasive

authorities. That this is possible in customary law is evident in the Nigerian case of

Awgu v. Nezianya, 457 where Verity, C. J. relied on Ghanaian cases to hold that the

owner of self acquired property does not require the consent of family members to

dispose of it inter vivos or by will. These were held to constitute “the general

principles of native law and custom throughout West Africa,” “a departure from

452
[1968] W.C.L.R.43, 45 (West Cameroon Law Reports).
453
See Iyamuse Ehigie v. Gregory Ehigie [1961] ALL N.L.R. 842.
454
Tapper, Colin, Cross &Tapper on Evidence, supra, 89; Dennis, I. H. Law of Evidence, London,
Sweet & Maxwell, 1999, 396.
455
Tapper, Colin, ibid. 91; Jain, M. P. “Custom as a source of Law in India”, in Renteln, Alison
Dundes and Dundes, Alan (ed), Folk Law; Essays in the theory and practice of lex non-scripta, Vol. 1,
the University of Wisconsin Press, 1995, 74.
456
See Woodman, G. R, “Some realism about customary Law–The West African Experience”, Folk
Law: Essays in the theory and Practice of Lex Non Scripta, Wisconsin, University of Wisconsin Press,
1995, vol.pp.83-110, 91; Tapper, Colin, supra. 91.
457
(1949)12 W.A.C.A. 450, 451.

131
which can only be justified if it is established by evidence that native law and custom

in any particular area differs from the general principles.” 458

Hence Nigerian and Ghanaian authorities on customary law are used by

Anglophone courts 459 and academic writers offer no apologies for using decisions

from these countries to substantiate assertions of customary law. 460

Proving of customary law is not a precondition for its application in the

461
customary courts. With a vocation to apply customary law, this can normally not

be considered as foreign law in these courts and the courts are constituted of persons

appointed on the basis of their knowledge of customary law.

Customary court Judges administer the laws prevailing in their areas of

jurisdiction being those of which they have or are presumed to have mastery. When

they have to apply any other law, as would be the case in succession when the

deceased was not a native of the locality, the courts will have to make up for their

deficiency by calling witnesses on the custom of the deceased. 462 However, the

stringency on the source of evidence under the Evidence Ordinance is not applicable.

According to section 40 of the Customary Courts Ordinance Cap. 142 of the 1948

Laws of Nigeria, “any person present at the customary court, whether party or not in

458
At 451. See also the dictum of Lindley, J. in a Ghanaian case of Biei v. Akomea (1956) 1 W.A.L.R.
174, that “This court cannot allow local customs to override general principles in these days of
changing conditions.”
459
In Daniel Ngu Geh & 3 others v. Geh George Goddy Ndi (2006) HCB/PD/LA/ 04-05 (unreported),
for instance, a passage in Ollennu’s The Law of Testate and Intestate Succession in Ghana was cited
to explain the nature of gift under customary law; and in Jemba Solomon Nangoh v. Emilia Okole Otte
(2002) C.A.S.W.P./cc/14/2002, (unreported) Nwabueze’s Nigerian Land Law was cited to explain the
fact that a native might through testamentary disposition alter the course succession at customary law.
460
Fisiy, Cyprian, in Power and Privilege in the Administration of Law: land Law Reforms and Social
Differentiation in Cameroon, Leiden, African Studies Centre, 1992, 131, cites Asofoatse Agbloe ll &
Ors v. Sappor (1947)12 WACA 188, a Ghanaian case to establish that alienation of land by the family
head without the consent of other family members is today permissible. See also Ngwafor, E. N.
Family Law in Anglophone Cameroon, University of Regina Computer Services, Regina-
Saskatchewan, 1993, 232 and Anyangwe, Carlson, The Cameroonian Judicial System, Yaoundé,
CEPER, 1987, 241.
461
See Karchia v. Sarkin Kumin Musa (1975) N.N.L.R. 44.
462
See Ngwafor, E. N., Family Law in Anglophone Cameroon, 21; Aguda, T.A. The Law of Evidence,
Ibadan, Spectrum Law Publishing, third ed. 1996, p.94.

132
such cause or matter, may be required by the court to give evidence, if and when

summoned to attend and give evidence.” The other option would be to decline

jurisdiction and direct the parties to the appropriate court, but this option has been

criticised as liable to cause hardship if the appropriate court is not readily

accessible. 463

In Francophone Cameroon there are no statutory provisions dealing

specifically with proof of customary law. This could only be inferred from the

provision of article 18 (f) of judicial Organisation Decree No. 69/DF/544 of 19

December 1969 requiring judgments of customary courts to state the rule of

customary law on which the decision is based, failing which the decision is null and

void. 464

The proof of customary law falls on assessors 465 appointed in principle on the

basis of their knowledge of the customary laws of the parties. 466 This objective can

hardly be achieved because there is for each jurisdiction, a fixed list of six persons

from which assessors are chosen. Not only can this number not be representative of

the different ethnic groups in a court area, 467 the manner of designation leaves much

to be desired. Nominations for the positions are supposed to be made by local

divisional officers and presidents of the Magistrates’ Courts based on the nominee’s

knowledge of the customary law they are to represent. But often and especially in the

urban areas this criterion is not respected. Most assessors, because they are not of the

same tribe as the litigants are completely ignorant of the customs they are called upon

463
See Emmanuel, Mbah, “The conflict of laws dilemma: Divorce in the conflict of laws in
Cameroon,” (2000) 44 Juridis Périodique, 65-73, 72.
464
Procureur General c/ Mbarga Gaston et Mbarga Charles, C.S.C.O. Arrêt No. 20 du 17 Mai 1960
465
See Maticou Rou, “L’Organisation Judiciaire du Cameroun” (1969) 79 Penant, 33-65, 41.
466
See Article 10(2) (c) of Decree No.69/DF/544 of 19 December, 1969 on Customary Courts in East
Cameroon.
467
See Avom, Vincelline Akomndja, « L’énonciation de la coutume en droit Camerounaise de la
famille: Leurre ou réalité? » (2006) 116 Penant, 59-86, 71.

133
to represent. The law requires that in situations where an assessor is ignorant of the

custom of the party he is to represent, the president of the court is to invite a notable

of the tribe, in a consultative capacity, to sit in the hearings,468 but this is hardly

respected. 469 Furthermore, of the six persons, the first two on the list are permanent

members while the remaining four are alternate members. In the absence of any of the

permanent members, he is replaced by an alternate member. 470 By implication the

permanent members must always take part in hearings even if they are not of the same

ethnic groups as the parties.

Having to prove customary law as a matter of fact is a very important

requirement. Otherwise, fictitious persons could emerge from nowhere to claim

succession rights 471 and rules of succession could be tailored to satisfy the greed of

some persons.

4.2.2: Exclusion of customary law.

Pursuant to section 27(1) of the Southern Cameroon High Law 1955 and

section 18 (1)(a) of the Customary Courts Ordinance of 1948 the exclusion of

customary law is governed by the repugnancy and compatibility doctrines. 472 Section

14(3) of the Evidence Act, cap 62 of the 1958 Laws of the Federation of Nigeria

introduces “public policy” as another ground for exclusion and is in line with Law

No. 79-4 of 29 June 1979 on the Customary and Alkali Courts, article 1 of which

enjoins the courts to apply the customs of the parties which are not contrary to law

and public policy.

468
Ibid.
469
Christine Youego, “Sources et Evolution du Droits des Successions au Cameroun,” p. 246-247.
470
Article 11 (1), ibid.
471
In Mary Ngoh Timothy v. Njimba Jacob (2006) Suit No. HCF/PROB/AE96/2001 (unreported) the
estate was managed by the widow and the sister of the deceased when the defendant, a man unknown
to both of them and to other member of the deceased family surfaced and claimed to be a relative of the
deceased.
472
These sections are full quoted above.

134
 Exclusion in Francophone Cameroon is governed by article 51(1) of the

Decree of 31 July 1927 organising the traditional justice system in that part of the

country. That article enjoins the courts to apply only the customary law that is not

contrary to the public order in all civil and commercial matters between natives. 473

Hence customary law may in Cameroon be excluded on the grounds of, (a)

repugnancy, (b) public policy, (c) public order or “ordre public,” 474 and (d)

incompatibility with written law.

4.2.2.1: Exclusion on the basis of the Repugnancy Clause.

The precise meaning of “natural justice, equity and good conscience” has so

far eluded the courts. The difficulty was admitted by Speed Ag. C.J., in Lewis v.

Bankole, where he described the phrase as “high sounding” and held that” it would

not be easy to offer a strict and accurate definition for the terms.” 475

The terms could be separated and construed individually to see if a rule of

custom is repugnant to any of them. Equity will thus be taken in its technical meaning

as was done in Lewis v. Bankole, 476 where it was said that, “rules of equity, are or

ought to be known to this Court, and if a native law or custom is found to be

repugnant to the fundamental rules of equity it is absolutely the duty of the Court to

ignore it.” 477 In that case certain family members demanded that land which had been

held as private property should in accordance with customary law be declared family

property. The equitable doctrine of acquiescence was invoked to declare the custom

“repugnant to the fundamental rules of equity.”

473
Journal Officiel Camerounais. 1927, 427.
474
“Ordre public” and “public policy” are not one and the same thing.
475
(1908) 1 N.L.R. 81, 83.
476
Ibid, p. 83 et seq.
477
Ibid, 83-84.

135
 While this approach is possible for equity to which a restricted meaning can be

given, it is not possible for natural justice and good conscience, which like equity in

its broad meaning are incapable of definition. Hence the second and most appropriate

approach is to construe the phrase as one whole. Here “equity” in its general meaning

takes the same significance as “natural justice” and “good conscience”, 478 and might

lead to the question whether the additional words are not superfluous.

Either approach would make a difference in the customary law of succession,

especially with respect to the rights of women. In the first approach, equitable maxims

such as “equality is equity” will favour succession by women in the same way as the

universal ideas of “natural justice” which constitute the second approach.

The second approach is however beset by divergences on the appropriate

standard of justice to be applied by the courts. The judge has the discretion to choose

between the English, customary or some neutral standard of justice. But judicial

discretion is qualified, 479 for in exercising the discretion, the judge must be guided by

the law. In the words of Lord Mansfield, “Discretion when applied to a court of

justice means sound discretion guided by law. It must be governed by rule not by

humour; it must not be arbitrary, vague or fanciful; but legal and regular.” 480

English law having evolved a standard of justice based on equity is considered

the best example to follow. 481 It provides for uniformity and any other standards

could throw open the floodgates, giving room to standards tailored on the basis of

communities. 482

478
Daniels, W.C. Ekow, The Common Law in West Africa, London, Butterworths, 1964, pp.268-271.
479
See Andrews, Neil, English Civil Procedure, Oxford University Press, 2003, 356.
480
R. v. Wilkes (1770) 4 Burr. 2527, 2539.
481
See Allott, Essays in African Law, p. 200
482
The point was made by Wilson J. said in Gwao bi Kilimo v. Kisunda bin Ifuti : “Morality and
justice are abstract conceptions and every community probably has an absolute standard of its own
by which to decide what justice is and what is morality. But unfortunately, the standards of different

136
 The English standard was employed by the Privy Council in Eshugbayi Eleko v.

Government of Nigeria 483 to quash a decision of the Supreme court of Nigeria, which

upheld an order of the Governor deporting the appellant on the basis of a custom that a

deposed chief or native was required to leave the area over which he exercised

jurisdiction or influence by virtue of his chieftaincy or office. The standard was also

invoked against slavery and its incidents. In Santeng v Darkwa 484 an argument that the

child of a slave could not inherit property in the family was rejected on grounds of

repugnancy and it was held that for purposes of succession the child was to be

considered as a member of the family. In David Tchakokam v. Keou Magdaleine 485 , the

standard was applied to invalidate a levirate marriage.

Advocates of an African standard argue that a rule of custom that has been

observed for many years should not suddenly become unenforceable on grounds of

repugnancy. The application of the test should take cognisance of the values of the

people to whom the rule is applicable. A judge confronted with the question of the

repugnancy of a rule of customary law should first consider the essential philosophy

behind that rule before pronouncing on it. 486 In the Southern Rhodesian (Zimbabwe)

case of Tabitha Chiduku v. Chidano 487 Tredgold J., laid down the rule that “Native

customs should not be interfered with unless they impress us with some abhorrence or

are obviously immoral in their incidence.”

communities are by no means the same. To what standard, then, does the Order in Council refer –the
African standard of justice and morality or the British standard? I have no doubt whatever that the
only standard of justice and morality which a British court in Africa can apply is its own British
standard.”
(1938) 1 T.L.R. 403 (Tanganyika).
483
[1931] A.C. 662.
484
(1940) 6 W.A.C.A. 52. (Ghana)
485
(1999) G.L.R, p. 111 (Gender Law Report).
486
See Cardozo, Benjamin N., The growth of the Law, London, Humphrey Milford, 1934, p.62.
487
(1922) S.R.L.R. 55.

137
 Others advocate a completely neutral standard. Park proposes a standard based

on “some less specific factor, which is not derived from any legal or social system, but

rather from general notions of what is just and proper.”488 Woodman thinks that, “if the

repugnancy clause was to have any effect, the standard was to be external…. ideally it

should be an absolute universal standard”. 489 Such a standard, we think derives from

natural law and does not assume the colouring of any particular, legal system, political

organisation, and religion.

In practice the courts vacillate between the English and African standard and

the gender of the judge seems to influence the standard of justice adopted by the court.

It might perhaps be an Olympian jump to hold that female judges invariably apply the

English standard, but this is not far from the truth 490 given that English rules are more

favourable to women and that by natural instinct women will be more inclined to

favour other women. The first judgment recognising the property rights of a woman on

divorce was that of a lady Judge 491 and has since been followed by others including

some male judges. This is an unhealthy situation for a justice system that should be

gender-neutral. A common standard is therefore necessary, and if customary law is to

make the necessary progress, this should be based on natural law, which would be

applied on the basis of constitutional provisions on fundamental human rights.

488
Park, A. E. W. Sources of Nigerian Law, London, Sweet and Maxwell, 1963, p.70.
489
“How State Courts Create Customary Law in Ghana and Nigeria”, Bradford W. Morse and G.R.
Woodman,(eds), Indigenous Law and the State, Foris Publications Dordrech-Holland/Providence RI-
USA, 1988, p.181-215,193.
490
See Ngassa, Vera (Justice) Gender Approach to Court Action, Frederick Ebert Foundation, 1998, p.
97.
491
This was in Alice Fodje v. Ndansi Kette (1986) BCA/45/86 (unreported) decided by Justice
Florence Arrey.

138
4.2.2.2: Exclusion on grounds of Public Policy.

English Judges are circumspect to proffer a definition for public policy. In

Besant v. Wood Jessel M.R. said: “You cannot lay down any definition of the term

‘public policy’, or say it comprises such and such a proposition, and does not

comprise such and such another.” 492 Kekewick J. in Davies v. Davies gave the

possible reasons for this when he said: “Public policy does not admit of definition and

is not easily explained… public policy is a variable quantity; that it must vary and

does vary with the habit, capacities and opportunities of the public.” 493

Winfield, however, defines the concept as “a principle of judicial legislation or

interpretation founded on the current needs of the community.” 494 It is based on the

recognition that legal rules are built upon certain implicit moral and social

assumptions which cannot be readily or precisely formulated in advance and which

may change fundamentally from time to time. 495 Public policy is thus viewed as a

legal standard that encapsulates the values which the legal system is designed to

serve. It cannot, however, be invoked because a judge personally thinks that a rule is

contrary to the public interest. 496 It must be something which the very structure or

character of the community demands. In Mitchel v. Reynolds, 497 Lord Macclesfield

had indicated that a rule is against public policy if it is “a general mischief to the

public.”

The public interest goal of public policy distinguishes it from the repugnancy

clause, which depends upon the personal sentiments of the judge on questions of

492
(1879)12 Ch. D. 620.
493
(1887) Ch D. 364.
494
Ibid, p. 92.
495
Bell, John, “Conceptions of Public Policy”, in Cane, Peter and Stapleton, Jane (ed) Essays for
Patrick Atiyah, Oxford, Clarendon Press, 1991. p.90.
496
Atiyah, P. S. An Introduction to Contract, 4th edn. Oxford, 1989, 360-1.
497
Cited by Knight, W.S.M “Public Policy in English Law” (1922) L.Q.R., pp.207-219, 208.

139
morality, often influenced by his training, religious faith, gender and cultural

background. Public policy looks beyond these, to the position of government with

respect to the rule in question, as ascertained from legislative enactments. 498 But it is

conceded that public policy could be invoked in default of legislative enactment,

whenever the considerations of the public interest so desire. 499

In applying a rule of customary law the court has to weigh the outcome of its

decision on the whole community as well on a considerable section of it, even where

they are not concerned with the outcome of the case. No doubt the interest of the

individual is also a matter of public interest but inconvenience to an individual is

likely to be less mischievous than if it was to the whole public.500 If preserving the

public interest is the criterion for public policy, rather than some abstract conception

of morality or justice, liable to vary with the “length of the judge’s foot”, it is

indubitable that public policy confers a wider power of discretion than does the

repugnancy clause. 501

Anglophone courts have not shown any enthusiasm towards public policy as a

separate ground to exclude customary law. Quite often it is treated as a synonym for

the repugnancy doctrine. 502 Enonchong writes that: “The term ‘public policy’… adds

nothing to the common law requirements of ‘natural justice, equity and good

conscience’.” In Asaba v Sub-Chief Forfutazong 503 , the Buea Court of Appeal relied

498
Knight, W.S.M “Public Policy in English Law” (1922) L.Q.R., pp.207-219, 212.
499
Ibid.
500
Knight, W.S.M., “Public Policy in English Law”, p.212.
501
Philips, Arthur, A Survey of African Marriage and Family Life, Oxford, Oxford University Press,
1953, p.177.
502
See Anya v. Anya, where section 2(1) of the 1979 Law on the Customary and Alkali Courts was
invoked to exclude a rule of customary, on the ground that it was “against public policy, that is,
‘natural justice, equity and good conscience’ as spelled out in section 27 of the Southern Cameroon
High Court Law 1955.” Taken from Enonchong, Nelson, “Public Policy and Ordre Public: The
Exclusion of Customary Law in Cameroon” (1993) 5 R.A.D.I.C. 503-524, 504.
503
Taken from Enonchong, Nelson, “Public Policy and Ordre Public: The Exclusion of Customary Law
in Cameroon” (1993) 5 R.A.D.I.C. 503-524, 505.

140
on the provisions of section 14(3) of the Evidence Act which enshrines both public

policy and repugnancy, to exclude a rule of customary law. Public policy was given as

the basis of the decision without reference to the repugnancy clause. English judicial

tradition would have required the two concepts to be distinguished to explain why the

decision was founded on public policy. Failure to do so could only mean that the

learned judge considered the two concepts as being synonymous.

In Re Adadevoh, 504 Verity, C, J. evinced the possibility of the public policy

criterion being fully covered by the compatibility doctrine. In order to decide whether

children, illegitimate by English law, were entitled to succession on the ground that

they were legitimate in customary law, by reason of having been acknowledged by the

deceased said: “The Judge would… satisfy himself first that such a custom is

established and secondly, that it is not repugnant to natural justice, equity and good

conscience nor incompatible either directly or by necessary implication with any law

in force in Nigeria, including therein the rules of the common law as to the

unenforceability of claims contrary to public policy.” 505

The raison d’être of the public policy criterion stands questioned if the same

objective would be possible under the repugnancy and compatibility doctrines. 506 But

the absence of a general standard of repugnancy and the fact that the compatibility

doctrine is effective only where there are written laws, justify the maintenance of the

public policy requirement.

However, public policy is bedevilled with the spectre of the “unruly horse,” let

loose on the legal profession by Justice Burrough in Richardson v. Mellish: “public

policy is a very unruly horse and when once you get astride it you never know where

504
(1951)13 W.A.C.A. 304.
505
Ibid 310. Emphasis added.
506
Park, A. E. W. Sources of Nigerian Law, London, Sweet and Maxwell, 1963, p.70

141
it will carry you.” 507 Lord Denning tried to allay the fears of the courts by intimating

that “a good man in the saddle” 508 should be able to steer the horse in the right path.

Vestiges of the old attitude are however current in English courts. Recently in In re

Land Deceased 509 the question was whether the sole beneficiary of an estate,

convicted for the deceased’s manslaughter was entitled to the provision made for him

in the will. He had actually given up his employment to nurse the deceased, his

incapacitated mother. At one point he negligently allowed her to catch bed sores from

which she died. The Forfeiture Act 1982 was invoked to bar him from taking under

the testacy of the deceased, as it would have been be tantamount to allowing him

make benefit out of his crime.

Alternatively he applied for financial provision under the Inheritance

(Provision for Family and Dependants) Act 1975, on the authority of section 3(1) of

the Forfeiture Act 1982, which stipulates: “The forfeiture rule shall not preclude any

person from making an application under any provision of the Inheritance (Provision

for Family and Dependants) Act 1975 or the making of any order on the application.”

The question was whether public policy could be invoked to prevent him from

applying under the 1975 Act. Section 3(1) of the Forfeiture Act 1982 on the basis of

which the application was made was construed to mean that the court could only

invoke public policy to deprive the wrongdoer of benefiting from the estate where it is

in the public interest to do so. It was held not to be in the public interest to deprive the

applicant from applying under the 1975 Act. Norris, J. held thus:

“I hold that the claimant may advance a claim under the Act. As Vinelott
J. put it in In re K [1985] Ch. 85, 102, ‘Despite the revulsion which any

507
(1824), 2 Bing, 229, 242-243.
508
Enderby Town Football Club v Football Association Ltd. [1971] Ch. 591, 606, per Lord Denning.
509
[2007] 1 W. L. R. 1009.

142
 person must feel at conduct which leads to the death of another human
being it is impossible in the tragic circumstances of this case not to feel
sympathy for the [claimant]’. Indeed for my part, I do not think that, on
the facts as I have found them, the forfeiture rule serves the public
interest. It deprives the one person who devoted himself to the
deceased’s care without significant outside support (albeit that he lapsed
at the end) of the benefit she intended for him and confers it upon
remote relations most of who [sic] did absolutely nothing for her.” 510

As suggested by some dicta in that case the conduct of the appellant is not in the

public interest because it is occasional and affects only a few persons. 511 This cannot

be true of the custom that excludes certain persons from succession. It is all pervading

and could result in the social ills described at the start of this work. It should thus be a

matter of public interest worthy of exclusion on the basis of public policy, whenever

the repugnancy clause fails to do so. So, should the courts refuse to “ride the horse”

because of the uncertainty of its destination? Enonchong is optimistic that public

policy “is not such a terrifying animal near which Anglophone judges may not

approach. It is an animal which when guided correctly can pull down obsolete and

unjust barriers and open the way to equality, freedom and justice based on equity and

good conscience.” 512

Accepted that public policy could be applied is it not time for the pejorative

repugnancy clause to be abandoned altogether? Law No. 79-4 of 29 June 1979 on the

Customary and Alkali Courts, directing the courts to apply only custom that is not

510
At 1019.
511
Ibid. 1018.
512
Supra. 524. His optimism in the eventual outcome of public policy if well managed is matched to
that of Winfield, supra, 91, when he writes that “Some judges appear to have thought it more like a
tiger, and have refused to mount it at all, perhaps because they feared the fate of the young lady of
Riga. Others have regarded it as Balaam’s ass which would carry its rider nowhere. But none, at any
rate at the present day has looked upon it as Pegasus that might soar beyond the momentary needs of
the community.”

143
contrary to law and public policy seems to do this. It does not, however, go far

enough; it fails to repeal previous provisions on the point. And even if it did it would

not bind the High Courts which with the Alkali and customary courts have original

jurisdiction over succession.

4.2.2.3: Exclusion on the Basis of Ordre Public in Francophone Cameroon.

Ordre public is a generic expression which encapsulates repugnancy and

public policy. It is incapable of precise definition because of its variable nature. 513

Attempts at a definition have been variously described as “quicksand” 514 or a “thorny

field” 515 on which no reasonable person would want to tread.

The tendency is to describe the concept with reference to the organisation of

the state. Capitant states that it refers “order in the state, that is to say the arrangement

of the institutions, the organisation of rules that are indispensable to the existence and

functioning of the state.” 516 Thus described, ordre public achieves three principal

goals: (1) it helps to defend certain principles of natural law such as the equality of

sexes and right to property enshrined in the constitution, (2) protects the social

foundations of government policy such as the secular character of the state and

recognition of polygamy and (3), it enables the courts to strike down any rules of law

that seem irreconcilable with the legislative policies of the state. 517

513
Jacques Ghetstin, “L’Ordre Public, Notion a contenu variable en Droit Privé Français”, in Perelman,
Chaïm and Vander Elst, Raymond (ed.), Les Notion a Contenu variable en Droit, Bruxelles,
Etabilessement Emile Bruyant, 1984, p.78.
514
Ibid.
515
Ibid.
516
“L’Ordre dans l’Etat, c’est -à - dire l’arrangement des institutions, l’organisation des règles qui sont
indispensables à l’existence et au fonctionnement de l’Etat”, Introduction à l’étude de droit civil,
notions générales, Paris, 1898, pp. 25-33.
517
Jacques Ghetstin, supra., 94.

144
 It is clear therefore, that ordre public is wider than public policy. 518 In

addition to enabling the courts to ensure the adaptability of law to the current need of

a community, it also enables the conformity of rules of customary law to the general

principles of law, which in succession should be the equality of all the members of the

deceased family. 519

Consequently, courts in this part of the country have found no difficulty in

relying on the constitution which enshrines the equality of sexes to exclude a rule of

customary law in favour of relevant provisions of the French civil code on the ground

that its application could result in a disruption of the established social order. The

adopted principle of the code is said to constitute an evolution of the custom in

question. 520

4.2.2.4: Exclusion for Incompatibility with Written Law

In addition to repugnancy, section 27(1) of the Southern Cameroon High

Court Law 1955 provides for the exclusion of customary law which is incompatible

directly or by necessary implication “with any law for the time being in force.” For a

custom to be excluded on this ground the statute and custom must regulate the same

matter, and must be in conflict. There is no incompatibility if the customary law rule

and the statute rule can function without interfering with the other. In Cameroon the

payment of the customary dowry is not incompatible with a monogamous marriage,

518
See Dahl, Henry Saint, Dictionaire Juridique Dahl, Paris, Dalloz, 2001, 602.
519
Youego, Christine, “Sources et Evolution de Droit des Succession aux Cameroun,” Doctorat thesis,
university of Paris II, 1994, 306.
520
See Enconchong, “Public Policy and Ordre Public: The Exclusion of Customary Law in Cameroon”,
519. For example Affaire Tchokossi, 14 February 1974 (Supreme Court); Affaire Zang, 30 May 1974
(Supreme); Ebanda Njoh Elisse c/. Eyombwan Njoh Isaac, Arrêt No.42 du 9 Mar 1978 (Supreme
Court)

145
given that the Civil Status Registration Ordinance No. 81-2 of 29 June 1981

recognises its payment in both monogamous and polygamous marriages. 521

But the application of the requirement has been beset with the meaning to be

attached to the word “law”; whether it includes both the common law and statutory

law on the one hand, and the local and received English statutory laws on the other.

Re Adadevoh 522 intimated that it includes the common law but that view has been

rejected by experts, 523 because such a position entails engaging the entire arsenal of

English law against customary law. And since custom must always conflict with

some rule of common law, the position would mean the demise of customary law.

524
An acceptable view, held in Rotibi v. Savage 525 is that “law” refers to

local enactments only. The defendant sought to avoid the payment of debt contracted

under customary law, by invoking a provision of the Statute of Limitations, 1833,

under which the debt had become time-barred. His reason was that since customary

law knows no such limitation it was incompatible with the statute. His claim failed

because no local statute contained a similar limitation. The same statute was pleaded

in Lawal v. Abayomi 526 with the intention to bar an action for account brought by

family members against the successor. “Law” was held therein to include the

received English law, the application of which is subject to the provision that “as

regards causes and matters between natives, customary law shall be deemed

applicable where it may appear to the Court that that substantial injustice would be

done to either party by a strict adherence to English law.” 527 Obviously the statute

521
Sections 70, 71, 72 and 74.
522
(1951)13 W.A.C.A. 304.
523
See for example Park, The Sources of Nigerian Law, London, Sweet and Maxwell, 1963, 78.
524
Park, supra. 78.
525
Also known as in the matter of Herbert Macaulay (1944) 17 N.L.R. 77, 82.
526
(1946)18 N.L.R. 45, 47.
527
See section 27(2) of the Southern Cameroon High Court Law, 1955.

146
was inapplicable because it would have resulted to injustice on the rest of the family

and would have established a precedent preventing successors from rendering

account of their management of an estate.

More controversy was generated by Adesubokan v Yinusa. 528 A Moslem

made an English will and disposed of property contrary to the rules of Moslem law.

The will was rejected at first instance for being incompatible with the rule of Moslem

law. The decision was quashed by the Supreme Court of Nigeria on the ground that it

constituted an infringement on testamentary freedom embedded in section 3 of the

Wills Act 1837.

We could not find a case in which the question has arisen in our courts. If it

did the majority view which is that compatibility is determined with reference to

local statutory law will certainly prevail. Because these statutes take cognisance of

local conditions, any incompatibility between them and customary law would be

construed as an intention to abrogate the latter.

For the courts in Francophone Cameroon customs “contrary to law” are

excluded on the basis of raison écrite, the equivalent of incompatibility, which

establishes the supremacy of written over unwritten law. 529 Under Civil Law, law

means written law since primacy is given to written as against case law. Therefore

the problem as to whether “any law” includes non-statutory law does not arise.

Incompatibility is judged with reference to both local and received French statutes,

because the latter were specifically promulgated in that part of the country.

Conscious that this might entail the complete exclusion of customary law

since it is unlikely for most rules of customary law to be compatible with provisions

528
[1971] N.N.L.R. 77.
529
See Nguini, Marcel, « Droit Moderne et Droit Traditionnel » (1973) 83 Penant, 1-10, 9.

147
of French statutes, a circular letter of the Ministry of Justice and Keeper of the Seals

in January 1963 530 established customary law as the droit commun 531 , while the

written law was the law of exception. The colonial statutes maintained after

independence were to be invoked only in the event of the silence of customary law in

a given matter. However, the courts go their own way. Francophone Cameroonian

judges are classed amongst those who even after independence, continue to behave as

if they were in the colonial days when French law was the droit commun and

customary law was the law of exception. 532

4.3: THE EFFECT OF THE EXCLUSION OF CUSTOMARY LAW

The various methods of excluding customary law underscore the desire by the

authorities to maintain only the rules likely to foster harmony and peaceful existence

and not those with a propensity to result in strife and social disorder.

When a customary rule that would otherwise be applicable is held inapplicable

the question arises as to the effect of the exclusion. Firstly, the excluded custom does

not thereby become invalid. 533 The exclusion merely renders the custom inapplicable

by the courts, 534 but it continues to be applicable in non-judicial instances535 competent

to settle matters in application of customary law. Certainly this practice is liable to

retard the modernisation of the customary law because many people knowing that non-

judicial instances would settle their matters in application of the old rules of custom

would prefer to take their matters there. True, these decisions have no legal force and

530
Marticou Riou, “Les statut personnels au Cameroun”, (1969) Revue Sénégalese de droit, p. 40.
531
Droit commun in French law means the law applicable to every one.
532
Vanderlinden, J., “Le juge et la coutume en Afrique aujourd’hui, cited by Youego, Christine,
“Sources et Evolution de Droit des Succession aux Cameroun,” Doctorat thesis, university of Paris II,
1994, 333-334.
533
See Daniels, The common law in West Africa, 286.
534
Ibid.
535
See article 21 of the Decree of 15 July 1977 on the organisation of traditional chieftaincies; section
61(2) Customary Courts Ordinance, chapter 142 of the 1948.

148
could still be reversed by the courts but, most aggrieved persons would be less inclined

to pursue the matter after the decision of the divisional officer or the traditional

council.

Secondly, the courts will have to apply an alternative rule depending on the

ground for exclusion. If the custom is excluded on grounds of incompatibility with

local statute law the rule contained in the statute will be applied. If, on the other hand,

the exclusion is on the other grounds, the initial approach is to apply an alternative rule

of customary law approved by both parties as meeting the imperatives of natural

justice, equity and conscience. 536 The most common approach necessitated by the

absence of alternative rules of custom is to apply the appropriate rule of the received

laws. The latter option raises the question whether the rule of received law becomes

assimilated to customary law or retains its status as a rule of English or French law.

Francophone courts are authorised to substitute excluded rules of customary

law with the relevant provision of the civil code of 1804. 537 The adopted provisions

take the form of coutumes evolués. The concept was evolved in the mid-1960s when

the Supreme Court of East Cameroon departed from its initial position 538 according to

which it is the responsibility of the local population through its institutions to ensure

the evolution of customary law, by empowering the courts to ensure such evolution. 539

536
See Park, The sources of Nigerian Law, 81.
537
See Doumbé-Moulongo, M., Les coutumes et Droits aux Cameroun, Yaounde, CLE, 1972, 69.
538
Supreme Court, arrêt No. 15/C du 22 Janvier, 1963, Bull. No. 8, 572. « Attendu que le caractère
essentiel de la coutume est d’être évolutive ; que dans le domaine qui lui est réservé par le législatuer,
elle est élaborée, décidée, et mis en oeuvre par les organes institionelles du groupe social qu’elle
concerne, et anisi se développe, se modifie et se’ renouvelle d’une manière autonome et par ses propres
voies en vue de son adaptation continue aux conditions et aux exigences nouvelles de la vie sociale.»
539
Supreme Court decision of 11 June 1963, Penant, 1966, 73. Supreme Court decision of 19 May
1964, Bull. 10

149
 In Anglophone Cameroon the position has until recently been in line with the

decision of the Privy Council in Eshugbayi Eleko v. Government of Nigeria. 540 The

court was confronted with two options in this case. Be guided by the objective of the

repugnancy and public policy doctrines to exclude a supposedly modified version of

the customary law or uphold the version and thus effect a modification of the

customary law on the point. The court opted for the first alternative and held: “the

Court cannot itself transform a barbarous custom into a milder one… It is the assent of

the native community that gives a custom its validity, and, therefore, barbarous or mild,

it must be shown to be recognised by the native community whose conduct it is

supposed to regulate.” Hence a rule of English law applied in the place of an excluded

rule of customary law does not become a rule of customary law.

Professor Enonchong, however, seems to imply that the new rule becomes a

rule of customary law:

“In practice, however, the courts use principles of English common law
and equity as substitutes [and statutes of general application]. I should
perhaps take leave here to sound a note of caution. It is that when a rule
is to be substituted for a displaced customary law rule it should be asked
whether the replacing or ‘foreign rule’ can be inserted in toto into the
system of customary law without doing violence to the basic and un-
impugned principles of that customary law as a whole.” 541

It is clear that he intends modification rather than substitution of the excluded

rule. Daniels, fearing the disappearance of customary law had also proposed the use

of the doctrine of severance, to save rules of customary law by “pruning away the

palpably unpleasant aspects” 542 of the custom. The problem is that neither of them

540
[1931] A.C. 662, 673.
541
Enonchong, N., “Public policy and Ordre Public: the exclusion of Customary Law in Cameroon.”
(1993) RADIC, vol.5, No. 3, pp. 503-524, 520.
542
Daniels, W.C. Ekow, The Common Law in West Africa, London, Butterworths, 1964, p. 286.

150
provides guidelines as to how an excluded rule could be modified. How, for instance,

would the rule that a woman cannot inherit property be modified, without doing

violence to the principle according to which judicial discretion can only be exercised

within accepted legal rules?

As will be shown later the High Courts with authority to administer both

English and customary law can only apply the customary law “binding between the

parties”. Failing this, the courts could only apply English law 543 as they have no

authority to apply any other customary law which could be more favourable to

women.

This question is, however, only of academic significance today, because of the

extension to Anglophone Cameroon of the concept of coutumes evolués, 544 by the

Supreme Court in the Chibikom v. Zamcho Florence. 545 Hence a rule of English law

used as the substitute of an excluded rule of customary law becomes customary law

and can be invoked in other cases of customary law.

4.4: APPLICATION OF MUSLIM LAW

The status of Muslim law varies from one country or community to another. In

some, such as Somaliland and Northern Nigeria where its application per se has been

expressly decreed, it constitutes the fundamental law with respect to the matters for

which its application is decreed. 546 It is there not applied as customary law no matter

how fused it must have become with the latter. Instead it is customary law whose

exceptional application is expressly or tacitly authorised.

543
See 3.3.2.2.1.
544
As will be shown later in 7.4.
545
Arrêt no. 14/ L du 4 Fevrier 1993 (1995) 21 Juridis Info 29.
546
See J.N.D. Anderson, Islamic Law in Africa, London, Her Majesty’s Stationery Office, 1954, pp. 5-
6.

151
 In others it is applied as the dominant law because as a result of the presence

of a Muslim majority its treatment as “the native law and custom prevailing in the

area of the jurisdiction” of a customary court is justified. 547 Muslim courts exercise

jurisdiction over persons still subject to customary law, but who are represented in

litigations by assessors. This is also the case in parts of Northern Nigeria.

In the third category, Muslim law is only a particular law attaching to greater

or less extent to some group, family or individual. 548 Muslim law constitutes the

minority but its adherents are granted certain privileges in regard to its application and

administration within their own communities. In the last category, no recognition is

given to Moslem law and its application is ensured by the ordinary courts subject to

the rules that govern people whose personal law differs from the local customary

law. 549

Cameroon is a secular state 550 with a unified judicial system, thus Muslim law

is neither the fundamental law of the country nor the dominant law of any community.

It applies only within the third and fourth categories. The North West Province,

because of the existence of a large Muslim population would fall in the third category.

Muslim law is applied and administered not by ordinary customary courts but by the

Muslim Alkali Courts. 551 On the other hand, the South West Province with only a few

Muslim converts and immigrants would fall in the fourth category. Disputes involving

Muslims are determined in the ordinary customary courts which with the help of

547
See Park, The sources of Nigerian Law, p. 180.
548
Anderson, Islamic Law in Africa, London, Her Majesty’s Stationery Office, 1954, pp. 5-6.
549
Phillips, Arthur, (ed), A Survey of African Law, Oxford University Press, 1953, p. 232-233.
550
See Article 1(2) of the 1961 Constitution, and the preamble of the 1972 and 1996 Constitutions.
551
More on these in the section on Jurisdiction in chapter three

152
witnesses applies Muslim law as “the law binding between the parties” as against the

predominant law of the locality. 552

In Francophone Cameroon Muslim law is administered in the same courts that

administer ordinary customary law. Thus the rule that the courts apply the customs of

the parties reduces Muslim law to an insignificant position even with the existence of

a dominant Muslim population, as in the three Northern Provinces and Noun Division

in the Western Province.

In-as-much as there is no derogation from the basic tenets of the law 553

contained in the Quran and Sunna, 554 Muslim law could be modified by the local

customary law. The secondary sources are the agents of modification as they are

themselves the results of scholastic adaptations of Quranic or Sunni provisions to the

specific circumstances of their time and localities. What is accepted as Muslim law in

Cameroon is thus the adaptation of Quranic and Sunna prescriptions to the customary

laws of Saudi Arabia, Turkey, Egypt, India and Pakistan. 555 In this respect the great

Muslim scholar Dr. Hashim Mahdi, concludes his account on the evolution of Muslim

law with the statement: “This is the law we have selected for presentation to all

Islamic minorities of non-Muslim states, acting in accordance with the efficiency

demanded of us. We have selected this law because its preparation matured for nine

years at the hands of eminent scholars and committees, first in Egypt and then in

552
See Alhaji Garuba v. Next of Kin, C/S 29/84-85 (unreported), submitted to the Limbe Customary
Court.
553
Anderson, supra. P. 172.
554
See Ajijiola, A.D. Introduction to Islamic Law, p.340.
555
See François, A., Commentary on AffaireDame Dada Balkissou v. Abdoul Karim Mohamed, Cour
Supreme, Arrêt No. 2/L du 10 Octobre 1985, in Juridis info. No.8, 1991, pp. 53-59, 56, see also Ajijola,
ibid, p. 347.

153
Damascus, and because it has dealt with all that needs to be dealt with in the present

day.” 556

Hence local customary laws tend to lend colour to Muslim law. Anyangwe’s

statement that “given the interaction over the years with the local natives and their

customs, Islamic law which obtains in the Northern part of Cameroon has become

diluted” 557 is true of all the other communities with a Muslim population and even

beyond. 558 The concept of family property is for example, unknown in Muslim law,

but was held to constitute part thereof in In the Estate of Baba Nya, 559 where the

customary and appeal courts in application of Muslim law held that the family of the

husband of a deceased widow was entitled to her property against claims of next-of-

kin (another example of the influence of custom), made by the appellant, a complete

stranger claiming to be the “God-son” of the deceased. In the opinion of the appellate

jurisdiction no other person is entitled to succession “when the family is still in

existence. The late man died and his family came and did his death rites.” 560 The

influence of the local customary law is also evident in Gboron Yaccouba & Anemena

Suzanne v. Mbombo Asang & Ndam Emile. 561 The deceased was a Bamoun from

Noun Division, one of the communities in Cameroon with a predominant Muslim

population. The widow sought for the estate to be distributed so that she gets into her

entitlement under Muslim law. This was rejected by the trial court and the decision

556
Muslim Personal Law, London, TA-HA Publishers Ltd., 2009, 5.
557
The Cameroonian Judicial System, p. 13.
558
Roland and Lampue writing about Muslim law in French West Africa write “le droit Musulman
observé en Afrique occidentale est assez différent de celui qu’on pratique en Afrique du Nord. Il n’a
fait que recouvrir les anciennes coutumes locales et il s’est sensiblement déformé en se mêlant à celles-
ci” in Philips, Arthur, A Survey of African Marriage and family Life, oxford University Press, 1953,
236.
559
(1985) Suit No. C.A.S.W.P/CC/16/85 (unreported).
560
Emphasis added.
561
Cour d’Appel de l’Ouest, Bafoussam, Arrêt No.001/C du 23 Octobre 1997 (unreported)

154
was upheld by the Court of Appeal which, basing the decision on the local customary

law held that “en coutume Bamoun, la femme n’ hérite pas.”

4.5: COURTS ADMINISTERING THE CUSTOMARY LAW OF

SUCCESSION

4.5.1: Original Jurisdiction: Customary Courts and Tribunaux de Premier

Degré
We will only discuss the Customary Courts here, as their counterparts the

Tribunaux de Premier Degré have already been considered in chapter three.

The Customary Courts include ordinary customary courts administering native

laws and custom and Alkali courts administering Muslim law. The first Alkali Court

was established in Ndop by the Alkali of Yola (Nigeria) in 1946, 562 and the Alkalis’

Courts (Validation of Acts) Law, 1960 was passed to validate all the acts of the court

from the date of its creation 563 . Seven others have since been created and all of them

in the North West Province. 564 The Alkali of Ndop serves as the chief Alkali and goes

on assizes to the South West Province where no Alkali Courts exist. Muslim litigants
565
in the South West either take their cases to the ordinary customary courts or the

local Imam who attempts conciliation and when this fails transmits it to the Chief

Alkali for hearing during the assizes.

We noticed the absence of women in the constitution of both the customary

and Alkali courts. Any changes in the customary law coming from these courts can

562
Information provided by Mallam Muhamadou Bello, chief Alkali of Cameroon.
563
Section 2 of the Act reads: “Anything which has been done by an Alkali’s Court (which expressly
mean an Alkali acting with or without assessors) in Southern Cameroons before the commencement of
this Law in purported exercise of any such powers as are conferred on Native Courts by the Native
Courts Ordinance and which would have been lawfully done if the Alkali’s Court had been a Native
Court lawfully established under the Native Courts Ordinance shall be deemed to have been lawfully,
validly and effectively done.”
564
The Alkali courts of Banso, Nkambe, Mbengwi, Wum, Ndarawa, Fundong, and Kumbo.
565
See Alhaji Garuba v. Next of Kin, C/S 29/84-85(Customary Court ,Limbe) (unreported).

155
therefore only be initiated by men and might, as we shall see, only be in half measures

or laden with limitations. 566

This anomaly could be attributed to the continued application of the Native

Courts Ordinance Cap 142 of the 1948 Laws of Nigeria. 567 The English colonial

policy of indirect rule prevented the administration from interfering with the manner

in which the courts were composed. 568 The Ordinance has been partly modified by the

Adaptation of Existing Laws Order 1963, based on the Customary Courts Law of

1956 which never went into effect because the official notice in the Gazette required

to render it operational was never given. 569 The modifications are today contained in

the Customary Courts Manual Volume 1, rendered operational by Legal Notice

No.119 of 1965, which serves as guide for the customary courts. The practice, though

unorthodox is to refer to the amended version of the Customary Courts Ordinance as

contained in the Manual as if it is the original version of the Ordinance. 570

The ratione personae jurisdiction of the Courts is embedded in section 14(1)

of the Native Courts Ordinance of 1948:

“Every Native Court shall have full jurisdiction and power, to the extent
set forth in the warrant establishing it, and, subject to the provisions of this
law, in all civil and criminal matters in which all the parties belong to a

566
This will be demonstrated in the chapter four, dealing with intestacy under customary law .
567
Jesco Manga Williams’s v. The President, Native court Victoria. (1962-1964) W.C.L.R. 34.
568
The colonial administrators were only concerned with the conformity of the customs and court
procdure with the notions of natural justice, equity and good conscience.
569
Section 1 of the Law reads: “This … and shall come into operation on a day to be appointed by the
Governor-general by Notice in the Southern Cameroons Gazette,”
570
Just a few examples: In Anyangwe’s The Cameroonian Judicial System, citations from the
Customary Courts Ordinance in pages 76-77 are actually of the Customary Courts Law. Professor
Enonchong in his article “Public Policy and Ordre Public: The Exclusion of customary law in
Cameroon.”(1993) RADIC, 503-524 refers in page 505 to section 18 of the Ordinance and then to
section 10 which actually comes from the Ordinance without noticing the oddity of two sections in the
same statute saying the same thing. In Jemba Solomon Nangah v. Emilia Okole Otte, (2002)
C.A.S.W.P/CC/14/2002 section 18 was also cited as if it is of the Ordinance.

156
 class of persons who have ordinarily been subject to the jurisdiction of
customary tribunals.” 571

Persons of Cameroonian nationality immediately come to mind as being

ordinarily subject to the jurisdiction of customary courts. The Ordinance, however,

allows the possibility for the jurisdiction to be extended to any other person of an

African background who must have consented to such jurisdiction. 572 It is therefore

commonplace to find foreigners submitting their cases to either the customary 573 or

Alkali 574 courts.

Section 16, read together with its schedule enshrines the ratione materiae

jurisdiction of customary courts. It gives the courts:

“Full jurisdiction in matters and causes relating to succession and

administration of estates under customary law and in causes and matters
in which no claim is made for, and which do not relate to, money or
other property, and full jurisdiction in all matrimonial causes other than
arising from or connected with a Christian marriage as defined in section
1 of the Criminal Code.”

The courts therefore are competent if the deceased was ordinarily subject to

their jurisdiction. However, if the action is instituted by a creditor, for example,

because of a debt owed to him by the deceased, the jurisdiction of the courts will be

excluded if the amount involved exceeds the equivalent of £100 in the local CFA

571
My emphasis.
572
Historically the jurisdiction could only be extended as provided by section 14(3) of the Customary
Courts Ordinance 1948, on the orders of the Governor-General and endorsed in a resolution of the
Southern Cameroons House of Assembly. One such resolution extended the jurisdiction to Nigerians
and “Native-foreigners. (See Anyangwe, Carlson, The Cameroonian Judicial System, p. 77).
573
The Matter of Ethel Nworie Akabueze (Nigerians), Muyuka Customary Court, Suit
No.34/2003/2004.
574
Hadjih Isah v. Buba Balkissou (Nigerians), Alkali court Mbengwi, Suit No.24/91-92.

157
Francs. 575 This should dispel misunderstandings according to which the jurisdiction of

the courts is generally limited by the pecuniary value of the property involved. 576

The schedule clearly excludes Christian marriages from the jurisdiction of the

courts, implying that marriage types are common indicators as to whether or not a

person is ordinarily subject to the jurisdiction of customary courts. De facto

monogamous marriages common in customary societies do not per se divest a person

of his status under customary law, given that such marriages are generally potentially

polygamous. 577

Another indicator is the general life-style of the deceased. In Daniel Njike v

Zachius Ehang 578 it was clear that the deceased was a polygamist, but the High Court

ignored this fact and instead ordered 579 the case to be tried at first instance by the

appropriate Customary Court on the basis of evidence provided by the chief about the

customary status of the deceased.

Leaving a will in English form would also produce the same effect as

contracting Christian marriages on the basis that both are unknown in customary law

as will be shown in the chapter on the conflict of laws. In either situation the deceased

would not be said to have been ordinarily subject to traditional jurisdictions which

should normally decline jurisdiction and direct the parties to the appropriate High

Court.

575
The limitation is ordained by schedule 16(B)(1) which empowers the courts to entertain “Civil
actions in which the debt, demand or damages do not exceed one hundred pounds.”
576
See Ewang, Andrew Sone, “The place of customary law in the Cameroonian Legal system” (2001)
FUNDAMINA, 70-84, 80); Mikano Emmanuel Kiye, “The Importance of Customary Law in Africa:
A Cameroonian case study”, Doctoral Thesis, VRIJE UNIVERSITEIT BRUSSEL, June 2007, 94.
577
In Tufon v. Tufon, Suit No. HCB/59MC/83 (Unreported), the High Court of Bamenda declined
jurisdiction in a case where the marriage certificate showed that the parties were monogamously
married but the surrounding circumstances showed that the marriage was potentially polygamous.
578
(1978) The University of Yaoundé Law Reports, pp. 92.
579
The Court was acting in its capacity as an appellate jurisdiction.

158
4.5.2: The High Courts.

The competence of the High Courts in the administration of the customary

law of succession could be drawn from section 27(2) of the Southern Cameroon High

Court Law 1955. That sub-section empowers the courts are to administer “such native

law and custom as shall be deemed applicable in causes and matters where the parties

thereto are natives and also in causes and matters between natives and non-natives

where it may appear to the courts that substantial injustice would be done to either

party by a strict adherence to the rules of English law.”

For the purpose of the High Courts section 3 of the Interpretation Ordinance

(Colony and Protectorate), chapter 94 of the 1948 Laws of Nigeria defines a native as

including “a native of Nigeria [Cameroon] and a native foreigner.” A native of

Cameroon is “any person whose parents were members of a tribe indigenous to

Cameroon and the descendants of such persons, including any persons one of whose

parents was a member of such a tribe”. A “native foreigner” is “any person [not being

a native of Cameroon] whose parents were [Sic] members of a tribe or tribes

indigenous to some part of Africa and descendants of such persons, and shall include

any persons one of whose parents was member of such a tribe.”

It follows that an African from any part of the continent where tribal

institutions have existed is a “native.” Moreover, persons of half-blood, only one of

whose parents was an African also come within the classification. Reference to the

descendants of such persons could result in a situation where Negroes from America

or the West Indies would be treated as natives, 580 liable to claim succession rights

under customary law and their estates equally subjected to customary law.

580
Park, p.108

159
4.5.3: Appellate Jurisdiction: Courts of Appeal and Supreme Court

Same as in 2.2.2 (supra.)

4.6: DETERMINING THE INTESTATE BENEFICIARIES

There are no equivalents of a presumption of survivorship in customary law.

Probably there is no need for one because succession is by the family which has a

perpetual existence and it is impossible for the whole family to perish simultaneously.

No such presumption also exists in the Muslim Maliki law 581 and Authority for the

position is drawn from account by one of the early Muslim leaders. It is recounted that

after the battle of Yamanah in which many Muslims died, Sayyiduna Abu Bakr

ordered Zayd Ibn Thabit to distribute their estates. In a later appointment by Umar Ibn

al-Khattab, Zayd Ibn Thabit himself narrated as follows: “Umar ordered me to take

charge of distributing the inheritance of people who died in the plague, and in some

cases, a whole tribe had died, so I made those who survived inherit from those who
582
had died, but did not make those who had died to inherit from each other.” It was

therefore not presumed that any of the deceased persons had survived the other,

because if it did their next-of-kin would have been given their shares.

4.6.1: THE FAMILY AS THE MAIN UNIT OF SUCCESSION

The rules governing the devolution of property in any society are generally a

reflection of the way in which that society deals with the question of economic

stability beyond the life of the present members. 583 According to Rattray “it is in the

social organisation of a people in which lie the germs of the legal system which they

581
Ajijola, A. D., Introduction to Islamic Law, New Delhi, International Islamic Publishers, 1989, 231.
582
See Abdar Rahnman I. Doi, Shari’ah: Islamic Law, London, TA-HA Publishers Ltd., 2009, 415.
583
See Okoth-Ogendo, H.W.O., “Property Systems and Social Organisation in Africa: An Essay on the
Relative Position of Women under Indigenous and Received Law,” in Takirambudde, P. N. (ed.) The
individual Under African Law, Gaborone, University of Botswana, 1982, 152.

160
are later to develop.” 584 The communal nature of property ownership therefore

influences succession in customary law. With the exception of Moslem law 585

succession is by the family and not the individual. The idea, writes Ngongang-

Ouandji is “founded on the necessity to continue and to transmit the state of the

society from the former to the present generation.” 586 The rights acquired by the

individual beneficiaries are those of use and enjoyment. It is immaterial that the

property in question is personally acquired, for the idea of private ownership subsists

only while a person is alive or dies testate. When he dies intestate the presumption is

that the property becomes family property. 587

In Stella Nunga & 5 others v. Clara Kumbongsi & 4 Others, the deceased

died intestate leaving personally acquired property covered by a certificate of

occupancy. He was survived by his widow who was the fourth respondent in this

appeal and six children, appellants in this action. The widow to whom letters of

administration were granted borrowed money from the first respondent which she was

unable to repay. Against protests from the appellants the first respondent brought an

action at first instance to attach the property and succeeded. The decision was

reversed at appeal and Ekema, J. said:

“The late Nunga did not at his death, will the property in question to his
wife, Helen Nunga. His property therefore became family property at his
death. Consequently, all the beneficiaries of the Nunga estate had an
interest in the estate.” 588

584
Ashanti Law and constitution, Oxford, Clarendon Press, 1929, 2.
585
See Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur.
Pol. Ind. Coop. 639-662, 645.
586
« L’ordre de succession est fondé sur la néccessité de continuer et de transmettre l’etat de la sociét,
de la génération qui passe à celle qui suit. » Ibid, 642.
587
See Binet, Jacques, “La devolution successorale chez les Douala du Cameroun”, (1955) 65 Penant,
33-40, 34.
588
Cameroon Common Law Report, Part 5, 189, 194. See also Jemba v. Emilia Kombone Bakundu
Customary Court, Civil Suit No. 25/2000/2001(unreported). The deceased intestate left two personally
acquired farms. Upon his death his sister who was the mother of the parties succeeded to the property

161
 In Daniel Nde v. Mokom Clement 589 , the parties were the grand children of the

deceased intestate. The respondent as administrator of the estate instituted and

succeeded in an action in trespass to land against the appellant at the trial level. This

was reversed on appeal on the ground that, the land not having been distributed was

family land over which both parties had equal rights to possession.

4.6.1.1: The conception of “Family” for the purpose of succession.

Ollennu’s conception of the family as “the social group into which a person is

born” 590 could be unequivocally applied in all the three systems of the customary law

of succession. Birth into the same family with the deceased is cardinal in the

relationship, meaning that persons related to the deceased in a manner other than by

birth cannot aspire to be his successors. The family consists of all the persons lineally

descended from a common patrilineal ancestor or matrilineal ancestress, to be seen

soon.

One important question relates to the ambit of the family entitled to

succession, whether it includes everyone who claims the relationship, however

remote. Experts on African customary law classify the family into the extended,

immediate and sub-families. The extended family is that which is originated by a

grandparent or great-grand parent of the deceased and includes in order of priority

that parent and his descendants. 591

since this was a matrilineal society. When their mother also died conflict erupted between the parties
when the plaintiff as the male surviving relative claimed that the property belonged to him exclusively.
It was held that both farms belonged to the parties as a family and not to an individual. In the words of
the court the, “family or maternal family properties are usually inherited and enjoyed by the entire
maternal family. Therefore the property of Sango Thomas Tanye who died without a surviving child is
the maternal property enjoyed by the maternal family.”
589
(1998) 34 Juridis Périodique 39.
590
The Law of Testate and Intestate Succession in Ghana, London, Sweet & Maxwell, 1968, 71.
591
See Ollennu, The ;law of testate and intestate succession in Ghana, London, Sweet & Maxwell,
1966, 73.

162
 The immediate family is originated by the parent of the deceased. It includes

the parent, the brothers and sisters, their children and subsequent generations of

children. There is no limit to the number of generations of descent of the extended and

immediate families. It could be assumed, however, that given the short life

expectancy in customary communities it would be difficult to have cases in which the

gap between the deceased and the claimant goes beyond two generations in each

category.

The sub-family is originated by the deceased and consists essentially of his or

her children if the deceased is a male in a patrilineal system or a female in matrilineal

system. 592

Ideally every one who comes within the definition of “family” should qualify

as a beneficiary as this would prevent the exclusions, principally responsible for the

bickering that often follows upon succession rulings. Ollennu must have had this in

mind when he wrote: “When in later life a person comes to have children, he or she

becomes inseparable from either the immediate family into which he or she was born,

or from the generation he or she raises, he therefore must of necessity belong jointly

to the trunk and to the branch.” 593 Literally it means that the succession should be by

the sub or nuclear family and the immediate family jointly. In this arrangement the

immediate family would certainly come in only in order of precedence. Accepting

that Ollennu intended this order of precedence, it will mean, in the absence of

members of the immediate family, that members of the extended family would come

in.

The arrangement would have taken cognisance of the duty of maintenance

which as noted earlier should constitute the basis for succession. But it is apparently

592
See Bentsi-Enchill, Ghana Land Law, 27.
593
Supra, 74.

163
too ideal to be adopted in practice, unless, perhaps, in a situation where the estate is

very large and there is only a lone surviving relative of the category closest to the

deceased.

Neither the patrilineal nor the matrilineal systems in Cameroon adopt

Ollennu’s view, each of which adopts an order of succession to reflect its basic

principle.

4.6.1.2: The Patrilineal System.

In patrilineal systems, jural relations in kinship are strictly confined, through

males, to a lineage or clan going back to an original ancestor. It is based on a

branching process which extension and complexity increases with each generation of

male children. The lineage bears the name of its founder and the rules of succession

are designed to keep the lineage alive. Such a mission could only be assured by male

descendants as against women who would be called to marriage one day in order to

ensure the continuity of another lineage-that of their husbands. Succession to the

property of an unmarried woman is subjected to the same rules notwithstanding that

women are not deemed capable to ensure the continuity of the lineage.

Most studies on the customary law of succession tend to interpret the need to

keep land in the family as meaning that women are not entitled to succession.

Credence is given to this by studies which purport to lay down the order of succession

but fail to clarify that the order relates only to the designation of the family head or

successor with a mission to ensure that land remains in the family. Nwabueze for

example lays down the following order (i) the issue; (ii) brothers ( and sisters in some

communities) of the whole blood; (iii) parents; (iv) half brothers (and half sisters in

some communities); (v) issue of brothers. Etc. These orders 594 embody the privileged

594
Nigerian Land Law, Enugu (Nigeria) Nwamife Publishers, 1972, 381

164
position of male relatives as family heads but do not exclude women from the list of

beneficiaries.

The absence of clarification has given rise to the practice of excluding women

even from being beneficiaries. These orders should normally only be indicative and

while the headship goes to the male, each member within the category, without

distinction of gender should qualify as a beneficiary.

The existence of issue either as sons and daughters excludes persons of the

more remote categories. And the issue include children en ventre sa mere, illegitimate

children acknowledged by the deceased in his lifetime and adopted children. In

Ministère Public c/ Pangou Bello, 595 the respondent failed at the trial and appeal

levels to be declared successor over the estate of his son. The custom provided that

the father succeeds the son when the latter dies without an heir but it was established

that the widow was pregnant with the principal beneficiary in this case before the

deceased’s death. Similarly in La Succession Messe Madeleine, the deceased woman

was survived by her children and her father. In this action the father claimed to be

entitled to her succession to the exclusion of the children. It was held that in

accordance with the Bamileke customary law when the deceased is survived by issue,

these are the joint beneficiaries to the exclusion of any other persons. 596 In Jemba v.

Emilia 597 the nephew and niece took because the intestate “had no child of his own

who should have been beneficiaries of the assets” and their mother who was the

deceased sister was also dead. In default of the immediate family, members of the

extended family come in, taking in the same order of precedence. 598

595
(1996) 26 Juridis Périodique, 24. (Tribunal de Premier Degré of Kaele and the Court of Appeal of
Maroua)
596
Tribunal de Premier Degré de Dschang, Jugement No. 18/C du 15 Janvier 1996 (unreported)
597
Kombone Bakundu Customary Court, Civil Suit No. 25/2000/2001. (unreported) matrilineal society.
598
See Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur.
Pol. Ind. Coop. 639-662, 652.

165
4.6.1.3: The Matrilineal System.
The distinctive feature in matrilineal systems is that descent is traced through

the mother, all those descended from a common ancestress forming a matrilineage.

This means that a man and his children must necessarily belong to different

matrilineages. A man’s immediate matrilineage consists of himself, his mother, his

full and uterine brothers and sisters, his mother’s brothers and sisters, his maternal

grandmother, his maternal grandmother’s maternal grand mother etc. it is from this

group that he can inherit and it is they who can inherit from him. On a man’s death

therefore the order of succession is divided into the following categories (i) his

mother, his full and uterine brothers and sisters; (ii) the issue of his full and uterine

sisters; (iii) his mother’s full and uterine brothers and sisters; (iv) the issue of his

mother’s full and uterine sisters; (v) his maternal grandmother etc. 599 Clearly as in

any other system of succession the existence of persons in the category closest to the

deceased excludes the others and even within the categories the closeness in degrees

is another ground for exclusion. For example in the first category, the existence of the

mother automatically excludes the full and uterine brothers and sisters.

Two observations emerge from this arrangement. The first and undoubtedly

the most distinctive characteristic of the system is that a child cannot inherit from his

father, and child under the system includes that who was born out of wedlock but was

recognised by the deceased and treated as his child. If there is anything repugnant in

this it is that the rule could dissuade a man from acquiring property knowing that it

599
See Edith, Ndima, “Theory and Practice in Matrilineal Tribes,” term paper, Faculty of Law,
University of Dschang, 2000 (unpublished); Anye Dieudonné, “Avoiding the Effects of Matriliny in
the Balue Tribe in Ndian Division,” term paper Faculty of Law, University of Dschang,
2004(unpublished).

166
would go to some relative of his mother’s or even to educate his own children on the

ground that the child’s property will go his mother’s family.

From the point of view of the child the rule cannot be dismissed immediately

as being repugnant given that it could be possible that the uncle from whom he

succeeds is richer than his own father. Furthermore although succession is matrilineal

members of the communities live in the compounds of their various patrilineages,

hence the children live in their father’s compound and this means that he has

obligations towards them. A father in matrilineal communities has an unquestioned

obligation to house, support and advance his children 600 and these are the obligations

which upon the death of a man intestate are taken over by the successor and which are

enforceable against him. 601

If the rule that children are not entitled to their father’s succession has been

applied with ease in the case of a deceased male it has not been the same in the case

of a deceased female. The rule according to which succession follows the woman’s

bloodline implies that every woman is the beginning of a new family 602 and the

question arises whether her direct descendants should not be given priority in

succession as against her matrilineal relatives. In Mills v. Addy 603 Ollennu, J. ruled in

favour the descendants but apparently, only because there were no surviving members

of the deceased’s matrilineal family. This decision could not therefore be authority on

the point since a different decision might have been possible if there were matrilineal

descendants of the deceased. 604

600
See Ollennu, N. A., The Law of Testate and Intestate Succession in Ghana, London, Sweet &
Maxwell, 1966, 217-222.
601
See In the Matter of the Estate of Edward Anfu Whyte (1946) 18 N.L.R 70.
602
See Mills v. Addy (1959) 3 W.A.L.R. 357, 362, cited by Ollennu, supra, 78, in which it was said
that every woman is the originator of a family.
603
(1959) 3 W.A.L.R. 357,
604
See Woodman, G. R. “Two Problems in matrilineal succession” (1969) 1 Rev. Ghana Law, 6-30,
18.

167
 This was the case in Krakue v. Krabah 605 where the plaintiff, a brother of the

deceased sued the daughter of the deceased for an account of rents from the property,

and an injunction restraining the defendant from interfering with the plaintiff’s right.

The defendant challenged the plaintiff’s locus standi arguing inter alia that he was not

a member of the inheriting family. It was held by the Supreme Court that the right to

the immediate enjoyment vested in the immediate family, and that this consisted of all

the matrilineal descendants of the mother of the deceased woman.

It seems, however, to be settled law that the issue of a deceased woman takes

precedence over her matrilineal relatives. In Krakue v. Krabah Ollennu delivered a

dissenting judgment in which he changed his earlier position in Mills v. Addy. Bentsi-

Enchill favours succession by the descendants of a deceased woman. 606 In a similar

vein Woodman writes that “If a man and his female uterine cousin are the sole

surviving matrilineal descendants of their grandmother, he belongs to the cousin’s

immediate family; but as soon as she has children, he ceases to belong to it….” 607

The second observation which emerges from the order of succession is that

men and women have equal succession rights, for not only are they entitled to share in

the distribution of the estate, 608 it is accepted as a rule that they can be family heads

or successors. This is so in the Bakundu Balue matrilineal system. In The matter of

Chief Moleke of Bafaka Village 609 the sister of a deceased male was made successor

as against his children.

A variation has however been noted in the Kom and other tribes in the North

West Province purporting to practice matrilineal succession. Even though the general

605
Cited by Woodman, ibid, 19.
606
Ghana land law, London, Sweet & Maxwell, 1964, 128.
607
“Two Problems in matrilineal succession” (1969) 1 Rev. Ghana Law, 6-30, 24.
608
Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur. Pol.
Ind. Coop. 639-662, 645; John Anthony Howard, “Customary Law of Marriage and Succession among
the Kom of Cameroon”, Ph. D. thesis, University of London, 1972, 218-222 (unpublished).
609
Mbonge Customary Court, suit no. 17-10-12 (unreported)

168
rule that succession follows the woman’s bloodline in respected, women find

themselves in a position similar to their counterparts in the patrilineal tribes. 610

According to Vubo, “A woman is almost confined to the role of producer of the

lineage, ensuring lineage continuity although she could intercede before the ancestral

spirits for the welfare of her household or usurp the right of exercising the role of

caretaker over her deceased brother’s property.” 611 Hence upon the death of a man

succession to his property is by his nephew. 612 In default of nephews the search for a

successor goes down the line to his first maternal cousins rather than give succession

to the nieces. Only when no cousins are found are nieces allowed to succeed but only

after the fiat of a family council.

4.6.1.4: The position of widows.

None of the definitions for the term “family” includes the widow on the

ground that she and the husband have different lineages. But if this is true of the

extended and immediate families, it cannot be so with the sub-family. This is a family

which consists of the spouses and their descendants and which ought therefore to be

defined not in terms of lineage but in terms of marriage, reason why the widow ought

to be considered as a member of the deceased sub-family and given succession rights

therein, although not in the larger family? 613

The widow is the bête-noire of the family accused of the all the ills. Her

greatest challenge comes from her female counterparts who, if they do not accuse her

610
See John Anthony Howard, “Customary Law of Marriage and Succession among the Kom of
Cameroon”, Ph. D. thesis, University of London, 1972, 17.
611
Vubo, Emmanuel Yensu, “Matriliny and Patriliny Between Cohabitation- Equilibrium and
Modernity in the Cameroon Grassfields, available at http://www.jamboafrica.kyoto
612
See Buo Kang Mathias v. Mih Izagha, Wum Customary Court, Suit No. 8/02-03 (unreported); Bah
Ekom Amos v. Ebua Batali, Wum Customary Court, Suit No. 12/02-03 (unreported). Cited by Amos,
Wango Chianan,“Theory and Practice of Matrilineal Succession,” unpublished term paper, Faculty of
law, University of Dschang, 2003. See also Edith, Ndima, “Theory and Practice in Matrilineal Tribes,”
term paper, Faculty of Law, University of Dschang, 2000.
613
See the decision of Yaoundé Court of Appeal, Arrêt No. 47 of 10 January 1991 (unreported) which
ruled that a daughter-in –law could not be her mother-in-law’s successor.

169
of having killed their brother, would accuse her of having enjoyed his wealth alone

and for having probably prevented him from helping the family members. With this

image of the widow and coupled with fact that she is viewed as a stranger to the

family, the possibility of her succeeding are very remote.

Native law and custom generally resolved the question of the succession rights

of widows by providing that they could get married to another male relative of the

deceased husband and so continue to be a member of the household with all the rights

that go with it. As will be shown later the institution of levirate marriage is fast ebbing

out but this should not be taken to mean that widows are always left destitute.

Widows have rights erroneously described as succession rights, probably

because of the death of their husbands. They include the right to maintenance,

residence in the matrimonial home and arable land. These actually constitute some of

the duties which the deceased owed to his wife and which were enforceable against

him. 614

In Nsom Fombui Amborse v. Nkuo Kelvine 615 the nephew of the deceased was

held to have erred in sending the widow and children out of the compound and

installing himself therein. In fact the widow was reinstated in the home and the

succession was transferred to a different person. Enforcement of the right to

maintenance against the successor could even result in the successor losing some of

his rights in favour of the widow. This is common where the deceased was entitled to

financial benefits which after his death go to the successor. Such benefits are

generally transferred to the widow so that the successor only has the title of family

614
See Mbouyom, Francois-Xavier, « Le statut juridique, politique et social de la femme au
Cameroun.» (1974) 28 Rev. Jur. Pol. Ind. Coop. 600-612, 603 ; John Anthony Howard, “Customary
Law of Marriage and Succession among the Kom of Cameroon”, Ph. D. thesis, University of London,
1972, 218-225 ; Dzeukou, Guy Blaise, « Le Juge entre coutume et la loi dans le droit de la famille :
Essai sur le pluralisme juridique au Cameroun », thesis, university of Paris I, 2002, 428 et seq.
(unpublished)
615
Suit No. BOHC/PD/LA/02/02-03 (High Court Boyo Division, North West province) (unreported)

170
head. In Mukete Rebecca v. Mokube Solomon Sakwe 616 the widow brought an action

in the customary court claiming to replace the successor on the ground that he was

irresponsible and was neglecting his obligations to maintain her and the children. Her

plea was upheld by the court and she was named next-of-kin for the purpose of

managing the funds of the deceased. 617

Paradoxically a widower might without precondition inherit from his

deceased wife. A distinction is made between her nuptial and ante-nuptial property.

Property acquired during marriage is regarded as belonging to her husband and when

he dies the property devolves as described above, without distinction between male

and female descendants of the husband. 618 The ante nuptial property of the woman

goes normally to her children and in default of children, to her relatives and never to

her husband, except as regards personal property which she took to the husband’s

house. This principle was affirmed in Nwugege v. Adigwe 619 , in which the claim by

the family head of a deceased widow for letters of administration to her estate was

opposed by her husband’s son by another wife. The step-son was held to be the proper

person to administer estate.

Inheritance of a wife’s property by her husband contradicts the general

principle that succession follows the blood. It could be defended by another principle

of customary law in patrilineal societies that marriage transfers the wife to the

husband’s patrilineage and subjects her to its control. 620

616
Ekwe Customary Court, Civil Suit No. 7/7/2001. (unreported).
617
See also Kwoh Wandim Ndonyi Theresia v. Nsang Martha &Chinwo Joseph, Suit No. C/S58/01/02
(Kom Customary Court) (unreported); Mary Diang v. John Aboh ,Suit No. 63/01/02 (Kom Customary
Court) (unreported); Achumchu Tantoh Vivian v. Ndeh Martin Tantoh &4 ors (2004) Mankon
Customary Court, Civil Suit No.45/03-04 (unreported).
618
See Armstrong, R. G., “Intestate succession among the Idoma” in J. Duncan M. Derrett, Studies in
the Laws of Succession in Nigeria, Oxford, Oxford University Press, 1965, 225 et seq.
619
(1934)11 All \N. R. 134.
620
See Nwabueze, Nigerian Land Law. 391.

171
 4.6.2: WOMEN IN MUSLIM LAW

The Muslim system of succession greatly modified by indigenous customary

law is observed in the Muslim areas and by converts in other parts of the country. 621

In accordance with the principles of the Maliki code applicable in Cameroon,

property is never held in the name of the family because the distribution is expected to

take place after a brief period of administration intended to settle funeral expenses and

pay the debts 622 owed by the deceased including any deferred dower. 623 However,

when the deceased’s issue are still minors administration might last longer.

Furthermore, the agnatic heirs could decide to maintain the property as a single entity

if that option renders the property more productive and profitable. The rules of

distribution are so complex that in order to be workable the property is more often

than not sold and the proceeds shared among the beneficiaries. 624 The question will

certainly arise whether the administration could be entrusted to females either as

daughters or widows in these circumstances.

The provision of the Quran which has guided the provisions of the Maliki

code relating to women is chapter 4 verse 7 in which the Holy Prophet ordains that

“From what is left by parents and those nearest related there is a share for men and a

share for women, whether the property be small or large,- a determinate share,” And

by a determinate share it means that a male gets twice the share of a female. 625

Women are an integral part of both the Quranic and agnatic heirs, these being

the categories in which beneficiaries are classified. Quranic heirs are specifically

mentioned and allotted specific shares of the estate in the Quran. Male Quranic heirs

621
Discussed in chapter two.
622
See Hussain, A., The Islamic Law of Succession, Riyadh, Darussalam, 2005, 413.
623
Muhammad Abul Hai’Arifi, Death and Inheritance, Lahore, Idara-e- Islamiat, 1998, 194.
624
See Smith, M. G., “Hausa Inheritance and Succession,” in J. Duncan M. Derrett, Studies in the
Laws of Succession in Nigeria, Oxford, Oxford University Press, 1965,252-253.
625
Chapter 4 verse 11 of the Holy Quran.

172
are the father, true grandfather i.e. the father’s father, widower and uterine brother.

Female Quranic heirs are the mother, true grandmother, widow, daughter, son’s

daughter(s), full sisters, consanguine sisters (same father), uterine sisters (same

mother). 626 The preoccupation of the Prophet seems in this category to have been to

provide for the less privileged persons and allowing those privileged to continue to

benefit in accordance with a modified version of Arabian customary law which he

succeeded to render more humane. The absence of children of the deceased is

therefore not an omission because they take as agnatic heirs, since only a small part of

the estate is distributed to Quranic heirs. The bulk goes to the agnatic heirs and this is

where the similarity with the patrilineal system becomes manifest.

Literally agnatic heirs are persons who descend from the deceased or claim

the same patrilineal descent with him. 627 Descent is reckoned in the same way as in a

patrilineal system. Hence agnatic heirs consist of the issue of deceased, father and

brothers of the whole blood and their issue, and the grandfather and his male

descendants. Excluding women with the same degree of relationship with the

deceased would have rendered nugatory the Prophet’s effort to improve on the lot of

women. Females are therefore assimilated as agnatic heirs whenever there is in

existence a corresponding male agnate with the same degree of relationship with the

deceased. 628 For example the son makes the daughter an agnatic heir. It is in the

context of agnatic heirs that the rule that males get twice the share of females is

applicable. 629

626
See Hussain, A., The Islamic Law of Succession, Riyadh, Darussalam, 2005, 62-66; Ajijola, A.D.
Introduction to Islamic Law, New Delhi, International Islamic Pictures, 1989, 233-235.
627
Hussain, ibid. 67; Ajijola, ibid. 237.
628
Hussain, ibid, 69. Ajijola, ibid. 237
629
Hussain,, ibid. 71; See Smith, M. G., “Hausa Inheritance and Succession,” in J. Duncan M. Derrett,
Studies in the Laws of Succession in Nigeria, Oxford, Oxford University Press, 1965,247.

173
 In the light of the foregoing general principles males and females have a

parity in succession rights, 630 which puts Moslem law ahead of customary law. It is

not a mathematical equality but one based on the necessities of justice and the

allocation of duties and responsibilities in the family. 631 Islam imposes on men

various financial obligations and none on women, who contrary to men have the

dowry and an inheritance. 632

But there is a large gap between what the law says and the actual practice.

Women are generally deprived of their rights by the male relatives. Daughters are

physically or psychologically coerced into giving up their shares in return for

protection from their brothers when their marriages terminate by divorce or death. 633

In a study conducted by Hamisu in the Moslem communities of Cameroon one

question addressed to 55 women was whether “children” usually receive their share of

inheritance as prescribed by law. 39 responses were positive and 16 negative

attributed to the obstructionist attitudes of some male relatives. The use of the generic

“children” is of very little help in determining the gender of the persons whose rights

the questionnaire sought to establish. It can only be assumed to have been females

given that opposition came from male relatives.634 Against such attitude, the Moslem

Scholar Muhammad Abdul Hai’Arifi had cautioned:

“That some people do not give sisters and daughters their share in the
inheritance is certainly an act of rank injustice. Just because they are
given gifts and things at the time of their marriage, they presume that

630
See See Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur.
et Pol. d’Outre-Mer, 639-662, 639..
631
Mohamed Salah Rached Sammari, “Reflexion sur la Condition de la Femme en Droit Musulman,”
(1974) 28 Rev. Jur. Pol. Ind. Coop. 548-557, 556.
632
See Tahir Mahmood, “The Grandeur of Womanhood in Islam.” (1986) 5(1) Islamic and
Comparative Law Quarterly, 1-14, 12; Hamisu, Rabiatu Danpullo, “Women, Property and Inheritance–
The case of Cameroon.”Recht in Africa 2005, 143-161, 151.
633
See Owen, Margaret, A world of Widows, London, Zed Books, 1996, 65.
634
Hamisu, Rabiatu Danpullo, “Women, Property and Inheritance– The case of Cameroon.”Recht in
Africa 2005,, 143-161, 159.

174
 such givings [sic] were enough to take care of their rights. This is totally
incorrect; gifts never cancel the right to receive from the inheritance. It
is obligatory to give sisters and daughters their share in the inheritance
and any effort to exclude them from it is forbidden and is also an act of
tyranny committed against them” 635

Furthermore, by being applied as native law and custom Moslem law is

greatly influenced by the local customs that preceded its advent, so that its even

application in all the communities can not simply be assumed. 636 There is a tendency

for the person charged with the administration to refuse to distribute, preferring to

hold the estate as family property on the ground that “everyone can share and use

things around.” 637 As noted above succession by the family is not a rule of Moslem

law, hence any such acts are harãm meaning that they are prohibited, unlawful and

punishable from the point of view of Islam 638 and that everyone who indulges in them

stands to face punishment in Hell. 639 An exception to this rule is where the

beneficiaries acquiesce in the idea of family property or fail to claim their rights in

court. By treating the property as family property the rights of women become

curtailed and they are placed in a position worse than their counterparts in the other

systems, where at least, there is hope of distribution.

It seems that very few succession cases ever get to the Moslem courts,

considering that Succession was one of those matters where the application of custom

was allowed by early Moslem leaders. Most cases are therefore handled informally by

635
Death and Inheritance, Lahore, Idara-e- Islamiat, 1998, 194.
636
See our discussion on the application of Muslim law.
637
See Muhammad Abdul Hai’Arifi, Death and Inheritance, Lahore, Idara-e- Islamiat, 1998, 193.
638
See Qazi, M. A., A concise Dictionary of Islamic Terms Lahore (Pakistan), Kazi Publications, 1979,
19.
639
Muhammad Abdul Hai’Arifi, Death and Inheritance, supra.

175
instances that follow the local customary law as against Moslem law. 640 When they

do get to the courts the customary law prevailing in the area is more often than not

favoured. 641

If daughters as members of the family are excluded then the widows lack the

locus standi even to contemplate succession, and a fortiori to become successors. A

study conducted in the Moslem North revealed a sort of indifference on the part of

married women. One of them said: “I know that when my husband will die, I will

have nothing, I will return to my village after the funeral and continue my life there. It

has been like that through the generations, men are considered as our leaders. This is

even stated in our Coranic law.” 642 And another added: “I know I will return to my

family. But I have my children; they will inherit and take care of me. So through

them I will have something.” 643 Islamic law as against customary law makes no

provision for the maintenance of widows given that they are normally entitled to an

inheritance. But a widow who is thus excluded could sue for maintenance under

customary law 644 or cause her rights under Moslem law to be enforced by the

appropriate Moslem court, a course which many avoid.

4.8: DESIGNATION OF THE SUCCESSOR

The assertion that succession is by the family must be qualified by the fact that

the family as a corporate entity 645 lacks the attributes of human beings which would

640
See Smith, M. G., “Hausa Inheritance and Succession,” in J. Duncan M. Derrett, Studies in the
Laws of Succession in Nigeria, Oxford, Oxford University Press, 1965, 245.
641
See In the Estate of Dada Baba Nya (1985) C.A.S.W.P/CC/16/85 (unreported), where contrary to
Muslim the concept of family land was upheld; also in Gboron Yaccouba et Amemena D. Suzanne c/
Mbombo Asang et Ndam Emile Issiaka, Court of Appeal, Bafoussam, Jugement No. 001/C of 23
October, 1997 (unreported).
642
Ngoli Ze Irene, “Attitude of the rural woman towards the rule that a woman cannot inherit
property.” Term Paper, University of Dschang, p. 4, (Unpublished).
643
Ibid, p.5.
644
By refusing to follow Moslem law the successor is bound by customary law.
645
It is necessary to point out that the term “corporate” as used here is unique to customary law as
English law recognises no corporation in a family as compared to a company or partnership. Hence the
concept of family property is unknown under that law for even when property is acquired for the use of

176
enable it to exercise effective control over property. The rights and duties inherent in

succession are exercised through the agency of human beings. The family therefore

designates one of its members to play the role; this person is called the successor. The

successor might be likened to the heir-at-law of the old English law. But whereas the

heir-at-law took an absolute interest over realty, subject only to the rights of the

surviving spouse, the successor takes only a possessory interest over both land and

movables. He has control of the property prior to its distribution, and since

distribution is often unlikely, he literally takes the place of the deceased as family

head. 646

He could be likened to the personal representative but with the difference that

while the property vests in the personal representative in English law, in customary

law the property vests in the family and not the successor. 647 This position is

vindicated by Ngongang-Ouandji, one time minister of Justice when he writes:

“succession could be analysed in Cameroon as consisting of a transmission of the

powers of administration of family property from father to sons.” 648

A distinction needs to be made between the caretaker and successor. A

successor is beneficiary but a caretaker not. The caretaker is generally the oldest male

relative, often the brother of the deceased,649 called upon to play the role when the

deceased is not survived by any male issue or the male issue is still too young. This

practice is responsible for the view that when a person dies it is his brothers or father

the family and enjoyed by them as “family property”, the members thereof are considered as joint
tenants or tenants in common.
646
See Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur. et
Pol. d’Outre-Mer, 639-662, 656.
647
See Affaire Ebanda Njok Elie /c Eyombwain Njoh and others, Supreme Court, Arrêt No. 42/L of 9
March 1978, (Douala tribe) (unreported); Affaire Peuteu Jacqueline /c Ngouoko Joseph, Douala Court
of Appeal, Arrêt No. 131 of 23 May 1991 (Bamileke tribe) ( (unreported).
648
« La succession peut s’analyser au Cameroun comme étant une transmission des pouvoirs
d’adminsitration des biens de la famille du père au fils. » Ngongang-Ouandji, Andre, “La devolution
successorale au Cameroun”, (1972) 26 Rev. Jur. Pol. Ind. Coop. 639-662, 642.
649
See Daniel Njike & 3 ors v. Zachius Ehang (1978) Y.U.L.R. 78.

177
who succeeds him. The result is that many a caretaker considers himself as successor

and neglects his responsibilities towards the family of the deceased and appropriates

the patrimony to his own use or to the use of his own children.

Successors are designated by family councils following the burial and funeral

ceremonies. 650

4.7.1: The Burial and Funeral

The burial is generally organised and financed by the patrilineal or matrilineal

kinsmen of the deceased depending on the nature of the tribe and irrespective of

whether the deceased was subject to English law. 651 Funerals are generally a mixture

of Christian and traditional rites. In many cases, the deceased though a polygamist

often belonged to some denomination. And if he did not, his family ensures the

performance of Christian rites at the funeral ceremony.

Under common law individuals are generally free to determine in advance

how their bodily remains should be disposed of by the inclusion of a burial clause in

their will. Legally such wishes are not enforceable against the executors because of

the rule that the law recognises no property in the dead body of a human being, but

might have an effective moral force. 652 If they die intestate their wives decide on

where the burial should take place. 653

650
Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur. Pol.
Ind. Coop. 639-662, 643.
651
For example in Njonji Godlove v. Esther Njonji (2002) HCK/AE/K.16/2000 (unreported), the
funeral of the deceased, a retired teacher who contracted a Christian marriage was organised by his
entire family as emerged from the judgment; Boston, J. S., “Igala Inheritance and succession,” in J.
Duncan M. Derrett (ed), Studies in the law of succession in Nigeria, Oxford, Oxford University Press,
1965, 123.
652
See Clark, J. B., Parry and Clark the Law od succession., London, Sweet & Maxwell, 1983, 6.
653
See Bennett, Customary law in South Africa, Cape Town, JUTA, 2004, 333.

178
 The situation is not as easy in Africa because burial and succession rights

seem to be intricately linked together. The Kenyan cause célèbre, the Otieno case 654

epitomises the conflict between custmary and modern law in this respect. The

deceased a Western educated lawyer was of the Luo tribe while his wife was a

Kikuyu. They had contracted a Christian marriage, led a western life-style and were

therefore subject to the English law. Pursuant to English law the widow claimed that

the body was to be buried at their family home near Nairobi, while the eldest brother

of the deceased wanted it buried near Lake Victoria, the land of his patrilineal Luo

ancestors. The Kenya Appeal Court ruled in favour of the brother and thus established

a precedent in favour of customary as against English law in matters of burial.

If the deceased intimated a wish to be buried elsewhere the clansmen are not

obliged to comply if this is not in conformity with custom. 655 For when such a wish is

expressed the situation is treated in a similar manner as would be the case when it is

impossible to convey a corpse home. The family head and members of his tribe

resident in the chosen place or where he died would by custom constitute his family to

perform the ceremony. Something representing the deceased is then taken to report to

the family which will then perform the final obsequies 656 aimed at laying the deceased

to rest with his ancestors.

654
Virginia Wambui Otieno v. Joash Ochieng ‘Ougo’ This case is fully described by Howell, Roy
Carleton, “Otieno Case: African Customary Law versus Western Jurisprudence,” in Renteln, A. D. and
Dundes, A. (ed), Folk Law; Essays in the theory and practice of lex non-scripta, Vol. 1, the University
of Wisconsin Press, 1995, p. 827-844. See also John W. Van Doren, “Death African Style: The case of
S. M. Otieno”(1988)36 American Journal of Comparative Law, 329-350; Evans Monari, Burial Law–
Reflections on the S.M. Otieno Case (1988) 31 Harvard Law Journal, 667-674.
655
The operative part of the judgment read: “The decision as to where and how an adult Luo will be
buried rests with the clan from which he hails. Even if a man may have in his life time expressed a
wish as to his place of burial, it is in evidence that the wish will be subject to the customs and traditions
of his clan. The clan are not, necessarily bound to comply with those wishes if they do not conform
with the customs and traditions of that clan.”
656
Ollennu, N, A,, The law of testate and intestate succession in Ghana, London, Sweet & Maxwell,
1966, 68.

179
 The disputes are generally because of succession, as so aptly expressed by a

Ghanaian proverb according to which “… he who buries the leper is the person

entitled to take his sandals.” 657 On the customary law of South Africa Bennett writes

“… burial is often an emotionally and culturally charged issue. Disputes are therefore

likely to arise about where and how a deceased is to be buried. These disputes arise in

part because the person with the right to decide on burial usually stands to inherit the

estate.” 658

An article in “The Post” of 29 September 2008, a popular newspaper in

Cameroon carries the caption “Court rules in favour of corpse”. The Douala Court of

Appeal had just confirmed the decision of the High Court granting burial rights to the

family of a deceased woman as against her husband. Her corpse had remained in the

mortuary for sixteen months because of a dispute between the two families as to who

has the right to bury her. The husband was allegedly responsible for her death and

according to the judge he could not be honoured with the right to bury her. This seems

to be overshadowed by the fact that the dispute was actually a question of succession

and not necessarily the honour to bury a beloved one. This emerges from a statement

by the brother according to which, “They [the husband’s family] were just

dillydallying hoping that they would impoverish us but we just kept going until finally

we have a legacy….” 659

In Ajong v. Ajong 660 , the parties were nephews of the deceased intestate, who

was not survived by any son of his. The respondent claimed to be solely entitled to his

estate on the ground that he took care of the deceased from when he took ill to when

657
Ollennu, N, A,, The law of testate and intestate succession in Ghana, London, Sweet & Maxwell,
1966, 69.
658
Bennett, T. W., Customary Law in South Africa, Cape Town, JUTA, 2004, 333.
659
Article by Elvis Tah available at http://www.thepostnewsline.com
660
Known in full as Abi Zachariah Ajong v. Nji Michael Ajong (2000) 1CCLR, 67.

180
he died. The appellant claimed to be entitled to share in the estate on the ground of

having contributed to the funeral celebrations. The trial court held, and this was

confirmed at appeal, that because both parties “celebrated Enwebadang’s death each

of them was entitled to share in his estate.” 661

The burial is followed by a period of mourning which could last days, weeks

or months. At the end the funeral is organised and rounded up with a family council,

during which important matters including the payment of the debts of the deceased,

maintenance of minor children and widows are discussed. These are responsibilities

that require the making of arrangements on the fate of the property left by the

deceased. The council thus has the mission after the funeral to decide on whom to

entrust the management of the property to in the name of the family. 662

4.7.2: The Family Council.

4.7.2.1: The Composition.
According to Doumbé-Moulongo the family council is composed of all the

adult male members of a family. Women and children, he writes are admitted only
663
when the matters to be discussed are not weighty. The situation has so far evolved

that the membership of the family council is no longer limited to male members of the

family. Women are known to occupy prominent positions in this institution today. 664

661
Ibid. 69.
662
See generally Ollennu, N, A,, The law of testate and intestate succession in Ghana, London, Sweet
& Maxwell, 1966, 68-70.
663
Doumbé-Moulongo, M., Les coutumes et le droit au Cameroun, Yaoundé Edition CLE, 1972, 24.
664
See Peter Charles Chi v. Chinkwo Nde Fidelis & Caroline Chi (2006) Appeal No. BCA/62/2003
(unreported) where the family council there were six women as against three men and a woman served
as secretary. Also in the family meeting that preceded the case of Nzoukekang Stephen Tchinda v.
Nzoukekang Eric &Seven others, (2005) Appeal No. BCA/24/2004, unreported, there were eight men
and eight women.

181
 The council aimed at designating the successor 665 or successors 666 is generally

chaired by the eldest male relative of the deceased, failing which it could be the

village chief or his representative. Other members may include persons from the

extended family, but the most important are persons entitled to the succession. These

must be personally present or represented by the principal members of the family.

The principal members depend on the number of branches to a family. There

is one branch if the deceased had one wife with children or was a woman. In the

family of a deceased who had more than one wife with children, the children of each
667
wife constitute a branch. In the first scenario each child is a principal member

while in the second, the principal members are the eldest children of each of the wives

irrespective of their sexes.

4.7.2.2: The Mission.

Ordinarily the family council sits as an informal court in matters involving

members of the family, 668 and it is in this capacity that succession matters are first

submitted to them and taken to the courts only when a satisfactory solution is not

found.

The mission of the council in the circumstances under consideration will be

(1) to hear the will where there is one and (2) to designate a successor where none has

been designated by will. Family members are not generally bound to accept the

person appointed by the deceased if the choice is at variance with custom. In tribes

665
The single-heir system is practiced, for example, by tribes in the West, North West and South West
provinces.
666
This is common in tribes in Centre, South and Eastern provinces.
667
See generally James, R. W., Modern Land Law of Nigeria, supra, 86-88.
668
Doumbé-Moulongo, M., Les coutumes et le droit au Cameroun, Yaoundé Edition CLE, 1972, 26

182
such as Douala, Bassa, Bassossi, Mendankwe and Banyang the successor is known in

advance, a choice which the deceased is not free to alter. 669

This is, however, not a general rule. The Bamileke, for example recognise

male primogeniture and the possibility for the deceased to designate any other of his

male children as successor. 670 In fact the custom in this area has evolved so that the

deceased could even designate a daughter as was the case in Nana v. Nana. 671 The

deceased left a will in which he named his daughter as successor and during the

hearing of the will by the family it was asked if anyone was opposed to the

designation. There was no opposition but it was conceded that this might eventually

come from the eight years aged son of the deceased when he comes of age. What this

implies is that the priority given to males is not displaced but merely that when there

is no male child a person might designate a daughter as successor.

4.7.2.3: The Binding Force of Council Resolutions

Consensual resolutions of Family Council are generally binding on the

members. These are sufficient to enable the administration of the estate to be pursued

but often the family, in a bid to clothe the resolution with legality submits same to the

customary court in exchange for a next-of-kin declaration said to be the prerequisite

for the grant of letters of administration. This is in contrast with the position in

Francophone Cameroon, where Family Council resolutions are submitted to the

competent court in view of the jugement d’hérédité, the French equivalent for letters

of administration.

669
See Binet, Jacques, “La devolution successorale chez les Douala du Cameroun”, (1955) 65 Penant,
33-40, 35.
670
In a decision of the Court of Appeal of Bafoussam, arrêt no. 108 of 11 January 1968 it was stated
thus: « Considérant qu’en coutume Bamileke, le propriété étant familiale, collective et géré par le seul
chef de famille, seul le fils aîné ou le fils designé par le chef de la faille est héritier de celui-ci. »
671
(2005) Suit No. HCF/PROB/AE1/2001-2002 (unreported)

183
 The courts will not question a resolution of the family council on the choice of

the successor, provided that the council was properly constituted and the resolution

was taken in accordance with accepted procedure. 672 The choice could be questioned

in court only when the rightful person is shown to have been passed-over unjustly or

capriciously. 673 In Nzoukekang v. Nzoukekang, 674 a resolution of a family council

removing the plaintiff, the oldest son of the deceased from the office of successor was

rejected on the ground that the resolution was not consensual and the plaintiff had

done nothing to justify being passed-over.

Family council resolutions are more likely to be disregarded on grounds of

repugnancy or public policy when a woman, especially the widow is excluded, even

when the decision was taken by a regularly constituted family council. In the Estate of

Noumbissie 675 a family council resolution and the resultant next of kin declaration

were rejected because the brother of the deceased rather than the widow was

designated. 676 The next-of-kin declaration and by extension family council resolutions

was said not to “tie the hands of the court.” The purpose of next-of-kin declarations

as disclosed in Peter Charles v. Chinkwo Nde 677 is that it “consists of a proposal to

the Administrator-General while examining applications for letters” and “does not

672
See Woodman, G. R., “Judicial Control of the Family Meeting”, (1981-82) 13 &14 Review of
Ghana Law. 222-226, 224.
673
See Poh v. Konamba & Ors. (1957) 3 W. A. L. R. 74.
674
(2005) Appeal No. BCA/24/2004 (unreported).
675
(2002) 1 C.C.L.R. 1, 5; see also Stephen Ncha & 5 ors. v. Chi Simon Nde, (2006) Appeal No.
BCA/33/2004 (unreported).
676
The reverse is true when the person excluded is a man and notwithstanding proof of irregularity. In
Ajong v. Ajong676 the appellant argued that the trial court erred by admitting the family council
resolution. He claimed that he was not present at the meeting and that not being a constituted court nor
a juristic person family council resolutions are only of evidentiary value. The response of the court in
the face of the claims was that “The family council is the nearest nucleus of the family made up of the
entire family members who are better placed to trace the issue of inheritance as they did. The trial court
was therefore correct to rely on their findings.”
677
(2006) Appeal No. BCA/62/2003 (unreported).

184
bind him and consequently cannot limit him to a particular group of persons from

whom an administrator may be appointed.” 678

This begs the question whether the next-of-kin declaration is a sine qua non

for letters of administration. Taminang, J. in Chibikom No. 2 679 said that the next-of-

kin declaration constitutes “the pre-requisite for granting letters of administration.”

The question is whether this does not contradict the earlier description of the

declarations as a “proposal”? Besides the judge seems to ignore the fact that

customary courts have no jurisdiction over the estates of persons who contract

monogamous marriages and that, therefore, the declaration cannot be mandatory in

those cases.

Such was the situation in Galega v. Galega, 680 where letters of administration

were granted in the absence of a next-of-kin declaration. The case was held not to be

good law in Catherine Makebe v. Chambo née Wongibe Rosemary 681 on the ground

according to Wacka, J. that:

“With regard to the Galega case, the Court of Appeal is not bound by its
decisions. Shortly after the decision in BCA/19/93: Nwana Galega
Getrude v. Wamyonga Galega Thomson, Thomson who was granted
letters of administration died. Of course some of the property was in his
custody. What happened? Since he died intestate his widow disposed of
some of the property having obtained letters of administration for the
deceased husband’s estate. How fair is justice in this case?”

678
Francophone Cameroonian courts adopt a similar attitude as evident in the statement by Ndoko
according to which « Ces délibérations sont des avis purement consultatifs pour le juge qui est tenu de
vérifier leur conformité a l’ordre public et d’écarter systématiquement leurs décisions qui violent les
lois et règlements. » “L’idée d’egalité dans le Droit Successoral Camerounais: dernières tendances de
la Jurisprudence en matière de la succession ab intestat” Yaoundé, 1990, 8 (unpublished ).
679
Chibikom v Zamcho Florence No. 2. (2006) HCB/PD.LA.57M/05-05 (unreported).
680
Appeal No. BCA/19/93 (unreported).

681
(2005) 1CCLR., 83, 93.

185
 The question is whether this was not just a case of abuse of the office of

personal representative, common even in cases of regularly obtained letters of

administration. Must it be taken that the woman behaved thus because there was no

next-of-kin declaration? Of course, next-of-kin declarations embody the consent of

the family and the idea that the person to whom letters are granted holds the property

on behalf of the beneficiaries, but so too do the letters of administration themselves.

Anglophone Cameroon seems to be the only former British colony where a

customary court judgment on the choice of the successor is said not to stand on its

own. 682 This is defended on the ground that only letters of administration would give

access to certain types of property left by the deceased. The question is if the

“jugement d’hérédité, in Francophone Cameroon which emanates from the traditional

law courts 683 gives access to such property, why not the next-of-kin declaration?

True, a customary successor cannot on behalf of the estate, benefit from the

application of English law, 684 but the property in question, which could consist of

pension benefits, bank accounts, shares in a company, is not necessarily governed by

English law, but by the same laws that admit the “jugement d’hérédité.

However, rather than castigate the practice it is worth the while to seek its

raison d’être, since it could be likely that by instituting the practice, the High Courts

think thereby, to be able to control decisions of the customary courts deemed to be

repugnant or against public policy. The “jugement d’hérédité” would rarely fall foul

of the requirements of ordre public considering that the decisions are arrived at in

application of the civil code.

682
We understand that this is apparently a very lucrative business for the Probate Division of the High
Court and the probable reasons for the centralisation.
683
This was the situation until the introduction of High Courts in that part of the country in 1972,
which now share the jurisdiction to issue the letters.
684
This has been explained in chapter two.

186
4.7.3: The Requisite Qualities for a Successor.
Each beneficiary is a potential successor and until recently it was also required

for the successor to be of the male gender. Other factors such as character, ability,

suitability and other relevant qualities and circumstances are taken into consideration

before deciding on the choice of the successor. 685 The successor is a father figure,

hence the person qualified in terms of the general principles but lacking in any of

these qualities might be passed-over in favour of a more suitable person. The point

was made by the Bafoussam Court of Appeal :

« L’héritier principal est cet enfant qui, jugé apte à poursuivre l’oeuvre du
père, hérite de la concession familiale, de la garde des crânes des
ancêstres et des avantages y attachés et surtout du respect que toute la
famille et l’entourage reconnaissaient au de cujus. » 686

The Ghanaian case of In the Matter of the Estate of Emmanuel Nelson

Tamakloe 687 gives a clear picture of the person amongst the beneficiaries who could

step into the shoes of the deceased and stand in loco parentis vis-à-vis the others and

the community:

“The senior boy or girl never automatically succeeds to the estate; an

election by the deceased maternal or paternal relatives must be done
strictly in accordance with the rules of native custom, and in most cases
the choice goes to the senior surviving son of the deceased, when not
proved to be a delinquent, i.e., a drunkard, spendthrift, litigious person
or general waster. When the eldest son is disqualified for any reason
from succeeding, the choice is given to one of his fit younger brothers”

685
Ollennu, The law of testate and intestate succession in Ghana, London, Sweet & Maxwell, 1966, 86.
686
“The successor is that child who, judged apt to pursue the task of father, inherits the family home,
the guard of the skulls of ancestors et advantages attaching thereto and above all of the respect that all
the family and the surrounding recognised in the deceased.” Arrêt No. 29 du 22 Juillet 1993
(unreported)
687
Cited by Ollennu, The law of testate and intestate succession in Ghana, 87.

187
 These considerations, including when the would-be successor is still a

minor 688 have resulted in daughters and widows being considered at least, for the post

of temporary successors pending the birth or majority of the rightful customary law

successor.

In Lizette Kwende v. Vejai Elizabeth the plaintiffs, issue of a deceased female

applied for a next-of-kin declaration over their mother’s estate, in order to inter alia,

follow up the pension benefits. The defendants made up of two brothers and a sister of

the deceased thought that the declaration should be in their favour. The Mankon

Customary Court found no difficulty in holding that “The plaintiffs are empowered to

administer the estate of their deceased mother …pending such a time that a would-be

successor shall be installed to take over the inheritance and administration

permanently.” 689

Widows could, if they have issue who are still minors be exceptionally placed

in an analogous position with daughters as regards next-of-kin declarations. 690 It is

only exceptional because not being a beneficiary the widow should normally not be

successor even if only temporarily. The foregoing is only as far as patrilineal tribes

are concerned. In matrilineal tribes the widow has no right whatsoever in the estate

and cannot even be made temporary next-of-kin. The children who would justify such

an appointment are not themselves entitled to inheritance from their father.

Hence the fact that women are successors today is not yet a cause to rejoice.

Firstly, the right is only temporary. Secondly, widows are designated not in their own

interests but in that of their children and they could only be designated when the

688
See Victor, Keubou, “Procedure for designating next-of-kin in Bafou (Bamileke)” term paper
presented to the Faculty of Law and Political Science, University of Dschang, 2000.
689
(2006) Civil Suit No. 91/05-06 (unreported).
690
See Mary Ngoh Timothy v. Njimba Jacob Nkangah (2006) Suit No. HCF/PROB/AE96/2001
(unreported) See also Bih Che et al., “Intestacy and Widowhood in two Patrilineal Tribes: Mankon and
Nkambe,” term paper presented to the Faculty of Law and Political Science, University of Dschang,
2002.

188
children are still minors. Thirdly, as explained above widows in matrilineal and

Moslem communities are generally not entitled to be designated. Finally, many

succession quarrels are settled in the family hence only very few of the cases ever get

to the courts. By implication there might be more women out there, to whom the right

has been denied and who would not risk the stigma attendant on taking their

“brothers”, “fathers” and “husbands” to court.

Herein is the importance of the Chibikom case 691 which has become a cause

célèbre for having instituted female succession in customary law in Cameroon. The

deceased intestate was survived by five widows, two concubines and 38 children

including the appellant, a married woman and the eldest child of the deceased. She

applied to and was made temporary next-of-kin by the Mankon Customary Court, 692

and with the declaration obtained letters of administration which, like the next-of-kin

declaration were also supposed to be temporary. Some of her male relatives were

dissatisfied with the grant of letters and brought an action for their revocation. Having

failed in the High Court they appealed to the Bamenda Court of Appeal which

revoked the letters for reasons stated as follows:

“It is common ground that the respondent at all times material to these
proceedings was and is still a married woman. She belongs to a family
different from the one in which she was born. She cannot inherit from
her father in accordance with customary law, and a fortiori she cannot be
her father’s next of kin. The respondent was doubtless aware of her
disability when she applied to the Mankon Customary Court for a
declaration of temporary next of kin.”

691
Zamcho Florence Lum v. Chibikom Peter Fru &Others, Supreme Court judgment No. 14/L of 14
February 1993.
692
In Zamcho Lum Florence v. Susana Bih & Two Others (1985) Civil Suit No. 22/85-86, Mankon
Customary Court (unreported).

189
 The woman proceeded to the Supreme Court which quashed and annulled the

decision of the lower court. The ratio decidendi of the decision went thus:

“Not only was the decision of their learned lordships based on sex
discrimination in gross violation of the … contents of the preamble of
the constitution, but it was in total misrepresentation of section 27 of the
Southern Cameroon High Court Law which ensures the observance of
the native law and custom only on the sole condition that it is neither
repugnant to natural justice, equity and good conscience nor
incompatible either directly or by implication with any law in force in
the Republic, that they applied the so called principle of native law and
custom which sustained a discrimination based on the sex of
individuals.”

After this decision female succession can never be the same again. It

establishes a precedent which is so far followed by the lower courts. 693 Previously it

would have been heretical for a woman to aspire even to the office of a temporary

successor, 694 as always there would be male relatives to play the role of caretaker.

That decision did not however end the squabbles in the Chibikom family, due

particularly to the fact the next-of-kin declaration was temporary, a point which the

Supreme Court failed to address. Another appeal on the same estate is pending in the

Supreme Court. In Chibikom No. 2 695 the customary next-of-kin upon attaining

majority obtained a next-of-kin declaration from the same customary court and with

this demanded the revocation of letters of administration previously issued to Zamcho

Florence. The decision in this second appeal will no doubt establish once and for all

693
Few examples are Keyaka Francis v. Taah Regina (2000) BCA/10/2000 (unreported), where the
daughter of the deceased was made successor against her paternal cousins; Catherine Makeba Joke v.
Chambo, HCB/PD/CA/46m/99-2000 (unreported).
694
See Irene Ngum, “Rethinking Female Succession to Property in Cameroon- The decline of
customary law?” Recht in Africa 2004, 121-132, 128
695
Chibikom Richard Fru v. Zamcho Florence Lum & Administrator General Mezam High Court
(2006) HCB/PD/LA.57M/04-05 (unreported)

190
whether a successor could in addition to the reasons given above, be deposed on the

ground, simply that the next-of-kin declaration was temporary.

We foresee the supreme court considering the matter as res judicata and

thereby confirming its previous decision without upsetting the status of the next-of

kin, who would then as the father of the family be consulted by the administrator in

all but the routine matters concerning the administration. 696 It would be establishing

the position which the lower courts have so far avoided to address directly, that the

offices of successor and administrator could be held by different persons.

The point was canvassed in Chi Stephen & others v. Simon Ndeh. 697 The

appellant was the duly designated successor and demanded the revocation of letters of

administration granted to the respondent who though a beneficiary was not the

successor. The appellant argued that the administration ought as of right to have been

granted to him as successor while the respondent contended that the successor was not

necessarily the person entitled to the letters. The court’s ruling went in favour of the

appellant on the ground that the other beneficiaries were in favour of him managing

their common inheritance. The point as to whether the offices could be held by

different persons was not addressed and therefore remained open. It could occur as

was the case in the Chibikom case that the popular choice of the beneficiaries is

against public policy because it is incompatible with written law such as section 27 of

the Southern Cameroon High Court Law 1955 and the constitution. Hence in Peter

Charles v. Chinkwo Nde 698 it was argued that “while succession may, according to

many traditional norms in this province[North West] be limited to male children, the

administration of an estate is open to all close relatives of the deceased including

wives and children, whether males or females.” But unfortunately again the court was
696
See Nwabueze, Nigerian land law, supra, 430.
697
(2006) Appeal No. BCA/33/2004 (unreported)
698
(2006) Appeal No. BCA. 62/2003 (unreported).

191
silent on the point. The Tribunal de Premier Degré of Dschang was categorical on the

point that the successor is also the administrator: « être l’héritier principal consiste à

administrer les biens de la succession et gérer les biens non encore partagés ou

demeurés indivis entre les cohéritiers. » 699

It will not be unique to Cameroon if Chibikom No. 2 comes out with a decision

that the offices could be held by different persons. It is the position in Nigeria 700 and

Ghana, both of which like Cameroon encourage the appointment of successors as

administrators of the estate, but nevertheless recognise that the right for successors to

be thus appointed is not inalienable. 701

4.7.4: The Chibikom case as Coutume Evolué. 702

Chibikom must be viewed as a milestone in the evolution of the women’s

succession rights in Anglophone Cameroon. It was the first decision on the point from

that part of the country to get to the Supreme Court. And it would appear that until

then the highest judicial body was unaware that the appellate jurisdictions of the

Anglophone provinces almost religiously observed the rule that a woman cannot

inherit property, when that right had been recognised in Francophone Cameroon 703

through the concept of coutumes évolués. The decision was based on the enabling

699
“Being the successor consists in administering the property of the succession and the managing
property not yet divided or held communally by the beneficiaries.” Jugement no. 67 13 Juillet 1991
(unreported)
700
See Nwabueze, supra.
701
In Ghana, section 79 (2) of the Administration of Estates Act (Act 63) provides that the courts shall
“In granting administration have regard to the rights of all persons interested in the estate, including the
successor, if any under customary law, and, in particular, administration with will annexed may be
granted to a devisee or legatee and administration may be limited in any way the court thinks fit.”
These choices could be derogated from on the strength of section 79(3) (ii) according to which “if by
reason of the insolvency of the estate of the deceased or of any circumstances, it appears to the be
necessary or expedient to appoint as administrator some person other than the person who, but for this
provision, would not by law have been entitled to the grant of administration, notwithstanding anything
in this Act, appoint as administrator such person as it thinks expedient…”
702
See the effects of the exclusion of customary law
703
See Enonchong, N. “The exclusion of customary law in Cameroon”, supra, 518.

192
statute for the application of customary law and not some English statute that would

have taken it out of the realm of customary law.

But the attitude of Anglophone courts towards that decision is different. They

seem not to understand that customary law is not static 704 and that a rule of customary

law does not become assimilated to English law simply because it adopts a position

similar to it. They tend to think that the case alone does not suffice to enable a woman

to be named successor/administrator and so it is always buttressed with English

statutes, notably the Non Contentious Probate Rules of 1954 and the Administration

of Estates Act 1925.

This is because High Courts have the monopoly over letters of

administration. 705 Customary courts have not the powers to grant letters of

administration but could pursuant to their auxiliary powers order administration

without such letters. 706

Letters of Administration are therefore not a mandatory requirement and in

fact most estates are administered without them. They are nevertheless necessary for

access to property such as bank accounts, company shares, and accident and pension

benefits. In customary administration the administrator might not be able to bring an

action pertaining to the estate if the resolution of the problem will require the

application of English law. In Njoke v. Njoke 707 the appellant was unable to use a

customary court declaration of next-of-kin to institute an action on behalf of the estate

in the High Court. In the words of Mukete, J:

“For an estate to sue either the beneficiary applies for a grant ad litem or
obtains letters of administration. Both are obtainable from the High
Court. However a person declared next of kin by the customary court

704
See more on our discussion on customary law in chapter two.
705
See the discussion on the jurisdiction of High Courts.
706
See section 47 (1) of the Customary Courts Ordinance 1948.
707
(2006) C.A.S.W.P/35/04-05 (unreported).

193
 can go before that court for any remedy that that court can give. But if
he seeks a remedy in the High Court, he must comply with the rules of
the game in the High Court….” 708

Hence holders of customary court declarations of next-of-kin, if they intend

the estate to benefit from the application of English law and to have access to funds

left by deceased, must submit the declarations to the High Courts in exchange for

letters of administration.

The High Courts seem to think that because the letters are issued on the basis

of an English statute, the administration, including the rules of priority must be in

accordance with English law. This point was informally raised by one of the writer’s

postgraduate students 709 with Justice Ayah, then the Administrator-General of the

Kumba High Court. His view was that the point was yet to be raised by any lawyer

and that even if this happened only the appellate jurisdictions would have the final

say, since they as trial courts could only apply English law for the reasons given

above. This position is arguable, on the ground that the Supreme Court (Civil

Procedure) Rules of the 1948 Laws of Nigeria which gives the courts authority over

letters of administration lays down the procedure to be followed by the High Courts,

with authority to administer the English and customary laws. It cannot therefore be

assumed that only the English law is applicable since the courts will normally apply

the substantive law that is relevant in any given situation.

Hence applications for grants concerning the estate of a person subject to

English law should be governed by the English law of priorities while customary law

708
See also Lawal & Ors. v. Younan & Sons (1961) All N. L. R. 245, 253. The plaintiffs as customary
administrators relied on the Fatal Accident Acts of 1846 and 1864 in their action for negligence against
the defendants. Ademola, J., said that “it is clear a person to whom power is given under customary
law to administer the estate of deceased person, is a person empowered by that law to administer the
estate of the deceased where customary law can be invoked, and such power cannot be extended to
matters which are statutory rights under English law and to which statutory remedies apply.”
709
Kembeng Richard, Chief Registrar of the Court and Probate Clerk.

194
should be applied when the deceased is subject to it. But what obtains is a situation

whereby no distinction is made between the two as the courts almost invariably apply

the English rules of priority. In Mary Ngoh v. Njimba Jacob 710 the quarrel was

between the widow and brother of the deceased. The Probate Practice Non

Contentious Rules of 1954 were applied to grant “administration” to the widow when

this was in fact a potentially polygamous marriage. In Peter Charles v. Chinkwo

Fidelis 711 consolidated with Chinkwo Fidelis v. Chi Caroline 712 the court recognised

that the intestate had more than one wife but still invoked the Administration of

Estates Act 1925.

Lest we be misunderstood, we are not contesting the appointment of the

spouses in these cases as administrators. The point is that they could still have been

appointed in application of customary law by relying on the Chibikom case provided

that in the estimation of the courts, they were the persons most suited to administer

the estates in the interest of all the other beneficiaries.

In Nana v. Nana, 713 Ngassa, J. adopted what we think was the right position

when she abstained from invoking the provisions of the Non Contentious Probate

Rules of 1954 on the ground that the “applicant-for-grant was polygamously married

to the deceased.” But apparently she too did not consider the Chibikom case authority

enough to permit approving the grant of letters to a woman regularly chosen by the

customary law instances as successor. The Convention on the Elimination of All

Forms of Discrimination Against Women was invoked even though it is yet to be

enacted into law by the Cameroonian legislature.

710
(2006) Suit No. HCF/ PROB/AE96/2001 (unreported).
711
(2003) Suit No.HCB/PD/LA.36M/99-2000 (unreported).
712
(2003) Suit No. HCB/PD/LA.26M/99-2000 (unreported).
713
(2005) Suit No. HCF/PROB/AE1/2001-2002 (unreported)

195
 4.7.5: FACTORS WHICH INHIBIT THE DESIGNATION OF WOMEN AS
SUCCESSORS
Of all the dependants of the deceased, women have without doubt borne the

full brunt of the customary law, reason why we deem it germane to consecrate this

section to the examination of the ground advanced by customary law to exclude them

from the important office of successors, deemed to be the preserve of men.

The successor is appointed on the basis of the principle of male

primogeniture 714 whereby the eldest male child is given priority, or male

ultimogeniture according to which priority is given to the youngest male descendant

of the deceased. 715 A different approach would have been expected in matrilineal

systems given that women are venerated, but this is not the case, and for Asanga to

lament: “in matrilineal communities… one would expect the woman to have more

rights. However, this is simply a community in which descent is traced through the

mother’s line. When it comes to succession, a man is succeeded not by his own

children but by the male children of his full blood sister from one womb.” 716

Responsible for this state of affairs is the early communal life of

Cameroonians as explained in the problem statement.

It is thought that women could be unreliable as successors, since upon

marriage their loyalties become divided between the biological and marital families.

Naturally, loyalty to the marital family is stronger because the woman’s children are

part of that family. It is feared that a married woman might take away the property to

their husband’s family. In the case of land, there is evidence that some married

women register their family land in their marital names. This was the case in

714
See Efosi Kombe v. Lydia Ngale (1980) C.A.S.W.P/cc/5/79 cited by Enonchong, N. “Public Policy
and Ordre Public: The Exclusion of customary law in Cameroon.” (1993) 5(3) RADIC, 511.
715
In Joseph Tanjang Bamu v Emmanuel Awankem Bamu, (1990) Appeal No. 65/86, unreported, one
of the witnesses said that “by our tradition the eldest child in Mendankwe is not made successor.”
716
“Rethinking Female Succession to Property in Cameroon- The decline of customary law?, Recht in
Africa 2004, 121-134, 124.

196
Chibikom v. Zamcho 717 where after being named administrator of her late father’s

estate, the respondent, a married woman, set about registering the family land in her

marital name. This was in spite of the prohibition enshrined in section 10 of the land

registration decree of 27 April 1976, according to which, “Trustees of an inheritance

may not obtain land certificates for its properties in their own name.” 718

To justify women’s exclusion customary law evolved the idea that because

they are destined for marriage and procreation are themselves “property” liable to

pass to the successor. 719 This is underpinned by the payment of the bride price said to

constitute the purchase price for the woman.

4.7.5.1: The Bride-Price: basis for the “Woman as Property” theory. 720

The terms bride-price and dowry 721 are often used interchangeably. This usage

is wrong because dowry in western jurisprudence consists of property which a girl

receives from her parents upon marriage and which forms part of her ante-nuptial

property.

We are yet to learn of any dowry being paid at customary law in Cameroon.

Moslem law has a system of dower mahr in which it is the bride-groom and not the

bride’s parents who makes gifts to her. The mahr is a precondition for marriage in

717
(1997) 1 C.C.L.R. 212
718
Decree No. 76-165 of 27 April, 1976. Unfortunately the judge defended the action of the
respondent on the ground that as administrator the estate vested in her and that it was the duty of the
government department responsible for land registration to mention that she registered the land in her
capacity as administrator.
719
See Mary Umaru v. Asopo Makembe (1981) C.A.S.W.P/CC/87/81, cited by Enonchong, N., “Public
Policy and Ordre Public; The exclusion of customary law in Cameroon,” (1993) 5(3) RADIC, 503-525,
512.
720
Professor Enonchong uses the term “property rule” which we humbly submit is inappropriate given
that the treatment of women as property is not a rule of law as such, but only a possible reason for the
exclusion of women from succession. “Public Policy and Ordre Public: The exclusion of customary
law in Cameroon,” (1993) 5(3) RADIC, 503-525, 512.
721
Other appellations such as “marriage consideration”, “bride-wealth” marriage gifts, “and marriage
payment” have also been used.

197
Moslem law. 722 Because it is made to the bride and not her parents Moslem jurists

argue that this does not constitute the purchase price of the bride. 723

The bride-price on the other hand is payment made by the bride-groom to the

parents of the bride. 724 This is clear from the definition of dowry proffered in section

2 of the Limitation of Dowry Law, Cap. 76 of the 1956 Laws of Eastern Nigeria, and

adopted for the purpose of the bride-price by Professor Nwogugu: 725

“Any gift or payment, in money, natural produce, brass rods, cowries or

any other kind of property whatsoever, to a parent or guardian of a
female person on account of a marriage of that persons which is
intended or has taken place.”

This is the practice in non-Moslem communities while Moslem communities

either practise both the dower and bride-price simultaneously or only the dower.

Where both are practised the dowry is kept in abeyance pending divorce or death. 726

In Saidu Manu v. Hubeba Usmanu, 727 the defendant after divorce had sued the

plaintiff in the Alkali Court of Mbengwi claiming the promised “cow and calf being

‘Sadiki’ a bridal gift from the groom according to Islamic Law.” The court held in

favour of the plaintiff, against which decision the defendant instituted the present

appeal. The decision of the lower court was upheld and Wacka, J. said: “The question

of the law on ‘Sadiki’ requires no polemics. As long as there is consummation, even if

the marriage lasts only for hours the bride is entitled to her ‘Sadiki.’ We have no

reason therefore, to differ with the trial court on it finding of facts.”

722
See Ajijola, A.D. Introduction to Islamic Law, New Delhi, International Islamic Pictures, 1989, 154.
723
See Lemu, Aisha et al. Woman in Islam, Markfield, The Islamic Foundation, 2003, 19.
724
Kasunmu and Salacuse in Nigerian Family Law, London, Butterworths, 1966, 77, define the term as
“a payment of some sort --- made by the boy or his family in order to establish a valid marriage.”.
725
Family Law in Nigeria, Nigeria, Heinemann, 1996, 51.
726
Phillips, Arthur, A Survey of African Marriage and Family Life, Oxford, Oxford university Press,
234.
727
(1997) Appeal No, BCA/9CC/ 95 (unreported)

198
 Where only the dowry is maintained an amount of money is paid to the parents

of the bride who could utilise part thereof for the preparation of the marriage. 728 In

Zeinabu Sadi Buba of Issu v. Alhaji Jae Mundayi, 729 it was disclosed in a divorce case

that the parents of the girl had obtained money from her purported husband to prepare

her for the marriage. Effectively therefore, the dower in these communities takes the

form of the bride-price. This is statutorily recognised in Francophone Cameroon as a

French colonial order of 1926 converted the Moslem dowry into the bride-price and

made it payable to the parents of the girl. 730

The bride-price is therefore commonly practised under the Moslem and non-

Moslem customary laws. The question, however, is whether it constitutes the

purchase price of the bride.

The fact that the payment is to the parents of the bride lends credence to the

purchase price analogy propounded by early European observers 731 and now

sustained by western educated Africans who ignore the many differences that exist

between a customary marriage and a commercial transaction. Similar payments were

in fact current in early English law. These were never considered as the sale of the

bride, but rather as a sale of the mund or right of protection which the parents have

over their daughter. 732 This helped to maintain the personality of the woman as an

entity capable of owning property, contracting, liable for torts and crimes committed

728
See Nwogugu, E. I., Family Law in Nigeria, Heinemann Educational Books (Nigeria) Plc., 1996,
59.
729
Ndop Alkali Civil Suit No. 4/2002.2003 (unreported)
730
Article 3 of Arrêté of 26 December 1922, codifying the Moslem law of marriage: « En fait c’est à la
femme elle-meme que la dot devrait etre versée, en fait la coutume a prévalu de verser le prix de la dot
aux parents de la femme. » (Phillips, A. (ed), A Survey of African Marriage and Family Life, Oxford
University Press, 1953, 236).
731
Schwimmer,Brian,“BrideWealth”.http/:www.umanitoba.ca/faculties/arts/anthroponlogy/tutor/marria
ge/bride_wealth.html p.2.
732
See Holdsworth, A history of English Law, vol. II, London, Methuen, 1923, 87.

199
by her. 733 Jacob laboured for seven years to be given Rachael’s hand in marriage 734

and this was not considered as the purchase price.

Due to the sale analogy, statements such as “I have no business with girls who

are supposed to be in their husbands’ houses” 735 and “I am surprised that the widow

of my late father is also challenging me for the next-of-kin on behalf of the son, of

which she is my property” 736 are commonplace. Academics such as professor

NKouenjin think similarly that the payment of the bride-price makes marriage a sale

contract. 737 And the judiciary joins in the fray when in Achu v. Achu Inglis J says that

“the wife is still regarded as part of her husband’s property. That conception is

underscored by the payment of dowry on marriage and on the refund of same on

divorce.” 738 Yet in Nanje v. Bokwe, the same judge ruled that a “woman cannot,

unless given by will, inherit from her father, let alone be his next of kin.” 739 The

question is whether a will has such magical powers to convert a chattel into human or

whether a woman is property only in intestacy and human in testacy.

Mbarga argues, fortunately, that :

“La femme n’a jamais été et n’est pas une chose, un bien quelconque du
patrimoine. Et elle n’a jamais été considérée comme telle dans la tradition
africaine, quoi qu’on en ait dit. La femme est une personne physique qui a
toujours eu ses droits et obligations, différents de ceux de l’homme certes,
dans la civilisation africaine. La place que celle-ci lui a assignée a peut-
733
See Glanville Williams, “The Legal unity of husband and wife” (1947)10 M.L.R, 16-31, 18
734
See the Holy Bible Genesis 29: 18-20.
735
Statement of a brother when invited by the sisters to attend a family meeting to decide the fate of the
property left by their late father and which he was mismanaging. The uncooperative attitude led to the
case of Peter Chi Charles v. Chinkwo Nde Fidelis & Caroline Chi (2006) Appeal No. BCA/62/2003
(unreported)
736
Statement by defendant in Elive Njie Francis v. Hannah Efeti Manga (C.A.S.W.P/CC/12/98
(unreported)
737
Yotnda, Muarice Nkouenjin, Le Cameroun a la Reserche de son Droit de la Famille, Paris, Librairie
Generale de Droit et de la Jurisprudence, 1975. « Les sommes que verse le mari ne sont ni des cadeaux
ni des symboles, encore moins des assurances ou ciment d’alliance ; mais il s’agit d’un achat et tout
autre appellation doit s’analyser comme tel,» 63.
738
Appeal No BCA/62/86 (unreported). See also Ndumu v. Ndumu, Suit No. HCB/97/MC/86
(unreported) ; Ngnitedem Etienne v. Tashi Lydia, Appeal No. BCA/46/86 (unreported)
739
(1983) C.A.S.W.P./CC/22/82, cited by Enonchong, N, supra, 511.

200
 être été inférieure à qu’il occupait l’homme, soit ! mais de là à dire que la
femme était et est considérée comme une chose, comme un bien chez les
africains, c’est inexact et faux. » 740

Oki J. in the Nigerian case of Ibikade v. Aize distinguishes the bride-price

from purchase price in a sales contract:

“Is the term “dowry” equivalent to the term “price”? The purchase price
of an article is a single sum payable (even if by instalments) to the
owner or owners of the article. Dowry on the other hand is not usually a
single or simple sum like the price. ” 741

Furthermore anthropological studies show that the actual sums transferred as

bride price are less significant as economic inducements or assets, than as

counters in a social exchange system that binds two families together in

marriage. 742

If the payment of the bride price makes marriage a sale transaction sui juris it

becomes necessary to determine what is sold. Is it the person or the fruits of her

womb? It can certainly not be the person because in certain customs, such as the

Banyang in the South West Province when a married woman dies she has to be buried

in her family of origin. 743 The idea that the bride price is payment for the fruits of the

woman’s womb emanates from certain customs according to which the paternity of a

740
“The woman has never been and is not a thing, a chattel whatever of the patrimony. And she was
never considered as such in African tradition, whatever is said on the subject. The woman is a physical
person who has always had her rights and obligations, different from those of men of course, in African
civilisation. The place assigned to her by this might be inferior to that occupied by men, very well! but
from there to say that a woman the woman was and is considered as a thing, as a chattel among the
Africans, is inexact and false,” Emile Mbarga, “Quelques reflexions sur le projet de la loi reorganisant
l’etat civil au Cameroun Oriental et protant diverses dispositions relative au marriage” (1966) 76
Penant 286-302, 291.
741
(1974) U.I.L.R. 18, 21. Also Ngwafor, E. N. Family Law in Anglophone Cameroon, supra, 72.
742
Brian Schwimmer, supra.
743
Apparently this is not unique to Cameroonian tribes, for upon her death, the Congolese-born wife of
the President of Gabon was buried in her native village in the Congo Republic and the reason given for
this was the desire by her family to “S’entinir au strict respect des us et coutumes Odimba.” In
Rapatriement: Edith Lucie Bongo sera inhumée au Congo,” Cameroun Tribune of 15 April 2009,
available on line at http://www.cameroun-info.net

201
child is in the payer of the bride price as against the biological father. However since

Ngeh v. Ngome that custom has been declared to be contrary to natural justice, equity

and good conscience. 744 That apart it has also to be noted that barrenness is not a

ground for nullity or divorce. In a contract of sale of goods the purchaser reserves the

right to reject the goods on grounds that they are not merchantable or fit for the

purpose for which they are bought.

Far from being the purchase price the bride price serves inter alia 745 as proof

of the parents’ consent to the marriage.746 The law is against using the bride-price as a

condition for the essential validity of marriage.747 The validity of marriage and bride-

price are, however, intricately linked as long as the bride-price is the only means by

which the consent of the girl’s parents could be established. A parent wishing to

contest the validity of a marriage does not need to plead none or partial payment of

the bride-price. 748 It suffices that he pleads the absence of his consent 749 whereby the

burden shifts to the spouses to show that consent was given. The bride-price

constitutes a sort of “registration” of customary marriage since it is such an overt and

notorious act witnessed by many people that it is impossible later to deny having

received it.

744
(1962-1964) W. C. L. R., 32. (selected judgments of the High Court of West Cameroon.)
745
Some other functions of the bride-price are that (1), it serves as a bond to unite the families of the
spouses, (2) compensate the bride’s family for the loss of her services (3) is a stabilising factor in the
marriage and enhance the man’s affection and devotion to the woman since the payment of the bride-
price is a sign that he values her highly. See Nsereko, supra, 693-697; Yotnda, Muarice Nkouenjin, Le
Cameroun a la Reserche de son Droit de la Famille, Paris, Librairie Generale de Droit et de la
Jurisprudence, 1975, 71-79.
746
See Kasunmu, A. B. and Salacuse, J. W., Nigerian Family Law, London, Butterworths, 1966, 78.
747
See Enonchong, N., “Public Policy and Ordre Public; The exclusion of customary law in
Cameroon,” (1993) 5(3) RADIC, 503-525, 508.
748
Section 70 (1) (b) of the Civil Status Registration Ordinance of 1981 provides : “Any action against
the validity of a marriage as a result of the total or partial failure to execute a dotal or matrimonial
agreement shall be rejected on grounds of public policy.”
749
Section 64 (2) ibid, “The consent of the spouse-to-be shall be valid only when supported by that of
his father and mother.”

202
4.7.5.2: Women as heritable property: Levirate Marriage.

The fact that the bride-price is seen to concretise the union between two

families rather than two individuals has far reaching consequences. 750 The death of

the man does not normally terminate the marriage, as it is possible, with the consent

of the woman, for her to be attached to another member of the family in marriage.

It was an old Jewish custom for the “levir” or brother 751 of a deceased to take

over his wife in order to produce a son for the latter and perpetuate his name. 752 The

objective in customary law is different. It assuages the widows’ incapacity to

succeed 753 and Professor Elias writes that the union is “a scheme of social insurance

against neglect and hunger for the deceased’s dependants.” 754 In The Estate of

Agboruja 755 it was explained that the basis of the custom was to ensure the continued

maintenance of the widow and her children and was not repugnant as contended by

the widow; unless it could be shown that the new husband was wicked towards that

family when the deceased was still alive. The male relative becomes a new father for

the children and is responsible for their upbringing as if they were his own children.

The term “widow inheritance” is also commonly used giving the impression of

compulsion. Widows have always had the option to refuse to take a relative of the

deceased as husband 756 without thereby forfeiting the right to maintenance by the

750
See Melone, Stanislas, “le Droit Successoral Camerounais: Etude de Quelques Points en
Jurisprudence (1979) 17/18 Cameroun Law Review, pp. 53-97, 66.
751
Taken in context this would include other male relatives of the deceased including sons in
polygamous families.
752
See Deuteronomy 25: 5-10.
753
Ombiono, Simon, « L’application de la loi du 7 Juillet 1966 portant diveres disposition relative aux
marriages dans l’ex Cameroun Oriental » Masters thesis, Yaounde, cited by Melone, supra.
66. Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur. Pol.
Ind. Coop. 639-662, 655.
754
Elias, T. O., Nigerian Land Law, London, Sweet & Maxwell, 1971, 195.
755
(1949) 19 N. L. R. 38.
756
See Mbouyom, Francois-Xavier, « Le statut juridique, politique et social de la femme au
Cameroun.» (1974) 28 Rev. Jur. Pol. Ind. Coop. 600-612, 612. Nwogugu, E. I., Family Law in
Nigeria, Heinemann Educational Books (Nigeria) Plc., 1996, 223.

203
family if they remain in the family. 757 The true significance of the expression is not

necessarily that the successor inherits the widow as wife, 758 but rather the

responsibilities towards her, which were initially those of the husband. An Ashanti

proverb cited by Rattray says that “The one who takes the gun of the deceased also

takes the widow”. 759 The gun symbolises the means of livelihood and one cannot take

it away without assuming the responsibility to feed the mouths that depended on it.

Therefore whether the widow becomes a wife to the successor or any other

person depends on her consent. This was emphasised by a West African chief who

described the situation as follows: “If somebody dies any member of the family can

go secretly to any of the wives and find out if she would marry him. If the woman

agrees, there is a customary present which the relative gives to the woman.... If there

is agreement between the woman and the man, the man is to go and inform the oldest

person in the family.” 760 In his study on the Bali tribe in Cameroon Rubin establishes

that widows generally have three options. They could return to their parental homes,

remain in the home of the successor under his guardianship as a widow, or become

the wife of one of the relatives of the deceased. Where she elects to return to her

parental home the bride price must in principle to be returned, although the right may

be waived by the family. 761 Where she chooses to remain in the husband’s compound

as a widow, with or without children, the obligation to refund the bride price is

removed and she is entitled to maintenance from the husband’s family.

757
See Rubin, infa.
758
Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur. Pol.
Ind. Coop. 639-662, 655.
759
Ashanti law and custom, Oxford, Clarendon Press, 1929, 28.
760
See Armstrong, R. G., “Intestate Succession among the Udoma,” in J. Duncan M. Derrett, Studies in
the Laws of Succession in Nigeria, Oxford, Oxford University Press, 1965, 215
761
In fact the general practice today is for the woman to be allowed to return to her parents without the
demand for the bride-price but if she is young and remarries then the new bride-price is used to pay off
the first.

204
 Indubitably therefore, the consent of the widow is necessary especially as

article 77 (2) of the Civil Status Registration Ordinance No. 81-02 of 29 June 1981

provides that “In the event of the death of the husband, his heirs shall have no right

over the widow, or over her freedom.” When there is consent the matter cannot get to

court, and in fact we came across a case which is representative of the actual situation.

In Asane Florence v. Ndeh Thomas 762 the plaintiff’s mother and three other widows

were taken over by her “uncle” when their husband died. Other children were born of

these unions and the defendant was one of them. In the case, however, the point in

issue was not the levirate marriages but rather whether the plaintiff was to succeed to

property as the child of her biological father or of the father by inheritance.

The courts generally castigate levirate marriages as being contrary to natural

justice, equity and good conscience. Thus in David Tchakokam v Keou Magdaleine 763

it was stated that “any custom which says that a woman or any human being for that

matter is property and can be inherited along with a deceased’s estate is not only

repugnant to natural justice, equity and good conscience, but is actually contrary to

written law.” 764

In the light of what is said about the bride-price and levirate marriages it is

clear that the “woman as property” theory is in sharp decline. The process was started

in the divorce case of Fodje v. Kette, 765 described by Professor Ngwafor as “a famous

762
(2006) Suit No. HCK/AE/K.28/98 (unreported)
763
1999 G.L.R. 111.
764
Ibid, 118, per Ngassa, J. See also the ruling of the South West Court of Appeal in Elive Njie Francis
v. Hannah Efeti Manga. The appellant claimed that in accordance with the Bakweri custom he had
provided a sack clothe for the widow of his uncle and this made him the next-of-kin of the deceased
and husband to the widow. This contention was rejected by the Bwenga Customary Court which named
the widow as next-of-kin. The decision was upheld at appeal, with Nana, J., saying that “Even if it is
the Bakweri custom that by buying a sack cloth for the widow of the deceased, the provider is deemed
next-of-kin, that custom cannot be enforced by this court. It is repugnant to natural justice, equity and
good conscience.” (1999) Suit No. CASWP/cc/12/98).
765
Appeal No. BCA/45/ 86 (unreported) cited by Hamisu, Rabiatu Danpullo, “Women, Property and
Inheritance– The case of Cameroon.”Recht in Africa 2005, 143-161, 149.

205
first,” 766 because Arrey, J. granted the wife the right to occupy the matrimonial home

as well as collect rents from two other houses. 767 An appeal against that decision to

the Supreme Court is still pending. This could just be indicative that the highest

judicial authority considers the case to have been rightly decided. The equality of

sexes is a matter of public policy proclaimed in the preamble of the constitution. The

principle is also enshrined in article 2 of the African Charter on Human and Peoples’

Rights, which has been ratified by Cameroon. 768 In this respect the high judicial body

overruled a decision of the Bamenda court of appeal in Chibikom v. Zamcho Florence

in which a married woman was held not have the capacity to administer her father’s

estate.

4.8: ADMINISTRATION OF ESTATES IN CUSTOMARY LAW.

Because administration is governed by the Supreme Court (Civil Procedure)

Rules of the 1948 Laws of Nigeria, most estates in this country tend to be

administered in accordance with English law.

The Chibikom Case for example was subject to customary law as evident in

the fact that the deceased was survived by five wives. But the court had no qualms in

holding that “it is settled law that the effect of the grant of letters of administration is

766
Ngwafor, E. N., “Cameroon: Property Rights for Women- A Bold Step in the Wrong Direction”
(1991) 29 (2) Journal of Family Law, University of Louisville, 296.
767
Professor Ngwafor commends the boldness of the judge but criticises the decision for having been
arrived at without reference to existing customary law or English precedents, both of which would have
resulted in the woman being excluded. It could be submitted, however, that the decision could have
been justified on grounds of the repugnancy of a custom which treats women as property. The English
position at the time that the law knows of no community of property between spouses could not have
been applied without necessary modification. Most spouses in Africa acquire property only after
marriage and given the contribution, direct or indirect of either it becomes difficult to actually say
whose property it is, although in the case of land it might be registered in the name of one of the
spouses. In England on the other hand spouses go into marriage already owning property or a
substantial part of it. But even here the idea of the “community of surplus” comes up as spouses are
expected to share the benefit of any increase in their wealth produced during the marriage by their work
or thrift.
768
See Enonchong, “ . N., “Public Policy and Ordre Public; The exclusion of customary law in
Cameroon,” (1993) 5(3) RADIC, 503-525, 511.

206
to vest the estate of the deceased in the administrator,” 769 when the rule in customary

law is that property passes to the family 770 and not the successor, who is only the

agent with an interest in the estate appointed by the family.

Although customary courts do not have jurisdiction over letters of

administration their decisions are sufficient to ensure administration of an estate in

customary law. This could be under auxiliary powers conferred on them by section

47(1) of the Customary Courts Ordinance, 1948:

“A customary court may, whenever it shall think it necessary to do so for

the preservation, proper custody or management of any property in dispute
in a cause, appoint any person as a receiver or manager to receive and to
take charge of the property and to deal with it in such a manner as shall be
directed by the said customary court.”

This is by no means different from the powers which letters of administration

conferred on personal representatives. Letters are therefore not indispensable and in

fact most estates in this country are managed without them, even though the point

needs to be made that such estates are generally deemed to be unrepresented in law,

so that an action cannot be maintained on their behalf in the High Courts.

The point was made Njoke v. Njoke 771 where next- of- kin prior to obtaining

letters of administration instituted an action in the High Court purporting to protect a

house which was part of the estate. The suit was held to be inadmissible whereupon

the plaintiff appealed to the South West Court of Appeal, which upheld the decision

of the trial court:

“For an estate to sue either the beneficiary applies for a grant ad litem or
obtains letters of administration. Both are obtainable from the High Court.

769
(1997) 1 CCLR, 213, 219.
770
See Bentsi-Enchill, Ghana land law, supra, 142.
771
(2006) Suit No. C.A.S.W.P/35/04-05 (unreported).

207
 However a person declared next-of- kin by the customary court can go
before that court for any remedy that that court can. But if he seeks a
remedy in the High Court, he must comply with the rules of the game in
the High Court under Cap. 211, Order 48 by obtaining the letters of
administration required by the law.”

The responsibilities incumbent on the successor are actually those of the family,

hence he needs the consent of the family, express or tacit, to carry out his

functions. 772 He cannot, for example dispose of property nor sue in respect of it

without the consent of the family. He pays the debts left by the deceased and funeral

expenses.

Funeral debts are normally settled with contributions from members of the

extended family and donations from sympathisers. If the available amount is

insufficient to settle the funeral expenses the balance is discharged by dividing it

among the members of the immediate family. The debts of the deceased could be paid

by disposing of some of the property, 773 but this is only the last option as the family

will hardly permit that land be sold to settle debts. Generally therefore the successor

pays the debts out of his pocket and the rule is that responsibility for the debts is not

limited to the value of the estate. 774

Other duties include legally enforceable rights to maintenance by the

dependants of the deceased who will include the children, widows, and members of

the direct and extended families of the deceased. 775 Generally the movable property is

772
See Nwabueze, Nigerian Land Law, supra, 430.
773
See Kwende, Chantal, “Procedure for designating the next-of-kin and his powers over property in
the Baforchu tribe” Term Paper, University of Dschang, 2000. (unpublished)
774
Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur. Pol. Ind.
Coop. 639-662, 658; Binet, Jacques, “La decvolution successorale chez les Douala du Cameroun”,
(1955) 65 Penant, 33-40, 36.
775
Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur. Pol.
Ind. Coop. 639-662, 647 ; Bentsi-Enchill, Ghana Land Law, supra, 167.

208
distributed shortly after burial and funeral ceremonies and so powers administration

are actually exercised only with respect to land.

Land under customary law can be community land, chieftaincy land, family

land, and privately owned land. Only the last two categories raise questions of

succession but a discussion of community lands is necessary because of its role as a

pool of land from which the needs of persons excluded from succession could be met.

Chieftaincy land will not be of interest to us in this study, because by the 1974 land

reforms 776 properties occupied by persons qua chiefs were converted into the public

property of the state, 777 and so ceased to be the subject of succession. Public property

of the state is said to be inalienable, imprescriptible and un-attachable. 778

4.8.1: COMMUNITY LAND

It happens during the early settlement of each community that the land

acquired either as a result of conquest or peaceful settlement generally belongs to the

entire community, 779 placed under the authority of the chief. Eventually members of

the community are allotted part thereof or appropriate parcels of the land on behalf of

their families, existing or prospective.

Un-occupied lands are never the subject of succession as they continue as

community lands under the authority of the chief and could be put to rational use by

any member thereof. In Agbortar v. Chief Besong, Endeley J. said “That land falling

within settled and well defined village boundaries is communal property of the village

is so well entrenched a fact as to be axiomatic. The communal rights are exercised

776
The land reforms of 6 July 1974 are contained in three ordinances that were followed in 1976 with
an equivalent number of decrees of application. The relevant ordinance is Ordinance No. 74-2 of 6
July 1974
777
Section 4 (i) reads “The artificial public property of the state shall comprise the concession of
traditional chiefdoms and property relating thereto, and more especially in the provinces where the
concession of chiefdom is considered as the joint property of the community, the chief having only the
enjoyment thereof.”
778
.Section 2 (2)
779
Kamga, Victor, Le Droit Coutumier Bamiléké au contact des droits Européens, Yaoundé, 1959, 130.

209
over areas of land which are unoccupied by villages for building or farming purposes.

Any benefits, financial or otherwise which accrue from the use of such land by

strangers would go to the village community as a whole in accordance with their

democratically ascertained wishes.” 780 It also accepted that members of the

community could do anything on the land subject only to the interest of the village

community to which it belongs. 781

They provide a pool of land from which allotments could be made to needy

persons through application to the chief, and these include persons excluded by the

rules of succession. 782 Because of the gender bias of customary law one would be

tempted to think that men would be more favoured by the chief to whom the

application is made for such grants of land. However, the case of John Kpumia v.

John Abongwe 783 shows that women could also benefit from grants from community

lands.

Providing land to members of a community out of this pool of land would be

virtually impossible today, considering that the 1974 land reforms converted lands

that previously fell under the authority of chiefs into national lands of the second

category 784 , the acquisition of which passes not by a simple application to the chief

but to the administrative authorities. The fact that applications are made to

administrative officers not influenced by custom could be advantageous to women

given that women are not prevented from acquiring land for valuable consideration.

However the process is long and expensive and the lands are allocated for investment

780
(1968) WCLR, 43, 45.
781
Anyangwe, supra. 34.
782
See Tambi Eyongetah and Robert Brain, A history of Cameroon, London, Longman, 1974, 44-45.
783
(1978) Y.U.L.R. 78. In that case the husband of the deceased claimed succession rights over land
left by the deceased on the ground that they had contracted a Christian marriage. Evidence was
adduced to prove that the land in question had been granted to the deceased by the paramount chief of
Mankon and that since she did not will it to her husband it had upon her death become family property.
784
These are unoccupied lands and occupied land became national lands of the first category which
could be registered by their occupiers.

210
and not habitation. 785 Occasionally the chief might request a portion of the national

land to accommodate the increasing population. Often very little land is obtained in

this way and most of it ends up in the hands of a few influential men and women,

leaving out those who are actually in need of land as a result of the customary law of

succession.

4.8.2: FAMILY LAND

These lands are created out of community lands in the manner described and

members obtained them not in their personal names but in the name of their families,

actual or anticipated. The passage of time has not in any way diminished the

attachment of Cameroonians to the concept. Family lands continue to be created by

individual family members out of their personally acquired land by will, gifts inter

vivos and by the acquisition of land with family resources. 786 When a member who

acquired land with the use his own resources dies intestate and did not contract a

monogamous marriage which will lead to the presumption that he intended the

received law to regulate his succession, the courts generally presume that it has

become family property. 787

This attitude towards land can be explained by certain factors. In subsistence

economies land is the main source of wealth and livelihood. To be without land is to

be like a tree without roots. Of no less relevance is the religious significance of land,

believed to be the means of communion between the living and the dead believed to

be the real owners of the land. This fact is acknowledged for Cameroon by

Anyangwe: “land throughout Cameroon (and throughout Africa) has religious or

785
It is stipulated in section 2 of Decree No. 76-166 of 27 July relating to the terms and conditions for
the management of national lands that “Temporary rights shall be granted for development projects in
line the economic, social or cultural policies of the nation.”
786
James, R. W. Modern Land Law of Nigeria, Ife University Press, Ile-Ife Nigeria, 1975,55-56.
787
See John Kpumia v. John Abongwe, (1978) Y.U.L.R. 78.

211
supernatural significance as tribal or family ancestors are buried on the land, or the

land is itself a deity which requires placating.” 788

This reverence for land is observed more in the rural communities even though

this is ebbing as a result of advancing urbanisation and education. The population of

the urban areas no longer hold such reverence for land neither do they think that the

function of land is limited to providing man with means of subsistence. Land,

according to this segment of the population, should in addition to subsistence afford

the possibility for investments and serve as collateral security for loans.

This is possible only when communal ownership of land gives way to

individual ownership and its corollary- alienation. In fact as far back as 1908 in Lewis

v Bankole, Speed C. J had predicted the demise of communal land ownership through

a “legislative or judicial coup de grâce.” 789 A legislative coup de grâce was given by

the Cameroonian legislature in the 1974 land reforms whereby the customary system

of land tenure was purportedly abolished. The combined effects of sections 14 790 and

15 791 of Ordinance No. 74-1 of 6 July 1974 lead to the assumption that all lands held

under customary law including those in effective occupation have been nationalised.

Though not express, a circular letter 792 of the Minister of Finance issued in 1976,

purporting to represent the government position stated to the effect that the Ordinance

had effectively put an end to customary land rights in the country. Certainly a circular

letter cannot supersede the provisions of an ordinance and for this reason very little

788
Anyangwe, Carlson, “Land Tenure and Interests in Land in Cameroonian Indigenous Law.” (1984)
Cameroon Law Review, 29-41, 35.
789
(1909) 1N.L.R. 81, 83.
790
“National lands shall as of right comprise lands which at the date on which the present Ordinance
enters into force are not classed into the public or private property of the state and other public
bodies.”
791
“National land shall be divided into two categories:
(1) Lands occupied with houses, farms and plantations, and grazing land manifesting human
presence and development.)
(2) Lands free of any effective occupation.”
792
Cited by Ngwasiri, C.N. “The impact of the present land tenure reforms in Cameroon on the former
west Cameroon.” (1984) Cameroon Law Review, pp. 73-85, 76.

212
weight has been attached to this circular. The abolition is also assumed from section

17(2) which calls upon the holders of customary titles to register same in their names

or the names of the group if they are family heads. 793 This too is not mandatory and

the lacuna has been exploited by traditionalist judges to perpetuate the continued

existence of customary land tenure. 794 Even academics such as professor Ngwasiri

argue that “one cannot abolish an aspect of customary law simply by enacting

legislation to say that one has done so.” 795

Membership of the group entails rights over the family property which we

noticed in the introduction is heritable. Lands which a member occupies for

residential or other purposes devolves as a matter of principle to his descendants and

in default reverts to the family to be reallocated to the other members of the family.

Successors tend to consider these as part of their inheritance which upon their

death should also devolve to their own descendants. This is fallacious as evident in

Ndiba v. Ndiba 796 where it was held that the property which the deceased father of the

defendant held as a family member remained family property and did not pass with

the estate administered by the defendant.

Even improvements on the land do not change the family character of the land.

Thus it was held in Bodylawson v. Bodylawson, 797 that a house did not cease to be

family property because of the renovation work done on it by the deceased, father of

the plaintiff, to repair the damage caused by fire.

793
“Provided that customary communities, members thereof, and any other person of Cameroonian
nationality, peacefully occupying or using lands in category 1 as defined in article 15, on August 5
1974, the date of entry into force of the present Ordinance, shall continue to occupy or use the said
lands. They may apply for land certificates in accordance with the terms of the decree….”
794
See for example Thomas Ngo v. Moses Lukong & Another, Appeal No. BCA/ 10/75 (unreported);
Daniel Nde Ndenka v. Mokom Clement (1995) Appeal No. BCA/11/93 (unreported); Stella Nunga &
Five Others v. Wumnyonga & Three Others, (19..) 5 CCLR 189.
795
Ibid. 76.
796
(2006) Suit No. HCK/AE/K.77/98 (unreported)
797
(2006) Suit No. HCF/PROB/AE105/04-05/1M/05 (unreported).

213
 A member is also entitled to a share in any proceeds arising from the sale of

the property and the rents and profits accruing from it. 798 Members have a voice in the

management of the property which consists in being consulted directly or through the

principal members for important transactions concerning the property. There is also

the right of ingress and egress on the property held by members of which the main

effect is to prevent actions for trespass to land between members of the family. 799

Actions in trespass to goods and conversion are, however possible if upon entering

land in the possession of another, a member interferes with the property of that person

to justify any of the actions.

4.8.3: PERSONALLY ACQUIRED LAND

Not even the customary law is against the acquisition of land by family

members in their personal name and with their private resources. Such lands could

validly be disposed of inter vivos or by will and could be held under registered or

unregistered titles.

Security of such tenure is guaranteed by the system of land registration

introduced by the 1974 land reforms. It must be said that the system has been used by

many an unscrupulous successor to register family land in their individual names. 800

Section 9 of Decree No. 76-165 of 27 April 1976 governing land registration

empowers members of the customary communities to register lands in their individual

or collective names. The precondition for registration is “occupation” of the land from

5 August 1975 which is the date when the 1974 Land Tenure Ordinance went into

force and the successor, even though a derivative owner of a portion of the land as

any other member also has the power of supervision of all the land.

798
See Bodylawson v. Bodylawson, ibid.
799
Daniel Ndenka v Mokom Clement (1995) Appeal No. BCA/11/93 (unreported).
800
See Youego, Christine, “La Situation Juridique du conjoint survivant au Cameroun”, (199) 2
African Law Review, 23

214
 We take “occupation” as used here to mean possession which is the basis for

title to land. 801 Possession is the exclusive occupation of land with powers to exclude

intruders. It may be argued that the successor does not have exclusive possession

because the other family members have possession as well. However the parameters

for determining the exclusiveness of possession are not the actual occupation but the

powers of control and management which include the ability to institute legal

proceedings against intruders. These are the prerogatives of the successor, 802 and

although other members of the family could institute legal proceedings to protect the

family land, this is only when the successor neglects or fails to do so. 803 Hence the

requirement of occupation favours the successor against the other family members.

Section 10 of the land registration Decree No. 76-165 of 27 April 1976 is against the

trustees of an inheritance obtaining land certificates in their names, but this has not

prevented such occurrences. 804

The concept of personally acquired property runs into difficulties in the

African context due to the role played by families in bringing up its members.

Accordingly there are people who argue that the concept does not exist at all, since

without the assistance of the family the person would have had nothing to call his

own. The point was however made in the Ghanaian case of Larbi v. Cato 805 that:

“While it [the support] places upon them certain recognised moral

obligations towards the family it does not stamp with the mark of the
family everything that they afterwards acquire by their own efforts,
whether as lawyers, doctors or merchants or by activity in other fields. If

801
See Harpun, C, Bridge, S & Dixon, M, Megarry & Wade: The Law of Real Property, London,
Sweet & Maxwell, 2008, 89.
802
See Mahmudu v. Zenuah (1934) 2 W.A.C.A. 172; Kwan Nyieni (1959) G.L.R. 67; Adagun v.
Fagbola (1932) 11 N.L.R. 110; Bassey v. Cobham (1924) 5 N.L.R. 92; Uwana v. Ewa (1925) 5 N.L.R.
25.
803
See Mahmudu v. Zenuah (1934) 2 W.A.C.A. 172;
804
This as we saw was one of the points of contention in Chibikom No.1 (above).
805
[1960] Ghana Law Report, 146.

215
 the contrary were the correct view there is hardly a person of distinction in
the country who could claim to possess anything that he could call his own,
and much of the body of the customary law on the disposal and inheritance
of self-acquired property would be cast away, which is the reductio ad
absurdum of the whole argument.”

Self-acquired property however maintains that status in the lifetime of the owner and

when he dies testate bequeathing the said property to the beneficiaries individually. 806

When he dies intestate a presumption arises in favour of family property. 807 The

absolute right which he had over the property in his lifetime is in recognition of his

effort and this comes to an end on his death intestate.

Family property created out of privately acquired property must not be

confused with the family property already discussed, which the deceased must have

held on behalf of his immediate or extended family. Both are of course family

property but subject to different rules of devolution. The first category of family

property devolves to the members of the sub family while that in the second category

is limited to the immediate and possibly extended families. 808

Hence the circle of successors for family property of the second category is

wider as it is not limited to members of the sub-family generated by the deceased. In

Joseph Bamu v. Emmanuel Bamu 809 , the respondent was made successor to the estate

of his deceased father who was also in possession of land obtained from the family

when his own father died. The respondent purported to treat the family property as

being part of the succession but was met with opposition from members of his father’s

806
See Stella Nunga v. Clara Kumbongsi Cameroon Common Law Reports, Part 5, 189.
807
See Adeyeye v. Adewoyin (1963) 1 All N. L. R. 421.
808
Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur. Pol.
Ind. Coop. 639-662, 646.
809
(1990) Appeal No. BCA/65/86 (unreported)

216
immediate family who argued successfully that his succession did not include the land

obtained from the family.

Another problem is in the distinction between family properties of both

categories. Successors have a tendency to use resources from family property to

develop, or set up their own property, so that when they die their own successors find

it difficult distinguishing between the two categories of property. The solution to this

problem could lie in the direction of a requirement that letters of administration must

be obtained by every person appointed successor and that each grant of administration

should apart from detailing the particular properties in respect of which administration
810
is granted, include projections on envisaged development of the property. These

would enable the identification of accretions to the estate which would otherwise be

claimed by the successor as private property. In Bodylawson v. Bodylawson, 811 the

plaintiff was estopped from excluding other beneficiaries from obtaining rents from

family property on the ground that it was the private property of his deceased father.

The father had carried on renovation works on the buildings and replaced buildings

consumed by fire with new ones. Similarly in Peter Charles v. Chinkwo Fidelis 812 the

plaintiff failed in his bid to exclude the other family members from enjoying proceeds

of part of family property on the ground that it was property which his deceased father

had redeemed from a pledge.

810
See Order 48 Rule 11 of the Supreme Court (Civil Procedure) Rules, Cap. 211 of the 1948 Laws of
Nigeria.
811
(2006) Suit No. HCF/PROB/AE105/04-05/1M/05 (unreported).
812
(2003) Suit No.HCB/PD/LA.36M/99-2000 (unreported).

217
 4.8.4: DISTRIBUTION OF THE ASSETS

At the end of the administration the successor is expected to distribute the

property. Movable property as we said is distributed shortly after the funeral.813 Every

member without distinction of sex receives something even if the entitlements are not

equal. The share of the property which each person receives is a function of the

responsibilities entrusted on him by the family meeting. 814

It is common practice in all the tribes for the female relatives to receive the

items of adornment of a deceased female, while things such as kitchen utensils go

primarily to the successor for the use of his wife. In the case of a deceased male it

would only be expected that his sons get his items of clothing as well as the utensils

of his trade because generally a son should take over the father’s trade. In Ajong v.

Ajong, 815 the deceased had no son but was survived by daughters and two nephews

who were the parties in this case. He left property including palm and raffia trees

which the customary court shared between the nephews. In the present appeal one of

the nephews claimed to be solely entitled, but the appellate court upheld the partition

and stated the law regarding the distribution of such property as follows: “The

Widikum Customary Court [law?] is grounded on patrilineal succession. The question

of palm trees and raffia mats is a male affair and that is why apparently, none of the

… three daughters are interested in the matter.” 816 Items of furniture are also shared

and in most of the cases the successor gets most, if not all of it. 817

813
Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26 Rev. Jur. Pol.
Ind. Coop. 639-662, 649.
814
See Youego, Ch., “Sources et Evolution de Droit des Succession au Cameroun,” Doctorat thesis,
university of Paris II, 1994, 623.
815
(2000)1 CCLR. 67.
816
Ibid, 70.
817
See Guy Bertrand, Momo, Le Partage des successions en droit Camerounais, University of Dschang,
Maitrise dissertation, 1997, 45-48 (unpublished).

218
 The distribution of land is not countenanced 818 unless there is proof that the

beneficiaries can no longer live together as a family because of squabbles borne of the

fact that the successor is depriving the others of their rights in the use and enjoyment

of the property. Distribution proceedings could be initiated through the successor 819

and when he refuses, through a court order. When consensual, the distribution is

normally conducted by the traditional council upon application by the family. The

Council visits the locus in quo in order to ascertain the extent of the property and

determine how to allocate the shares. In the absence of agreement an application

could be made to the Customary Court to order the partition. The decision to partition

is generally followed by wide publicity requiring the presence or representation of all

the beneficiaries.

Distribution operates on the basis of the hotchpot principle according to

which every member must account for and bring into the hotchpot any family

property in their possession. This must however be distinguished from outright gifts

of property made by deceased in his lifetime to members of his family. It would

appear that gifts of property made in conformity with accepted procedure do not come

into the hotchpot. In Geh v. Geh 820 Taminang, J, excluded a gift from an inventory by

quoting the statement by Ollennu that “A most essential [?] of customary law

regarding either gifts inter vivos or testamentary is that it should be made in

unambiguous terms and must have the widest possible publicity, in other words

customary law does not favour gifts made clandestinely.” 821 Secondly, all the

818
Youego, ibid, 623.
819
Binet, Jacques, “La decvolution successorale chez les Douala du Cameroun”, (1955) 65 Penant, 33-
40, 36, 40.
820
(2006) HCB/PD/LA/243M/04-05 (unreported) Also in Arrêt Mpempele, the deceased made an inter
vivos gift of a house to one of his son. When he died the other five children questioned the validity of
the gift in order to have the house brought back into the succession and partitioned. It was held by the
Supreme Court that the gift was valid and could not be set aside. Cour Suprême Arrêt No. 47/L du 21
Fevrier 1980.
821
The Law of Testate and Intestate Succession in Ghana, supra, 228.

219
beneficiaries are treated alike and finally the eldest of the beneficiaries has the priority

of choice after the property has been broken down into portions. 822

Distribution is per capita or per stirpes known in French law respectively as

partage par tête and partage par souche. The various tribes in Cameroon have

appellations that relate to either method. The Bassossi for example will talk of Nlue,

meaning head, when referring to the per capita method, and Abum, meaning womb

when referring to the per stirpes method. 823 The choice seems to depend more on the

nature of the family. The per capita method is good for the estate of a woman as well

as that of a man survived by one wife or who had children only by one wife. 824 The

per stirpes method is suitable where the deceased is survived by children from more

than one wife.

The per stirpes method could be stigmatised for being repugnant to natural

justice, equity and good conscience where there is inequality between the number of

children of each wife or where some of them have no children. This notwithstanding,

it appears to be universally followed where there is no objection to its use. Its

application was in fact solicited in Affaire Tengou Emmanuel. 825 The deceased was

survived by children from two wives and one illegitimate child and the property was

accordingly divided into three shares, even though one of the widows had six children

and another had three. Also in Ambo v. Angah 826 the deceased was survived by two

widows with issue from both marriages. Letters of Administration were granted to

one of the widows and constant bickering led the other widow to institute an action

for a revocation of the letters. The court opted for distribution because due to “the

unsavoury and uncomfortable relationship of the plaintiff and defendant which

822
See Richardo v. Abal (1926) 7 N. L. R. 58.
823
The Yorubas call them Ori Ojori and Idi-Igi respectively.
824
See James, Modern Land Law of Nigeria, supra, 159.
825
Cour d’ Appel Bafoussam, Arrêt No.19/C du 26 Janvier, 1995 (unreported)
826
(2006) Suit No. C.A.S.W.P/23/2004 (unreported).

220
undoubtedly smacks of bad blood… it is[was] in the interest of the parties to share the

above named property between them.” The property was divided between the

branches irrespective of differences in the number of children. The method was

proposed by the Fon of Mankon in the Chibikom case when the successor demanded

partition on the ground that her life was at stake if she continued as successor. In the

final communiqué from the palace the property was divided in accordance with the

number of wives and the oldest child of each wife advised to apply for letters of

administration.

That the method is applicable to cases of multiple wives with children is only

a presumption which could be rebutted by evidence showing that the family prefers

the per capita method, or that the customary law actually prescribes the latter method

because the allocation of responsibilities during the funeral was also per capita. 827

The family has the discretion to decide whether or not use the per stirpes method. In

the Ghanaian case of Siaw v. Sorlor 828 Ollennu J. said: “Although that may be the

general custom, that is sharing per stirpes according to mothers, there is discretion in

the family to share per capita if in their opinion the sharing according to the number

of mothers will work hardship, or would be against natural justice, equity and good

conscience.” The per capita method was adopted in La Succession Doualla Joseph 829

where the deceased was survived by ten children unevenly divided between three

widows.

The decision to adopt either method must be made expeditiously and not

dictated by envisaged economic benefit. In Akerele v Balogun 830 it was held that a

827
James, supra, 159.
828
(1960) G. L. R. 77, 79.
829
Tribunal de Premier Degré Bafoussam, Jugement No. 232 ?c du 5 Mai 1988 (unreported)
830
(1964) L. L. R. 99.

221
member who has accepted a benefit under one method of distribution cannot later

demand that the rest of the estate be distributed by the other method.

Distribution in customary law does not change the family character of the

land. True the beneficiaries might register the lands thus obtained in their personal

names, but because they receive the shares as family heads, the interests of the other

persons must be recorded and protected in the land register. This is possible under

section 16(1)(b) of land registration Decree No. 76-165 of 27 April 1976, according to

which when an application is made for registration “any interested party may

intervene with an application for registration in the event of a claim being based on

the existence of a real right or of an encumbrance liable to be entered in the certificate

under preparation.” Hence any alienation of the land is subject to these interests.

Conclusion
It is evident from the foregoing that the customary law of succession accounts

for most the succession woes in this country. The need to keep property in the family

based on a land tenure system which has long outlived it usefulness is used to justify

the exclusion of women from succession. Administration is indefinite and distribution

is only symbolic since at the end of the day the property still remains in the family.

Children are also seen to be at the mercy of care-takers who qua successors have a

tendency to using the property for their benefits and for that of their immediate

families.

By failing to adopt the broad based category of beneficiaries put forward by

Ollennu customary law fails in the position as the received laws. It adopts the system

of succession to the nearest and so excludes persons who had depended on the

deceased for their maintenance. The effect of such exclusion is at least reduced in

222
English law because of the existence of the Inheritance (Provision for Family and

Dependants) Act 1975. No such facility exists in customary law and the end result has

been that successors cannot have peaceful enjoyment of the property. Either there is

physical intervention or threats of witchcraft.

Since this ends the examination of the different systems of intestacy, we are

able to assert that neither of them meets the objectives of a good succession law set

out at the beginning of this work. The principle of precedence reduces the categories

of beneficiaries and so it is difficult to say that the law actually ensures the continuity

of the obligation of maintenance which the deceased had towards certain members of

his family. This is only done as far as the members of the nuclear family are

concerned but the duty of maintenance does not end here, as a person has the duty to

maintain his parents and other needy members of the family.

Neither system has a satisfactory system of administration, given that this is

generally indefinite and prolonged administration is what gives rise to abuse. With the

exception of English law, distribution gives rise to the right of use only. The situation

is exacerbated by the absence in Cameroon of a social security scheme that could take

care of vulnerable persons.

223
 CHAPTER FIVE: THE CONFLICT OF LAWS

Introduction.

With three different systems of intestate succession, each of which has

different substantive rules, administered by a parallel system of modern and

customary law courts, a study of the rules of conflicts is only normal in a study of this

nature. The usual type of conflicts will normally be internal conflicts, which arise

when persons in a territory having different systems of private law enter into judicial

relations. 831 Conflicts of this category will be expected between different systems of

customary law inter se and between the received and customary law.

The rules for resolving internal conflicts differ from the rules of private

international law, which since the decision in Ghamson v. Wobill, 832 were held not be

applicable in the resolution of internal conflicts. Rules of private international law are

evolved to resolve conflicts between different legal systems operating in different

territories and are therefore unsuited to the problems of internal conflicts. This

statement would need qualification in the case of Cameroon where no local rules exist

to govern conflict between the common law and civil law.

The variegated nature of the conflicts therefore makes the existence of

uniform rules impossible and so to better understand the rules, we propose to examine

them within the different courts, after explaining the central position of the personal

law in succession matters.

5.1: PERSONAL LAW: THE LAW GOVERNING SUCCESSION.

Succession like other matters of personal status is governed by the personal

law of the deceased. Personal law is acquired by birth or descent. It is based on the

831
See Bartholomew, G.W., “Private Interpersonal Law” [1952]1I&CLQ, 325-344,325.
832
(1947) 12 W.A.C.A. 181.

224
conception of man as a social being, so that those transactions of his daily life which

affect him personally, such as marriage, divorce, legitimacy, many kinds of capacity

and succession may be governed universally by the law deemed most suitable and

adequate for the purpose. 833 The law acquired by birth or descent could be replaced

by codified law if the code supplants all other laws. Our law of succession is yet to be

codified, and so what constitutes the personal law will certainly vary, depending on

whether the deceased was subject to the customary or received law.

When the conflict is internal the personal law governs the devolution of all the

property without distinction between movable and immovable property. When the

conflict is external the rules subject movable property to the personal law of the

deceased and immovable property to law of the situs. 834 The submission of

immovables to the law of the place rather than the personal law of the deceased is

explained by the desire by states to protect their sovereignties. 835 This distinction is of

course unknown in internal conflicts which because they arise within the same

territory do not involve any concerns as to the protection the sovereignty. 836

Even in private international law the movable/immovable dichotomy has been

criticised for encouraging the fragmentation of the property of the deceased and

thereby ignoring his intentions, which would certainly not have been for the property

to be divided up and subjected to different laws. 837 The argument about protecting the

sovereignty is today questioned by scholars who contend that the protection of

sovereignty is the domain of public international law. Private international law being

833
See Graveson, R.H., Conflict of Laws, London, Sweet & Maxwell, 1974, 188.
834
See David McClean, Morris: The Conflict of Laws, London, Sweet &Maxwell, 2000, 379,
835
See Freke v. Lord Carbery (1873) L. R. 16 Eq. 461, 466, cited by J.H.C. Morris, “Intestate
Succession to Land in the Conflict of Laws” (1969) 85 L.Q.R., pp. 339-371 at 342;
836
See Bouckaert, F. “Les Regles de Conflit de Lois en Afrique Noire”, (1967) 77 Penant, 1-12, 4.
837
See generally J.H.C. Morris, “Intestate Succession to Land in the Conflict of Laws” (1969) 85
L.Q.R., pp. 339-371; Clarkson , C. M.V.,and Jonathan, Hill, The conflict of Laws, Oxford, Oxford
University Press, 2006, 453.

225
a species of private law ought to be preoccupied with finding fair and just solutions to

meet the legitimate aspirations of parties in dispute. 838

These criticisms favour the application of the personal law of the deceased in

the devolution of all of his property irrespective of the nature of conflict. In this

respect the Hague Conference on Private International Law of 1988 adopted a draft

Convention on the law applicable to succession. The Convention proposed the

adoption of the personal law in the devolution of movable and immovable property.

This is still to be as law in France and Great Britain. 839

5.2: CONFLICT OF LAWS IN CUSTOMARY COURTS

What is personal law in the customary courts? Being the law acquired by

birth or descent the personal law of persons subject to the jurisdiction of these courts

cannot but be customary law. Normally the persons would be born to a tribe which is

either patrilineal or matrilineal or must have been born of Muslim parents. 840 The

question of conflict does not arise if a person lived, married and died in his or her

place of origin. Conflicts are however made possible because of the disappearance of

rigid geographical divisions between tribes, intermarriages, and the corresponding

growth of mobility among the population, for various economic and social reasons.

When a settler dies in the tribe where he resides, and neither the received nor local

statutory law is applicable, the local customary court has jurisdiction and has to

decide on the applicable law. Would it be the law of the locality or the personal law of

the deceased?

838
Ibid. For a detailed analysis of the objectives of choice of law rules in private international law, See
Jaffey, A. J. E., “The foundations of rules for the choice of law”, in Fentiman, Richard (ed), Conflict
of Laws, Singapore, Dartmouth, 1996, 368-392.
839
Moves with similar objectives have been engaged in the European Union since 2002 and it is
proposed when they go operational they shall bind non-EU states also. See Clarkson , C. M.V.,and
Jonathan, Hill, The conflict of Laws, Oxford, Oxford University Press, 2006, 445.
840
The particular case of conflict involving Muslim law will considered separately.

226
5.2.1: REGULATION OF CONFLICT BETWEEN DIFFERENT SYSTEMS OF
CUSTOMARY LAW IN ANGLOPHONE CAMEROON

There are no specific rules for the resolution of conflicts of this nature, but it is

thought that these could be resolved in reliance on the principles governing the laws

to be applied by these courts. To think otherwise would mean that each system

evolves its own rules of conflict, an option rejected by Bennion because it might

result in inconsistent rules. 841 It is not only a question of inconsistency, but also one

of the predictability and certainty of the law in a society with a multiplicity of tribal

laws.

The application of customary law is purportedly governed by Law No. 79-4 of

29 June 1979 attaching the Customary and Alkali Courts to the Ministry of Justice 842

and the Customary Courts Ordinance of 1948. The former, which fortunately does not

abrogate the latter, provides without more in article 2 that “The Customary and Alkali

Courts apply customs of the parties which are not contrary to law and public policy.”

The provision is drawn from section 51 of a French Decree of 1927 organising the

traditional jurisdictions in Francophone Cameroon. But it is inadequate in the case of

succession which is governed by the personal law of the deceased and not of the

parties. True, the parties could have the same personal as the deceased, but this cannot

always be assumed. Hence that provision is complemented in Francophone Cameroon

with article 3(1) (b) of Decree No. 69/DF/544 of 19 December 1969 governing

traditional law jurisdictions in that part of the country, which provides that the custom

of the deceased prevails whenever it conflicts with that of the parties. This Decree is

841
Bennion, F.A.R., The Constitutional law of Ghana, London, Butterworths, 1962, 446.
842
Prior to this law the courts were unlike their Francophone counterparts placed under the Ministry of
Territorial Administration.

227
not applicable in Anglophone Cameroon and this renders inappropriate the

application of the 1979 Law therein.

This leaves the Customary Courts Ordinance of 1948, section 18(1) of which

ordains the administration of the “the native law and custom prevailing in the area of

jurisdiction of the court or the law binding between the parties…” What constitutes

the “prevailing custom” was considered in R v. Ilorin Native Court 843 where

“prevailing” customs were construed to signify “predominant” customs. This

generated some debate as to the significance of the term “predominant.” To Park, it

signifies the law of the majority tribe. 844 This position would entail assimilating the

laws of the minority tribes in the area to those of the majority tribe.

Professor Allott, on the other hand, is of the opinion that the term “does not

refer to the majority-tribe or to the native customary laws actually found in the area

but to the single predominant system of law.” 845 This seems to be a better view since

construing the expression in terms of tribes would imply the non-applicability of

Muslim law. 846 The interpretation also eliminates the fear of foisting the law of the

majority tribe on the other tribes in the locality.

In succession the predominant law of a locality is also the personal law of the

deceased if he was a native of the locality. Otherwise, the second option- “the law

binding between the parties” becomes the applicable. The point was made by West

African Court of Appeal in the Ghanaian case of Ghamson v. Wobill 847 , accepted as

authority in West Africa that “the law binding the parties” is the personal law of the

deceased.

843
(1953) 20 N.L.R. 144.
844
Park, The Sources of Nigerian Law, 117
845
Antony Allott, Essays in African Law: with special reference to the law of Ghana, London,
Butterworth, 1960, p 160.
846
Which was in issue in R v. Ilorin Native Court.
847
(1947)12 W.A.C.A.181.

228
 The view according to which personal law is immutable and follows the

person wherever he goes 848 therefore seems stronger in customary law. As a general

rule a person cannot shed one customary law in favour of another. 849 Migration and

settlement in a different locality have been advanced and rejected as possible factors

of change. The point was raised in the Yinusa case, 850 where it was argued that

because the propositus resided and died in a place different from his tribe of origin,

his estate was subject to the customary law of his place of residence. The contention

was rejected and it was held that “The mere settlement in a place, unless it has been

for such a long time that the settler and his descendants have merged with the natives

of the place of settlement and have adopted their ways of life and customs, would not

render the deceased or his descendants subject to the native law and custom of the

place of settlement.”

Whether a person has converted to the personal law of the place of residence

is in fact not easy to prove. In Cameroon most settlers purport to be part of the local

community and yet belong to tribal unions representing the various settler

populations. When a settler dies his remains are conveyed to his home for burial.

Hence conversion cannot be conclusive proof of an intention by the deceased to

change his customary law, often the convert is influence by some gain that such

conversion would bring without the intention to become part of the community. 851

848
See Lush, L.J. in In re Goodman’s Trust (1881) Ch. D. 266, 278; Arret du 22 Mai 1905, Cour de
Cassation (1905) 1 Penant, 205; Arret du 18 Octobre,1950, Cour de Cassation (1952) 1 Penant, 123.
(Both French cases are cited by Youego, Ch., “Sources et Evolution de Droit des Succession aux
Cameroun,” Doctorat thesis, university of Paris II, 1994, 201-202.
849
See Omidire, Kolapo, “Change of personal law under customary law in Nigeria”, (1990) 39 I&CLQ,
671-675, 673.
850
Yinusa v Adesubokan, reported in [1970] J.A.L. 56-67, 58.
851
See Bartholomew, G. W., “Private Interpersonal Law”, (1952)1 I. & C. L. Q, 325-344, 343.

229
 Not even marriage has such an effect on women in spite of contentions that

upon marriage a woman becomes the husband’s property. She always conserves her

personal law which governs the devolution of her ante-nuptial property when she dies.

Exception is made to the general rule, if the personal law of the deceased has

not been sufficiently established. 852 In Ekem v. Nerba 853 , another Ghanaian case, the

deceased intestate was a Nigerian resident in Cape Coast (Ghana), where he married

two wives of the Fanti tribe. The present dispute opposed a daughter of the deceased

who claimed a share of the estate and the widow who claimed that the property in

question had been jointly acquired by her and the deceased husband. The argument on

joint ownership was rejected and question became whether the Fanti law of

succession which is matrilineal and gives children no interest in their fathers’ property

or the personal law of the deceased would be applicable. The deceased had contracted

customary marriages which as we saw do not change the personal law and so the

question ought not to have arisen at all.854 The personal law of the deceased was held

to be applicable but the impossibility to establish this personal law led to application

of the law of the locality, which goes against the rule that migration does not change

the personal law. Verity C. J. justified the decision in the following terms:

“As it is, although it is common ground that the deceased Johnson was
a Nigerian it does not appear from the evidence to what part of Nigeria
he belonged, and there is nothing to show what would be the nature of
the law applicable, if some foreign law is binding between the
parties…” 855

852
Park, supra. 119.
853
(1947) 12 W.A.C.A. 258.
854
“It is necessary to mention that the deceased, Johnson, was a native of Nigeria, and that though he
was long resident in Cape Coast, it was not shown that he had lost his domicile of origin.” Ibid, 258.
855
p. 260.

230
 We take issue with this decision, as we are surprised that the appellate court

decided on the application of the law of the locality in spite of the fact that it excludes

the children. Even though there is nothing in the judgment to show that attempts were

made to prove the customary law of the deceased the court ought to have treated the

case as one for which there was no applicable rule of customary law. The lacuna, we

submit ought to have resulted in the court invoking the repugnancy doctrine to decide

on which law to apply. Certainly any law which excludes children from succession is

prima facie “repugnant to natural justice, equity and good conscience.” Whenever this

is established, English law ought to apply and not an alternative rule of customary

law, which in this case was the law of the locality. This was an appellate court with

competence to administer both the English and customary laws.

The law of the locality rule would be good in cases of inter vivos dealings in

land, because the parties whose personal laws differ from that of the locality entered

voluntarily into the transactions and are taken to have consented to the application of

the local law. 856 This will also be true of succession if the deceased was a native of

the locality, for those interested in the land would be local people subject to the local

customary law. 857

The foregoing are relevant in cases of intestacy and would be useful in cases

of testacy too, because the terms of a will would reflect the intention of deceased

which could differ from his personal law.

More would be said of wills elsewhere in this work, so we can only state here

that natives could make wills, written or nuncupative, in which dispositions could be

made which operate a change in the customary law that would otherwise have been

856
See Park, 119.
857
Bennion, F.A.R., The Constitutional law of Ghana, London, Butterworths, 1962, 448.

231
applied. Nuncupative or oral wills made by a person of sound mind in the presence of

responsible and disinterested witnesses 858 are generally accepted in customary law

and do not present any problem of applicable law.

5.2.2: REGULATION OF CONFLICT BETWEEN DIFFERENT SYSTEMS OF

CUSTOMARY LAW IN FANCOPHONE CAMEROON

Since 1921, a French colonial decree stipulated that traditional law

jurisdictions apply “exclusively the customs of the parties.” 859 This was reproduced in

article 51(1) of the Judicial Organisation Decree of 31 July 1927 which represents the

current position. These texts do not refer directly or even obliquely to the personal

law of the deceased. However, to understand the provision in the context of

succession it has to be read together with sub-section 2, currently article 3(1) (b) of

the Judicial Organisation Decree No. 69/DF/607 of 3 December 1969, according to

which: “In the case of conflict of customs, it is provided: For questions relative to

succession and testaments according to the custom of the deceased.” This means that

the conflict must be resolved in application of the customary law of the deceased.

In effect therefore, it is the personal law of the deceased which is applicable.

For the absence of conflict will mean that the parties have the same personal law with

the deceased. And the restriction on the ability to change from one customary law to

another is also applicable. So a person who migrates to a place where the customary

law differs from his own and even marries a woman of that tribe does not find his

status change as a result.

But if a situation as that in Ekem v. Nerba (discussed above) was to arise the

solution would certainly not be the law of the locality. One of the situations in which

858
See Oluyede, P.A., Nigerian Law of Conveyancing, Ibadan University Press, 1975, p.77.
859
Article 29, decree of 13 April 1921, (1923) II Penant, p.86.

232
the courts are allowed to administer the civil code is where the customary law is

found to be silent. 860

5.3: CONFLICT OF LAWS IN THE HIGH COURTS

What is personal in the High Courts? It is assumed that persons over whom

these courts are competent are those who, for one reason or the other are said to have

shed their customary statues. This is because while it is impossible to change from

one system of customary law to another, it is accepted that a person could change

from customary to modern law. Again, we refer to Bramford Griffith J. in Cole v.

Cole when he says:

“Where on the other hand, the matter before the court contains elements
foreign to native life, habit and custom, the court is not bound to observe
native law and custom.”

It is generally presumed that the personal law of the deceased changes if he

contracted a monogamous marriage or left a will in modern form or if the parties

renounce the jurisdiction of customary courts, as is possible in Francophone

Cameroon. The personal law then becomes English or French law for the purpose of

succession.

The existence of a local statutory law on the subject could supersede

customary law and become the personal law of the deceased, if the statute expressly

supplants customary law. But if the statute does not abolish customary law then it

only becomes applicable upon the existence of any of the events identified above.

860
See Betow Omar Charles v. Ngo Mbenoum Julienne, Arret No. 151 du 18 Juin 1968. The
competence of the courts to apply customary law has already been discussed in chapter 3.

233
Cameroon is yet to have a statutory law on succession and so the question does not

arise. 861

The point to make and which is the raison d’être of this inquiry is that English

or French law does not automatically become applicable on the mere existence of a

monogamous marriage or a will, because persons who stand to benefit if customary

law is applied would not concede to the change of personal law without a fight.

5.3.1: REGULATING CONFLICT BETWEEN ENGLISH AND CUSTOMARY

LAW.

Choice of law questions are fairly easy when the parties are natives, for

customary law is normally applicable, except its application is excluded for some

such reasons as repugnancy or incompatibility or the parties opted for the application

of English law. The principal cause for conflict between the customary and English

laws is the possibility for persons, natives and non-natives alike, to enter into

transactions unknown in customary law and this raises the question as to whether it is

the customary or English law which governs the transaction. The answer lies in

section 27(3) of the Southern Cameroon High Court Law, 1955 according to which:

“No party shall be entitled to claim the benefit of any native law or

custom, if it shall appear either from express contract or from the nature

of the transaction out of which any suit or question may have arisen, that

such party agreed that his obligation in connection with such transaction

should be regulated by English law or that such transactions are

unknown to native law and custom.”

Monogamous marriages and English Wills are examples of transactions said to be

unknown in customary law. Their mere existence prima facie subjects the deceased’s
861
There is of course a family code in the making and we will in chapter 7 consider whether it should
completely abrogate the customary law of succession.

234
his estate to English law. It is only prima facie because it could be argued that these

matters are not really unknown, given that their equivalents exist and differ from

English law only on points of formality.

Now, could the terms marriage and wills be construed as constituting

transactions in the proper meaning of the word, which signify an agreement on a

given subject between the parties present in court, and the legal consequences of

which are limited to them, except where on the basis of the doctrine of privity of

contracts third parties are said to derive benefits or liabilities under the contract.

Marriage is a contract and comes within the meaning of “transaction”, but only with

respect to inter-vivos incidents of marriage such as divorce. 862 As concerns the post-

mortem incidents the “transaction” is sui generis, because disputes in succession will

never involve the spouses inter se. If succession rights are enforceable at all, it is

because marriage works a transformation of the status of the spouses and creates

extensive legal consequences affecting not only them but their children and relatives

as well. 863

Wills on the other hand can never qualify as transactions. They are not even

unilateral contracts or contracts made for the benefit of a third party entitling the latter
864
to enforce them on the basis of privity. Wills are essentially unilateral acts of the

testator, of which the existence is generally unknown to the beneficiaries. But like all

gifts, wills expressly create enforceable rights on behalf of the beneficiaries.

862
A. B. Kasunmu, “Intestate Succession In Nigeria” (1964)1 N.L.J., pp.50-58, 56; Bennion, F.A.R.,
The Constitutional law of Ghana, London, Butterworths, 1962., 440-444; Park, supra, p.111.
863
J.W. Salacuse, “Birth, Death, and the Marriage Act: Some Problems in Conflict of Laws.” (1964)1
N.L.J., pp.59-72, 59.
864
Park, supra, p.111.

235
5.3.1.1: When a Native Contracts a Monogamous Marriage.

We saw earlier that the schedule to section 16 of the Customary Courts

Ordinance 1948 bars customary courts from exercising jurisdiction over the estate of

a person who contracts a Christian marriage. Judicial blessing for this position of the

law was given in the Nigerian case of Cole v. Cole. 865 John William Cole, a native of

Lagos had contracted a Christian marriage with the plaintiff, Mary J Cole in Sierra

Leone. The spouses later returned to Lagos where John William Cole died intestate

survived by his widow, son and brother. The action was initiated by the brother of the

deceased claiming to be declared sole successor and trustee for the son of the

deceased, excluding the widow. The trial court in application of customary law held

in his favour. The widow instituted the present appeal claiming that because they had

contracted a Christian marriage, English law should be applied to vest the estate in her

on behalf of their son, Alfred Cole. English law was held to be applicable because “a

Christian marriage clothes the parties to such marriage and their offspring with a

status unknown to native law.” 866 This has been described as the “inherent

incident” 867 theory according to which English law inexorably follows the celebration

of a Christian marriage.

Our choice of the term “monogamous marriage” instead of “Christian” or

“statutory” marriage” is because Christian marriages are unknown in Cameroon, 868

and the statute which governs marriages in Cameroon recognises monogamy and

polygamy. For the present purpose the term signifies the classical statutory marriage

defined as “a marriage which is recognised by the law of the place where it is

865
(1898) 1N.L.R. 15.
866
p.22
867
Salacuse, J.W., “Birth, Death, and the Marriage Act: Some Problems in Conflict of laws” (1964)1
N.L.J. 59-72, 60.
868
Generally the parties celebrate a civil marriage before going to the church for the blessing thereof,
and this might be immediately after the civil marriage or years after.

236
contracted as a voluntary union of one man and one woman to the exclusion of all

others during the continuance of the marriage.” 869 It is thus not the de facto

monogamous marriage in customary law which legally, is potentially polygamous,

since there is no commitment to the rule of “one man one wife.”

The tendency in Cameroon is to describe marriages celebrated under the Civil

Status Registration Ordinance No. 81-2 of 29 June 1981 as statutory. 870 This is

because section 49 provides that a marriage certificate must inter alia specify the form

of marriage chosen by the spouses and there is space in the marriage certificate for

this.

However, that a polygamous marriage is described as “statutory” because

celebrated under the above Ordinance does not alter the personal laws of the spouses
871
who remain subject to customary law. A marriage certificate for them serves as

proof of the marriage, and for workers, it gives access to such funds as family

allowances. 872 Upon dissolution by death the widow or widower would need it to

obtain probate for a will or apply for letters of administration.

One problem with which the courts have been confronted arises from the

additional requirement for spouses to specify the system of property rights. It is

common for the space reserved for this information to be left blank because most

often, the Registrar who does not know the significance of the requirement skips the

question. 873 Even when the question is posed, some responses raise problems relating

869
See section 3B of the Interpretation Ordinance (Colony and Protectorate) cap. 94 of the 1948 Laws
of Nigeria. Lord Penzance had in Hyde v. Hyde, (1866) L.R. &.D. 130 defined marriage in
Christendom as “the voluntary union for life of one man and one woman to the exclusion of all others.”
This definition has been superseded by events and can no longer be taken as representing the actual
position, given, for example, the proliferation of divorce which means that a marriage is not union for
life. For more on the shortcomings of the definition, see Poulter, Sebastian, “The definition of marriage
in English law.”[1979] 42 M.L.R. 407-429.
870
See Nana v. Nana (2005) Suit No. HCF/PROB/AE1/2001-2002 (unreported)
871
See Tufon v. Tufon Suit No. HCB/59/MC/83 (unreported).
872
See Ngwafor E. N. Family Law in Anglophone Cameroon, supra. 41.
873
See Ngwafor E. N. Family Law in Anglophone Cameroon, supra, 178.

237
to the applicable law. There are cases where the spouses chose monogamy as the form

of marriage and on the question of the system of property rights they state “according

to the native laws and customs” of the husband’s tribe.

What this means effectively is not clear. The phrase, said to represent the

system of property rights, is construed by some Judges as effectively signifying a

customary marriage. By implication spouses have opted for monogamy and

polygamy, a possibility rejected by Ekema, C.J. in Kumbongsi v. Kumbongsi: “A man

is either polygamously married or monogamously married but not the two forms

simultaneously.” 874 The impact of the construction however remains as a result of

which the courts have the discretion to decide which form of marriage to uphold. The

inclination is in favour the customary marriage, for according to Asu, J. in Tufon v.

Tufon 875 , “The inference is that what the parties stated as the marriage, i.e. Native

Laws and Customs of Kom people was what they intended. The insertion of the word

‘monogamy’ is therefore absurd.” 876

This contrasts sharply with the position adopted by courts in other countries

with similar problems. An example is the Southern Rhodesian case of Rex v.

Machingura 877 where the court upheld the Christian marriage on the ground that

because it is celebrated according to “civilised rites” it supersedes marriage celebrated

according to native law and custom. This would be avoided if the phrase were to be

taken for what it stands for, to wit, the system of property rights. True, it is

incompatible with monogamy but that is no reason for it to be taken out of context.

The most that the courts would have done should have been to ignore it, uphold the

874
Suit No. C.A.S.W.P/ 4/84 cited by Ngwafor E. N. Family Law in Anglophone Cameroon, supra, 42.
875
Suit No. HCB/59/MC/83, unreported but cited by Ngwafor E. N. Family Law in Anglophone
Cameroon, supra, 39. See also Kumbongsi v. Kumbongsi, Suit No. C.A.S.W.P/ 4/84, ibid; Lyonga v.
Lyonga, Suit No. C.A.S.W.P/CC/5/94 (Unreported)
876
Emphasis added.
877
(1932) S. R. 67.

238
type of marriage and presume the appropriate system of property rights, which is

separate property. There is no doubt that property arrangements on marriage are only

a consequence of the marriage 878 and can therefore, not override the marriage itself

and become determinant in the choice of law. Biblically marriage is not conceived in

terms of property as Genesis chapter 2 verse 24 ordains simply, “Therefore shall a

man leave his father and his mother, and shall cleave unto his wife, and they shall be

one flesh.” 879

Little wonder therefore that in Nana v. Nana, 880 Ngassa, J. expressly rejected

all previous decisions on the point: 881 “I deviate from the school of thought which

holds that once the above superfluous words appear on a marriage certificate it

renders the marriage customary and polygamous.” 882 This was a succession case in

which the marriage certificate bore “monogamy” as the form of marriage and the

phrase “according to the native laws and customs of the Bamileke people”, for the

system of property rights.

Another problem likely to raise choice of law questions relates to customary

marriages purportedly converted into monogamous marriages. Section 81 of the Civil

Status Registration Ordinance 1981 provides that “customary marriages shall be

recorded in the civil status registers of the place of birth or residence of one of the

spouses.” It seems doubtful, if this could amount to conversion, giving the marriage

validity independent of the previous customary marriage. It is conceded that the

process only serves to provide evidence for an existing customary marriage. 883

878
See Herring, Jonathan (ed) Family Law: Issues, Debates, Policy, London, William Publishers, 2001,
17.
879
Also in study on why people marry there is no indication that people marry for property. See
Herring, Jonathan, Family Law, London, Pearson Longman, 2007, 38.
880
(2005) Suit No. HCF/PROB/AE1/2001-2002 (unreported).
881
Tufon v. Tufon Suit No. HCB/59/MC/83 (unreported); Kumbongsi v. Kumbongsi, Suit No.
C.A.S.W.P/ 4/84(unreported); Lyonga v. Lyonga, Suit No. C.A.S.W.P/CC/5/94 (Unreported).
882
Emphasis added
883
See Ngwafor E. N. Family Law in Anglophone Cameroon, supra, 37.

239
However, nothing in the law prevents the spouses of a potentially polygamous

marriage from going through a fresh marriage ceremony which would effect changes

to their personal law if they choose monogamy and the appropriate system of property

rights.

Kumbongsi v. Kumbongsi 884 appears to have excluded the possibility for such

conversion. But it could hardly be conclusive on the point and is justified only on its

own facts. The plaintiff was already married with three wives under customary law.

For the purpose of obtaining family allowance, he decided with the respondent, the

first wife to have their marriage registered and as it was before the 1981 ordinance,

this could only be done through a court judgment. The court declaration resulted in a

marriage certificate containing the mention “monogamy with common property.”

This was subsequently disclaimed by the plaintiff and led to a decision of the Court of

Appeal ordering the rectification of the marriage certificate. This was only normal,

given that the plaintiff, already polygamously married could no longer change his

personal law. The decision would certainly not have been the same if he had been

only potentially polygamously married.

The “inherent incident” theory has been adopted in Cameroon in the oft-

quoted dictum of Epuli, J. in Nforba v. Nchari:

“Where a married Cameroon man or woman domiciled in Cameroon dies

intestate, the rule of succession applicable to his estate will depend on
whether the marriage was monogamous or polygamous. In the light of
section 15 as read with section 9(b) and section 27 of the Southern
Cameroon High Court Law 1955, as well as sections 3, 16 and 34 of
Ordinance No. 72/4 of 26th August 1972, as amended, on Judicial
Organisation, where the marriage was monogamous, the rules applicable
will be those in force in England and where the marriage was polygamous

884
Suit No. C.A.S.W.P/ 4/84(unreported).

240
 the rules would be those of the relevant native law and custom provided they
are not repugnant to natural justice, equity and good conscience would
apply.” [sic] 885

As noted above there are people who would reject the automatic application of

the rule in Cole v. Cole and advocate instead the application of rules of customary law

evolved for a similar situation. Rules of English law were developed in response to a

social and economic environment peculiar to England and have nothing in common

with Cameroon, except, perhaps for the fact that the spouses are monogamously

married. The rule is criticised for advocating an immediate and automatic application

of English law without regard to the socio-cultural differences between England and

African countries and for ignoring the intention of the parties who might not have

attained a stage of culture and development that should reasonably make them subject

to English law. Even if they had, contracting a Christian marriage might not

necessarily mean that they intended to divest themselves of their customary status.

Often a Christian marriage is only a concretisation of the spouses’ faith in

Christianity, with no effect on their general life style. They continue to live as

members of the extended African family and to assume their customary family

responsibilities. 886

Against the “inherent incident” theory, therefore, is posited the “manner of

life” 887 established in Asiata v. Goncallo. 888 The spouses of Muslim backgrounds met

in Brazil due to slavery where they contracted a Christian marriage. They returned to

Nigeria and the man took other wives under Muslim law without objection from the

wife by Christian marriage, and later died intestate. Asiata, the plaintiff in this case

885
1999 G. L. R. 89, 63.
886
See H. F. Morris, “Attitudes Towards Succession Law in Nigeria During the Colonial Period”
[1970] J.A.L., pp.5-16, 12
887
Another coinage of Salacuse, supra
888
(1900) N.L.R. 41

241
was the issue of one of the Muslim marriages and sought to recover possession of a

piece of land that belonged to the deceased.

The question was whether as the issue of a customary marriage coming after a

Christian marriage, she had the locus standi to institute the action. It was held on the

basis of the “inherent incident” theory that she lacked the capacity to institute the

action. But the decision was reversed at appeal on the ground that in spite of the

Christian marriage deceased lived and died as a Muslim.

The “manner of life” theory waters down the rigours of the “inherent incident”

theory by reducing the rule in Cole v. Cole to having only established a presumption

that by celebrating a monogamous marriage the spouses intended the application of

English law. 889 Customary law continues to be applicable unless by the express

intention of the parties contained in a will 890 or by their “manner of life”, it is evident

that they intended English and not customary law to govern the post-mortem effects

of their marriage.

In Ajayi v. White 891 it was suggested that the two theories could be applied to

the estate of a deceased couple. The property in dispute in this case was that of the

wife a deceased pastor. There was evidence that the parties had treated the property in

question as family property. And rather than base the application of customary law on

this fact, Baker, A.C.J., delivering the judgment of the court said:

“The original owner was no doubt the wife of an educated man but it is
very doubtful whether she was literate or knew anything about the

889
The point was made by Van Der Meulen, J. in Smith v. Smith (1924) N.L.R. 107: “The fact that a
man has contracted a marriage in accordance with the rites of the Christian church may be very strong
evidence of his desire and intention to have his life generally regulated by English law and customs ,
but it is by no means conclusive evidence. In my opinion the question as to what law it is equitable to
apply in any given case can only be decided after examination of al the circumstances of the case”. See
also Petrides J in Haastrup v. Coker (1927) 8 N.L.R. 68, 70.
890
See Smith v. Smith (1924) N.L.R. 105, and Ajayi v. White (1946) 18 N. L. R. 41
891
(1946) 18 N.L.R. 4.1

242
 English law of succession; if she had done so it is more than probable
that she would have made a will.”

It follows that the devolution of the husband’s property would have been submitted to

English law if his manner of life was different. We can only suppose that their

Lordships felt in any case that the spouses must have gone in for the regime of

separate property. If that is the basis then the decision would run into difficulties

being applied today, given the gradual disappearance of the system of separate

property in favour of community of property.892

Another novel situation arose in Haastrup v. Coker. 893 The deceased contracted

a Christian marriage but later took fifty more wives after succeeding his father as

chief, not because he wanted to but because custom so demanded. Some, he married

under customary law and others he took under widow inheritance. In this action the

plaintiff, an issue of one of the customary marriages sought, on behalf of all the

children, to set aside a sale of family land by one of the issue of the Christian

marriage to the defendant. English law was held to apply whereby the plaintiff was

held not to have the capacity to sue in the name of the Haastrup family, since he was

an issue of a customary union. The argument that the “manner of life” theory ought to

apply because there was no proof that the deceased and his wife were professing

Christians was jettisoned.

This was a case in which the spouses lived a “palace life” in accordance with

custom and the “manner of life” theory ought normally to have applied. The decision

could be defended on one point not raised in the judgment, that the deceased did not

take more wives on his volition, he was compelled by custom to do so, and this

distinguishes the case from Asiata v. Goncallo. Hence even though living “a palace
892
See Simon Tabe Tabe, “Property adjustment after divorce in Cameroonian statutory law:
Rapprochement of the common and civil law systems?”, 2 RADIC (2002), 703-717, 711.
893
(1927) 8 N.L.R. 68.

243
life” he remained committed to his Christian marriage, and according to Sagay, “the

prior monogamous marriage had, however, taken the distribution of the Oba’s

property from customary law into English law.” 894

From the foregoing it becomes questionable whether the “inherent incident”

theory espoused by Epuli, J 895 is appropriate for Cameroon. The celebration of a

Christian marriage might as noted above only be intended to strengthen the faith of

the spouses, rather than to divest them of their customary statuses and subject the

devolution of their property to English law. 896 Cameroon is a country where many

people go to church on Sunday mornings and in the evenings,897 dressed in traditional

regalia, are participating in cultural activities.

Perhaps therefore the easiest way to assume the automatic application of

English law is if the deceased left an English Will rather than if he contracted a

monogamous marriage.

5.3.1.2. The Existence of a Will in English form

Since the Nigerian case of Apatira v. Akande 898 it was established that a native

could make a will in English form. English wills must not only be in writing, they

have to conform to certain strict formalities concerning signature and witnessing of

the will. 899 When these formalities are complied with, then by all intents and purposes

English law of testacy is applicable.

894
Sagay, Itse, “Widow Inheritance Versus Monogamous Marriages: The Obas’ Dilemma,” (1974)
JAL 168-172, 171.
895
Nkengong, John Monie adopted a similar position “The Development of the Laws and Constitutions
of Cameroon” Ph. D Thesis, University of London, 1970, 788, (unpublished).
896
John Anthony Howard, “Customary Law of Marriage and Succession among the Kom of
Cameroon”, Ph. D. thesis, University of London, 1972, 333,(unpublished). See also Allott, A. N.,
Essays in African Law: With special reference to the law of Ghana, London, Butterworth, 1960, 219.
897
Sunday evening are generally set aside by tribal and cultural groups to hold their meetings.
898
(1944)17 N.L.R 149.
899
See section 9 Wills Act 1837.

244
 The attitude of the courts suggests that a native who translates his will into

writing must always have had English law in contemplation with the effect that non-

respect of the formalities brings in English rules of intestacy. 900 And so the courts fail

to consider whether a will not admissible to probate because it fails to conform to the

formality could be admitted as a customary will subject to customary law. 901

But in Teke v. Teke 902 the Bamenda Court of Appeal upheld a customary

will. Generally the courts are diffident to do so when an estate comprises commercial

assets, bank accounts, pension benefit and any other assets which require a High

Court grant before they can be assembled for distribution. The will must be proved in

the normal way or if it fails letters of administration are granted as if the deceased had

died intestate. 903 No such assets were involved in this case and that is why the appeal

emanated directly from the customary court without transiting through the High Court

responsible for probate and letters of administration.

Conclusively, the High Courts when confronted with a matter between natives

and the choice is between English and customary law, customary law should be the

first option, unless as result of the manner of life or the existence of a will in English

form, English law is seen as being most likely to meet the reasonable expectations of

the deceased. And we want to think that the deceased would have been averse to

900
See the Bamenda Court of Appeal Judgment in Marianne Bongyilla Ntoh v. Che Peter Suit
No.BCA/48/2003(unreported). Pauline Mbonjoh v. Peter Ngabi Eyoh (2005) Suit No.
HCK/AE/K.19/02-05 (unreported).
901
See Tantoh v. Tantoh where a deceased polygamist made a will which was not admitted to probate
because though signed by the testator it was not attested by witnesses. The will was set rejected for
failing to comply with section 9 of the Wills Act of 1837 in spite of the argument that it could be
admitted as evidence of the testamentary intention of its maker. See also the Nigerian case of
Onwudinjoh v. Onwudinjoh(1957)11 E.R.L.R. 1, the court refused to countenance a will not
complying with the Wills Act without even discussing any possibility of its alternative validity under
customary law.
902
(2005) 2C.C.L.R.40.
903
See Harvey, \Brian, The law and Practice of Nigerian Wills, Probate and Succession, London, Sweet
& Maxwell, 1968, 43

245
having persons who depended on him in his lifetime being left out his succession.

5.3.2: THE REGULATION OF CONFLICTS BETWEEN FRENCH AND

CUSTOMARY LAW.

Since the extension of High Courts to Francophone Cameroon pursuant to the

1972 judicial reforms, jurisdiction was assumed for the first time in the 1996 Affaire

Fokam Kamga 904 decided by the High Court of Mifi Division. It was a bold step for

the courts to assume jurisdiction in matters not classified as “conflit mixte,” being

cases involving persons, one of whom is subject to customary law and another to

French law.

In 1948 the French Minister of Overseas Territories had issued a declaration

that “in a case of conflict between the normal legal system of the French common law

and a local legal system, it is the former which must necessarily win.” 905 Luchaire

also wrote that “French law being that of the state prevails over local law; it also

prevails because it constitutes the common law, while the local status is a status of

exception.” 906

In affair Kouoh the Supreme Court of East Cameroon held: “In the case of

internal conflict in interpersonal matters between the common law or written law

status governed by the local Civil Code on the one hand, and customary status on the

other, it is a general rule that in mixed causes, the first prevails over the second and

becomes the law of the parties.” 907 The deceased, subject to the Douala customary

904
See Moïse, Timtchueng, (1998) 34 Juridis Périodique, pp. 43-47, 45.
905
Cited by R.D. Kollewijn “Conflicts of Western and Non-Western Law” in Alison Dundes Renteln
and Alan Dundes (ed), Folk Law, Volume 1, The university of Wisconsin Press, 1995, pp. 775-793 at
781.
906
Gonidec, Les Droits Africains , p.267.
907
“S’agissant en l’espèce d’un conflit de droit interne, en matière interpersonal entre statut personnel
dit de droit commun ou encore de droit écrit regime par le Code Civil local, d’une part, et statut
coutumier d’autre part, il est de règle que dans les rapports mixtes, le premier l’emporte sur le second

246
law was married to a Senegalese woman who had French citizenship. In the present

action pitting the widow against the children of a previous marriage, the latter asked

for the application of customary law of succession while the widow demanded the

application of French law. The Court held French law applicable on the ground that

the “widow acquired the right to succeed, not from the relationship of origin with the

deceased, but from the marriage that united her with Kouoh.” 908

French law thus becomes the personal law of the deceased if he contracted a

civil marriage, as ordained in a 1929 decision of the French Cour de Cassation

according to which the spouse of local status “by appearing before the civil status

registrar had submitted himself to French law,” and that “the union pronounced in the

name of French law entails necessarily all the consequences that the common law 909

attach to it.” 910 Hence in Baba Iyayi v. Hadja Aminatou 911 the Supreme Court

confirmed the decision of the trial courts which applied Moslem law on the ground

that the deceased had not contracted a civil marriage. 912

et fait la loi des parties.” Affaire Kouoh, C.S.C.O., Arrêt No. 29 du 23 Avril, 1963, Bull. P.293 (Cours
Suprême Cameroun Orientale).
908
“La veuve tirait sa vocation successorale, non de la parenté d’origine avec le défunct, mais du
marriage qui l’aviat unie à Kouoh”. See also the decision of French Cour de Cassation of February 14
1929 in which it was held that the spouses, “by appearing before the civil status registrar submitted
themselves to French law…the union pronounced in the name of French law entails necessarily all the
consequences that common law attach to it.” ( “Le conjoint de statut local en comparant devant
l’officier d’état civil sextant soumis a la législation Française… l’union prononcée au nom de la loi
française entrains nécessairement toutes les conséquences que le droit commun y attaché” ) Crim. 14
fevrier, 1929, sirey, 1930, p. 280.
909
It is necessary to explain that when French law used the term common law it is not in the same
sense as English law. Rather it means it means the law which is applicable to every person, for even in
France there were local customs limited in their application but the civil code was applicable to all
persons. Similarly, the customary law is limited to natives but the civil code applies to them and non-
natives equally.
910
“Le conjoint de statut local en comparant devant l’officier d’état civil s’etant soumis a la législation
Française” “l’union prononcée au nom de la loi française entrains nécessairement toutes les
conséquences que le droit commun y attaché” Crim. 14 fevrier, 1929, sirey, 1930, p. 280.
911
Arrêt No. 083 of 32 March 2000.
912
In their usual cryptic nature the ratio decidendi of that case reads thus : « Considérant que tous les
efants de cette succession sont des enfants naturels nés du marriages coutumières non célébrés devant
l’Officier d’Etat Civil ; Considérant par conséquant que les dispositions du code civil relatives au
partage judiciaire sont inapllicable en l’espèce ; Par ces motifs ; Statuant publiquement,
contradictoirement en matière civil de droit local et en dernier resort, confirme le jugement entrepris. »

247
 As is the case in Anglophone Cameroon the fact that the deceased left a will

might also be determinant. The question will certainly be if the Will conforms to the

requirements of validity in French law, as spelt out in articles 970 913 , 971 914 and

976 915 of the civil code.

In Nguea Lottin v. Quan Samuel 916 the deceased Kwedi Nguea Maurice, a

native of Douala left a will in which his daughters were appointed successors and a

stranger was appointed as guardian for his children. In an action at Tribunal de

Premier Degré of Douala, the plaintiff (appellant) argued that both provisions violated

the Douala customary law. The appointment of the daughters as successors was

upheld on the ground that the custom according to which daughter are excluded from

succession infringes the preamble of the constitution which enshrines the equality of

sexes. The designation of a stranger as guardian for the children was also upheld

because according to the court, there is no rule in Douala customary law which

prevents a father from organising the guardianship of his children in a manner which

he considers best to protect their interests. This decision was upheld by the Douala

Court of Appeal. On further appeal to the Supreme Court, a third ground of appeal

was added, namely, that the will, said to be holographic, was not executed in

conformity with article 970 of the civil code requiring such wills to be in the hand

writing of the deceased.

After confirming the decisions of the lower courts on the points of customary

law the court ruled on the validity of the will as follows: “The validity of the will

must be appreciated with regard to the custom of the deceased in conformity with

913
Provides for holographic wills, which must be written, dated and signed by the testator.
914
Provides for notatrial wills that must be made in the presence of two notary publics or one notary
public and two witnesses.
915
Provides for wills in mystical form, being wills in a sealed and stamped envelope presented to the
notary public and two witnesses with the declaration that the envelope contains his last will and
testament.
916
Arrêt No.67 du 11 Juin 1963 (CSCO).

248
article 51 of the Decree of 31 July 1927; since custom does not impose any special

formality, it is not forbidden for the testator to adopt the form of written law, without

the validity of the will being dependent on that law.” Hence in the case of testacy

French law is always very likely to be applied whether or not the Will complied with

the requirements of form laid down by that law.

This is different from the position in Anglophone Cameroon where English

law becomes applicable only when the Will conforms to the formalities laid down in

section 9 of the Wills Act 1837. But the position in Francophone Cameroon could be

explained by the fact that French Wills like customary law wills do not require any

strict formality, as it suffices that they are written, signed and dated.

5.3.3: RESOLVING CONFLICT BETWEEN DIFFERENT SYSTEMS OF

CUSTOMARY LAW IN THE HIGH COURTS IN ANGLOPHONE
CAMEROON.
These types of conflicts would actually be unusual in these courts given that

matters in which different systems of customary law are in conflict should normally

be heard in the Customary Courts. If the subject arises here at all it is because as we

noted earlier, the High Courts have evolved a practice of entertaining such matters on

the basis of their exclusive jurisdiction over letters of administration.

Now since such conflicts were never envisaged there are in fact no provisions

to regulate them. The practice in former British colonies is to apply the provisions

governing similar conflicts in the customary courts. 917 However, the fact that High

Courts are established at Divisional levels 918 could render the determination of the

“law prevailing” in the area quite difficult. It cannot be assumed that like the

customary courts there will only be one predominant system of customary law in the

917
Park, Sources of Nigerian Law, London, sweet and Maxwell, 1963, p.118.
918
See section 14, Judicial Organisation Ordinance No. 72/4 of 26 August 1972.

249
divisions which consist of many tribes within a number of sub-divisions, since unlike

the customary courts the jurisdiction of the high courts is based not on tribal lines.

The application of the predominant law would not, therefore, be possible.

Alternatively, therefore, the courts would apply “the law binding between the parties”
919
which according to Ghamson v. Wobill constitutes the personal law of the

deceased. Since assessors are not allowed in the High Courts, this will have to be

established through the procedure of proving customary law discussed in chapter two.

5.3.4: RESOLVING CONFLICT BETWEEN DIFFERENT SYSTEMS OF

CUSTOMARY LAW IN THE HIGH COURTS IN FRANCOPHONE
CAMEROON
The High Courts in Francophone Cameroon apply French law exclusively. By

taking their matter to the high courts the parties are presumed to have agreed on

French law being the applied on the basis of the rule according to which “the option

of jurisdiction entails the option of applicable law”. And since the high courts do not,

like their Anglophone counterparts have monopoly over the jugement d’hérédité it is

impossible to envisage a situation where they will be faced with cases in which both

parties are subject to customary law.

5.3.5: THE UNUSUAL SITUATION OF REGULATING CONFLICTS BY THE

USE OF RULES OF PRIVATE INTERNATIONAL LAW

Politically Cameroon is a unitary state and this is the subject matter of article 2

of the constitution of 18 January 1996 which states inter alia that: “The Republic of

Cameroon shall be a decentralised unitary state… It shall be one and indivisible.” As

a result the country has a single executive, legislature and judiciary. But this is where

the unity ends, for in the absence of harmonised laws the common and civil laws

continue to be applied in the Anglophone and Francophone sectors respectively. In

919
(1947)12 W.A.C.A.181.

250
that case therefore, English and French laws are said to be in conflict when for

example an Anglophone gets married to a Francophone.

The question is whether this is not just a species of an internal conflict.

Marriage which we have said effects a change in personal is regulated by the Civil

Status Registration Ordinance No. 80-2 of 29 June 1981. The Ordinance governs

marriage generally and when a monogamous marriage is celebrated, either the

English law applies depending on the place of it celebration. So celebrating a

marriage under the Ordinance cannot give rise to a conflict between English and

French laws. In fact such a situation, if it ever occurs, will actually be a case of

bigamy, where a person contracts an ordinance in one part of the country and without

dissolving it contracts another in the other part of the country. 920

Normally a marriage should give rise to conflict between either of the received

laws and customary law and should be dealt with in the manner already described

above. But it would appear that when a person contracts a civil marriage and moves

out of the jurisdiction of his legal system, considerations of internal conflict cease to

be relevant. He or she is legally speaking an Anglophone or Francophone and not a

Bamiléké, Ewondo, Bakweri, Bulu, Banyang, Bassossi, Meta, Kom, Balue etc. Being

so considered, the person is subject to the English or French law and when they are

involved in a relationship with a person on the other side or have died leaving

property therein, it becomes a matter for the rules of private international law to

determine the applicable law.

In Anglophone Cameroon, it is suggested that conflict with civil law

constitutes an external conflict and should be governed by rules of private

920
Bigamy is a crime in Cameroon punished under section 359 of the Penal Code.

251
international law. 921 Faithful to the English position a person’s personal law derives

from his domicile 922 and in this respect Enongenekang v. Enongenekang 923 is famous

for having established the existence in Cameroon, of the common law and civil law

domiciles:

“In this country we do not yet have a single system of law. It follows for
the purpose of matrimonial proceedings [and succession] that one cannot
have a Cameroonian domicile. Every person should be domiciled in either
one or other part of the territory where the legal system pertaining to his
personal law applies.”

Hence a person is either subject to the English or French law and this is

understandable, for although defined as a person’s “permanent home” 924 , a person’s

domicile associates him to a given legal system. 925 Domicile is therefore not

synonymous with a country which might, as is the case of Cameroon have more than

one legal system.

On the other hand the Francophone courts following on the footsteps of

France base the personal law on nationality. 926 Nationality is said to represent a

person’s political status by virtue of which he owes allegiance to some particular

country 927 and the notion derives from the understanding that laws are made for an

ascertained people than for an ascertained territory. Hence Cameroonians have a

single personal law irrespective of where they are found on the national territory and

this is French law as far as the matter is tried in a Francophone court.

921
See Ngwafor, E. N., Family Law in Anglophone Cameroon, p.22-23
922
See Peter North and J.J Fawcett, Cheshire and North’s Private International Law, London,
Butterworths Thirteenth Edition, 1999, pp. 134-161.
923
Suit No.HCSW/28MC/82, per Inglis J. (unreported)
924
See Lord Cranworth V-C in Wicker v. Hume (1858) HLC 124, 160.
925
See Collier, J. G. Conflict of Laws, Cambridge, Cambridge University Press, 2001, 37.
926
See Peter North and Fawcett, Cheshire and North’s Private International Law, London, Butterworths
Thirteenth Edition, 1999, pp. 134-161.
927
Ibid, 159.

252
 A number of mock situations would be helpful in describing the nature of

conflicts that could arise between English and French laws and how the courts would

handle them.

(1) Two Anglophone Cameroonians contract a monogamous marriage in the

Anglophone town of Nguti. They migrate to and settle in Nkongsamba a Francophone

city and acquire land therein and one of them dies.

(2) Two Anglophone Cameroonians meet in Nkongsamba and contract a civil

marriage at one of the local civil status registration centres. They acquire property

there and one of them dies.

(3) Two Francophone Cameroonians from Nkongsamba migrate to the Anglophone

Cameroonian town of Nguti. They had contracted a civil marriage in Nkongsamba

and while in Nguti they acquire property there and then one of them dies.

(4) Two Francophone Cameroonians form Nkongsamba meet in the Anglophone

town of Nguti. They contract a monogamous at the local civil status registration

centre; acquire property and then one of them dies.

The first two situations concern Anglophone Cameroonians who find

themselves in Francophone Cameroon and the last two concern Francophone

Cameroonians who find themselves in Anglophone Cameroon. In all the situations

the courts of the place of migration would rightly assume jurisdiction. Article 8(8) of

the French Civil Procedure Code provides that succession proceedings are

commenced in the last residence 928 of the deceased while Order 48 rules (1) and (2)

of the Supreme Court (Civil Procedure) Rules, Cap. 211 of the 1948 Laws of Nigeria

gives the courts jurisdictions over property situated in their jurisdiction. The real

question, however, will be that of the applicable law as the assumption of jurisdiction

928
French law conceives residence in the same way in the way as English law does domicile.

253
does not necessarily mean the application of the law of the forum in the devolution of

the estate. 929 In determining the applicable law it is the marriages that are relevant

given the fact established above that migration cannot change the personal law.

On the basis of the domicile rule, an Anglophone court will normally apply

English law in the first hypothesis as the deceased was an Anglophone Cameroonian

and contracted monogamous marriage there. For the same reasons French law will

apply in third situation even though the matter is heard in an Anglophone court.

Problems are bound to arise in the second and fourth situations because the marriages

are contracted under laws different from the laws of the domicile. However since it is

marriage that affects a change in the personal law English law should still apply in the

fourth hypothetical case, for even though the deceased was a Francophone

Cameroonian, he married in Anglophone Cameroon. For similar reasons French law

will apply in the second situation.

There have been a number of cases involving conflict between the two

systems and all of them have been divorce cases. The only case we could find on

succession is In the Estate of Sam Edward Charlie. 930 The deceased was a

Francophone who died intestate leaving property in both parts of the country and in

France. The high court of Buea assumed jurisdiction as result of the property found in

the division. This is one of the cases in which the court ought normally not to have

assumed jurisdiction because the deceased was a polygamist and this matter pitted

one widow and the oldest issue of the deceased against the other widow. The court

assumed jurisdiction because the eldest son applied for letters of administration

therein. The son had been named successor by the family council and with this

applied for and obtained a next-of-kin declaration from Customary Court of Limbe.
929
See David McClean, Morris: The Conflict of Laws, London, Sweet &Maxwell, 2000, 417.
930
(2002)HCF/AE/24//2001-2002 (unreported)

254
 Since the deceased was a Francophone and therefore of the civil law domicile

the court held French law to be applicable, as a result of which the letters were

granted to the eldest son. This was on the basis of the rules of priority contained in

article 731 of the Civil Code which place children in the first category and widows in

the fourth, coming after the descendants, ascendants and collaterals. English law

would in the circumstances have granted the letters to the surviving spouse pursuant

to the rules of priority contained in section 21 (1) of the Non-Contentious Probate

Rules of 1954.

We need to deplore the fact, however, that nowhere in the judgement is it

acknowledged that the case involved conflict between English and French laws, since

it was only by so doing that the application of French law in an Anglophone court be

justified. French law is not the law of the forum in Anglophone Cameroon and its

application needs to be justified.

Returning to the hypothetical cases the nationality rule adopted in

Francophone Cameroon will make French law applicable in all the cases that arose

within its jurisdiction. This position has been adopted in number of divorce cases

notably the famous Arrêt Lantum 931 in which Yaoundé High Court assumed

jurisdiction even though the parties were Anglophone Cameroonians living and

working in Yaoundé.

Now the nationality rule requires the application of national laws and it is no

secret that Cameroon is still to have a national law of succession. The tendency is to

present the received laws as if they were Cameroonian laws. In the Law Faculties the

former departments of English Private Law and French Private Law are now known

as département de “Droits d’inspiration common law” and département de “Droits

931
CS No. 23/CC du 13 Décembre 1979, cited by Ngwafor, E. N., Family Law in Anglophone
Cameroon, 22.

255
d’inspiration Française” 932 respectively, suggesting that these are Cameroonian laws

as influenced by the respective colonial laws.

This is true as far as concerns the harmonised laws, 933 because the French

Civil Code of 1804 on which basis the national law theory was developed had the

principal objective to replace the various coutumes with a system of unified law

applicable to French people everywhere. 934

That a country with a unified legal system should follow such divergent paths

in the resolution of conflicts that arise between its laws cannot but be preoccupying,

in the midst of clamours for unified rules for the resolution of conflict between

different legal systems. 935 Professors Pougoué and Anoukaha, arguably amongst the

country’s best legal minds of Francophone extraction, in recognition of the oddity

make the following suggestion towards establishing a common rule:

“If the relationship in issue is not mixed, it is practical and logical to apply
the law of the Anglophone or Francophone sector from which both parties
originate. The law of the domicile prevails over the law of the residence. If
the relationship is mixed, that is to say involving an Anglophone and a
Francophone, it will be necessary to set out clear rules of conflict except
privilege is given to the proper law system…or the search for the law most
favourable to the interest in issue (for example the interest of the child). 936

932
The Departments of English Private Law and French Private Law were thus named since the
university reforms of 1993.
933
Some harmonised areas are the Labour Law, Criminal law, Criminal Procedure, Land tenure.
934
See article 3 (1) of the Civil Code.
935
See the projection of Francescakis made way back in 1964 and which is even more relevant today,
with African countries increasingly common together in commercial and economic unions: «Les
courants politiques actuels pourraient amener les législateurs Africains à reconsidérer les règles
Européens de droit international privé. Plus particulièrement, le panafricanisme serait appelé, tôt ou
tard à éliminer progressivement le principe de la nationalité au profit de celui de la territorialité, dans le
but de faciliter les apports de droit privé entre les différents Etats africains. » In Problemes de Droit
International privé en Afrique noire indépendante, Recueil des Cours 1964, tome II. 275-261, cited by
Bouckaert, F. “Les Regles de Conflit de Lois en Afrique Noire”, (1967) 77 Penant, 1-12, 2
936
See Pougoué, Paul Gerard and Anoukaha François, “Legislation comparé,” Juridclasseur, 1996,
vol.3, p. 7. My emphasis.

256
 From all indications they must have been inspired by the numerous divorce

cases to think only of the inter-vivos consequences of marriage, but the suggestion

would be good for the law of succession too. We think, with due respect that the first

hypothesis for not being a mixed cause is not a case of conflict of laws but rather a

case of conflict of jurisdiction. They are thinking of situations where the parties find

themselves on the other side of the legal divide. Jurisdiction in divorce might be

different but as explained above any court within which jurisdiction the deceased left

property would be competent in succession. The second hypothesis being a mixed

cause between English and French law is a case of conflict of laws and the solution,

we think is not far way, to necessitate setting out “clear rules of conflict”. The answer

lies in the solution to first hypothesis which in effect adopts the domicile as the basis

of the personal law of the parties and would be applicable where Anglophones and

Francophones marry. We have gone beyond the age when marriage was said to

operate a fusion of the legal personalities of husband and wife. Upon marriage the

spouses maintain their individual personal laws and in the case of succession it is the

personal law of the deceased spouse that should govern the devolution of his or her

estate, irrespective of the part of the country in which they are found.

5.4: CONFLICT INVOLVING MUSLIM LAW

5.4.1: When Muslim law becomes the personal law.

Without any doubt Muslim law constitutes the personal law of an individual

where it is the fundamental or even the dominant law. If it is the fundamental law, it is

the personal law of everyone within its jurisdiction. 937 If it is the dominant law it

would pass as under the denomination of “native laws and customs prevailing in the

937
In this case the jurisdiction could be the whole country in a unitary state with a single legislature; it
could also be a region in a Federation with each state having its own legislature as in Nigeria.

257
area of the jurisdiction” of a customary court and is the personal law of the natives of

that area. 938

Neither of the above exists in Cameroon and so Muslim law could only

become the personal law of persons who profess the faith and conduct themselves in a

manner to show that they intend such a consequence. Professing the faith merely

gives rise to a rebuttable presumption that a person has adopted Muslim law as his

personal law.

One could become a Muslim through birth by Muslim parents, marriage and

conversion. 939 A Muslim by birth could renounce the status even though this option is

rendered difficult by the fact of being stigmatised as apostasy, attended by

consequences such as the dissolution of an existing marriage to a Muslim woman 940

and forfeiting succession rights to the estate of a Muslim relative. 941 In a strong

Muslim country like Algeria where Muslim law coexists with French law, a person is

only subject to Muslim law if he is Muslim by birth and has embraced the faith.

Contracting a Muslim marriage automatically subjects the spouses to Muslim

law with regard to the incidents of the marriage. Like other customary law marriages,

marriages between Muslims must be recorded in civil status registers of their area of

jurisdiction, in accordance with section 81(1) of the 1981 Civil Status Registration

Ordinance if they intend to have official evidence for the marriage. There is no

evidence of any Moslem marriages having been so recorded but it can assumed when

spouses register their marriage they will expressly state that it is a Muslim marriage.

938
Muslim law, we noted is applied in Cameroun as customary law pursuant to the interpretation
section of the Southern Cameroon High Court Law 1955.
939
Paras Diwan, “Who is a Muslim” (1978) Indian Socio-Legal journal, Vol. IV, No.1, 75-85, 76.
940
See I. O. Agbede, “Application of Islamic Law in Nigeria”, (1971) 5 N.L.J, pp.119-128, 125.
941
See A.D. Ajijola, Introduction to Islamic Law, New Delhi, International Islamic Publishers, 1989,
170.

258
 Conversion could be through a ceremony in a mosque in which the person has

to accept the principle of the unity of God, and of Muhammad as the Prophet of

God. 942 It could also be by a mere declaration or profession of the faith, 943 through a

ceremony culminating in the convert taking a Muslim name. Whatever form

conversion takes, the rule is that mere conversion does not automatically change a

person’s personal law. 944 For conversion to have that effect it must be shown that the

convert intended Muslim law as his personal law. This would be established from the

state of his knowledge at the time of conversion. If after being informed of the

possible consequences of the act with respect to his property after death he still goes

ahead with the conversion, then the personal law changes. In India, as an indication

that the convert was duly informed, he is expected to sign a declaration that he desires

to be governed by Muslim law in matters of succession. 945 The position in Cameroon

as regards conversion can be ascertained from this exchange between me and the

Chief Alkali of Cameroon:

Me: “How is conversion to the Moslem faith done in Cameroon”?

Chief Alkali: “The person is made to come to the Mosque for a number of days to be

educated on the Koran.”

Me: “How long”?

Chief Alkali: “Could take days or weeks depending on how fast he learns”.

Me: “Then”?

942
Ibid.
943
This point was made by Lord Macnaughten in the Indian case of Barolo Razes v. Aga Mohamed.
(1893) 21, I. A. 56 at 64.
944
See I. O. Agbede, “Application of Islamic Law in Nigeria: A Reflection”, (1971) 5 The Nigerian
Law Journal, pp.119-128, 121.
945
See Paras Diwan, supra. 81.

259
Chief Alkali: “At the end we give him a Moslem name (optional), tell him to always

do the ablutions and that he has to bury his parents normally when they die.”

I listened intently for more and seeing that he was silent, asked: “Is that all”? “Yes”,

he answered. Then I added: “So you do not tell them what happens to their property

when they die”? “No”, he answered and everyone present 946 laughed including

himself.

Conversion to the Muslim faith cannot therefore in Cameroon be said to

automatically effect a change in the convert’s personal law. In fact in Cameroon there

many cases where people convert to the Muslim faith because of some political or

economic advantage that conversion entails and when such persons die their property

devolves normally in accordance with their personal law of birth. It may therefore as

in India require some overt declaration for Muslim law to become the personal law of

a convert.

5.4.2: Resolving conflict between Muslim law and the other systems of law.

The resolution of conflict with any system of customary law begins with the

consensus among Muslim Maliki Scholars that a non-Muslim may not inherit a

Muslim’s property and vice versa. This is based on a hadith 947 according to which

inheritance is an expression of solidarity and enhances cooperation, a principle which

could hardly bind persons of different religious faiths. 948 Hence a convert forfeits his

succession right in his family and the others cannot expect to succeed from him,

946
This discussion took place in the presence of the Registrar-in-Chief of the Ndop High Court and the
full panel of the Alkali court which excluding the Chief Alkali himself included: Ismaila Muhamed
(Member), Ali Garba (Member), Mbonifor Shu Peter (Clerk), Bambili Garba and George Omia
(Messengers).
947
Recordings of solutions to problems that arose after the Holy Prophet and were resolved with
reference to sayings or actions of Prophet in His lifetime.
948
See Hamisu, Rabiatu Danpullo, “Women, Property and Inheritance– The case of Cameroon.”Recht
in Africa 2005, 143-161, 156.

260
except, of course, with respect to property which he held as a family member and

which upon his conversion should normally revert to the family.

Decisions are liable to vary depending on whether the matter is determined in

the Alkali or the customary courts. The customary courts would on the basis of the

rule in Ghamson v. Wobill be expected to apply Muslim law as the personal of the

deceased and therefore the law binding between the parties. Instinctively the tendency

as was the case in Alhaji Garuba v. Next-of-kin 949 the courts would the application of

the customary law. If on the other hand the matter is tried by an Alkali court the

tendency is generally for Muslim law to be applied. 950 In Ndjobdi v. Gabilla, 951 the

Ndop Alkali court was faced with a dispute involving a Muslim and a non-Muslim

over the estate of deceased Muslim. Muslim law was held to be applicable on the

grounds that the “plaintiff is a Muslim by faith and tradition while the defendant is a

non-Moslem” and “the properties claimed are the properties of a Muslim.”

In Francophone Cameroon where Muslim law has no status as such, conflict

with customary law will most certainly be resolved in favour of the latter, on the

ground that Muslim law is not indigenous to Cameroon and that Cameroon being a

secular state should not permit court decisions to be based on religious beliefs. 952

However this is only as far as it will not be repugnant to the public policy to apply the

rule of customary law which Muslim law is in conflict. In Affaire Baba Iyayi 953 the

Yaoundé court of Appeal upheld a decision of the Tribunal de Premier Degré which

had distributed the property in accordance with Moslem law, against the contention of

949
Limbe Customary Court, Civil Suit No.29/84-85.
950
Ijaodola, J.O. “The proper Place of Islamic Law in Nigeria”, (1969) 3 The Nigerian Law Journal,
pp.129-140, 131.
951
Civil Suit No. 3/2002-2003
952
See the unanimous decision of the Supreme Court in Dame Dada Balkissou v. Abdoul Karim
Mohamed, Arrêt No. 2/L du 10 Octobre 1985, discussed earlier
953
Arrêt No. 083 of 32 March 2000

261
the eldest son that customary law should be applied to make him sole beneficiary and

successor.

Conflicts between Muslim and the received laws will be governed by the same

rules as conflict between customary and the received laws. It means that in

Anglophone Cameroon Muslim law will be excluded if the deceased contracted a

Christian marriage. Of course this will be apostasy on the part of the Muslim but it

could occur in circumstances similar to Asiata v. Goncallo. When this happens the

question of the applicable law will have to be resolved on the basis of the rules in

Cole v. Cole and Asiata v.Goncallo.

In Francophone Cameroon the position as understood in Baba Iyayi v. Hadja

Aminatou 954 is that French law will supplant Moslem law if the deceased contracted a

civil marriage.

When a Muslim dies testate it will be inferred that he intended the application

of French or English law.

Conclusion
This chapter provided the opportunity to establish the different types of

conflict of law situations that could arise in Cameroon’s law of succession. Internal

conflicts are seen as the usual types of conflict to expect within a single territory

while the external conflicts are actually artificial. The latter could one day disappear

when an Anglophone or Francophone Cameroonian who finds himself on the other

side of the legal divide will be regarded as being subject to his or her personal law

acquired by birth or descent.

954
Arrêt No. 083 of 32 March 2000

262
 CHAPTER SIX: MOVING FORWARD-PRIVATE ORDERING THROUGH
THE MAKING OF WILLS.

Introduction
Wills or testaments are oral or written declarations by persons of sound mind

and understanding 955 in the form prescribed by law 956 , in which property is disposed

in favour of others. Wills take effect on death, to distinguish them from gifts inter-

vivos. Testamentary power is generally viewed as enabling a person to make

provisions for certain persons. A person’s aspiration when he acquires property is to

ensure a better life, primarily his or her sub-family composed of the spouse and

children. Other relatives could, of course, be part of these aspirations, but generally

only in the absence of persons of the priority group. This responsibility does not end

when he dies and might even be aggravated by death due to the loss of a

breadwinner. 957

Herein can be found the importance of Wills even though the tendency is to

construe wills as being in lieu of rather than in addition to what would be obtained

under the intestacy rules. Such feelings have led to assertions according to which

when intestacy rules provide adequately for the family after the death of the deceased

there is very little inclination to resort to the technique of wills making. 958 Unger

extols the virtues of Wills when he writes:

“If the rules of intestate succession are unsatisfactory from the point of
view of the family the power of testation assumes the character of an
instrument serving for the protection of the family. If the distribution of
the intestate’s property is not in accordance with the wishes of the

955
To be considered briefly in the second part of this chapter.
956
To be considered briefly in the second part of this chapter.
957
See Bentsi-Enchill, Ghana Land Law, 207.
958
See for instance the statement of Maine after the enactment in France of the 1804 Civil Code “in
France at this moment, the heads of families generally save themselves the trouble of executing a
will”,958 and Amos and Walton: “the small proportion of Frenchmen who make wills is perhaps an
indication that the legal rules of succession are satisfactory,” cited by Unger, “The Inheritance Act and
Family” (1943) M.L.R. 215-228,217 & 218 respectively.

263
 family, the power of testation becomes, not the means of effecting
disinherison but the method for the preservation and just distribution of
the estate among the family.”

He fails to avert his mind to the fact that Wills might not always produce the

effect described. This idealistic conception of wills is partly responsible for current

intestacy rules of most, if not all the legal systems, because the tendency is to

deliberately lay down unbalanced intestacy rules with the hope that wills will cover

any deficiencies. As a system of private ordering wills are susceptible to being

affected by a number of factors liable to cast doubts on their reliability as instruments

through which the interests and needs of family members would be taken care of,

when, as is the case in Cameroon the applicable rules of intestacy fail to do so. Hence

we are in this chapter going to examine the extent to which wills could be relied upon

to provide that balance between the interests and needs of family members which the

various systems of intestacy have failed to ensure.

6.1: WILLS AS INSTRUMENTS TO AVOID DEFICIENT INTESTACY

RULES

It is generally accepted that wills provide an instrument through which

provision could be made in favour of persons for whom the existing intestacy rules

give nothing or very little. The notion of testamentary freedom embraced by all legal

systems is largely responsible for this, even if in some, the freedom is limited to a

given fraction of the estate.

6.1.1: TESTAMENTARY FREEDOM

6.1.1.1: Testamentary freedom in English law.
English law recognises absolute testamentary freedom as evident in the

statement according to which a person “may disinherit… his children and leave his

264
property to strangers to gratify his spite or to charities to gratify his pride.” 959 This

must not be taken to mean that all is left to the whim of the testator as even though

there is absolute freedom statutes such the Inheritance (Provision for Family and

Dependant) Act 1975 are intended to check the abuse of the freedom. Hence a

beneficiary capriciously excluded by a will could sue under the Act for reasonable

financial provision.

6.1.1.2: Testamentary freedom in French law

French law allows a person to dispose only of a certain fraction of his estate if

survived by descendants and ascendants that normally have a legal claim to his

succession. These are entitled to specific portions of the estate which correspond to

their entitlements on intestacy in French law and cannot be disposed of by will. The

reserved portion of which the testator may not dispose by will is one half of the estate

if survived by one child, two-thirds if there are two children and three-fourths if

there are three or more. 960 When there are no descendants but ascendants of the

paternal and maternal lines, half of the estate may be disposed of by will and three-

fourths when there are ascendants of one lineage only. 961 It is clear that the widow is

not entitled to a reserve portion.

6.1.1.3: Testamentary freedom in customary law.

The concept of modern wills might be new to customary law but the sanctity

of a person’s last wishes has always been respected even when written wills were

unknown. It is accepted in customary law that a person might through a will alter the

course of inheritance to his property. 962 The only known restriction is against the

959
See Broughton v. Knight (1873) L.R. 3P & D. 64, 65-66. (Per Sir J, Hannen)
960
See article 913 of the 1804 Civil Code.
961
See article 914, ibid.
962
See Binet, Jacques, “La dévolution successorale chez les Douala du Cameroun”, (1955) 65 Penant,
33-40, 38.

265
disposition of family property, but this more a case of nemo dat quod non habet rather

than one of limitation to testamentary freedom. 963 The freedom is however tempered

by the repugnancy doctrine as the courts will not hesitate to set aside a will if its

content is found to have been influenced by malice. Hence in Jesco Manga Williams

v. Helen Otia & Chief Ikome 964 a will in which the deceased left the major part of his

property to his friend as against his polygamous family was rejected because the

disposition was held to be repugnant to natural justice, equity and good conscience.

6.1.1.4: Testamentary freedom in Muslim law.

Muslim law also has a system of limited testamentary freedom. A Muslim

cannot by a will dispose of more than a third of his estate 965 unless the disposition is

approved by a valid custom, there are no heirs at all, the heirs give their consent or the

husband or wife is the sole surviving heir and the disposition does not affect his or her

intestate entitlement. 966 It must be noted that it is one third of his disposable property

which is concerned here and this must exclude any property as a trustee. 967 Secondly,

persons already entitled to benefit at intestacy cannot be beneficiaries under a will. 968

The question is whether these restrictions are limited to wills made in Muslim

form where no particular formality is prescribed, or also cover wills made in English

form. In In the Estate of Baba Nya 969 the deceased had willed part of his property to

his widow and although this contradicted Muslim law no objections were raised.

Problems started when the widow also died and the appellant, as the Imam presented

963
See Van Den Wiele, “Les Systemes Familiaux et Matrimoniaux au seins de Societes Negro-
Africaines », (1963)17 Rev. Jur. et Pol. d’Outre-Mer, 429-507, 461.
964
Limbe Customary Court, Civil Suit No.LM/16/97 (unreported)
965
See Muhammad Abdul Hai’ Arifi, Death and inheritance, 164; Ajijola, Introduction to Islamic Law,
268; Hussain, The Islamic Law of Succession, 385.
966
See Ajijola, ibid. 281.
967
Muhammad Abdul Hai’ Arifi, Death and inheritance, 149.
968
See Muhammad Abdul Hai’ Arifi, Death and inheritance, 164; Ajijola, Introduction to Islamic Law,
268; Hussain, The Islamic Law of Succession, 385.
969
(1985) C.A.S.W.P/CC/16/85 (unreported). See also Apatira v. Akande 1944)17 N. L R. 149.

266
a will in which the property was granted to him. It was argued that the property

should go to the family of the deceased Baba Nya and not the appellant who was a

complete stranger. Respondents also argued that even if the appellant was entitled, it

would not be to more than one third of the property. The will was thus set aside at the

trial level.

This was undisturbed on appeal though not because of Muslim law

restrictions, but because the formal requirements for English wills were found not to

have been complied with and the Muslim law of intestacy applied. The court however

used the case to establish that a Muslim who chose to make a will in English form and

complied with the requirements could break with the restrictions imposed on Muslim

wills. Mbuagbaw, J. said:

“Under Moslem law a man may not bequeath by his will more than one
third of his estate. This stringent limitation on powers of Testation may
be abrogated by writing a will in English form.”
This decision must be contrasted with the Nigerian case of Yinusa v. Adesubokan, 970

where Bello J. admitted that a deceased Muslim could make a will in English form

but cautioned:

“He (a Muslim) has no right to deprive his heirs, who are entitled to
share his estate under the Muslim law, of their respective shares to
which they are entitled under the Muslim law.”

The decision was reversed on appeal 971 because the limitation was incompatible with

section 3 of the Wills Act, 1837, which enshrines testamentary freedom. 972 The

970
[1970] 14 J.A.L. 1,57-64, 62.
971
T.T. Adesubokan v. Rasaki Yinusa, reported in Nigeria Lawyers’ Quarterly, Vol, 6, No. 1-4, pp.
186-193.
972
Per Ademola C.J.N. at p. 193.

267
decision gave rise to a spate of criticism 973 because contrary to the settled law it

resolved the issue of compatibility between law and custom with reference to the

received rather than local statutory law. 974 For that reason the decision of the trial

court is said to constitute the better, though not conclusive view. 975

6.1.2: THE EXTENT TO WHICH WILLS ARE USED TO MODIFY

DEFICIENT INTESTACY RULES

Wills are known to have been used to grant succession rights where none

exists at intestacy or increase such rights. We will see how far this is true under the

various systems.

6.1.2.1: English law.

English intestacy rules are not gender-biased and above all, favour the

surviving spouse against the relatives of the deceased. These could all be varied, for

example, by a man who having contracted a monogamous marriage is subject to

English law. Dispositions could be made in favour of sons by appointing them as

executors of an estate, a role reserved for their mothers under intestacy. A man

without children could make use of his testamentary power to prevent the bulk of his

estate from passing to his wife and eventually to her family.

In In re Ntoh 976 , the plaintiff and the deceased were monogamously married.

The respondent, brother of the deceased produced a will in which the later appointed

him successor to his estate, this was admitted to probate and Letters of Administration

were granted to him. The plaintiff instituted the present appeal on the grounds, first,

that the purported will was invalid, and secondly, that it disposed of property jointly

973
See for example, Olawale Ajai, “Legal Pluralism and the Mis-handling of Moslem Wills: Further
considerations of Adesubokan v. Yinusa and the Internal Conflict Rules,” (1986) Nigerian Current Law
Review, 127-140.
974
See supra. 2.2.3.4 dealing with the exclusion of customary law that is incompatible with written law.
975
See Oluyede, P.A., Nigerian Law of Conveyancing, Ibadan, Ibadan University Press, 1978, p.73.
976
Marianne Bongyila Ntoh v. Che Peter (2006) Appeal No. BCA/48/2003 (unreported).

268
owned by her and the deceased. The first ground of appeal was successful and the

second failed because the appellant could not adduce evidence of joint ownership

with the deceased as the marriage certificate did not mention the system of property

rights. It would have been expected that once the will was held to be invalid the

deceased would be assumed to have died intestate 977 and administration transferred to

the appellant. This was not to be, as the court pursued the second ground of appeal

even though distribution was not in issue and because the appellant could not produce

evidence of joint ownership, went ahead to transfer administration to the

Administrator-General.

Hence as far as the English intestacy rules are concerned wills could be used

to provide for other family members, even though they could apply for reasonable

financial provision under the Inheritance (Provision for Family and Dependants) Act

1975.

6.1.2.2: French law.

French rules of intestacy establish parity between male and female relatives of

a deceased but place the surviving spouse in the last position in the order of priority.

All of these could be altered with use of wills, such as providing for persons who

would be excluded by the rules and appointing the widow as successor.

In Affaire Dame Bebey 978 the widow was able to be made successor on the

basis of a will in which the deceased excluded his son, the rightful successor under

customary law. The deceased claimed in the will that the son did not recognise his

parental authority, beat him, made him understand that he was not his father and

threatened to change his name.

977
See in In the Estate of Charly Namalongo (2005) Suit No. HCK/AE/K. 19/02-03 (unreported).
978
Veuve Ekambi Elise c/ Bebe Moise Arret no. 46/ of 4 May 1995 (Supreme Court) (unreported).

269
 Provision could be made in favour any person within the legally disposable

portion. But the freedom also means that the property could be willed to other

persons and that the widow, not being entitled to a legitimate portion could be left

destitute. The only security for widows would be through the system of property

rights. French law recognises joint property rights between spouses and this is given

effect in a contrat de mariage 979 specifying their respective interests in the

matrimonial property.

This will restrict the husband’s testamentary power over the property but often

the parties are blinded to this security measure by the euphoria that precedes the

marriage and certain that their marriage would last “pour le meilleur et pour le pire”.

This often turns out to be true; however, questions of property rights arise not only

upon inter vivos dissolution of the marriage, but also upon dissolution by death. The

contract is the only proof that the property was jointly owned by the spouses;

otherwise she will be required to adduce evidence of her participation in their

acquisition. 980

6.1.2.3: Customary law.

The succession rights of women in customary law are inferior to those of the

male relatives of the deceased. Female relatives receive an insignificant share of an

estate after distribution and could be successors only temporarily. Whatever rights

widows have depend on the existence of children, otherwise, they are at the mercy of

whoever is the successor.

979
See section 1400 Civil Code.
980
See Arret Eding (1967)CSCO 6 Juin, Arret Dayas (1971) CSCO 12 Juin, cited by Ndoko, « L’idee
d’egalite dans le droit successoral Camerounais : Dernieres tendences de la jurisprudence en matieres
de successions ab intestat. » (1990) unpublished, 55 ; see also Lizette, Elomo-Ntonga, Affaire Koum:
Commentaire (1990) 3 Juridis Info. 99-103.

270
 It is common for a person to circumvent the effects of customary intestacy by

making provision for the female members of the family including the widows. In

Jemba v. Emilia 981 the deceased made a will in due form in which he devised certain

property to his wife and remainder to the appellant in this case. When the wife also

died instead of the estate going to the appellant, it was distributed between the

appellant and his sisters. The appellant protested against the distribution in an action

to the customary court but failed to have the will respected. The decision of the trial

court was reversed by the Buea Court of Appeal. Nana, J relied on a statement by

Nwabueze:

“A Nigerian [Cameroonian] can by testamentary disposition defeat the

course of inheritance in intestacy under customary law. For he will have
no cause to make a will at all if all he can do by it is to confirm the
scheme of inheritance that would have resulted upon an intestacy under
customary law.” 982

In In re Lokendo 983 the deceased, survived by a brother and sister, had made a

will in which he devised part of his estate to his sister. As the only surviving male

relative of the deceased the brother was granted a next-of- kin declaration over the

whole estate and with this, applied for Letters of Administration. The sister posited a

caveat demanding exclusion of the portion given to her under the will from the

inventory. Her plea was upheld, 984 giving rise to the present appeal. It was argued that

rather than admit the will to probate the court ought to have followed the evidence of

the traditional council on the custom of the deceased. In an earlier action in the

customary court, the will was rejected because that court “would not allow her [to]

981
Suit No. C.A.S.W.P/CC/14/2002 (per Nana J) (unreported) See also Nana v. Nana(2005) Suit no.
HCF/PROB/AE1/2001-2002(unreported), in which the deceased designated his daughter as his
successor.
982
Nigerian Land Law, supra,
983
Lokendo James v. Francisca Diangi Lokendo (2006) Suit No. C.A.S.W.P/21/2005.
984
(2004) suit No. HCK. AE/K.61 2001 (Unreported).

271
inherit because she was a woman and married.” It was held at the appeal that the farm

devised to the respondent should be excluded from the inventory.

The court probably overlooked the fact that this was a case of partial intestacy

governed by section 49 of the Administration of Estates Act 1925. The whole estate

vests in the personal representative 985 whose duty at the end of the administration, is

to pay out the various legacies to which the estate is subject and then distribute the

rest in accordance with intestacy rules. 986 The difference between a testamentary

bequest and the rest of the estate is that while the latter might be subject to a

continuing trust the former must be given out to the beneficiary. We do not think that

the woman would have been negatively affected if the normal course was to be

followed.

In In re Johnny 987 the deceased left part of his property to his widow and part

to his adult children. Soon after the death of their father the older sons of the deceased

by other women invaded and ransacked the property allotted to the widow. In an

action to the Bamenda High Court it was ruled that the defendants were to desist from

further acts of interference with the property. In Teke v. Teke 988 the opinion of the

chief was determinant in admitting the validity of a disposition in a customary will

designating the younger of two brothers as successor over the estate of their uncle. In

Ossengue Francois v Jackie Cecile, 989 a will purportedly designating a step-daughter

as successor over the estate of her step-mother against the widower was upheld by the

Customary Court of Tombel. This decision was reversed by the South West Court of

Appeal not because it preferred the widower against step-daughter but because the

will was found to have been a forgery. The reversal does not therefore detract from

985
Section 33 Administration of Estates Act 1925.
986
See supra. 5.2.2.
987
Grace Lum Johnny v. Tresor Ndeh Johnny (1989) Suit No. HCB/14.M/89 (unreported).
988
(2005)2 C. C. L. R. 40.
989
(2000) Suit No. C.A.S.W.P/CC/15/99 (unreported).

272
the fact that the courts are willing to give effect to customary wills which make

dispositions contrary to intestacy at customary law. In Nguea Lottin v. Quan

Samuel, 990 the deceased a native of Douala left a will in which he made gifts to his

daughters and appointed a stranger as guardian for his children. The will was upheld

by the Douala Customary Court and Court of Appeal, to the chagrin of the plaintiffs

who claimed that it violated the principle of Douala customary law which excludes

women from succession. The decision of the lower courts was confirmed by the

Supreme Court

6.1.2.4: Muslim law.

Muslim law grants succession rights to every relative of the deceased

including widows. What a will could do therefore would be to increase the

entitlements recognised by the rules of intestacy. We should in this respect mention

that Muslim law does not allow testamentary dispositions in favour of persons who

already qualify as Quranic or agnatic heirs under the rules of intestacy. 991 The

limitation is explained by the fact that wills in Muslim law have the prime objective

of giving Muslims the opportunity to make provision for persons who would,

otherwise not be entitled to succession. 992 Hence dispositions can only be made in

favour of strangers.

The limitation contradicts Surah 2(180) 993 which gives priority to the

testator’s family without prejudice to charitable bequests. Furthermore verse 240 of

the same chapter prescribes that: “Those of you who die and leave widows should

bequeath for their widows a year’s maintenance and residence.” This verse is said to

990
Arrêt No.67 du 11 Juin 1963 (CSCO).
991
See Muhammad Abdul Hai’ Arifi, Death and inheritance, 164; Ajijola, Introduction to Islamic Law,
268; Hussain, The Islamic Law of Succession, 385.
992
Ajijola, 269; Hussain, 385.
993
Infra, the effect of Muslim wills at 9.4.

273
have been abrogated by subsequent verses 994 dealing with intestacy giving women

succession rights. Verses in the Quran are said not to abrogate one another and the

most that a subsequent verse could do to an earlier verse would be to restrict its

scope. 995 Muslim Sunni scholars are themselves not unanimous about the

restrictions 996 and they are not part of the Shi’a Muslim law. 997

6.2: THE LIMITATIONS OF WILLS AS INSTRUMENTS TO AMEND

DEFICIENT INTESTACY RULES

The effectiveness of wills depends on the testator rather than on some

legislative intervention. In these circumstances wills cannot be counted upon to

achieve the objective of always modifying deficient intestacy rules. A number of

factors, most of which may be independent of the testator’s intention might reduce the

effectiveness of wills in this respect.

6.2.1: Uncertainty of testamentary provisions.

The legislature has no control over the contents of a will and so it cannot be

guaranteed that provisions in a will are always going to be positive, aimed at making

up for deficiencies in intestacy rules. Wills are justified by the fact that the testator has

property liable to exist after his death, which must be disposed of. Hence the

presumption is always that wills can only dispose of property but it is common for

wills to make other dispositions, such as the way in which the corpse would be

disposed. Above all a will may contain provisions to deprive intestate beneficiaries of

even the little they would have been entitled to at intestacy.

994
See Hussain, The Islamic Law of Succession, supra, 384.
995
Ajijola, 269.
996
See Hamisu, Rabiatu Danpullo, “Women, Property and Inheritance-The case of Cameroon.” Recht
in Afrika 2005, 143-161,153.
997
Coulson, Conflicts and tensions in Islamic Jurisprudence, Chicago, Chicago University Press, 1969,
32.

274
 This is common in systems with absolute testamentary freedom. In Findi

Laban Njo & ors v. Enow Emmanuel the testator willed all of his farms and cocoa

plantations to his youngest son, leaving nothing for the older and other children. The

other children did not contest the choice of the first son which was clearly in

contradiction to customary law, but argued that he holds the property on behalf of

them all. Their contention was rejected and the youngest son was given allodial

ownership. 998 Similarly in Re Kinge Francis Evakisse 999 the appellant, daughter of the

deceased and the respondent, his nephew, both of who presented different wills by the

deceased claimed the right to be designated next-of-kin. At the Buea Customary Court

the daughter’s claim was dismissed because she was not even included as beneficiary

in the will tendered by her. An appeal to the South West Court of Appeal failed, and

on further appeal to the Supreme Court, the decision was quashed, not on the point of

law but on the ground that the customary courts have no jurisdiction over wills in

English form. The matter was remitted to the same Court of Appeal, which would be

expected to overrule the jurisdiction of the customary court and transmit the matter to

the High Court. It is unlikely for the decision to differ, for not only did the name of

the applicant not feature on either of the wills which were fairly detailed, 1000 the will

under which the nephew claimed was more recent to constitute a codicil revoking the

first will. 1001

Where freedom of testation is limited as in the French and Muslim laws a

person is limited only in the extent of property he could dispose of by will, but is free

to disinherit persons to whom specific potions are assigned under the rules of

998
Limbe Customary Court, Civil Suit No. LM/105/2001 (unreported).
999
Also known as Manyi Pauline Evakisse v. Joseph Evakisse Evelle (1999)1 G.L.R. 17
1000
She could only succeed to have the wills set aside if it is proved that the testator lacked the mental
capacity as established in Banks v Goodfellow.
1001
The first will under which the daughter claimed was executed on 30 November 1979 while the one
under which the nephew claimed was executed on 14 January 1985.

275
intestacy. In Affaire Okalla 1002 the deceased in his will designated one of his sons as

successor, excluded his widow and daughters and gave property to collaterals. The

persons thus excluded claimed that no sufficient reasons were given for their

exclusion, the will gave property to collaterals against the law and the will failed to

respect the fixed portion of a widow. It was held that they were rightly excluded. It

could be argued in this case that the widow was not one of the beneficiaries entitled to

a definite share of the estate; but the daughters were, given that French law does not

discriminate between male female blood relatives.

6.2.2: Apathy towards the making of wills and Ignorance.

Many people do not make wills because making a will is seen as precipitating

ones own death. 1003 Studies conducted in Great Britain and which would be true of

any other society reveal that most people keep putting off making their wills at some

future time only to end up dying before doing so. 1004 So there is a correlation between

age and will-making and for a country with a very low rate of life expectancy like

Cameroon, one can only expect most deaths to be intestate.

Will-making would normally also have a correlation with social class as the

tendency is for the educated and the affluent to make wills. However, Cameroonians,

educated and uneducated alike are more conversant with the making of nuncupative

wills which are not subject to a complicated formality as does modern wills, than with

modern wills. It is on the point of formality that the ignorance is more pronounced

because most persons without distinction of social class are known to make wills

without legal assistance. For by seeking legal assistance they will know that section 9

of the Wills Act 1873, which is the only pre-1900 English statute of general

1002
Jugement no. 25 du 7 novembre 1979, Tribunal Grande Instance, Yaounde.
1003
See Brian W Harvey, The law and practice of Nigerian wills, probate and succession, London,
Sweet & Maxwell, 1968, 68.
1004
See Andrew Borkowski, Textbook on succession, London, Blackstone limited, 1997, 3.

276
application which application has not been questioned, lays down specific formalities

for English type of wills. The will must be in writing, it must be signed by the testator

in the simultaneous presence of two witnesses, failing which it is inadmissible to

probate. Most wills are rejected in this way and are thus prevented from effecting any

change that must have been intended by their authors.

The courts are impervious to any arguments that though not valid in English

law the wills could be valid in customary or Muslim laws. This was the position of

Ames J. in Apatira v. Akande: “The fact that the deceased was a Nigerian

[Cameroonian] cannot make any difference to the necessity of complying with the

requirements of the Wills Act.” 1005 In In the Estate of Charly Namolongo 1006 the will

was held to be invalid because in the words of the Judge, “when I look at exhibit ‘C’ I

notice that all the witnesses signed before the testator. For exhibit ‘C’ to be admitted

as a Will it has to comply with the requirements of section 9 of the Wills Act as

subsequently amended.” In Tantoh Agnes v. Achunche Vivain the plaintiff, widow of

the deceased presented an unattested will signed by the deceased appointing her as

successor to the estate. The signature was authenticated but because of the want of

attestation, the will was held not be admissible to probate, in spite of entreaties by the

plaintiff that the document, though not technically a will should be admitted as a

guide in ascertaining the testamentary intention of the deceased.

6.2.3: Failure of wills for the want of animus testandi.

The absence of animus testandi constitutes another ground for wills to be

refused by the probate division of high courts and thereby prevents it from achieving

the desired objective. The expression is used to describe the capacity to make a will

and the knowledge and approval of its contents. The test for testamentary capacity is

1005
(1944) 17 N.L.R 149.
1006
(2005) Suit No. HCK/AE/K.19/02-03.

277
contained in the judgment of Cockburn J in Banks v. Goodfellow 1007 which establishes

in a nutshell that the testator must understand: (1) the effect of his will being carried

out at his death, though he need not understand their precise legal effect; (2) the extent

of the property of which he is disposing, though he is not required to carry in his mind

a detailed inventory of it; and (3) the nature of the claims on him.

The requirement of knowledge and approval is based on the assumption that

wills are written not by the testator but by a third party, generally a legal practitioner.

The legal burden of proving testamentary capacity and knowledge and approval rests

on the person seeking to obtain probate of the will. Once it is proved that testator was

capable at the time of execution, and the will was executed duly complying with the

statutory formalities, knowledge and approval are to be presumed. 1008 However, if

circumstances surrounding the execution raise a suspicion that the will did not express

the testator’s intention, knowledge and approval must be specifically proved. The

absence of such proof could be indicative that the will was made as a result of undue

influence or the fraud of another person. The will in Marianne Bongyilla v. Che

Peter 1009 was held to have been a forgery because at the time of its purported

execution in a lawyer’s chambers the deceased was bedridden in hospital and the

medical records showed that he lacked the necessary mental capacity to make a will.

The will was also seen to have wrongly described some of the property, excluded

property which ought to have been included and instead included property which had

been sold by the purported testator.

1007
(1870) L.R.5 Q.B. 549, 565.
1008
See Charles, H, Stuart, B, & Martin, D. Megarry & Wade: The Law of Real Property, London,
Sweet & Maxwell, 2008, 558.
1009
(2006) Appeal No. BCA/48/2003 (unreported).

278
Conclusion
While it is possible for wills to effect changes to intestacy rules and make up

for any deficiencies therein, they cannot be completely relied upon to effect the

changes that are necessary to make the law of succession conflict-free. Wills are

subjective and so their content might not actually reflect what the average man would

expect of them. Furthermore, there is a general reluctance towards the making of wills

and also, in spite of the testators’ good intentions wills might fail for the want of

formality, or animus testandi.

Notwithstanding the shortcomings wills remain a necessity in every legal

system. Taking testamentary power away would be infringing on one of the

fundamental rights of Cameroonians, to dispose of their property in any manner they

wish, subject only to public policy considerations. Government position on this aspect

of human rights is reflected in section 1(1) of the Land Tenure Ordinance No. 74-1 of

6 July 1974 which stipulates: “The state guarantees to all natural persons and

corporate bodies having landed [and movable] property the right freely to enjoy and

dispose of such lands [movable property]”

What needs changing is the perception of wills. The fact that wills have over

the years been perceived as constituting a panacea for the inadequacies of intestacy

rules has led many a legislature to condone discriminatory intestacy rules, hoping that

these would be rectified by wills. Wills, we submit, should not be viewed as

compensating for inadequate intestacy rules; they should rather serve the same

objective as reasonable financial provision for the surviving spouse under the

Inheritance (Provision for Family and Dependants) Act 1975. 1010 This means literally

that the effect of wills should be to pamper the beneficiary by giving him or her

1010
This is explained in chapter two.

279
something more than intestacy rules do, and on the other hand that in the absence of a

will the person should not be pauperised.

For wills to have this effect there is need for legislative intervention to lay

down equitable intestacy rules. This means that they are not exclusionary, make

distribution mandatory and enshrine a system of distribution which should leave

everyone satisfied within the limits of the estate, so that it makes no difference

whether or not there is a will. How far the proposed Family Code meets these

objectives is what we intend to discover in the next chapter.

280
 CHAPTER SEVEN: MOVING FORWARD-INTESTACY UNDER THE
FAMILY CODE.

Introduction

Hopes are focused on the family code to lay down intestacy rules that would

ensure the necessary balance in the conflicting interests of the family members and

thereby reduce the dependence on wills to compensate for the weaknesses of

intestacy. To do this the code needs, as a matter of course, to be an innovation on the

exiting laws. It should provide criteria for succession, it should remove the principle

of succession to the category of beneficiaries nearest to the deceased, and it should

replace the current open-ended system of administering estates with a definite period

of administration and make distribution mandatory.

7.1: THE GENESIS OF THE CODE

Cameroonians know that the idea of a code has been conceived since

independence and it has taken almost half a century for the initial step to be taken in

this direction, through a government bill 1011 tabled in Parliament during the 2006

legislative year. That the bill has not yet been enacted into law is not surprising to this

researcher, given that law making is generally a very slow process in the country.

Cameroonians have for long awaited the advent of a law governing family relation in

the country 1012 and are confident that however long it takes the code will one day

become a reality. Parliament to which it has been submitted has the powers to amend

and not reject bills. 1013

1011
See article 29(1) of the 1996 Constitution.
1012
See generally Tataw, Mbeng, “Ou en est-on avec le droit de la famille au Cameroun”? (2005) 115
Penant, 347-357.
1013
See article 29(3).

281
 7.2: THE SCOPE OF THE CODE

The code could best be described as a consolidating statute for the reason that

it brings together all existing enactments relative to family relationships, and proposes

initial legislation for other areas such as succession. The code consists of 697 sections

divided into fifteen parts:

Part one: The binding nature of laws, ordinances, regulations and international treaties

and agreements.

Part two: The law of persons.

Part three: Civil status.

Part four: Nationality.

Part five: Marital relationships.

Part six: Affiliation.

Part seven: Adoption.

Part eight: Relationship by blood and by marriage.

Part nine: Maintenance.

Part ten: Guardianship and emancipation.

Part eleven: Incapacity.

Part twelve: Property regimes.

Part thirteen: Succession.

Part fourteen: Gifts.

Part fifteen: Wills.

282
The code is therefore an all-embracing piece of legislation which when it goes

operational will at least achieve one objective of codification, which that of making

the laws readily accessible. It will remove the need of having to look for the law from

different sources and this will be of particular importance to the law of succession

which interacts with all the other matters.

7.3: THE STATUS OF THE CODE

Elsewhere codifications are preceded by the publication of draft codes with

accompanying commentaries. These usually explain the solutions adopted, give their

motivations and indicate any national or foreign sources which inspired them. 1014

In the absence of such publication in Cameroon the question of its status is left

to conjecture. The concern here is whether the code when it becomes law will be a

harmonisation of only the received laws, in which case it will leave the customary law

intact or it will abrogate the rules of customary law. Judging from the effects of

existing statutes such as the Civil Status Registration Ordinance of 1981 and the Land

Tenure Ordinance of 1974 one would be more inclined to think that the customary

law would be unaffected, even though the code will occasionally be brought in

stealthily, as is the present case with the received laws.

This position will likely be at variance with government policy since

independence which has been to ascertain and record the acceptable aspects of

customary law which could then be integrated within the modern law. 1015 The idea

has been to remove the dichotomy between modern and customary law in the area of

1014
See Krzeczunowicz, G. “The Ethiopian Civil Code: Its usefulness, relations to custom and
applicability” [1963] J.A.L. 172-177, 172.
1015
In 1962, Njoya Arouna, the Federal Minister of Justice while opening the first session of the West
Cameroon High Court in Buea had expressed the desire of Government to elaborate law s in all the
domains that will take a large account of African customary laws. See Eloi Lagoui: « Les Problèmes
Particuliers de Codification du Cameroun. » (1966) 28 Rev. Jur. Ind. Coop. 107-112, 110.

283
civil law generally and to have only one civil law. 1016 Of course this would stifle the

adaptability of customary law to new situations, but it would be the better of two

evils. It is preferable to have rules of customary law ascertained and integrated within

a modern legal system, and allowed to evolve normally within the system as a whole,

than to let them continue in their repugnant state.

It can be assumed that for having interacted for so many years with the

received systems, which has seen the rejection of customary law intestacy rules on

grounds of repugnancy or public policy, that the customary law of succession has

attained an acceptable stage of evolution that needs to be codified and applied

uniformly in the whole country. We, like others before us want to be guided in our

attitude to customary law during codification by Professor David according to whom

“most customs are uncertain or vary from place to place, group to group and time to

time and made it inconceivable even to consider an idea of a mere legislative

consolidation of all the customary rules that are found to be followed in practice.” 1017

The objective of codification is generally to establish a uniform system of law

that will not only make the law readily accessible but would also guarantee the

cardinal principles of modern jurisprudence, which are certainty, regularity and

predictability of court decisions. These cannot be possible if all the code does is to

harmonise the French and English laws while leaving customary law which is should

be the real reason for the reforms intact.

1016
Anyangwe, Carlson, The Cameroonian Judicial System, Yaoundé, CEPER, 1987, 266-267.
1017
In “A Civil Code for Ethiopia: Considerations on Codification of the Civil Law in African
Countries,” (1963) Tulane Law Review; “A New Legislative Approach to Customs: The Repeals’
Provision of the Ethiopian Civil Code of 1960”, (1963) 1Journal of Ethiopian Studies, cited by
Krzeczunowicz, “The Ethiopian Civil Code: Its usefulness, relations to custom and applicability”
supra, 173 and Farnsworth, E. A. “Law Reform in a developing country: A new code of obligations for
Senegal” [1964] J.A.L. 6-19, 16.

284
 Certainly there would be the problem of application if the code is said to

include customary law. Anglophone Cameroon will be the most affected in this

respect because the customary courts will not be able to apply its provisions given that

unlike their Francophone counterparts they are limited only to the application of

customary law. But this is something that can be taken care of by simply organising

the customary courts in the same line as the tribunal de premier degré. It will also

require making a demarcation, based probably on the pecuniary value, between

estates over which the customary courts and high courts are competent as is the case

in Malawi, for example.

7.4: THE SUBSTANTIVE PROVISIONS ON SUCCESSION

7.4.1: THE BENEFICARIES.
The code provides no definition for the term beneficiaries or the nature of

relationship with the deceased necessary to qualify as such. All that is done in this

respect is to adumbrate the conditions for succession in section 503, according to

which:

“A beneficiary shall be required to possess the following qualities:

a) be alive or should have been conceived during the devolution of
succession,
b) be related to the deceased in a relationship which permits such a
person to aspire to succession,
c) shall not be barred from succession.”

Relevant to the question as to who the beneficiary is, is section 503(b) which is not

helpful. One would have expected a clear definition of the type of relationship rather

than the highly ambiguous “relationship which permits such a person to aspire to

succession.” This could well be a legal or social relationship, but for the salutary

intervention of sections 502 and 511. Section 502 reads:

285
 ”Succession in the absence of a will shall devolve on the surviving
spouse, the children, parents, brothers and sisters in accordance with the
provision of section 503 et seq.”
Section 511 provides:

“Where the deceased shall be survived neither by a father and mother

nor by brothers and sisters or their children, a quarter of the estate shall
devolve by one half to a blood relative of the parent and the other half to
a blood relative of the collateral parent.”

We must admit the difficulty concerning the meanings of the word “parent” used in

the highlighted phrases and to which we propose the following interpretations: Firstly,

we assume that it signifies the father and mother of the deceased. In which case the

“blood relative of the parent” is no other than the ordinary collaterals in French law,

who consist of uncles or aunts or their issue. This class of beneficiaries might stretch

to infinity as the section does not limit the beneficiaries to any particular generation of

descendants. Secondly, it stands not for “parent” according to the first interpretation,

but for “relative” in which case any other relative in the absence of those mentioned

above could take as parent collateral.

The two sections put together give the following as beneficiaries arranged in

order of precedence: The surviving spouse, the issue, the mother and father, brothers

and sisters or their issue, uncles and aunts or their issue, and descendants of grand

parents.

The code has therefore gone the same way as the existing laws by establishing

an order of succession based on precedence and by so doing automatically excluded

certain persons with a legal right to maintenance. Section 336 of the code provides

that the legal obligation of maintenance shall result from blood and marital

relationships. The obligation arising from blood relationship is limited in the case of

direct lineage or immediate family, to the second degree, and in the case of collaterals

286
or extended family, to the second degree as well. The legal obligation of maintenance

resulting from marriage is limited the first degree, which means between the spouses

and their children. It is surprising that while a person is alive he has to maintain so

many people and when he dies the category is reduced by the principle of precedence.

The reverse would have been preferable where upon death the number of persons

claiming succession rights should have been increased to include persons claiming by

the proxy of those with a legal right to maintenance. It is only normal that the classes

of persons with a right to maintenance should be restricted because the law takes into

consideration the needs of the person himself. But when he dies the need to maintain

himself no longer exists and this, we think should be the logic behind the long lists of

beneficiaries in the case of death.

The problem is that law makers always consider the different parts of the laws

they make as being independent of each other, when in fact they are interrelated and

provisions of one part could be called in to complement another part. With that in

mind the beneficiaries in succession ought to be based on the combined effect of the

succession and maintenance provisions. We noticed that the descendants of the

children of the deceased are not entitled to maintenance but are entitled to succession,

and consider it paradoxical that they should thus be entitled while the persons for

whose maintenance the deceased was responsible are excluded by their mere

existence. These children get maintenance as a legal right from their own parents and

also succession rights from the deceased. If the law provided that certain persons are

to be maintained it must have seen that they are in need and must this end with death,

to permit the over-enrichment of the direct descendants of the deceased?

287
 The classes of beneficiaries could be added to through the principle of

representation 1018 common in French law whereby children of deceased or those of

his brothers and sisters who die before attaining a vested interest are represented by

other persons who are given the same rights as the children. This is in direct contrast

with English law where a child who dies before attaining a vested interest and without

issue of his own, is deemed not to have survived the intestate.

Children as used in the code include legitimate, illegitimate and adopted 1019

children 1020 and their descendants. Brothers and sisters include both those of the

whole-blood and half-blood and their children. 1021

Section 507(a) ordains the equality of sexes as it provides that “children

irrespective of sex shall have priority over parents” and article 507(b) continues that

children of both sexes shall benefit equally. The question is whether the equality is

limited to children only or the provision is indicative of what should obtain in every

category of beneficiaries. It is certainly only indicative as we would take this as an

example of muddled drafting observed all through the code. Section 507 (a) is

superfluous because already the rules say that other relatives are excluded when there

are children in existence 1022 and the children can only share with the surviving

spouse. 1023 We must also deplore the absence of clarity in the way the term “parent”

has so far been used. Using the term in the English text is a wrong translation of the

word “parents” in the original French text, which would mean “relatives” rather than

“parents”.

1018
Section 18.
1019
Section 311 of the code defines adoption as “the legal process by which a child shall sever his
relationship with his family of origin and establish a new one with his adoptive family” and section
312(2) adds that “adoption shall confer on the adopted child all rights of a child born legitimate.”
1020
Section 330 provides that parentage shall be either legitimate illegitimate or adoptive.
1021
See section 511 which makes express reference to the children of the bothers and sisters.
1022
Section 505.
1023
Section 504.

288
 There is affinity with English laws as far as the position of the surviving

spouse 1024 is concerned. She occupies the last position in French law and does not

normally feature in customary law. Under the code she is the first in order of priority

as evident in section 502 quoted above.

The influence of the received laws is evident in the categories of beneficiaries

and like those laws the code enshrines a system of priorities whereby the other

relatives are excluded when there is surviving spouse and issue. Only when there is no

issue does the surviving spouse take with the other relatives. It is doubtful if this

system is suitable for Cameroon, given the absence of a system of social security

schemes which have made it workable in Great Britain and France.

7.4.2: ADMINISTRATION OF ESTATES

As in French law the estate devolves on the beneficiaries jointly, 1025 which

necessitates a period of administration before distribution. The administration is

ensured by one of the beneficiaries pursuant to section 549(1) according to which

“The beneficiary heir is responsible for administering the property of the succession.”

Again it is not clear what beneficiary heir means but we can only suppose that he is

some one like the personal representative in English law, but who differs in the sense

that he must always also be a beneficiary.

The question is whether this is an end of an era for the Administrator-Generals

in Anglophone Cameroon. This is certainly not the case considering section 499(1)

according to which “Matters relating to the appointment of personal representative, to

wit executors and administrators shall be governed by the law of wills.” This is

1024
We shall use the feminine gender because as we said earlier women are more likely than men to be
found in this position, but it should be mentioned that the expression “surviving spouse” is gender
neutral.
1025
See section 563.

289
another case of muddled drafting as the additional words; “of wills” are superfluous.

The “law of wills” certainly does not govern the appointment of administrators. “The

law” simpliciter would suffice to govern the appointment of executors and

administrators and it is the relevant law applicable in either part of the country that

would be applied in doing so.

What this means is that the methods for designating the administrator have not

changed. In priority the administrator should be a beneficiary, 1026 even if the code is

silent on the order of priority to guide the designation. We cannot but assume that the

order of succession described in sections 502 and 511would be followed and so the

code gives the surviving spouse a greater chance than does the French and customary

laws. In the absence of a surviving spouse the choice would fall any of the other

beneficiaries without distinction of sex. But this is subject to the possibility of the first

person in the order of priority being passed-over in favour of another person in an

inferior category or the Administrator-General in Anglophone Cameroon or

“Administrateur Judiciaire” in Francophone Cameroon.

An inventory is drawn up by the beneficiaries and together with a statement

of acceptance by the designated person, is presented to the registry of the competent

High Court. 1027 This would be a welcome innovation in Anglophone Cameroon as it

will mean the elimination of the next-of-kin declaration taken as a precondition for

the grant of letters of administration.

The administrator organises the funeral, pays the debts of the deceased within

the limits of the estate 1028 and is liable to render account of his administration. 1029 He

1026
This is the purport of section 564(2): “Unless otherwise agreed the administrator shall be appointed
by a majority of the beneficiaries, in accordance with number of undistributed shares.”
1027
Section 544.
1028
Section 548 (1).
1029
Section 549(1).

290
shall have a free hand in the administration of the joint property,1030 meaning that he

could without consulting the other beneficiaries lease the property for the purpose of

administration. 1031 However, he must seek and obtain the consent of the others before

obtaining a loan on the security of the property or selling the property. 1032 Against

these rights is the obligation to render periodical accounts of his administration. 1033

It is worthy of note that the code fails to limit the period of administration,

meaning that it could go on indefinitely with the attendant social problems resulting

from abuse by the so-called administrators.

7.4.3: DISTRIBUTION OF THE ASSETS

As is the case in French law distribution is not compulsory. Section 575

adopts the sacrosanct expression of article 815 of the French civil code which only

confirms the facultative nature of distribution:

“No person shall be compelled to remain in joint ownership and

distribution may always be requested unless it was stayed by judgment
or an agreement or stipulated by a will.”

The beneficiaries might agree to maintain the property as one whole, 1034 but each of

them has an identifiable share 1035 and section 601 excludes real property in the rural

areas and farms from distribution.

The code enshrines the hotchpot principle in article 577 which provides that

each beneficiary who had received property from the deceased shall have to bring it

back into the estate before distribution. There is an exception to this rule in that the

principle is not applicable when the deceased expressly or by implication prevented

1030
Section 565(1).
1031
Section 565(2).
1032
Section 565(3)
1033
Section 549.
1034
Article 563(1).
1035
Article 569.

291
its application. As in customary law therefore there would be situations under the

code when some beneficiaries will receive more than others because of such gifts.

However the test for ascertaining the intention of the deceased is not objective but

subjective, given that the deceased in making the gift hardly considers all the

circumstances including death. As a subjective test the onus is on the person who

claims such an intention to prove it. 1036 Therefore in spite of the provision the

principle becomes applicable and what it means is that the inventory includes the

property or its value and when the distribution is done the beneficiary’s share is

reduced accordingly.

It is assumed that the deceased would always be a married person; hence the

entitlements of the beneficiaries are conditioned by this fact. Section 504 gives the

surviving spouse one-quarter of the estate where the deceased is survived by issue,

parents, brothers and sisters or their issue, while section 505 gives half where there

are no issue or parents and section 506 gives the entire estate in the absence of other

beneficiaries.

The code provides for distribution in the case of polygamy in section 504(2)

which stipulates: “In the case of polygamy, all the widows shall be entitled to a

quarter share of the estate divided pro rata according to the number of years each

widow lived with the deceased.” One would certainly have expected the fraction of

the estate allotted to the surviving spouse to be increased in the case of polygamy. The

one quarter share which is also the position under the French Civil Code is intended

for the spouse of a monogamous marriage. If the code recognises polygamous

marriages then it ought also to realise that it will be inequitable for what is judged

reasonable for one spouse to be shared among more spouses. One could perhaps be

1036
See Hardy v. Shaw [1975] 2 All E. R. 1052.

292
reading into this a tacit revulsion to polygamy, an idea which is borne out even by the

deliberately obscure definition of marriage. Marriage according to section 218 of the

Code is defined as the “The voluntary union of one man and one woman resulting

from a solemn declaration with a view to creating a family.” The initial impression is

that the code outlaws polygamy or is not applicable thereto, but for the absence of the

standard phrase “to the exclusion of all of all others during the subsistence of the

marriage,” which leads to the conclusion that the man is not precluded from

contracting other marriages.

Distribution under the code as in English law results in the beneficiaries

obtaining absolute titles. To this effect section 621 according to which “Each co-heir

shall be deemed to have inherited alone and directly all the property comprised in the

share.” But the effect of this is limited by other provisions which tend to limit the

ambit of distribution. This is the case of section 601 which stipulates that “The

sharing of real property located in rural areas shall be an exception. This principle

shall also apply to farms.” Such limitation betrays the desire to maintain the

customary system of land tenure in these areas, but distribution, it must be said does

not necessarily mean that land is broken up into smaller pieces. And in fact, it is

recognised under section 593 that “Real property shall be presumed to have been

distributed even where there are common shares that cannot be distributed or that are

to remain in the joint ownership.” With such provisions the limitation with respect to

land in the rural areas becomes unnecessary.

Conclusion
If the Code could be credited for effecting any changes at all it will be that of

according women succession rights in the same as men and bringing the spouses in as

beneficiaries. This will of course be effective only it the scope of the code covers the

293
customary law, given that the applicable received laws already enshrine these rights in

line with the preamble of our basic law which declares that “the human person,

without distinction as to race, religion, sex or belief, possesses inalienable and sacred

rights.”

Apart from that the code has not but adopted the position of the English and

French laws. Hence the weaknesses of the current law of succession, namely the

absence of criteria for succession, principle of precedence, unrestricted period of

administration and unclear rules of distribution have been left unscathed. The code is

therefore victim to one of the problems of codification in Africa, where the tendency

is to adopt the laws of the former colonial with a few cosmetic changes, failing to

know that laws are made for a particular social and economic environment. When

laws are relocated to a different place their success cannot be readily assured and

Montesquieu recognizes this when he opines that only in the most exceptional cases

will the institutions of one country serve those of another, law is “closely linked with

its environment because of factors such as climate, fertility of the soil, the size and

geographical position of the country, the kind of life led by the people, their wealth,

density, trade and so on.” 1037

1037
Cited by Allan Watson, “Legal transplant and law reform”, [1976] 92 L.Q.R. 79-84, 79.

294
 Chapter Eight: CONCLUSION.

8.1: GENERAL CONCLUSION

It will certainly not be an overstatement at this point of the thesis to assert that

our law of succession is not sufficiently equipped to remove the social problems of

which we complained at the start. True, some notable strides have been made such as

granting women succession rights through the notion of coutumes évolués in

Francophone Cameroon and Chibikom v. Zamcho in Anglophone Cameroon. These

are not far reaching enough as to influence the law especially in the rural areas and

although the family code enshrines this right, much will depend on if it is made

applicable to persons subject to customary law.

Preoccupation with the succession rights of women seems to have blinded

people on the fundamental weaknesses of our law of succession, which when

removed would constitute a major stride towards ridding the law of its weaknesses

and also reducing the social problems.

The weaknesses of the law have been pointed out whenever appropriate, but

we can here refresh our memory on the major ones. There is the absence of a general

criterion for succession. Without specifying the basis, English and French laws set out

a long list of family members as possible beneficiaries, but the exact impact of this is

diminished by the principle according to which succession is by the persons closest to

the deceased in terms of relationship. Hence the existence of a surviving spouse and

issue automatically excludes the other relatives however needy they might be. We

noted in this respect the pathetic case of Nforba v Nchari 1038 that the 84 years old

mother of the deceased was told that anything she would have out of the estate of a

son she brought up and educated, depended on the benevolence of the widow. It is

1038
(1999)1 G.L.R. 59.

295
assumed that the only needy persons are widows and children, but this is not true as

there are other persons who equally depended on the deceased for their livelihood.

When these persons are excluded without an alternative means of sustenance they

could resort to unorthodox methods such as violence and witchcraft to manifest their

anger.

The situation is even more preoccupying under customary law of which the

criterion for succession is influenced by the desire to keep land in the family. This has

resulted in the exclusion of women generally and in the matrilineal systems this

includes the issue of the deceased. The categories of excluded persons increase with

the adoption by customary law, of the principle of precedence.

Clearly women bear the full brunt of the law since apart from their wholesale

exclusion under customary law they might also be excluded under the received laws

by being part of the excluded remote category. This therefore lends credence to the

view according to which the exclusion of women from succession impedes

sustainable development. Sustainable development may be looked upon as the process

of planned or directed social change. 1039 The other way of looking at development

seeks to redefine its processes and objectives “into the direction of rapid social change

and redistribution of political power”. 1040 Hence development is not just to be

measured in terms of technological and economic variables but rather in terms of “the

collective personality of the society”. The processes of development are, on this view,

designed to foster a “collective” spirit (“a sense of belonging to a society, pride in

national achievement, fulfillment in helping one’s distressed neighbours”), creation of

“aspiration frontiers” (dissemination of appropriate values), generation of self reliance

1039
Upendra Baxi, ‘Introduction: law and “development”’ in Csaba Varga (ed) Comparative legal
cultures (Aldershot: Dartmouth Publishing Company Ltd, 1992), 465-482 at 465.
1040
Baxi, U. ‘Introduction’, at 465.

296
and “participatory-democracy”. 1041 From this standpoint, the “development” resulting

from growth model (stressing centralized planning, expression of modernized

industrial sector and assistance from developed countries) is really

underdevelopment. 1042 Therefore, development seems to be a contextual process

conceived to be related in time and space. Generally, it is a process that strengthens

the human capacity to produce, create wealth and initiatives, leading to advancement

and improvement in the mode of life.

If this is the meaning of sustainable development then certainly the exclusion

of woman must impact on development as a whole. Women constitute 52 percent of

the country’s population and yet cannot participate in the development process

because the law of succession does not give them access to land, the main factor of

production.

Even when a person qualifies as beneficiary in Cameroon there is no

guarantee of a better life. This is because administration of estates is unlimited and

distribution is facultative. Prolonged period of administration gives room for abuse

since at a certain point in time the administrator starts considering himself as the

owner. This is the period when the responsibilities towards the other beneficiaries are

ignored and they have to resort to other means to earn a livelihood.

It is rather unfortunate that the draft bill on the family code contains no

provisions aimed at righting these weaknesses, which might even have been oblivious

to the authors. In these circumstances there is no light at the end of the tunnel for the

weaknesses and by extension the social problems related to the law of succession,

since the need to earn a livelihood will always send the excluded persons into the

streets and crime.

1041
Baxi, U. ‘Introduction’, at 465.
1042
Baxi, U. ‘Introduction’, at 468.

297
 8.2: WHAT LAW OF SUCCESSION, THEREFORE, FOR CAMEROON?
The problem with the code as indicated above is the feeling that laws can

simply be transplanted from one jurisdiction to another without the necessary

adaptation to make them workable therein. If our law of succession is in its present

mess it is because of the existing laws and so if the code does nothing but adopt these

same laws, there is good reason to question whether its raison d’être has ever been

law reform or simply consolidation.

Marcel Nguini, one time president of the Supreme Court had provided the

following guide to law making when he stated the following as being the objective of

law:

« La finalité du droit est celle de garantir un monde organisé dans la paix,

à laquelle aspirent tous les peuples de bonne volonté; celle d’être
l’instrument principal de cohésion et de la stabilité internes nécessaires à
l’édification de nouveaux états. » 1043

This would be possible if the code was preceded by ground work, but to the

knowledge of this researcher who has been involved in the teaching of the law of

succession since 1998, no such studies were conducted.

The conception must have been that the only problem confronting the law is

succession by women and this was taken care of. If studies were conducted in the

field, it would have been discovered there are other fundamental weaknesses in the

1043
“The finality of law is that of guaranteeing a society organised in peace, to which all people of
good will aspire; that of being the principal instrument of cohesion and of internal stability necessary to
the edification of new states,” Nguini, Marcel, “Nguini, Marcel, « Droit Moderne et Droit
Traditionnel » (1973) 83 Penant, 1-10, 7.

298
law which need equal attention and which if they persist are likely to render

insignificant the succession rights given to women under the code.

The weaknesses concern the absence of a clear definition of the basis for

succession, the unlimited period of administration, the facultative nature of

distribution and the nature of interest obtained after distribution. These are the areas in

which we propose reform.

8.2.1: On the beneficiaries.

The present choice of the beneficiaries leaves much to be desired mainly

because of its exclusionary nature based on the principle of precedence. This would

not be so if maintenance is considered to be the criterion and considering that the need

for maintenance does not cease upon the death of the person. The family code already

enshrines the equality of sexes but it is also necessary to increase the categories of

beneficiaries to the members of the immediate family in accordance with Ollennu’s

view and in line with the provision on maintenance under the code. In this way

members of the nuclear and immediate families succeed jointly, and this would go a

long way to alleviate the social problems attributed to the law of succession. Other

countries have adopted such a broad-based class of beneficiaries. This is the case in

Ghana under the Intestate Succession Law of 1985, 1044 Malawi under the Wills and

Inheritance Ordinance 1964, 1045 and Odje proposes a similar system for the Mid-

Western Region of Nigeria. 1046

1044
See Dankwa, E. V. O. “Property Rights of Widows in their deceased husband’s estate.” (1982-85)
U. G. L. J. 1-24, 18.
1045
See Simon Roberts, “The Malawi Law of Succession: Another Attempt at Reform.” [1968] J.A.L.
81-88, 85.
1046
Odje, M. “Integration in the field of the law of succession in the Mid-Western Region of Nigeria” in
Integration of customary and modern legal systems in Africa, University of Ife Press, Ile-Ife, Nigeria,
261-292, 285-288.

299
 So Cameroon would not be the only country which increases the category of

beneficiaries to the members of the immediate family and we do not want to envisage

the extended family, in fact our studies did not reveal any cases in which members of

this category are claiming succession rights. In all these countries the objective has

been to strike an acceptable balance between the demands of the customary heirs and

those of the nuclear family. And there is no doubt that the extended category of

beneficiaries will go a long way to reduce the social problems inherent in succession

matters.

The other alternative would be for the law to continue in its exclusionary form,

and in order to eliminate the social problems the state will have to put in place social

security schemes as is the case in England and France. If the system appears to be

functioning well in these countries it is because of these amenities which tend to

dissuade persons, such as parents from looking forward to succession in the estates of

their issue. As this is impossible given the state of our economic development, there is

need for a law of succession which would cause people not to look up to it for such

assistance.

8.2.2: On Administration
The administration of estates under all the systems is indefinite and most of

the cases of abuse are when a person has managed an estate for so long that he starts

confusing it with his own personally acquired property. A definite period of

administration would therefore be advisable at the end of which there must be

distribution.

300
8.2.3: On Distribution
By extending the categories of beneficiaries it will also require adjusting the

rules of distribution. Taking from the example of the other countries where

beneficiaries are expanded to include the immediate family, the estate will have to be

divided into two parts, one part for the nuclear family and the other immediate family.

Normally the percentage allotted to the nuclear family is more than that allotted to the

immediate family and the distribution within the group ought to be left to the

discretion of the courts. In this way the inequalities noticed in the case of multiple

spouses would be eliminated.

8.2.4: On the effect of distribution

In order to provide beneficiaries the latitude to enjoy the full benefits of the

property there is need to redefine the effect of distribution. Should distribution give

rise to an absolute and alienable interest or a usufructuary interest? It is normal for

distribution to result in absolute ownership so the beneficiaries of land could be free

to raise loans on mortgages by using the land as security. The family code does not

guarantee such an outcome, probably because of the fear to disrupt the customary land

tenure system and the fear that the next generations of families might not have land if

the beneficiaries are given unbridled powers of alienation. But we think that this

should not be an impediment to distribution given that such lands will be subject to

the land registration law, which we saw entitles persons with an interest in land for

which an application for registration has been made to have such interests protected in

the land registers.

301
 BIBLIOGRAPHY

I. Textbooks

Abdar Rahnman I. Doi, Shari’ah: Islamic Law, London, TA-HA Publishers Ltd.,
2009.

Aguda, T.A., The Law of Evidence, Ibadan, Spectrum Law Publishing, third ed. 1996.

Ajijola, A.D., Introduction to Islamic Law, New Delhi, International Islamic Pictures,
1989.

Allott, A. N., Essays in African Law: With special reference to the law of Ghana,
London, Butterworth, 1960.

Allott, A.N. (ed), Judicial and Legal Systems in Africa, London, Butterworth,
1970.

Anderson, J.N.D., Islamic Law in Africa, London, Her Majesty’s Stationery Office,
1954.

Andrews, Neil., English Civil Procedure, Oxford University Press, 2003.

Anyangwe, C., The Cameroonian Judicial System, Yaoundé, CEPER, 1987.

Arminjon, P., Précis de Droit International Privé, Vol. 3, Paris, Dalloz, 1931.

Atias, Ch., Droit Civil: Les Biens, Paris, Librairie de la Cour de cassation, 1982.

Bach, L., Droit Civil, Paris, Sirey, 1985.

Bell, J., and Engle, G. Cross: Statutory Interpretation, 3rd ed., London Butterworths,
1995.

Bennett, T. W., Customary Law in South Africa, Cape Town, JUTA, 2004.

Bennion, F.A.R., The Constitutional law of Ghana, London, Butterworths,

1962.

Bennion, F.A.R., Bennion on Statute Law, London, 3rd ed., Longman, 1990.

Bennion, F.A.R., Statutory Interpretation, 3rd ed., London, Butterworths, 1997.

Bentsi-Enchill, K., Ghana Land Law, London, Sweet and Maxwell, 1964.

Breton, A, Mazeaud et Breton, Leçons de Droit Civil, Paris, Dalloz, 3e ed. 1980.

302
Brissuad, J., A History of French Private Law, New Jersey, Rothman Reprints Inc.,
1968.

Burn and Cartwright., Cheshire and Burn’s Modern Law of Real Property, Oxford,
Oxford University Press, 17th edition, 2006.

Campbell, R., Austin on Jurisprudence Vol. I, London, John Murray, 1879.

Capitant, H., Introduction a l’étude de droit civil: notions générales, Paris,

1898.

Cardozo, B. N., The growth of the Law, London, Humphrey Milford, 1934.

Carter, J.C., Law: Its Growth and Function, London, G. P. Putman’s Sons, 1907.

Clarkson , C. M.V.,and Jonathan, Hill, The conflict of Laws, Oxford, Oxford

University Press, 2006,

Collier, J. G. Conflict of Laws, Cambridge, Cambridge University Press, 2001.

Daniels, W.C. E., The Common Law in West Africa, London, Butterworths,
1964.

Dennis, I.H., The law of Evidence, London, Sweet and Maxwell, 1999.

Dennis Lloyd, The Idea of Law, London, Penguin Books, 1973, 323.

Doumbé-Moulongo, M., Les coutumes et le droit au Cameroun, Yaoundé Edition

CLE, 1972.

Duncan M. Derrett (ed), Studies in the law of succession in Nigeria, Oxford, Oxford
University Press, 1965.

Edgar, S.G.G., Craies on Statutes, London, Sweet and Maxwell, 1971.

Elias, T.O., The Nature of African Customary Law, Manchester University Press,
1956.

Eyongetah, T. and Brain, R., A History of Cameroon, London, Longman, 1974.

Fisher, H.A.L., The Collected Papers of Frederick William Maitland,

vol. 1, Cambridge University Press, 1911.

Fisiy, C. F., Power and Privilege in Administration of Law: Land Reforms and Social
Differentiation in Cameroon, Leiden, African Studies Centre, 1992.

Fortes, M. and Evans-Pritchard E.E., African Political Systems, Oxford University

Press, 1955.

303
Gluckman, M., The Ideas in Barotse Jurisprudence, Yale University Press,
1965.

Gonidec, P-F., Les Droits Africains: Evolution et Sources, Paris, Librairie Générale
de Droit et de Jurisprudence, 1976.

Graveson, R.H., Conflict of Laws, London, Sweet & Maxwell, 1974.

Gray, K.J. and Symes P.D., Real Property and Real People. Principles of Land Law,
London, Butterworths, 1981.

Griffith, Anne M.O., In the Shadow of Marriage. Gender and Justice in an African
Community, University of Chicago Press, Chicago, 1997.

Grimaldi, M., Droit Civil. Successions, Paris, Dalloz, 2e ed. 1992.

Guinchard, Serge, Droit Patrimonial de la Famille au Senegal, Paris, Librairie

Générale de Droit et de Jurisprudence, 1980, 424.

Harpun, Charles, Megary & Wade: The Law of Real Property, London, Sweet &
Maxwell, 2003.

Hart, H.L.A., John Austin: The Province of Jurisprudence Determined and the Uses
and Study of Jurisprudence, London, Weidenfeld and Nicholson, 1968.

Hashim Mahdi, Muslim Personal Law, London, TA-HA Publishers Ltd., 2009.

Herring, Jonathan, Family Law, London, Pearson Longman, 2007.

Hoebel, A., The Law of Primitive Man, Harvard University Press, 1954.

Holdsworth, A history of English Law, vol. II, London, Methuen, 1923

Howard, N. H. Phipson on Evidence, London, Sweet & Maxwell, 1990.

Hussain, A., The Islamic Law of Succession, Riyadh, Darussalam, 2005.

Imbert, J., Le Cameroun. Que Sais-je?, Presse Universitatres de France,

3e ed., 1982.

James, R. W., Modern Land Law of Nigeria, Ibadan, Caxton Press (West Africa)
Limited, 1973.

Kerridge, Roger, Parry and Clark: The Law of Succession, London, sweet and
Maxwell, 11th edition. 2002.

Lawrence Collins (ed), Dicey and Morris on The Conflict of Laws, London, Sweet &
Maxwell, 2000.

Lawson, F. H. and Rudden B., The Law of Property, Oxford, Clarendon Press, 1982.

304
Malinowski, B., Crime and Custom in Savage Society, London, Routledge and
Keagan Paul Ltd, 1949.

Martin, Jill E., Hanbury & Martin Modern Equity, London, Sweet & Maxwell, 15th
Ed. 1997.

Marty, G. & Raynaud, P. Droit Civil. Les Personnes, Paris, Sirey, 3em edition, 1976.

Mazeaud et al, Leçons de Droit Civil. La Famille, Paris, Montchrestien, 1995.

Mbaku, M. J., Culture and Customs of Cameroon, Westport, Connecticut, Greenwood

Press, 2005.

Miller, Gareth J., The Machinery of succession, Portsmouth, Professional Books Ltd.,
1977.

Morris, H. F. and Read, J. S., Indirect Rule and the Search for Justice, Oxford,
Clarendon Press 1972.

Muhammad Abul Hai’Arifi, Death and Inheritance, Lahore, Idara-e- Islamiat, 1998,

Ngwafor, E.N., Family Law in Anglophone Cameroon, University of Regina

Computer Services, Regina- Saskatchewan, 1993.

North, P. and Fawcett, J.J., Cheshire and North’s Private International Law, London,
Butterworths Thirteenth Edition, 1999.

Nwabueze, B. O., Nigerian Land Law, Nwamife Publishers Limited Enugu (Nigeria),
1972.

Nwogugu, E. I. Family Law in Nigeria, Heinemann Educational Books (Nigeria)

Plc., 1996.

Ollennu, N. A. The Law of Testate and Intestate Succession in Ghana, London, Sweet
& Maxwell, 1968.

Owen, Margaret, A world of Widows, London, Zed Books, 1996.

Oluyede, P. A., Nigerian Law of Conveyancing, Ibadan, Ibadan University Press,

1978.

Park, A. E. W., The Sources of Nigerian Law, London, Sweet and Maxwell, 1963.

Pearl, D. A., Textbook on Muslim Law, London, Groom Helm, 1979.

Phillips, A. (ed), A Survey of African Marriage and Family Life, Oxford University
Press, 1953.

Raymond, Pierre, Les Successions et les Liberalités, Paris, Sirey, 1983.

305
Rattray, R. S. Ashanti Law and constitution, Oxford, Clarendon Press, 1929,

Rubin, N., Cameroon: An African Federation, London, Pall Mall Press, 1971.

Sherrin, C. H. and Bonehill, R.C., The Law and Practice of Intestate Succession,
London, Sweet and Maxwell, 1987.

Sussman, M.B., The Family and Inheritance, New York, Russell Sage Foundation,
1970.

Stone, J., The Province and Function of Law, Sydney, Associated General
Publications, 1946.

Todd, Paul, Textbook on Trusts, London, Blackstone Press ltd., 4th edition, 1999.

Uglow, Steve, Evidence: Text and Materials, London, Sweet & Maxwell, 1997.

Weeramanting, C.G., Justice without Frontiers: Furthering human Rights, London,

Kluwer Law International, 1997.

Yotnda, Muarice Nkouenjin, Le Cameroun a la Reserche de son Droit de la Famille,

Paris, Librairie Generale de Droit et de la Jurisprudence, 1975.

II. Articles

Agbede, I. O., “Application of Islamic Law in Nigeria” (1971) 5 N.L.J., pp. 119-128.

Ajai, O., “Legal Pluralism and the Mis- handling of Moslem Wills: Further
Considerations of Adesubokan v Yinusa and the Internal Conflict Rules” (1986)
Nigerian Current Law Review, pp. 127-140.

Allott, A. N. “Towards a definition of ‘absolute ownership’”, [1961] J.A.L. 99-102.

Anyangwe, C., “Land Tenure and Interests in Land in Cameroonian Indigenous Law”
(1984) Cameroon Law Review, pp. 29-41.

Armstrong, R. G., “Intestate succession among the Idoma” in J. Duncan M. Press,

1965, 228Derrett, Studies in the Laws of Succession in Nigeria, Oxford, Oxford
University

Avom, Vincelline Akomndja, « L’énonciation de la coutume en droit Camerounaise

de la famille: Leurre ou réalité? » (2006) 116 Penant, 59-86.

Barch, Eugène-Louis, « Contribution à l’étude de la condition juridique du conjoint

survivant » , (1965) Revue Trim. De Droit Civil, 546-550.

Bartholomew, G. W., “Private Interpersonal Law”, (1952)1 I. & C. L. Q, 325-344.

306
Bell, John, “Conceptions of Public Policy”, in Cane, P. and Stapleton, J. (ed), Essays
for Patrick Atiyah, Oxford, Clarendon Press, 1991, pp. 87-112.

Binet, Jacques, “La decvolution successorale chez les Douala du Cameroun”, (1955)
65 Penant, 33-40.

Boisdon, D., “Note sur les conflits entre le statut civil Français et les statut civils
coutumiers dans le pays D’Outre-Mer Dependant de la République Française”
published in L’Avenir Du Droit Coutumier en Afrique, Leiden, Universitaire Pers
Leiden, 1956, pp. 310-139.

Boston, J. S., “Igala Inheritance and succession,” in J. Duncan M. Derrett (ed),

Studies in the law of succession in Nigeria, Oxford, Oxford University Press, 1965,
123.

Bouckaert, F. “Les Regles de Conflit de Lois en Afrique Noire”, (1967) 77 Penant, 1-

12.

Breslauer, W., “Foreign Presumptions and Declarations of Death and English Private
International Law.” [1947]10 M.L.R. 122-136.

Brian,Schwimmer,“BrideWealth,” available at
http://wwwumanitoba.ca/faculties/arts/anthropology/tutor/marriage/dowry.html

Charles, M. F., “The scope of uniformised national laws in Cameroon.” (1990)3

Revue Juridique Africaine, pp. 59-71.

Clarence Smith, J.A, Gelg, R. and O’Brien Quinn, J.A. “The Federal Republic of
Cameroon” in A.N. Allott (ed), Judicial and Legal Systems in Africa, London,
Butterworth, 1970, pp.108-121.

Diwan, P., “Who is a Muslim” (1978) Indian Scio-Legal Journal,

Vol. IV, No.1, pp. 75-85.

Doumbe-Moulongo, Maurice, « Consequences des Juridictions de Droit Traditionnel

sur l’Evolution des Coutumes dans le Sud Cameroun,» Rev Jur. Pol. O-M, 533-572.

Emile Mbarga, « Quelques reflexions sur le Projet de la Loi Réorganisant l’etat civil
au Cameroun Oriental et Portant Diverse Dispositions Relative au Mariage. »
(1966)76 Penant, 286-302.

Eloi Lagoui: « Les Problèmes Particuliers de Codification du Cameroun. » (1966) 28

Rev. jur. Ind. Coop. 107-112,

Enonchong, N., “Public policy and Ordre Public: the exclusion of Customary Law in
Cameroon.” (1993) RADIC, vol.5, No. 3, pp. 503-524.

Enonchong, N., “Jurisdiction over disputes relating to ‘National Lands’ in Cameroon”

(1999) 11 RADIC, 100-128.

307
Ewang, Andrew Sone, “The place of customary law in the Cameroonian Legal
system” (2001) FUNDAMINA , 70-84.

Ewang, Andrew Sone, “The English Maxim ‘Quicquid Plantatur Solo Solo Cedit’ is
not a rule of Customary Law.”(1996) 26 Juridis Périodique, 19-23.

Farnsworth, E. A. “Law Reform in a developing country: A new code of obligations

for Senegal” [1964] J.A.L. 6-19.

Ghestin, J., “L’Ordre Public, Notion a contenu variable en Droit Privé Français”, in
Perelman, C. and Vander Elst, R., (ed.), Les Notion a Contenu variable en Droit,
Bruxelles, Etablissement Emile Bruyant, 1984, pp.76-97.

Glanville, Williams, “The Legal unity of husband and wife” (1947)10 M.L.R, 16-31.

Gower, L.C.B., “Nigerian Statutes and Customary Law” (1961)1N.L.J., pp. 73-92

Hahlo, H. R, “The case against Freedom of Testation” (1959) LXXVI South African
Law Journal, 435-447.

Hamisu, Rabiatu Danpullo, “Women, Property and Inheritance– The case of

Cameroon.”Recht in Africa 2005, 143-161.

Howell, Roy Carleton, “Otieno Case: African Customary Law versus Western
Jurisprudence,” in Renteln, A. D. and Dundes, A. (ed), Folk Law; Essays in the
theory and practice of lex non-scripta, Vol. 1, the University of Wisconsin Press,
1995, p. 827-844.

Ijaodola, J.O. “The Proper Place of Islamic Law in Nigeria” (1969) 3 N. L. J., pp.129-
140.

Irene Ngum, “Rethinking Female Succession to Property in Cameroon- The decline of

customary law?” Recht in Africa 2004, 121-132.

Jaffey, A. J. E., “The foundations of rules for the choice of law”, in Fentiman,
Richard (ed), Conflict of Laws, Singapore, Dartmouth, 1996.

Jain, M. P., “Custom as a source of Law in India”, in Renteln, A. D. and Dundes, A.

(ed), Folk Law; Essays in the theory and practice of lex non-scripta, Vol. 1, the
University of Wisconsin Press, 1995, p. 74.

Jude Awuba and Gloria Macassa “HIV/AIDS in Cameroon: Rising gender issues in
policy-making matters,” at http://www.bioline.org.br/pdf?jh07018

Kamga, Victor, Le Droit Coutumier Bamiléké au contact des droits Européen,

Yaoundé, 1959,

Kasunmu, A. B., “Intestate Succession in Nigeria” (1964)1 N.L.J., pp. 50-58.

308
Krzeczunowicz, G. “The Ethiopian Civil Code: Its usefulness, relations to custom and
applicability” [1963] J.A.L. 172-177.

Kollewijn, R.D., “Conflicts of Western and Non-Western Law”, in Renteln, A. D.

and Dundes, A. (ed), Folk Law; Essays in the theory and practice of lex non-scripta,
Vol. 1, the University of Wisconsin Press, 1995, pp. 775-793.

Knight, W.S.M., “Public Policy in English Law” 1922] CL, L.Q.R., pp. 207-219.

Lorenzen, Ernest G. “The Qualification, Classification, or Characterisation Problem

in the Conflict of Laws” [1941] 50 The Yale Law Journal, 743-761.

M.D. “Les Nouveaux Statuts du Togo et du Cameroun”, (1958-59) 68-69 Penant,

175-198.

Mangin, G., “L’Organisation Judiciaire de L’Afrique Equatoriale Française et du

Cameroun”, in L’Avenir Du Droit Coutumier en Afrique, Leiden, Universitaire Pers
Leiden, 1956, 198-207.
Maticou Rou, “L’Organisation Judiciaire du Cameroun” (1969) 79 Penant, 33-65.

Mbah, Emmanuel, “The conflict of laws dilemma: Divorce in the conflict of laws in
Cameroon,” (2000) 44 Juridis Périodique, pp. 65-73.

Mbouyom, Francois-Xavier, « Le statut juridique, politique et social de la femme au

Cameroun.» (1974) 28 Rev. Jur. Pol. Ind. Coop. 600-612.

Mbouyom, Francois-Xavier, « Les Mecanismes Juridiques de Protection des Droits de

la Personne au Cameroun. » (1982) 36 Rev. Jur. Pol. Ind. Coop. 58-72.

Melone, S., “le Droit Successoral Camerounais: Etude de Qulques Points en

Jurisprudence (1979) 17/18 Cameroon Law Review, pp. 53-97.

Mohamed Salah Rached Sammari, “Reflexion sur la Condition de la Femme en Droit

Musulman,” (1974) 28 Rev. Jur. Pol. Ind. Coop. 548-557.

Morris, J.H.C., “Intestate Succession to Land in the Conflict of Laws” [1969] 85

L.Q.R., pp. 339-371.

Morris, H.F., “Attitudes towards succession law in Nigeria during the colonial period”
[1970] J.A.L., pp. 5-16.

Ndoko, N-C., “L’idée d’egalité dans le Droit Successoral Camerounais: dernières

tendances de la Jurisprudence en matière de la succession ab intastat” Yaoundé, 1990
(unpublished ), p.59.

Ngongang-Ouandji, Andre, “La devolution successorale au Cameroun”, (1972) 26

Rev. Jur. Pol. Ind. Coop. 639-662.

Nguini, Marcel, « Droit Moderne et Droit Traditionnel » (1973) 83 Penant, 1-10.

309
Ngwasiri, C.N. “The impact of the present land tenure reforms in Cameroon on the
former west Cameroon.” (1984) Cameroon Law Review, pp. 73-85.

North, P. M., “Choice in Choice of Law” in Fentiman, Richard (ed), Conflict of Laws,
Singapore, Dartmouth, 1996.

Nwogugu, E. I. “The validity of Church Marriages in Nigeria (Anyaegbunam v.

Anyaegbunam), (1974) 8 N. L. J.142-148.

Odje, M., Timothy Tanloju Adesubokan v. Rasaki Yinusa: Choice of law- An

irredeemable step? Nigeria Lawyers’ Quarterly, vol, 6, Nos. 1-4, pp.194-196.

Odje, M. “Integration in the field of the law of succession in the Mid-Western Region
of Nigeria” in Integration of customary and modern legal systems in Africa,
University of Ife Press, Ile-Ife, Nigeria, 261-292, 285-288.

Okoth-Ogendo, H.W.O., “Property Systems and Social Organisation in Africa: An

Essay on the Relative Position of Women under Indigenous and Received Law,” in
Takirambudde, P. N. (ed.) The individual Under African Law, Gaborone, University
of Botswana, 1982, 152.

Pierre Lampue, Case Commentary, (1978) 88 Penant, 99-102.

Robert, André P., “Attitude du Legislateur Français en Face du Droit Coutumier

d’Afrique Noire”, in L’Avenir Du Droit Coutumier en Afrique, Leiden, Universitaire
Pers Leiden, 1956, 170-185.

Roger Cagan, “Contribution à l’Histoire de la Justice au Cameroun,” (1966) 20 Rev.

Jur. Pol. Ind. Coop. 3-18.

Rubin, N. N. “Matrimonial law among the Bali of West Cameroon: A Restatement”,

(1970) 14 J.A.L 69-97.

Rudolph De Bruin, “Presumption of Death: Its legal Consequences”, (1978) 95 South

African Law Journal, 577-580, 577.

Sagay, Itse, “Widow Inheritance Versus Monogamous Marriages: The Obas’

Dilemma,” (1974) JAL 168-172.

Salacuse, J.W., “Birth, Death, and the Marriage Act: Some Problems in Conflict of
laws” (1964)1 N.L.J., 59-72.

Savatier, René, “Successions et Liberalités” (1977) Rev. Trim. De Drt. Civ. 801-805,
802

Simon Tabe Tabe, “Property adjustment after divorce in Cameroonian statutory law:
Rapprochement of the common and civil law systems?”, 2 RADIC (2002), 703-717.

Simpson, M. R. “Towards a definition of ‘absolute ownership’: II” [1961] J.A.L.145-

150.

310
Skinner, K., “Reading, Writing and Rallies: The politics of Freedom in Southern
British Togoland, 1953-1956” (2007) 48 Journal of African History, pp. 123-147.

Smith, M. G., “Hausa Inheritance and Succession,” in J. Duncan M. Derrett, Studies

in the Laws of Succession in Nigeria, Oxford, Oxford University Press, 1965,252-
253.

Tahir Mahmood, “The Grandeur of Womanhood in Islam.” (1986) 5(1) Islamic and
Comparative Law Quarterly, 1-14.
Timtchueng Moise, ‘The gradual disappearance of the particularities of traditional
courts in Cameroon’ in Open Society Institute (Africa Governance Monitoring &
Advocacy Project, AfriMAP, Oct 2005), 1-5 at 1. Available online at:
www.afrimap.org/english/images/paper/file436f7 cb73c2d1.doc

Unger, “The Inheritance Act and Family” (1943) M.L.R. 215-228.

Van Den Wiele, “Les Systemes Familiaux et Matrimoniaux au seins de Societes

Negro-Africaines », (1963)17 Rev. Jur. et Pol. d’Outre-Mer, 429-507.

Vubo, Emmanuel Yensu, “Matriliny and Patriliny Between Cohabitation-Equilibrium

and Modernity in the Cameroon Grassfields.” jamboafrica.kyoto-u-
ac.jp/kiroku/asm_normal/abstract, 156.

Watson, A., “An Approach to Customary Law”, in Renteln, A. D. and Dundes, A.

(ed), Folk Law; Essays in the theory and practice of lex non-scripta, Vol. 1, the
University of Wisconsin Press, 1995, pp. 141-156.

Williams, T. C., “The Terms Real and Personal in English Law” (1888) 16 L.Q.R., p.
394

Winfield, P. H., “Public policy in English Common Law” (1928-29) XLII Harvard
Law Review, pp. 76-101.

Woodman, G. R., “Some realism about customary Law–The West African

Experience”, in Renteln, A. D. and Dundes, A. (ed), Folk Law; Essays in the theory
and practice of lex non-scripta, Vol. 1, the University of Wisconsin Press, 1995,
pp.83-110.

Woodman, G.R., “How State Courts Create Customary Law in Ghana and Nigeria”,
Morse, B.W. and Woodman, G.R. (eds), Indigenous Law and the State, Foris
Publications Dordrech-Holland/Providence RI-USA, 1988, pp. 181-215.

Woodman, G. R., “Legal Pluralism and the search for Justice” [1996] J.A.L., pp. 152-
167.

Woodman, G. R. “Two Problems in matrilineal succession” (1969) 1 Rev. Ghana

Law, 6-30.

311
Woodman, G. R., “Judicial Control of the Family Meeting”, (1981-82) 13 &14
Review of Ghana Law. 222-226.

Youego, Ch., “La situation juridique du conjoint survivant au Cameroun,” (1990) 2

African Law Review, pp. 17-44.

Yvon Gouet, « L’Article 82 (Paragraphe1) de la constitution relatif à l’option de satut

et élaboration de la ‘théorie des ststuts civils’ du droit Francias moderne, » (1957) 67
Penant 1-94.

III. Others

Anye Dieudonné, “Avoiding the Effects of Matriliny in the Balue Tribe in Ndian
Division,” term paper Faculty of Law, University of Dschang, 2004(unpublished).

Ache Nforba Jupiter, “Avoiding the effects of matrilineality in Kom, ” term paper,
University of Dschang 2004 (unpublished).

Bih Che et al., “Intestacy and Widowhood in two Patrilineal Tribes: Mankon and
Nkambe,” term paper presented to the Faculty of Law and Political Science,
University of Dschang, 2002.

Black’s law Dictionary, 6th edition, Centennial Edition, 1881-1991.

Burke, J., Jowitt’s Dictionary of English Law, 2nd Edition, London, Sweet and
Maxwell.

Chianan, Wango, “Theory and Practice of Matrilineal Succession.” term paper,

Faculty of Law, University of Dschang, 2003 (unpublished).

Dahl, H. S., Dictionaire Juridique Dahl, Paris, Dalloz, 2001.

Elvis Tah, “Court Rules in favour of corpse” in The Post Newspaper, available at
http://www.thepostnewsline.com

Edith, Ndima, “Theory and Practice in Matrilineal Tribes,” term paper, Faculty of
Law, University of Dschang, 2000 (unpublished).

Guy Bertrand, Momo, Le Partage des successions en droit Camerounais, University of

Dschang, Maitrise dissertation, 1997, 45-48 (unpublished).

John Anthony Howard, “Customary Law of Marriage and Succession among the Kom
of Cameroon”, Ph. D. thesis, University of London, 1972 (unpublished).

Julius, Ngape, “Property Rights of Female Children in the Mbonge tribe,” term paper,
Faculty of Law, University of Dschang, 2004 (unpublished).

312
Kwende, Chantal, “Procedure for designating the next-of-kin and his powers over
property in the Baforchu tribe” Term Paper, University of Dschang, 2000.
(unpublished).

Lurshe, Chuye, “Avoiding the effects of Matriliny: Case study: Kom,” term paper,
Faculty of Law, University of Dschang, 2003 (unpublished).

Mikano Emmanuel Kiye, “The Importance of Customary Law in Africa: A

Cameroonian case study”, Doctoral Thesis, VRIJE UNIVERSITEIT BRUSSEL,
June 2007.

Ngoli Ze Irene, “Attitude of the rural woman towards the rule that a woman cannot
inherit property.” Term Paper, University of Dschang, p. 4, (Unpublished).

Nkengong, John Monie, “The Development of the Laws and Constitutions of

Cameroon” Ph. D Thesis, University of London, 1970 (unpublished).

Ntamark, P. Y. “Constitutional Development of the Cameroons since 1914,” Ph. D.

Thesis, London University, 1969, 78-79 (unpublished).

Osborn, P.G., A concise Law Dictionary, London, Sweet and Maxwell, 1954.

Pougoué, P. G. and Anoukaha, F., “Legislation Comparée Cameroun”Encyclopédie

de Droit Comparé, Jurridclasseur, vol. 1 1996.

Pougoué, P. G. “La systematisation du droit privé au Cameroun: Apropos

de la famille et de la terre, thesis, Bordeaux, 1977.

Victor, Keubou, “Procedure for designating next-of-kin in Bafou (Bamileke)” term

paper presented to the Faculty of Law and Political Science, University of Dschang,
2000.

The Holy Bible.

The Holy Quran.

UNAIDS Report on Global Aids Epidemic July 2008, at

http//www.globalhealthreporting.org/countries/cameroon.asp?

Youego, Ch., “Sources et Evolution de Droit des Succession aux Cameroun,”

Doctorat thesis, university of Paris II, 1994.

http://www.infoplease.com/ce6/world/A0857142.html,
last consulted 14 June, 2008.

http://en.wikipedia.org/wiki/Cameroon#culture Last consulted 14 June 2008

313