PRINCIPLES OF CIVIL LITIGATION

Bar Part I Training Seminar (2024) - Yaounde, April 11

By

Prof Atangcho N Akonumbo

Dean Faculty of Laws and Political Science

University of Buea

Introduction

litigation is a legal process that allows a person or entity (plaintiff/claimant) to sue another person or
entity (defendant) over some form of harm or wrongdoing or breach, and does not include criminal
accusations. If the court rules in favour of the plaintiff, they are typically awarded damages or a form
of compensation to be paid by the defendant. In the broadest sense, civil litigation is any legal
proceeding that does not involve criminal charges or penalties. The dispute in civil litigation may arise
from:

o breach of contract
o Tort
o Product liability
o Construction liability
o Medical malpractice
o Personal injury
o Real estate disputes
o Workers' compensation claims
o Divorce
o Intellectual property disputes
o Anti-trust litigation*
o Landlord/Tenant relations etc

There are cardinal principles governing civil litigation deriving in greater part from the general
principles of law. The principles of civil litigation are tenets that guarantee the validity and
acceptability of a civil action and are different from the practicalities of the process (procedural rules
or procedure proper). In fact they ensure an effective procedure. These principles are of a universal
character and are true to any civil litigation processes, having been codified over the centuries from
different systems, and as such, will not be per se focused on our civil litigation system. Certainly, there
is scope for radical differences of approach on aspects of practice in different systems like civil and
common law divide, but the elements discussed here reveal the radical split between different legal
traditions based on principled contrasting approaches. This is more likely to be helpful to future
practising lawyers that you are, operating a ‘semi dual’ legal system, than a mere confusing statement
of an illusory compromise or a mistaken statement of ‘universal common ground’. I will try to make
this discourse less academic as much as possible for reasons of practicality and assimilability.

The Principles

The principles discussed here have largely been tapped from the European Convention on Human
Rights and as redefined by Professor Neil Andrews of the University of Cambridge.
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Briefly, Article 6 (1) of the Convention, is a codification of fundamental principles. It embraces the
following elements: 1. the right to be present at an adversarial hearing; 2. the right to equality of arms;
3. the right to fair presentation of the evidence; 4. the right to a reasoned judgment 5. ‘a public hearing’:
including the right to a public pronouncement of judgment; 6. ‘a hearing within a reasonable time’; 7.
‘a hearing before an independent and impartial tribunal established by law; and 8. the implicit
fundamental right of ‘access to court’.

Hence, the leading and fundamental principles of civil justice can be arranged using a four-fold
classification designed by Professor Andrews, which he calls “the four foundations of civil justice”.
The principles seem to be ordered in the natural sequence of civil proceedings.

1. Access to Legal Advice and Dispute-Resolution Systems

2. Equality and Fairness between the Parties
3. A Focused and Speedy Process
4. Adjudicators of Integrity.

One is tempted to complete this list by adding that greater attention should also be given to the
following factors, which enhance the four foregoing principles:

➢ Pre-action coordination of exchanges between the potential litigants – efficient and effective
service of court processes etc;
➢ The interplay of mediation and litigation;
➢ Costs and funding (the expense of litigation is the greatest impediment to effective civil
justice);
➢ Evidential privileges and immunities (notably, attorney-client privilege, protection of
negotiation and mediation discussions)

1. Access to legal advice and the adjudicatory forum . This category embraces five principles.

a. Access to Justice: In addition to any other considerations that a litigant’s counsel should take
into account, it is advisable, before commencing proceedings in court, to consider five important
issues that would most likely affect the action. These are:
i. Whether the proposed plaintiff or claimant has a cause of action;
ii. Whether the proposed court has jurisdiction in the matter;
iii. Whether all conditions precedent have been satisfied;
iv. Whether the action is not statute barred; and
v. Locus Standi
i) Cause of Action

A cause of action is a factual situation the existence of which entitles a person to obtain from the court
a remedy against another person. Such factual claim must be recognized by the law as giving rise to a
substantive right capable of being claimed against the defendant. In practical terms, the cause of action
will be the facts constituting the essential ingredients of an enforceable claim. For an action to be
maintained in court, it must show a reasonable cause of action, that is, a cause of action that has viewed
independent of defence. It is the duty of counsel to conduct a proper research prior to the
commencement of an action to ascertain the legal basis or principles of law on which the factual claim
is based not to do so may be fatal to the action.

ii) Jurisdiction

A court of law can only exercise judicial powers when it has jurisdiction. Jurisdiction is the legal
capacity of a court to hear and determine judicial proceedings. It is the power to adjudicate concerning
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the subject matter of the controversy. Jurisdiction is fundamental in any proceeding and lack of it is
fatal to such proceedings.

In Sanusi V. Ayoola it was held that “where there is any defect in competence of a court to adjudicate
on a matter, such defect is fatal to the proceedings and will render the proceedings, however well
conducted and decided they may be a nullity. It is immaterial however sympathetic the cause or
application may seem”.

Jurisdiction is divided into two, material and territorial jurisdiction.

iii) Material Jurisdiction

Jurisdiction is governed by section 15 and 18 of law No 2006/015 of 29 December, 2006 on judicial

organization which relates to the court of first instance and the high court respectively. Section 15 of
the above cited law limits the material jurisdiction of the court of first instance to below ten million
while section 18 places the material jurisdiction of the high court to an amount above ten million.

iv) Territorial Jurisdiction

It is the distribution of courts in the various towns in Cameroon. Each sub division has a court of first
instance each division has a high court each region has a court of appeal and the regional administration
court. We have the Supreme Court in Yaoundé and equally other special courts, like the special
criminal courts. The criteria for competence of a court were adumbrated in Madukolo v. Nkemdilim as
follows.

➢ The court must be properly constituted as regards numbers and qualification of the members
of the bench and no member is disqualified for one reason or another. (See the people of
Cameroon vs Fon Doh.
➢ The subject matter of the case must be within the court’s Jurisdiction and there must not be any
feature in the case which prevents the court from exercising jurisdiction.
➢ The case before the court must be initiated by due process of law and upon fulfillment of any
condition precedent to exercise of jurisdiction. A suit relating to land shall be commenced in
the judicial division where the land is situated. Action for breach of contract shall be brought
where the defendant resides or where he carries on business.

v) Condition Precedent

Sometimes, the law requires certain conditions to be satisfied before filing an action in court. Such
conditions precedent may be by way of service of pre-action notice or satisfaction of other steps
required by law before commencement of action.

The following are examples. In recovery of premises, the court cannot exercise jurisdiction unless the
landlord has served on the tenant prior to the commencement of the action, the statutory notices to quit
and of the landlord’s intention to recover possession of premises. The service of these statutory notices
has been held to be a condition precedent for commencement of action of recovery of premises.

vi) Statute Bar

The law sometimes places limitation in bringing certain action in court. A cause or matter is, therefore,
statute barred if in respect of it the proceedings cannot be brought because the period laid down by the
limitation law had lapsed. A party will, therefore, not be allowed to institute proceeding after the lapse
of the prescribed period. The following are the limitation periods prescribed by the limitation laws.

- Action founded on simple contract – 6years

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 - Action for damages for negligence
- Action for damages for lender 3years.

The limitation period begins to run when the cause of action accrues and the period of limitation is
determined by looking at the writ of summons and the statement of claim alleging when the wrong was
committed which gave the plaintiff a cause of action and by comparing that date with the date on which
the writ of summons was filed. If the time on the writ is beyond the period allowed by limitation law,
then the action is statute barred.

vii) Locus Standi

The term Locus Standi denotes the legal capacity to institute proceedings in a court of law and is used
interchangeably with terms like “Standing” or Title to Sue”. Essentially, locus standi is the way in
which the courts determine who may be an applicant for judicial review or remedies.

b. The right to choose a lawyer

c. protection of confidential legal consultation
d. protection against bad or spurious claims and defences
e. promoting settlement and facilitating resort to alternative forms of dispute-resolution, notably
mediation and arbitration.

2. Equality and fairness between the parties. This category embraces five principles:
a) Procedural equality
b) Disclosure of information by each party to the other
c) Accuracy of decision-making
d) Fair play between litigants - avoidance of cheating and unfair gamesmanship
e) Procedural equity - avoidance of the zero-tolerance mentality which can cause procedure
to become a source of tyranny rather than the handmaiden of justice.

3. Focused and Speedy/Expedient Process. This rubric embraces five principles:

a) Judicial control of the civil process to ensure focus
b) Proportionality in the conduct of proceedings (It is a general principle of law that is
underpinned by the need for fairness and justice. Hence, the legality of an action is
determined by the respect of the balance between the objective and the means and methods
used as well as the consequences of the action. E.g. obtaining a just result in litigation with
appropriate speed and expense.
c) Avoidance of undue delay
d) Effectiveness, especially to ensure compliance with judgments and other procedural
obligations
e) Finality

4. Adjudicators of Integrity. here there are five constitutional law principles:

a) Judicial independence
b) Judicial impartiality standards governed by this
c) Judicial duty to avoid surprise: the principle of due notice: audi alteram partem
d) The judicial duty to give reasons
e) Publicity or open justice.

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Conclusion

If courts/judges display high ethical standards governed by this demanding set of procedural civil
litigation principles, justice will be meted. Besides, the value emphasising these principles is that they
are an antidote to the numbing and bewildering complexity, detail, and technicality which sadly
characterise many national procedural systems.

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