The North West regional Administrative Court has passed judgment on the law suit pitting the Fon of Njap
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| Fon of Njap |
In the ruling dated December 24, the court outlined the genesis of the dispute – that the SDO for Donga Mantung, had taken a decision giving the divisional officer for Mesaje subdivision and his security collaborators powers to administer a quarter in Njap community known as Ngong-Njap, found in Nkambe subdivision. At the time of the SDO’s order, the Ngog-Njap community was under disputed between the Fon of Njap and that of Kamine village. The dispute had been prompted by the death of the sub-chief of Ngong, killed on March 3, 2015.
In the Fon of Njap’s petition to the administrative court, he stated among other things, that the “SDO knew very well that Ngong is found in Njap under Nkambe Central.” He told the court president, Rose Mbah Acha Fomundam, that the SDO’s decision was a subtle method to reduce the scope of his village and allocate part of it to another village for personal reasons.
The verdict of the court simply annulled the prefectoral decision and gave the traditional ruler the right to carry out traditional rites on the disputed locality in honour of the dead sub chief.
The court also pointed out among other reasons for the verdict, that the prefectoral order, ‘solving’ a land dispute, was “not arrived at by a legally constituted commission as envisaged by Decree No 78/322 of 03/08/1978 on the creation of commissions for the settlement of boundary disputes between administrative units and disputes between traditional communities.”
Below is the complete judgement:
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Ruling of the No NWAC/002/SE/2015 BETWEEN: FON OF NJAP VS STATE OF CAMEROON SDO NDONGA MANTUNG)
In conformity with the provisions of section 31 OF Law no 2006/022 of 29th December 2006 to lay down the organization and functioning of the administrative courts, I have the honour to notify you of the certified copy of ORDER No 009/SE/PC/2015 on STAY OF EXECUTON delivered on the 28 of July 2015 by the President of the North West Administrative Court in the above cited suit.
Article 1: The Application for a stay of execution of Prefectural order No 094/PO/E27/C.111/SASC to temporarily regulate the performance of traditional rites in MOH/TCHINA (Ngong/Tchina) quarter disputed by Njap Village in Nkambe Subdivision and Kamine village in Misaje Sub-division, is hereby granted
Article 2: The effects of the said prefectoral order No 094/PO/E27/C.111/SASC (supra) are suspended.
Article 3: Cost is reserved.
Article 4: The registrar-in-chief of this court shall notify the parties and he Legal Department.
-in the year twenty fifteen
-And on the 28th day of July
We, Mbah Acha nee Rose Ngwari Fomundam, President of the Administrative Court, North West region, Bamenda;
-Mindful of Law No 2006/022 of the 29/12/2006 to lay down the organization and functioning of administrative courts;
-Mindful of Decree No 2012/119 of 15/03/2012 creating Administrative Courts in the Regions;
-Mindful of Decree No 2012/194 of 18th April 2012 bearing on the appointment of judges at the Administrative Courts
-Considering the stamped application; dated 10/06/2015 filed in the registry if this court on the 11/06/2015 with registration No 186;
Considering the submissions of the Learned Procurer General dated 15/07/2015 and filed in the registry of this court on 23/07/2015 with registration number 263-2015, wherein, he urged the court to reject the prayer sought in the application;
-considering that by the above mentioned stamped application, Barrister Suh Fuh Benjamin of Amity Chambers Bamenda, acting on behalf of his client/ the applicant, the Fon of Njap seized the President of this court with an urgent administrative interlocutor application, wherein, he prays the President for an order staying the execution of Prefectoral order No 094/PO/E7/C.111/SASC of the 8th of April 2015, issued by the Senior Divisional Officer of Donga Mantung Division pursuant to Article 30 of Law No 2006/022 of 29th December 2006;
Whereas the facts of the application are stated in the application and are as follows:
“1) the petitioner is the Fon of Njap, thus the traditional ruler of his people and Ngong is one of the quarters in his fondom.
2) On the 31/03/2015, the sub-chief of Ngong was murdered in his house and criminal investigations are on.
3) He was buried on the 04/04/2015 at Ngong in Njap accordingly to the customs and tradition of the Njap people.
4) The respondent summoned a meeting between the Fon of Kamine Village and that of Njap on the 04/04/2015
5) The decisions that were arrived at were not those that the prefectoral order No 094/PO/E.27/C.111/SASC of 08/04/2015 bore.
6) On the 17/04/2015, the petitioner wrote to the respondent in protest of the articles in the prefectoral order, but unfortunately did not obtain proof of service.
7) The petitioner later on briefed counsel who on the 12/5/215 wrote to the respondent, calling on him to annul the Prefectoral order No 094/PO/E.27/C.111/SASC of 08/04/2015 and the said correspondence was served by Maitre Mbock Didier, Lord Sheriff Bailiff in the 13/05/2015. The said correspondence and the proof of service are herewith attached and marked with ‘A’ and ‘B’ respectively.
8) The prefectural order No 094/PO/E.27/C.111/SASC of 08/04/2015 is certified and attached and marked ‘C’.
9) That prefectoral order gave the divisional officer for Mesaje and his security collaborators in its Article 4, the powers to administer the Quarter Ngong on account of Promiximity, when he knew fully well that Ngong is found in Njap under Nkambe Central.
10) Nkambe Central Sub-Division has more security officials than Mesaje and it is in an outright abuse of constituted authority for a sub divisional officer of another Sub-Division to be asked to administer part of another Sub-Division on grounds of proximity.
11) That the petitioner considers the act of the respondent as a tacit method to reduce the scope of his village on terms of land and population and allocate same to another village for personal reasons.
12) That the respondent s a supervisory authority over the petitioner but cannot decide issues that touch on the native rights and customs of the people.
13) That in the Prefectoral order the names of the deceased Sub Chief Ndingansi were wrongly spelt as Ndingante and in annexure “A” the right spelling was mentioned.
From the afore going, the petitioner prays he honourable court for the following:
• For a stay of execution of Prefectoral Order No 094/PO/E.27/C.111/SASC of 08/04/2015, pending the hearing and determination of an eventual substantive suit.
• Declare that the territorial boundaries of Nkambe Central Sub Division and Mesaje be respected.
• Declare that the traditional rites of late sub chief Ndingansi(not Ndigante) be performed by the petitioner”
-Considering that by correspondence No NWAC/REG/SE/003/2015 OF 22/06/2015, the respondent, the Senior Divisional Officer for Donga Mantung Division was served by the Registrar-in-chief of this court, with a copy of the application;
-Considering that in his filed defense, the respondent urged the court to reject the prayer sought in the application on the following grounds:
1. a) That article 2 of Law No 2003/016 of 22nd December 2003 regulating disputes concerning the boundaries of administrative units and boundaries of traditional fondoms ousts the jurisdiction f the courts for the annulment of an administrative act taken to delimit the territorial competence of administrative units and traditional rulers.
2. b) That the applicant has failed to show that the execution of the said Prefectoral order will cause him irreparable damage.
3. c) That the Prefectoral order challenged concerns public order; security and public peace since it is a primordial and permanent duty of an administrative authority to take all necessary measures to prevent all danger to public peace, security of goods and persons and reestablish public order if threatened.
-Considering that this application is filed pursuant to the provisions of article 30 of Law No 2006/022 of the 29/12/2006 on the organization and functioning of Administrative Courts which states:
1) The filing of a pre-litigation complaint against an administrative decision does not suspend its execution.
2) However, when execution is susceptible to cause irritable injury and that the contested decision does not concern public order, security or tranquility, the President of the administrative court to which an application has been filed, after communicating to the respondent and after submissions of the Legal Department, order the stay of execution.
ON ADMISSIBILITY:
-Considering that Article 30 cited herein above makes it a condition precedent for the admissibility of an urgent application filed under the said Article, that the applicant must show Proof of having lodged a pre-litigation complaint;
-Considering that the applicant in the instant case annexed exhibit “A”, to the application, dated 12/05/2015, captioned Pre-litigation letter Re: Appeal for the annulment of Prefectoral order and addressed to the Senior Divisional Officer Donga-Mantung Division Nkambe;
Considering the unchallenged allegation that the challenged Prefectoral order was served on the petitioner on the 09/04/2015;
Hold that the pre-litigation complaint, exhibit “A”, was filed within time and addressed to the appropriate authority as per the provisions of article 17 of Law No 2006/022 of the 29/12/2006 and accordingly,
-Declare the application admissible
ON THE MERITS
-Considering that according to the provisions of Article 30 of Law No 2006/022 of 29/12/2006, the applicant, to succeed must prove that execution of the challenged administrative decision is liable to cause irreparable damage, and in the instant case, the applicant has shown that the execution of the challenged decision
Will cause irreparable harm, in that it will implicitly lead to insecurity as the petitioner alleges eminent discontent in the following paragraphs:
“9) That the prefectoral order gave the Divisional Officer for Mesaje and his security collaborators in its article 4, the powers to administer Ngong on account of proximity when he knew fully well that Ngong is found in Njap under Nkambe Central.
11) That the petitioner considers the act of the respondent as a tacit method to reduce the scope of his village in terms f land and population and allocate same to another village for personal reasons”
-Considering that, even though the challenged decision concerns measures of public order, security and tranquility, executing it may lead to more disorder and insecurity between the two villages;
-Considering that the petitioner alleges in the petition that they intend to file a substantive matter challenging the prefectoral order;
-Considering that there is likelihood that the petitioner may succeed in the substantive suit, as the challenged decision was not arrived at by a legally constituted commission as envisaged by Decree No 78/322 of 03/08/1978 on the creation of commissions for the settlement of boundary disputes between administrative units and disputes between traditional communities.
Hold on the basis of the foregoing that the application will succeed. Accordingly:
ORDER AS FOLLOWS
Article 1: The application for a stay of execution of No 094/PO/E.27/C.111/SASC to temporarily regulate the performance of traditional rites in MOH/TCHINA (Ngong/Tchina) quarter disputed by Njap village in Nkambe Sub Division and Kamine village in Misaje Sub Division, is hereby granted.
Artilce 2: The effects of the said Prefectoral order No 094/PO/E.27/C.111/SASC (supra) are suspended.
Article 3: Cost is reserved.
Article 4: The Registrar-in-chief of this court shall notify the parties and the Legal Department.
In witness whereof, the ruling has been signed by the President of this court
Signed
Maitre Nkuelle Francis Ndene
GREFFIER PRINCIPAL
JURIETE
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