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The Structure of Succession Law in Cameroon: Finding A 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 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties.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
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