J-13-219

MEASURES OF EXECUTION — ATTACHMENT OF PROPERTY — SPECIFICATIONS — DECLARATIONS AND OBSERVATIONS — EVENTUAL HEARING — MORTGAGE DEED — GUARANTOR — CONTRACT OF GUARANTEE — FAILURE TO SERVE SUMMONS — EXECUTORY FORMULA — SURETY — BOND — ACKNOWLEDGEMENT OF LOAN — POWER OF ATTORNEY — MORTGAGE OF MATRIMONIAL HOME — RIGHTS OF CO — OWNERS — ORDER OF SALE

The counsel for the judgment debtor contested the attachment for sale of the property of Mr Fon Festus Suh, who according to him was not a party to the mortgage deed nor was he a guarantor or borrower. Since the property in question was the matrimonial home, the court had to determine the rights of the wife over the matrimonial home. As per section 17 of the Married Women’s Property Act 1882 applicable in Cameroon, the woman is a co-owner of the home. According to section 121 of the 1997 Uniform Act Organising Securities, mortgages granted by all the co-owners of joint property shall remain effective regardless of the outcome of any subsequent sale by auction or sharing of the property. If the mortgage is to be granted by one co-owner, he needs the consent of other co-owners. Mr Fon Festus Suh consented to the mortgage made over the matrimonial home by his wife and could no longer dispute the sale of the property.

The judgment creditor filed specifications at the registry of this court on the 19th day of September 2012. In consonance with the provisions of article 269 of the Uniform Act on Simplified Procedure for Recovery and Measures of Execution hereinafter referred to as the UASPRME, the judgment debtors were duly served to take cognizance of the specifications at the registry of this court. The judgment debtor in response and within the requisite time limit filed declarations and observations in the registry of this court on the 22nd day of October 2012.

The eventual hearing which was slated for the 30th day of September 2012 took place on same date; the learned counsel for the judgment creditor, having duly replied to the observations of the judgment debtor prayed the court to proceed to rule on the issues in contention.

Counsel for the judgment debtor in his observations and declarations submitted that the mortgage deed sought to be executed was a contract between PAMELA SIRRI LONGTCHA AWASSOM and NTARIKON COOPERATIVE CREDIT UNION LTD. That Mr. FON FESTUS SUH who witnessed the deed is not a party to same. That though the property in contention is in the name of the latter, he is neither mentioned as a guarantor nor as the borrower.

The learned counsel proceeded to submit that Mr. FON FESTUS did not engage a loan with the judgment creditor thus, he is not a borrower per se. He strenuously sought to establish that the memorandum of acknowledgment which was signed by Mr. FESTUS is a nullity since the actual debtor is PAMELA SIRRI LONGTCHA AWASSOM who is not the owner of the land. On this point, counsel submitted that there is no contract of guarantee from the owner of the land. That Mr. FESTUS the purported guarantor rather signed as a witness. Thus, there is no contract of guarantee between the debtor and the purported guarantor.

Referring to the processes served by the judgment creditor, counsel for the judgment debtor emphatically stated that same are legal nullities since the land certificate in issue is not the subject of a legal mortgage. The processes referred to by counsel are the summons to pay and the certificate of the filing of the specifications. It was also submitted that Mr. FON FESTUS was not served with the summons to take cognizance of the specifications.

With reference to the executory formula affixed on the mortgage deed, counsel submitted that same was defective for want of a date and the fact that it was issued without an order of the court.

The learned gentleman alluded to the fact that PAMELA LONGTCHA AWASSOM is not indebted to NTARIKON CREDIT UNION LTD in the sums of money alleged, since she made a payment in the sum of 300.000 FCFA on the 19th day of July 2012. That the pay in slip issued by NTARIKON CREDIT UNION LTD indicated a loan balance of 8.787,606 FCFA, an amount in sharp contrast to that mentioned in the specifications.

In reply, barrister AKUM MICHAEL of counsel for the judgment creditor stated thus; that contrary to the allegations in paragraph 5 of the declarations and observations of the judgment debtor, FON FESTUS SUH is the husband of the borrower and the guarantor of the loan which is secured with their matrimonial home. Counsel submitted that Mr. FON FESTUS signed the mortgage deed as the husband of the borrower and on that score, willingly executed the power of attorney.

The learned gentleman pertinently referred this court to annex B exhibited in his reply to the declarations and observations of the judgment debtor. Exhibit B is a copy of suit number HCB/224M/12 filed by the judgment debtor wherein they admitted that Mr. FON FESTUS guaranteed the loan contracted by SIRRI PAMELA. Counsel further submitted that the reference to the fact that the mortgaged property belonged to the debtor is not wrong since a matrimonial home is considered the joint property of the spouses.

The mortgage deed is signed by the lender and the borrower; it is further by Mr. FON FESTUS under the words ‘in the presence of’. The learned counsel for the judgment debtors maintain that the former signed as a witness, that it is not stated therein that he signed as a borrower or a guarantor.

In order to ascertain the validity of the deed, it is of prime import to examine the position of the law in relation to a valid mortgage deed and thereafter proceed to examine the requirements of a valid real property guarantee. The law governing mortgage is embodied in the Uniform Act on Securities. The instrument in issue was drawn on the 16th day of April 2008, by virtue of article 227 of the Uniform Act on Securities 2010; all securities contracted before the enactment of the amended Act are governed by the provisions of the Uniform Act of Securities 1997. Thus, the applicable law is therein embodied.

A collateral security is provided for in article 2 of this Uniform Act which shall be the undertaking by one person to be answerable for the obligation of the principal debtor in case of the latter’s default or at the first call of the beneficiary of the guarantee.

A secured debt shall consist in the right of the creditor to ask for payment preferentially, from the proceeds of the sale of personalty or realty used to guaranty the debtor’s obligation.

In the present case, the security is in the form of a deed thus it is provided for in article 3 of the Act of Instance as a contract in which the guarantor undertakes, and the creditor accepts to perform the debtor’s obligation if the latter fails to perform it himself. Such undertaking may be contracted without the creditor’s authority without his knowledge.

The law in relation to the specificity of a surety-bond is of very strict application. Article 4 reads; Whatever the nature of obligation guaranteed, the surety bond shall not be presumed.

Under penalty of being declared void, it shall be expressly agreed upon between the guarantor and the creditor. A surety bond shall be recorded in a deed bearing the signature of the two parties and indication in the guarantor’s handwriting of the maximum amount guaranteed in words and in figures. Where the two differ, the surety bond shall be good for the amount in words.

In the present case, the purported guarantor did not make any endorsements in his own handwriting, let alone specifically mentioning the maximum amount guaranteed. The content of the mortgage deed does not refer to Mr. FON FESTUS as the guarantor. In fact, the deed is titled :

Article 4 afore cited is unequivocally clear as to the non-presumption of a surety-bond. The nullity of a surety-bond drawn in derogation of the provisions of article 4 UAS 1997 has been severally reiterated in a plethora of case law. To cite a few;

In ordonnance N° 794 TIOMA HELEN KAMCHE SARL c/ Mme CHEMBO ANNE SOBZE EMILINNE MADELEINE AND OTHERS, Wherein the trial magistrate of the Court of First Instance Yaoundé stated that a surety-bond which simply states that the guarantor guarantees all the amounts mentioned in the deed is in violation of article 4 of the UAS 1997.

In judgment n°79 of 4th June 2003, it was stated by the trial magistrate of the Court of 1st Instance Gagnoa that the failure to expressly mention the terms of a surety-bond as provided for in article 4 of the Uniform Act is sanctioned by an absolute as opposed to relative nullity.

Thus, the position of the law is emphatic and the deed of instance cannot be said to amount to a surety-bond undertaken by Mr. FON FESTUS. The acknowledgment referred to by counsel for the judgment creditor and evidenced in annex A, exhibited in the latter’s reply to the specifications cannot be surreptitiously included as part of the mortgage contract. In any case, worth reiterating is the fact that the mortgage deed expressly states to be between the lender and PAMELA SIRRI LONGTCHA AWASOM. The terms evidencing the surety-bond must be embodied in the surety-bond. If Mr. FON FESTUS Guaranteed the loan with his property, he would have been the mortgagor as opposed to SIRRI LONGTCHA AWASOM. The deed would have further been endorsed in the writing of the guarantor as to the maximum amount guaranteed.

A mortgage deed may also be valid where the owner of the property duly executed and authority vesting the borrower with the right to engage his property as a security for a loan. In this case, the authority is not an acknowledgment of a debt by he owner of the property. Once the authority is duly executed in consonance with the provisions of article 128 of the UAS 1997 which states in pertinent part;

In appreciation of the precision required of the OHADA Uniform Act on Securities. It is incumbent on this court to specify the content of the proxy. A duly notarized power of attorney must mention the fact that the owner of the land certificate expressly authorizes the borrower to use same for purposes of engaging a real property security. The authorisation must be duly singed by the owner of the land certificate before a notary public. It does not suffice to state that the land certificate may be employed as security for a loan; the owner of the land certificate must state the exact amount of the loan guaranteed by the security.

Worthy of mention is the fact that the notarial deed must comply with the provisions of article 40 to 45 of the decree n°95/033 of the 28th of February 1995 on the status and organization of the notary public. The obligations incumbent on the lawyers practicing as notaries within the North West and South West regions are embodied in section 115 of the law afore mentioned. Thus, the notarial deed executed on behalf of the owner of a real security for the purposes of vesting a third party with the right to employ same shall be drawn in accordance with the provisions of the law afore mentioned.

I FON FESTUS hereby appoints the Manager of the lender institution as my attorney and the person deriving title under me and in my name or their names and on my or their behalf to do any acts and things following :

1) To sell my built on estate situate at mile seven Mankon, in Bamenda 11 Subdivision covered by land certificate N°7145 of Mezam land registry Vol. 36 Folio 70 Dated 11th/01/1987 with and area of one thousand and eleven square meters (1011), if I am unable to pay any of the instalments of the loan of twenty million (20.000.000) francs CFA granted to me by NTARIKON COOPERATIVE CREDIT LIMITED.

This document obviously does not amount to a power of attorney within the ambit of article 128 of the UAS 1997. The document is not duly notarized; while the content is evident of the fact that the owner of the land title meant to tender same as security for a loan, this would satisfy an exegetical or theological construction of the document. It is trite principle in codified law that where a statute is clear, the judge should read it in the dictionary sense to read what the legislator intended. Article 128 of the Act of instance is unequivocal as to the requisite format of a power of attorney. A judge who proceeds to include the missing words in a document, where the requirements of same document have been strictly codified would be transgressing the principles of legal interpretation and the law in issue.

To conclude this point, the document referred to by counsel for the judgment creditor as a power of attorney does not satisfy the requirements of article 128 of UAS 1997 and is herein discountenanced.

The parties to a deed sought to be executed herein are NTARIKON COOPERATIVE CREDIT LTD and PAMELA SIRRI LONGTCHA AWASOM. The former, the mortgagee and the latter, the mortgagor. This court is at a loss as to the idle objections raised by counsel for the judgment debtor and the superfluous strenuous submissions of the learned gentleman for the judgment creditor in reply. True, it is that the deed is superimposed with irrelevant parties, a source of the perplexity, it is manifest that the notary public who drafted same failed to specifically appreciate the provisions of the applicable law on real property securities and deeds of guarantee.

Persons whose rights over property are subject to duly notified conditions, cancellation or rescission may only grant a mortgage on the property subject to the same conditions, cancellation or rescission.

The mortgagor in the present case is the wife of the owner of the property in whose name the property is registered. Article 127 of the UAS afore cited is to the effect that a contractual mortgage may be granted only by a person who has duly registered rights over the real property. The question herein is as to the right of the wife of the registered owner of the property. The fact that the property is the matrimonial home was not disputed by the judgment debtor or her husband.

Article 121 UAS 1997 afore cited vest co-owners of property with the right to mortgage same. The only condition is that all the co-owners consent to the mortgage deed. The manner of consent is not specified by the article afore mentioned. The debtor and the mortgagor herein, Mrs PAMELA LONGTCHA AWASOM is a co-owner of the home by virtue of section 17 of the Married Women’s Property Act 1882. The consent of her husband is unequivocally evident in the document wherein he acknowledged the debt. His consent is further evident by his endorsement on the mortgage deed itself.

The right of co-ownership of the matrimonial home is embodied in the Civil Codes of most member states which is pari passu the afore cited law applicable in the Common Law jurisdictions. The legal interest of a wife in the matrimonial home is reiterated by the fact that a mortgage deed over the matrimonial home is a nullity where same is contracted by a single spouse even where same is registered in the latter’s name. This principle was reiterated in the case of TRAORE ALIMATA Vs SGBB- ARRET N°42 DU 2ND APRIL 2004; wherein the learned judges of the Court of Appeal OUAGADOUGOU in annulling a mortgage deed contracted by one spouse over the matrimonial property stated that the spouse who did not sign the mortgage deed was in order to file an action for the deed to be annulled.

The learned counsel for the judgment debtors strenuously sought to establish that the husband of the borrower only signed as a witness. Worthy of mention is the fact that wherever to signed the essence is that the later consented to the use of the co-owned property for purposes of security for the loan contracted by his spouse. It is also worth emphasis that a mortgage deed does not require the signature of two witnesses save where the mortgagor is illiterate. Thus, the admission of the signature of Mr. FON FESTUS as proof of consenting to the mortgage of the family home does not vitiate the does for want and another witness.

This position was emphatically stated by the High Court of Mfoundi in civil judgment n°779 of 23rd January 2002 in the case of YATHOU ANNE MARIE AND OTHERS c/ STANDARD CHARTERD BANK, wherein it was started inter alia that article 128 of the UAS does not require the signature of two witnesses. Thus, the signature of the debtor’s husband on the deed is effective as express consent for the wife to mortgage the family property.

The learned gentleman for the judgment debtor also alluded to the fact that the executory formula affixed on the deed is bereft of a date. Same deed is dated in the introductory part thus save any proof to the contrary, the executory formula is deemed to have been affixed on the date of execution. Articles 40 an 41 of decree n°95/038 of the 24 of February 1995 on the status organizing the function of notary publics, vest notary publics with the authority to affix the executory formula on their deeds. Thus, the latter do not need the authority of the court.

Counsel for the judgment creditor submitted that the amount owed as indicated in the summons to pay was at variance with the amount actually owed. Though the amount borne in the summons to pay was justified by the learned gentleman for the judgment creditor, it is a useful touch stone to reiterate the provisions of article 312 of the UASPRME which is to the effect that the mention of the wrong amount is not a cause for nullity of the summons to pay or the proceedings. The court is vested with the powers to review the amount at the instance of the judgment creditor.