In order to justify a provisional attachment and its validation, an applicant must provide evidence of a financial gain.
This decision is apparent from the judgment No. 017/2018 of the Common Court of Justice and Arbitration, “CCJA”, of the Organization for Harmonization of Business Law in Africa, “OHADA”, rendered on January 25, 2018 in the case instituted by Mr. O.N Richard against Orient Bâtiment, a company established in the Republic of Gabon.
Indeed, litigation between parties began on July 29, 2011 when Mr. O.N. Richard sued Orient Bâtiment for the purpose of confirming provisional attachment that he had previously applied. The Commercial Division of the Tribunal approached in these proceedings rendered, on 20 November 2012, its judgment dismissing Mr. O.N. Richard of his pretensions. Aggrieved with the decision, he appealed to the Judicial Court of Appeal, which on August 12, 2015 rendered Judgment No. 32 confirming the said judgment in all its provisions. It is this judgment of the Court of Appeal that was subjected to censorship of CCJA.
On his sole ground of appeal, Mr. O.N. Richard complained that the judgment of the Court of Appeal had confirmed his dismissal, while the claim was based on the existence of a contractual relationship. The Court of Appeal held that there was no written document proving the contractual relationship evoked.
On appeal in cassation, CCJA noted that under Article 5 of the Uniform Act on General Commercial Law, “AUDCG”, proof of acts of commerce is done by any means. The fact that the enterprise is usually charged by the company with the debt collection mission is sufficient to confirm the existence of an old contractual relationship. Thus, the Court of Appeal’s complaint about absence of written document constitutes a refusal for it to apply the provisions of Article 5 AUDCG.
However, CCJA dismissed the appeal brought by Mr. O.N. Richard, because this dispute, which is related to the validation of a provisional attachment, requires to bring evidence of a financial gain justifying the attachment and its subsequent validation, besides that of contractual relationship.
By Thos Matola