The provisions of Article 14 paragraphs 3 and 4 of the Treaty on the Organization for Harmonization of Business Law in Africa, “OHADA”, state that decisions rendered by the courts of the States Parties apt to be challenged by the remedy of cassation are those delivered by the courts of appeal or those unapt rendered by the courts of first instance of the States Parties ruling legally in the first and last resort. Against the decisions handed down by the national higher courts ruling in cassation, OHADA legislator provided for annulment only under the conditions laid down in Article 18 of the said Treaty.
It is in the judgment n ° 027/2018 of February 08, 2018 that the Common Court of justice and arbitration, “CCJA”, stated this principle and at the conclusion of which, it declared itself incompetent to rule on the appeal.
Indeed, the dispute in question originates in a loan agreement concluded between the International Bank of Benin, “BIBE”, and Palace Hotel President for an amount of 700,000,000 FCFA. To secure the claim, Palace Hotel President had granted, for the benefit of BIBE, a mortgage on a building owned by Mr. Y. Fassassi.
At the end of the term, Palace Hotel President failed to fulfill its commitments, leading BIBE to proceed with the closure of the account and the realization of the guarantee.
The case was brought before the Court of First Instance of Porto-Novo which, by an exception of unconstitutionality, by judgment n ° 14 / CCCri / 16 of August 11, 2016, rejected this exception, grounds taken from this that the law applicable to real estate attachment, OHADA law relating to the Uniform Act organizing simplified recovery procedures and enforcement proceedings, is a Community law, supranational, that no provision of the law has suspension of the award due to an action for unconstitutionality by main action or by way of exception. The Tribunal has therefore ordered the continuation of the proceedings and the transmission of the copy of the record of the proceedings to the Constitutional Court to be ruled on what is right.
For its part, the Constitutional Court of Benin, in its decision DCC 16-190 issued on November 15, 2016, found that when a court is approached for an objection of unconstitutionality, it is required to suspend the proceedings up to the decision of the Constitutional Court. Thus, the assessment of such an exception of unconstitutionality even against an international convention or a Community act does not fall within the jurisdiction of the judicial judge. The Constitutional judge is competent to assess the relevance of the objection raised and, if necessary, to recall its incompetence on the basis of the primacy of Community law over domestic law, including the Constitution. It finally declared the judgment of the Court of First Instance of Porto Novo unconstitutional.
Following this decision of the Constitutional Court, BIBE, relying on Article 14 paragraphs 3 and 4 of the OHADA Treaty, appealed to the CCJA against the decision.
In considering the appeal of the latter, CCJA declared itself incompetent on the ground that the decision that was handed down by the Constitutional Court of Benin is a decision pronounced by a national higher court and not subject to appeal. Thus, against these types of decisions, the OHADA legislator only provided for an action for annulment under the conditions laid down in Article 18 of the Treaty. By bringing the case before the Court in cassation based on Article 14 of the Treaty, the BIBE violated CCJA’s referral procedure. That the appeal in cassation is limited only to the decisions rendered by the courts of appeal or those unapt of appeal rendered by the courts of the first degree of the States Parties ruling legally at first and last resort.
By Popol Mwamba