GENERAL INTRODUCTION

The administration being a legal person has rights and duties, and the obligation not to

infringe on the rights of private individuals. And if in their acts, the administration breaches

its duties or infringes on the rights of a private individual, the aggrieved individual may seek

remedies from the Administrative Court if the act amounts to an administrative act.

Administrative Act is Defined by the Black’s Law dictionary 4th edition as “Acts of an officer

which are to be deemed as acts of administration and are commonly called "administrative

acts" and classed among those governmental powers properly assigned to the executive

department, are those acts which are necessary to be done to carry out legislative policies and

purposes already declared by the legislative body or such as are devolved upon it by the

organic law of its existence”1.

In case where the aggrieved individual intends to drag the administration to the

administrative judge, it is trite law that he has to first file a pre-litigation complaint to the said

authority against whose act he intends to challenge in court.

A Pre-litigation Complaint is a mandatory condition-precedent Procedure to be followed and

fulfilled by any litigant wishing to drag the administration to the Administrative Judge before

actually approaching the judge failure of which the action before the Administrative Court

will be declared inadmissible for want of procedure.

The concept is variedly referred to as prior claim, pre-action claim or pre-litigation

complaint. In this essay, we shall be examining the rule of pre-litigation complaint as

contained in various applicable legislative texts, the rational for the rule of pre-ligation

complaint and the exceptional cases where one needs not follow it.

1
Henry Campbell Black, M.A (ST. Paul Minn. West Publishing Co. 1968)p.66

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A) THE RULE OF PRE-LITIGATION

The Rule of filing a Pre-litigation Complaint is applicable and mandatory in all matters

involving the administration. According to Yifan Shi, 2 the original intention of the pre-

litigation procedure is to restrict the legal supervision power of the court. It aims at giving the

administration a chance of correcting their own errors and to avoid humiliation from private

individuals over matters they could handle and correct the error they made. It has been

instituted as a statutory condition in a couple of legislations in Cameroon pertaining to the

administrative court. These include:

i) Law No 2006/022 of 29th December 2006 to Lay down the Organization and Functioning

of the Administrative Courts

ii) The General Tax Code

The 20063 Law above provides in its Section 17 that once an administrator carries out an act

with administrative character, which infringes on a person’s right, the person is who is by

right entitled to a remedy is mandated to file a pre-litigation complaint to the author whose

act he intends to challenge. The essence of this is to ensure that the author whose act is being

challenged takes steps to review his act. It should be noted that the non-observance of this

procedure can lead to the action of the petitioner inadmissible.

As per section 17(2),4 when the petitioner files his complaint against an administrative act, it

is served on the respondent (the author of the act) who has 3 months to reply. Silence after 3

months by the respondent after being duly served with the complaint will tantamount to the

rejection of such a complaint, and thus giving the petitioner the right to take the matter before

the competent administrative court.

2
Yifan Shi “Research on Pre-Litigation Procedure of Administrative Public Interest Litigation Initiated by the
Prosecutorial Organization” (Atlantis Press SARL, 2019)
3
Law No. 2006/022 of 29th December 2006 to lay down the Organization and Functioning of Administrative
Courts
4
Law No. 2006/022 of 29th December 2006

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 If the petitioner realizes that the administrative act he is challenging will be executed within

two weeks, the petitioner can file by virtue of Section 30 of the law an urgent application to

ensure that the act is not executed within the time which the matter is pending in court. After

serving the administrators whose act is being challenged, there is a possibility for

reconciliation and the administrator can correct his ultra vires act. If there is reconciliation, it

will be needless for the petitioner to seek for redress from the administrative court because

the author of the wrongful act must have corrected the wrongful act. If the petitioner does not

get any reply from the administrator whose act is being challenged within the provided 3

months, then the petitioner can institute an action for redress before the competent

administrative court.

In tax matters which equally falls within the jurisdiction of the Administrative Judge, the

General Tax Code makes it mandatory for an aggrieved taxpayer to first file a prior claim to

the tax authority under which he falls5. The Provisions of Section M116 are glaring as they

provide:

Section M 116 (new).- (1) Any taxpayer who feels wrongly taxed or overtaxed may file a

claim in writing with the head of the Regional Taxation Centre, to the head of the structure

responsible for managing “large Enterprises” or to the Director General of Taxation within a

period of 30 (thirty) days upon issuance of the collection notice or sure knowledge of the

taxation.

(2) The above-mentioned claim must, under pain of inadmissibility, fulfil the following

conditions:

- be signed by the claimant or by the claimant’s representative;

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Section M116 (3) The powers of tax authorities shall be based on the amount of claim as follows:
- Head of the Regional Taxation Centre with territorial jurisdiction, for claims lower than or equal to 50 (fifty)
million CFA francs as principal;
- The Director responsible for managing “large Enterprises”, for claims not exceeding 100 (one hundred)
million CFA francs as principal;
- The Director General of Taxation, for claims above the thresholds for regional centers and the department
responsible for managing “Large Enterprises”

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- be stamped;

- mention the type of tax, the financial year of issue, the collection notice article number and

the place of assessment;

- contain a brief statement of the party’s means and conclusions;

- be backed by proof of payment of the undisputed portion of the tax.

B) THE EXCEPTION TO THE RULE OF PRE-LITIGATION

There are situations where the compulsory pre-litigation rule does not apply, especially when

time is of essence as it would defeat justice if the rule was to be observed in all aspects. Some

of these are discussed below.

a) Applications for Stay of Execution

It seems that the 2006 Law on the organization and functioning of administrative courts

makes provision for the filing of a urgent application to prevent a continuation of violation of

the victim’s right, it has been shown in practice that administrative courts do not handle these

applications as urgent as required by law.

This is illustrated in the application for stay of execution in Kingston Financial Credit PLC

v. The State of Cameroon (MINFI)6 under Section 30 of the law No. 2006/022 of the 29th

December 2006 to lay down the organization and functioning of administrative courts which

deals with stay of execution. The Ministry of Finance had in Decision

No.442/1020/MINFI/DGI/CRSW/BRCVE of 20/06/2013, asked Kingston Financial Credit

PLC to pay huge amount of money as tax which Kingston Finance Credit PLC considered to

be exorbitant and a violation of the Tax Code. Although Kingston Finance Credit PLC had

written several correspondences calling on the stare of Cameroon represented by the Ministry

of Finance to withdraw/nullify the decision, they rather announced their intention through

6
Suit No. SWAC/PSE/033/20 (unreported)

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Decision No.4682/1555/MINFI/DGI/CRISW/CST to carry out forceful recovery of the tax

though it was still the subject of a pending substantive matter between the parties.

Counsel for Kingston Finance Credit PLC, challenged the decision in the regional

administrative court by filing an application for stay of execution dated 18/09/2013 stating

that with counsel for the applicant that executing the decision by the state of Cameroon

represented by Ministry of Finance will cause hardship to the applicant, steps taking to see to

this were very slow.

A careful interpretation of Section 30 of the 2006 Law above shows that urgent applications

cannot be used to determine rights of the parties on the merit, it is only used to prevent

violation by the author whose act is being challenged. This is so that the author of the

administrative act must be given the statutory 3 months to respond to the petition written by

the person affected by his act.

The insistence on procedural fairness or due process has long been recognized as leading to a

potent judicial control of public authorities; that is, review of administrative power exercised

by public officer, the rule helps to maintain certain standard of fairness in the administration

of justice and constitute a yardstick for the application of the legal ideas of justice and fair

play in the sphere of administration.

b) Illegal Acts that Lacks Administrative Character

It was held in the celebrated Supreme Court case of Mve Ndongo & Anor v Ngaba Victor
7
and equally important case of the North West Court of Appeal Decision of Chief of Service

Price Control North West Province & Anor V. Zachary A. Tataw 8 where it was held that a

public officer ceases to act administrative if his acts are contrary to law or illegal. Based on

the above principle, it is clear that illegal acts which are contrary to law cannot be regarded as

“faute de service” as the learned trial judges erroneously held but “faute personelle” which

7
SC/17/10/68
8
BCA/4/77 Unreported

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according to L Neville Brown and G F Gandner…… “is a fault that linked to the public

service but reveals its author with his weakness, and his passion and imprudence. We are

therefore in accord with learned counsel for the appellant that the act of the appellant was

malicious and patently arbitrary.”

Following the above findings, Morfaw JCA had no difficulty in concluding that the act of the

respondent a district office who maliciously destroyed the appellant’s fence fell “not within

the jurisdiction of the administrative bench” but squarely under section 9(3) (c) of Ordinance

No 7/6 Fixing The Functioning Of The Supreme Court which made such acts determinable

by the ordinary courts.

It has at other times been argued that another way of dealing with the issue is to say that

where the administrative act amounts to what is in French law characterized as “voie de fait”,

the ordinary courts will have jurisdiction.

What then is “voie de fait”? Ngassa J of the high court of Buea in an articulate judgement in

Jesco Manga Williams’s V. The Fako Land Expropriation Commission represented by its

chairman the SDO for Fako Division & Anor describes it as “acts that manifestly irregular

that they lose their administrative nature or character”.

This definition conduces with that involved in the classification of administrative acts into the

two types of faults by Morfaw JCA earlier.

Indeed, citing the same authority Ngassa J noted in the Jesco Manga Williams case that the

“voie de fait” in administrative context “indicates some irregularity on the part of the

administrator which is so flagrant and gross that it cannot be regarded as an administrative act

at all but is traced as if it were the act of the private body thereby losing the principle of being

adjudicated by the administrative court.” However, neither this case nor that of Prof Maurice

Kamto has indicated the degree of grossness that will make an administrative act to lose its

administrative nature and thus confer jurisdiction on the ordinary court.

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Yet it is certain from the position of the Supreme Court in the Mve Ndonge case that a

complete illegality cannot under any stretch of imagination be considered, as administrative

act that is cognizable by the administrative bench is will indeed be strange to take the view

that a patently unlawful act is administrative.

In Evarest Agu v Henry Nkangasso9 the plaintiff a man of Nigerian parentage born in Limbe

was accosted by immigration officials who requested to see his resident permit. He gave them

receipt of the payment of the resident permit since the original had not been issued form

Yaounde.

The officer pocketed the receipt and demanded for a bribe of ten thousand francs. Unable to

pay, the officer arrested the plaintiff and took him to Buea where the defendant ordered his

detention for three days.

On being released he got back to Limbe to discover that his truck, which he was using when

he was arrested, had been stolen where the immigration officials callously abandoned it.

On his suit for wrongful arrest and detention in the high court in Buea, the defendant argued

that their act was administrative since the plaintiff was arrested and detained in the course of

their duty of doing immigration control. However, Batuo J held that an arrest accompanied

with a demand for a bribe couldn’t be an administrative act that ousts the jurisdiction of the

High Court. He thus found the defendant liable for wrongful arrest and detention and

awarded the sum of 400,000FRS damages against his personally and not as commissioner of

immigration.

Once the act is identified as illegal and thus lacking administrative character, the author bears

the action in his personal name, and thus the mandatory requirement of a pre-litigation is

adverted or bypassed since it becomes justiciable before the Ordinary Court (High Court).

c) Mistaken Jurisdiction

9
Unreported judgment of Fako High Court in which Yanou Micheal was counsel for the plaintiff

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This again as an exception to the pre-litigation procedure comes as a matter of practice, and

involves situations where an aggrieved person sues the administration but before a Judicial

Judge, whereas the action rightfully ought to be before the Administrative Judge. In this case,

the Judicial Judge after determining and discovering the administrative character of the

matter before him, has to decline jurisdiction in accordance with Section 18 (1) (c) of the

2006 Law on Judicial Organization, and accordingly refer the Matter to the Competent

Administrative Court.

In the case of this referral, the mandatory procedure of pre-litigation complaint is avoided and

bypassed. This is because, within the time the matter was before the Judicial Judge, the

Administrator was served with notice thereof, and while jurisdiction was yet to be

determined, he (the administrator) had the chance to review the act or withdraw any further

intentions which prompted the proceedings against him. Thus if he doesn’t correct the errors

or engage reconciliation with the plaintiff, then once the Judicial judge refers the matter to the

competent Administrative Court, it shall be admissible without need to fulfil section 17 of the

Law No. 2006/022 of 29 December 2006 to Law Down the Organisation and Functioning of

Administrative Courts (Pre-Litigation Complaint).

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