Preparatory Seminar For Candidates for the Pupillage Examinations.

11/04/2024
Topic: The Principle of adversarial proceedings.
Presented by Dr. TCHANA Anthony, Esq.

The adversarial system or adversary system is a legal system used in the common law countries
where two advocates represent their parties’ position before an impartial person or group of people,
who attempt to determine the truth of the case. An adversarial system involves each side of a case
(accuser and accused) gathering and presenting their own case, whereas an inquisitorial system
involves the judge leading the discovery and presentation of evidence. `

With adversarial (accusatorial) system after the accusation of the accused by the government
(prosecution), the government (prosecution) must prove its allegation by an adversary process.

The Criminal procedure code which entered into force on the 1st of January 2007 put an end to the
dual criminal procedural systems operated in the country reflecting its bi-jural nature, a legacy of
colonialism. This code is instituted by law N° 2005/007 of 27 July 2005 and in accordance with
section 2 thereof, “the CPC shall be of general application except where there is provision to the
contrary as provided in the code of military justice or in any special law.”

Prior to its entering into force, Cameroon operated a bi-jural legal system (the Code D'instruction
Criminelle of 1838 applied in the French speaking area and the Criminal Procedure Ordinance Cap
43 of the 1958 laws of the Federal State of Nigeria and the Southern Cameroon High Court Law
1955 were the main sources of law in the English-speaking areas of Cameroon. As secondary
sources we had the 1972 Judicial Organization Ordinance N° 72/04 of 26 August 1972 as amended
by Law N° 89/19 of 29 December 1989 and many other repealed provisions of local law, all
replaced by the Criminal Procedure Code pursuant to section 746.

The aim of criminal procedure is to ensure that an innocent person does not suffer punishment for
what he has not done and to punish those who commit crimes. The CPC is a hybrid system merging
key features of both French and English criminal procedure laws applied hitherto in Cameroon.
The code has brought in a lot of changes which were not seen in the past.

The Criminal Procedure Code is of general application except where there is provision to the
contrary as provided in the Code of Military Justice or any special law.1It must be noted that the
sanction against the infringement of any rule of criminal procedure shall be an absolute nullify
when it is:

a. Pre-judicial to the right of the defense as defined by legal provisions in force;

b. Contrary to public policy2

1
See Section 2 C.P.C
2
See Section 3 C.P.C

1|Page
The current criminal procedure code in Cameroon is basically adversarial with some traces of
inquisitorial system which is modestly employed at court hearing only. Adversarial systems are
considered to have three basic features.

1. The first is a neutral decision-maker such as the judge.

2. The second is presentation of evidence in support of each party’s case, usually by lawyers.
3. The third is a highly structure procedure.

Judges in adversarial system are impartial in ensuring the fair play of due process, or fundamental
justice. Before and during the trial of any person accused of a crime, there are provisions in the
preamble of the 1996 constitution of Cameroon (as amended), and the CPC which ensure that the
accused person shall have a fair trial. The provisions override any provisions in any other
enactment, which is not consistent with the preamble of the constitution.

Fairness of a trial is fundamental to the administration of justice. It does not only give integrity to
the legal system, but it also ensures the confidence of the society in the administration of the Justice
System.

In securing the impartiality in every judicial proceeding, Section 591 of the CPC has set out
circumstances where a judge /Magistrate can be recued from entertaining a criminal action.

a. Where he or his spouse has an interest.

b. Or where there is an employment relationship between himself of the employee of his wife.
c. Where the judge has previously taken part in the proceedings or if he has been an arbitrator
or counsel or witness.

We will, therefore, examine the provisions in the preamble and section 8 of the CPC for clarity
and easy understanding.

A. Fair Hearing
The preamble of the constitution provides that in the determination of his civil rights and
obligations including any question or determination or against any government or authority, a
person shall be entitled to a fair hearing. This provision is lifted directly from Article 11(4) of the
International Covenant on Civil and Political Rights 1966 which convention is incorporated into
the Cameroon Constitutions.3The concept of fair hearing is at the very foundation of the legal
system and is usually encapsulated in two Latin maxims: Audi Alteram Partem- (hear the
other party) and Nemo Judex in Causa Sua (no one should be a judge in his own cause).

However, the Supreme Court in Effiom v. The State4 prescribed the essential elements of fair
hearing as follows:

i. Easy access to the court:

ii. The right to be heard.
iii. The impartiality of the adjudicating process:

3
See paragraph 2 of the Priamble of the 1996 (as Amended)
4
[1995] 1 N.W.L.R (Pt. 373)p. 507 at 575.

2|Page
 iv. The principles of Nemo Judex in Causa Sua; and
v. Whether there is inordinate delay in delivering judgment

1. Audi Alteram Partem

In the resolution of a dispute or the determination of guilt, the court is duty bound to listen to and
consider the evidence of both sides in a case. However, a court of law can convict an accused
person who chooses to say nothing in his defense.5 Consequently, the law only requires that the
accused person be given the opportunity to state his case. If the accused person fails, refuses or
neglects to state his case, he cannot claim that his right to fair hearing has been violated.6

2. Nemo Judex in Causa Sua

This is another prerequisite of a fair trial. Justice must not only be done but it must be seen by all
to have been manifestly done. Consequently, a Judge or Magistrate who has an interest in a case
should not try an accused person. The judge must not only be free from bias but also from the
Likelihood of bias. Once a judge has an interest in a case, it is immaterial that he was not
influenced by that interest.

C. Presumption of Innocence
Every person who is charged with a criminal offence shall be presumed to be innocent until he is
proved guilty7. It is the duty of the prosecution who alleges that the accused person committed the
offence to prove it beyond doubt. The burden as prescribed by section 307 of the CPC which does
not shift from the prosecution, consolidates the preambular provisions of the 1996 constitution of
Cameroon (as amended) guaranteeing to every accused person facing criminal trials the
presumption of innocence. Indeed, together with section 8(1) and (2) of the CPC, these provisions
constitute a formidable protection for accused persons facing trials in all courts in Cameroon. It is
therefore imperative for all judges to be alive to protect and guarantee the provisions.

Importance of Section 8 of the CPC

a. The judge must hold in his mind that the defendant/accused person before him is an
innocent person until the contrary is proved.
b. There is a duty imposed on the prosecution to prove the commission of the alleged offence.
c. Even where a prima facie case is made out, that cannot be interpreted to infer the guilt of
the accused person. The defense must be given the right to state their case.
d. Even when the accused enters his defense, the judge must still hold on to the premise that
the accused is innocent until the contrary is established.
e. Any doubt in the proceeding works in favour of the accused.

The infraction of the fair hearing rule by Section 362 and 363 of the Criminal Procedure
Code.

5
Section 366 CPC
6
R.V The University of Cambridge (1723) S128
7
The preamble of the 1996 Constitution as amended and section 8 of the CPC

3|Page
 1. Section 362 and 363 of the CPC have empowered the judge who is an umpire to amend a
charge contrary to the fair trial norms and spirit of section 8 of the Criminal Procedure
Code on the concept of fair trial. The risk about the amendment include:
a. The court would rather be trying the accused summarily.
b. It is the guilt of the accused, not his innocence the judge may be hunting in that kind of
spontaneous trial.
c. Forcing the accused person into a trial when in actual fact and from the previous charge
the evidence adduced showed that he has no case to answer is a breach of the adversarial
principle.
d. It may amount to persecution and not prosecution.
e. Deprive the accused of his constitutional right to rest his case on that of the prosecution,
f. Under a strict adversarial system, the presiding magistrate has no discretion to amend a
charge as provided by section 362 of the criminal procedure code.
2. Section 336 of the Criminal Procedure Code permits a judge to admits any statement made
in the course of judicial proceedings by a person who cannot be heard at subsequent
proceedings either because they are deceased or because of insufficient time to get him to
appear before the court.
3. Examination by the court. Section 373(2) of the CPC
In the course of examining witnesses, only the prosecution, the defense counsel and counsel
for the civil party puts questions to the witnesses respectively. However, the court, though
an impartial umpire, is also permitted to put certain questions to the witnesses, including
the accused person. The court should not, in the course of putting questions to the witnesses
before it, take over the duty of cross examination of a witness from either the prosecution
or the defense, with the purpose of discrediting the witness. Throughout the course of a
trial, the court must remain an impartial and just adjudicator.

D. Accused Person must be Informed of His Offence

The preamble of the Constitution requires that any person who is charged with a criminal offence
must be informed promptly and in detail of the nature of the offence he is alleged to have
committed. The Constitution reads “no person may be prosecuted, arrested, or detained except in
the cases and according to the manner determined by law.” This constitutional provision must be
read with section 41(2) of the CPC which states that in the case were the accused/defendant is
summoned, the summons shall state the facts of the case and provisions of the law under which he
is charged.

E. Adequate Time and Facilities to Prepare His Defense

Every person who is charged with a criminal offence is entitled to be given adequate time and
facilities to prepare for his defense. This is the precursor of adjournments. Therefore, an accused
person is entitled to an adjournment in order to secure the services of a defense counsel or the
attendance of witnesses in his defense.

4|Page
F. Right to a Defense Counsel
The constitution in its preamble guarantees that every person who is charged with a criminal
offence is entitled to defend himself in person or by a legal practitioner of his own choice. The
phrase “the law shall ensure the right of every person to a fair hearing before the courts” is a
concept that must be interpreted to mean equal opportunity to all parties in court.

Sections 240 and 242 of the CPC require that where the defendant is in custody or on remand, he
shall be allowed the access of the legal practitioner at all reasonable time. In effect, an accused
person has two options in his defense; that is, to defend himself personally or defend himself
through a legal practitioner of his own choice. Therefore, any law which, prohibits the appearance
of a legal practitioner before any court is unconstitutional, and consequently, null and void.

Mandatory Legal Representation for Capital Offences

Although the constitution is silent on the mandatory legal representation of a person charged with
a capital offence, the CPC provides for it. The law guarantees that any person who is charged with
a capital offence but who is not represented by a counsel should have one for him provided by the
court. Under section 417 of the CPC, the presiding Judge shall ascertain whether the accused has
briefed counsel for his defense. Where the accused is being prosecuted for a felony punishable
with death or with loss of liberty for life and he has no counsel, the presiding judge shall, of his
own motion, assign one to him.

G. Examination of Witnesses
Although not specifically stated in the constitution, the natural law principle as prescribed in the
constitution must be read in view of ensuring that every person who is charged with a criminal
offence is entitled to:

i. Elect the method the trial is to be conducted. (See Section 366 CPC)
ii. Call witnesses in his defense;8 and
iii. Cross-examine the witnesses called by the prosecution. (See Section 330 – 333 CPC)
The object of cross examination is to:
a. To weaken, contradict or destroy the case of the opponent.
b. Discredit a witness by showing from his own testimony that he is unworthy of belief.
c. To discredit a witness by demonstrating that his evidence is inconsistent with the other
relevant testimonies or to discredit another witness on the same side.
d. To put the case in proper perspective by separating truth from falsehood and adding
facts deliberately omitted.
e. To give the court advanced notice of the case of the cross examiner.
f. To obtain admission or proof of facts advantageous to the case of the cross- examiner.

The accused person may do so personally or through his counsel.

8
Section 366 of the Criminal Procedure Code

5|Page
H. Right to an Interpreter
Every person who is charged with a criminal offence is entitled to have, without payment, the
assistance of an interpreter if he cannot understand the language used at the trial of the
offence.9Where an accused speaks a language other than one of the official languages understood
by the members of the court, or where it is necessary to translate any document produced in court,
the Presiding magistrate shall of his own motion appoint an interpreter of not less than twenty-one
(21) years of age, who shall take oath to interpret faithfully the testimonies of the persons speaking
in different languages or faithfully translate the document in question. The language of the court
in the English-Speaking Part of Cameroon is English Language.10 Consequently, any person who
cannot understand the English language is entitled to an interpretation of the proceedings into any
language he understands. In any proceedings before a court where the language of the court is not
English Language, an accused person who does not understand the language used at such
proceedings is also entitled to an interpretation of the proceedings in any language he understands.

However, if the accused person understands a language, which is used in the course of criminal
proceedings and which is not the English language, he cannot complain that he has been denied
the right to an interpretation of the proceedings at his trial.11

I. No Trial on Retroactive Legislation

The constitution guarantees that an accused person shall not be convicted of any crime for acts or
omissions that did not constitute a crime at the time the accused person committed it.12 Similarly,
a convicted person should not be sentence to a penalty, which is higher than the penalty in force
at the time when the offence was committed.13 This position is echoed by section 62(1) (d) of the
CPC. It states, “Criminal Proceedings shall be discontinued where the law has been repealed.”

j. Prohibition of Double Trial

The preamble of the Constitution as read with section 62 (1) (e) of the CPC guarantees that criminal
proceedings shall not be conducted against any person in respect of a crime for which the accused
person had previously been tried by a court of competent jurisdiction and for which he was either
convicted or acquitted, except upon the order of a superior court. The law therefore prohibits
double jeopardy, which is double prosecution for the same offence.

The objection to double trial for the same offence may be raised for the first time on an appeal
although it was not raised at the trial court. However, before an accused person can be discharged
on a plea of autrefois acquit or convict, his plea must satisfy the following conditions.

1. The first trial of the accused person must have been on a criminal charge

9
Section 354 CPC
10
Ibid
11
Section 354 CPC
12 It is our submission that section 3 of the Penal Code prescribed that No criminal law shall apply to acts or omissions committed
before it coming into force or in respect of which judgment has not been delivered before its coming into force. Section 17 of the Penal
Code titled “Penalties and offences to be prescribed” provides that no penalty or measure may be imposed unless provided for by law,
and except in respect of an offence lawfully defined. The Constitution as well as the Penal Code guarantees that an accused person
shall not be convicted of any crime for acts or omissions that did not constitute a crime at the time the accused person committed it.
Therefore, it is submit that any person who is charged with a criminal offence shall not be held to be guilty unless at the time he
committed the acts or omissions, there was an existing law, which prescribed his acts or omissions.
13
See the preamble of the Constitution as read with Section 74(2) of the Penal Code

6|Page
2. The first trial of the accused person must be by a court of competent jurisdiction.
3. The first trial of the accused person must have ended with a conviction or an acquittal.
4. The Offence for which the accused person is now charged must be.

7|Page