Barrister Fonka Tomnyuy Mofola has issued a robust legal challenge against a suit filed by his colleague, Barrister Anyang Lewis Forchealah, which seeks to compel President Paul Biya to declare his assets and convene the Higher Judicial Council.
In detailed amicus curiae submissions, Barrister Fonka Tomnyuy argues that the action instituted against the President is fundamentally flawed in law and procedure, describing it as “misconceived, incompetent and inconsequential.”
At the heart of Barrister Fonka Tomnyuy’s challenge is the question of territorial jurisdiction. He contends that the High Court of Fako Division lacks competence to entertain the matter, noting that the President of the Republic resides in Yaoundé and not within Fako Division.
He further argues that neither the cause of action nor the subject matter of the suit arose in Fako Division, making the choice of forum legally untenable. According to him, issues of jurisdiction are so fundamental that once raised, they must be resolved before any consideration of the merits.
On the issue of capacity, he maintains that the applicant sued the wrong party. He points out that under Article 37 of the Constitution and Law No. 82/014 of 26 November 1982, it is the Chair of the Higher Judicial Council who convenes the body, even though that position is occupied by the President.
By suing “The President of the Republic of Cameroon” rather than the legally recognised Chair of the Council, Mofola argues that the application is defective and liable to dismissal.
Barrister Fonka Tomnyuy also faults the mode of commencement of the action. He submits that under civil procedure applicable in Anglophone Cameroon, substantive originating applications must be commenced by Originating Motion, not by Motion on Notice, which he says is typically reserved for interlocutory matters.
On this ground alone, he insists, the suit “collapses.”
Turning to the merits, Barrister Fonka Tomnyuy takes issue with the supporting affidavit, arguing that it contains legal arguments rather than strictly statements of fact, contrary to established rules governing affidavit evidence. He urges the court to strike out more than 22 paragraphs of the 28-paragraph affidavit.
He further highlights what he describes as a contradiction in the applicant’s position. While seeking an order of mandamus to compel the President to implement Article 66 of the 1996 Constitution on declaration of assets, the affidavit acknowledges that a decree to implement the provision is still awaited.
According to Barrister Fonka Tomnyuy, compelling implementation without first securing the issuance of the necessary decree amounts to “putting the cart before the horse.”
Barrister Anyang’s suit seeks judicial orders requiring the Head of State to fully implement constitutional provisions on asset declaration and to convene the Higher Judicial Council without delay.
However, Barrister Fonka Tomnyuy concludes that the case is a “nonstarter and dead on arrival,” urging the High Court to dismiss it in its entirety.
The matter now sets the stage for a potentially significant judicial pronouncement on constitutional accountability, procedural propriety, and the limits of judicial intervention in executive functions.
