CAMEROON Law and Practice Contributed by: Michel Aaron Feugueng, Ida Tchamde Feugueng and Yvette Kalieu Elongo, Maaron Law Firm
6.2 Undermining the Privilege Over Communications Exempt From Discovery Legal Professional Privilege in Cameroon Communications between a lawyer and their client are protected by professional secrecy (“ secret profession- nel ”) under Article 53 of the Cameroonian Bar Act (Law No 90/059 of 19 December 1990) and Article 310 of the CPP. Lawyers are prohibited from disclosing client communications made in the course of the profes - sional relationship. Breach of professional secrecy is a criminal offence under Article 310 of the Penal Code. Crime/Fraud Exception The privilege does not extend to communications made for the purpose of facilitating or committing a crime or fraud. Under Article 310 of the CPP, a lawyer who is a participant in or an instrument of a fraud cannot invoke professional secrecy to shield those communications. Courts apply a two-stage test: (i) whether there is sufficient prima facie evidence that the lawyer’s advice or assistance was directed at ena - bling the fraud; and (ii) whether the specific communi - cation sought falls within the scope of that fraudulent purpose. Practical Application In practice, Cameroonian courts are cautious in over - riding legal professional privilege and will require strong evidence that the crime/fraud exception applies before ordering disclosure. 7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages Cameroonian civil law follows the French compen - satory tradition and does not recognise punitive or exemplary damages as a distinct category of relief. The fundamental principle is that civil damages must be equivalent to the actual loss suffered (“ réparation intégrale du préjudice ”) and may not exceed it (Arti - cle 1149 Civil Code). Moral damages (“ dommages moraux ”) are, however, recoverable in addition to patrimonial loss, and courts have awarded substan - tial moral damages in fraud cases involving egregious conduct.
Aggravated Awards in Criminal Proceedings While civil law does not permit punitive damages, the criminal courts may impose enhanced criminal fines that serve a punitive purpose. In cases of aggravated fraud under Article 319 of the Penal Code, fines may significantly exceed the amount of the fraud. The criminal court may also order the confiscation of all illicit gains under Article 35 of the Penal Code, which goes beyond mere compensation. OHADA Context No OHADA Uniform Act provides for punitive dam - ages. However, courts have awarded full contractual penalties ( “clauses pénales” under Articles 1226 to 1233 Civil Code) as a form of agreed pre-estimated damages, which may substantially exceed actual loss where contractually provided. 7.2 Laws to Protect “Banking Secrecy” Statutory Banking Secrecy Banking secrecy in Cameroon is protected by Article 9 of COBAC Regulation R-2016/01 on the Conditions of Exercise of Credit Institution Activities and by Law No 2003/004 on the Prevention and Suppression of Money Laundering. Banks are prohibited from disclos - ing customer information to third parties without the customer’s consent or a legal obligation to do so. Exceptions – Court Orders Banking secrecy is lifted where a court order is served on the bank. Under Article 168 of the CPP, a bank is obliged to produce account records and other infor - mation in response to a rogatory commission from an examining magistrate, notwithstanding banking secrecy rules. Similarly, a saisie-attribution under Arti - cle 153 of the AUPSRVE overrides banking secrecy and requires the bank to disclose the state of the debtor’s accounts. ANIF and AML ANIF, established under Law No 2005/006 of 27 July 2005, has the power to require banks to provide any information relevant to a money laundering investiga - tion, overriding banking secrecy obligations. Banks are subject to a mandatory suspicious transaction reporting obligation to ANIF (Article 17 CEMAC Regu - lation No 01/03).
76 CHAMBERS.COM
Powered by FlippingBook