OHADA commercial law — limitation periodsFive-year limitation period under the AUDCG applies equally to pharmacists and banks as traders
CCJA, arrêt n° 008/2016, Pourvoi n° 042/2013/PC, Ohadata J-16-217, 21 janvier 2016 · Côte d'Ivoire (siège CCJA)
A pharmacist and a bank both qualify as traders (commerçants) under the Uniform Act on General Commercial Law; acts performed by them, and obligations assumed between them or towards third parties in that capacity, fall within the scope of Article 18 (now Article 16) AUDCG. A claim to recover a sum arising from their dealings is therefore subject to the five-year limitation period regardless of the form in which the obligation was evidenced, and the cassation appeal challenging that limitation was dismissed.
Read the decision on OHADA.com ↗Debt recovery & enforcement — garnishment (saisie-attribution)An incorrect deadline in a garnishment notice voids the notice and lapses the seizure
CCJA, arrêt n° 007/2016, Pourvoi n° 021/2013/PC, Ohadata J-16-216, 21 janvier 2016 · Côte d'Ivoire (siège CCJA)
Where a time limit is counted in full days (délai franc), neither the first day nor the last day of service is included in the computation. The enforcement agent must state the exact date on which the period to raise objections expires, and any error renders the notice void. Stating 22 October instead of 23 October 2009 as the last day of the contestation period violated Article 160(2) AUPSRVE; the Court of Appeal judgment that had upheld this error was quashed, the garnishment notice declared void, and the underlying seizure itself declared lapsed for failure to respect the eight-day interval required between seizure and notice.
Read the decision on OHADA.com ↗OHADA corporate lawAbuse of majority requires proof of all three statutory conditions
CCJA, arrêt n° 130/2015, Ohadata J-16-127, 12 novembre 2015 · Côte d'Ivoire (siège CCJA)
Reversing the court of appeal, the CCJA held that annulling a shareholder resolution for abus de majorité (Article 130 of the Uniform Act on Commercial Companies) requires the claimant to establish, cumulatively: a decision not justified by the company's interest, taken solely in the majority's interest, and harmful to the minority. A finding that reserves were merely sufficient for operations, without more, does not discharge that burden.
Read the decision on OHADA.com ↗Disputes & ArbitrationCompetence-competence: the arbitrator rules first on the scope of the arbitration agreement
CCJA, décision n° 069/2015, Ohadata J-16-71, 29 avril 2015 · Côte d'Ivoire (siège CCJA)
The CCJA upheld an award extending an arbitration clause to non-signatories, confirming that under Articles 4 and 11 of the Uniform Act on Arbitration, the existence and scope of the parties' common intent to arbitrate is assessed independently of any state law, and that a party seeking annulment must establish one of the limited grounds listed at Article 26 — a prior finding invalidating a related contract is not, by itself, sufficient.
Read the decision on OHADA.com ↗Debt recovery & enforcementAn immovable-seizure ruling is appealable only if it decides the debt itself
CCJA, arrêt n° 008/2015, Ohadata J-16-08, 30 mars 2015 · Côte d'Ivoire (siège CCJA)
The CCJA declared an appeal inadmissible in immovable-property seizure proceedings, holding that under Article 300 of the Uniform Act on Simplified Recovery Procedures and Means of Enforcement, a ruling in such proceedings may be appealed only where it decides the principle of the debt itself, or a substantive defence going to a party's capacity, to ownership, or to whether the property may be seized at all — not on ancillary or procedural points. Because the debtor had acknowledged owing the debt, the seizure order was not open to appeal on the merits.
Read the decision on OHADA.com ↗Commercial contracts — interdependent agreementsResolution of a financing contract can trigger resolution of the linked sale contract it depends on
Cour d'Appel de Commerce d'Abidjan, arrêt n° 415/2024 (RG n° 909/2023), 25 avril 2024 · Côte d'Ivoire
In a three-party vehicle-acquisition chain (supplier, lessor/financer and buyer), the Court of Appeal held that where a hire-purchase financing contract and the underlying commercial sale contract are interdependent — the cause of one resting on the other — a supplier's failure to deliver goods already paid for justifies resolving not only the sale contract but also the linked financing contract, with mutual restitution of what each party received. The Court grounded this on Articles 1134 and 1184 of the Civil Code (good faith and the implied resolutory condition in synallagmatic contracts) together with Articles 237 and 240 of the OHADA Uniform Act on General Commercial Law (commercial sales governed by ordinary contract law, provable by any means).
Read the decision (PDF) ↓OHADA commercial law (sale of goods)An invoice accepted without reservation does not by itself prove that goods were delivered
CCJA, arrêt n° 112/2023, Pourvoi n° 217/2021/PC, 27 avril 2023 · Côte d'Ivoire (siège CCJA)
Reversing the court of appeal, the CCJA held that under Article 250 of the Uniform Act on General Commercial Law (AUDCG), a seller's invoice — even received and accepted without reservation by the buyer — does not on its own establish that the goods were actually delivered; the seller bears the burden of proving effective delivery. On the facts, the seller (Tropic Agro Chem Côte d'Ivoire) had invoiced the buyer (I Cotoni CI) for the full price of a 4,000-tonne fertiliser order but never established that it had physically delivered the unpaid balance, so its claim for payment was dismissed.
Read the decision on OHADA.com ↗Insolvency & collective proceedings (procédures collectives)Liquidation is mandatory once cessation of payments is shown and no serious concordat is possible
CCJA, arrêt n° 022/2011, Pourvoi n° 002/2007/PC, 06 décembre 2011 · Côte d'Ivoire (siège CCJA)
Applying Articles 25 and 33 of the Uniform Act on Collective Proceedings for the Discharge of Liabilities (AUPCAP), the CCJA upheld the liquidation (liquidation des biens) of a company found to be in cessation de paiements — its realizable and available assets (about FCFA 31.5 billion) fell roughly FCFA 26 billion short of its due liabilities (about FCFA 57.6 billion). Because the debtor could not fund the restructuring plan it proposed (relying on unproven promises of State support), the courts below correctly found no serious concordat and were bound to order liquidation rather than redressement judiciaire. Rejecting the pourvoi, the Court reaffirmed that, whatever the debtor's intentions, the choice between redressement and liquidation turns strictly on whether a serious, fundable concordat exists at the time cessation of payments is judicially established.
Read the decision on OHADA.com ↗Security interests (sûretés) — judicial mortgageA provisional judicial mortgage lapses if the creditor misses the statutory deadline to sue on it
CCJA, arrêt n° 010/2016, Pourvoi n° 088/2013/PC, Ohadata J-16-219, 21 janvier 2016 · Côte d'Ivoire (siège CCJA)
Reversing the court of appeal, the CCJA held that confirming the provisional registration of a judicial mortgage (hypothèque forcée judiciaire) is unlawful where the creditor failed, within the time limit set by the registration order, to bring either of the two actions required by Article 136 (now Article 213) of the Uniform Act on Securities — an action en validité or an action on the merits of the underlying debt. Without one of those actions, the provisional registration cannot be upheld, and the appellate ruling confirming it was quashed.
Read the decision on OHADA.com ↗OHADA corporate law — company transformationThe CCJA defines "transformation" of a company and the consequences of not harmonising by-laws with the revised Uniform Act
CCJA, avis n° 002/2015, demande n° 255/SP/DAJ/OHADA/2015, Ohadata J-16-208, 23 juin 2015 · Democratic Republic of the Congo (advisory opinion, siège CCJA)
Answering a formal request for an advisory opinion from the DRC, the CCJA held that "transformation" under Article 181 of the Uniform Act on Commercial Companies is strictly the adoption of a new legal form from the exhaustive list the Act authorises — mergers, demergers and changes to corporate purpose or capital are not "transformation" in this sense. A company incorporated under a form the Act does not recognise must transform into a recognised form or risk losing its legal personality, only the two-year transitional survival period under Article 919 applies to companies that have not yet harmonised their by-laws, and a transformation ends the mandates of the pre-existing management bodies, with the formalities for opposability to third parties being separate from the transformation's substantive validity.
Read the decision on OHADA.com ↗Debt recovery & enforcementA conservatory attachment lapses once the enforceable title it relied on is set aside and not replaced
CCJA, arrêt n° 006/2016, Pourvoi n° 018/2013/PC, Ohadata J-16-215, 21 janvier 2016 · Côte d'Ivoire (siège CCJA)
The CCJA held — raising the point of its own motion — that it is a violation of Article 61 of the Uniform Act on Simplified Recovery Procedures for a court of appeal to fail to find a conservatory attachment lapsed (caduque) where, by the date of the contested judgment, the attaching creditor still had no enforceable title: the only procedure it had relied on, an injonction de payer order, had itself been set aside and no new procedure had been initiated to obtain another enforceable title. Ruling on the merits, the Court declared the attachment caduque and ordered its release.
Read the decision on OHADA.com ↗Debt recovery & enforcement — negotiable instrumentsA bill of exchange is a formalist instrument immune from defences drawn from the underlying contract
CCJA, arrêt n° 009/2016, Pourvoi n° (série 2013), Ohadata J-16-218, 21 janvier 2016 · Côte d'Ivoire (siège CCJA)
The CCJA held that a bill of exchange (lettre de change) is a formalist negotiable instrument whose validity and enforceability are independent of the commercial relationship that gave rise to it. Absent a forgery (faux) proceeding against the instrument itself, a debtor cannot resist an injonction de payer founded on a bill of exchange by raising defences drawn from the underlying contract; the trial court had correctly applied Article 2 of the Uniform Act on Simplified Recovery Procedures in rejecting the debtor's opposition on that basis.
Read the decision on OHADA.com ↗Security interests (sûretés) — conventional mortgageA mortgage over a real right still being registered is valid as a binding promise to mortgage
CCJA, arrêt n° 054/2013, Pourvoi n° 080/2009/PC, Ohadata J-15-54, 13 juin 2013 · Senegal (siège CCJA)
The CCJA quashed a Dakar court of appeal ruling that had annulled a conventional mortgage on the ground that the guarantor only obtained formal title to the mortgaged property after signing the mortgage deed. It held that, under (then) Article 119 of the Uniform Act on Securities, a holder of an inchoate real right may validly mortgage it before registration is complete; the deed operates as a binding promise to mortgage under (then) Article 129, which the guarantor fulfilled once title was perfected and the mortgage duly registered — making the guarantee enforceable against him.
Read the decision on OHADA.com ↗OHADA corporate law — board governanceBoard deliberations are not void for failure to pre-circulate agenda documents unless the by-laws say so
CCJA, arrêt n° 073/2015, Pourvoi n° 028/2010/PC, Ohadata J-16-74, 29 avril 2015 · Guinea (siège CCJA)
The CCJA quashed a ruling that had annulled a board of directors' deliberations because supporting documents on the agenda had not been sent to a director in advance. It held that Article 453 of the Uniform Act on Commercial Companies defers to the company's own by-laws to set the rules for convening board meetings and sanctions nullity only where a director was not properly summoned — not for failing to circulate agenda documents. Since the company's by-laws imposed no such requirement and the director had in fact received formal notice of the meeting, the board's deliberations were valid.
Read the decision on OHADA.com ↗OHADA corporate law — mergersA merger is void for failure to file the compliance declaration required by Article 198 AUSCGIE
CCJA, arrêt n° 021/2014, Pourvoi n° 093/2010/PC, Ohadata J-15-112, 11 mars 2014 · Guinea (siège CCJA)
The CCJA held that Article 198 of the Uniform Act on Commercial Companies requires merging companies to file with the companies registry a declaration attesting that the merger was carried out in compliance with the Act, on pain of nullity of the merger itself. Because that filing had not been made — a fact confirmed by uncontested correspondence from the registry — the merger was annulled with full legal effect. The Court also held that a pre-emption right only entitles its holder to step into the shoes of an intended purchaser; it does not of itself transfer ownership.
Read the decision on OHADA.com ↗Insolvency & collective proceedings (procédures collectives)A court can open insolvency proceedings on its own motion from information supplied by employees, without a prior expert report
CCJA, arrêt n° 032/2011, Pourvoi n° 112/2004/PC, Ohadata J-13-153, 8 décembre 2011 · Congo (siège CCJA)
The CCJA confirmed that a court may open collective insolvency proceedings of its own motion on the basis of information supplied by a company's workers, without this amounting to a ruling beyond what was claimed (ultra petita) and without first needing an expert inquiry into the debtor's finances. It further held that Article 32 of the Uniform Act on Collective Proceedings does not require a prior expert opinion before the court rules, and upheld the court of appeal's sovereign finding that the debtor's proposed recovery composition (concordat de redressement) was not credible, justifying liquidation in creditors' interest.
Read the decision on OHADA.com ↗OHADA commercial law (sale of goods)An offer with a fixed price and a vague promise to pay the balance later is not a credit-sale counter-offer, and pre-empts a later sale of the same assets
CCJA, arrêt n° 028/2011, Pourvoi n° 101/2007/PC, Ohadata J-13-152, 6 décembre 2011 · Niger (siège CCJA)
The CCJA held that a firm offer to sell factory assets at a fixed price, accepted with partial payment and a signed contract draft, concluded a binding sale under Articles 210 and 211 of the Uniform Act on General Commercial Law. An undertaking to pay the balance "later," without any proposed payment schedule, did not qualify as a counter-offer for a credit sale under Article 214 — the balance simply remained immediately due. Because the sale to the first buyer had already been concluded, a later sale of the same assets to a different buyer was rightly annulled.
Read the decision on OHADA.com ↗Insolvency & collective proceedings (procédures collectives)A concordat préventif of two years or less binds a dissenting creditor to the term, but not to the debt remission it refused
CCJA, arrêt n° 026/2015, Pourvoi n° 124/2011/PC, Ohadata J-16-26, 9 avril 2015 · Côte d'Ivoire (siège CCJA)
The CCJA quashed a ruling that treated a dissenting creditor's refusal of a proposed debt remission (remise) as capable of blocking court approval of a concordat préventif only if the proposed delay exceeded two years or endangered that creditor's business. Under Article 15.2 of the Uniform Act on Collective Proceedings, a court may make a concordat term of two years or less binding even on a creditor who refused any delay or remission — but the remise itself never becomes binding on a dissenting creditor merely because the term is short. Evoking the case, the CCJA held the dissenting bank bound only by the two-year term, not by the remission it had refused.
Read the decision on OHADA.com ↗Commercial leases — scope of the AUDCGThe commercial-lease statute does not apply to occupation of the public domain, even between private parties
CCJA, arrêt n° 075/2015, Pourvoi n° 044/2010/PC, Ohadata J-16-76, 29 avril 2015 · Guinea (siège CCJA)
The CCJA held it lacked jurisdiction over a dispute concerning a convention authorising temporary occupation of public land at Conakry-Gbessia airport, because such a convention — subject to the principle of précarité governing the inalienable, non-transferable public domain — does not constitute a commercial lease within the meaning of the AUDCG, even though concluded between two private parties and used for a commercial activity. The presence of exorbitant clauses typical of public contracts (including the exclusion of compensation for disruption linked to the airport's public service operations) confirmed the administrative, not commercial, nature of the convention and the case's exclusion from OHADA law.
Read the decision on OHADA.com ↗Disputes & Arbitration — annulment of CCJA awardsA "final and binding" clause is not a waiver of the right to challenge a CCJA award, and failure-of-mission review cannot be used to re-litigate the merits
CCJA, arrêt n° 033/2015, Recours en contestation de validité n° 011/2014/PC du 24 janvier 2014, Ohadata J-16-33, 23 avril 2015 · Mali
The State of Mali sought annulment of a CCJA-administered award that had found it liable to Groupe TOMOTA S.A. for breach of contract under Malian law. The CCJA held that an arbitration clause stating the award will be "final and binding" merely restates res judicata and does not amount to a clear, unequivocal waiver of the statutory right to challenge the award's validity. It further held that a challenge based on the arbitrators' alleged failure to comply with their mission is confined to verifying that they stayed within the scope of the parties' mandate, and cannot be used to reopen the merits of findings made under the applicable national law; the tribunal's assessment of Mali's contractual liability under Law n°87-31 of 29 August 1987 was accordingly upheld, and the challenge was dismissed in its entirety.
Read the decision on OHADA.com ↗Security interests (sûretés) — suretyship (cautionnement)The Uniform Act on Securities applies imperatively to suretyship and cannot be waived by the parties; formal requirements for cautionnement are mandatory
CCJA, arrêt n° 18/2003, Ohadata J-04-119, 9 octobre 2003 · Côte d'Ivoire
The CCJA held that the Uniform Act Organising Securities (AUS) applies directly and imperatively in all Member States notwithstanding any contrary domestic-law provision, earlier or later, and governs suretyship (cautionnement) acts entered into after its entry into force (article 150 AUS). A ruling that treated the parties' silence on the AUS's formal requirements as an implicit waiver of its application was quashed for violating articles 4 and 150 AUS. The Court further held that a cautionnement act must be annulled under article 4 AUS where it bears neither the signature of the creditor (beneficiary) nor a handwritten mention, in the surety's own hand, of the maximum sum guaranteed — mandatory form requirements that the parties cannot derogate from by agreement.
Read the decision on OHADA.com ↗Debt recovery & enforcement — immovable seizure (saisie immobilière)No liability action lies under AUPSRVE for an irregular immovable seizure once the sale itself has been upheld as valid
CCJA, arrêt n° 005/2016, Pourvoi n° 017/2013/PC, Ohadata J-16-214, 21 janvier 2016 · Côte d'Ivoire (siège CCJA)
Unlike Article 144, alinéa 3 of the Uniform Act on Simplified Recovery Procedures and Enforcement Measures (AUPSRVE), which allows an ordinary-law liability action against the seizing creditor where a seizure (saisie) has been annulled before the sale, Title VIII of the AUPSRVE on immovable seizure (saisie immobilière) contains no equivalent liability action. Once the nullity of the judicial sale (adjudication) has been rejected, that rejection forecloses any further liability claim against the creditor bank based on alleged irregularities in the seizure process. The court of appeal's judgment, which had held the bank liable while referring only generally to procedural acts "sans déterminer les dits actes et les textes les organisant," was quashed for insufficient reasoning on this point.
Read the decision on OHADA.com ↗Cassation procedure — contradictory groundsSimultaneously finding a debt uncertain and the claim inadmissible amounts to contradictory, and therefore insufficient, reasoning
CCJA, arrêt n° 003/2016, Pourvoi n° 002/2013/PC, Ohadata J-16-212, 21 janvier 2016 · Côte d'Ivoire (siège CCJA)
A judgment that reverses a first-instance decision on the ground that the debt pursued is uncertain ("n'est pas certaine"), while also holding the recovery action inadmissible ("irrecevable"), relies on contradictory grounds that are equivalent to an absence of reasons. A debt that is uncertain goes to the merits of the claim, whereas inadmissibility is a bar that precludes any examination of the merits; a single judgment cannot rest on both without contradicting itself. The CCJA quashed the judgment on this basis.
Read the decision on OHADA.com ↗Debt recovery & enforcement — immovable seizure (saisie immobilière)An appeal in immovable-seizure proceedings is confined to the grounds Article 300 AUPSRVE lists exhaustively, and an acte d'appel without a statement of grounds is void
CCJA, arrêt n° 004/2016, Pourvoi n° 004/2013/PC, Ohadata J-16-213, 21 janvier 2016 · Côte d'Ivoire (siège CCJA)
Under the Uniform Act on Simplified Recovery Procedures and Enforcement Measures (AUPSRVE), an appeal against a decision rendered on an incident de saisie immobilière may only be based on the grounds exhaustively listed by Article 300; a court of appeal that reads in an additional, unwritten condition — distinguishing decisions by the hearing at which they were rendered — exposes its ruling to cassation. An appeal that challenges only the time limits for the surenchère declaration and its notification, the interval before the hearing, or the late posting of placards is inadmissible, as none of those grounds appear on the Article 300 list. Separately, Article 301 AUPSRVE requires the notice of appeal (acte d'appel) to state the appellant's grounds on pain of nullity; one that omits them is inadmissible for that reason alone.
Read the decision on OHADA.com ↗CCJA jurisdiction — Article 14, OHADA TreatyThe CCJA has no jurisdiction over a claim to prevent an enforcement that has not yet been undertaken
CCJA, arrêt n° 002/2016, Pourvoi n° 171/2012/PC, Ohadata J-16-211, 21 janvier 2016 · Côte d'Ivoire (siège CCJA)
Article 14 of the OHADA Treaty gives the CCJA jurisdiction over disputes on the application of OHADA uniform texts, including proceedings for forced execution (exécution forcée) carried out on the strength of an enforceable title. The CCJA held it lacked jurisdiction over a pourvoi where the underlying action did not seek a ruling on an execution already undertaken, but instead sought to prevent an execution from being undertaken while a separate cassation appeal was pending against the title relied on. Because no uniform-text question on an actual enforcement measure was raised, the claim fell outside Article 14 and the CCJA declined jurisdiction.
Read the decision on OHADA.com ↗CCJA jurisdiction — Article 18 OHADA Treaty; location-gérance (AUDCG)A national supreme court that wrongly retains jurisdiction over a location-gérance dispute governed by the AUDCG exposes its own ruling to annulment by the CCJA
CCJA, arrêt n° 181/2015, Pourvoi n° 079/2012/PC, Ohadata J-16-174, 17 décembre 2015 · Côte d'Ivoire (siège CCJA)
A location-gérance (business management lease) is a matter governed by the Uniform Act on General Commercial Law (AUDCG), so a dispute concerning one falls within the jurisdiction the OHADA Treaty reserves to the CCJA. Where a party properly raised, before the national Supreme Court, an objection that it lacked jurisdiction over such a dispute, but the Supreme Court nonetheless declared itself competent and ruled on the merits, the CCJA held that this violated Article 18 of the Treaty and declared the national court's judgment null and void (nul et non avenu).
Read the decision on OHADA.com ↗CCJA jurisdiction — Articles 13, 14 and 18 OHADA Treaty; AUSCGIE (company law)A national supreme court that retains jurisdiction over an AUSCGIE company-law dispute despite a request to decline in favour of the CCJA violates Articles 13, 14 and 18 of the OHADA Treaty
CCJA, arrêt n° 068/2015, Pourvoi n° 096/2008/PC, Ohadata J-16-189, 29 avril 2015 · Côte d'Ivoire (siège CCJA)
Where a dispute is governed by the Uniform Act on Commercial Companies and Economic Interest Groups (AUSCGIE), the OHADA Treaty reserves jurisdiction to the CCJA once a party has asked the national supreme court to decline jurisdiction or to stay proceedings (sursis à statuer) pending referral. A national supreme court that instead retains the case and rules on the merits violates Articles 13, 14 and 18 of the Treaty. The CCJA annulled the national court's judgment, declaring it null and void (nul et non avenu).
Read the decision on OHADA.com ↗Cassation procedure — insufficient reasoning; security interests (sûretés) — non-retroactivity of the AUS to a prior mortgageA Court of Appeal ruling that asserts unspecified facts without identifying its evidentiary basis is insufficiently reasoned and must be quashed; the 1997 Uniform Act on Securities does not apply retroactively to a mortgage granted before it took effect
CCJA, arrêt n° 001/2016, Pourvoi n° 012/2012/PC, Ohadata J-16-210, 21 janvier 2016 · Côte d'Ivoire (siège CCJA)
A Court of Appeal decision that, to reverse a first-instance judgment, merely asserts that certain facts result from unspecified "uncontested elements of the file" and a land registry extract, without identifying those elements or the registry extract relied upon, is insufficiently reasoned and prevents the CCJA from exercising its review — such a decision must be quashed (cassation) for insufficient motivation. On the merits, the Uniform Act on Securities (AUS) of 17 April 1997 does not apply retroactively to a protective mortgage (hypothèque conservatoire) granted before its entry into force; that mortgage remains governed by the national law previously applicable. Because the definitive registration required under that national law was never completed, the first-instance judgment validating the debtor's payment obligation and the mortgage registration had become final, and the initial registration had retroactively lost effect and could no longer support a forced real-estate seizure (saisie immobilière).
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