OHADA and Its Significance
- Established: Founded in 1993 (Port Louis, Mauritius) and revised in 2008 (Quebec), OHADA aims to unify business law across 17 Sub-Saharan African countries.
- Legal Background: Before OHADA, member states primarily relied on the Code Civil and Code de Commerce, derived from French civil law.
- Mission: To create a predictable and secure legal environment for businesses and investors through uniform transnational substantive laws.
- Judicial Oversight: The Common Court of Justice and Arbitration (CCJA) ensures consistent interpretation and application of OHADA’s harmonized laws.
Types of Simplified Debt Recovery Procedures
OHADA’s simplified debt recovery process applies to creditors without a final judgment or enforceable court order. While termed “simplified,” it includes procedures for:
Injunction to Pay (Debt Recovery)
Applicability: Liquidated and due claims arising from contracts or negotiable instruments (e.g., dishonored cheques).
Proof Requirement: Creditors must demonstrate the existence of the debt.
Injunction to Deliver
Example: If goods purchased are not delivered, creditors can obtain an order for their delivery.
Initiating the Simplified Debt Recovery Process
Judge’s Order
Upon review, the judge issues a mandatory injunction to pay, deliver, or restitute.
Service and Response
The order must be served on the debtor within three months.
The debtor has two options:
Challenge the Order (Opposition):Must be filed within 15 days of service.
No Action:If no action is taken, the creditor can request the court to finalize the order by adding the “executory formula.”
Time Limit
Creditors must request the executory formula within two months after the opposition deadline. Failing to do so nullifies the order.
Enforcement of Judgments
Once a judgment is final and enforceable, creditors can initiate enforcement measures, including:
Attachment and Sale of Movable Property: Seizing and selling assets to recover the debt.
Wage or Bank Account Garnishment: Redirecting funds from the debtor’s income or accounts.
Real Property Attachment: A last-resort measure for attaching land or real estate.
Conclusion
OHADA’s simplified debt recovery and enforcement procedures offer creditors an efficient framework for debt collection within member states. While the process is streamlined, understanding the legal intricacies and preparing for potential challenges from debtors are essential for successful recovery.
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