EXAMINING THE LEGAL AND INSTITUTIONAL FRAMEWORK THAT REGULATES ROAD TRANSPORT COMPANIES IN CAMEROON
|TRANSPORT AND LOGISTICS|
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1.1 BACKGROUND TO THE STUDY
The OHADA Uniform Act on Commercial Companies and Economic Interest Groups 1997 defines companies as “An association of two or more persons that come together to carry out a certain activity and such persons must be bound by contract with the objective of sharing the profits that accrue from such activities. It must be noted that in the quest for profits, corporations should not go against the state prohibitions particularly when it concerns public safety and welfare.
Civil Liability refers to the “Legal obligation that requires a party to pay for damages or to follow other court enforcement” this simply puts if a person or party is found liable for a non-criminal act that caused harms to the plaintiff, they are legally required to pay monetary compensation.
A company, being a corporate entity, can sue and be sued in its corporate name. As a matter of law, it has separate existence, identity from the brains, minds, and hands operating it to commercial functionality. The law therefore draws a clear cleavage between the company as the artificial person and the natural persons with life and limb who can operate it. This is because a company, being an artificial person, can only act through its human agents and ;’/p has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody for some purpose may be called an agent but who really is the directing mind and will of the corporation, the very ego and center of the personality of the corporation…’’
Also, Torts law comes in play as it was established in the case of Donoghue V Stevenson which deals with the duty of care and the neighbor’s principle where Lord Atkins said that a person was said to owe a duty of care to his neighbors. His neighbors was somebody whom might reasonably be foreseen to suffer loss or damage by reason of his breach duty.
The so called neighbours principle was stated to be the common factor in the cases where duty of care existed. One must take care not to injure one neighbors. The question is who one neighbors is? A neighbour is anyone who is so closely and directly affected by an act that you ought to have them in contemplation when you act .
Corporate personality (bodies) is the fact stated by law that a company is recognized as a legal entity distinct from its member, (shareholder, directors, officers and creator) and as such it has certain rights and obligation which means the company can enter contracts, sue and be sued etc. in such light the corporate bodies are also responsible for any liability that occurs. This was established in the case of Salomon vs. Salomon.
To hold a corporation liable, the offense must be committed by an employee or by a third Party agent of the organization while they are working within the scope of their of their role and the intent of the action was to benefit the corporation. If this two criteria are met, the organization could be held liable instead of the individual who committed a crime. In the case where the acts were committed in negligence or due to a lack of management oversight, the corporation can still be held liable.
Corporate Liability, also referred to as Liability of a Legal persons, determines the extent to which a company as a legal person can be held liable for the acts and omissions of the natural persons, its employees. In the eyes of the Law, Corporation are seen as person or individuals who can be prosecuted and Liable for action.
However, if the employee strays from their duties and commits a wrongs in the process, the law will examine the extend of the deviation to determine liability. The court takes many factors into consideration to determine which category the actions fall under, but if the actions are found to be a frolic then the corporation will not be held liable.
Corporate liability is important because it helps define what party will be legally responsible in a wide range of cases. These liabilities can range from debt- related obligations to contractual obligations to liabilities related to personnel. Corporate liability also helps corporations better prepare to mitigate the risks associated with doing business.
With the facilitation of investment and growing influence of multinational companies coupled with the profit-driven motives of such corporations, there is a great concern about the accountability of corporations. Corporations have been known to be “profligate than individuals because they have more power to do mischief, and are less amenable to disgrace or punishment. They neither fear shame, remorse, gratitude nor goodwill.” Generally speaking, one form in which accountability can be achieved is through civil liability. Corporate activities sometimes produce grave consequences to the society such as environmental pollution, injury, death, deceiving, defrauding of the population and even the misappropriation of funds.
This calls for the need for corporations to be held civil liable for their actions. A corporate body is a bearer of rights and is answerable for its liabilities.
Although this work deals with corporate civil liability, which cannot focus on all corporation will focus on the liability of the transport companies specifically the road transport companies. Before the coming of the colonial masters in Cameroon, there was no remarkable route network apart from footpaths, but today several transport companies have surfaced due to the improvement and development of the road infrastructure and modern transport network. The very nature of transport makes the transport industry an ideal target for government regulation. As a result, the transport industry is amongst the most highly regulated industries in the world.
This transportation is either be by road, air, or water or railway involve in the movement of perons and goods and various Laws regulate this various modes of transport.
Prior to 1989, Cameroon law subscribed to the principle of fault in determining the civil liability of the person responsible for road traffic accident. in the area of transportation, a person issued injured by a motor vehicle will recover compensation only if the defendant was at fault. The action of negligence under English speaking Cameroonian law is akin to an action under article 1382 and 1383of the civil code applied in French speaking Cameroon.
In Cameroon, The Ministry of transport is responsible for the coordinated development of all transportation. It maintains and regulates the organization, and the functioning of air, rail, road and maritime transport. It formulates and implements legislative and statutory measures relating to transport safety. The functions of the Ministry of Transport are provided by Decree n°2012/250 of 1st June 2012, to lay down the organization and functioning. The minister of transport is responsible for the elaboration and implementation of all Government policy in matters of transport and road safety.
The transport industry has become so relevant and an important need for humanity and also a peresiquite for the operation of international trade, and hence they open to several liability. Some of this liability include injuries (torts) caused to person or damage or loss of properties. In the event where this transport companies are involve in such civil wrong, they are bound by law to compensate the injured party or for the loss of their property. The road Transport companies are regulated by the transportation law which is a set of specific legal rules applicable to the movement of persons and goods. As a commercial contract, its purpose is to govern the entire transport activity.
The road transport involve in the transportation of people and goods requires prior compliance with numbers of laws and regulations. According to a report of the African Development Bank, in spite of poor road infrastructure, road transport accounts for roughly 90% of domestic demand of transport to travelers and about 75% of transport of goods.
In recent years, more people have been claiming financial compensation for personal injuries they sustain and for the lost and damage for properties. The focus of this research deals on the liability of corporation with regards to transport companies focuses on the liability of transport companies from perspective of the road transport. The Road transport is one of the mode of transportation that is involve in the transportation of persons and goods.
The essence of examining the road transport is simply the because of the casualty rate in the road transport far exceed that for other modes of transportation. In other modes of transportation. In the transport sector, they have contractual obligation to provide safety to its passengers and its goods any breach of that, the transport company shall be liable.
The liability of the road transport company will be examine from both the liability incurred in the transportation of persons and the carriage of goods. The number of vehicles on the road that are involve in the transportation of persons and goods, the mechanism and the structures of the vehicles involved, the speed and efficiency of the drivers and the overloading of this transport companies, all contributed to produce and increase road accident. This has led to the rise in the rate of personal injuries and fatal accidents with disruptive effects on the victims and their dependents. In few cases, the victims of this casualties or loss of properties have obtained judgment against the transport company, some of the transport companies were without sufficient funds to satisfy the judgment debts.
This let to public outcry and solution had to be made. The insurance law came in to play a vital role in liability of the road transport companies. According to the Cameroonian law, it is compulsory that every car must have an insurance policy especially transport companies since they are open to several liabilities.
1.2. STATEMENT OF THE PROBLEM